Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 8TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 WP(C) NO. 27992 OF 2021 PETITIONER: M/S.EDATHADAN GRANITES PVT. LTD., OMBATHUNGAL, MATTATHUR P.O, THRISSUR, KERALA-680684., REPRESENTED BY ITS MANAGING DIRECTOR ANANTHAKRISHNAN SHAJAN. BY ADVS.T.H.ABDUL AZEEZ K.P.MAJEED MOHAMMED SADIQUE.T.A SHANKAR V. RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, KERALA-695001. 2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT, KERALA-680003. 3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CIVIL STATION ANNEXE, IRINJALAKUDA, THRISSUR DISTRICT, KERALA-680125. 4 THE TAHSILDAR, TALUK OFFICE, CHALAKUDY, CHALAKUDY P.O, THRISSUR DISTRICT, KERALA-680307. 5 THE DIRECTOR OF SURVEY, DIRECTORATE OF SURVEY AND LAND RECORDS, VAZHUTHAKKADU P.O, THIRUVANANTHAPURAM DISTRICT, KERALA-695014. 6 THE DISTRICT SURVEY SUPERINTENDENT, OFFICE OF THE DISTRICT SURVEY SUPERINTENDENT, THRISSUR DISTRICT, KERALA-680001. 7 THE TALUK SURVEYOR, TALUK OFFICE, CHALAKKUDY, THRISSUR DISTRICT, KERALA-680307. 8 THE VILLAGE OFFICER, KODASSERY VILLAGE OFFICE, THRISSUR DISTRICT, KERALA-680721. -2-
9 THE MATTATHUR GRAMA PANCHAYAT, MATTATHOOR P.O, THRISSUR DISTRICT, KERALA-680684, REPRESENTED BY ITS SECRETARY. ADDL.R10 SAJIN JOHN, S/O.JOHN, POONKAVANAM HOUSE, PADY P.O., THRISSUR DISTRICT, PIN - 680 699. ADDL.R11 ISACC CHERIYAN, PONNAL HOUSE, MATTATHOOR P.O., THRISSUR DISTRICT, PIN - 680 684. [ADDL.R10 & R11 ARE IMPLEADED AS PER ORDER DATED 14.12.2021 IN I.A.1/2021 IN WP(C)27992/2021.] BY ADVS.M.R.VENUGOPAL GEORGEKUTTY MATHEW DHANYA P.ASHOKAN K.P.SATHEESAN (SR.) SRI.S. KANNAN.SR.G.P, SRI.JAFAR KHAN SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, ALONG WITH WP(C).13890/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 8TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 WP(C) NO. 13890 OF 2021 PETITIONERS: 1 PETER, S/O. DEVASSY, NADUVILEVEETIL HOUSE, MATTATHOOR P.O., THRISSUR DISTRICT-680684. 2 SAJIN JOHN, S/O. JOHN, POONKAVANAM HOUSE, PADY P.O., THRISSUR DISTRICT-680699. 3 ISACC CHERIYAN, PONNAL HOUSE, MATTATHOOR P.O., THRISSUR DISTRICT-680684. BY ADVS.GEORGEKUTTY MATHEW K.P.SATHEESAN (SR.) RESPONDENTS: 1 THE DIRECTOR OF MINING AND GEOLOGY, KESAVADASAPURAM P.O., THIRUVANANTHAPURAM-695001. 2 THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR DISTRICT, PIN-680001. 3 THE GEOLOGIST, OFFICE OF MINING AND GEOLOGY, THRISSUR DISTRICT, PIN-680001. 4 THE MATTATHUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MATTATHOOR P.O., THRISSUR DISTRICT, PIN-680684. -4-
5 THE TAHSILDAR, TALUK OFFICE, CHALAKKUDY, CHALAKKUDY P.O., THRISSUR DISTRICT, PIN-680307. 6 THE DIRECTOR OF SURVEY, DIRECTORATE OF SURVEY AND LAND RECORDS, VAZHUTHAKKADU P.O., THIRUVANANTHAPURAM, PIN - 695014. 7 THE DISTRICT SURVEY SUPERINTENDENT, OFFICE OF THE DISTRICT SURVEY SUPERINTENDENT, THRISSUR DISTRICT-680001. 8 THE TALUK SURVEYOR, TALUK OFFICE, CHALAKKUDY, THRISSUR-680307. 9 VILLAGE OFFICER, KODASSERY VILLAGE OFFICE, THRISSUR DISTRICT-680721. 10 M/S. EDATHADAN GRANITES (PRIVATE) LIMITED, REPRESENTED BY ITS MANAGING PARTNER, OMBATHUNGAL, MATTATHUR P.O., THRISSUR DISTRICT, PIN-680684. 