Christy Jacob Paul v. The Geologist, District Office, Mining and Geology Department, Kalamassery Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **WP(C).No.15774 OF 2019(V)** ## **PETITIONER:** **CHRISTY JACOB PAUL AGED 67 YEARS S/O. LATE PAUL JACOB KONTHURUTHY, HOUSE NO.XXV/137, KONTHURUTHY HOUSE, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033.** **BY ADVS. SRI.JOLLY JOHN SMT.NEVIS CASSANDRA L CAXTON LORETTA** ## **RESPONDENTS:** |**1**|**THE GEOLOGIST, DISTRICT OFFICE,**| |---|---| ||**MINING AND GEOLOGY DEPARTMENT,**| ||**CIVIL STATION KAKKANAD, KOCHI 682 030**| |**2**|**KALAMASSERY MUNICIPALITY**| ||**CHANGAMPUZHA NAGAR P.O.,**| ||**BPO KALAMASSERI, ERNAKULAM, KERALA 682 033**| ||**REPRESENTED BY ITS SECRETARY.**| **SRI.HARISH K.P-SENIOR GOVERNMENT PLEADER SRI M.K.ABOOBACKER - STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.15774/2019 2 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession and title of 10.10 Ares of property in Block No.5, R.S.No.511/9 of Thrikkakara North Village in Kanayannur Taluk, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondent No.2 to dispose of the application accompanying Exhibit-P8 for issuance of permit and transit pass under Kerala Minor Mineral Concession Rules, 2015 to take the materials excavated under Exhibit-P2 development permit; and a writ of mandamus commanding respondent No.2 to issue permit and transit pass under the Kerala Minor Mineral Concession Rules, 2015 to the petitioner to take the materials excavated under Exhibit-P2 development permit based on remittance of royalty as per Exhibit-P9. 2. On 11.02.2016, when this writ petition came up for admission, learned Government Pleader was directed to get instructions. 3. A statement dated 29.06.2019 has been filed by the first respondent opposing the relief sought for in this Writ Petition, which is followed by an additional statement filed on W.P.(C) No.15774/2019 3 ## 20.07.2019. Paragraphs 3 to 7 of the statement dated 29.06.2019 read as follows; “3. It is humbly submitted that an application for excavation of ordinary earth as a part of the construction of residential building in 10.1 Ares of land in Sy. No.511/9 owned by petitioner Shri.Christy Paul, S/o.Paul, Konthuruthy, Kalamassery was submitted on 12.2.2018 as per the provision of Rule 14(2) of Kerala Minor Mineral Concession Rules, 2015. The document submitted along with the application includes building permit No.TP1BA(31672)/2017 dated 30.6.2017, development permit No.BA/464/17(BA-323/16) dated 10.4.2018, approved building plan & development plan issued by the Kalamassery Municipality, possession certificate, location sketch and demarcation certificate issued by the Village Officer, Thrikkakara North Village and affidavit to be submitted as per Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 & Kerala Minor Mineral Concession (Amendment) Rules, 2017. 4. As per the request made by the petitioner the site was inspected on 01.01.2019 from the office of this respondent and found that the ordinary earth has already been excavated and stocked at the site and in addition some quantity is found transported from the said land. It is humbly submitted that as per he provision in the aforesaid Rule petitioner can excavate the ordinary earth from the site based on the building and development permit issued by the concerned authority. If at all it has to be transported out of the site royalty has to be W.P.(C) No.15774/2019 4 remitted as per Rules. In the aforesaid application the ordinary earth was found already excavated and transported without obtaining prior permission from the authorities concerned and hence this respondent has taken action against the same as per Rule 108 of Kerala Minor Mineral Concession Rules, 2015 on realizing the royalty, price and fine. Hence Rs.2,28,020/- for 1691m[3] of ordinary earth as per Rule. 5. It is submitted that before the submission of the aforesaid request for transportation of ordinary earth by the petitioner, a complaint regarding the construction activities of the said site was put forward by Sri.Thomas Joseph P.F., 25/136, Changapuzha Nagar, Kalamassery. On the basis of the said complaint the site was inspected on 9.4.2018 and letter has been sent to the Secretary, Kalamassery Municipality informing that there are numerous residential building nearby and the area has soft soil at depth, hence detailed inspection of the Engineer of PWD building section/Engineer LSGD need to be undertaken prior to the grant of development permit for excavation. In the meantime, writ petition No.11326/2019 was filed by Sri.Thomas Jose and another before this Hon'ble Court against the construction activities of said area. As per the direction of this Hon'ble Court the site was inspected on 26.04.2019 and found that the ordinary earth is stocked in the said land. The land is sloping towards the north and the complainant residential building is at south west portion of the land at a distance of approximately 2 meters. The soil is soft laterite and it has to be removed at a depth ranging from W.P.