M.K.Anil Kumar vs. State Of Kerala - Kerala High Court, 25 November 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941 WP(C).No.30250 OF 2019(E) PETITIONERS: 1 M.K.ANIL KUMAR, AGED 51 YEARS S/O.LATE RAMAN, RESIDING AT NANDANAM, EDAKKAD P.O., KANNUR- 670663. 2 K.C.MINEESH, AGED 45 YEARS S/O.LATE NARAYANAN, MAVILAKANDY HOUSE, CHIRAKKAL P.O., KANNUR- 670011. BY ADVS. SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KANNUR- 670001. 3 M/S.MALABAR CONSTRUCTION MATERIALS PVT.LTD., EDAYAR P.O., KOLAYAD- 670650, KANNUR DISTRICT. 4 M.M.THOMAS, AGED 52 YEARS S/O.JOSEPH, MADATHINAMATTATHIL HOUSE, KANNAVAM P.O., KAICHERI, KANNUR DISTRICT- 670650. 5 K.MOHAMMED HAJI, AGED 68 YEARS S/O.MOIDEENKUTTY, MPK MANZIL, EDAYANNUR P.O., KANNUR DISTRICT- 670595. 6 STATE TAX OFFICER, GOODS AND SERVICE TAX OFFICE, KUTHUPARAMBU, KANNUR- 670643. 7 SUPERINTENDENT OF POLICE, KANNUR- 670001. BY ADV. SRI.M.RAMESH CHANDER (SR.) BY ADV. SMT.K.A.SANJEETHA BY ADV. SRI.BALU TOM BY ADV. SRI.K.C.SANTHOSHKUMAR

WP(C).No.30250 OF 2019(E) 2 BY ADV. SMT.K.K.CHANDRALEKHA OTHER PRESENT: SR.GP.RAJASEKHARAN NAIR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.30250 OF 2019(E) 3 J U D G M E N T The petitioners say that they are the partners of a firm, of which the 4th respondent is also one. According to them, the partnership was created for the purpose of running a Stone Crusher Unit, which is owned by the 3rd respondent - Company, of which, 4th and 5th respondents are the Joint Managing Directors.

According to the petitioners, there are internecine disputes between them and the 4th respondent with respect to the activities of the firm; and, therefore, prays that respondents 1, 2, 6 and 7 be directed to ensure that the Stone Crusher Unit is not operated by the 4th respondent. The petitioners say that they have also approached the 2nd respondent with Ext.P10 representation and alternatively pray that same be directed to be taken up and disposed of at the earliest.

In response to the afore submissions made on behalf of the petitioners by Sri.Philip Mathews, learned Senior

WP(C).No.30250 OF 2019(E) 4 Counsel - Sri.Ramesh Chander, assisted by Sri.Bonny Benny, learned counsel for respondent No.4, submits that even going by the pleadings on record, all the licences and consents for running the Stone Crusher Unit are owned and possessed by the 3rd respondent - Company. The learned Senior Counsel says that earlier there were disputes between respondents 4 and 5

as regards the business activities of the 3rd respondent- Company, which had led to an Arbitration proceedings, in which, it was then decided that the Stone Crusher Unit would be run by a firm, of which the petitioners and the 4th respondent would be partners. The learned Senior Counsel submits that it is true that there are now disputes between the petitioners on one hand and the 4th respondent on the other and that the petitioners have, in fact, initiated legal action - including under the provisions of the Arbitration and Conciliation Act - with respect to such disputes. Sri.Ramesh Chander, therefore, says that as long as there are no violations of any of the statutory consents, permissions and licences granted by the statutory Authorities to the 3rd respondent, under which the quarry is being operated, the petitioners

WP(C).No.30250 OF 2019(E) 5 cannot seek that the 4th respondent, in his capacity as its Joint Managing Director, cannot run the Stone Crusher Unit. He reiteratinly asserts that the said Unit is being operated by the Company, of which, his client is a Joint Managing Director and therefore, that the present attempt of the petitioners are extremely mischievous and confutative in nature. He, therefore, prays that this writ petition be dismissed.