11 ANANTHAKRISHNAN SHAJAN, MANAGING DIRECTOR, M/S.EDATHADAN GRANITES (PRIVATE) LIMITED, OMBATHUNGAL, MATTATHUR P.O., THRISSUR DISTRICT, PIN-680684. 12 PRATHIBHA SHAJAN, W/O.SHAJAN, EDATHADAN HOUSE, ALOOR P.O., THRISSUR DISTRICT, PIN-680684. 13 RAJKUMAR, S/O.KRISHNAKUMAR, KARUVATHIL HOUSE, PERINJANAM P.O., THRISSUR, PIN-680686. 14 R.BABU, NOW WORKING AS SURVEY SUPERINTENDENT, RESURVEY OFFICE, PUNALUR, KOLLAM DISTRICT-681331. -5-
15 LATHA N.R., NOW WORKING AS DEPUTY THAHASILDAR (BULDING TAX), TALUK OFFICE, CHALAKUDY, THRISSUR DISTRICT, PIN-680307. 16 SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL CELL OFFICE, KATHRIKKADAVU, KALOOR, ERNAKULAM, PIN-682017. BY ADVS.M.R.VENUGOPAL P.K.SURESH KUMAR (SR.) M.R.DHANIL DHANYA P.ASHOKAN T.H.ABDUL AZEEZ K.P.MAJEED MOHAMMED SADIQUE.T.A SHANKAR V. JISHY P.S. SRI.S. KANNAN.SR.G.P, SRI.JAFAR KHAN SR.G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, ALONG WITH WP(C)NO.27992/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -6-
JUDGMENT
[WP(C) Nos.27992/2021, 13890/2021] These Writ Petitions have been heard together since they impel opposing reliefs but are based on analogous factual circumstances.
2. WP(C)No.27992/2021 has been filed by a
Company called ‘Edathadan Granites Private Limited’ (hereinafter referred to as ‘Edathadan Granites’ for ease); while WP(C)No.13890/2021 has been filed by Sri.Peter Devassy and others opposing the operation of quarry by the former.
3. As per ‘Edathadan Granites’, they are
conducting the quarry on the strength of all necessary licenses, consents and permissions from the various statutory Authorities but that an allegation was made against them that they have encroached into a road ‘puramboku’ area. They assert that they have not done so, but that by way -7- of abundant caution, they have preferred applications for assignment of that land for the beneficial use of their quarry before the Revenue Divisional Officer (RDO), Trissur and pray that said Authority be directed to consider the same. They allege that pending such applications, action is now being taken by the Mattathur Grama Panchayat to resume the land in their possession, holding that they are in encroachment and that Exts.P6, P8, P10 and P11 have been issued for such purpose. They, therefore, pray that said proceedings be set aside and that any survey be permitted only after their applications for assignment are considered by the RDO in terms of law.
4. While so, WP(C)No.13890/2021 has been filed by Sri.Peter Devassy and others alleging that the 6th respondent has already settled Ext.P17 requiring that the properties in possession of -8-
‘Edathadan Granites’ be properly surveyed, leading to appropriate necessary action under the relevant laws. They also impugn Exts.P19 to P28 reports which are in favour of ‘Edathadan Granites’ and seek that the same be set aside; with an adscititious plea that Exts.P7 to P16 applications, preferred by them under the Kerala Land Assignment Rules, 1964, be declared as without competence.
