Kerala High Court
Shamsudheen F vs Director on 6 May, 2025
W.P.(C) No. 12273 of 2022 1
2025:KER:33544
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 6TH DAY OF MAY 2025 / 16TH VAISAKHA, 1947
WP(C) NO. 12273 OF 2022
PETITIONER:
SHAMSUDHEEN F.,AGED 64 YEARS
S/O. LATE FAHARUDHEEN, RESIDING AT TC 5/229(1),
TJRA-110, GOLD LINKS ROAD, KOWDIAR P.O.,
TRIVANDRUM, PIN-695003
BY ADVS.
THOMAS ABRAHAM
MERCIAMMA MATHEW
ASWIN.P.JOHN
R.ANANTHAPADMANABAN
THAYYIB SHA P.S.
PAUL BABY
RESPONDENTS:
1 DIRECTOR,
DIRECTORATE OF MINING AND GEOLOGY,
KESAVADASAPURAM, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM-695004
2 DISTRICT GEOLOGIST,
THIRUVANANTHAPURAM DISTRICT OFFICE,
DEPARTMENT OF MINING & GEOLOGY,
KESAVADASAPURAM, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM-695004
3 POOVACHAL GRAMA PANCHAYAT,
POOVACHAL P.O.,
THIRUVANANTHAPURAM DISTRICT-695 575
REPRESENTED BY ITS SECRETARY
4 JALEEL MOHAMMED,AGED 40 YEARS
S/O. SHAKEER, RAHMATH, KALLUVILAKAM,
POOVACHAL P.O., THIRUVANANTHAPURAM-695575
W.P.(C) No. 12273 of 2022 2
2025:KER:33544
*ADDL.R5 THE ADDITIONAL SECRETARY,
INDUSTRIES A DEPARTMENT
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM
IS SUO MOTU IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS
PER ORDER DATED 06.05.2025IN THE WRIT PETITION
BY ADVS.
PUBLIC PROSECUTOR
GOVERNMENT PLEADER SMT.NIMA JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2025, THE COURT ON 06.05.2025 DELIVERED THE FOLLOWING:
W.P.(C) No. 12273 of 2022 3
2025:KER:33544
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No. 12273 of 2022
.................................................................
Dated this the 6th day of May, 2025
JUDGMENT
Above writ petition is filed challenging Exts.P11, P12, P13, P16,
P19, P20, P21 and P24 and for a declaration that petitioner is entitled to
remove the entire quantity of 4484 metric tones of ordinary earth from the
property permitted in Ext.P8 order of the 2 nd respondent and for grant of
necessary number of transit passess.
2. Brief facts necessary for disposal of the writ petition are as
follows: Petitioner purchased certain extent of land for setting up a diary
farm. Construction as well as development permit was granted by the local
authority. Earth is to be removed so as to level the land for undertaking
construction activities. Necessary royalty was paid and consequently
Ext.P8 order was issued granting transit passes for 280 loads. Later 100
transit passes were issued and after removing earth using the said transit
passes, further 100 passes were applied, which has been withheld by the
2nd respondent. While so, Ext.P11 communication was issued whereby
direction was issued by the Geologist to the local authority to file a report
on the complaint raised that earth in excess of what is permitted has been
removed. The local authority in turn as per Ext.P12 intimated the Geologist
2025:KER:33544
that as per the report of the Assistant Engineer, LSGD, mining has been
done outside the area permitted as per the permit and as the earth is
heaped in the property, the actual quantity could not be ascertained.
Thereupon, the 2nd respondent issued Ext.P13 letter directing the Village
Officer to measure the quantity of earth already removed from the plot with
the help of the Taluk surveyor. When the matter came up for consideration
on 08.04.2022, this Court was pleased to issue an interim order directing
the issuance of necessary permit to the petitioner whereby permitting the
respondents to take necessary action if there is any excessive extraction.
