IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 1136 OF 2020
AGAINST THE JUDGMENT IN WP(C) 25012/2013 OF HIGH COURT OF KERALA

APPELLANT:

PLAKKATTU GRANITES (P) LTD.

PAYYANAMON P.O., KONNI,
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JACOB THOMAS
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001
2 THE DIRECTOR,MINING AND GEOLOGY, DIRECTORATE OF MINING
AND GEOLOGY, PATTOM P.O., THIRUVANANTHAPURAM-695 004
3 GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004
OTHER PRESENT:

SRI.M.H.HANILKUMAR, SPECIAL GP(REVENUE)

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,

ALONG WITH WA.682/2021, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 2 -

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 12TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943
WA NO. 682 OF 2021
AGAINST THE JUDGMENT IN WP(C) 30510/2019 OF HIGH COURT OF KERALA
APPELLANT:

PLAKKATTU GRANITE INDUSTRIES (P) LTD

PAYYANAMON P.O. KONNI, REPRESENTED BY ITS MANAGING
DIRECTOR JACOB THOMAS.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SHRI.CIMIL CHERIAN KOTTALIL

RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR OF MINING AND GEOLOGY,
DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O.
THIRUVANANTHAPURAM 695 004.
3 GEOLOGIST,
MINING AND GEOLOGY DEPARTMENT, PATHANAMTHITTA 689 691.
4 TAHSILDHAR,
KONNI, PATHANAMTHITTA 689 691.

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2021,

ALONG WITH WA.1136/2020, THE COURT ON 12.10.2021 DELIVERED THE
FOLLOWING:
W.A Nos. 1136/2020 & 682/2021 - 3 -

K.Vinod Chandran & Ziyad Rahman A.A, JJ.

-------------------------------------------
Writ Appeal Nos.1136 of 2020 & 682 of 2021
-------------------------------------------
Dated, this the 12th October 2021

JUDGMENT
Vinod Chandran, J.

Official apathy is writ large in the above case

which facilitated, wanton illegal quarrying being let off

without any penalty; if the allegations are true. The

appellant who obtained quarrying leases is alleged to have

carried out illegal quarrying from an area in which there was

no lease granted, against which proceedings were initiated

and concluded. In appeal, the proceedings were set aside but

denovo consideration was directed. The further proceedings

carried out with inordinate delay and without complying with

the appellate order as also the provisions in the Kerala

Minor Mineral Concession Rules 1967 ('KMMC Rules' for

brevity) was under challenge.

2. The learned Single Judge found that Ext.P9 is a notice

and the petitioner had every opportunity to file objections,

which opportunity they did not avail of. Instead, the

petitioner preferred Ext.P10 review before the Government,

which could only be treated as an appeal. Reading Ext.P11

W.A Nos. 1136/2020 & 682/2021 - 4 -

order it was found that the State Government had initiated

the action after issuing notice to the petitioner and

conducted site inspection. Exts.P10 and P11 were found to

have been properly initiated and passed after assimilating

the situation in detail. On these findings, the writ petition

was dismissed. An order on consequential recovery action

Ext.P9 was challenged in W.P(C) No.8872 of 2018 which also

stood dismissed. Review petitions were filed against the

common judgment. The review against the judgment in

W.P(C)No.25012/2013 stood dismissed. The review from the

judgment in W.P(C)No.8872/2018 stood disposed of by Ext.R8(a)

order granting liberty to take all contentions against the RR

notice before the Revenue Recovery Officer. The further

proceedings pursuant to Ext.R8(a) order is challenged in the

writ petition from which WA 682/2021 arises and the judgment

in W.P(C)No.25012/2013 is challenged in W.A 1136/2020.

3. It is appropriate that we first consider the

appeal filed first in point of time. We have heard learned

Senior Counsel Sri.P.Raveendran instructed by Sri.Enoch David

Simon Joel, for the appellant and Sri. Hanil Kumar M.H

learned Special Government Pleader (Revenue) for the State.

4. Admittedly the appellant was granted a lease for

W.A Nos. 1136/2020 & 682/2021 - 5 -

the purpose of extracting granite building stones over an

area of 1.08 acres comprised in Sy.No.571/1A/34/4/1 and

571/1A/34/4/2 of Konnithazham village, Kozhencherry Taluk.

