IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN

Friday,the 16th day of November 2018/25th Karthika, 1940

WP(C) No.17384/2017

PETITIONERS:

1. MATHEW K JACOB,AGED 45 YEARS,

S/O K.JACOB MATHEW,KOLLAMKULAM, KANJIRAPPALLY P.O.,
KOTTAYAM DISTRICT-686507.

2. EPHRAIM GEORGE,AGED 58 YEARS,

S/O K.GEORGE MATHEW,KOLLAMKULAM, THAMPALAKAD P.O.,
VIA PONKUNNAM,KOTTAYAM DISTRICT-686506.

BY ADVS. SRI.N.N.SUGUNAPALAN (SR.),

SRI.RAJAN VISHNURAJ
SRI.V. HARISH.

RESPONDENTS:

1. DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY

KOTTAYAM, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, KOTTAYAM
COLLECTORATE, KOTTAYAM-686001.

2. DISTRICT LEVEL ENVIRONMENT APPRAISAL COMMITTEE,

KOTTAYAM, REPRESENTED BY ITS MEMBER SECRETARY, THE GEOLOGIST, DISTRICT
OFFICE, DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM-686001.

3. THE GEOLOGIST,
DISTRICT OFFICE,DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM-686001.

4. THE DISTRICT COLLECTOR,

COLLECTORATE, KOTTAYAM-686001.

5. K.H.NAZAR,
KARIMPIL HOUSE, CHAMAMPATHAL P.O.,KANGAZHA VILLAGE, CHANGANASERRY TALUK,
KOTTAYAM-686541.

R1 TO R4 BY SRI. RENJITH THAMPAN, ADDL. ADVOCATE GENERAL

R5 BY ADV.SRI. BECHU KURIAN THOMAS (SR.),
ADV.SRI. K.R.SUNIL.
WPC.Nos.17384 & 18246 of 2017
2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN

Friday,the 16th day of November 2018/25th Karthika, 1940

WP(C) No.18246/2017

PETITIONERS:

1. MATHEW M JOSE,AGED 52 YEARS,

S/O DR.JOSE MATHEW,13 HG SKYLINE TOPAZ,
KAVALAKKAL JUNCTION KALOOR-KADAVANTHARA ROAD, KOCHI-682017.

2. K.MATHEW GEROGE,AGED 59 YEARS

S/O GEORGE MATHEW,VILLA NO.14, MATHER KINGS BROOKE,
TKS ROAD,MARAD, KOCHI-682304.

BY ADVS. SRI.RAJAN VISHNURAJ

SRI.V. HARISH.

RESPONDENTS:

1. DISTRICT ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY,

KOTTAYAM,REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, KOTTAYAM,
COLLECTORATE, KOTTAYAM-686001.

2. DISTRICT LEVEL ENVIRONMENT APPRAISAL COMMITTEE,

KOTTAYAM,REPRESENTED BY ITS MEMBER SECRETARY, THE GEOLOGIST, DISTRICT
OFFICE,DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM-686002.

3. THE GEOLOGIST,
DISTRICT OFFICE,DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM-686001.

4. THE DISTRICT COLLECTOR,

COLLECTORATE, KOTTAYAM-686001.

5. K.H.NAZER,
KARIMPIL HOUSE, CHAMAMPATHAL P.O.,KANGAZHA VILLAGE, CHANGANASERRY TALUK,
KOTTAYAM-686513.

R1 TO R4 BY SRI. RENJITH THAMPAN, ADDL. ADVOCATE GENERAL

R5 BY ADV.SRI. BECHU KURIAN THOMAS (SR.),
ADV.SRI. K.R.SUNIL.

These petitions having been heard on 26.10.2018, the court on 16.11.2018

passed the following:

WPC.Nos.17384 & 18246 of 2017
3

O R D E R

“CR”

Chitambaresh, J.(on behalf of Sathish Ninan, J. also)

1.The decision in State of Kerala v. Mohammedali Haji [1996 (1) KLT

584(DB)] is doubted by the learned single Judge which has been

endorsed by the Division Bench and hence this reference to the Full

Bench.