Thereupon, Ext.P16 order was issued by the Geologist granting 69 mineral
transit passes for removal of earth. Petitioner contended that the finding in
Ext.P16 that 1828.5 cubic meters of earth has already been removed and
what remains is only 413.5 cubic meters is without any basis. It is
contended that later Ext.P19 demand notice was issued by the 2 nd
respondent Geologist demanding an amount of Rs.14,61,700/- towards
penalty for removal of 14617 metric ton. Petitioner submits that Ext.P16 is
based on Ext.P20 inspection report which is also without any basis and just
a guess work. Petitioner would contend that the proceedings were initiated
based on Ext.P21 mahazar which was prepared behind the back of the
petitioner wherein a finding was entered that earth has been removed in
violation of permit condition. To the surprise of the petitioner, Ext.P24
notice was also issued by the Geologist directing the petitioner to show
2025:KER:33544
cause why penalty shall not be imposed for violation of the permit condition
in as much as not even the basement of the building was not constructed
within a period of one year, to which Ext.P25 reply was submitted by the
petitioner. It is in the said circumstance that the petitioner has approached
this Court seeking the above stated reliefs.
3. A counter affidavit and additional counter affidavit have been filed
by the 2nd respondent wherein it is contended that an inspection was
conducted on 12.04.2022 as this Court in interim order dated 08.04.2022
has permitted the respondents to take necessary action if there is any case
of excessive extraction and after inspection, the 2 nd respondent found that
69 transit passes could be granted which is sufficient to remove the
balance earth entitled to be removed as per the development permit but
the petitioner did not accept the same. It is further contended that the
petitioner has misused the transit passes. It is also contended that
petitioner flouted all the permit conditions and the conditions in the
development permit and encroached vast area outside the permit area.
Therefore necessary action was initiated against the petitioner. After
issuance of Ext.P19 demand notice, a request was submitted by the
petitioner as Ext.P22 and thereupon a joint inspection was conducted with
notice to the petitioner as evident from Ext.R2(m) but the petitioner did not
turn up. Therefore, it is contended that whatever steps that has been
initiated against the petitioner was after conducting an inspection with
2025:KER:33544
notice to the petitioner and therefore no interference is called for.
4. I have heard the rival contentions on both sides.
5. Admittedly, based on the request made by the petitioner as
Ext.P22, a joint inspection was conducted with notice to the petitioner but
the petitioner did not turn up for joint inspection. Pursuant to the interim
order passed by this Court, on 08.04.2022, Ext.P16 decision was taken to
grant 69 mineral transit passes to the petitioner. The grievance raised by
the petitioner is that the findings in Ext.P16 that 1828.5 cubic metres was
removed and that only 413.5 cubic meters remains to be removed is
without any basis and therefore did not accept Ext.P16 order.
6. Let me consider the orders impugned in this writ petition. Ext.P11
is a communication issued by the Geologist addressed to the local
authority to submit a report as to whether earth has been removed in
violation of the development permit. Ext.P12 is the reply submitted by the
local authority intimating the Geologist that earth has been extracted
beyond the permitted area as per the development permit and as the earth
has been heaped in the property, the exact quantity could not be
ascertained. Ext P13 is the request made by the Geologist to the Village
Officer, to ascertain with the help of the Taluk Surveyor, the earth already
removed by the petitioner. Since these are communications between the
authorities concerned to ascertain the quantity of the earth removed by the
petitioner based on the complaint that earth has been removed in excess, I
2025:KER:33544
find absolutely no reason to interfere with the said communications.
Ext.P16 is the order by which petitioner was issued 69 mineral transit
passes whereas the request of the petitioner is for issuance of 100 transit
passes. Petitioner has not accepted the same as he is aggrieved by the
finding in Ext.P16 that 1828.5 cubic metres was removed and that only
413.5 cubic meters remains to be removed. Ext.P19 is demand notice
issued by the Geology Department imposing a penalty of Rs.14,61,700/-
for unauthorised removal of earth in excess of the permitted quantity which
has been issued after issuing notice to the petitioner and after considering
the objection filed by the petitioner. Ext.P20 is the inspection report based
on which Ext.P16 was issued granting 69 passes to the petitioner. Ext.P21
is the inspection mahazar wherein there is a finding that mining has been
conducted in violation of the permit granted. Ext.P24 is the show cause
notice issued by the Geologist directing the petitioner to show cause why
penalty shall not be imposed for violation of the permit condition in as
much as not even the basement of the building was not constructed within
a period of one year, to which Ext.P25 reply was submitted by the
petitioner. Since Exts.P20 and P21 are inspection reports, I find no reason
to interfere with the same as the petitioner is entitled to challenge the
orders issued relying on the same.