(C) No.15774/2019 5 1.20 meters to 4.20 meters and the maximum depth of excavation is in the area near to the complainant residential building. It is submitted that counter affidavit has been filed before this Hon'ble Court in Writ Petition No.11326/2019. This Hon'ble Court vide order dated 17.04.2019 in said **writ petition directed the 2[nd] respondent to ensure that the 4[th] respondent is carrying construction of the building in accordance with the Kerala Municipality Building Rules 1994, the 4[th] respondent also shall ensure that no destruction is caused to my neighbourhood building** . In compliance with the order of the Hon'ble Court letter has been sent for report from the 2[nd] respondent. The 2[nd] respondent vide letter No.T.P 1- 10210/19 dated 29.05.2019 has informed that construction work is conducted in the permitted areas as in building permit No.B1.A 323/16 issued by the Kalamassery Municipality. The request for transportation of the ordinary earth is kept pending for consideration for the order/judgment of the Hon'ble Court regarding the same. 6. The averments are regarding the grant of development permit by the 2[nd] respondent. 7. It is humbly submitted that an application for excavation of ordinary earth as a part of the construction of residential building in 10.1. Ares of land in Sy. No.511/9 owned by petitioner Shri.Christy Paul, S/o.Paul, Konthuruthy, Kalamassery was submitted on 12.12.2018 as per the provision of Rule 14(2) of Kerala Minor Mineral Concession Rules, 2015. It was found that as per the W.P.(C) No.15774/2019 6 approved development sketch the area of development is 803.52 m[2 ] and volume of ordinary earth to be excavated is 1691.63 m[3.] The site was inspected on 9.4.2018 and found that the ordinary earth was excavated and stocked at the site. In the aforesaid application the ordinary earth was found already excavated and some portion is transported without obtaining prior permission from the authorities concerned and hence this respondent has taken action against the same as per Rule 108 of Kerala Minor Mineral Concession Rules, 2015 on realizing the royalty, price and fine. Hence Rs.2,28,020/- for 1691 m[3] of ordinary earth has been realized from the petitioner as per Rule. Since the writ petition No.11326/2019 is filed against the construction activities of the building and the same is pending before the Hon'ble Court and the petitioner has illicitly excavated ordinary earth without prior permission from this office the permit for transportation of the ordinary earth was not granted by this respondent. It is humbly submitted that the request will be considered subject to the result of the above WPC.” 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the first respondent and also the learned Standing Counsel for the second respondent Municipality. 5. During the course of arguments, the learned counsel for the petitioner would confine the reliefs sought for W.P.(C) No.15774/2019 7 in this Writ Petition as one for consideration of the application for excavation of ordinary earth, referred to in paragraph 3 of the statement filed by the first respondent dated 29.06.2019, and also the request for transportation of ordinary earth, which are pending consideration. 6. In **Sirajuddin v. District Collector [2017(1) KLT 756],** a Division bench of this Court held that a plain reading of sub-section (5) of Section 21 makes it explicitly clear that the question of payment of the price of the mineral illegally extracted arises only when the mineral so extracted has already been disposed of and as such, not available for recovery and not in a case, in which, such mineral, after transformation as bricks under the process of mere mixing and baking is available for recovery. Para.33 of the said decision reads thus; “33. As we have already noticed, sub-section (5) of Section 21 of the MMDR Act empowers the State to recover from any person, who raises without any lawful authority any mineral, the mineral so raised or where such mineral has already been disposed of, the price thereof. In the case on hand, the mineral, namely, the ordinary clay, is used for the manufacture of bricks, which is essentially a process by which, ordinary clay is mixed and cut into different shapes and then baked. A plain reading of sub-section (5) of W.P.