2.Mohammedali Haji's case (supra) itself came on a reference

doubting the correctness of the decision in K.Krishnankutty v. State

of Kerala and others [C.R.P.No.1245/1975] rendered by the single

Judge. It was held in Krishnankutty's case (supra) that rocky area in

a land from which granite stones could be extracted cannot be

termed as a 'commercial site' under the Kerala Land Reforms Act,

1963 ('the Act'). The definition can be found in Section 2(5) of the

Act which is as follows:

WPC.Nos.17384 & 18246 of 2017
4

“(5) 'Commercial site' means any land (not being a

kudiyiruppu or a kudikidappu or karaima) which is used

principally for the purposes of any trade, commerce,

industry, manufacture or business;” (emphasis supplied)

The land on which commercial activity is conducted for the

purposes of any trade, industry, manufacture etc. is exempted as a

'commercial site' in reckoning the ceiling area under Section 81(1)(q)

of the Act.

3.The Act was enacted as part of the agrarian reforms in the State and

one of its objects is to fix the ceiling area of the holder and resume

possession of the excess lands for distribution to the landless. Yet

another object is to prevent fragmentation of the holding evident

from Section 81(4) of the Act and the Kerala Land Reforms (Using of

Five Percent Plantation Land for Non-plantation Purposes) Rules,

2015. The emphasis of the Act is on the availability of the land on

earth for all time to come so that it can be made use of for
WPC.Nos.17384 & 18246 of 2017
5

agricultural production in case of contingency to boost the economy

of the State. The intermediaries in the case of tenanted holding are

abolished and the benefits extended to the actual tiller of the land

to give them an impetus to work more for the betterment of the

society. It is with this object in mind has the term 'commercial site'

appearing in the Act to be interpreted in the context of exemption

from the provisions fixing the ceiling limit.

4.House sites; sites of temples, churches, mosques, cemeteries,

burning grounds etc.; sites of building; and commercial sites enjoy

exemption under Clauses (m), (o), (p) and (q) of Section 81(1) of the

Act. It all denotes the places where houses, temples, churches,

mosques, buildings or industrial houses are sited in which case it

will not be reckoned for ceiling area. The houses, temples,

churches, mosques, buildings or industrial houses are only super

structures which if removed will make available the land for

WPC.Nos.17384 & 18246 of 2017
6

agricultural operations. Even the land set apart for an industrial or

commercial undertaking at the commencement of the Act will lose

exemption if it is not used for the purpose under Section 81(1)(k) of

the Act. The idea is that any more of the land shall not be put to use

in a manner making the agricultural operations impossible after the

commencement of the Act.

5.Using up the land by extracting granite stones from the table of

earth does not make the site 'commercial' eligible for exemption

from the ceiling area under Section 81(1)(q) read with Section 2(5) of

the Act. Mr Justice P.Subramonian Poti (as he then was) observed in

Krishnankutty's case (supra) thus:

“As defined, it takes in lands which are used principally

for the purpose of any trade, commerce, industry,

manufacture or business. The nature of the land is

indicated by this definition. The fact that in order to

remove the product from the land there is some element

WPC.Nos.17384 & 18246 of 2017
7

of commerce or trade taking place in the land does not

render it a commercial site. May be that the site is not

only significant as one which could be exploited as rocky

area but has otherwise commercial or business

importance. That would be another thing. The mere fact

that operation such as blasting and conversion into

metals is being conducted in a rocky area does not

render the area a commercial site.” (emphasis supplied)

6.But the Division Bench comprising of Mr Justice

P.K.Balasubramanyan and Mr Justice K.A.Abdul Gafoor held in

Mohammedali Haji's case (supra) as follows:

“Section 2(5), while defining 'commercial site'

covers the land used for the purpose of any trade,

commerce, industry, manufacture or business. Blasting

of rock or cutting laterite block into consumable articles

will certainly come within this. The word 'manufacture' is

derived out of 'manus' meaning 'hand' and 'facere'

means make. So, making of goods by hand or by

machinery on a large scale is 'manufacture'. That

WPC.Nos.17384 & 18246 of 2017
8

includes making of goods into any other form for use.

