Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 4TH DAY OF DECEMBER 2023/13TH AGRAHAYANA, 1945 WP(C) NO.38678 OF 2022 PETITIONER: K.J.ABRAHAM, AGED 72 YEARS S/O.JOSEPH, KALAMANNIL HOUSE, KOZHENCHERY P.O., PATHANAMTHITTA DISTRICT, PIN - 689641 BY ADV.JESTIN MATHEW RESPONDENTS: 1 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, COLLECTORATE P.O., KOTTAYAM DT, PIN - 686002 2 THE TAHASILDAR, MEENACHIL TALUK, MINI CIVIL STATION, PALA P.O, KOTTAYAM DISTRICT, PIN - 686575 3 THE TALUK SURVEYOR, MEENACHIL TALUK, PALA P.O, KOTTAYAM DISTRICT, PIN - 686575 BY SRI.BIMAL K.NATH, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH WP(C) NO.29315/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.38678 of 2022 & con.case 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 4TH DAY OF DECEMBER 2023/13TH AGRAHAYANA, 1945 WP(C) NO.29315 OF 2023 PETITIONER: K.J.ABRAHAM, AGED 73 YEARS S/O.JOSEPH KALAMANNIL,KOZHENCHERRY, KOZHENCHERRY P.O, PIN - 686641 BY ADV.JESTIN MATHEW RESPONDENTS:
1 DISTRICT COLLECTOR, PATHANAMTHITTA, COLLECTORATE, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT, PIN - 689645 2 TAHASILDAR, KOZHENCHERRY, KOZHENCHERRY TALUK OFFICE, MINI CIVIL STATION, KOZHENCHERRY, KOZHENCHERRY. P.O, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT, PIN - 689645 3 VILLAGE OFFICER, KOZHENCHERRY, KOZHENCHERRY.P.O, PATHANAMTHITTA DISTRICT, PIN - 689645 4 GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, KOTTAYAM, KOTTAYAM DISTRICT, PIN - 680002 BY SRI.BIMAL K.NATH, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.12.2023, ALONG WITH WP(C) NO.38678/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.38678 of 2022 & con.case 3
JUDGMENT
WP(C) No.38678 of 2022 Petitioner is the Managing Partner of a firm engaged in quarrying activities. Alleging illegal excavation of granite, proceedings were initiated against the petitioner under the provisions of the Kerala Minor Mineral Concession Rules, 2015 and the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015. Ext.P2 is the show-cause notice issued to the petitioner asking him to show-cause as to why proceedings shall not be initiated for illegal extraction in resurvey Nos.23/2 & 20/2 of Moonilavu Village, Meenachil Taluk, Kottayam District. The petitioner submitted Ext.P3 reply to Ext.P2. Thereafter, the 1st respondent issued Ext.P4 demand notice asking WP(C) Nos.38678 of 2022 & con.case 4 him to remit an amount of Rs.44,56,248/- towards royalty and Rs.89,12,496/- towards price. A sum of Rupees One lakh was imposed as fine.
2. Aggrieved by Ext.P4 demand notice, the petitioner approached this Court and this Court, by Ext.P5 judgment dated 04.07.2022 in WP(C) No.20841 of 2022, observed that Ext.P4 has been issued without affording a reasonable opportunity
to the petitioner to defend the charge. Accordingly, this Court ordered to treat Ext.P4 as a show-cause notice and directed the 1st respondent herein to pass final orders thereon. Pursuant to Ext.P5 judgment, the 1st respondent passed Ext.P11 order. In Ext.P11, it is stated that a joint inspection of the site was conducted by the Taluk Surveyor and the 1st respondent in the presence of the petitioner’s Manager, who had attested the WP(C) Nos.38678 of 2022 & con.case 5 Mahazar. It is further stated that, none of the contentions of the petitioner in Exts.P8 & P10 reply submitted to Ext.P3 show-cause is sustainable. Accordingly, the petitioner was directed to remit the amount demanded in Ext.P4 notice within a period of ten days. Challenging Ext.P11, the instant writ petition is filed.
