Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 993 (KER)

Mathew Daniel, S/o. Daniel v. State Of Kerala

2019-11-25

SHAJI P.CHALY

body2019
JUDGMENT : This writ petition is filed by the petitioner who has submitted application seeking No Objection Certificate for quarrying lease in Government land situated in Survey No.341/6 in Block No.30 of Koodal Village in Pathanamthitta District, seeking to quash Ext.P8 No Objection Certificate issued by the State Government to the 9th respondent, i.e., M/s. Adani Vizhinjam Port Private Ltd., which has undertaken the work of Vizhinjam Port Project, one of the prestigious projects of the State Government, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Pursuant to Ext.P1 application submitted by the petitioner dated 27.09.2017, reports were sought for from the revenue authorities, and they have submitted Exts.P2, P3, P5 and P6 reports recommending that the application can be considered. Thereupon, petitioner has entered into Ext.P4 agreement with a third person for providing access to vehicles to the property in question. It is also pointed out that, petitioner had to spend huge amounts for carrying out measurement etc. etc. in order to facilitate the quarrying operations. 3. The prime case advanced by the petitioner is that, the application of the petitioner is the first in point of time, however, the District Collector, Pathanamthitta has issued Ext.P8 No Objection Certificate (NOC) to the 9th respondent, without any justifiable reasons and also without affording an opportunity of hearing to the petitioner. These are the basic background facts put forth by the petitioner to secure the reliefs as are sought for in the writ petition. 4. A detailed counter affidavit is filed by the 9th respondent, refuting the claims and demands raised by the petitioner. Among other contentions, it is stated that, the 9th respondent was selected as the Concessionaire for the Design, Build, Finance, Operate and Transfer of Vizhinjam Seaport Project, which is a major infrastructure project of Government of Kerala. The Vizhinjam Seaport Project is developed in Public Private Partnership (PPP) mode. Therefore, the Vizhinjam Seaport Project is a Government Project, since the Government of Kerala is the public partner of the project. The award of the Vizhinjam Project was the result of a Multi Stage Global Tender Process, and it was as per the Government Order dated 13.07.2015, the bid submitted by the 9th respondent was approved by the Government for an amount of Rs.1,635 crores. The award of the Vizhinjam Project was the result of a Multi Stage Global Tender Process, and it was as per the Government Order dated 13.07.2015, the bid submitted by the 9th respondent was approved by the Government for an amount of Rs.1,635 crores. It was thereupon that the agreement was executed on 17.08.2015, and the estimated project cost for Phase-I of the project is Rs.5,552 Crores, which comprises of Rs.1,463 Crores of funded work (including construction of breakwater) and Rs.4,089 Crores of Public Private Partnership component. As per the contract, the funded work which involves construction of breakwater and a fishing harbour should be funded by the Government of Kerala and constructed by the 9th respondent. The specification of breakwater as per the Concession Agreement includes a minimum length of 3100 metres with the breakwater top road having a width of 10 metres. The cost assessed for breakwater alone will be Rs.1,387 Crores. 5. Therefore, according to the 9th respondent, huge quantity of rocks are required for the construction of breakwater. After the construction was started, it was found that there is acute shortage of rock and in spite of the earnest efforts made to procure rock from the southern Districts of Kerala, sufficient rock could not be procured. Thereupon, 9th respondent approached the State Government to find a way out, since ultimately it is a Government Project. Thereupon, the State of Kerala held a high level meeting chaired by the Chief Minister of Kerala, and decided to permit the 9th respondent to conduct quarrying operations in Government lands available in Thiruvananthapuram, Kollam and Pathanamthitta Districts, evident from Ext.P14 minutes of the High Level Meeting held on 03.07.2018. It was accordingly that Ext.P8 NOC was issued to conduct quarrying operations in the Government lands specified above, which is having an extent of 4.8556 Hectares forming part of an extent of 6.3200 Hectares. 6. According to the 9th respondent, they have submitted the application in accordance with the provisions of the Kerala Minor Mineral Concession Rules, 2015 (for brevity, 'the Rules, 2015), and it was taking into account the urgent requirement of procuring rock/rubbles, Government have taken a decision as per Ext.P14 to permit the 9th respondent to conduct quarrying operations, exclusively for the purpose of Vizhinjam Project. It is also pointed out that, the provisions of the Rules do not prohibit absolutely considering an application submitted subsequently, showing special reasons. Therefore, according to the 9th respondent, petitioner has not made out any case of arbitrariness or illegality justifying interference of this Court. 7. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition. 8. I have heard Sri. Mathew Kuriakose, learned counsel for the petitioner, Sri. M.H. Hanil Kumar, learned Special Government Pleader, Sri. M.P. Sreekrishnan, learned Standing Counsel appearing for the 4th respondent, i.e., the State Level Environment Impact Assessment Authority and Sri. Roshen D. Alexander, learned counsel appearing for the 9th respondent. Perused the pleadings and the documents on record. 9. The sole question to be considered is, whether any manner of interference is warranted to Ext.P8 NOC issued by the State Government to the 9th respondent to conduct quarrying operations in the properties specified above for procurement of rock/rubbles in order to carry on with the construction of Vizhinjam Seaport Project, which is a prestigious project undertaken by the State Government. It is clear from Ext.P8 NOC that the same was issued to the respondent, imposing severe conditions including that the rubbles procured from the properties specified above shall be utilized only for the purpose of Vizhinjam Seaport Project. So also, clear conditions are specified with respect to adherence to the provisions of the Kerala Minor Mineral Concession Rules. 