5. I have heard Sri.V.Shankar and
Sri.T.A.Mohammed Sadique - learned counsel for the petitioner in WP(C)No.27992/2021; Dr.Satheesan - learned Senior Counsel, instructed by Sri.Georgekutty Mahtew - learned counsel for the petitioners in WP(C)No.13890/2021; Sri.M.R.Venugopal - learned Standing Counsel for the Grama Panchayat in both cases; Sri.M.R.Dhanil - learned counsel for the 15th respondent in WP(C)No.13890/2021 and Sri.S.Kannan and Sri.Jafar -9- Khan - learned Senior Government Pleaders appearing for the official respondents.
6. I must say at the outset that the disputations between the parties, as projected in these cases, are squarely in the factual realm. Normally, therefore, this Court will not enter
into its merits, going by the well-recognised inhibition of jurisdiction of this Court, while acting under Article 226 of the Constitution of India, in dealing with disputations of facts.
7. That said, as I have already indicated in the prefatory paragraphs of this judgment, ‘Edathadan Granites’ asserts that they are in occupation of the lands in question on the basis
of a valid lease and that they are not in encroachment of any Government or Panchayat property. They say that it is only by way of abundant caution that they have preferred applications for assignment before the RDO and
-10- pray that the same be directed to be considered, until which time, all action pursuant to the proceedings impugned in WP(C)No.27992/2021 be deferred.
8. However, contrary to the above, Sri.Peter Devassy and others - who are the petitioners in WP(C)No.13890/2021, allege that all the reports of
various authorities in favour of ‘Edathadan Granites’ are incompetent and have been settled with motives to help them and they specifically impugn Exts.P19 to P28 in the said Writ Petition on such basis. They also have a case that the survey and sketch prepared earlier are illegal and thus assert that Ext.P1 is unlawful. On such basis, they assert that Exts.P7 to P16 applications preferred by ‘Edathadan Granites’ in WP(C)No.13890/2021 is incompetent.
9. Sri.S.Kannan and Sri.Jafar Khan - learned Government Pleaders appearing for the official -11-
respondents, answered the afore rival contentions saying that a survey has already been conducted, which has made it clear that ‘Edathadan Granites’ is in occupation of certain public land. In fact,
Sri.Jafar Khan submitted that these lands are vested with the Panchayat and that, therefore, they must be given liberty to proceed against
‘Edathadan Granites’ as per law, including under the provisions of the Land Conservancy Act (L.C.Act for short) and other applicable Statutes and Regulations. This argument was supported by Sri.S.Kannan saying that merely because ‘Edathadan
Granites’ has filed applications for assignment under the Kerala Land Assignment Rules, it cannot empower them to use the property in question in the manner as they may choose. He submitted that this conduct of ‘Edathadan Granites’ is grossly contrary to law and therefore, their stand that they must be allowed to use the land in question
-12- pending the application, may not be countenanced by this Court.
10. Sri.M.R.Dhanil - learned counsel appearing for the 15th respondent who has settled some of the
impugned reports submitted that his client has only acted as per law based on germane and relevant inputs, including documents and title
deeds. He prayed that, therefore, no reliefs may be granted against his client.
11. In response, the learned counsel for ‘Edathadan Granites, submitted that his client has been operating the quarry without any objections being raised for the last several years and that all the present controversies have erupted on account of certain complaints made by the petitioners in WP(C)No.13890/2021, which are not edificed on any factual basis. He argued that, therefore, merely on the basis of suspicions and surmises, his client may not be put to any -13- prejudice.
12. The afore submissions of Sri.V.Shankar and
Sri.T.A.Mohammed Sadique were controverted by Dr.Satheesan - learned Senior Counsel appearing for the petitioners in W.P.(C)No.13890/2021, contending that the lands in question were
assigned only for the purpose of agriculture in
favour of the predecessors-in-interest of 'Edathadan Granites' and therefore, that their activities of conducting a quarry and crusher units in the same is in violation of every applicable Statues and Rules thereunder. He
submitted that, therefore, on that ground alone, his clients are entitled to relief in their writ petition.
