The petitioner has approached this Court challenging Ext.P10 order issued by the Geologist refusing to grant quarrying licence in respect of an extent of 0.0500 Ares. Learned counsel submits that the extent mentioned in Ext.P10 is a mistake, whereas his application was for quarrying operations in an extent of 0.0500 Hectares. According to the petitioner, he was already granted a licence as per Exts.P1 and P2. While so, the renewal was rejected on the basis of Ext.P11 instructions issued by the Commissioner, Land Revenue. This, according to the petitioner, is absolutely baseless. Reference to Ext.P11 would indicate that the Land Revenue Commissioner has informed District Collector, Ernakulam to take necessary action to stop quarrying of all lands and to take appropriate disciplinary action against the officers, who had permitted quarrying from lands assigned for agricultural purpose, in violation of conditions of land assignment. 2. Learned counsel for the petitioner relies upon judgment in W.P.(C) No. 10589/2010. That was a case in which certain persons challenged quarrying operations being done by certain other persons in violation of the Kerala Land Assignment Act and Rules. In that case, learned Single Judge had occasion to observe that the unit was functioning for the last twenty years and after obtaining all necessary licences for conducting quarrying operations. The unit also does not cause any hindrance to the life and property of the nearby inmates. Since the authorities had already rejected the complaint after necessary enquiry, no restriction can be imposed on the land owner in the said case. It is also observed that entire property will be utilised for cultivation after the rocky area is cleared. Against the said judgment, the petitioner filed writ appeal No. 1164/2010 and a Division Bench of this Court observed that the land assigned is rocky area and, therefore, the Government has permitted quarrying operations. It is observed that when the grantees were rightly permitted by the Government to quarry stone from the property, and when it is the policy of the Government it cannot be objected to by the neighbour.
3. Counter affidavit is filed by the second respondent.
They relied upon the judgment of the learned Single Judge of this Court in W.P.(C) No. 9605/2009. Paragraph 7 of the said judgment reads as under:
“7. In the above circumstances, the writ petition is disposed of with the following directions:
(a) The 5th respondent shall take immediate steps to cancel the patta issued to respondents 3 and 4 for violation of the conditions of assignment as well as the rules under which the assignment has been granted. In view of the fact that respondents 3 and 4 have appropriated the properties belonging to the government in the form of granite quarried from the property which was reserved to the Government, the 5th respondent shall take immediate steps to see that the value of the granite quarried by respondents 3 and 4 is recovered from respondents 3 and 4 in accordance with law after complying with all procedural formalities thereof.
(b) If, any similarly situated assignee has conducted quarrying in the properties assigned to them for rubber cultivation, the 5th respondent shall take appropriate proceedings against them also for cancelling of patta and recovery of value of the granite quarried by them, after affording an opportunity of being heard to them as in the case of respondents 3 and 4 as directed above.
(c) The above proceedings against respondents 3 and 4 and other assignees who are guilty of violation of conditions of the grant shall be initiated and completed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment and a report shall be filed in this Court within two weeks therefrom. Post this case for that purpose on 07.12.2009.”
4. It is, inter alia, contended that the land was assigned to one Smt. Kutty as per order dated 18.10.1996 under the Land Assignment Rules with a view to promote agricultural activities. She sold the property to one Mr. Sukumaran, and, he in turn has assigned the land in favour of the writ petitioner. When the very purpose of the Government is to promote cultivation, quarrying operations cannot be permitted. It is stated that the act of the petitioner as well as the 'Pattadhar' of the land, which comprises of an extent of 15.09 Ares, is in violation of the Kerala Land Assignment Act and Rules. Further it is stated that the first respondent, Land Revenue Commissioner, has issued directions to call upon authorities to take appropriate action in terms of Ext.P11, and it is in the said circumstances that Ext.P10 came to be issued.
5. Learned counsel for the petitioner relies upon para 3 of the counter affidavit, which reads as under:
“It is stated that, Government land had been assigned to various farmers of Malayattoor village for rubber cultivation during 1970 having an extent of 3.5 Acres each. Most of the lands were not fit for rubber cultivation. Number of assignees had sold the said lands to others and changed their residence. Some of the persons who have purchased the said lands, obtained licenses from the Panchayat and Mining & Geology Department for quarrying permit and started quarrying units. The petitioner's quarry has been functioning in one of such lands.”
6. The main contention urged by the petitioner is that having granted permission as per Exts.P1 and P2 for quarrying an extent of 0.500 Hectares, there is no reason for the respondent authority to have refused renewal of permission. Perusal of the judgment relied upon by either side would indicate that quarrying permission was granted to certain persons which was apparently not in terms with the grant for which the assignment was done. Apparently, if agriculture operation was not possible, the assignees could have requested for better lands for agricultural operations. However, when the land is assigned for agricultural purposes, in normal circumstances, if it is used for other activities, it amounts to violation of conditions of licence. However, if the Government is of opinion that the said lands given as assignment to various agriculturists cannot be used for the purpose for which it is assigned, and if the Government has a policy to permit the said lands to be used for quarrying operations, it is well within the power by the Government to do so. As seen from Ext.P9 judgment, at some point of time there was a policy by which lands which were not fit for cultivation is permitted to be used for quarrying operations. The said policy now seems to had undergone a change in view of of Ext.P11. In fact, by Ext.P11, the Land Revenue Commissioner has indicated that the action of permitting quarrying from land assigned for agricultural purposes is absolutely illegal, as it amounts to violation of conditions of land assignment. Having regard to the said policy of the Government, as matters stand now, I do not find any illegality or infirmity in the order passed at Ext.P10.
7. However, in individual cases, it is for the appropriate authority to consider whether quarrying permission could be granted, though the said land is given for agricultural purposes, which may amount to variation of the terms and condition of the grant. When the grant is made by the Land Assignment Authority, in terms with the Land Assignment Act as well as the Rules made thereunder, it is for the appropriate authority to permit such change of utilisation. In the said circumstances, it is for the revenue authorities to verify whether the land in possession of the petitioner is fit for agricultural operations, and, whether any variation in terms of grant is to be given to enable the petitioner to carry on the quarrying operations.
8. In the said circumstances, this writ petition is disposed of as under:
The revenue authorities shall conduct necessary inspection in respect of the land in question and verify whether any modification in terms of the lease can be granted to enable the petitioner to carry on quarrying operations in the site. This shall be done within a period of three months from the date of receipt of a copy of this judgment.
Sd/- A.M.SHAFFIQUE, JUDGE sd // TRUE COPY // P.A. TO JUDGE