(C) No.15774/2019 8 Section 21 makes it explicitly clear that the question of payment of the price of the mineral illegally extracted arises only when the mineral so extracted has already been disposed of and as such, not available for recovery and not in a case, in which, such mineral, after transformation as bricks under the process of mere mixing and baking is available for recovery. The decision of the Apex Court in **Punjab Aromatics** v. **State of Kerala [2008 (2) KLT 673 (SC) : (2008) 11 SCC 482 ]** relied on by the appellants in the context of 'test of irreversibility' which is a criterion to ascertain as to when a given process amounts to manufacture. The question that was dealt with in the said decision is whether the process of conversion of 'red oil' into 'sandalwood oil' by removing water content and other impurities would attract levy of purchase tax under Section 5A of the Kerala General Sales Tax Act, 1963. The said decision on an entirely different factual matrix, rendered in the context of levy of purchase tax under Section 5A of the KGST Act in no way supports the arguments advanced by the appellants in these appeals, with reference to sub-section (5) of Section 21 of the MMDR Act. Therefore, the learned single Judge rightly rejected the contention of the appellants that the bricks manufactured using the illegally extracted ordinary clay is not liable for seizure or recovery in terms of sub-section (5) of Section 21 of the MMDR Act.” 7. Having considered the submissions made by the learned counsel on both sides, this Court finds that since the applications referred to hereinbefore are admittedly pending consideration before the first respondent and the petitioner W.P.(C) No.15774/2019 9 has already remitted an amount of Rs.2,28,020/- towards royalty for 1691 m[3] of ordinary earth, those applications can be directed to be considered by the first respondent, strictly in accordance with law, taking note of the statutory provisions and also the law laid down by this Court in the decision referred to supra. In such circumstances, this Writ Petition is disposed of by directing the first respondent to consider and pass appropriate orders on the application made by the petitioner for excavation of ordinary earth and the request for transportation referred to in the statement filed by the first respondent dated 29.06.2019 and take appropriate decision, strictly in accordance with law, taking note of the statutory provisions and also the law laid down by this Court in Sirajuddin's case (supra), with notice to the petitioner and after affording him an opportunity of being heard. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** csl W.P.(C) No.15774/2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE BUILDING PERMIT NO. TP1-BA(31672)/2017 DATED 30/6/2017 ISSUED BY RESPONDENT NO.2 TO THE PETITIONER TO CONSTRUCT A RESIDENTIAL COMPLEX.** **EXHIBIT P2 THE TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P3 A TRUE COPY OF THE REPORT DATED 20/7/2018 SUBMITTED BY THE EXPERT COMMITTEE APPOINTED BY THE 2ND RESPONDENT** - **EXHIBIT P4 THE SOIL TEST REPORT OF THE WORK SITE DATED 10.12.2016 BY JOE-TECH PILE FOUNDATIONS.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 24TH JANUARY 2019 IN CONTEMPT COC.NO. 102/2019** - **EXHIBIT P6 THE ADDITIONAL CLARIFICATIONS GIVEN BY THE EXPERT COMMITTEE SUBSEQUENT TO EXT. P-3 VIDE ITS LETTER DATED 9/4/2019** - **EXHIBIT P7 THE TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT DATED 17TH APRIL 2019 IN WPC NO.11326/2019** - **EXHIBIT P8 THE TRUE COPY OF THE CHALLAN DATED 7/12/2018 FOR AN AMOUNT OF RUPEES 1000 SUBMITTING ALONG WITH THE APPLICATION MADE BY THE PETITIONER TO THE 1ST RESPONDENT FOR REMOVAL OF ORDINARY EARTH** - **EXHIBIT P9 THE TRUE COPY OF THE CHALLAN DATED 18/1/2019 TOWARDS REMITTANCE OF AND THE TRUE COPY OF THE CHALLAN REMITTING THE ROYALTY FOR 1691 M3 OF ORDINARY EARTH AMOUNTING TO RUPEES 2,28,020 TOWARDS THE EARTH TO BE EXCAVATED AND REMOVED FROM THE PROPERTY.**