P. O. Varghese v. District Collector, Ernakulam District
2020-12-18
A.MUHAMED MUSTAQUE
body2020
DigiLaw.ai
JUDGMENT : This matter relates to quarrying operation conducted by the 12th respondent, Gigi Mathew, Proprietor of GKV Granites in Mookkannoor Village, Ernakulam District. 2. This Writ Petition was filed originally challenging Ext.P28 decision of the Sub Collector, Fort Kochi, and Ext.P31 decision of the District Collector, Ernakulam. Thereafter, the Writ Petition was amended by raising a challenge to Ext.P5 environmental clearance, Exts.P7 and P8 consent issued by the Kerala Pollution Control Board, Ext.P17 licence issued by the Deputy Chief Controller of Explosives, and Ext.P20 D & O licence issued by the Panchayat. 3. The quarrying operation is carried in survey Nos.10/3-1, 10/3-2, 10/4, 10/7 of Mookkannoor Village. This land originally belonged to one M.A.Jitheesh Kumar. As early as on 10/12/2007, a prohibitory order was issued by the Tahsildar, Aluva, prohibiting mining in the said land. This was based on complaints raised by the local residents. Challenging the stop memo, Jitheesh Kumar approached this Court by W.P.(C).No.13738/2008. This Court disposed of W.P. (C).No.13738/2008 on 29.04.2008 directing the Revenue Divisional Officer, Fort Kochi, to take a final decision. Thereafter, the Revenue Divisional Officer, by order dated 20.8.2008, produced as Ext.P4, permanently prohibiting operation of the quarry. This was for the reason that quarry operators did not have any licence and due to illegal quarry operations, damage has been caused to nearby houses. The nature of the order is one of the dispute raised in this case. According to the petitioners, this order is passed under S.133 of the Code of Criminal Procedure, 1973. According to the fourth respondent, this order is passed invoking powers conferred upon the revenue authorities in terms of Rule 58 of the Kerala Minor Mineral Concession Rules, 1967. It is submitted by the learned counsel for the 12th respondent, Tahsildar and Revenue Divisional Officer are the competent authorities appointed by the Government invoking its power under clause (iv) of Rule 3 of the Kerala Minor Mineral Concession Rules, 1967. 4. The 12th respondent purchased the land in question along with one K.K.Ravi in the year 2013. Thereafter, he submitted application for quarrying lease. As things stand now, he has all statutory permit and licence to operate the quarry. It may be appropriate to refer the relevant portion of Ext.P31 in regard to the licence, permits, environmental clearance, owned and possessed by the 12th respondent. 1.
Thereafter, he submitted application for quarrying lease. As things stand now, he has all statutory permit and licence to operate the quarry. It may be appropriate to refer the relevant portion of Ext.P31 in regard to the licence, permits, environmental clearance, owned and possessed by the 12th respondent. 1. Letter of Indent No.12590/M3/2015 dated 08/01/2016 of the Director of Mining and Geology, Thiruvananthapuram. 2. Mining Plan approved by Geologist, Ernakulam (DEO/277/E2/2016 dated 22.03.2016 District Geologist, Ernakulam). 3. Consent from Pollution Control Board (file No.PCB/EKM/DO-1/OA-226/17 dated 08.05.2017 from 04.05.2017 to 27.04.2020 issued by Kerala State Pollution Control Board, Ernakulam). 4. Environmental Clearance (District Environmental Impact Assessment Authority (DEIAA) Order No.P/513/2017(DIA/KL/MIN/2779/2017) dated 19.04.2017 (Environmental Clearance No.09/2017). 5. Explosive Licence No.E/SE/KL/22/138/E 102170 dated 15.06.2017 valid upto 31.03.2022 from Deputy Chief Controller & Explosives, Ernakulam. 6. D & O License from Panchayath, Licence No.301/2019-2020 dated 20.07.2019 from Secretary, Mookkannur Panchayath. 7. NOC from Irrigation Department-D7-2210/2018 dated 03/09/2019 from Executive Engineer, Edamalayar Irrigation Project. 8. Quarrying lease from Director of Mining & Geology executed in Form H from 29/07/2019 to 28.07.2027. 5. The present dispute appears to have been originated after the 12th respondent obtained statutory clearance, permits, licences etc. The petitioners, sensing an attempt to start quarrying operation by the 12th respondent, approached the revenue authorities. The 12th respondent also approached the revenue authorities to lift the prohibitory order. The petitioners also approached this Court by W.P.(C).No.33422/2018 when the 12th respondent attempted to obtain clearance, permits and licences etc. Noting that the District Collector/Revenue Divisional Officer have seized of the matter, this Court disposed of the Writ Petition. Petitioners again approached this Court with W.P.(C).No.16080/2020 seeking consideration of the representation by the District Collector and challenging some of the clearance permit obtained by the 12th respondent. This Court disposed of the Writ Petition by judgment dated 21/8/2020 noting that the District Collector had already passed an order on 9.6.2020, a copy of which is produced as Ext.P31, directed the District Collector to communicate the order to the petitioners. The petitioners were also given liberty to workout their remedy through proper channel. These intervening matters may not be necessary for detailed consideration as the same may not be necessary for the final decision on the challenge made before this Court.
