George Mathew vs The Geologist
2021 Latest Caselaw 15266 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                    WP(C) NO. 22179 OF 2020
PETITIONER:

         GEORGE MATHEW
         AGED 70 YEARS
         S/O. MATHEW, JIBIN VILLA, BHARANICKAVU SOUTH,
         MAVELIKARA TALUK, - 690503.

         BY ADV RINNY STEPHEN CHAMAPARAMPIL


RESPONDENTS:

    1    THE GEOLOGIST
         THE DEPARTMENT OF MINING AND GEOLOGY,
         DISTRICT OFFICE, MINI CIVIL STATION,
         CHERTHALA P.O, ALAPPUZHA DISTRICT - 688524.

    2    LIJO K THOMAS
         S/O. KURIAN THOMAS, EDAYILE VEETTIL HOUSE,
         BHARANIKKAVU SOUTH, KATTANAM VILLAGE,
         MAVELIKARA TALUK, 690503.

         BY GOVERNMENT PLEADER SRI. MANU RAJ

     THIS WRIT PETITION       (CIVIL) HAVING COME UP     FOR
ADMISSION ON 22.07.2021,      THE COURT ON THE SAME      DAY
DELIVERED THE FOLLOWING:
 WP(C) No.22179/2020
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 22nd day of July, 2021

The petitioner challenges Ext.P8 notice and seeks

to direct the 1st respondent to issue Mineral Transit Passes for

transporting ordinary earth from his land in Kattanam Village

as per Ext.P4 Development Permit.

2. The petitioner states that he proposes to construct

a building and obtained a building permit as well as a

development permit from the Panchayat authorities. After

obtaining those permits, the petitioner applied for mineral

transit passes from the 1st respondent-Geologist as the land

required levelling and ordinary earth had to be transported.

The 1st respondent-Geologist has rejected the application

submitted by the petitioner as per Ext.P8 order holding that

the adjacent road is 3.5 metres high and levelling of the land WP(C) No.22179/2020

of the petitioner can cause ecological imbalance and obstruct

free flow of water, resulting in scarcity of drinking water in the

area. The 1st respondent also observed that removal of

ordinary earth from the petitioner's land can also result in loss

of lateral support to the nearby pieces of land.

3. The petitioner challenges the said Ext.P8 order.

The petitioner would submit that he is entitled to make use of

his land subject to reasonable restrictions. As per Rule 14(2)

of the Kerala Minor Mineral Concession Rules, no quarrying

permit is required for extraction of ordinary earth in connection

with the construction of residential buildings including flats or

commercial buildings having a plinth area of less than 300

square metres if the owner of the land has obtained a prior

valid permit from the Panchayat. The petitioner would submit

that the building proposed to be constructed by him is of 163

square metres only. Therefore, he is entitled to extract

ordinary earth from the land. The authorities cannot decline

permission for extraction of ordinary earth since no permission

is required at all for such extraction. WP(C) No.22179/2020

4. The learned counsel for the petitioner further

pointed out that no proper site inspection of the land was

conducted either by the 1st respondent or by his subordinate

officials. Unless there is a proper site inspection with notice to

the affected parties including the petitioner, the 1st respondent

could not have arrived at a proper conclusion in the matter. In

the circumstances, Ext.P8 is liable to be set aside and the 1 st

respondent is compellable to pass orders afresh after making

a site inspection with notice to the petitioner, contended the

learned counsel for the petitioner.

5. The learned Government Pleader entered

appearance for the respondents and opposed the writ petition.

The learned Government Pleader submitted that removal of

ordinary earth using JCB in the area can have disastrous

results. It may affect the availability of drinking water in the

locality. It may also affect the flora and fauna. There are

other people residing around who are depending upon well

water for drinking. Their life may also be affected. The 1 st

respondent was therefore justified in passing Ext.P8 order, WP(C) No.22179/2020

contended the learned Government Pleader. The digging,

levelling or removal of ordinary earth from the petitioner's

property is also likely to affect the lateral support to the nearby

residences which may, in turn, cause disastrous

consequences in future.

6. I have heard learned counsel for the petitioner and

learned Government Pleader appearing for the respondents.

7. From the pleadings, it appears that the petitioner

has filed Ext.P9 Review Petition before the 1 st respondent

seeking to review Ext.P8 order invoking Rule 100 of the

Kerala Minor Mineral Concession Rules, 2015. Since the

petitioner has invoked a statutory remedy to review the

impugned order, this Court is of the opinion that no

adjudication of issues is warranted in this case at this stage.

In such circumstances, the writ petition is disposed

of directing the 1st respondent to consider Ext.P9 Review

Petition in accordance with law, within a period of four weeks.

While considering Ext.P9, the 1 st respondent will specifically

advert to the arguments of the petitioner based on Rule 14(2) WP(C) No.22179/2020

of the Kerala Minor Mineral Concession Rules, 2015 and will

also consider the request of the petitioner for a proper

inspection of the site.

Sd/-

N. NAGARESH, JUDGE

aks/22.07.2021 WP(C) No.22179/2020

APPENDIX OF WP(C) 22179/2020

PETITIONER'S EXHIBITS :

EXHIBIT P1 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13.02.2017 ISSUED BY THE VILLAGE OFFICER, KATTANAM IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 A TRUE COPY OF THE LOCATION SKETCH DATED 13.06.2019 ISSUED BY THE VILLAGE OFFICER, KATTANAM.

EXHIBIT P3 A TRUE COPY OF THE GENERAL BUILDING PERMIT NO. A2-B1(119527)/2019 DATED 28.05.2019 ALONG WITH THE APPROVAL PLANS.

EXHIBIT P4 THE TRUE COPY OF THE DEVELOPMENT PERMIT NO. A2-B1(133561)/2019 ISSUED BY THE BHARANICKAVU GRAMA PANCHAYATH ALONG WITH THE APPROVED LAND DEVELOPMENT PLAN EXHIBIT P5 A TRUE COPY OF THE CHELAN DATED 19.06.2019 ISSUED FROM THE SUB TREASURY, CHERTHALA.

EXHIBIT P6 A TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER ALONG WITH THE APPLICATION DATED 4.06.2019 SUBMITTED BEFORE THE 1ST RESPONDENT.

EXHIBIT P7 A TRUE COPY OF THE COMPLAINT DATED 18.06.2019 SUBMITTED IN THE NAME OF THE 2ND RESPONDENT BY HIS FATHER BEFORE THE 1ST RESPONDENT.

EXHIBIT P8 A TRUE COPY OF THE NOTICE NO.

D.O./1067/MM/19 DATED 06.03.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE REVIEW PETITION DT 30.06.2021 SUBMITTED BY ME BEFORE THE 1ST RESPONDENT.