The above lease was dated 08.05.1999 and was for a period of

5 years. Subsequently, a similar lease was granted for 0.534

hectors of land comprised in Survey Nos.571/1A.12 and 571/1A-

34-Konnithazham village from 08.09.1999. On 20.08.1999,

purportedly, pursuant to an inspection carried out, the

Geologist Pathanamthitta issued a communication alleging

illicit quarrying of more than 748610 tonnes of granite

building stones from an area between the area of the two

leases granted to the appellant. Based on the measurement of

area and the assessment of illicit extraction by the Taluk

Surveyor, a demand notice dated 19.02.2000 was issued; which

is Ext.P1, demanding a royalty of Rs.1,19,64,960/-, value of

Rs.4,48,68,600/- and penalty of Rs.5000/-; totally

Rs.5,68,38,560/-. The action was under Rule 58(2) of the KMMC

Rules. An appeal was filed which ended in Ext.P2 order. The

appeal was allowed and Ext.P1 order was set aside. However,

the Director of Mining and Geology was directed to take

action as per Rule 58(2) of the KMMC Rules.

5. Ext.P3 notice was issued by the Director of

W.A Nos. 1136/2020 & 682/2021 - 6 -

Mining and Geology to which Ext.P4 reply was filed. An order

dated 04.01.2002 was issued, again imposing a penalty of

Rs.5,68,38,560/-. The petitioner challenged the above order

before this Court by O.P No.4734/2002. While the said

original petition was pending, the Government issued Ext.P6

order. By Ext.P6 the last para of the appellate order was

cancelled and modified to the following:

“In the circumstances stated above the order of the

Geologist, Pathanamthitta (Order No.559/D.O.PTA/M/1999

dated 19.02.2000) is set aside.”

When the Original Petition came up for hearing the

Government produced Ext.P6 order which was marked therein as

Ext.R3(6). Ext.P5 hence was found to be without jurisdiction

and it was quashed. The learned Special Government Pleader

sought permission to review Ext.R3(6) order and pass fresh

orders in accordance with law. But the learned Single Judge

refused to express any opinion on the same.

6. Later Ext.P6 order was cancelled and Ext.P8

order was passed again directing the Director of Mining and

Geology to take further action. The Director by Ext.P9

reiterated the earlier order of the Geologist alleging

illegal quarrying and quantifying the quarried material at

W.A Nos. 1136/2020 & 682/2021 - 7 -

7,47,810 metric tonnes for which penalty of Rs.5,68,58,560/-

was demanded. Obviously no fresh proceedings were carried

out. The appellant filed Ext.P10 review petition before the

Government. The Government treated the review as an appeal

and rejected it by Ext.P11. Ext.P8, P9 and P11 are challenged

before this Court. Learned Senior Counsel argued that the

power of review cannot be time and again invoked and in any

event, before a prejudicial order is passed there should be

notice to the affected parties. It is also argued that the

appellate order at Ext.P2, but for the last paragraph

survives and in that context, a denovo consideration has to

be made. It is also pointed out that penalties under Rule

58(2) can only be imposed by the State Government which

powers can be delegated under Rule 62 by notification in the

gazette. A notification authorizing the Director was issued

only on 14.01.2003 (Annexure A1). Hence when the order was

passed, the Director did not have any jurisdiction to proceed

under Rule 58.

7. The learned Special Government Pleader would

contend that Ext.P5 was a notice and as held by the learned

Single Judge, without availing the opportunity to put forth

their objections, the appellant chose to file a review before

W.A Nos. 1136/2020 & 682/2021 - 8 -

the Government which was treated as an appeal and rejected.

The learned Special Government Pleader would also point out

that an inspection was conducted and a detailed report was

filed based on which the quantification was assessed and

penalty imposed. The learned Special Government Pleader

points out Ext.R1(a) and R1(b) produced by the 1st respondent

in the counter affidavit dated 28.05.2014 in support of his

contention.

8. Ext.P2 is the order passed by the Government

setting aside the order of the Geologist at Ext.P1. As has

been argued by the appellant, on a reading of Rule 58(2) and

62 a proceeding for imposition of penalty can only be taken

by the State Government or an officer duly

authorised/delegated by the State Government. When Ext.P1

order was passed there was no delegation and clearly, the

Geologist did not have authority to pass the order of penalty

under Rule 58(2). Even when the Government authorized an

officer, it was the Director of Mining and Geology who was

empowered to exercise the powers of State Government under

Rule 58. Hence Ext.P1 is one passed without any jurisdiction.

The appellate order has set aside the order of the Geologist

on merits and also on the question of jurisdiction and we

W.A Nos. 1136/2020 & 682/2021 - 9 -

would for the moment consider Ext.P2 order independently.

9. Ext.P2, no doubt set aside the order of the

Geologist. Ext.P2 detailed the main grounds of appeal and the

findings on each of the grounds were immediately answered.

