Kerala High Court
B.P. Siddique Haji vs The State Of Kerala on 15 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
WP(C) NO. 40716 OF 2023
PETITIONER:
B.P. SIDDIQUE HAJI, AGED 66 YEARS
S/O MOHAMMED HAJI, MANAGING PARTNER,
CHELUPARA GRANITES, THOTTUMUKKAM P.O.,
KOZHIKODE, PIN - 673669
BY ADVS.
NISHA GEORGE
GEORGE POONTHOTTAM (SR.)
SIDHARTH.R.WARIYAR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE REVENUE DIVISIONAL OFFICER
CIVIL STATION JUMA MASJID, SH29 ERANHIPALAM,
KOZHIKODE, PIN - 673020
3 THE TAHSILDAR
CIVIL STATION, ERANHIPALAM, KOZHIKODE,
KOZHIKODE DISTRICT, PIN - 673020
4 THE TAHSILDAR (LAND RECORDS)
CIVIL STATION, ERANHIPALAM, KOZHIKODE,
KOZHIKODE DISTRICT, PIN - 673020
5 DISTRICT SURVEY SUPERINTENDENT
K.T. GOPALAN ROAD, CIVIL STATION,
ERANHIPALAM, KOZHIKODE, PIN - 673020
6 THE TALUK SURVEYOR
TALUK OFFICE, KOZHIKODE, PIN - 673001
WP(C) No.40716 of 2023 2
7 THE VILLAGE OFFICER
KODIYATHUR VILLAGE OFFICE, KODIYATHUR,
KOZHIKODE DISTRICT, PIN - 673602
BY SPECIAL GP SRI.JAFFER KHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.40716 of 2023 3
VIJU ABRAHAM, J.
.................................................................
W.P (C) No.40716 of 2023
.................................................................
Dated this the 15th day of December, 2023
JUDGMENT
The above writ petition is filed challenging Ext.P19 whereby the
request made by the petitioner for counter sign/attestation of the survey
sketch has been declined for the reason that survey proceedings are
going on in respect of the property comprised in resurvey no.172 of
Kodiyathur Village.
2. Brief facts necessary for the disposal of the writ petition are as
follows: Petitioner is the Managing Partner of a partnership firm engaged
in quarrying operations. Petitioner, for the purpose of conducting quarrying
operations, leased 12 acres of land in survey no.172 of Kodiyathur Village,
Pannikode Desom of Kozhikode Taluk, Kozhikode District. The Revenue
authorities objected the conduct of quarrying operations and refused to
issue survey sketch of the property stating that a certain portion of the
property in survey no.172 form part of excess land surrendered to the
Government. Petitioner thereupon approached this Court by filing
W.P(C).No.3726 of 2014 which was disposed of as per Ext.P1 judgment
directing the Revenue Divisional Officer to issue survey sketch to the
petitioner within a period of four months. In compliance with the direction
in Ext.P1 judgment, Ext.P2 order was issued which contained details of
the survey conducted and enclosing with the survey sketch. Following
Ext.P2, quarrying lease was obtained and quarrying is being conducted till
date by complying with all statutory requirements and with all requisite
clearances. Petitioner thereafter decided to expand quarrying operations
into properties adjacent to the existing quarry and obtained necessary
consent from the property owners to conduct quarrying operations in
80.94 Ares of land in survey no.172/1556 and 6.61 acres of land
contained in survey no.172/1555 and survey no.172/1556 of Kodiyathur
Village. By Exts.P3 and P3(a) necessary consent deeds were also
executed. In order to submit an application before the State Environment
Impact Assessment Authority (in short, "SEIAA‟) the petitioner requirs a
survey sketch of the newly acquired property and thereupon Ext.P4
application was submitted before the Tahsildar. Ext.P5 is the possession
certificate issued for 80 Ares 94 sq.metres in resurvey no.172 obtained for
the purpose of presenting before SEIAA and Ext.P6 is the possession
certificate issued. 3rd respondent Tahsildar thereafter forwarded Ext.P4
application to the 7th respondent Village Officer for a report as per Ext.P7.
In reply to Ext.P7 letter, Ext.P8 report was sent by the 7 th respondent
Village Officer wherein it is reported that the property is free from Court
proceedings and bank attachments, that it has not been set apart by the
Government for any purpose, that it is not garden land and that it is not
assigned to Scheduled Tribes and also that it is not an assigned land.