3. The petitioner relies on Ext.P7 letter of the 3rd respondent wherein it is stated that the measurement of the quarrying area was taken by
resorting to total station method. Along with Ext.P7, a sketch was also provided to the Geologist. The petitioner states that the inspection conducted by the Taluk Surveyor, as
seen from Ext.P7, is without notice to him and the sketch appended to Ext.P7 [Ext.R4(b)] has been prepared behind his back. It is also contended WP(C) Nos.38678 of 2022 & con.case 6 that the joint inspection referred to in Ext.P11
order has been conducted without notice to him.
4. Ext.P12 is the notice of hearing, wherein the date of joint inspection was scheduled on 03.05.2022. However, the inspection was conducted on 04.05.2022, that too, in the absence of the petitioner. It is contended by the petitioner that, the person who is stated to have attested the Mahazar on behalf of him, is not his employee
or agent or his representative. It is further contended that no reason whatsoever has been stated for discarding the contentions of the
petitioner in Exts.P8 & P10.
5. A counter affidavit has been filed on
behalf of the Geologist, wherein it is stated that though the joint inspection was scheduled on 03.05.2022, the inspection could not be conducted WP(C) Nos.38678 of 2022 & con.case 7 on the said date and the same was informed to the petitioner over telephone and it was informed by the petitioner that a representative of the petitioner would be present at the site. It is stated that the petitioner’s Manager was present at the site during inspection and he had attested to the Mahazar. It is contended that the directions in Ext.P5 judgment were complied with and the petitioner was heard before passing Ext.P11 order.
6. Heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for the respondents.
7. By Ext.P11, the petitioner has been
directed to pay an amount of Rs.1,34,68,744/- for illegal extraction of granites. Earlier, Ext.P4 demand notice was interfered with by this Court WP(C) Nos.38678 of 2022 & con.case 8
for the reason that the petitioner was not given reasonable opportunity to defend the charges in Ext.P2 show-cause notice. Accordingly, this Court directed the 1st respondent to treat Ext.P4 as a show-cause notice and to consider the reply of the petitioner and to pass final orders. Pursuant to Ext.P5 judgment, a joint inspection was conducted
by the Geologist and the Taluk Surveyor and Ext.P11 order has been passed. The petitioner contends that, though Ext.P12 notice was issued intimating him about the joint inspection to be conducted on 03.05.2022, no such inspection was conducted on the said date and instead, inspection was conducted on 04.05.2022 without notice to the petitioner. Though it is contended by the 1st respondent that the petitioner was informed over telephone that the joint inspection is adjourned WP(C) Nos.38678 of 2022 & con.case 9 to 04.05.2022, there is nothing on record to substantiate the said contention. The petitioner also states that the person, who had attested the Mahazar, is not his employee or agent.
8. In Ext.P5 judgment, this Court had
specifically directed the 1st respondent to give a reasonable opportunity to the petitioner to defend the charge against him, taking note of the heavy monetary penalty imposed on him. In Ext.P11, the 1st respondent has stated that the contentions of the petitioner in Exts.P8 & P10 are not sustainable. The 1st respondent had not adverted to any of such contentions. Ext.P11 is, therefore,
vitiated by non-application of mind. Ext.P11, imposing penalty on the petitioner and directing him to pay huge amount as royalty and price alleging illegal extraction of minerals, entails WP(C) Nos.38678 of 2022 & con.case 10 civil and penal consequences. From Ext.P11, it is evident that the petitioner was not given a reasonable opportunity to defend the charge.
9. Accordingly, Ext.P11 order is set aside.
There will be a direction to respondents 1 & 3 to conduct a joint inspection of the quarrying site of the petitioner with due notice to him. For the said purpose, the petitioner shall appear before the 1st respondent on 12.12.2023 at 11 a.m. The 1st respondent shall inform the petitioner the date of joint inspection, on which date the 3rd respondent/
Taluk Surveyor shall prepare a fresh sketch replacing the sketch referred to in Ext.R4(b), in the presence of the petitioner. After such inspection, the petitioner shall be provided with a report of inspection within one week therefrom. Thereafter, the petitioner shall be afforded an WP(C) Nos.38678 of 2022 & con.case 11 opportunity of hearing and fresh orders shall be passed within a period of one month from the date of hearing. The writ petition is disposed of. WP(C) No.29315 of 2023 This writ petition has been filed challenging Ext.P2 demand notice pursuant to Ext.P11 order in WP(C) No.38678 of 2022. In the light of the directions I have issued in WP(C) No.38678 of 2022, Ext.P2 demand notice shall be kept in abeyance, till orders are passed as above.