Thus blasting of rock for the purpose of making rubbles

or metals or cutting of laterite block into stones is a

manufacturing operation. In that case, any land meant

for such use is a commercial site, as defined in Section

2(5), entitling exemption as provided in Section 81(1)(q)

of the Act.” (emphasis supplied)

7.Mr.Bechu Kurian Thomas, Senior Advocate heavily relied on the

dictum in Mohammedali Haji's case (supra) whereas Mr. Renjith

Thampan, Additional Advocate General and Mr. Harish Vasudevan,

Advocate drew support from the dictum in Krishnankutty's case

(supra).

8.The internal aid shall be applied first before calling for external aid

in the interpretation of a statute and this wholesome principle is

relevant to construe the term 'commercial site' appearing in the Act.

Section 81(3) of the Act which enables the Government to grant

WPC.Nos.17384 & 18246 of 2017
9

exemption by notification in Gazette is as follows:

“81(3) The Government may, if they are satisfied that is

necessary to do so in the public interest-

(a) on account of any special use to which any

land is put;or

(b) on account of any land being bona fide

required for the purpose of conversion into

plantation or for the extension or preservation of

an existing plantation or for any commercial,

industrial, educational or charitable purpose, by

notification in the Gazette, exempt such land from

the provisions of this Chapter, subject to such

restrictions and conditions as they may deem fit

to impose:

Provided that the land referred to in clause (b) shall be

used for the purpose for which it is extended within

such time as the Government may specify in that

behalf; and where the land is not so used within the

time specified, the exemption shall cease to be in

force.” (emphasis supplied)

There is no necessity to empower the Government to grant

WPC.Nos.17384 & 18246 of 2017
10

exemption for any commercial or industrial purpose in public

interest when commercial sites are already exempted under Section

81(1)(q) of the Act. The necessary corollary therefore is that the

term 'commercial site' as defined in Section 2(5) of the Act read with

Section 81(1)(q) of the Act has to be given a narrower meaning only.

What is relevant under Section 81(3) of the Act is that there should

be public interest as opposed to private interest and the land bona

fide required for the purpose intended.

9.We are also unable to agree with the broad proposition of law as

held in Mohammedali Haji's case (supra) as it would defeat the very

object of the Act which is to conserve the land for distribution to the

landless. Otherwise every holder can claim exemption contending

that he is removing the entire sub soil which is an industry or is

selling the entire block of land itself which is a trade. We may at this

juncture quote from State of Gujarat v. Salimbhai Abdulgaffar Shaikh

WPC.Nos.17384 & 18246 of 2017
11

[(2003) 8 SCC 50]:

“It is a well settled principle that the intention of

the legislature must be found by reading the statute as a

whole. Every clause of a statute should be construed

with reference to the context and other clauses of the

Act, so as, as far as possible, to make a consistent

enactment of the whole statute. It is also the duty of the

court to find out the true intention of the legislature and

to ascertain the purpose of the statute and give full

meaning to the same. The different provisions in the

statute should not be interpreted in the abstract but

should be construed keeping in mind the whole

enactment and the dominant purpose that it may

express.” (emphasis supplied)

10.Heavy reliance is placed on the following passage in The Anant

Mills Co. Ltd. v. State of Gujarat and others [(1975) 2 SCC 175] to

contend that 'land' includes the granite stones underneath which

can be quarried:

“The word 'land' includes not only the face of the

WPC.Nos.17384 & 18246 of 2017
12

earth, but everything under or over it, and has in its

legal signification an indefinite extent upward and

downward, giving rise to the maxim, cujus est solum

ejus est usque and coelum (see p.163, 73 Corpus Juris

Secondum). According to Broom's Legal Maxims, 10th

Ed, p.259, not only has land in its legal signification

an indefinite extent upwards, but in law it extends

also downwards, so that whatever is in a direct line

between the surface and the centre of the earth by the

common law belongs to the owner of the surface (not

merely the surface, but all the land down to the centre

of the earth and upto the heavens) and hence the

word 'land' which is nomen generalissimum, includes,

not only the face of the earth, but everything under it

or over it.”

The above was in the context of taxing provisions under the Bombay

Provincial Municipal Corporations Act, 1949 which requires a strict

interpretation quite unlike an agrarian reform which has to reach

the masses.
WPC.Nos.17384 & 18246 of 2017
13

11.There is an exception to the rule of literal construction where the

application of the rule to the words of a statute leads to absurdity or

when the statute read as a whole indicates a different meaning. The

Supreme Court has in this context observed in Molar Mal v. Kay Iron

Works (P) Ltd. [(2000) 4 SCC 285] as follows:

“We agree with this contention of the landlord that

normally the courts will have to follow the rule of

literal construction which rule enjoins the court to

take the words as used by the legislature and to give it

the meaning which naturally implies. But, there is an

exception to this rule. That exception comes to play

when application of literal construction of the words in

the statute leads to absurdity, inconsistency or when

the words are used or by reading the statute as a

whole, it requires a different meaning.” (emphasis

supplied)

12.It is an admitted case that the place where the granite quarry is

proposed to be started was only a rocky land amidst plantation at

WPC.Nos.17384 & 18246 of 2017
14

the commencement of the Act exempted under Section 81(1)(e)

thereof. Nobody has any case that the piece of land was a

'commercial site' at the commencement of the Act in the sense that

any quarrying operations have already begun. It may appear at first

blush that any commercial activity subsequently started may also

bring the rocky land within the term 'commercial site' as defined in

Section 2(5) of the Act. But the Supreme Court has time and again

held that a statute should be so construed so as to prevent the

mischief and to advance remedy according to the true intention of

the law makers. Decisions are legion on this aspect and Sevantilal

Maneklal Seth v. C.I.T. [AIR 1968 SC 697] and Girdhari Lal & Sons v.

Balbir Nath Mathur [(1986) 2 SCC 237] are a few. The term

'commercial site' has to be so construed to prevent the mischief of

any holder of land from claiming any exemption by starting

industrial activity consuming the very land. A literal interpretation of

the term 'commercial site' as defined in Section 2(5) of the Act will
WPC.Nos.17384 & 18246 of 2017
15

have the deleterious effect of environmental depredation as

observed by the referring Judge.

13.We are therefore of the view that using up the land by excavating

soil or quarrying granite stones therefrom does not make the piece

of land a 'commercial site' in order to qualify for exemption from

ceiling limit. But any industrial activity existing on the surface of the

land like a metal crusher unit or artificial sand manufacturing unit

may perhaps qualify for exemption. This is the meaning to be

attributed to the term 'commercial site' as defined in Section 2(5) of

the Act in deciding the question of exemption under Section 81(1)

(q) of the Act. Of course those lands which are set apart for

commercial or industrial activity at the time of the commencement

of the Act shall be excluded provided it is actually used for the

purpose. The same should have been done within a time frame

specified by the District Collector under Section 81(1)(k) of the Act

WPC.Nos.17384 & 18246 of 2017
16

which does not apply to the facts of the present case. We however

add that any class of land earlier exempted in the ceiling case can

be converted into any class of land not liable to be exempted under

Explanation II to Section 87 of the Act. The consequence is that the

benefit of the exemption would be lost and the extent added to the

account of the assessee or the declarant in determination of his

ceiling area. That is a matter to be dealt with by the Taluk Land

Board with the assessee or the declarant and other interested

parties on the party array and we desist from elaborating further.

Accordingly we overrule the dictum in Mohammedali Haji's case

(supra) and approve the dictum in Krishnankutty's case (supra) on

the scheme of the Act consistent with its object.

The reference is answered as above.

Sd/-V. CHITAMBARESH, JUDGE
Sd/- SATHISH NINAN, JUDGE
Sha/291018
WPC.Nos.17384 & 18246 of 2017
17

P.B.Suresh Kumar, J. (Dissenting)

1. I have perused the order authored by my learned Brother V.

Chitambaresh J. With due respect, I find myself unable to agree

with the view taken therein.

2. As noted in the order, the declaration made by the Division

Bench in State of Kerala v. Mohammedali Haji [1996(1) KLT 584

(DB)] that the site of a quarry would fall within the definition of

'commercial site' as contained in Section 2(5) of the Kerala Land

Reforms Act, 1963 ('the Act') entitling its holder exemption from

the provisions of Chapter III of the Act, has been doubted by the

learned Single judge on the ground that quarrying defaces the

land and drains it of its essential nature and content and

therefore, its site cannot be one intended to be treated as a

"commercial site" entitling its holder exemption. It is also

observed by the learned Judge in the reference order that as the

WPC.Nos.17384 & 18246 of 2017
18

State faces environmental depredation, putting at peril even the

climates of the land, it is only imperative that there be a re-look

into the law laid down in Mohammedali Haji (supra). The view

aforesaid has been endorsed by my learned Brother V.

Chitambaresh J., holding that the idea behind the Act is that no

more land shall be put to use in a manner making the

agricultural operations impossible and therefore, using up of

land for extraction of granite stones which would deface the land

itself, does not make the site “commercial”, eligible for

exemption from the ceiling provisions under Section 81(1)(q) of

the Act.

3. Paragraphs 9 and 10 of the judgement of the Division Bench in

Mohammedali Haji (supra) read thus:

“9. Blasting of the rock and its conversion into

rubbles or metals or cutting of laterite stones is

certainly not an agricultural operation. The products

WPC.Nos.17384 & 18246 of 2017
19

cannot be consumed by the owner. So, whatever that

is received by the owner as a result of the operation is

for the purpose of trade. Section 2(5), while defining

“commercial site” covers the land used for the

purpose of any trade, commerce, industry,

manufacture or business. Blasting of rock or cutting

laterite block into consumable articles will certainly

come within this. The word “manufacture” is derived

out of 'manus' meaning 'hand' and 'facere' means

make. So, making of goods by hand or by machinery

on a larger scale is 'manufacture'. That includes

making of goods into any other form for use. Thus

blasting of rock for the purpose of making rubbles or

metals or cutting of laterite block into stones is a

manufacturing operation. In that case, any land

meant for such use is a commercial site, as defined in

Section 2(5), entitling exemption as provided in

section S.81(1)(q) of the Act.

10. The word 'commercial' also means

produced for mass consumption and with profit as a

WPC.Nos.17384 & 18246 of 2017
20

primary aim. Land used as quarry produces rubbles

or laterite stones certainly for mass consumption with

profit as a primary aim. Therefore, it is a commercial

activity and the site used for quarrying is a

commercial site entitling the returnee for exemption

under Section 81(1)(q) of the Act while computing the

ceiling area.”

The view taken by the Division Bench in Mohammedali Haji

(supra), as discernible from the paragraphs extracted above, is

that blasting of rock for the purpose of making rubbles or metals

or cutting of laterite block into stones is a manufacturing activity

or at any rate, a commercial activity, making the site eligible for

exemption from the ceiling provisions under the Act.

4. Had the legislature intended a quarry site to be treated as a

“commercial site”, entitling its holder exemption from the ceiling

provisions under the Act, is, therefore, the basic question to be

answered. On a close reading of the provisions of the Act, in the

WPC.Nos.17384 & 18246 of 2017
21

background of its object and purpose, I am of the view that the

question has been rightly answered by the Division Bench in

Mohammedali Haji (supra). I shall state hereunder the reasons

for the same.

5. The Act is one enacted as part of the agrarian reforms in the

State invoking the power under Entry 18 of List II of the Seventh

Schedule to the Constitution. As revealed from the heading of

Chapter III of the Act itself, namely “Restriction on ownership and

possession of land in excess of ceiling area and disposal of

excess lands”, the provisions therein are intended only to impose

restrictions on ownership and possession of land in excess of

ceiling area and for disposal of excess lands. The key provisions

in Chapter III are those contained in Sections 82 and 83 on one

hand, laying down the policy that no one shall hold land in

excess of the ceiling limit and those contained in Sections 95

WPC.Nos.17384 & 18246 of 2017
22

and 96 on the other hand, earmarking the excess land for

distribution among the landless and small cultivators. The

question to be answered is one relating to the ancillary provision

contained in Section 81 of the Act, dealing with holdings to

which the provisions of Chapter III do not apply. If one looks at

the holdings which have been exempted from the provisions of

Chapter III as contained in sub-section (1) of Section 81, it could

be seen that an element of public interest is involved in

exempting each category of lands mentioned in that Section. In

other words, there is not much difficulty in holding that the

scheme of the Act, especially that of Chapter III, is that the

provisions therein are to be given effect to without affecting the

public interest intended to be protected by conferring exemption

to the various categories of lands mentioned in Section 81.

