Kerala High Court
P.T.Mathew vs The District Collector on 26 August, 2022
WP(C) NO. 9579 OF 2021 1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 9579 OF 2021
PETITIONER/S:
P.T.MATHEW, AGED 78 YEARS, S/O. LATE THOMAS, PLATHOTTAM,
MUKKUZHI, POONJAR, THEKKEKKARA P.O., KOTTAYAM DISTRICT,
KERALA.
BY ADVS.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
RESPONDENT/S:
1 THE DISTRICT COLLECTORCOLLECTORATE, KOTTAYAM-686002.
2 THE REVENUE DIVISIONAL OFFICER,PALA, KOTTAYAM-686575.
3 THE GEOLOGIST,DEPARTMENT OF MINING AND GEOLOGY, DISTRICT
OFFICE KOTTAYAM, KOTTAYAM-686002.
BY ADVS. ADVOCATE GENERAL OFFICE KERALAGOVERNMENT
PLEADER(GP-1)
OTHER PRESENT:
SMT.VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 9579 OF 2021 2
'CR'
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.9579 of 2021
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Dated this the 26th day of August, 2022
JUDGMENT
The above writ petition is filed with the following prayers :
"(i) To call for the records leading to Ext.P8 and P9
(ii) To issue a writ of certiorari setting aside Ext.P8 and P9
(iii) To declare that the petitioner's request for digging a
pond for the purpose of agriculture and fish farming comes
within the purview of Rule 104 of Kerala Minor Mineral
Concession Rules, 2015.
(iv) To issue a writ of mandamus or any other appropriate
writ order or direction, directing the 1st and 2nd respondents to
consider the petitioner's application for granting of NOC under
Rule 104 of Kerala Minor Mineral Concession Rules, 2015, in
accordance with law.
(v) To issue such other appropriate writ order or direction
that may be deemed to be just and equitable in the facts and
circumstances of the case." [SIC]
2. The petitioner is the owner in possession of 8 Acres of
land in Re-survey No.225 in Block No. 72 in Poonjar Thekkekara
Village. According to the petitioner, he is cultivating various
agricultural crops in the property. It is the case of the petitioner
that due to acute scarcity of water, especially during the
summertime, the petitioner is not able to do his agricultural
operations on his land. Under such circumstances, the
petitioner decided to dig a pond in his property to enable the
petitioner to collect and store water in the pond. Since the area
is comprised of granite, the petitioner can dig the pond only
after removing a portion of the granite. For the same, the
petitioner applied to the authority concerned for getting NOC
as contemplated under Rule 104 of the Kerala Minor Mineral
Concession Rules, 2015 (for short Rules, 2015). It is the case of
the petitioner that without considering the purpose and intent
of the said rule, the respondents rejected the petitioner's
application seeking NOC under Rule 104 of the Rules, 2015 in
an arbitrary and mechanical manner. Hence, this writ petition is
filed.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader.
4. The counsel for the petitioner reiterated his
contentions. The counsel takes me through Rule 104 of the
Rules, 2015 and submit that if the extraction of minor mineral is
inevitable for any legitimate purpose, other than winning the
mineral, and where the owner of the land desires to transport
minerals outside the area of extraction, the Revenue Divisional
Officer is bound to issue permit. The Government Pleader, on
the other hand, submitted that the petitioner has 8 acres of
land, and the petitioner is insisting on digging a pond in the
area where there is granite. The Government Pleader submitted
that the statutory authority to decide this issue is the
Government, and the Revenue Divisional Officer(RDO) only can
issue a No Objection Certificate(NOC).
5. This Court considered the contentions of the
petitioner and the Government Pleader. The point to be decided
is about the validity of Ext P8 and P9 and whether the
authorities concerned considered the relevant rules while
passing those orders. The NOC is to be issued by RDO as per
Rule 104 of the Rules, 2015. It will be better to extract Rule 104
of the Rules, 2015.
"104. Power of State Government to grant special
permission to extract and remove minor minerals in
special circumstances.- In any case or class of cases where
extraction of minor mineral is inevitable for any legitimate
purpose, other than winning the mineral, and where the owner
of the land desires to transport minerals outside the area of
extraction, the applicant shall submit an application along with
the No Objection Certificate issued by the Revenue Divisional
Officer to the State Government for its extraction and
transportation and in such cases if the State Government is of
the opinion that the extraction and transportation of minerals
is inevitable, the State Government may for reasons to be
recorded in writing, issue an order in writing granting
permission for extraction and transportation of such minerals
with such terms and conditions as they deems fit. The
applicant shall remit royalty as specified in Schedule 1 for the
quantity of the mineral extracted.