The first ground was regarding lack of notice, absence of

collection of evidence and hearing of the contentions of the

appellant. The Department opposed the same asserting that a

public hearing was conducted on 13.08.1999 and despite the

presence of the representatives of the appellant, no defence

was offered when the question of encroachment was raised. The

appellate authority extracted Rule 58(2)and noticed Rule 62

and observed that there is no notification issued delegating

the power under Rule 58. The operative portion of the notice

issued by the Geologist dated 01.01.2000 was extracted and it

was observed that in the said notice the site inspection is

said to have been conducted on 19.08.1999. The appellant in

their reply dated 10.01.2000 denied the inspection; upon

which the Department contended that the inspection actually

took place on 13.08.1999 and so did the public hearing. The

appellate authority clearly found that no inspection took

place on 19.08.1999, as stated in the notice and the

inspection on 13.08.1999 was in a different context. It was

W.A Nos. 1136/2020 & 682/2021 - 10 -

also found that if at all encroachment was found in the

inspection, the Department ought to have issued notice to the

appellant and considered their contentions in defence; which

was not done. The Department having not taken any steps to

issue notice or furnish the basis of the demand made it was

found that the appellant should be given an opportunity to

raise his objections. Then in paragraph 11 of the appellate

order, the appellant's challenge to the assessment of the

illegal quarrying and the argument that it was downright

impossible to have carried out operations of that scale with

the machinery and infrastructure available to the appellant

was noticed. The appellate authority after consideration also

found that before arriving at the correct quantity, the basis

of assessment should be made available to the appellant and

his contentions against that reckoned properly. It was also

directed that the period of the alleged extraction and rate

of levy of royalty also has to be specified in the notice.

The last paragraph as it existed in Ext.P2 set aside the

order of the Geologist and directed the Director of Mining

and Geology to proceed under Rule 58(2).

10. Obviously, even when Ext.P2 order was passed the

Director of Mining and Geology was not authorized to act as

W.A Nos. 1136/2020 & 682/2021 - 11 -

the State Government under Rule 58(2), the notification

having come only in 2003. Presumably realising the same

Ext.P6 order was passed deleting the last para and confining

it to mere setting aside of the order impugned in appeal;

rightly so, since only the State Government could have

proceeded under Rule 58(2) at that point. The further

proceeding initiated after Ext.P2, based on the reservation

made therein, definitely falls to the ground by virtue of

Ext.P6 order. The challenge made to the further proceedings

pursuant to Ext.P2 hence stood allowed by Ext.P7 judgment

again based on Ext.R3(6) (Ext.P6-herein). The Government

sought a further review of Ext.R3(6) which was not

specifically permitted by the learned Single Judge. The

further attempt of the Government in passing Ext.P8 order,

cancelling Ext.P6 hence cannot be sustained. By mere issuance

of Ext.P8 the proceedings pursuant to Ext.P2 ie, Ext.P5

cannot be revived since it has been specifically set at

naught by the High Court in Ext.P7 judgment.

11. Now the further question is whether Ext.P8 can

be sustained on the ground that it is in exercise of the

powers of review conferred on the Government thus enabling

fresh proceedings under Rule 58(2). Can this be said to be in

W.A Nos. 1136/2020 & 682/2021 - 12 -

accordance with law would be an interesting question. As

noticed by us the notification under Rule 62 delegating the

power to be exercised under Rule 58(2) to the Director of

Mining and Geology was issued by Annexure A1 dated

14.01.2003. The writ petition was disposed of in 2008. If the

officers had acted with alacrity then Ext.P6 should have been

cancelled and the High Court should have been apprised of the

notification and the context in which Ext.P6 was issued. This

was not done and the Government produced Ext.P6 order before

the Court which resulted in the proceedings pursuant to

Ext.P2 being found to be without jurisdiction. Ext.P8 order

again is an order prejudicial to the appellant which should

have been passed only with notice to them.

12. Yet again, even if Ext.P8 stands, the further

proceedings cannot be sustained. Let us for a minute assume

that even Ext.P6 has not been passed and Ext.P2 remains as it

was originally; which was the object of Ext.P8 also. In 2012

when proceedings were taken by the Director of Mining And

Geology under Rule 58(2) it was perfectly within

jurisdiction, for the reason of delegation of powers made by

the State Government under Rule 62. However, Ext.P2 order on

merits cannot be wished away. In Ext.P2 it was found that no

W.A Nos. 1136/2020 & 682/2021 - 13 -

inspection was conducted on the date shown in the notice as

per the showing of the Department itself. The inspection

conducted on 13.08.1999 was also in a different context. The

appellant was not informed of the basis of the assessment,

the period during which the allegation is levelled and the

rates at which royalty was levied. Ext.P2 order set aside the

order of the Geologist on jurisdiction and also on the

factual findings. When the Director proceeds under Rule 58(2)

as directed in Ext.P2 necessarily it has to be a denovo

enquiry. An inspection has to be carried out with notice to

the appellant and the allegations along with the measurements

and assessment of illegal quarrying has to be communicated

and objections called for from the appellant. The basis of

the assessment of the illegally quarried material, the rates

at which royalty is levied and the period in which such

allegations are raised ought to be specified in the

communication. The objections should be considered and order

passed specifically refuting the grounds of objections and

indicating the period, rates and basis of assessment.

