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2021 DIGILAW 129 (KER)

Prince Paul John v. State of Kerala

2021-02-10

A.K.JAYASANKARAN NAMBIAR

body2021
JUDGMENT : 1. The petitioner, who is engaged with the business of quarrying and has been conducting quarrying operations in Survey Nos.68/2 and 80/2 in Palakkuzha Village in Muvattupuzha Thaluk, in a extent of 0.7289 hectares of land, has approached this Court apprehending that the respondents will not permit him to carry on quarrying activities on the strength of Ext.P6 quarrying permit for the reason that the validity of the said permit expires on 9.2.2021. 2. In the Writ Petition, it is the case of the petitioner that owing to the lock-down imposed in connection with Covid-19 pandemic situation that prevailed in the country, he was unable to carry out quarrying activities under the said permit for the period from 24.3.2020 till 28.4.2020 (a period of 36 days). It is also his case that finding the validity of Ext.P6 quarrying permit to be only till 9.2.2021, he has preferred an application as evidenced by Ext.P16 challan for renewal of the permit that was earlier granted to him. It is his case however, that the renewal application will not be processed immediately, on account of the pendency of litigation before the NGT, where the said forum has yet to fix the distance criteria for the grant of quarrying permits. The limited prayer at this stage is for a direction to the respondents to permit the petitioner to continue quarrying activities under Ext.P6 quarrying permit till 17.3.2021, by excluding the period from 24.03.2020 till 28.4.2020, as the period during which the quarrying permit could not be worked by the petitioner. The petitioner places reliance on Ext.P13 order dated 7.5.2020 of the LSGD, that granted extension for submitting applications for renewal of all licenses till 31.10.2020, Ext.P14 circular issued by the LSGD dated 7.5.2020, extending the validity of building permits that expired on or after 10.3.2020 till 31.12.2020 and Ext.P15 notification dated 18.1.2021 issued by the Ministry of Environment, Forest 106 and Climate Change, which excluded the period from 1.4.2020 to 31.3.2021, from the calculation of the period of validity of prior Environmental Clearances granted under the provisions of the said notification. The aforesaid documents are relied upon to contend that the Central Government as also the State Government has excluded periods during which a person could not carry on activities under cover of regulatory licenses/consents/certificates, while computing the validity period of the said licenses/ consents/certificates. The aforesaid documents are relied upon to contend that the Central Government as also the State Government has excluded periods during which a person could not carry on activities under cover of regulatory licenses/consents/certificates, while computing the validity period of the said licenses/ consents/certificates. The prayer in the Writ Petition is essentially for the extension of a similar fair treatment in respect of the quarrying permit granted to the petitioner. 3. The learned Government Pleader Sri.S.Kannan, vehemently opposes the prayer of the petitioner by pointing out that granting the relief sought for by the petitioner would tantamount to extending the validity period of the permit granted to him, which is not statutorily permissible. He relies on the judgments in State of Gujarat & Ors. v. Nirmalaben S.Mehta & Anr. (2016) 9 SCC 240 ), Geomin Minerals and Marketing Private Limited v. State of Orissa & Ors. and connected cases (2013) 7 SCC 571 ), State of Tamil Nadu v. M/s. Hind Stone & Ors. (1981) 2 SCC 205 ), Nature Lovers’ Forum v. State of Kerala ( 2016 (1) KLT 75 ), Dharmendra Kumar Singh v. State of Uttar Pradesh), Senior Geologist v. Thankachan ( 2021 (1) KLT 1 46 ), Asstt. Collector of Central Excises & Anr. v. Kashyap Engg. & Metallurgicals (P) Ltd. (2002) 10 SCC 443 ), Union of India & Anr. v. Kirloskar Pneumatic Co. Ltd. (1996) 4 SCC 453 ), Union of India & Ors. v. Concord Fortune Minerals India Private Limited (2018) 12 SCC 279), State of Kerala v. Central Pollution Control Board ( 2021 (1) KLT 1 ) to canvass the proposition that this Court should not ignore the statutory scheme that regulates the activity of mining under the Mines and Mineral (Development and Regulation) Act r/w The Kerala Mines and Mineral Concession Rules (‘the Act’ for short) and accordingly should not modify the term of a quarrying permit that has been granted by the State Government to an applicant. It is the further contention of the learned Government Pleader that if the relief sought for by the petitioner is granted in the instant case, it will lead to the opening of floodgates, in that all similarly placed permit holders would now approach the Government seeking an exclusion of the period during which the licenses/permits could not be operate, while counting the period of validity of the said licenses/permits. 4. 4. I have carefully considered the submissions on either side. On a consideration of the rival contentions, I am of the view that the exercise of judicial review by this Court, in proceedings under Art.226 of the Constitution of India, must necessarily strive to uphold the rule of law, while overseeing the conduct of statutory authorities vis-a-vis citizens. It is now well settled that the basis of judicial review in our country is not to be found in the concept of ultra vires alone but on the larger premise of upholding 107 the rule of law which inter alia takes in the requirement of ensuring fair treatment of citizens statutory authorities entrusted with the task of regulating their activities. In the instant case, the petitioner has pointed to the period of 36 days between 24.3.2020 till 28.4.2020, during which, despite having a quarrying permit for carrying on the quarrying activities, he could not carry out the said activities on account of the pandemic situation that prevailed in the State and which forced the State Government to impose a lock down. The interests of fairness would therefore demand that the State Government permit the petitioner to effectively utilize the permit that was granted to him by ensuring that the petitioner gets the benefit of the full period envisaged under the permit for carrying out his quarrying operations. In the instant case, the period from 24.3.2020 till 28.4.2020 (a period of 36 days) would have to be excluded while comparing the one year validity period of Ext.P6 permit, and when so compared the validity of Ext.P6 would expire only on the midnight of 17.3.2021. In my view, this is a concession that must be extended by the State Government to the petitioner, in the interests of fairness in administration. I therefore, dispose the Writ Petition with the following directions:- i) The 3rd respondent shall treat Ext.P6 quarrying permit issued to the petitioner as expiring only on the midnight of 17.3.2021 and shall permit the petitioner to carry on quarrying operations under the said permit till the said date. ii) It is made clear that during the aforesaid period, the petitioner shall confine the quarrying operations only to the quantity of material that he is permitted to quarry in Ext.P6 permit. The learned Government Pleader points out at this juncture that the balance quantity to be extracted under Ext.P6 is only 5485 MT. ii) It is made clear that during the aforesaid period, the petitioner shall confine the quarrying operations only to the quantity of material that he is permitted to quarry in Ext.P6 permit. The learned Government Pleader points out at this juncture that the balance quantity to be extracted under Ext.P6 is only 5485 MT. iii) The 3rd respondent shall also in the meanwhile, process the application dated 25.1.2021 submitted by the petitioner for renewal of the quarrying permit, after permitting the petitioner to cure the defects, if any, pointed out in the same, and by taking note of the direction issued by this Court in State of Kerala v. Central Pollution Control Board ( 2021 (1) KLT 1 ). The entitlement of the petitioner to future quarrying activities will depend upon the decision to the taken by the 3rd respondent on the application for renewal of the quarrying permit. iv) It is further clarified that nothing in this judgment shall be seen as permitting the petitioner to carry on quarrying activities without complying with the necessary formalities under other regulatory statutes such as the Kerala Panchayath Raj Act, the Environment Protection Act etc. The Writ Petition is disposed as above.