Ambika Kumari v. Director, Directorate of Mining and Geology; District Geologist, Department of Mining and Geology, Government of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 33011 OF 2022 ``` ## **`PETITIONER`** ``` AMBIKA KUMARI AGED 70 YEARS W/O. LATE HARIHARAN, RESIDING AT SUBHADRALAYAM MADHAVAPURAM, VSSE ROAD, KARAKKONAM P.O THIRUVANANTHAPURAM -695 542. ``` ``` BY ADVS. M.P.ASHOK KUMAR P.C.GOPINATH BINDU SREEDHAR ASIF N ``` ## **`RESPONDENTS:`** - **`1 THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM, THIRUVANANTHAPURAM 695 004.`** - **`2 THE DISTRICT GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, PATTOM, THIRUVANANTHAPURAM 695 004.`** ``` SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.33011 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 9[th] day of November, 2022 The petitioner is aggrieved by the inaction on the part of the 2[nd] respondent in issuing Transit Passes to the petitioner to transport a quantity of 9156 Metric Tonne of ordinary earth stacked in her premises. 2. The petitioner states that she wanted to construct a building in her property and hence obtained a Building Permit and a Development Permit. The Thiruvananthapuram Corporation issued Development Permit for removal of 18042 Metric Tonne of ordinary earth. 3. To excavate and transport ordinary earth, the petitioner needed Mineral Transit Passes from the District Geologist. The petitioner submitted an application on 11.04.2022 seeking issuance of Mineral Transit Passes. The petitioner was required to pay an amount of `3,67,907/- ``` WP(C) NO.33011 OF 2022 ``` ``` 3 ``` towards royalty for removal of 18042 Metric Tonne of ordinary earth. The petitioner paid the amount. 4. By Ext.P3 order, the petitioner was granted permission to remove and transport 5000 Metric Tonne of ordinary earth. The petitioner could transport only 2496 Metric Tonne. The petitioner again made application and Ext.P4 order was passed. Ext.P4 permitted the petitioner to transport 14,000 Metric Tonne of ordinary earth. Due to incessant rains and other reasons, the petitioner could remove only 882 Metric Tonne pursuant to Ext.P4. Thereafter, at the instance of the petitioner, Ext.P5 order was passed permitting the petitioner to transport 12,000 Metric Tonne of ordinary earth. 1000 Passes were issued. The petitioner could utilise only 918 Passes and could transport only 5508 Metric Tonne out of the 12000 Metric Tonne permitted quantity. 5. The petitioner would state that now the petitioner has to remove 9156 Metric Tonne of ordinary earth from out of ``` WP(C) NO.33011 OF 2022 ``` ``` 4 ``` the permitted quantity of 18042 Metric Tonne. The petitioner submitted an application to renew Transit Passes. The District Geologist is refusing to issue Mineral Transit Passes. 6. The petitioner states that though she was issued with Mineral Transit Passes three times earlier for different set of quantities, the entire quantity could not be removed for more than one reason. There is a time restriction and quantity restriction in Mineral Transit Passes issued each time. Incessant rains during the period of validity of Mineral Transit Passes and the availability of limited number of vehicles, hampered removal of ordinary earth within the time granted by the Geologist. 7. The counsel for the petitioner argued that Rule 14 of the Kerala Minor Mineral Concession Rules, 2015 deals with quarrying permit for ordinary earth. Rule 14(4) states that in the event of extraction of ordinary earth outside the permitted area, the permission granted for extraction and ``` WP(C) NO.33011 OF 2022 ``` ``` 5 ``` transportation shall be liable for cancellation and the offender shall be liable to pay an amount equal to five times the royalty of the ordinary earth extracted outside the area of permission as penalty. 8. In the counter affidavit, the respondents have now taken a stand that Mineral Transit Passes are not issued due to the fact that the petitioner has excavated ordinary earth from adjacent lands also. If that be so, the petitioner is entitled to get a notice and the petitioner should be heard in the matter. Without doing so, the District Geologist cannot desist from issuing Mineral Transit Passes applied for. 9. The counsel for the petitioner further urged that as per Rule 6(17) of the Kerala Municipal Building Rules, the Secretary shall, after considering the application, plans and drawings and other documents, issue Development Permit in the prescribed form. It is the Secretary who is competent to act in the manner. If any complaint is there regarding excess ``` WP(C) NO.33011 OF 2022 ``` ``` 6 ``` removal of ordinary earth, the competent authority is the Secretary to the Municipality. When a statute empowered the Secretary to the Municipality with a situation, the District Geologist cannot usurp that power and refuse to issue Mineral Transit Passes to the petitioner. 10. The counsel for the petitioner further pointed out that there is a condition in orders granting Mineral Transit Passes to the effect that the ordinary earth has to be removed and transported without damaging public road and without causing any hindrance to the general public. The quantity of earth now remaining in the land is likely to flow into the nearby pathway/road causing hindrance to the general public. Therefore, in the interest of general public also, Mineral Transit Passes are liable to be issued. 