With the said observation, this writ petition is disposed of. Sd/- MURALI PURUSHOTHAMAN JUDGE sp/05/12/2023 WP(C) Nos.38678 of 2022 & con.case 12 APPENDIX OF WP(C) NO.38678 OF 2022 PETITIONERS' EXHIBITS:- EXHIBIT P1 TRUE COPY OF THE QUARRYING PERMIT BEARING NO.10/GBS/QP/2018-19/DOY/ML/2018 DATED GEOLOGIST EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO. 1797/DOY/ML/2019 DATED GEOLOGIST EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICE BEARING NO.1797/DOY/ML/2019 DATED 02/06/2022 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED HONOURABLE COURT EXHIBIT P6 TRUE COPY OF THE LETTER DATED TAHASILDAR, TO THE 1ST RESPONDENT GEOLOGIST EXHIBIT P7 TRUE COPY OF THE LETTER DATED TAHASILDAR EXHIBIT P8 TRUE COPY OF THE REPLY DATED 20/07/2022 BEFORE THE 1ST RESPONDENT GEOLOGIST WP(C) Nos.38678 of 2022 & con.case 13 EXHIBIT P9 TRUE COPY OF THE NOTICE DATED GEOLOGIST EXHIBIT P10 TRUE COPY OF THE REPLY DATED 10/10/2022 SUBMITTED BEFORE THE 1ST RESPONDENT GEOLOGIST EXHIBIT P11 TRUE COPY OF ORDER NO.782/2022- ISSUED BY THE 1ST RESPONDENT GEOLOGIST EXHIBIT P12 A TRUE COPY OF THE NOTICE DATED WP(C) Nos.38678 of 2022 & con.case 14 APPENDIX OF WP(C) NO.29315 OF 2023 PETITIONERS' EXHIBITS:- EXHIBIT P1 A TRUE COPY OF THE QUARRYING PERMIT BEARING NO. 10/GBS/QP/2018-19/1416/DOY/ML/2018 DATED 20.07.2018 EXHIBIT P2 A TRUE COPY OF THE DEMAND IN FORM 10 DATED 27.07.2023 EXHIBIT P3 A TRUE COPY OF ORDER NO.782/2022EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 12.12.2022 IN WP(C) NO 38678/2022 OF THIS HON'BLE COURT EXHIBIT P5 A TRUE COPY OF ORDER DATED 12/06/2023, NO.35/23-24/1508 /DOY/ML/19 ISSUED BY THE 4TH RESPONDENT EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 31.07.2023 IN WP(C) NO 21396/2023 OF THIS HON'BLE COURT EXHIBIT P7 A TRUE COPY OF THE OBJECTION DATED 25.08.2023 SUBMITTED BY THE PETITIONER RESPONDENT EXHIBITS EXHIBIT R4(B) A TRUE COPY OF THE REPORT AND SKETCH RECEIVED FROM TAHSILDAR,MEENACHIL (LETTER NO.B5-2896/12 DATED 23.07.2020) EXHIBIT R4(A) TRUE COPY OF FORM M..NO.10/GBS/QP/2018WP(C) Nos.38678 of 2022 & con.case 15 EXHIBIT R4(C) A TRUE COPY OF THE SHOW CAUSE NOTICE NO.1797/DOY/ML/2019 DATED 07-05-2022 EXHIBIT R4(D) A TRUE COPY OF THE DEMAND NOTICE NO.1797/DOY/ML/2019 DATED 02.06.2022 EXHIBIT R4 (E) A TRUE COPY OF THE ORDER NO.782/2022-