“Commercial site” is one among the categories of lands

exempted from the ceiling provisions contained in Chapter III of

WPC.Nos.17384 & 18246 of 2017
23

the Act. “Commercial site” is defined in Section 2(5) of the Act

thus:

“Commercial site” means any land not being a

kudiyiruppu or a kudikidappu or karaima which is

used principally for the purposes of any trade,

commerce, industry manufacture or business;”

If the expression “commercial site” is understood in the

background of the scheme of the Act, especially that of Chapter

III as indicated above, it is clear that the purpose of exemption

is to ensure that the implementation of the provisions contained

in chapter III of the Act shall not affect trading, commercial,

industrial, manufacturing or business activities undertaken

making use of the land. It is all the more so, as the emphasis in

terms of the definition is on the activities and not on the manner

in which the land is made use of for the activity. I am fortified

with the above view also for the reason that the legislature has

made the expressions relating to exempted lands unambiguous

WPC.Nos.17384 & 18246 of 2017
24

by appropriate explanations wherever required. For example, in

the case of cashew estates falling under clause 81(1)(f), it is

explained in the Act that cashew estate shall mean any land

primarily cultivated with not less than 150 cashew trees per

hectare. At the same time, no explanation is given to the

expression “commercial site” contained in Section 81(1)(q),

indicating thereby that the words used to define the said

expression have to be attributed its natural and ordinary

meaning. The finespun distinction drawn between activities

which deface the land, and which do not deface the land, for

defining the true purport of the expression “commercial site”,

according to me, is not justified at all in the context, especially

since the Act is a legislation falling under Entry 18 of List II of the

Seventh Schedule to the Constitution dealing with the right in or

over land, land tenures, transfer and alienation of agricultural

land etc.
WPC.Nos.17384 & 18246 of 2017
25

6. The next aspect to be considered is as to whether quarrying

would fall under any of the five categories of activities mentioned

in the definition. Since all the words used in the definition,

namely, trade, commerce, industry, manufacture and business

are general words, the same are to be attributed their common

and ordinary meaning, for statutes are presumed to use words in

their popular, rather than their narrowly legal or technical sense,

in matters relating to general public. As it is held in

Mohammedali Haji (supra) that quarrying involves

manufacturing, hairsplitting arguments have been advanced by

the counsel who canvassed for the position that site of a quarry

would not fall within the definition of “commercial site” to bring

home the point that quarrying cannot be brought under the

expression "manufacturing". Be that as it may, the word

"commerce" is used in the Act to include all activities in

WPC.Nos.17384 & 18246 of 2017
26

connection with trade, commerce, industry, manufacture or

business. Black's defines “commercial activity” as an activity

conducted to make a profit. Black's defines “business” as a

commercial enterprise carried on for profit. There cannot be any

dispute to the fact that granite stones are extracted from private

quarries mostly as part of business for sale for profit. Of course,

in exceptional situations, one may extract granite stones from a

quarry for personal consumption as well. As it is a reality that

granite stones are extracted from private quarries mostly as part

of business for sale for profit, there is no doubt in my mind that

quarrying activity would fall within the scope of both commercial

and business activities. In other words, the site of a quarry is

certainly to be treated as a commercial site, falling within the

scope of “commercial site” as defined in Section 2(5) of the Act.

7. Further, it is a fact that quarrying activities were in existence in

WPC.Nos.17384 & 18246 of 2017
27

the State in private lands even before the Act came into force.