In the above facts and circumstances, I am of the view that since
Exts.P16 and P19 demand notices are appealable orders before the
2025:KER:33544
Additional Secretary, Industries A Department, Government Secretariat,
Thiruvananthapuram as per Section 98 of the Kerala Minor Mineral
Concession Rules, 2015 the petitioner could be relegated to avail the
appellate remedy. Therefore, the writ petition is disposed as follows:
Petitioner may file an appeal before the appellate authority
challenging Exts.P16 and P19 proceedings within a period of three weeks
from the date of receipt of copy of this judgment. If there is any delay in
filing the appeal, the period during which the petitioner was prosecuting
this matter before this Court, could be excluded for calculating the period of
limitation if any. If an appeal is preferred as above, the same shall be
considered and disposed of by the Appellate Authority/additional 5th
respondent within a period of two months from the date of receipt of such
appeal, with notice to the petitioner. Subject to the outcome of the appeal,
the request of the petitioner for issuance of transit passes shall be
considered by the 2nd respondent Geologist. A decision pursuant to
Ext.P24 show cause notice shall be taken by the 2 nd respondent after duly
adverting to Ext.P25 reply submitted by the petitioner and with notice to
him.
Sd/-
VIJU ABRAHAM
JUDGE
cks
2025:KER:33544
APPENDIX OF WP(C) 12273/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO.1467/2021 OF
KATTAKADA S.R.O.
Exhibit P2 TRUE COPY OF THE SALE DEED NO.1466/2021 OF
KATTAKADA S.R.O.
Exhibit P3 POSSESSION CERTIFICATE OF THE PLOT COVERED
BY EXHIBIT P1 ISSUED BY THE VILLAGE OFFICER
OF VEERNAKAVU VILLAGE.
Exhibit P3A TRUE COPY OF THE POSSESSION CERTIFICATE OF
THE PLOT COVERED BY EXHIBIT P2 ISSUED BY THE
VILLAGE OFFICER OF VEERNAKAVU VILLAGE.
Exhibit P4 TRUE COPY OF THE CONSTRUCTION PERMIT DATED
20/10/2021.
Exhibit P5 TRUE COPY OF THE DEVELOPMENT PERMIT DATED
18/12/2021.
Exhibit P6 TRUE COPY OF THE RECEIPT FOR THE PAYMENT OF
ROYALTY FOR 4484 METRIC TONS OF ORDINARY
EARTH.
Exhibit P7 TRUE COPY OF THE RECEIPT OF INCOME TAX PAID.
Exhibit P8 TRUE COPY OF THE ORDER DATED 16/2/22
SANCTIONING MINERAL TRANSIT PASSES FOR 280
LOADS.
Exhibit P9 THE PHOTOGRAPH SHOWING THE CONSTRUCTION OF
THE DRAIN DONE BY THE PETITIONER.
Exhibit P10 THE PHOTOGRAPH OF THE ROAD CONSTRUCTED BY
THE PETITIONER IN HIS PROPERTY.
Exhibit P11 TRUE COPY OF THE LETTER OF 2ND RESPONDENT
DATED 26/02/2022 SENT TO THE 3RD RESPONDENT
PANCHAYAT.
Exhibit P12 TRUE COPY OF THE LETTER OF 3RD RESPONDENT
GRAMA PANCHAYAT DATED 11/03/2022.
Exhibit P13 TRUE COPY OF THE COMMUNICATION DATED 26/3/22
2025:KER:33544
SENT BY THE GEOLOGIST THIRUVANANTHAPURAM TO
THE VILLAGE OFFICER VEERANACAVU.
Exhibit P14 TRUE COPY OF THE REPRESENTATION DATED
29/03/2022 SUBMITTED BY THE PETITIONER.