Sri.K.C.Santhosh Kumar, learned counsel appearing for the 5th respondent, submits that his client also continues to be the Joint Managing Director of the 3rd respondent - Company and that to his information, the operation of the Stone Crusher Unit is being carried on by the said entity without any violation being caused to various consents, permissions and licences obtained by them. He says that his client does not have anything specific to comment on the issues in this writ petition as of now, but that he may be given liberty to pursue his contentions, as and when it is required in future.

When I consider the afore submissions, it becomes perspicuous that there are certain internecine disputes

WP(C).No.30250 OF 2019(E) 6 between the petitioners on one side and the 4th respondent as partners of the firm.

However, the official respondents would be called into this only if it is found that there are violations of the consents and licences obtained by the 3rd respondent - Company in whose name, the Stone Crusher Unit is being operated. The arrangement between the petitioners and the 4th respondent for the purpose of running the quarry is not something into which the official respondents or this Court would require to intervene since it is purely a private dispute between them, which they will have to pursue and resolve in terms of law rather the petitioners be allowed to invoke the extra ordinary juri iction of this Court under Article 226 of the Constitution of India. This is more so because it is affirmed even by Sri.Philip Mathews, learned counsel for the petitioners, that his clients have already invoked the provisions of the Arbitration and Conciliation Act as also the apposite civil remedies with respect to the disputes between them and the 4th respondent.

That said, as I have indicated above, the role of the

WP(C).No.30250 OF 2019(E) 7 official respondents would arise only if there is any violation of the conditions of the consents and licences by any of the parties, and in particular the 3rd respondent - Company.

To that extent, I am inclined to allow the 2nd respondent - Geologist to consider Ext.P10 representation of the petitioners but solely from the angle as to whether any of the licences and permissions have been violated by anyone, including the 3rd respondent. In the afore perspective, I order this writ petition to the limited extent of directing the Geologist to hear the petitioners and respondents 4 and 5 and take a final decision on Ext.P10 representation, after assessing all relevant and germane inputs, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. I make it clear that I have not entered into the disputes between the parties on its merits and that it will be up to the Geologist to verify and ascertain if any violation of any of the conditions of the applicable permissions and licences is noticed; and if so, to take necessary action against the violators in terms of law without any further orders from this Court.

WP(C).No.30250 OF 2019(E) 8 Needless to say, after the afore exercise is completed, I leave liberty to the petitioner to approach any other competent Authority, depending upon the decision to be taken by the Geologist, and to pursue any other representation that they may intend to make before such Authority, which shall then be considered by the said Authority in terms of law. Finally, it goes without saying that the petitioners are at complete liberty to continue with their legal proceedings and remedies against respondents 3, 4 and 5 with respect to the disputes with them, in any manner as they are advised, without being bridled by these proceedings or being affected by any observations herein, which have been recorded solely for the purpose of this judgment only. DEVAN RAMACHANDRAN rp JUDGE

