IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 5 of 2008()
1. K.S.SANOJ, S/O. SATHYAVAN,
... Petitioner
Vs
1. THE GEOLOGIST,
... Respondent
For Petitioner :SRI.P.A.NOOR MUHAMMED
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :02/01/2008
O R D E R
H.L.DATTU, C.J. & K.M.JOSEPH, J.
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W.A.No.5 of 2008
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Dated, this the 2nd day of January, 2008
JUDGMENT
K.M.Joseph, J.
The petitioner in the writ petition is the appellant herein. He
has approached this Court for quashing Ext.P7 and also for a writ of
mandamus or any other appropriate writ, order or direction commanding the
respondent to issue prescribed form of application for grant of Dealer’s
Licence to the petitioner and grant him the licence forthwith as requested in
Ext.P6.
(2). According to the appellant, he has been granted dealer’s licence
under Rule 48-C of the Kerala Minor Mineral Concession Rules 1967 to sell,
stock and exhibit for sale sand at the place specified in the licence as per
Ext.P1. Ext.P1 was issued on 5-4-2006. The licence was valid upto
31-03-2007. It is submitted that the respondent issued a stereo type notice
Ext.P2 dated 18-1-2007 to the the petitioner and all such dealers in
Ernakulam District stating that the entire stock of sand should be sold out
before 31-3-2007 and that after 31-3-2007 no P Form would be issued.
When the appellant contacted the respondent for renewal of his licence, the
respondent refused to entertain his application. According to him, when a
similarly situated person approached this Court this Court passed Ext.P4
interim order and later this Court confirmed the same and disposed of the writ
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petition vide Ext.P4(a) judgment. When the petitioner approached this Court
against the refusal of his application for renewal of licence, this Court
dismissed his writ petition. Petitioner filed Ext.P6 application dated 22-6-2007
seeking grant of a fresh Dealer’s licence to sell, stock and exhibit for sale of
sand. He also requested for issuance of prescribed application form and
chalan for remittance of fee. To this he has been served with Ext.P7 dated 4-
7-2007 wherein it is stated as follows:
“As per the reference cited, the application submitted by
you in this office for granting Dealer’s Licence at the place
comprised in survey No.142/7-1 of the Koovappady Village
in Kunnathunad Taluk in Ernakulam District was not in
correct form (The application for Dealer’s Licence is to be
submitted in Form K). However, permission to mine, stock
and sell sand has been granted to the Koovappady and
Okkal Panchayaths near the place of your application.
Licence for sand cannot be granted at more places.
Therefore, it is informed that as per 48D-IV, V of the Kerala
Minor Mineral Concession Rules 1967, Dealer’s Licence
cannot be granted to you.”
(3). The challenge of the petitioner against Ext.P7 became
unsuccessful before the learned Single Judge who accepted the version of
the respondents that the refusal to grant licence to the petitioner was on
account of considering the availability of river sand and the number of
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licensesees that are required. The contention of the petitioner was that it is
a fundamental right guaranteed under Article 19 (1) (g) of the Constitution.
The learned Single Judge stated that it is always open to the Government to
decide not to increase the number of licensees as according to it the existing
licensees are sufficient to meet the requirements.
(4). Heard Sri.P.A.Noor Muhammed, learned counsel
appearing for the appellant and also the learned Government Pleader for the
respondent. The learned counsel for the appellant would contend that the
appellant has got a fundamental right guaranteed under Article 19 (1) (g) of
the Constitution and that it can be taken away by virtue of reasonable
restriction under Article 19 (6) of the Constitution. He would submit that
Ext.P1 would show that he was granted licence, and he was carrying on
business. When similarly situated persons approached this Court, they had
been issued with orders by this Court. Learned counsel for the appellant
would further submit that the appellant is conscious of the shortage of river
sand, but the licence which the appellant is seeking is under Rule 48-C of the
Kerala Minor Mineral Concession Rules which provides for right to sell and
stock river sand. He contends that the appellant would be in a position to
procure sand from other areas where the sand is available in abundance and
therefore, reasons stated for denying licence that there is shortage of sand
cannot hold good.
(5). The learned Government Pleader would point out that the
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stand of the Government is reflected in the counter affidavit wherein inter
alia it is stated as follows:
“4. It is respectfully submitted that the order Ext.P7 issued
by the Geologist is legally sustainable and reasonable.
Already local bodies/Panchayats of the area have been
given permission to carry out sand mining and selling
business and good business is being done by the
Panchayats. Further permission to individuals will lead to
unhealthy competition in that area. Hence the application
submitted by the petitioner for the grant of Dealers Licence
to stock and sell the sand was rejected in accordance with
Rule 48 D (IV) and (V) of Kerala Minor Mineral Concession
Rules, 1967. It is submitted that Panchayats/Local Self
Governments are operating sand business under Sand Act,
2001 and not under Dealers Licence issued under KMMC
Rules.
5. Further, it is most humbly submitted that sand is a very
limited natural resource and it is true that the demand for
the same is very high. The Dealers licence is granted for
the purpose of stocking and selling the mineral and hence
permission is granted depending upon the availability of the
source. I may submit that granting more licences to
individuals in places where the Panchayats are actively
involved in the same business will lead to unhealthy
competition and black marketing and in turn will result in
the increase in price of the mineral. Hence it is submitted
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that there is no necessity for sand to be stocked and sold in
places where the Panchayats have been given permission
under Sand Act.”
(6). Learned counsel for the appellant then would point out
that it is settled law that it is not open for the authorities to support an order
passed in exercise of the statutory power with reasons as pointed out in the
counter affidavit filed before the court. The order has to be supported by
reasons as it stands in the order and it cannot be supplemented with
reasons stated in the counter affidavit. The learned counsel also relied on
the decision in Mahinder Singh Vs. Chief Election Commissioner (AIR
1978 SC 851).
(7). From Ext.P7 it is clear that, what is stated by the
authorities is that the application is not in the correct form. No doubt it is also
stated that the licence has been granted to panchayats near the place of the
petitioner and licence cannot be granted at more places. In the nature of
Ext.P7 order, the matter requires to be reconsidered. In such circumstances,
the following order is passed:
ORDER
(i). The respondent is directed to issue to the appellant the
application form as requested by him in Ext.P6 within a period of one month
from the date of receipt of a copy of this judgment.
(ii). If the petitioner submits application before the respondent,
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a decision in accordance with law will be taken within six weeks from the date
of receipt of the application.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(K.M.JOSEPH)
JUDGE
MS