Disposed

N.D.Joseph v. a.Y.Varghese

Kerala HC25 Jun 2018WA/2589/2017

Case brief

AI extract

What is this about?

This judgment sets aside an interim order appointing an Advocate Commissioner to enquire into factual aspects of quarrying violations. The Court holds that without a specific stand from official respondents on the factual allegations, such an enquiry is futile. It directs official respondents to file counter affidavits within four weeks, allowing the Single Judge to proceed, with Commissioner's ap

What did the court decide?

Interim order appointing Advocate Commissioner set aside; Official respondents directed to file counter affidavits within four weeks; Appointment of Commissioner to be reconsidered post-pleading excha

N.D.Joseph Vs a.Y.Varghese — Mining and Natural Resources | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY &

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940

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WA.No. 2589 of 2017 IN WPC. 16069/2017

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----------------------

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AGAINST THE ORDER IN IA 18380/2017 IN WPC 16069/2017 OF HIGH COURT OF KERALA DATED 22.11.2017

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APPELLANT(S)/RESPONDENTS 11, 13 & 22 IN I.A.NO.18380/2017 & W.P.(C) NO.16069/2017:-

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1 N.D.JOSEPH,

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NELLIMATTATHIL, THIRUVANKULAM, PIN - 682 305.

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2 DEEPU RENJITH, MEC GRANITES, S/O.B.RENJITH, SOUPARNIKA HOUSE, VELLOORKUNNAM P.O., IRAPURAM, PIN - 686 661.

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3 M.K.SALIM,

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MUNDETHU THEKKEVEEDU,

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WEST VENGOLA, MUVATTUPUZHA.

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BY ADVS.SRI.PHILIP J.VETTICKATTU

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SRI.VINEETH KURIAKOSE

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RESPONDENTS/PETITIONERS 1 TO 4 & OTHER RESPONDENTS IN I.A.NO.18380/2017 & W.P. (C)NO.16069/2017:-:

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1. A.Y.VARGHESE,

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AGED 70, S/O.PAILY CHACKO, ARIKUPURATH HOUSE, MULAVOOR VILLAGE, MANARY.P.O., MUVATTUPUZHA - 686 673.

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2. KURIAKOSE, S/O.MATHAI, MUKALEKKUDIYIL, MANARI, MULAVOOR VILLAGE, MUVATTUPUZHA - 686 673.

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3. M.ELDHOSE MATHEW,

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S/O MUKALEKKUDIYIL MATHAI, MANARI, MULAVOOR VILLAGE, MUVATTUPUZHA - 686 673.

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4. C.P.SOSAMMA,

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W/O.MULLASSERIL K.V.GEORGE, MANARI, MULAVOOR VILLAGE, MUVATTUPUZHA - 686 673.

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5. THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, DIRECTORATE OF ENVIRONMENT CLIMATE CHANGE, PALLIMUKKU, PETTAH P.O., TRIVANDRUM - 695 024, REPRESENTED BY ITS CHAIRMAN.

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6. THE DISTRICT LEVEL ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY (DEIAA), CIVIL STATION, KAKKANAD, COCHIN - 682 030.

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WA.No. 2589 of 2017 IN WPC. 16069/2017

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7.	THE GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY, CIVIL STATION, KAKKANAD,COCHIN - 682 030.
8.	THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, COCHIN - 682 030.
9.	THE PAYIPRA GRAMA PANCHAYAT, O/O.PAYIPRA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,PAYIPRA GRAMA PANCHAYATH, PEZHAKKAPALLY.P.O., PIN - 686 673.
10.	P.M.BASHEER, POOTHOKKADAN HOUSE, WEST VENGOLA P.O., PIN - 683 554.
11.	P.C.VARGHESE @ SUNNY, S/O.CHERIAN, PULINATTU HOUSE, MANARI P.O., PIN - 686 673.
12.	KATTADI GRANITES, A FIRM REPRESENTED BY ITS MANAGING PARTNER, SHIJI THOMAS, KATTARUKUDIYIL, KATTADI HOUSE, KEEZHILLAM P.O., KEEZHILLAM, PIN - 683 541.
13.	P.C.SABU, S/O.CHERIYACHAN, PULINATTU HOUSE, MANARY, MULAVOOR VILLAGE, PIN - 686 673.
14.	SHIMSU A., AMRUTHA QUARRY, KRISHNAMANGALAM, KLAPPANA P.O., KARUNAGAPPALLY, KOLLAM, PIN - 698 518.
15.	P.M.POULOSE, PARUTHUVAYALIL HOUSE, KEEZHILLAM, IRAPURAM, PIN - 683 541.
16.	KUNJU PAUL P.JACOB, S/O.JACOB, PROPRIETOR, PARUTHUVAYALIL GRANITES, MANARI, MUVATTUPUZHA, RESIDING AT PARUTHUVAYALIL HOUSE, KEEZHILLAM P.O., IRAPURAM, PIN - 686 661.
17.	ABRAHAM GEORGE, S/O.GEORGE, KATTARUKUDIYIL, KEEZHILLAM P.O., ERNAKULAM, PIN - 683 541.
18.	P.I.VARGHESE, S/O.ITHAPIRI, PULINATTU HOUSE, METHALA, ASAMANNUR VILLAGE, METHALA P.O., PIN - 683 545.
19.	TOMY P.MATHAI, PALAKKAT MYALIL, MANARY P.O., PIN - 686 673.
20.	THE DEPUTY SUPERINTENDENT OF POLICE, O/O.DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA, PIN - 686 661.
21.	THE VILLAGE OFFICER, MULAVOOR VILLAGE, MANARY P.O., PIN - 686 673.
22.	STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM - 695 001.

