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2022 DIGILAW 927 (KER)

Pious Kurian v. State of Kerala

2022-11-01

T.R.RAVI

body2022
ORDER : T.R. Ravi, J. 1. A preliminary issue has been raised in these Writ Petitions by the respondents regarding the maintainability of the Writ Petition. The counsel on either side addressed arguments on the issue and the said question alone is being considered. The short facts required for consideration of the preliminary issue are as follows; 2. W.P.(C)No.28029/2020 has been filed challenging Ext.P2 environmental clearance issued by the SEIAA, Ext.P3 quarrying lease executed by the Geologist in favour of the 12th respondent in the Writ Petition, Ext.P4 D. & O. licence issued by the 8th respondent Panchayat, Ext.P17 inspection report of the 5th respondent Geologist and Ext.P23 order passed by the 3rd respondent Director of Mining and Geology in Ext.P8 representation submitted by the petitioners and others. 3. In W.P.(C) No.28787/2021, the petitioners have challenged Ext.P2 order of the Land Revenue Commissioner on Ext.P1 complaint which was filed contending that respondents 10 and 11 are misusing assigned Government land for quarrying in violation of the assignment conditions causing loss to public fund. The petitioners in both these Writ Petitions are the same. The 12th respondent in W.P.(C)No.28029/2020 is the 10th respondent in W.P.(C)No.28787/2021. According to the party respondents, the petitioners do not have the locus standi to challenge the orders as they are not persons affected and remedy, if at all, is to prefer a public interest litigation, clearly showing the bona fides of the petitioners and the persons whose cause they propose to take up. 4. Heard Sri Georgekutty Mathew on behalf of the petitioners in both the Writ Petitions, Sri Renjith Thampan, Senior Advocate instructed by Sri V.M.Krishnakumar on behalf of the 11th respondent in W.P.(C)No.28787/2021, Sri Philip J.Vettickattu on behalf of the 10th respondent in W.P.(C)No.28787/2021 and respondents 12 and 13 in W.P.(C)No.28029/2020, Sri S.Kannan, Senior Government Pleader on behalf of the official respondents/State, Sri.Prakash C.Vadakkan, Standing Counsel for the 8th respondent in W.P.(C)No.28029/2020 and 9th respondent in W.P.(C)No.28787/2021 and Sri M.P.Sreekrishnan, Standing Counsel for SEIAA. 5. The petitioners claim that they are residing with their families near the quarry site and this fact is admitted by the Geologist in Ext.P17 report, wherein it is stated that the writ petitioners are residing at a distance of 202 Metres, 580 Metres and 780 Metres from the quarry. 5. The petitioners claim that they are residing with their families near the quarry site and this fact is admitted by the Geologist in Ext.P17 report, wherein it is stated that the writ petitioners are residing at a distance of 202 Metres, 580 Metres and 780 Metres from the quarry. Reliance is placed on the minutes of the SEIAC, produced as Ext.P5 in W.P.(C)No.28029/2020, to submit that the quarrying is sought to be done in a land having a very steep slope exceeding 35 degrees, which makes it a tough terrain for a quarry. It is stated that the possibility of “fly rock” is high and there are several dwelling units in the lower slopes. The petitioners hence submit that even though the residences of the petitioners are beyond 200 metres, due to the steep slope, they will be affected by “fly rock”. It is contended that the petitioners being persons who are personally aggrieved, they cannot maintain a Public Interest Litigation. The next contention is that a Writ Petition under Article 226 of the Constitution is maintainable against proceedings which are without authority or are tainted by mala fides. According to the petitioners, Ext.P23 order in W.P.(C)No.28029 of 2020 issued by the 11th respondent is mala fide and is in violation of Rule 39 of the Kerala Minor Mineral Concession Rules which mandates that the mining lease can be granted to a private person in the lands owned by him. The contention is that the proponents have not produced their title deeds regarding the quarry site and in the absence of such title deed, Ext.P3 is illegal and without the authority of law. It is also stated that the 11th respondent who had issued Ext.P3 while he was a Geologist of Kottayam had issued Ext.P23 order as the order of Director of Mining and Geology confirming his own illegal proceedings, which is against the legal maxim that “nobody can be a Judge of himself”. The third contention is that respondents are estopped from raising a contention of maintainability in view of earlier proceedings on the same issue, which resulted in Exts.P16 and P21 judgments. It is pointed out that the contention regarding maintainability was not raised in those Writ Petitions. The third contention is that respondents are estopped from raising a contention of maintainability in view of earlier proceedings on the same issue, which resulted in Exts.P16 and P21 judgments. It is pointed out that the contention regarding maintainability was not raised in those Writ Petitions. Fourthly, it is contended that the petitioners cannot avail the alternate remedy before the National Green Tribunal, since the period for preferring statutory appeal against Ext.P3 has expired and that the operation of the quarry under Ext.P2 is adversely affecting the rights of the petitioners. 