13. Ext.P9 does not show any of these and it does

not even speak of a prior notice having been issued. The

learned Special Government Pleader points to the heading of

W.A Nos. 1136/2020 & 682/2021 - 14 -

Ext.P9 which indicates it to be a 'notice' which opportunity

he asserts was not availed of by the appellant. We cannot

countenance the said argument for the simple reason that the

recitals in Ext.P9 do not indicate it to be a notice. The

operative portion, which is the last paragraph reiterate the

quantity illegally quarried in metric tonnes and the penalty

imposed under Rule 58(2). Ext.P9 does not even in form much

less in content, comply with any of the directions in Ext.P2.

The Special Government Pleader too relies on Ext.R1(a) and

(b) produced by the 1st respondent. That is an assessment made

in 1999 based on which Ext.P1 was issued. The very inspection

said to have been carried out for the purpose of the

assessment resulting in Ext.P1 order has been found to be

non-existent in Ext.P2. Further, if Ext.P9 was a mere notice,

in considering the appeal the Government ought to have

directed the appellant to put forth his contentions before

the Director. However, Ext.P11 confirmed the demand and

directed the Director of Mining and Geology to immediately

take proceedings for recovery. We find no reason to sustain

Exts.P9 and P11 orders also. We cannot approve of the

decision of the learned Single Judge which too stands set

aside. Exts.P8, P9 and P11 are set aside on the above

W.A Nos. 1136/2020 & 682/2021 - 15 -

reasoning.

14. The other appeal challenges the recovery initiated

pursuant to Ext.P9 order. The revenue recovery notice also

computed the interest from the date of the alleged illegal

quarrying, which alone was set aside. Since we have now in

the first appeal set aside the penalty order, we do not think

that the judgment impugned can be upheld. We hence set aside

the judgment and also Exts P6 and P7 notices.

15. Before leaving the matter we cannot but observe

that we fully agree with the observations made by the learned

Single Judge in W.P © 30510 of 2019, regarding the laxity or

abject indifference of the Officials of the Department of

Mining and Geology, though in a different context. If the

allegations are true, valuable natural resources have been

plundered and pillaged and the perpetrators have gone scot-

free, for reason of the apathy and indifference of the

Officers motivated by rampant corruption or rank

indifference. The Geologist passed an order without

jurisdiction and the Government set aside the same on that

ground and on the ground of violation of principles of

natural justice. Despite the absence of a delegation under

Rule 62 of the KMMC Rules, the Director was directed to

W.A Nos. 1136/2020 & 682/2021 - 16 -

proceed afresh. No notification was brought out even after

realising that the Director would be incompetent to proceed

without a delegation. When a delegation was made in 2003 no

steps were taken to initiate proceedings by the Director. The

Government without any reason issued Ext.P6 and did not

attempt to apprise the Court when the earlier writ petition

was heard that there is a delegation by notification and that

fresh proceedings be permitted. Even when fresh proceedings

were taken no attempt was made to comply with the directions

in the appellate order, Ext.P2. Incompetence of the highest

order or an ingenious conspiracy to absolve the polluter from

paying for his sins; the principle in Rule 58 of the KMMC

Rules, is the undisputed conclusion.

15. The learned Special Government Pleader prayed

for fresh initiation of proceedings, which request we decline

since its more than two decades from the alleged extraction.

Ordered accordingly.

Sd/-
K. Vinod Chandran
Judge

Sd/-
Ziyad Rahman A.A.
Judge
jma/-
W.A Nos. 1136/2020 & 682/2021 - 17 -

APPENDIX OF WA 682/2021

PETITIONER ANNEXURE
ANNEXURE 1 TRUE COPY OF THE INTERIM ORDER DATED
23.10.2020 IN W.A. 1136/2020 ON THE FILES OF
THIS HONBLE COURT.
ANNEXURE 2 TRUE COPY OF THE INTERIM ORDER DATED
13.11.2019 IN WPC 30510/2019 ON THE FILES OF
THIS HONBLE COURT.