G. Rajesh v. State Of Kerala Represented By Secretary To The Department Of Revenue
2021-09-24
S.MANIKUMAR, SHAJI P.CHALY
body2021
DigiLaw.ai
JUDGMENT : Shaji P. Chaly, J. This is a public interest litigation filed by the petitioners alleging that, on account of the failure on the part of the State and its officials, namely respondents 1 to 6, to recover the amounts legally due from the 7th respondent, for the alleged illegal quarrying carried out by the 7th respondent, in an extent of 5.47 acres of Government poramboke land in old survey No. 131E/1A/pt (new survey No. 240) of Puthucode Village, has caused substantial loss to the State. 2. The 1st petitioner claims that he is a public spirited person interested in ensuring Rule of Law in the country. The 2nd petitioner states that he lives adjacent to the property on which the quarrying activities were carried out and he is keen on championing the cause of the environment. 3. According to the petitioners, a total extent of 8.67 acres of land in the survey number specified above was declared as excess as per the provisions of the Kerala Land Reforms Act and accordingly it became vested with the Government. Out of the said property, 5.47 acres of land was rocky area which was not fit for cultivation or assignment. Therefore, it was not assigned to any person but was reserved for public purposes. 4. The case projected by the petitioner is that the Tahsildar, Alathur, by a proceeding dated 13.09.2017 bearing No. KLC12/2012-13, imposed an amount of Rs. 28,53,160/-against the 7th respondent towards royalty, penalty and compensation, as provided under the Kerala Minor Mineral Concession Rules, 2015, apart from seigniorage, based on the finding that the 7th respondent, namely M/s. Global Granites, Puthucode, Palakkad, had illegally quarried granite measuring 39,280 metric tonnes from an area of 88.50 cents of Government excess land lying in Survey No. 240, under the guise of a quarrying permit issued by the District Geologist, in respect of his property lying adjacent to the aforesaid property situated in resurvey Nos. 240, 241, block No. 32 of Puthucode Village, Alathur Taluk, Palakkad Village. 5. The levy was challenged by the 7th respondent by filing W. P. (C) No. 30364 of 2017 before this court wherein the Deputy Secretary, Department of Industries, was directed to consider any appeal filed under Rule 98 of the Kerala Minor Mineral Concession Rules, and to take a decision within two months from the date of filing of the appeal. 6.
6. Accordingly, the 7th respondent filed an appeal dated 02.10.2017, wherein the 7th respondent took up a contention that the property in survey Nos. 240 and 241 has been in his ownership from 2008, and that quarrying was carried out on the permit issued by the District Geologist, which in turn was based on the sketch provided by the Village Officer, every year. The 7th respondent has also taken up a contention that he has not carried out any quarrying in the Government land situated in survey No. 240, adjoining his property. The sketch prepared by the Village Officer during the years were produced, wherein the area in which quarrying is permissible, was demarcated to support the contentions of the 7th respondent. The 7th respondent was heard on 05.12.2017 in the presence of District Geologist, Palakkad and Senior Geologist, Mining and Geology Directorate. 7. Ultimately, the appellate authority found that it is clear from the records that the illegal quarrying was taken note of by the Department of Revenue on 19.01.2013 in the Government land and a stop memo was issued by the Village Officer on 13.02.2013. The 7th respondent was heard in person by the Tahsildar (LR), Alathur, and he has submitted that the excavation from the excess land was not deliberate, as was stated in the proceedings dated 13.09.2017. 8. Thereupon the appellate authority found that as early as in 2013 itself, illegal quarrying was taken note of by the Revenue and stop memo was issued against quarrying in resurvey Nos. 240 block No. 32, i.e. the excess land in the possession of the Government, thus bringing the illegal quarrying to an end. However the final proceedings were prolonged until 2017. 9. The permit issued to the 7th respondent expired on 05.08.2016. Therefore the appellate authority has concluded that the illegal quarrying took place before 13.02.2013. Further the proceedings initiated by the Department of Revenue against the illegal quarrying detected in January 2013, culminated in the proceedings dated 13.09.2017 of the Tahsildar (LR), Alathur. It was also found by the appellate authority that the officials of the Department of Revenue or Geology have not addressed any arguments to establish that illegal quarrying was carried on, even after the stop memo was issued on 13.02.2013.
