Dismissed

Sakker Hussain v. State of Kerala

Kerala HC8 Nov 2018WP(C)/20096/2018

Case brief

AI extract

What is this about?

The High Court held that the petitioner's challenge to the Tahsildar's order regarding unauthorized quarrying is not maintainable as a writ petition. The Court directed the petitioner to file a statutory appeal or revision under Section 16 of the Kerala Land Conservancy Act, 1957, within one month of the judgment.

What did the court decide?

Writ petition dismissed with direction to file statutory appeal or revision under Section 16 of Kerala Land Conservancy Act, 1957 within one month.

Sakker Hussain Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 8TH DAY OF NOVEMBER 2018/17TH KARTHIKA, 1940

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WP(C).No.20096 of 2018

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PETITIONER:

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SAKKER HUSSAIN, MATTATHIL HOUSE, PAIPRA, MANARI P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.

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BY ADVOCATE DR.K.P.SATHEESAN (SR.) ALONG WITH ADVOCATES M/S.K.SUDHINKUMAR, MUHAMMED IBRAHIM ABDUL SAMAD, P.MOHANDAS (ERNAKULAM), SABU PULLAN & S.K.ADHITHYAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE TAHSILDAR (LR), MUVATTUPUZHA, ERNAKULAM-686 673. BY SMT.A.C.VIDHYA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

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08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J. ------------------------W.P.(C)No.20096 of 2018

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Dated this the 8^th day of November, 2018

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J U D G M E N T

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The prayers in the above Writ Petition

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(Civil) are as follows.

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i. to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P10 order No.C7-4920/14 dated 31-05-2018 issued by the 2^nd respondent as it is arbitrary, illegal and void; ii. to issue a Writ of Mandamus or order or direction to the 2^nd respondent to conduct a site inspection and take a final decision on the basis of the certificates given by the competent authorities regarding the quarrying operations conducted in survey No.1087/16 and 1087/15 of Mulavoor Village; iii. to declare that the petitioner is not liable to pay any amount as claimed in Ext.P10 since the petitioner has not conducted any quarrying operations in survey No. 1087/15 of Mulavoor Village as stated in Ext.P10; iv. to issue such other appropriate Writ, Order or direction as is deemed just and necessary in the circumstances of the case."

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W.P.(C).No.20096/2018

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2. Heard Sri.Sabu Pullan, learned counsel

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appearing for the petitioner, and Smt.A.C.Vidhya, learned Government Pleader, appearing for the respondents.

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3. According to the petitioner, he was granted Ext.P-1 permit dated 2.6.2014 by the Mining and Geology Department, for carrying out quarrying operations in the property in Survey No.1087/16 of Mulavoor Village having an extent of 1.5 acres.

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4. The next adjacent property in Ext.P-2 permit thereto is in Survey No.1087/15, and that Ext.P-3 permit to conduct quarrying in that property was granted to one Sri.P.S.Salim. Both the properties are separated and demarcated by a well defined boundaries including fencing. That appropriate authorities had conducted periodical

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W.P.(C).No.20096/2018

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..4..

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inspections and issued certificates stating that the petitioner is conducting quarrying operations only in 30 cents out of 150 cents in Survey No.1087/16. But the 2^nd respondent Tahsildar has now passed the impugned Ext.P-10 order dated 31.5.2018, alleging that the petitioner has encroached into Survey No.1087/15 to an extent of 10 cents and has conducted quarrying operations there, and has directed the petitioner to pay an amount of Rs.18,802/- as the cost of the mineral, and Rs.18,802/- as seigniorage charges for 6,837 metric tons unauthorizedly quarried by the petitioner, and that the petitioner has to remit a total amount of Rs.15,22,838/- as cost of the mineral, and Rs.15,22,838/- as seigniorage charge along with Rs.50/- as fine amount for the unauthorized quarrying operations done by the

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W.P.(C).No.20096/2018

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petitioner in 4.8 ares of property in Survey No.1087/15, etc. It is this order in Ext.P-10, that is under challenge.

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5. The impugned Ext.P-10 order dated

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31.5.2018 issued by the 2^nd respondent Tahsildar,

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reads as follows.