WP(C).No.30250 OF 2019(E) 9 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF REGISTRATION CERTIFICATE OF THE PARTNERSHIP FIRM UNDER GST. EXHIBIT P2 COPY OF EXTRACT OF THE RESOLUTION DATED 15.10.2018 PASSED IN THE BOARD MEETING OF THE 3RD RESPONDENT COMPANY. EXHIBIT P3 COPY OF AGREEMENT DATED 17.10.2018 EXECUTED BETWEEN THE PETITIONERS AND RESPONDENTS 4 AND 5. EXHIBIT P4 COPY OF POWER OF ATTORNEY DATED 17.10.2018. EXHIBIT P5 COPY OF PARTNERSHIP DEED ATED 23.10.2018. EXHIBIT P6 COPY OF INVOICES NO.BB/1500 DATED 06.11.2019 ISSUED IN THE NAME OF THE 3RD RESPONDENT COMPANY. EXHIBIT P7 COPY OF INVOICES NO.BB/1494 DATED 06.11.2019 ISSUED IN THE NAME OF THE 3RD RESPONDENT COMPANY. EXHIBIT P8 COPY OF INVOICES NO.BB/1514 DATED 06.11.2019 ISSUED IN THE NAME OF THE 3RD RESPONDENT COMPANY. EXHIBIT P9 COPY OF REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONERS BEFORE THE TAX OFFICER, GOODS AND SERVICE TAX, KUTHUPARAMBU, KANNUR. EXHIBIT P10 COPY OF REPRESENTATION DATED 26.09.2019 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT. EXHIBIT P11 COPY OF THE RECEIPT DATED 06.11.2019 ISSUED FROM THE OFFICE OF THE 7TH RESPONDENT. RESPONDENT'S/S EXHIBITS: EXHIBIT R4 A PHOTOSTAT COPY OF THE ORDER OF ENVIRONENTAL CLEARANCE ISSUED BY STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY KERALA EXHIBIT R4 B PHOTOSTAT COPY OF THE PERMIT GIVEN BY THE DEVELOPMENT OF MINING AND GEOLOGY DATED 26/11/2015 EXHIBIT R4 C PHOTOSTATE COPY OF THE D & O LICENSE FROM THE

WP(C).No.30250 OF 2019(E) 10 KOLOYAD PANCHAYAT FOR CONDUCT OF STONE CRUSHER UNIT AND HOLLOW BRICKS DATED 2/4/2019 EXHIBIT R4 D PHOTOSTATE COPY OF THE D & O LICENSE FROM THE KOLOYAD PANCHAYAT FOR QUARRYING EXHIBIT R4 E PHOTOSTATE COPY OF THE CONSENT FROM THE POLLUTION CONTROL BOARD DATED 17/6/2017 EXHIBIT R4 F PHOTOSTATE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY DIRECTORATE GENERAL OF MINES SAFETY DEPARTMENT DATED 22/10/2014 EXHIBIT R4 G PHOTOSTATE COPY OF THE ORDER OF THE DIRECTOR OF MINING AND GEOLOGY DATED 27/9/2017 EXHIBIT R4 H PHOTOSTATE COPY OF THE QUARRYING LEASE DEED DATED 24/3/2018 EXHIBIT R4 I PHOTOSTATE COPY OF THE AWARD OF THE ARBITRAL TRIBUNAL DATED 14/2/2019 ALONG WITH THE JOINT STATEMENT EXHIBIT R4 J PHOTOSTATE COPY OF THE COMPLAINT CMP NO.5439/2019 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTATATE, KUTHUPARAMBA DATED 15/11/2019 EXHIBIT R4 K PHOTOSTATE COPY OF THE COMPLAINT BEFORE THE DY.SP THALASSERY ON 7/11/2019 ALONG WITH RECEIPT EXHIBIT R4 L PHOTOSTAT COPY OF THE COMPLAINT BEFORE THE REGIONAL HEAD, FEDERAL BANK LTD., KANNUR ON 04/11/2019.. EXHIBIT R4 M PHOTOSTAT COPY OF THE COMPLAINT BEFORE THE SUB INSPECTOR OF POLICE, KANNAVAM POLICE STATION DATED 05/11/2019. EXHIBIT R4 N PHOTOSTAT COPY OF THE STATEMENT OF ACCOUNTS OF THE FEDERAL BANK. EXHIBIT R4 O PHOTOTAT COPY OF THE FIR IN CRIME NO. 510/2019 OF KANNAVAM POLICE STATION. EXHIBIT R4 P PHOTOSTAT COPY OF THE FIR IN CRIME NO.510/2019 OF KANNAVAM POLICE STATION.