It was also found by the appellate authority that the officials of the Department of Revenue or Geology have not addressed any arguments to establish that illegal quarrying was carried on, even after the stop memo was issued on 13.02.2013. Accordingly it arrived at the definite conclusion that royalty and fine for the illegal quarrying conducted by the 7th respondent must have been determined in accordance with the Kerala Minor Minerals Concession Rules, 1967. 10. In other words, the appellate authority found that for the quantification of the amount of rubbles that was quarried by the 7th respondent, i.e. 39,280 metric tonnes, fine was imposed in accordance with the Kerala Minor Mineral Concession Rules, 2015, instead of the Kerala Minor Mineral Concession Rules, 1967, which was the law in force when illegal quarrying was carried out in the year 2013 by the 7th respondent . 11. Therefore the appeal filed by the 7th respondent was allowed with a direction to the Tahildar concerned to correct the proceedings initiated by the Tahsildar dated 13.09.2017 by refixing the royalty and penalty, as per the provisions of the Kerala Minor Mineral Concession Rules, 1967, so far as concerning the granite measuring 39,280 metric tonnes, illegally quarried from Government land situated in resurvey No. 240 block No. 32 of Puthucode Village. 12. Evidently, as per the direction so issued by the appellate authority, the Tahsildar, Alathur, as per Ext. P9 order dated 22.02.2018, refixed the liability of the 7th respondent to Rs. 8,29,930/-. It is thus basically challenging Exts. P8 and P9 the writ petition is filed. 13. The petitioners have also sought for a mandamus commanding the State and its officials, to reassess the amount payable by the 7th respondent, for conducting illegal quarry in the 88.5 cents of Government poramboke land specified above, without any valid permit or lease under the Kerala Minor Mineral Concession Rules apart from other related reliefs. 14. The 6th respondent, i.e. the Geologist, Mining and Geology Department, Palakkad, has filed a detailed counter affidavit supporting the orders passed by the statutory authorities and also stating that the petitioners have not made out any case for public interest litigation, since the order passed by the Tahsildar has become final as per the provisions of the Kerala Minor Mineral Concession Rules, 1967.
It is also contended that the original proceedings initiated by the Tahsildar in the year 2017, against an illegal quarrying activity in the year 2013, under the provisions of Kerala Minor Mineral Concession Rules, 2015, was not sustainable under law, and the appellate authority was right in holding that the liability imposed has to be reassessed on the basis of the Act 1967, and therefore, seeks dismissal of the writ petition. 15. We have heard learned counsel for the petitioner Smt. P. R. Reena and the learned Government Pleader Sri. S. Kannan and perused the pleadings and material on record. 16. The questions emerge for consideration are whether any interference is required to the orders passed by the statutory authorities and whether there is any element of public interest involved in the subject matter. 17. The elaborate facts and circumstances discussed above would make it clear that the appellate authority had corrected the illegal assessment done by the Tahsildar in the appeal filed by the 7th respondent. 18. On an understanding of the facts and circumstances, which remains undisputed that the illegal quarrying was conducted in the year 2013, which was found to be entered in the Revenue records of the year 2013, whereby the 7th respondent was issued with a stop memo and proceedings were initiated. 19. There is no case for the petitioner that the law that was applicable at that point of time was not the Kerala Minor Mineral Concession Rules, 1967. It was after taking into account the records available that the appellate authority has assimilated the factual circumstances and has concluded that the Tahsildar (LR) has committed a mistake by applying the Kerala Minor Mineral Concession Rules, 2015 and it was accordingly that the appeal was allowed and directions were issued to the Tahasildar concerned. Petitioners have not produced any documents to substantiate that the findings rendered by the appellate authority on the factual circumstances based on records are not true or correct. 20. In our considered opinion, a fact finding body, after verifying the records, have arrived at definite conclusions, and it was accordingly that directions were issued to the Tahsildar to correct the illegality committed and reassess and refix the liability of the 7th respondent, taking into account the provisions of the Kerala Minor Mineral Concession Rules, 1967. 21.