When the learned Additional Advocate General who canvassed for

the position that site of a quarry would not fall within the

definition of “commercial site” was asked as to how the quarries

existed at the time of commencement of the Act continued their

operation after the Act, the answer was that such lands were

exempted under Section 81(1)(k) of the Act. Section 81(1)(k) of

the Act reads thus:

“S.81 Exemptions .--(1) The provisions of this

Chapter shall not apply to--

xxx xxx xxx

xxx xxx xxx

(k): lands belonging to or held by an industrial or

commercial undertaking at the commencement of this

Act, and set apart for use for the industrial or

commercial purpose of the undertaking:

Provided that the exemption under this clause

shall cease to apply if such land is not actually used

for the purpose for which it has been set apart, within
WPC.Nos.17384 & 18246 of 2017
28

such time as the District Collector may, by notice to

the undertaking, specify in that behalf.”

In terms of the said provision, lands belonging to or held by an

industrial or commercial undertaking at the time of

commencement of the Act and set apart for use for the industrial

or commercial purpose of the undertaking have been exempted

from the ceiling provisions contained in the Act. Section 81(1)(k)

does not refer to quarries. It refers only to industrial and

commercial undertakings. In other words, the State concedes

that for the purpose of permitting the existing quarries to

continue, the quarrying activity was understood to have been a

commercial activity. Similarly, one of the submissions made by

the learned Senior Counsel who canvassed for the position that

quarrying sites would fall within the ambit of “commercial site”

was that if it is held that quarrying sites would not fall within the

definition of “commercial site”, all the existing private quarries in

the State have to be closed down and in that event, there will be
WPC.Nos.17384 & 18246 of 2017
29

gross shortage for granite stones which would not only affect the

developmental activities taking place in the State, but also the

life of the common man who needs granite stones for various

constructions. This argument was met by the counsel on the

other side contending that in such an event, the Government is

empowered by Section 81(3) of the Act to exempt quarrying

sites from the ceiling provisions under the Act . Section 81(3) of

the Act reads thus :

“81. Exemptions.--

xxxx xxxx

xxxx xxxx

(3) The Government may, if they are satisfied that it is

necessary to do so in the public interest--

(a) On account of any special use to which any

land is put; or

(b) On account of any land being bona fide

required for the purpose of conversion into plantation

or for the extension or preservation of an existing

WPC.Nos.17384 & 18246 of 2017
30

plantation or for any commercial, industrial,

educational or charitable purpose, by notification in

the Gazette, exempt such land from the provisions of

this Chapter, subject to such restrictions and

conditions as they may deem fit to impose:

Provided that the land referred to in clause (b)

shall be used for the purpose for which it is intended

within such time as the Government may specify in

that behalf; and, where the land is not so used within

the time specified, the exemption shall cease to be in

force.”

True, the aforesaid provision confers power on the Government

under Section 81(3) of the Act for exempting any land for any

commercial or industrial purpose from the provisions contained

in Chapter III of the Act, if such land is required bonafide for

such purposes. But, here again, the expression used is

“commercial” or “industrial”. In other words, the expression

“commercial”, according to the counsel, has to be understood as

one taking within its scope quarrying as well for the purpose of
WPC.Nos.17384 & 18246 of 2017
31

Section 81(3) of the Act. It is presumed that same meaning is

intended for the same words used in different parts of the same

statute. Similarly, it is trite that when there is doubt about the

meaning of a word, the word has to be understood in the sense

in which it best harmonizes with the subject of enactment. If

quarrying sites are to be treated as commercial sites in the

context of Sections 81(1)(k) and 81(3) of the Act, there is no

reason why the same shall not be treated as “commercial sites”

for the purpose of Section 81(1)(q).

8. The view that the law laid down in Mohammedali Haji (supra)

needs to be re-considered on account of environmental concerns

cannot be accepted, as the Act is one enacted as part of the

agrarian reforms in the State.

For the aforesaid reasons, the reference is answered holding that

WPC.Nos.17384 & 18246 of 2017
32

Mohammedali Haji (supra) has laid down the law on the point

correctly.

Sd/-P.B. SURESH KUMAR, JUDGE

Order of the Court

1. The judgment in State of Kerala v. Mohammedali Haji [1996 (1)

KLT 584(DB)] is overruled.

2. The Registry to post the writ petitions for hearing as per roster.

16-11-2018 Sd/- V.CHITAMBARESH, JUDGE

Sd/- P.B.SURESH KUMAR, JUDGE
Sd/- SATHISH NINAN, JUDGE

/true copy/

PS TO JUDGE