6. Reliance is placed on the judgment in Peter v. Union of India reported in ( 2020 (4) KLT 832 ) to submit that the Writ Petition is maintainable notwithstanding the availability of an alternative remedy before the National Green Tribunal. Reference is also made to the decisions of the Hon’ble Supreme Court in Commissioner of Income Tax v. Chhabil Dass Agarwal reported in (2014) 1 SCC 603 ), State of U.P. v. U.P. Rajya Khanji Vikas Nigam Sangharsh Samiti reported in (2008) 12 SCC 675 ) and Genpact India Private Limited v. Deputy Commissioner of Income Tax & Anr. reported in, 2019 0 Supreme(SC) 1290 which have been made mention in Peter (supra). The counsel contends that as per S.16 of the National Green Tribunal Act, 2010, a statutory appeal is available only against an order granting Environmental Clearance in an area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. 7. As far as W.P.(C) No.28787/21 is concerned, it is submitted that the lands in which the mining is granted were erstwhile Government lands that have been assigned to nine persons and that as per the fair field register, the properties were assigned free of cost. Ext.P4 report is referred to, to submit that the proponent did not produce title deeds before the authority and that as per S.8 of the Kerala Government Land Assignment Act, 1960 and rules made thereunder, assigned lands cannot be used for quarrying. Reliance is placed on the judgment in John Chandy & Ors. v. District Collector, Kottayam & Ors. reported in ( 2021 (4) KLT 528 : 2021 4 KHC 57 ) and Youth Voice Arts Social & Cultural Orgn. Reliance is placed on the judgment in John Chandy & Ors. v. District Collector, Kottayam & Ors. reported in ( 2021 (4) KLT 528 : 2021 4 KHC 57 ) and Youth Voice Arts Social & Cultural Orgn. v. State of Kerala reported in ( 2001 (3) KLT 909 : 2001 (2) KLJ 761 ). 8. Senior Counsel Sri Renjith Thampan relied on the decision of the Hon’ble Supreme Court in Divine Retreat Centre v. State of Kerala & Ors. reported in ( 2008 (1) KLT 1042 (SC) : (2008) 3 SCC 542 :: 2008 (2) KLJ 105 ) and referred to paragraphs 57, 58, and 61 to impress upon the importance of the roster and that public interest litigation cannot be considered by a Single Judge going by the roster. Reference is also made to the judgment in Esteem Properties Pvt. Ltd. v. Chetan Kamble & Ors. reported in 2022 SCC OnLine SC 246) wherein the locus standi in public interest litigation was considered. In the said case, the Hon’ble Supreme Court held that institution of a Public Interest Litigation wherein a title claim between a private party and State is put in issue and in which the State has clearly indicated that they have no interest in pursuing the issue of ownership of the land, was nothing but an abuse of process of Court. The decision is relied on to submit that the petitioner cannot contend that the properties were assigned to several other individuals and that they originally belonged to the Government and that the conditions of assignment did not permit use of the land for mining purposes, particularly when the State does not have such a case. 9. The decision is relied on to submit that the petitioner cannot contend that the properties were assigned to several other individuals and that they originally belonged to the Government and that the conditions of assignment did not permit use of the land for mining purposes, particularly when the State does not have such a case. 9. In W.P.(C)No.28029/2020 the prayers are as follows; “(i) Issue a writ in the nature of certiorari calling for the records leading to Exts.P2, P3, P4, P17 and P23 and quash the same as arbitrary and illegal; (ii) Issue a writ of mandamus directing the 2nd respondent to consider Ext P7 representation and cancel Ext P2 lease by invoking clause 8(vi) of the Environmental Impact Assessment Notification, 2006 immediately within the time limit fixed by this Hon’ble court, in the interest of justice; (iii) Issue a writ of mandamus directing respondents 3 and 7 to ensure that regulation No.164 of the Metalliferous Mine Regulation is strictly complied in the quarry of the 12th respondent, in the interest of justice; (iv) Issue a writ in the nature of mandamus directing respondents 1,4, 6 and 7 to recover the Government land extending to 2.88 hectares comprised in Sy.No.106/1 of the Bharananganam