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WA.No. 2589 of 2017 IN WPC. 16069/2017

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23. THE SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT,

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TRIVANDRUM - 695 001.

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R10 BY ADV. SRI.K.S.PRAVEEN

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R11 & R16 BY ADV. SRI.PAUL K.VARGHESE

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R9 BY ADV. SRI.C.A.NAVAS

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R1-R4 BY ADV. SRI.DINESH R.SHENOY

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R5-R8,R20 TO R23 BY SR. GOVERNMENT PLEADER SRI.ARAVINDA KUMAR BABU

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R12, R17 & R19 BY SMT.P.DEEPTHI

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R13 & R14 BY SRI.T.B.HOOD

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2018 ALONG WITH WA 2591/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv

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Hrishikesh Roy, Ag. CJ &

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A.K. Jayasankaran Nambiar, J

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W.A. No. 2589, 2590 and 2591 of 2017

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Dated this the 25^th day of June, 2018

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J U D G M E N T

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A.K. Jayasankaran Nambiar, J

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The appellants in these writ appeals are respondents in the writ petitions and they are essentially aggrieved by the interim order dated 22.11.2017, of the learned Single Judge, appointing an Advocate Commissioner to go into various factual aspects, which were raised as grounds in the writ petitions that were filed, seeking directions against the respondents therein, who were carrying on mining operations based on quarrying permits/leases issued to them by the State Government.

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The prayers in Writ Petition No.16069 of 2017 are as follows :

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“(a) issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 3 to 6, 18 and 19 to forthwith close down all the said quarries in Ward No.1 of Payipra Grama Panchayath, Mulavoor Village without any Environmental Clearance issued by 1^st respondent.

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(b) A writ of mandamus or any other appropriate writ, order or direction, directing the 3^rd respondent to carry out survey and inspection in all the quarries in Ward No.1 of Payipra Grama Panchayath, in various survey numbers of Mulavoor Village, and to assess and recover the royalty, cess fees and fine due and payable to the state by the various quarry owners/persons conducting quarries, including respondents 6 to 17, after assessing the quantity of granite which has been quarried and removed by them from the locality illegally and unauthorisedly.

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(c) A writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 and 2 to hold a public hearing with notice to the petitioners before grant of any Environmental Clearance, if any application is submitted for the same by respondents 6 to 17 or others, for blasting and quarrying of granite

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W.A. Nos.2589, 2590 & 2591/2017

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in Mulavoor Village, Muvattupuzha Taluk and only, after conduct of site inspection with notice to the petitioners also to verify the distance of the Quarries from the public thodu, the two public chiras, the check dam, harijan colony, the water storage and supply tank on Nedumpara rock, the 4 public roads in the vicinity and two score houses existing in the locality, all of which are within prohibited distance from the quarrying site.

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(d) Grant such other reliefs as are deemed fit and proper in the facts and the circumstances of the case.

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A perusal of the grounds in the writ petitions would indicate that, the writ

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petitioners have alleged that the quarrying activities by the respondents therein were being carried out, without any environment clearance as also in violation of the statutory requirement under the various statutes regulating quarrying operations in the State. We note that in the writ petitions, the party respondents have filed counter affidavits refuting the averments in the writ petition, but there are no counter affidavits filed on behalf of the official respondents of the State or by the respondent Panchayats controverting the specific factual allegations as regards noncompliance with the statutory requirements.

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In our view, unless a specific stand is taken by the official respondents of the State on these factual aspects, either accepting the averments in the writ petitions or refuting them, it would be an exercise in futility to appoint an Advocate Commissioner to embark upon a roving enquiry as to the correctness of the factual averments in the writ petitions.

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Under the said circumstances, we are inclined to set aside the interim order appointing the Advocate Commissioner, which is impugned in these writ appeals, making it clear that the official respondents of the State, as also the respective Panchayat/Municipalities, shall file their respective counter affidavits,

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W.A. Nos.2589, 2590 & 2591/2017

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dealing specifically with the factual averments in the writ petitions, within a period of four weeks from the date of receipt of a copy of this judgment, so as to enable the learned Single Judge to proceed with the writ petitions before him/her. In the event of any factual controversy subsisting, after exchange of the aforementioned pleadings between the parties, the issue of appointment of an Advocate Commissioner to enquire into those subsisting factual aspects can be considered by

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the learned Single Judge. With these observations the writ appeals are disposed of.

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Sd/Hrishikesh Roy, Acting Chief Justice

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Sd/-

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A.K. Jayasankaran Nambiar, Judge

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sou.

N.D.Joseph v. a.Y.Varghese

Case brief

What is this about?

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N.D.Joseph v. a.Y.Varghese

Case brief

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