11. Counsel for the petitioner relied on the judgment of this Court in _**Jose v. State of Kerala**_ [2022 (2) KLT 1163] to contend that the Geologist has no appellate powers over the ``` WP(C) NO.33011 OF 2022 ``` ``` 7 ``` orders issued by the appropriate local authority which has been empowered to consider applications for Building Permits and Development Permits. The counsel also relied on the judgment in W.P.(C) No.36907 of 2018, wherein this Court has held that in view of Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015, no quarrying permit is required for extraction of ordinary earth in connection with the construction of residential buildings having a plinth area of 300 Square Metres and that the competent authority is bound to issue Mineral Transit Passes for removal of ordinary earth exceeding the quantity needed to be extracted, as ascertained by it through a site inspection. 12. The counsel for the petitioner further submitted that the property has been inspected five or six times by the 2[nd] respondent-Geologist and every time, before issuing Passes, the 2[nd] respondent was seeking monetary gratification. On 17.10.2022 also, the 2[nd] respondent along with the Village ``` WP(C) NO.33011 OF 2022 ``` ``` 8 ``` Officer, Surveyor and other officials had conducted a site inspection and made demands to the petitioner. The action of the 2[nd] respondent is therefore _malafide_ , contended the counsel for the petitioner. 13. The petitioner has obtained a Building Permit and Development Permit. She wants to construct building. She has been strictly adhering to the orders issued by the 2[nd] respondent in the matter of transportation of ordinary earth. The petitioner could not remove the entire quantity permitted by the 2[nd] respondent for reasons beyond her control. In the circumstances, the 2[nd] respondent is compellable to issue Mineral Transit Passes to the petitioner to remove the balance quantity of 9156 Metric Tonne of ordinary earth giving sufficient duration for the removal, contended the counsel for the petitioner. 14. Government Pleader entered appearance and resisted the writ petition. The 2[nd] respondent filed a counter ``` WP(C) NO.33011 OF 2022 ``` ``` 9 ``` affidavit. It was stated by the 2[nd] respondent that as against the requirement of removal of 18042 Metric Tonne of ordinary earth, 462 Transit Passes were issued to remove 5000 Metric Tonne of ordinary earth as per Ext.P3. After the expiry of the period of Ext.P3, the petitioner again submitted application. The petitioner was issued with 1166 Transit Passes to remove 14000 Metric Tonne as per Ext.P4. After the expiry of the period of Ext.P4, the petitioner again applied for renewal. As no issues were found in the issued Transit Passes, permit was renewed on 18.07.2022 as per Ext.P5 for the balance quantity of 12000 Metric Tonne, after conducting a site inspection. 15. On expiry of the period of Ext.P5, the petitioner again applied for renewal. By the time, the office of the 2[nd] respondent recieved complaints that the petitioner had excavated earth from outside the permitted area in the Development Permit. Therefore, a Surveyor attached to the Directorate was deputed to conduct a Total Station Survey to ``` WP(C) NO.33011 OF 2022 ``` ``` 10 ``` ascertain whether she has excavated the surrounding land. 16. The Surveyor, after site inspection and survey, submitted a report dated 03.08.2022 stating that from outside the developing area, the petitioner has excavated 4141.14 M[3] of earth illegally. Immediately, Ext.R2(a) Show-cause notice was issued to the petitioner. 17. The petitioner took a stand that Show-cause notice issued is not clear. The petitioner also sought to adjourn the site inspection scheduled on 15.09.2022. At the request of the petitioner, the inspection wad adjourned to 07.10.2022. An inspection was conducted on 07.10.2022. Though the petitioner’s representative attended the Survey proceedings, he refused to sign the Mahazar. The Government Pleader submitted that now the Mahazar has been prepared and proceedings will be taken against the petitioner in the matter of alleged excavation of 4141.14 M[3] of ordinary earth. ``` WP(C) NO.33011 OF 2022 ``` ``` 11 ``` 18. The Government Pleader pointed out that as per the report of the Taluk Surveyor, the petitioner had encroached outside the permitted land and excavated huge quantity of ordinary earth. Therefore, the petitioner is not eligible for renewal of permit as per Rule 14(4) of the Kerala Minor Mineral Concession Rules. The petitioner will be liable to remit 5 times the royalty of the earth illegally excavated, contended the Government Pleader. 19. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 20. The pleadings in the writ petition would show that the petitioner wanted to construct a building in her land and applied for Development Permit. The Development Permit issued required removal of 18042 Metric Tonne of ordinary earth for the purpose of construction of the building. Exts.P3, P4 and P5 orders were passed by the 2[nd] respondent- ``` WP(C) NO.33011 OF 2022 ``` ``` 12 ``` Geologist granting permission to remove different quantities of ordinary earth. 