Village from the illegal possession of respondents No.12 and 13; (v) Issue a writ of mandamus directing the 9th respondent to ensure that no heavy vehicles are plying through the unfit Village road to the quarry of 12th respondent, in the interest of justice; (vi) To declare that the 11th respondent is unfit to continue in the post of 3rd respondent, in the interest of justice; (vii) Issue such other appropriate writs, orders or directions that this Hon’ble Court may deem fit and proper to meet the ends of justice, in the circumstances of the case.” 10. The above prayers primarily relate to the question whether the 12th respondent therein should be permitted to continue the quarrying activities. The fourth prayer is to recover Government land extending 2.88 hectares comprised in Sy.No.106/1 alleging that it is in the illegal possession of respondents 12 and 13. 11. The above prayers primarily relate to the question whether the 12th respondent therein should be permitted to continue the quarrying activities. The fourth prayer is to recover Government land extending 2.88 hectares comprised in Sy.No.106/1 alleging that it is in the illegal possession of respondents 12 and 13. 11. In W.P.(C)No.28787/2021, the prayers are as follows; “(i) Issue a writ in the nature of certiorari calling for the records leading to Ext.P2 and quash the same as arbitrary and illegal; (ii) Issue a writ of mandamus directing respondents 1 to 3, 7 and 8 to conduct survey of 66.19 Acres of land comprised in Sy.No.657/1 including the lands in Re-Sy.No.106/1 and 107/2 and recover the Government lands illegally possessed by respondent Nos.10 and 11 and others immediately, in the interest of justice; (iii) Issue a writ of mandamus directing respondents 1 to 3 to take appropriate penal actions against respondent No.10 and 11 for the illegal extraction of minerals from Government lands immediately, in the interest of justice; (iv) To declare that the registration of Ext.P12 is against laws, in the interest of justice; (v) Issue such other appropriate writs, orders or directions that this Hon’ble Court may deem fit and proper to meet the ends of justice, in the circumstances of the case.” 12. The first question that is to be answered is whether the Writ Petitions are maintainable. If the answer to the above question is in the affirmative, the second question whether the Writ Petition should be filed as a public interest litigation that is to be considered by the Division Bench, arises for consideration. 13. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council reported in (1974) 2 SCC 506 ), which was a case challenging certain illegal constructions, the Hon’ble Supreme Court found in favour of the maintainability of the Writ Petition and held that the Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty. It was held that there is special interest for all the residents in the area in the performance of the duty as they are persons injured by the illegal construction. In M.S.Jayaraj v. Commr. It was held that there is special interest for all the residents in the area in the performance of the duty as they are persons injured by the illegal construction. In M.S.Jayaraj v. Commr. of Excise reported in ( 2000 (3) KLT 820 (SC) : (2000) 7 SCC 552 ), the Hon’ble Supreme Court noted that there is a shift in the view of the Court from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice & Flour Mills v. N. Teekappa Gowda & Bros. reported in (1970) 1 SCC 575 and Jasbhai Motibhai Desai v. Roshan Kumar reported in (1976) 1 SCC 671 and a much wider canvass has been adopted in later years regarding a person’s entitlement to move the High Court in writ jurisdiction. A four-Judge Bench in Jasbhai (supra) pointed out three categories of persons vis-a-vis the locus standi: (1) a person aggrieved; (2) a stranger; and (3) a busybody or a meddlesome interloper. The above judgment cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. As regards the first and second categories, it was held that the distinction between the applicants, though real, is not always well demarcated. The Court was of the view that the first category has two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. According to the Court, the applicants falling within the central zone are persons whose legal rights have been infringed and hence ‘persons aggrieved’ and those persons in the grey outer circle which separates the first category from the second, it was found that all persons in this outer zone may not be ‘persons aggrieved’. 