Exhibit P15 THE ROUGH SKETCH REVEALING THE LIE OF THE
LAND OF THE PETITIONER.
Exhibit P16 TRUE COPY OF THE ORDER
NO.48/2022-23/40/DT/ML/2022 DATED 20.4.2022
ISSUED BY THE 1ST RESPONDENT.
Exhibit P17 THE TABULATED LIST CONTAINING THE DETAILS OF
THE VEHICLES UTILIZED FOR REMOVING EARTH
FROM THE SITE.
Exhibit P18 THE TRUE COPY OF THE PHOTOGRAPHS EVIDENCING
THE NATURE OF VEHICLES USED TO REMOVE EARTH
FROM THE SITE.
Exhibit P19 THE TRUE COPY OF THE ORDER NO.40/DOT/ML/2022
DATED 19.07.2022
Exhibit P20 TRUE COPY OF THE CALCULATION STATEMENT
Exhibit P21 THE TRUE COPY OF THE MAHAZAR STATED TO HAVE
BEEN PREPARED ON 25/6/2022
Exhibit P22 THE TRUE COPY OF THE REPRESENTATION DATED
1/8/2022
EXHIBIT P23 THE TRUE COPY OF THE REPORT DATED 21/9/2023
PREPARED BY THE SHRI. B VINCENT, A RETIRED
DEPUTY CHIEF ENGINEER OF THE KERALA PUBLIC
WORKS DEPARTMENT
EXHIBIT P24 THE TRUE COPY OF THE NOTICE DATED 7/11/2023
ISSUED BY THE SENIOR GEOLOGIST
EXHIBIT P25 THE TRUE COPY OF THE REPLY DATED 18/11/2023
SUBMITTED BY THE PETITIONER TO THE SENIOR
GEOLOGIST
RESPONDENT EXHIBITS
EXHIBIT R2(a): TRUE COPY OF THE POSSESSION CERTIFICATE
EXHIBIT R2(b): TRUE COPY OF THE DEVELOPMENT PERMIT
EXHIBIT R2(c): TRUE COPY OF THE DEVELOPMENT PLAN
2025:KER:33544
EXHIBIT R2(d): TRUE COPY OF THE LETTER No.A2-1739/22 DATED
11.03.2022 BY THE LSGD SECRETARY.
EXHIBIT R2(e) TRUE COPY OF THE CALCULATION STATEMENT OF
THE QUANTITY BY THE TNEN GEOLOGIST AND
ASSISTANT GEOLOGIST
EXHIBIT R2(f) TRUE COPY OF THE DETAILS OF VEHICLES WHICH
WERE USED FOR TRANSPORTING EARTH, USING THE
100 TRANSIT PASSES
EXHIBIT R2(g): TRUE COPY OF THE TRANSIT PASS.
EXHIBIT R2(h): TRUE COPY OF THE MASS PETITION DATED
13.05.2022.
EXHIBIT R2(i): TRUE COPY OF THE SPOT MAHASSAR PREPARED
DURING THE FIELD INSPECTION.
EXHIBIT R2(j): TRUE COPY OF THE PHOTOGRAPHS OF THE SITE.
EXHIBIT R2(k) TRUE COPY OF SHOW CAUSE NOTICE DATED
05.07.2022 TO THE PETITIONER DIRECTING HIM
TO FURNISH REASONS IF ANY FOR NOT INITIATING
ACTION UNDER Rule 14(4) OF KMMC RULES 2015
Exhibit R2(l):- True copy of the reply dated 18.07.2022
filed by the petitioner.
EXHIBIT R2(m) TRUE COPY OF A REGISTERED NOTICE DATED
02.09.2022 SERVED TO THE PETITIONER
DIRECTING HIM TO BE PHYSICALLY PRESENT IN
THE SITE ON 17.09.2022 FOR TAKING
MEASUREMENTS
Exhibit R2(n):- A copy of the mahazar prepared.
EXHIBIT R2(o) TRUE COPY OF LETTER FROM THE PETITIONER
STATING THAT THE PROPOSED FIELD INSPECTION
AMOUNTS TO CONTEMPT OF COURT