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“

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പ ്ര തത ി യ ു ടട െ പ ്ര വ ൃ തത ി കക േ രള ഭ ൂ സസ ം രക ്ഷ ണ നത ി യമസ ം 1957 പ ്ര ക േ ക ാ രസ ം ക ു റ ്റ ക േ രവസ ം ശത ി ക ്ഷ ക ാ ർഹവമക ാ ടണന ്നു ക േ ക ാ ണ ു ന ്നു .. ആയതത ി നക ാ ൽ 06.01.2015ൽ തക ാ ല ൂ ക േ് ക സർടവ ്വെ യറ ു ടട െ പരത ി കശക ാ ധനയത ി ൽ ക േ ടണ ്ടെ തത ി യ 6837 ടമടത ി ക േ് ടക െ ൺ അധത ി ക േ ഖനനതത ി നക ് ടമടത ി ക േ് ടക െ ണത ി നക ് 2.75ര ൂ പ നത ി രകത ി ൽ KLC Act 1957 ടസക ്ഷ ൻ 6(1) പ ്ര ക േ ക ാ രസ ം പക ാ റവത ി ലയക ാ യത ി 18,802/ര ൂ പയ ു സ ം ടസക ്ഷ ൻ 6 (2) പ ്ര ക േ ക ാ രസ ം പക ാ റനഷ ്ട വസ ം ഇനതത ി ൽ 18,802/- ര ൂ പയ ു സ ം ക ൂ ട െ ക ാ ടത 21.12.2017നക ് ജത ി കയക ാ ളജത ി സത ി ൻടറ കനത ൃ തത ്വ തത ി ൽ ക േ ത ്വ ക ാ റത ി ക േ ളത ി ൽ നട െ തത ി യ സസ ം യ ു ക പരത ി കശക ാ ധന റത ി കപക ാ ർടക ് പ ്ര ക േ ക ാ രമ ു ള ്ള 30456.75 ടമടത ി ക േ് ടക െ ൺ അധത ി ക േ ഖനനതത ി നക ് ടമടത ി ക േ് ടക െ ണത ി നക ് 50/- ര ൂ പ നത ി രകത ി ൽ ടസക ്ഷ ൻ 6(1) പ ്ര ക േ ക ാ രസ ം പക ാ റവത ി ലയക ാ യത ി 15,22,838/ര ൂ പയ ു സ ം ടസക ്ഷ ൻ 6(2) പ ്ര ക േ ക ാ രസ ം പക ാ റനഷ ്ട സ ം ഇനതത ി ൽ 15,22,838/- ര ൂ പയ ു സ ം ടസക ്ഷ ൻ 6(3) പ ്ര ക േ ക ാ രസ ം 50/- ര ൂ പ പത ി ഴയ ു സ ം ച ു മതത ി ഇതത ി നക ാ ൽ ഉതരവക ാ ക ു ന ്നു . . ”

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6. A reading of the impugned Ext.P-10 order

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would disclose that, the same has been issued

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W.P.(C).No.20096/2018

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..6..

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under the enabling provisions contained in the Kerala Land Conservancy Act.The petitioner has raised various factual contentions inorder to establish the case, that as a matter of fact he has conducted quarrying only in the area in the property in Survey No.1087/16, for which valid permit has been granted as per Ext.P-1 and not in the property in the Survey No.1087/15, for which

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quarrying permit has been permitted to another personas per Ext.P-3,etc. Those contentions raised by the petitioner are essentially issues of fact which ordinarily may not be amenable for adjudication under the public law remedy envisaged in Article 226 of Constitution of India. It is now submitted by the learned Government Pleader, that the statutory remedy of appeal and revisions are conferred under Sec.16 of the

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W.P.(C).No.20096/2018

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..7..

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Kerala Land Conservancy Act, 1957, if a person like the petitioner is aggrieved by an order in Ext.P-10. Therefore the Sec. 16 of the Kerala

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Land Conservancy Act, 1957, provides as follows.