14. In S.P.Gupta v. Union of India (1981) Supp.SCC 87), the Hon’ble Supreme Court noted that the types of cases that were dealt with thus far, for the purpose of considering the question of locus standi were those where there was a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. The Court went further to consider those cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. The Court referred to the view expressed by Prof. Thio in his book on Locus Standi and Judicial Review, wherein the author posed the question whether the purpose of judicial function is primarily aimed at preserving legal order by confining the legislative and executive organs of Government within their powers in the interest of the public (jurisdiction de droit objectif) or whether it was directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif). It was observed that the first contention rests on the theory that courts are the final arbiters of what is legal and illegal and from that point of view requirements of locus standi are unnecessary as they merely impede the purpose of the function. It was also observed that if one were to consider the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed. The Court was of the opinion that the first proposition correctly sets out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. The Court after detailed discussion held as follows: “But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.” 15. In Youth Voice (supra), the locus standi of the petitioner therein to challenge an assignment of Government land was questioned by the respondents on the ground that the petitioner which was a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 had ceased to exist. The learned Single Judge rejected the plea on the ground that the effect of the impugned order is one directly affecting the public at large. On merits, the Court found that the assignment was granted discarding statutory inhibitions and a writ challenging such action cannot be thrown overboard by conducting an investigation into the juristic existence of the petitioner. 16. The learned Single Judge rejected the plea on the ground that the effect of the impugned order is one directly affecting the public at large. On merits, the Court found that the assignment was granted discarding statutory inhibitions and a writ challenging such action cannot be thrown overboard by conducting an investigation into the juristic existence of the petitioner. 16. In Peter (supra), a learned Single Judge of this Court considered the question of maintainability of a Writ Petition challenging the operation of a granite stone quarry by a respondent on the basis of an Environmental Clearance. This Court held that in a matter where violation of environmental law and other gross statutory violations are alleged, it would not be proper for the court to refuse consideration of the issue on merits on the ground of delay. As is evident from paragraph 7 of the judgment, the contention that was raised was that the Writ Petition was not maintainable on account of the fact that the environmental clearance can only be challenged before the National Green Tribunal and that the Writ Petition is barred by delay and latches. This Court noticed that at the time the Writ Petition was filed, the alternate remedy before the National Green Tribunal was already barred by limitation but held that it would not mean that there cannot be an independent consideration by this Court under Article 226 of the Constitution of India. It can thus be seen that the issue was addressed from the standpoint of the availability of an alternate remedy and limitation alone. The question of whether the petitioner had locus standi or whether the issue should be considered by a Division Bench as public interest litigation was not considered. 17. While testing the maintainability, the Court is not looking at whether there is a likelihood of the petitioner succeeding in the Writ Petition or whether the Court will finally be inclined to exercise its discretion under Article 226 or whether a relief will be granted on the facts proved. 17. While testing the maintainability, the Court is not looking at whether there is a likelihood of the petitioner succeeding in the Writ Petition or whether the Court will finally be inclined to exercise its discretion under Article 226 or whether a relief will be granted on the facts proved. The Court is primarily concerned with whether the petitioner has stated about any specific legal injury caused to the petitioner or to any other person or to a determinate class or group of persons by the act or omission of the State or any public authority or whether any injury is caused to public interest, or as to whether the action is initiated for vindicating the rule of law and setting aside the unlawful action or for enforcing the performance of the public duty. In view of the law laid down in the aforementioned decisions, and the challenge to statutory orders on the ground of authority of law, mala fides etc., this Court finds that W.P.(C)No. 28029 of 2021 is maintainable. Whether the grounds raised in W.P.