13. I have evaluated the afore rival submissions and have also gone through the various materials available on record. -14-
14. There can be no doubt that there is a
disputation as to whether 'Edathadan Granites' has encroached into public land - whether it is owned by the Panchayat or by the Government. The aspect whether the land in question is owned by which of the afore two entities is not really relevant because if there is any such encroachment, necessary action is requisite to be brought under the 'L.C.Act' and other laws attracted.
15. In that context, the submission of Sri.M.R.Venugopal - learned Standing Counsel for the Panchayat, that a survey has now been completed, assumes great significance. If such a
survey has been completed after following due procedure, then certainly the Panchayat is obligated to intimate the petitioners and such
other interested persons about the same and hear them, thus leading to further consequential -15- measures, either under the 'L.C.Act' or such other applicable Statutes and Regulations.
16. If, through such an enquiry, it is found that the land in question is owned by the
Government, then certainly further resultant action will have to be completed by the RDO or the District Collector, as the case may be, under the afore Statutes, but this is only a technical issue because, as I have already said above, if the land is found to be a public one, necessary action will certainly have to follow.
In the afore perspective, I dispose of these writ petitions with the following directions:
(a) The competent Authority of the Mattathur
Grama Panchayat will hear the petitioners in both the writ petitions and every other person who is interested - after furnishing them copies of the survey report and the sketch, which are now stated -16-
to have been finalized - and then proceed to decide whether any part of Government land or Panchayat land has been encroached into by 'Edathadan Granites'. The said Authority shall complete proceedings with respect to this, resulting in an appropriate order to be
communicated to both sides, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.
(b) Depending upon the decision to be taken by the Panchayat as afore and if the land is found to be in their ownership, then all necessary consequential action, including under the 'L.C.Act' can be taken forward against any person or entity, who is found to have encroached into it; however, after following due procedure and adhering to the imperative statutory requirements under the applicable Statutes. -17-
(c) If, on the contrary, the Panchayat is to find that the land in question is not owned by them, but by the Government as a 'puramboke' area, then the files will be transmitted to the RDO for necessary action under the aforementioned Statutes, which shall also be completed without delay, after following due procedure.
(d) I hasten to clarify that the afore directions will not stand in the way of 'Edathadan Granites' in making applications before the Panchayat for assignment, should it be found that the land in question belongs to them, which shall
also be considered in terms of law, after affording both sides opportunities of being heard; however, adverting to the specific statutory ambit of the Kerala Land Assignment Act and Rules. As a corollary to this direction, if the land is found to be not owned by the Panchayat, then, when the -18- files are transmitted to the RDO in terms of the directions in (b) above, said Authority will also consider the pending applications of the petitioners, after affording opportunities of being heard to both sides, thus culminating in an appropriate order in terms of law. I make it reiteratingly clear that this Court has not entered into the merits of any of the rival contentions of the parties and that all of them are left open to be pursued by them appropriately, when the afore exercises are completed. It is also without need to say specifically that merely because the applications for assignment are pending, 'Edathadan Granites' will not be allowed to operate in the area found to be 'puramboke' through the survey, and any such action can be taken by them only after the afore -19- exercises are completed, or if they are found eligible to do so through an apposite order by any of the competent Authorities.