Provided that, in such cases, the application shall be submitted
through the Director of Mining and Geology and along with the
application for extraction and transportation of minerals, the
applicant shall produce documents as required by the
competent authority for substantiating the details furnished in
the application."
6. A reading of the Rule 104, makes it clear that in case
or class of cases, where extraction of minor mineral is inevitable
for any legitimate purpose, other than winning the minerals,
and where the owner of the land desires to transport mineral
outside the area of extraction, the applicant can submit an
application, along with the no objection certificate issued by the
Revenue Divisional Officer to the State Government for its
extraction and transportation. In such cases, if the State
Government is of the opinion that extraction and transportation
of minerals is inevitable, the State Government may, for reasons
to be recorded in writing, issue an order in writing granting
permission for extraction and transportation of such minerals
with such terms and conditions as they deem fit. Therefore, it is
clear that the Government is the competent authority, and the
application is to be submitted along with a NOC from the
Revenue Divisional Officer. It is also clear from Rule 104 of the
Rules, 2015 that the NOC can be granted by RDO only if it is for
a legitimate purpose and it is inevitable. It is true that the state
Government is the authority to grant the permit. But a reading
of Rule 104 of the Rules 2015, it is clear that, while considering
the application for NOC, the RDO also has to decide whether
the extraction of minor minerals is inevitable for any legitimate
purpose. Therefore for issuing NOC for extraction of minor
minerals, the RDO also has to consider whether the same is
inevitable for any legitimate purpose. The RDO must first
consider whether it is for a legitimate purpose and thereafter
consider whether the legitimate purpose is inevitable. If a NOC
is issued by the RDO, the Government again has to decide
whether the extraction and transportation of Minor minerals is
inevitable. Therefore, before issuing the NOC the RDO has to
consider two aspects, namely (1) Is it for a legitimate
purpose(2) whether it is inevitable for that legitimate purpose.
Once NOC is issued, the government has to satisfy that the
extraction and transportation of minor minerals is inevitable.
The Government has to pass a speaking order to that effect as
per the Rule 2015.
7. This Court considered Exts.P8 and P9 orders. Ext.P8
is the order passed by the Revenue Divisional Officer, Pala and
Ext.P9 is the order passed by the District Collector, Kottayam. A
perusal of these orders will show that the Revenue Divisional
Officer or the District Collector has not considered the
petitioner's legitimate purpose. According to the petitioner, he
wants to dig a pond for agricultural purposes. Of course, that
can be a legitimate purpose if it is genuine. But that issue is not
considered by the Revenue Divisional Officer while passing
Ext.P8 order and the District Collector also has not considered
this point while issuing Ext.P9 order. If that is the case, the
matter has to be reconsidered by the Revenue Divisional
Officer, in the light of the specific provision in Rule 104 of the
Rules, 2015. For facilitating the Revenue Divisional Officer to
pass fresh orders, Exts.P8 and P9 can be set aside.
Therefore, this writ petition is allowed.
1) Exts.P8 and P9 are set aside.
2) The 2nd respondent is directed to reconsider the
application of the petitioner for NOC in the light of the
observations made in this judgment, as expeditiously as
possible, at any rate, within one month from the date of
receipt of a copy of this judgment.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 9579/2021
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE LOCATION SKETCH FOR THE
POND MADE BY THE VILLAGE OFFICER, POONJAR
THEKKEKKARA DATED 22.10.2020.
EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED
22.12.2017 MADE BY THE PETITIONER TO THE
CHIEF MINISTER, GOVT. OF KERALA,
THIRUVANANTHAPURAM ALONG WITH POSTAL
RECEIPT.
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED
22.10.2020 MADE BY THE PETITIONER TO THE
CHIEF MINISTER, GOVT. OF KERALA,
THIRUVANANTHAPURAM ALONG WITH POSTAL
RECEIPT.
EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED
20.11.2020 ISSUED BY THE 3RD RESPONDENT TO
THE PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 29.12.2020
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED
4.1.2021 MADE BY THE PETITIONER TO THE
HON'BLE CHIEF MINISTER OF KERALA,
THIRUVANANTHAPURAM.
EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED
17.2.2021 MADE BY THE 1ST RESPONDENT TO THE
2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 11.2.2021
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED
1.3.2021 ISSUED BY THE DISTRICT COLLECTOR
TO THE PETITIONER.
RESPONDENT'S EXHIBITS :
EXHIBIT R2(A) A TRUE COPY OF THE LETTER NO.1081/DOY/ML/19
DATED
EXT.R2(B) A TRUE COPY OF THE LETTER DATED 22.12.2017
FROM PETITIONER TO THE HON'BLE CHIEF
MINISTER.
EXT.R2(C) A TRUE COPY OF THE LETTER DATED 20.11.2020
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