The petitioners were also given liberty to workout their remedy through proper channel. These intervening matters may not be necessary for detailed consideration as the same may not be necessary for the final decision on the challenge made before this Court. As already noted, the challenge in this case was originally mounted against Ext.P28 decision of the Sub Collector and Ext.P31 decision of the District Collector, Ernakulam. Thereafter, after amending, the petitioners raised challenge to permit, clearance, licences etc. of the 12th respondent. Ext.P28 is an order passed by the Sub Collector on 10.7.2020. It was observed therein that the prohibitory order issued by the Tahsildar in 2007 and permanent prohibitory order issued by the Collector in the year 2008 can be lifted. However, in the light of the directions in the Writ Petition, 33422/2018, the Sub Collector was of the view that it is for the District Collector to take a decision. 6. The District Collector, in fact, before Ext.P28 order, dated 10.7.2020, of the Sub Collector, had taken a decision on 9.6.2020 pursuant to the judgment in W.P.(C).No.33422/2018, and ordered lifting of the prohibition by the Sub Collector. Ext.P31 is the said order. Thereafter, by Ext.P37 order, the Sub Collector lifted permanent prohibition of quarrying operations on 27.8.2020. 7. According to the learned Senior Counsel appearing for the petitioners, the Sub Collector exercising quasi judicial function cannot review his own decision. It was argued that the Sub Collector exercised the power under S.133 of Cr.P.C, and therefore, the remedy of the aggrieved is to approach the revisional authority under the Cr.P.C. According to the 12th respondent, the revenue authority acted as a notified authority for imposing penalty under Rule 58 of the Mineral Conservation and Development Rules, 1988 and the order being an administrative order, it is open for such authority to review that order. 8. A Division Bench of this Court in Biju v. Union of India (2015 (3) KLT SN 17 (C.No.22)) succinctly distinguished administrative orders and orders passed under quasi judicial function. It was held that there is no embargo for the administrative authorities reviewing its own decision. The Court has to find out the nature of the authority exercised under law to distinguish as to whether an order passed exercising the power under the quasi judicial function or an administrative finding. 9.
It was held that there is no embargo for the administrative authorities reviewing its own decision. The Court has to find out the nature of the authority exercised under law to distinguish as to whether an order passed exercising the power under the quasi judicial function or an administrative finding. 9. Section 133 of the Cr.P.C. confers powers on the Sub Divisional Magistrate to remove nuisance. Procedures also have been prescribed to pass conditional order and final order. On a close reading of the provisions of S.133, it is discernible that the powers discharged by the Sub Divisional Magistrate is a quasi judicial function. In quasi judicial function, an authority is competent to decide the rights and obligations of the parties concerned. If any decision is taken involving rights and obligations of the parties, such proceedings will have to be called as a quasi judicial function. In quasi judicial function, a decision is taken in accordance with predetermined procedures or rules. 10. In this case, no procedures under S.133 were followed. The original order of prohibition was issued by the Tahsildar as the revenue authority in exercise of the administrative power. Thereafter, this Court relegated the matter for decision by the Sub Collector, Fort Kochi. The Sub Collector, Fort Kochi, noting that no requisite licence has been obtained, permanently prohibited the quarrying operations. It is true that there were observations of nuisance. But such observation was incidental to the finding that the quarrying operations were conducted without licence. Sub Collector also noted that the quarrying permit was not renewed. Therefore, such decision cannot be called as a decision passed under S.133. No procedures as referable under S.133 were followed. If any decision is taken without any reference to the procedures or rules, but only to secure the objectives of law, such decision has to be treated as an administrative decision dictated by administrative expediency. In the light of Biju’s case supra, there is no embargo for the administrative authority to review its own order. 11. No doubt, the administrative authority cannot invariably review its own order, without any change of circumstances. In this case, the order can be justified for the reason that the 12th respondent produced all statutory clearances, licences etc. to review the earlier order. Therefore, I do not find that the order passed by revenue authorities including District Collector, requires interference. 12.
No doubt, the administrative authority cannot invariably review its own order, without any change of circumstances. In this case, the order can be justified for the reason that the 12th respondent produced all statutory clearances, licences etc. to review the earlier order. Therefore, I do not find that the order passed by revenue authorities including District Collector, requires interference. 12. Next point is the challenge in regard to various environmental clearances, licences etc. obtained by the 12th respondent. According to the petitioners, this was obtained suppressing the material facts. The petitioners point out the distance to the nearby residence to the project site. 13. This Court under Article 226 cannot interfere with statutory licence, clearances, etc., directly unless the Court forms an opinion that such licence, clearances, etc., were issued by any authority without satisfying the mandatory requirement. Various factual parameters required for consideration have been adverted to before issuance of clearances, licence etc. If there is deliberate concealment of facts, it is always open for the petitioners to move such authority to revoke clearances, permits, licence etc. This Court cannot adjudicate factual disputes and enter into a different finding. The scope of interference in such circumstances is very limited. It is only when there is patent illegality in recording fact finding, this Court would be justified in invoking its power under Article 226 of the Constitution. 14. In the light of the discussions as above, I find no merit in the Writ Petition. Accordingly, the Writ Petition is dismissed. No costs.