Thereafter 3rd respondent Tahsildar as per Ext.P9, forwarded Ext.P8 report
of the 7th respondent Village officer to the 6th respondent Taluk Surveyor,
Kozhikode, along with survey sketch No.548/2020 submitted by the
Village officer, which was followed by Ext.P9(a) letter also. The 6 th
respondent Taluk Surveyor verified the report and sketch and approved
the same and submitted a report to the Tahsildar as per Ext.P10. It is
submitted that in Ext.P10 report, the Taluk Surveyor has stated that the
measurements in the survey sketch are correct. It is further stated in
Ext.P10 report that though resurvey proceedings are going on under the
leadership of the Sub-Collector in re-survey no.172 for demarcating
excess Government land, in the light of the Village Officer‟s report that the
land is not included in Government excess land, the file could be
processed further. Even after receipt of Ext.P10, 3rd respondent Tahsildar
called for a further clarification as per Ext.P11 as to whether the property
proposed to be quarried by the petitioner is included in the Government
excess land and that by Ext.P12 it is reported that whether there is any
Government excess land in the petitioner's property can be verified only
after completion of excess land resurvey in Kodiyathur and finalization of
L.R.M records On receipt of the Ext.P12, the application has been
rejected as per Ext.P13. Petitioner submits that the rejection as is evident
from Ext.P13 order is absolutely arbitrary and unjust inasmuch as the
activities of the petitioner cannot be put to a stand still till the re-survey
proceedings are completed. Petitioner further submits that in a similar
circumstance this Court has interfered and passed Ext.P14 judgment in
W.P.(C) No.30440 of 2022 dated 03.11.2022 wherein this Court in
paragraphs 5 and 6 held as follows:
"5. It is evident from the pleadings in the writ petition that with a
view to start quarrying operations, the petitioner has obtained
Consent from the land owners and has approached the Revenue
Officials for attestation of Sketch of the land where quarrying is
proposed to be done. Ext.P9 would show that the Village Officer
has prepared a Demarcation Certificate. The Taluk Surveyor has
also surveyed the land. Ext.P11 is the Non-Assignment Certificate
in respect of one of the plots where the petitioner proposes to
conduct quarrying activities.
6. In view of Rules 27(2)(b) and 4(2)(c) of the Kerala Minor Mineral
Concession Rules, 2015, preparation of the Sketch and attestation
by the Revenue Authorities are statutory requirements. When such
application is made and the Taluk Surveyor and the Village Officer
have already cleared the issue, the respondent cannot desist from
attesting the Sketch on the ground that Re-Survey proceedings
are not complete."
Petitioner submits that pursuant to Ext.P14 judgment and after the
issuance of survey sketch to the petitioner in W.P.(C) No.30440 of 2022,
petitioner again applied for issuing a survey sketch and as per Ext.P15
before the 3rd respondent and Ext.P15 was forwarded to the 6 th
respondent Taluk Surveyor to inspect the property and prepare a sketch
as per Ext.P16. The Taluk Surveyor in response to Ext.P16 issued a
communication to the 4th respondent Tahsildar (LR) stating that the
property is in possession of the petitioner and is having well defined
boundary with concrete pillars placed along with the boundary
demarcating the same and a sketch was also prepared and forwarded to
the 4th respondent. Following Ext.P17, 7th respondent Village Officer also
certified as per Ext.P18 that the property of the petitioner has a boundary
demarcated by concrete pillars and that the property is not part of forest
land and is not subject to attachments from any Court or Bank and that it
is not part of any tribal settlements. In spite of all these, by Ext.P19
communication the application has been rejected stating the very same
reason stated in Ext.P13, taking a stand that since excess land survey is
pending, it could be clear as to whether the petitioner's property falls
within the excess land or not only when the resurvey is completed. It is
aggrieved by the same petitioner has approached this Court.
3. Learned Senior Government Pleader submits that the only reason
for non-issuance of the attested survey sketch is that the excess land
survey is going on and only after finalising the same, it could be
understood as to whether the petitioner's property falls within the excess
land. The learned Government Pleader relying on Rule 13 of the Kerala
Land Reforms (Ceiling) Rule, 1970 submits that the authorities are
empowered to enquire to determine the extent and identity of the land to
be surrendered as excess land.
4. Heard the learned senior counsel appearing for the petitioner and
the learned Senior Government Pleader.
Admittedly the survey proceedings are going on and the same has
not yet culminated. Petitioner has obtained necessary consent from the
land owners and what remains is only attestation of the sketch of the land
where quarrying is proposed to be done. The communication issued by
the various authorities would show that the property in the possession of
the petitioner is having well defined boundary with concrete pillars placing
for demarcating the same. In the facts and circumstances of the case, the
stand in Ext.P19 that till the re-survey regarding excess land is completed,
the petitioner cannot be issued with an attested sketch cannot be
accepted. A similar view was considered by this Court in Ext.P14
judgment wherein directions were issued to the Tahsildar to issue attested
sketch of the petitioner therein without insisting for completing the survey
process and the impugned communications were set aside. In view of the
above, I am inclined to dispose of the writ petition as follows:
i. Ext.P19 communication is set aside.
ii. There will be a direction to the 3rd respondent Tahsildar to issue
attested sketch to the petitioner as sought for in Ext.P15 without insisting
for completion of survey process, within a period of one month from the
date of receipt of a copy of the judgment.
iii. It is made clear that the issuance of such attested survey sketch will
be subject to the final outcome of the survey process that is undertaken by
the respondents.
Writ petition is disposed of as above.
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 40716/2023
PETITIONER EXHIBITS
Exhibit -P1 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WP(C) NO. 3726/2014
DATED 01.08.2014.
Exhibit -P2 TRUE COPY OF ORDER NO. J2-14863/86(7)
DATED NIL ISSUED BY THE DISTRICT SURVEY
SUPERINTENDENT, KOZHIKODE.
Exhibit-P3 TRUE COPY OF CONSENT DEED DATED
29.07.2019 ISSUED FOR CONDUCTING
QUARRYING OPERATIONS.
Exhibit-P3(a) TRUE COPY OF CONSENT DEED DATED
26.06.2020 FOR CONDUCTING QUARRYING
OPERATIONS.
Exhibit-P4 TRUE COPY OF THE APPLICATION SUBMITTED
BY THE PETITIONER BEFORE THE 3RD
RESPONDENT TAHSILDAR, DATED 22.10.2020
Exhibit-P5 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 02.06.2020, ISSUED FOR 80 ARES 94
SQ.M IN RE.SY.NO.172 OBTAINED FOR THE
PURPOSE OF PRESENTING BEFORE SEIAA
Exhibit-P6 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 02.06.2020, ISSUED FOR 2 HE. 67
ARES 10 SQ.M IN RE.SY.NO.172 OBTAINED
FOR THE PURPOSE OF PRESENTING BEFORE
SEIAA.
Exhibit-P7 TRUE COPY OF THE LETTER DATED 10.11.2020
SENT BY THE TAHSILDAR, KOZHIKODE, TO THE
VILLAGE OFFICER, KODIYATHUR
Exhibit-P8 TRUE COPY OF THE REPORT DATED 09.04.2021
SUBMITTED BY THE VILLAGE OFFICER,
KODIYATHUR, BEFORE THE TAHSILDAR
Exhibit-P9 TRUE COPY OF THE LETTER DATED 10.11.2020
SENT BY THE TAHSILDAR, KOZHIKODE, TO THE
TALUK SURVEYOR, KOZHIKODE
Exhibit-P9(a) TRUE COPY OF THE 2ND LETTER DATED NIL
ISSUED BY THE TAHSILDAR TO THE TALUK
SURVEYOR AND RECEIVED UNDER THE RTI ACT
ON 29.09.2021.
Exhibit -P10 TRUE COPY OF THE REPORT DATED NIL
SUBMITTED BY THE TALUK SURVEYOR, BEFORE
THE TAHSILDAR, KOZHIKODE, ALONG WITH THE
APPROVED SURVEY SKETCH
Exhibit-P11 TRUE COPY OF THE NOTE DATED NIL SENT BY
THE TAHSLIDAR, KOZHIKODE, TO THE JUNIOR
SECTION SUPERINTENDENT, G. SECTION, AND
RECEIVED UNDER RTI ACT ON 29.09.2021
Exhibit -P12 TRUE COPY OF REPLY NOTE DATED 21.06.2021
SENT BY THE 4TH RESPONDENT TAHSILDAR TO
THE 3RD RESPONDENT
Exhibit -P13 TRUE COPY OF THE ORDER ISSUED BY THE
TAHSILDAR, KOZHIKODE, DATED 27.08.2021
Exhibit-P14 TRUE COPY OF JUDGMENT DATED 03.11.2022
OF THIS HON'BLE COURT IN W.P.(C) NO.
30440 OF 2022
Exhibit-P15 TRUE COPY OF COMMUNICATION DATED
24.07.2023 SENT BY THE PETITIONER TO THE
3RD RESPONDENT TAHSILDAR REQUESTING TO
ISSUE A SURVEY MAP
Exhibit-P16 TRUE COPY OF THE COMMUNICATION
NO.TLKKKD/9878/2023-A1 DATED 07.08.2023
OF THE 3RD RESPONDENT TO THE TALUK
SURVEYOR, WITHOUT ENCLOSURES
Exhibit -P17 TRUE COPY OF COMMUNICATION DATED
14.11.2023 ISSUED BY THE 6TH RESPONDENT
TO THE 4TH RESPONDENT
Exhibit -P18 TRUE COPY OF COMMUNICATION
NO.V.O/555/2023/1 DATED 16.11.2023
ISSUED BY THE 7TH RESPONDENT TO THE 3RD
RESPONDENT TAHSILDAR, WITHOUT ENCLOSURE
Exhibit-P19 TRUE COPY OF THE COMMUNICATION NO.
TLKKKD/9878/ 2023-A1 DATED 28.11.2023
REJECTING TO ISSUE A DULY ATTESTED
SURVEY SKETCH
Exhibit -P20 TRUE COPY OF THE SURVEY MAP PREPARED
FOLLOWING EXHIBIT P15 APPLICATION AND
DULY ATTESTED BY THE VILLAGE OFFICER AND
TALUK SURVEYOR
