Karunakaran vs The Secretary To Government
2022 Latest Caselaw 3359 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR. JUSTICE T.R.RAVI
         TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                         WP(C) NO. 30865 OF 2021
PETITIONER:

              KARUNAKARAN
              S/O. BALAKRISHNAN NAIR, KANGADIYIL HOUSE,
              KARTHALA, MALAPPURAM DISTRICT.

              BY ADV SAJEEV KUMAR K.GOPAL



RESPONDENTS:

     1        THE SECRETARY TO GOVERNMENT
              INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM-695001.

     2        THE DIRECTOR OF MINING AND GEOLOGY,
              DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM,
              PATTAM PALACE P.O., THIRUVANANTHAPURAM-695004.

     3        THE SENIOR GEOLOGIST,
              DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY,
              MINI CIVIL STATION, CHEMBUKAVU, THRISSUR-20.

     4        THE REVENUE DIVISIONAL OFFICER,
              OFFICE OF THE REVENUE DIVISIONAL OFFICER,
              THRISSUR-680003.

     5        THE VILLAGE OFFICER,
              DEASAMANGALAM VILLAGE, PALLUR GROUP,
              DESAMANGALAM P.O., THRISSUR-679532.

              SRI. B.S. SYAMANTHAK, GOVT. PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30865 OF 2021
                                    2




                              T.R. RAVI, J.
               --------------------------------------------
                     W. P. (C). No. 30865 of 2021
                --------------------------------------------
                 Dated this the 22nd day of March, 2022

                              JUDGMENT

The petitioner has challenged Ext.P13 order issued by the

Government whereby the request of the petitioner for permission for

extraction of minor mineral for the purpose of digging a pond in his

property has been rejected. The petitioner relies on Rule 104 of the

Kerala Minor Mineral Concession Rules, 2015, which empowers the

Government to grant special permission to extract and remove minor

minerals in special circumstances. It is pointed out that what is

required to be gone into as per the Rule is whether the extraction of

the minor mineral is inevitable for a legitimate purpose other than

vending the mineral. The legitimate purpose according to the

petitioner is the digging of the pond which would provide water for

irrigation facilities for the property and for neighbouring properties. It

is submitted that the area has difficulty in finding water through out

the year. It is for the aforesaid legitimate purpose that it is inevitable WP(C) NO. 30865 OF 2021

to remove the rock, according to the petitioner. The Rule further says

that the application has to be submitted along with the no-objection

certificate from the Revenue Divisional Officer. The petitioner has

produced Ext.P9 which is a letter addressed by the Revenue Divisional

Officer to the Senior Geologist stating that permission is granted for

the purpose of digging of the pond in 15 cents in Sy.No.326/3 for the

purpose of getting enough water for rubber tapping and making of

rubber sheets. The petitioner submits that he has produced all the

relevant documents for the purpose of consideration by the State

Government but in Ext.P13, the only aspect considered is the report

of the Geologist which has been produced as Ext.P8, wherein it is

stated that the place is not fit for digging of a pond. The power

available under Rule 104 is necessarily a power to grant a special

permission and in special circumstances, which is discretionary in

nature. At the same time, the discretion has to be exercised in a legal

manner, keeping the purpose of the grant of the power in mind. The

Revenue Divisional Officer has stated that the requirement is

legitimate and this aspect was not found to be wrong by the State

Government. Nor has the Senior Geologist found fault with the WP(C) NO. 30865 OF 2021

purpose stated in the application. It is also not disputed that removal

of the rock is necessary for the purpose of digging a pond in the

property. In Ext.P8, what the Senior Geologist has stated is that the

removal of the rock would require a certain extent of changing the

slope which can be a reason for landslide. In the nature of the power

available under Rule 104, I am of the opinion that the 1 st respondent

ought to have considered the issue with the purpose in mind and the

inevitable nature of the mining that was proposed. It is not that the

State should not look into possibilities of a disaster. But whether

there is such a threat has to be ascertained in a scientific manner and

should not have been a conclusion based solely on the opinion of the

Geologist.

In such circumstances this writ petition is allowed. Ext.P13 is

set aside. The 1st respondent is directed to reconsider the application

submitted by the petitioner in the light of the no-objection certificate

issued by the Revenue Divisional Officer and the certification by the

concerned Village Officers regarding the availability of water and other

relevant aspects which will require to be considered for arriving at a

decision whether the request is for a legitimate purpose and whether WP(C) NO. 30865 OF 2021

the removal of the mineral is inevitable. It is open to the Government

to ascertain scientifically whether there is a threat as apprehended in

Ext.P8. However, any such investigation shall be with notice to the

petitioner. The orders shall be issued after hearing the petitioner

within two months from the date of receipt of a copy of this judgment.

Sd/-

T.R.RAVI JUDGE

Pn WP(C) NO. 30865 OF 2021

APPENDIX OF WP(C) 30865/2021

PETITIONERS' EXHIBITS

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 6.10.2020.

Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 5TH RESPONDENT WITH RESPECT TO THE PROPERTY IN SY.NO.326/P-6 DATED 6.2.2021.

Exhibit P3 TRUE COPY OF THE DEMARCATION CERTIFICATE ISSUED BY THE 5TH RESPONDENT DATED 5.8.2019.

Exhibit P4 TRUE COPY OF THE LOCATION CERTIFICATE ISSUED BY THE 5TH RESPONDENT DATED 2.8.2019.

Exhibit P5 TRUE COPY OF THE CERTIFICATE DATED 5.8.2019 ISSUED BY THE 5TH RESPONDENT POINTING OUT THAT THE PROPERTY DOES NOT INCLUDE EFL.

Exhibit P6 TRUE COPY OF THE REPORT DATED 4.9.2019 OF THE AGRICULTURAL OFFICER, KRISHI BHAVAN, DESAMANGALAM.

Exhibit P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, DESAMANGALAM DATED 27.7.2019.

Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED 21.8.2020 VIDE NO.1904/C2/TDO/2020 ISSUED BY THE 3RD RESPONDENT.

Exhibit P9 TRUE COPY OF THE ORDER NO.B3-524/2021 DATED 26.2.2021 OF THE 4TH RESPONDENT.

WP(C) NO. 30865 OF 2021

Exhibit P10 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 8.3.2021.

Exhibit P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 25.3.2021.

Exhibit P12 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.11842/2021 DATED 14.6.2021.

Exhibit P13 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 29.11.2021 VIDE G.O.(P) NO.1302/2021/INDUSTRIES.

Exhibit P14 TRUE COPY OF THE REPORT ON INSPECTION OF POND DIGGING AREA IN SURVEY NO.326/P OF DESAMANGALAM VILLAGE, THALAPPULLY THALUK, THRISSUR DISTRICT SUBMITTED BY DR. NAZAR AHAMMED K.V. ALONG WITH PHOTOGRAPHS AND SKETCH.