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“ Section 16: [Appeal and revision]

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(1) Any person aggrieved by any decision or order under this Act of any officer authorised under Section 15 may appeal,-

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(a) where such officer is the Revenue Divisional Officer, to the Collector:

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Provided that no such appeal shall lie in any case where the order is passed by the Revenue Divisional Officer on appeal under clause (b); and

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(b) in all other cases, to the Revenue Divisional Officer, and the Collector or the Revenue Divisional Officer, as the case may be may pass such order on the appeal as he thinks fit.

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(2) The Collector may either suo motu or on application revise any decision made or order passed under this Act by any officer authorised under Section 15:

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Provided that where such officer is the Revenue Divisional Officer, the Collector shall not on application revise any

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W.P.(C).No.20096/2018

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decision made or order passed otherwise than on appeal:

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Provided further that the Collector shall not revise any decision or order if an appeal against such decision or order is pending or if the time for preferring appeal, if any, against such decision or order has not expired.

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(3) Any person aggrieved by any decision or order of the Collector under this Act (otherwise than on appeal or revision) may appeal to the Commissioner of Land Revenue, and the Board of Revenue may pass such order on the appeal as it thinks fit.

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(4) The Commissioner of Land Revenue may either Suo motu or on application revise any order passed by the Collector on appeal.

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(5) The Government may either Suo motu or on application revise any order passed by the Commissioner of Land Revenue on appeal.

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(6) No order shall be passed under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) without giving the party who may be affected thereby an opportunity of being heard.

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(7) Pending disposal of any appeal or revision under this Act, the appellate authority or the revising authority, as the case may be, may suspend the execution of the decision or order appealed against or sought to be revised. ”

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W.P.(C).No.20096/2018

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..9..

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7. It is for the petitioner to seek appropriate statutory remedy as envisaged in the provisions of Sec. 16 of the Kerala Land Conservancy Act, 1957, if in case the petitioner wants to ventillate his grievances as against Ext.P-10. If such statutory petition is so filed by the petitioner within one month from the date of receipt of a certified copy of this judgment, then the said statutory authority will consider such statutory petition and pass orders thereon after granting reasonable opportunity of being heard to the petitioner within two months thereafter. Petitioner may file separate application to condone the delay in filing such statutory petition, and the period from 18-6-2018 (date of filing of this W.P.(C)) upto a period of one month from the date of receipt of a certified copy of this judgment,

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W.P.(C).No.20096/2018

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could be excluded for the purpose of computing the delay as envisaged in Sec. 14 of the Limitation Act.

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With these observations and directions the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

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W.P.(C).No.20096/2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE QUARRYING PERMIT NO.56/14-15/MM/GS/CRPS/DOE/2655/E2/14 DATED 2.6.2014 GIVEN TO THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE NO OBJECTION CERTIFICATE GIVEN BY THE 2ND RESPONDENT DATED 7-6- 2014 TO SALIM
EXHIBIT P3	TRUE COPY OF THE QUARRYING PERMIT GIVEN TO SALIM DATED 13-04-2012 BY THE SENIOR GEOLOGIST, DISTRICT OFFICE, ERNAKULAM
EXHIBIT P4	TRUE COPY OF THE REPLY GIVEN TO THE PETITIONER BY PAYIPRA GRAMA PANCHAYAT DATED 8-6-2018.
EXHIBIT P5	TRUE COPY OF THE SKETCH GIVEN BY THE 2ND RESPONDENT DATED 3-6-2014.
EXHIBIT P6	TRUE COPY OF THE QUARRYING PERMIT GIVEN TO THE PETITIONER BY THE GEOLOGIST, DISTRICT OFFICE, ERNAKULAM DATED 29-2- 2016
EXHIBIT P7	TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MULAVOOR VILLAGE DATED 5-10-2016.
EXHIBIT P8	TRUE COPY OF THE NOTICE NO.C7-4920/14 DATED 21-08-2017 GIVEN BY THE 2ND RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 26-12-2017.
EXHIBIT P10	TRUE COPY OF THE ORDER NO. C7-4920/14
	DATED 31-05-2018 ISSUED BY THE 2ND RESPONDENT.

Sakker Hussain v. State of Kerala

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Sakker Hussain v. State of Kerala

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