21. The case of the petitioner is that she could not remove the quantity within the period permitted by the 2[nd] respondent for reasons beyond her control. There were time restrictions and quantity restrictions in the matter of transportation. Transportation of ordinary earth was permitted only during certain hours of the day. The incessant rains during the period also hampered transportation of ordinary earth. 22. The petitioner wants to remove 9156 Metric Tonne of ordinary earth, which is still remaining and is within the permissible quantity. But, it has to be noted that after granting Mineral Transit Passes as per Exts.P3, P4 and P5, when the petitioner submitted application for further issuance of Transit Passes, the 2[nd] respondent received complaints and ordered to conduct a survey through a Surveyor attached to the ``` WP(C) NO.33011 OF 2022 ``` ``` 13 ``` Directorate. The Survey Report dated 03.08.2022 revealed that the petitioner has excavated 4141.14 M[3] of earth illegally from outside the developing area. If that be so, the petitioner is liable to be proceeded against for the same under Rule 14(4) of the Kerala Minor Mineral Concession Rules. 23. The counsel for the petitioner would urge that it is exclusively within the domain of the Secretary to the Grama Panchayat to deal with the issue of complaints received from persons regarding excess removal of ordinary earth. The petitioner relied on Rule 6 of the Kerala Municipality Building Rules to urge the point. 24. Rule 10(5) of the Kerala Municipality Building Rules provides that if there is any written complaint received after the date of issue of the permit from owners or occupants in the adjoining properties on the actual or possible damages to their life and property, the Secretary shall act upon as per the provisions of the Kerala Municipality Building Rules. The ``` WP(C) NO.33011 OF 2022 ``` ``` 14 ``` agreement is that in view of Rule 10(5), the Secretary is the competent authority to act on such complaints and the District Geologist has no jurisdiction in the matter. 25. I find that Rule 10(5) of the Kerala Municipality Building Rules enables the Secretary to act on excess removal of ordinary earth when complaints are received from owners or occupants in the adjoining properties on the actual or possible damages to their life and property. In this case, there is no complaint received from the neigbouring property owners, in respect of land from where the petitioner is alleged to have made illegal excavation beyond the permissible limit. Even then, when Mineral Transit Passes are issued by the Geologist on the basis of a Development Permit and if it is found that illegal excavation is done beyond the permissible area, the District Geologist will have the power to act upon and proceed against the applicants for Mineral Transit Passes as per the Kerala Minor Mineral Concession Rules. ``` WP(C) NO.33011 OF 2022 ``` ``` 15 ``` 26. At any rate, in this case, the District Geologist has already issued Ext.R2(a) Show-cause notice to the petitioner. The petitioner has submitted Ext.R2(c) reply also. As penal proceedings are pending against the petitioner as regards alleged illegal excavation of minor mineral, it will be inappropriate for this Court to direct the District Geologist to issue Mineral Transit Pass to the petitioner at this stage, before concluding the pending proceedings. In view of the above, the writ petition is disposed of directing the 2[nd] respondent-Geologist to conclude the proceedings initiated as per Ext.R2(a), within a period of three weeks. After the conclusion of the proceedings, the District Geologist shall consider the application submitted by the petitioner for issuance of Mineral Transit Passes, in accordance with law. The petitioner would submit that the stored ordinary earth in the area is likely to flow into the nearby bylane causing inconvenience to the general public. If ``` WP(C) NO.33011 OF 2022 ``` that be so, the District Geologist will be at liberty to take such interim measures and pass such interim orders for abating nuisance to the general public. If the petitioner makes an application for a copy of the Mahazar to defend the charges against her, the same shall be furnished to the petitioner. sd/- **N.NAGARESH** **JUDGE** hmh ``` WP(C) NO.33011 OF 2022 ``` ``` 17 ``` ## **`APPENDIX OF WP(C) 33011/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` - **`TRUE COPY OF THE BUILDING PERMIT NO ZK2/BA/04/2022 DATED 31/03/2022 ISSUED BY THE SECRETARY, THIRUVANANTHAPURAM CORPORATION.`** ``` Exhibit P2TRUE COPY OF THE CHALLAN RECEIPT DATED 12/05/2022. ``` - **`Exhibit P3 TRUE COPY OF THE ORDER DT 16/06/2022 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P4 TRUE COPY OF THE ORDER DT 28/06/2022 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P5 TRUE COPY OF THE ORDER DT 19/07/2022 ISSUED BY THE 2ND RESPONDENT.`** - **`Exhibit P6 PHOTOGRAPH SHOWING THE EARTH STACKED IN THE PROPERTY OF THE PETITIONER.`** - **`Exhibit P7 TRUE COPY OF ORDER IN SPECIAL LEAVE TO APPEAL (CIVIL) NO 25583 OF 2013 DT 23/08/2013 OF HON'BLE SUPREME COURT.`** - **`Exhibit P8 TRUE COPY OF THE SURVEY SKETCH.`** ## **`RESPONDENT EXHIBITS`** ``` Exhibit R2(a):True copy of the showcause notice No. 1413/DOT/ML/ 2022 dated 20.08.2022 Exhibit R2(b):True copy of the Registered Notice No. 1413/DOT/ML/ 2022 dated 02.09.2022 Exhibit R2(c):True copy of the Reply of Exhibit R2(b) by the petitioner dated 12.09.2022 Exhibit R2(d): True copy of the Registered Notice No. 1413/DOT/ML/ 2022 dated 23.09.2022 ```