(C) No.28029 of 2020 are substantiated by the petitioner is a matter to be considered on the facts of the case. This Court is not stating any opinion on the merits of the contentions at this stage. (See also Benny Peruvanthanam v. Kerala State Co-operative Consumer’s Federation ( 2013 (4) KLT 987 ), Simi A.C. v. The Secretary, General Education & Ors. 2014 SCC OnLine Ker. 21549) and N.M.Narayanan v. Maintenance Tribunal 2020 SCC OnLine Ker. 3757). 18. As far as W.P.(C) No.28787 of 2021 is concerned, the Writ Petition proceeds on the basis that the party respondents are carrying out mining in Government lands and the prayer is also for a direction to respondents 1 to 3 and 7 and 8 to conduct survey of 66.19 Acres of land comprised in Sy.No.657/1 including the lands in Re-Sy.No.106/1 and 107/2 and recover the Government lands illegally possessed by respondent Nos.10 and 11 and others. An affidavit has been filed on behalf of the State stating that the complaint that the properties belong to the State had been raised as early as in the year 2017 and after detailed enquiry and survey, the District Survey Superintendent, Kottayam had reported that the lands are not Government lands. An affidavit has been filed on behalf of the State stating that the complaint that the properties belong to the State had been raised as early as in the year 2017 and after detailed enquiry and survey, the District Survey Superintendent, Kottayam had reported that the lands are not Government lands. In Esteem Properties (supra), the Hon’ble Supreme Court had held that PIL petitioners had no reason to file a public interest litigation when the subject matter was evidently a title claim between a private party and the State and that it amounts to abuse of the process of Court. In the said case, the order of the State Government holding that the property was private property and not vested in the Government, was challenged by strangers as a public interest litigation. The Court noted that on facts, the State Government itself conceded the title to the appellants before the Apex Court and had filed affidavits to such effect. The Court also noted that it is not dealing with an ignorant or illiterate respondent. The facts in W.P.(C)No.28787 of 2021 are very similar to the case considered by the Hon’ble Supreme Court, in the sense that in this case also, the State has filed affidavits stating that the lands do not belong to the State and is not a puramboke. In view of the decision in Esteem Properties (supra) a Writ Petition of this nature has to be held to be not maintainable. 19. The next question to be considered to whether W.P.(C) No.28029 of 2020 should be heard by a Division Bench of this Court going by the roster. In Divine Retreat (supra), the Hon’ble Supreme Court considered the importance of Roster and held that the allocation of cases is the prerogative of the Hon’ble Chief Justice and the puisne Judges can only do that work as is allotted to them by the Chief Justice. The Court had gone into the above issue in a case that arose from a decision in a proceeding under S.482 of the Code of Criminal Procedure, 1973, which originated from a complaint from a remand prisoner addressed to an individual judge. Sri Ranjith Thampan, Senior Advocate, had relied on the above decision to submit that the case on hand can only be treated as public interest litigation and can only be considered by a Division Bench of this Court, going by the roster. Sri Ranjith Thampan, Senior Advocate, had relied on the above decision to submit that the case on hand can only be treated as public interest litigation and can only be considered by a Division Bench of this Court, going by the roster. The specific case of the petitioners is that they are not espousing the cause of the public and are persons aggrieved by the actions of the respondents. It is pleaded that they are residing near the quarry in question and their life and property will be put to risk if the quarry functions. It is in this background that they allege that orders are issued without authority and there is mala fides. True, the above contentions are factually disputed by the respondents. However, that is a matter to be considered in the Writ Petition. Going by the pleadings, the Writ Petition cannot be treated as a public interest litigation. I hence find that it is not a case where the principles stated in Divine Retreat (supra) should be applied. As already stated, this Court has not gone into the merits of the contentions and whether or not the contention of the petitioners that there is risk to their life and property is factually correct, is a matter to be considered later. 20. W.P.(C) No.28787/2021 is hence found to be not maintainable. W.P.(C)No.28029 of 2020 is held to be maintainable and it is also held that the Writ Petition cannot be considered as a public interest litigation that has to be heard by a Division Bench going by the roster.