IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 14291 of 1999(B)
1. KARAKKADAN ABDULLA
... Petitioner
Vs
1. THE DISTRICT COLLECTOR
... Respondent
For Petitioner :SRI.SHIRAZ ABDULLA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/08/2010
O R D E R
S.SIRI JAGAN, J.
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O.P.Nos.14291 & 19030 of 1999
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Dated this the 2nd day of August, 2010
J U D G M E N T
The petitioner applied for a quarrying lease in Government land.
After completing the procedure in respect thereof, the petitioner was
granted a lease for quarrying in 8 acres of land in Re.sy. No.465/PT of
Payyanadu village. Permit to do quarrying was issued in 1987. The
original lease was for 5.5 acres of land for 10 years upto 29.2.1998.
Subsequently 2.5 acres was also added and permit in respect of the
same was extended from time to time and lastly, by order dated
18.2.1998, the period of permit was extended upto 18.2.1998. While
the petitioner was carrying on the quarrying on the basis of the said
lease, CMC No.24/95 was filed before the Sub Divisional Magistrate,
Perunthalmanna, under Section 133 of the Criminal Procedure Code,
challenging the quarrying. The Sub Divisional Magistrate directed the
petitioner to stop quarrying, pursuant to which, the petitioner stopped
quarrying. Later on, on 20.12.1995, the Sub Divisional Magistrate
confirmed the said order. The order of the Sub Divisional Magistrate
was challenged in revision before the Sessions Court, Manjeri, as
Crl.R.P.No.4/1996 and, on 30.8.1997, the Sessions Court allowed the
revision setting aside the order of the Sub Divisional Magistrate. This
Court confirmed the said order in Crl.R.P.No.857/1997. In the
o.p.14291/99 & cc 2
meanwhile, the petitioner could not do any quarrying for the period
from 14.8.1995 till 30.8.1997. Therefore, the petitioner filed a petition
for extension of the period of lease for a period of 2 years and 16
days, during which time, the petitioner could not do any quarrying on
account of the orders of the Sub Divisional Magistrate. By Ext.P2, the
petitioner requested for extension of the period of the lease. By
Ext.P3, the same was granted subject to the condition that the
petitioner produces a no objection certificate from the 1st respondent.
The 1st respondent, by Ext.P4, granted a no objection certificate for
three months. The petitioner filed another petition, Ext.P5, for
extension of the period of licence utpo 7.3.2000. By Ext.P6, the same
was rejected on the ground that the petitioner quarried 25000 tonnes
of granite in 10 years against the allowed quantity of 12000 tonnes.
The petitioner filed a review petition on 23.7.1998. By Ext.P14 order
dated 7.8.1998, that petition was rejected. By Ext.P22 judgment, this
Court set aside that order and remanded the matter for fresh
consideration. Pursuant thereto, by Ext.P23 order dated 2.3.1999, the
application of the petitioner for no objection certificate for extension of
lease for two years and 16 days was again rejected on a finding that
the petitioner actually quarried about 1,54,928 MTs of granite and
there was a direction in Ext.P23 order to take action to realise royalty
for the excess quantity excavated. It is challenging that order O.P.No.
o.p.14291/99 & cc 3
14291/1999 was filed. Later, another order was passed, which is
produced as Ext.P23 in O.P.No.19030/1999, whereby the petitioner
was directed to pay an amount of Rs.23,66,848/- towards royalty in
respect of the allegedly additional quantity of granite stated to have
been quarried by the petitioner in excess of the permitted quantity.
Challenging that order, the petitioner filed O.P.No.19030/1999. Since
these two original petitions relate to the same subject matter, they are
being heard together and disposed of by this common judgment.
2. Presently, the petitioner’s contention is that the calculation
of the amounts in respect of granite quarried was made by taking
measurements of the quarry and calculating the quantity quarried on
the basis of the length, breadth and depth of the quarry, which cannot
be the basis because the petitioner was not the only person who
quarried from that property as is evident by the documents produced
by the petitioner such as receipts etc. Prior to the grant of lease to the
petitioner, some other persons had quarried the land, is the
petitioner’s contention. According to the petitioner, the land in question
forms part of the excess land surrendered by a declarant under the
ceiling provisions of the Kerala Land Reforms Act and the declarant
had conducted quarrying in that property prior to surrender. The
petitioner further contends that the petitioner has records to prove the
quantity of granite quarried by him, which has been counter signed by
o.p.14291/99 & cc 4
the concerned authority and in view of those documents, the
respondents cannot now take a stand that the petitioner has quarried
the quantity mentioned in the impugned order. The petitioner
particularly relies Ext.P24 document obtained by him under the Right
to Information Act, which according to the petitioner, is a
communication from the Senior Geologist to the Sub Collector who
considered the matter, which specifically states that he is not able to
say whether the whole quantity of granite has been extracted by the
lessessee during the lease period or not.
3. Counter affidavits have been filed by the respondents,
wherein they take the stand that there was no quarrying in the land
prior to grant of lease to the petitioner. They particularly rely on
Exts.R2(b) and R2(c). They would, therefore, contend that the entire
quantity of granite quarried from the property in question has been
quarried by the petitioner himself and, therefore, the projected
quantity based on the measurements of the quarries would be the
actual quantity already quarried by the petitioner.
4. I have considered the rival contentions in detail.
5. The impugned orders do not disclose that the specific
question raised by the petitioner has been considered by the lower
authorities. The materials produced before me are not sufficient to
enter into a definite conclusion in respect of the same either way. In
o.p.14291/99 & cc 5
the above circumstances, I am of opinion that this question has to be
considered by the District Collector again after affording an opportunity
of being heard to the petitioner and allowing him to produce
documents and evidences in support of the same. Accordingly, the
impugned orders are quashed. The respondents are directed to
reconsider the entire issue afresh after affording an opportunity of
being heard to the petitioner, which shall include opportunity to adduce
evidence in support of his contentions, if any. If documents are sought
to be relied upon against the petitioner, the petitioner shall be given a
copy of those documents. Fresh orders as directed above shall be
passed as expeditiously as possible, at any rate, within two months
from the date of receipt of a certified copy of this judgment.
The original petitions are disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
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O.P.Nos.14291(B)
& 19030 of 1999
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J U D G M E N T
2nd August, 2010