10. Learned counsel for the petitioner submitted that, it is evident from Exts.P9 to P13 that No Objection Certificates were given to various persons by imposing a condition that 50% of the rubbles procured shall be diverted to the Vizhinjam Seaport Project, and therefore, the petitioner is also entitled to get a similar treatment. That apart, learned counsel has basically relied upon Rule 31 of the Rules, 2015, which deals with preferential right of certain persons. Sub- rule (1) thereto stipulates that: “Where two or more persons have applied for quarrying lease in respect of the same land the applicant whose application was received earlier shall have preferential right for the grant of the lease over an applicant whose application was received later”. Sub- rule (1) thereto stipulates that: “Where two or more persons have applied for quarrying lease in respect of the same land the applicant whose application was received earlier shall have preferential right for the grant of the lease over an applicant whose application was received later”. However, sub-rule (2) is an exception to sub-rule (1), which stipulates that “the Government or the competent authority may, for special reasons to be recorded grant a quarrying lease to an applicant whose application was received later in preference to an applicant whose application was received earlier”. 11. The paramount contention advanced by learned counsel for the petitioner is that, since petitioner's application, received earlier in point of time, was pending consideration, the authority ought to have provided an opportunity of hearing to the petitioner and having not done so, the entire action is violative of the principles of natural justice. However, learned Special Government Pleader as well as the learned counsel appearing for the 9th respondent submitted that, by virtue of the powers conferred on the Government under Rule 31(2), the Government or the competent authority may, by assigning special reasons to be recorded, grant a quarrying lease to an applicant whose application was received later in preference to an application received earlier. 12. So also, learned counsel for the 9th respondent has invited my attention to Rule 27(2)(d) of the Rules, 2015. Rule 27 deals with application for grant of quarrying lease. Clause (d) of sub-rule 2 thereunder stipulates that, “No Objection Certificate, in the case of revenue poramboke lands or lands owned by Local Self Government or forest lands, from the District Collector or Secretary of the Local Self Government Institution or Divisional Forest Officer, as the case may be, to the effect that they have no objection for the extraction of minor mineral by the applicant subject to the provisions contained in these rules”. Therefore, the contention advanced is that, first of all an applicant should have secured a No Objection Certificate from the competent authority and thereafter the application is to be submitted for quarrying lease, which is dealt with under Rule 31 of the Rules, 2015. 13. Therefore, the contention advanced is that, first of all an applicant should have secured a No Objection Certificate from the competent authority and thereafter the application is to be submitted for quarrying lease, which is dealt with under Rule 31 of the Rules, 2015. 13. I have evaluated the rival submissions made across the Bar and I am of the considered opinion that, it was on the basis of the request made by the 9th respondent, since it is facing difficulties to procure rock/rubbles in order to carry on with the construction of the Project, a High Level meeting was convened and Ext.P14 decision was taken. In Ext.P14, it is clearly recorded that the 9th respondent is facing difficulties in procuring rock in order to carry on with the construction, so as to complete the same within the time period agreed upon by and between the parties. Therefore, it was having been satisfied with the special circumstances, the competent authority has decided to issue NOC to the 9th respondent and it was accordingly that Ext.P8 NOC was issued on 15.02.2019. In my considered opinion, in Exts.P14 and P8, sufficient reasons are recorded so as to overlook the application submitted by the petitioner, which is admittedly, prior in point of time. It is also to be borne in mind that the Government have convened a High Level meeting on the basis of the application submitted by the Project proponent, i.e., the 9th respondent, in order to tackle the situation with respect to the dearth of rock for carrying on the Seaport Project, and it was after realizing that the application submitted by the 9th respondent was due to the adverse situations faced by it, and Government also understood that unless and until a special sanction is given, the Project undertaken by the 9th respondent may get delayed, the decision was taken. 14. Therefore, on a reading of Ext.P14, it is clear that the Government have taken into account all the pros and cons of the issue, in order to grant a special sanction and on the basis of the decision alone, Ext.P8 NOC was issued by the District Collector, Pathanamthitta, permitting the 9th respondent to conduct quarrying operations in the properties situated in Re survey No.341/6, Block No.30 of Koodal Village, Konni Taluk. Moreover, the special reasons that persuaded the Government to issue a No Objection Certificate to the 9th respondent is in respect of its own project. It is also clear that the NOC was sought for by the 9th respondent for quarrying operations from the Government land. Being the trustee, custodian and owner of the property in question, the Government have got necessary prerogative to take a decision in order to protect the interest of the public at large. Moreover, if the project gets delayed, there is every likelihood of the public money being wasted on that account. Therefore, taking into account all these aspects and keeping in mind the larger public interest, the Government have decided to issue NOC to the 9th respondent. It is also clear from Exts.P14 and P8 that sufficient reasons are assigned in order to grant NOC to the 9th respondent. 15. True, petitioner has a case that, since petitioner's application was pending consideration before the Government, petitioner should have been provided with an opportunity of hearing. However, learned counsel for the petitioner could not point out any statutory provision stipulating that, before consideration of an application a hearing should be provided to the applicant. I would have appreciated the contention put forth by the petitioner, if the two applicants were private persons and the application submitted by the petitioner was overlooked. It is also significant to note that, the 9th respondent was given NOC with a strict condition that the rock shall be used only for the purpose of construction of the Seaport Project. 16. In that view of the matter, I do not think the Government/competent authority is duty bound to provide any opportunity to the petitioner before taking a decision as per Ext.P14, and the consequential issuance of No Objection Certificate by the competent authority. Resultantly, I am of the considered view, petitioner has not made out any case, justifying interference in Exts.P8 and P14, exercising the power of judicial review under Article 226 of the Constitution of India. The writ petition fails, accordingly it is dismissed.