Sd/- DEVAN RAMACHANDRAN JUDGE akv -20- APPENDIX OF WP(C) 13890/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LOCATION SKETCH BEARING NO.555/15 ISSUED BY THE 9TH EXHIBIT P1(A) TRUE COPY OF THE NO OBJECTION CERTIFICATE BEARING NO.558/15 DATED EXHIBIT P2 TRUE COPY OF THE REPORT DATED EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 07/05/2015 GRANTING MINING LEASE TO THE 10TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPORT DATED RESPONDENT BEFORE THIS HONOURABLE COURT IN WPC 24806/2019.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER IN WA EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED
-21-
EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED EXHIBIT P15 TRUE COPY OF THE APPLICATION DATED EXHIBIT P16 TRUE COPY OF THE APPLICATION DATED EXHIBIT P17 TRUE COPY OF THE LETTER DATED
PETITIONER FROM THE OFFICE OF THE DEPUTY DIRECTOR OF SURVEY, THRISSUR. EXHIBIT P18 TRUE COPY OF THE SKETCH DATED CHALAKKUDY BEFORE 2ND RESPONDENT -22- DISTRICT COLLECTOR. EXHIBIT P18(A) TRUE COPY OF THE SKETCH DATED CHALAKKUDY BEFORE 2ND RESPONDENT DISTRICT COLLECTOR. EXHIBIT P19 TRUE COPY OF THE REPORT DATED RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P7 APPLICATION. EXHIBIT P20 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P8 APPLICATION. EXHIBIT P21 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P9 APPLICATION. EXHIBIT P22 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P10 APPLICATION. EXHIBIT P23 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P11 APPLICATION. EXHIBIT P24 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P12 APPLICATION. EXHIBIT P25 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P13 -23- APPLICATION. EXHIBIT P26 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P14 APPLICATION. EXHIBIT P27 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P15 APPLICATION. EXHIBIT P28 TRUE COPY OF REPORT DATED 14/01/2021 SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 5TH RESPONDENT ON EXT.P16 APPLICATION. EXHIBIT P29 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 12/03/2015 ISSUED BY MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT P30 TRUE COPY OF THE COMPLAINT DATED BEFORE THE 16TH RESPONDENT. EXHIBIT P31 TRUE COPY OF THE PETITION DATED BEFORE THE RESPONDENT NOS. 2 TO 5. EXHIBIT P32 TRUE COPY OF THE LETTER DATED 4TH RESPONDENT PANCHAYAT. RESPONDENT EXHIBITS EXHIBIT R4(A) TRUE COPY OF SHOW CAUSE NOTICE NO.A6- EXHIBIT R4(B) TRUE COPY OF LETTER NO.A6-4921/21 DATED 30.04.2021 SEND TO THE TAHASILDAR (LAND -24- RECORDS), CHALAKKUDY. EXHIBIT R4(C) TRUE COPY OF LETTER NO.A1/6551/2021 DATED 20.07.2021 SEND TO THE TAHASILDAR (LAND RECORDS), CHALAKKUDY. EXHIBIT R10(A) TRUE COPY OF THE ORDER IN W.A.NO.1145 OF 2020 DATED 26.08.2020 OF THIS HONOURABLE HIGH COURT OF KERALA. -25- APPENDIX OF WP(C) 27992/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE DATED 15.02.2021 OF THE MINING AND GEOLOGY DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P2 TRUE COPY OF THE CHALLAN NO.KL019395338202021M DATED 22.02.2021 EVIDENCING REMITTANCE OF RS.8,54,440/- BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS AND ORDER
NO.L C.9/21 (B7-5397/2020) DATED 07.05.2021 OF THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE PAY IN SLIP AND RECEIPT FOR AN AMOUNT OF RS.12,74,750/- DATED 23.06.2021. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 13.07.2021 IN WPC NO.13890 OF 2021 OF THE HONOURABLE HIGH COURT OF KERALA. EXHIBIT P6 TRUE COPY OF THE NOTICE NO,B7- ON 07.09.2021. EXHIBIT P7 TRUE COPY OF THE REPLY CAUSED BY THE PETITIONER DATED 16.09.2021 TO THE 4TH EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT DATED 28.09.2021. EXHIBIT P9 TRUE COPY OF THE REPLY DATED 10.10.2021 GIVEN BY THE PETITIONER TO THE 4TH -26- EXHIBIT P10 TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT ON 29.10.2021. EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 29.11.2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. RESPONDENT EXHIBITS EXHIBIT R9(a) TRUE COPY OF LETTER NO.A6-4920/21 DATED 30.4.2021 SEND TO THE TAHASILDAR (LAND RECORDS), CHALAKKUDY. EXHIBIT R9(b) TRUE COPY OF THE COMMUNICATION
NO.B7/539/20 (3) DATED 17.01.2022 ISSUED FROM THE OFFICE OF THE TAHSILDAR (LAND RECORDS), CHALAKUDY. EXHIBIT R9(c) TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR.