Remanded

M.P Jose v. the Land Revenue Commissioner

Kerala HC19 Jan 2021WP(C)/1820/2019

Case brief

AI extract

What is this about?

This writ petition challenged orders cancelling a NOC for an explosives magazine. The court set aside the appellate order for applying incorrect legal standards and directed a reconsideration after obtaining an expert report on landslide risk.

What did the court decide?

Set aside the impugned orders. Directed the Appellate Authority to reconsider the matter within two months after obtaining a report on landslide-proneness from CESS or an expert agency.

M.P Jose Vs the Land Revenue Commissioner — Company and Corporate | Kerala HC (2021)

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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 N.NAGARESH

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TUESDAY, THE 19TH DAY OF JANUARY 2021/29TH POUSHA, 1942

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WP(C).No.1820 OF 2019(B)

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PETITIONER:

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M.P JOSE, AGED 46 YEARS, S/O.PURAVATH, MADATHIKUDIYIL HOUSE, KINGINIMATTAM.P.O., KOLENCHERRY, ERNAKULAM DISTRICT.

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BY SRI.K.DANDAPANI (SR.) BY ADV. SRI.SAJEEV KUMAR K.GOPAL

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RESPONDENTS:

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1 THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695009.

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2 THE JOINT LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695009.

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3 THE DISTRICT COLLECTOR, (THE DISTRICT MAGISTRATE), MALAPPURAM-676505.

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4 SRI.K.D. DEVASSIYA, CONVENOR, VIDAVUMALA SAMRAKSHANA SAMITHY, MATTARAKKAL, THAZHEKODE, ARAKKUPARAMBU VILLAGE-679 322.

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ADDL. 5 JOSEPH MATHEW, AGED 33 YEARS, S/O.MATHEW, KIZHAKKEVEETTIL (H), MATTARAYKKAL (P.O), ARAKKUPARAMBY VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.

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ADDL. 6 JOSEPH, AGED 39 YEARS, S/o ANTONY, KALAPPURAKKAL HOUSE, VIDAVUMALA, MATTARAYKKAL (P.O), ARAKKUPARAMBY VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322

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ADDL. 7 JOHNY, AGED 39 YEARS, S/o JOSEPH, KOLLIYIL (H), VIDAVUMALA, MATTARAYKKAL (P.O), ARAKKUPARAMBY VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.

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ADDL. 8 BRIJI BIJU, AGED 39 YEARS, S/O.BIJU VARGHESE, THEKKEKARA(H), VIDAVUMALA, MATTARAYKKAL (P.O), ARAKKUPARAMBY VILLAGE, PERINTHALMANNA, MALAPPURAM DISTRICT-679 322.

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ADDITIONAL R5 TO R8 ARE IMPLEADED AS PER ORDER DATED 22/03/2019 IN IA NO.1/2019.

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R5-8 BY ADV. SRI.K.DILIP

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R1-3 BY GOVERNMENT PLEADER SMT DEEPA NARAYANAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 19^th day of January, 2021

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The petitioner is one of the Managing Partners of M/s.Thazhakode Sands, a partnership firm engaged in manufacture and sale of granite, metals, rubbles, sand and other allied products. The Firm is in absolute possession of 36 Acres of land in Perinthalmanna Taluk. The petitioner is aggrieved by Exts.P19 and P24 orders of the District Magistrate and Land Revenue Joint Commissioner respectively, whereby the petitioner's application for NOC for establishing an explosive magazine in the land of the petitioner, stands cancelled.

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The petitioner states that the land of the petitioner is not a classified Ecologically Fragile Land (EFL) as evidenced by Ext.P1. The Ext.P2 to P6 certificates would show that the land in question is more than 500 m. away from

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forest area. As the petitioner proposed to start a crusher unit and to start quarrying operations in his land, the petitioner applied for NOC for constructing an explosives storage magazine. The Tahsildar, Perinthalmanna issued Ext.P7 communication to the District Collector stating that the explosives magazine is not proposed to be constructed in forest area and that there are no litigations in respect of the land. The nearest residences are more than 300 m. far. Therefore, licence can be granted to start explosives magazine.

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By Ext.P8, the Tahsildar informed the General Manager of District Industries Centre that the land in question

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is not included in the EFL and that landslide was reported in the year 2004 at a place which is 300 m. far from the petitioner's property. Certain persons filed W.P.(C) No.2548 of 2012 seeking to cancel the order of District Single Window Clearance Board given to the petitioner. The petitioner filed W.P.(C) No.20548 of 2016 seeking police protection. Both the writ petitions were heard by a Division Bench of this Court.

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The Division Bench of this Court rejected the contention of the petitioners in W.P.(C) No.2548/2012 that the petitioner's land is falling in EFL Zone.

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The District Magistrate considered the application of the petitioner for NOC for starting explosives magazine. The District Magistrate considered the report of the District Police Chief. The 3^rd respondent-District Magistrate noticed that the Tahsildar has recommended that NOC can be granted for construction of magazine on certain conditions. The Senior Geologist also has given NOC. The 3^rd respondent further found that this Court has held that the area does not fall within EFL. The Fire and Rescue Divisional Officer has granted NOC.

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The 3^rd respondent heard all parties including those who made complaints against the proposed quarry. The 3^rd respondent caused inspection of the area by the Additional District Magistrate. The 3^rd respondent noted that the applicant has 26 Acres of land in possession and the magazine and the quarry will be within an area of hardly 2.5 Acres. Taking into

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consideration all these facts, the 3^rd respondent passed Ext.P11 order dated 27.01.2016 permitting issuance of NOC to the petitioner.

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Ext.P11 was issued on condition that if the Director of Centre for Earth Science Studies (CESS) gives an adverse report, the NOC will be withdrawn and the licence will be cancelled. The 3^rd respondent further directed that the petitioner should provide for adequate security arrangements including service of watchmen. Accordingly, Ext.P12 NOC dated Nil.01.2016 was issued to the petitioner granting licence under Rules 102 and 103 of the Explosives Rules, 2008.

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To the surprise and a predicament of the petitioner, the 3^rd respondent issued Ext.P16 order on 13.03.2017 cancelling Ext.P12 NOC granted to the petitioner. In Ext.P16, it was stated that the Sub Collector, Perinthalmanna has reported that the area is EFL, that tribals settlements and Kodikuthy Mala Eco-tourism Project are existing nearby, that there are Drinking Water Projects which will be contaminated once quarry becomes operational, that law and order issues

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are likely to arise and hence the NOC granted should be reviewed. The Deputy Superintendent of Police, Vigilance and Anti corruption Bureau has also reported in similar lines, observed the 3^rd respondent.

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Aggrieved by Ext.P16, the petitioner filed W.P.(C) No.9664 of 2017. This Court found that Ext.P16 was passed violating principles of natural justice, set aside Ext.P16 and directed the 3^rd respondent to pass orders afresh. The 3^rd respondent again passed order cancelling the NOC, as per Ext.P19 stating that the proposed magazine site is in a landslide-prone area, and the construction is likely to result in environmental pollution. Aggrieved by Ext.P19, the petitioner filed Ext.P20 appeal before the Land Revenue Commissioner. The 2^nd respondent-Land Revenue Joint Commissioner who considered Ext.P1 held that the cancellation of NOC by the 3^rd respondent is legal. But, at the same time, the 2^nd respondent noticed certain procedural irregularity in arriving at Ext.P19 and hence directed the 3^rd respondent to pass orders afresh, as per Ext.P21.

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The petitioner filed W.P.(C) No.34124 of 2018 against Ext.P21 order. The said writ petition was disposed of by this Court as per Ext.P23 judgment finding that remand of the issue by the 2^nd respondent-Appellate Authority after finding that the original order is legal, would not serve any purpose and that in case the order is found to be bad for procedural irregularity, the order passed by the District Magistrate would have to go and the matter should be remanded for fresh consideration. This Court accordingly set aside Ext.P21 and directed the 2^nd respondent-Land Revenue Joint Commissioner to consider the appeal on its merits.

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The 2^nd respondent, who reconsidered the appeal,

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held as per Ext.P24 order that it has been stated in a Government Circular dated 30.08.2018 that the Government proposes to conduct a scientific study on the impact of construction activities in landslide-prone areas and has informed that no construction activities can be allowed in Ecologically Fragile Lands in landslide-prone areas, till the completion of the study and therefore granting permission to

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the petitioner to construct an explosives magazine in the area, amounts to over reaching the government decision. Therefore, there is no reason to interfere with the order passed by the 3^rd respondent.

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The learned Senior Counsel assisted by the counsel for the petitioner argued that the complainants are residing far away from the proposed site and they are not aggrieved in any manner. The petitioner has been pursuing for NOC for long and the petitioner is being driven from pillar to post, in spite of favourable reports given by all competent authorities. Exts.P19 and P24 orders have been passed without taking into account the procedure for issuance and cancellation of NOCs contemplated under Rules 102 and 103 of the Explosives Rules, 2008.

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The learned Senior Counsel submitted that this Court has held in Ext.P15 judgment that the land of the petitioner is not within EFL. The NOC has been declined on an erroneous assumption that the petitioner’s land is prone to landslides. Landslide has not occurred anywhere in the large

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extent of petitioner’s property. A minor or rather trivial landslide had occurred at a place more than 300 m. away and that too in the year 2004. There were neither human or animal casualties nor damage to structures due to the so-called landslide of the year 2004. The alleged landslide is only a ruse to decline NOC to the petitioner and it is only by way of harassment. No competent authority has found/declared that the area is landslide-prone. Ext.P27 quarrying lease was issued by the Geologist after considering all aspects of the case. In the facts of the case, Exts.P19 and P24 are liable to be set aside, permitting the petitioner to go ahead with the work of constructing explosives magazine, contended the Senior Counsel.

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The 1^st respondent contested the writ petition filing counter affidavit. The 1^st respondent stated that the land where the granite crusher unit is proposed to be established was never notified as EFL under Section 4 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. The 1^st respondent further stated that

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Ext.P2 Circular is intended to protect the ecologically fragile and notified areas from alienation and bifurcations. The 1^st respondent stated that the functioning of a granite crusher unit will cause air-pollution and other inconvenience to the nearby inhabitants.

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The 3^rd respondent filed a separate counter affidavit. The 3^rd respondent stated that as per Section 103 of the Explosives Rules, satisfaction of public interest is one of the prime factor to be considered while issuing explosives licence. A number of complaints were received against issuance of NOC to the petitioner. Proximity of the unit to tourism place, and Scheduled Tribe Colony, drinking water projects and other matters affecting the society, were taken into account while cancelling the NOC issued to the petitioner.

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The 4^th respondent also resisted the writ petition. The 4^th respondent stated that the proposed land is on a sloppy Hill having more than 40° slope. Kodikuthy Mala Tourism destination is at the top of the hill. The southern boundary of the land of the petitioner is forest land. The

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quarry is likely to cause natural calamity including landslide. Bidavu Mala water tank constructed under a drinking water project would be contaminated as it is within hundred metres radius of the proposed crusher unit. Landslides happened in this area in the years 2004 and 2018 and the locals suffered heavy loss. As evident from Ext.R4(A), the predecessor-ininterest of the petitioner’s land had also received compensation from the Government for the loss suffered in 2004 landslide. Kundan Chola water stream which is a source of drinking water would be affected by the proposed quarry and crusher unit. The petitioner produced concocted documents and played foul play to obtain Ext.P12 NOC.

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Sri. K. Dilip, learned Counsel for the 4^th and additional 5^th to 8^th respondents, brought to the notice of this Court Ext.R4(B) award list to show that landslide had occurred and a number of people in the area were compensated. Comparing the same document numbers in Ext.P1 and Ext.R4(E) documents, the learned counsel argued that Ext.P1 certificate produced by the petitioner is a forged document.

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Relying on Ext.R4(H), the counsel contended that landslide had occurred in the very same property. The learned counsel pointed out that the proposed area is having more than 45° slope and quarrying in the area may result in landslide and heavy casualties.

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I have heard learned counsel for the petitioner, learned Government Pleader representing respondents 1 to 3 and learned counsel appearing for the 4^th respondent and additional respondents 5 to 8.

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The petitioner was initially issued with Ext.P12 NOC based on Ext.P11 proceedings of the District Magistrate. Ext.P11 proceedings would show that it was issued by the District Magistrate after considering the reports of the District Police Chief, Tahsildar, Senior Geologist and the Fire and Rescue Divisional Officer. In Ext.P11, the District Magistrate found that the proposed quarry is situated beyond the prohibited distance from the explosives magazine and that the quarry and explosives magazine will be in 2.5 Acres land within a larger extent of 26 Acres of land held by the petitioner

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and hence Explosives Licence can be granted.

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However, the NOC was cancelled by the successor District Magistrate as per Ext.P16, on the basis of certain reports. Ext.P16 was set aside by this Court as per Ext.P17 judgment for violation of principles of natural justice. The District Magistrate again passed Ext.P19 order cancelling the NOC, stating that storage of explosives will be a threat to the life and property of local populace. NOC was cancelled on the grounds of public interest, peace and safety.

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In Appeal, the Appellate Authority took an altogether different stand for cancelling the NOC. The Appellate Authority held that as per Government Circular dated 30.08.2018, the Government is proposing to conduct a scientific study in respect of construction work in landslideprone areas and hence construction activities cannot be allowed in landslide-prone areas in EFL. The Appellate Authority stated that the land in question is in a landslideprone area.

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Ext.P24 order of the Appellate Authority is

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unsustainable for more than one reason. In Ext.P24 order itself, the Appellate Authority states that the instruction of the Government is not to allow constructions in the landslide-prone areas in ecologically fragile land zones. This Court has categorically held in paragraph 9 of Ext.P15 judgment that the land in question cannot be treated as ecologically fragile land. The said finding of the Division Bench of this Court was based on an affidavit filed by the 1^st respondent therein which stated that the land of the petitioner is situated at a distance of 1 km. far from notified EFL. For the very same reason, the Government Circular quoted in the impugned Ext.P24 order cannot be applied to the facts of the case.

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Furthermore, the question whether a particular area is landslide-prone or not, would depend upon various factors such as geology, slope, landform, aspect, elevation etc. The question therefore will have to be decided by an expert agency having sufficient expertise in the subject. It has to be noted that even the District Collector in Ext.P11 proceedings

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made it clear that NOC granted will be cancelled if it is reported by the Director of CESS (Centre for Earth Science Studies) that the land is fragile.

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For the aforesaid reasons, this Court finds that Ext.P24 order of the Appellate Authority is unsustainable. Ext.P24 is therefore set aside. The Appellate Authority is directed to reconsider the matter in the light of the observations made above, after obtaining a report as to the landslide-proneness of the land in question from the CESS or any other competent expert agency. Necessary steps in this regard shall be taken by the appellate authority within two weeks and final order shall be passed within two months from the date of receipt of such report. The petitioner, the 4^th respondent and additional respondents 5 to 8 shall be issued with individual notices and be heard, before passing final order.

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The writ petition is disposed of as above.

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Sd/- N. NAGARESH, JUDGE

aks/11.01.2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF T THE VILLAGE OF	HE CERTIFICATE IS FICER, ARAKKUPARAM	SUED BY BA.
EXHIBIT P2	TRUE COPY OF 2166/10 DATED DFO, NILAMBUR.	THE CERTIFICATE 11.05.2010 ISSUED	NO.C1- BY THE
EXHIBIT P3	TRUE COPY OF 2165/10 DATED DFO, NILAMBUR.	THE CERTIFICATE 11.5.2010 ISSUED	NO.C1- BY THE
EXHIBIT P4	TRUE COPY OF 2164/10 DATED DFO, NILAMBUR.	THE CERTIFICATE 11.5.2010 ISSUED	NO.C1- BY THE
EXHIBIT P5	TRUE COPY OF 2163/10 DATED DFO, NILAMBUR.	THE CERTIFICATE 11.5.2010 ISSUED	NO.C1- BY THE
EXHIBIT P6	TRUE COPY OF 2162/10 DATED DFO, NILAMBUR.	THE CERTIFICATE 11.5.2010 ISSUED	NO.C1- BY THE
EXHIBIT P7	TRUE COPY OF THE TAHSILDAR DISTRICT COLL 23.12.2011.	THE COMMUNICATIO PERINTHALMANNA ECTOR MALAPPURAM	N FROM TO THE DATED
EXHIBIT P8	TRUE COPY OF THE TAHSILDAR GENERAL MANAG CENTRE, MALAPP	THE COMMUNICATIO , PERINTHALMANNA ER, DISTRICT IND URAM DATED 19.12.2	N FROM TO THE USTRIAL 011.
EXHIBIT P9	TRUE COPY OF OFFICER, AR TAHSILDAR DATE	REPORT OF THE AKKUPARAMBA TO D 16.12.2011.	VILLAGE THE
EXHIBIT P10	TRUE COPY OF BEHALF OF TH WP(C).NO.2548	THE COUNTER AFFID E STATE OF KER OF 2012.	AVIT ON ALA IN

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EXHIBIT P11	TRUE COPY OF THE	ORDER ISSUED BY THE
	DISTRICT MAGISTR NO.E7 11920/2011	ATE MALAPPURAM VIDE DATED 27.1.2016.
EXHIBIT P12	TRUE COPY OF NO VIDE NO.E7/11920/	OBJECTION CERTIFICATE DDIS. DATED 1.2.2016.
EXHIBIT P13	TRUE COPY OF THE THE INDUST PVT.LTD.NAGPUR.	CERTIFICATE ISSUED BY RIAL EXPLOSIVE
EXHIBIT P14	TRUE COPY OF THE BY THE APPELLANT	APPLICATION SUBMITTED IN FORM AE-3.
EXHIBIT P15	TRUE COPY OF	THE JUDGMENT IN
	WP(C)NO.20548 OF HIGH COURT OF KER	2012 OF THE HON'BLE ALA.
EXHIBIT P16	TRUE COPY OF THE ISSUED BY THE 3RD	ORDER DATED 13.3.2017 RESPONDENT.
EXHIBIT P17	TRUE COPY OF	THE JUDGMENT IN
	WP(C)NO.9664/2017 COURT.	OF THIS HON'BLE
EXHIBIT P18	TRUE COPY OF TH MADE BY THE APPE RESPONDENT.	E WRITTEN SUBMISSION LLANT BEFORE THE 1ST
EXHIBIT P19	TRUE COPY OF 11920/2011 DATED	THE ORDER NO.E-7- 22.1.2018.
EXHIBIT P20	TRUE COPY OF THE SUBMITTED BY THE 1ST RESPONDENT.	MEMORANDUM OF APPEAL PETITIONER BEFORE THE
EXHIBIT P21	TRUE COPY OF THE 2ND RESPONDENT DA	ORDER PASSED BY THE TED 19.7.2018.
EXHIBIT P22	TRUE COPY OF DISTRICT POLICE NO.D2B-51222/2016	THE REPORT OF THE CHIEF MALAPPURAM VIDE MM.
EXHIBIT P23	TRUE COPY OF	THE JUDGMENT IN
	WPC.NO.34124/2018	DATED 22.10.2018.

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EXHIBIT P24	TRUE COPY OF	THE ORDER VIDE LRA5-
	4470/2018 DATED	6.12.2018.
EXHIBIT P25	TRUE COPY OF TH	E GOVERNMENT ORDER VIDE
	DB1-521/2018/LSG	D DATED 30.8.2018.

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EXHIBIT P26 TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, ARAKKUPARAMBU BEFORE THE TAHSILDAR, PERINTHALMANNA VIDE NO.372/18 DATED 12.12.2018. EXHIBIT P27 TRUE COPY OF THE PROCEEDINGS DATED 8.2.2012 OF THE DIRECTOR OF MINING AND GEOLOGY.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R4(A) A TRUE COPY OF THE VILLAGE DIARY OF ARAKKUPARAMBA VILLAGE DATED 06.06.2004

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EXHIBIT	R4(B) A TRUE COPY OF THE COMPENSATION AWARD LIST PUBLISHED BY THE PRINCIPAL AGRICULTURAL OFFICER, MALAPPURAM DATED NIL
EXHIBIT	R4(C) A TRUE COPY OF THE SKETCH DATED NIL
EXHIBIT	R4(D) A TRUE COPY OF THE SKETCH/PLAN ISSUED BY THE V.O.,ARAKKUPARAMBA DATED 31.5.2016
EXHIBIT	R4(E) A TRUE COPY OF THE CERTIFICATE NO.8797/2010 ISSUED BY THE VILLAGE OFFICER DATED NIL

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EXHIBIT R4(F)	A TRUE VILLAGE	COPY OF OFFICER DA	THE REPORT OF THE TED 16.12.2011
EXHIBIT R4(G) EXHIBIT R4(H)	A TRUE VILLAGE A TRUE TAHASIL	COPY OF OFFICER DA COPY OF DAR DATED 1	THE REPORT OF THE TED 22-03-2011 THE REPORT OF THE 9-12-2011
EXHIBIT R4(I)	A TRUE MALAYAL 06-2004	COPY OF T A MANORAMA	HE RELEVANT PAGES OF NEWS PAPER DATED 06-

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EXHIBIT R4(J) A TRUE COPY OF THE ORDER NO-LR JI-7327 DATED 08.07.2009 EXHIBIT R4(K) A TRUE COPY OF THE ASSIGNMENT DEED NO486/1966 DATED 28-2-1966 EXHIBIT R4(L) A TRUE COPY OF THE PHOTOGRAPH SHOWING ACTUAL FACT SITUATION DATED NIL EXHIBIT R4(M) A TRUE COPY OF THE ASSIGNMENT DEED NO4193/I/2010 DATED 30-8-2010 EXHIBIT R4(N) A TRUE COPY OF THE ASSIGNMENT DEED NO4194/I/2010 DATED 30-8-2010 EXHIBIT R4(O) A TRUE COPY OF THE ARTICLE PUBLISHED DATED 20.3.2014 EXHIBIT R4(P) A TRUE COPY OF THE INSPECTION REPORT OF THE KERALA STATE POLLUTION CONTROL BOARD DATED 2/5/2017 EXHIBIT R4(Q) A TRUE COPY OF THE REPORT DATED NIL EXHIBIT R4(R) A TRUE COPY OF THE SKETCH SUBMITTED BY THE TALUK SURVEYOR DATED 08/02/2015 EXHIBIT R4(S) A TRUE COPY OF THE DOCUMENT NO.4558/2014 DATED 20.9.2014 EXHIBIT R6(A) A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ACTUAL FACT SITUATION DATED NIL. EXHIBIT R6(B) A TRUE COPY OF THE RELEVANT PAGES OF MALAYALA MANORAMA DAILY NEWS PAPER DATED 10/08/2019 EXHIBIT R6(C) A TRUE COPY OF THE DATA RECEIVED FROM THE VILLAGE OFFICE, ARAKKUPARAMBA INCLUDING THE INSPECTION REPORT OF THE VILLAGE OFFICER DATED 22/08/2019 EXHIBIT R6(D) A TRUE COPY OF THE REPORT OF THE DISTRICT SOIL CONSERVATION OFFICER, MALAPPURAM DATED NIL. EXHIBIT R6(E) A TRUE COPY OF THE REPORT OF THE KERALA STATE DISASTER MANAGEMENT AUTHORITY DATED 23/08/2019.

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M.P Jose v. the Land Revenue Commissioner

Case brief

What is this about?

What did the court decide?

M.P Jose v. the Land Revenue Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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