20. In our considered opinion, a fact finding body, after verifying the records, have arrived at definite conclusions, and it was accordingly that directions were issued to the Tahsildar to correct the illegality committed and reassess and refix the liability of the 7th respondent, taking into account the provisions of the Kerala Minor Mineral Concession Rules, 1967. 21. Even though petitioners have a case that they were not heard by the statutory appellate authority and Tahsildar while refixing the liability, we are of the considered opinion that there is no mandatory requirement for a statutory authority to hear a third person, even if he has raised any complaint before the statutory authorities with respect to any illegal quarrying conducted by the 7th respondent. 22. What is required under law is to identify the facts and circumstances, correctly apply the law that was prevalent at the time when illegal quarrying has taken place, and then pass an order assigning reasons. 23. On a reading of Ext. P8 order passed by the appellate authority, we are quite convinced and is of the clear opinion that it was after understanding the situation correctly from the records available with the Revenue authorities that the appellate authority has concluded that the order passed by the Tahsildar, in respect of an illegal quarrying conducted in the year 2013, was applied with the provisions of the Kerala Minor Mineral Concession Rules, 2015 cannot be justified. We find that the findings rendered by the appellate authority are in accordance with law. 24. It was on the basis of the directions issued by the appellate authority that the Tahsildar passed Ext. P9 order, refixing the liability of the 7th respondent, taking note of the provisions of the Kerala Minor Mineral Concession Rules. It is equally important to note that the aspect with respect to the illegal quarrying done by the 7th respondent, was never disputed by the 7th respondent. So what was remaining to be corrected, according to the appellate authority, was only the refixation of the liability, in terms of the Rules 1967. 25. In Ext. P9 order the Talsildar has clearly specified how it has arrived at the conclusions, which reads thus:- “In these circumstances, the royalty fine and seigniorage is hereby re-fixed in accordance with the 1967 Minor Mineral Concession Rules, GO(P) NO.8069/P1/75/RD dated 30.08.
25. In Ext. P9 order the Talsildar has clearly specified how it has arrived at the conclusions, which reads thus:- “In these circumstances, the royalty fine and seigniorage is hereby re-fixed in accordance with the 1967 Minor Mineral Concession Rules, GO(P) NO.8069/P1/75/RD dated 30.08. 197 SRO NO.868/77 for quarrying of 0.3583 hectares (88.50 cents) in Re.Sy. No.240/0 old Sy. 131/E/ 1A Pudukkode village, Alathur taluk, block No.32 against Shri. M.K.Muneer, Managing Partner, Global Granites, Ulikuthampatam, Thekkepotta. The details are hereunder. 1. Royalty for illegally enforcing and mining quarry Rs. 6,28,480 2. Fine Rs.5,000 3. Seigniorage under rule 6() for quarrying in government land Rs.98,200 4. Compensation under Rule 6(3) of Kerala Land Conservancy Act Rs.98,200 5. Fine under Sec. 6(3) of Kerala Land Conservancy Act Rs. 50/- Total Rs. 8,29,930/- The aforementioned amount that is Rs.6,33,480/-shall be deposited in the head of account 0853-102-99 (01) as royalty in favour of Mining and Geology Department and a sum of Rs.1,96,450/-should be deposited in the head of account 0029-00107-99 under the Kerala Land Conservancy Act in government treasury. The form No.(C) notice under rule 11 of Kerala Land Conservancy Rules 1958 for evicting the illegal encroachment is also being issued desperately.” 26. Therefore, we are of the considered opinion that the petitioner has not made out any public interest so as to interfere with the orders passed by the statutory authorities, in accordance with law. We are also of the opinion that petitioner has not produced any evidence or documents, so as to justify the allegations made in the writ petition that the appellate authority, as well as the Tahsildar, were incorrect in passing the impugned orders. 27. It is trite and well settled in law that a writ court adjudicating the issues in a summary manner, is not expected to interfere with any factual findings, after calling for records from the statutory authorities. Which thus means the petitioners ought to have produced requisite documents and records, so as to convince this Court that there are factual errors or illegality in the findings rendered by the statutory authority, so as to secure any reliefs exercising the power of discretion conferred under Article 226 of the Constitution of India. Moreover, when the statutory authority has taken a decision rendering reasons, it has got a presumption valid under law by virtue of section 114 (e ) of the Indian Evidence Act, 1872.
Moreover, when the statutory authority has taken a decision rendering reasons, it has got a presumption valid under law by virtue of section 114 (e ) of the Indian Evidence Act, 1872. Therefore the burden of rebutting the presumption, no doubt, is upon the petitioners, and the petitioners ought to have rebutted the presumption available in law, so as to convince this Court that interference is required to the findings rendered by the statutory authorities, at least by establishing a prima facie case, which the petitioners have failed to do. Upshot of the above discussion is that writ petition fails and accordingly, it is dismissed.