K.K. Ibrahim and others v. State of Kerala and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE N.NAGARESH` ``` TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944 ``` ## `WP(C) NO. 24614 OF 2022` ## `PETITIONERS` - `1 K.K. IBRAHIM AGED 67 YEARS S/O.HASSIM HAJEE, KAROTHUKUDY HOUSE, PALLIPPURAM, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.` - `2 AFSAL K.I. AGED 40 YEARS S/O.K.K.IBRAHIM, KAROTHUKUDY HOUSE, PALLIPPURAM, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.` - `3 SHABNA JASMIN AGED 35 YEARS KAROTHUKUDY HOUSE, PALLIPPURAM, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.` ``` 4K.E.ABDUL WAHAB AGED 50 YEARS S/O.K.A.EBRAHEEM, KAROTHUKUZHY HOUSE, KUZHIVELIPADY, EDATHALA P.O., ALUVA, PIN - 683 561. ``` - `5 JASMI WAHAB AGED 45 YEARS W/O.K.E.ABDUL WAHAB, KAROTHUKUZHY HOUSE, KUZHIVELIPADY, EDATHALA P.O., ALUVA, PIN - 683 561.` ``` 6IBRAHEEM MUHAMMED AGED 45 YEARS S/O.LATE K.E.KUNJU MUHAMMED, KAROTHUKUZHY HOUSE, KUZHIVELIPADY, EDATHALA P.O., ALUVA, PIN - 683 561. ``` ``` BY ADV MANOJ P.KUNJACHAN ``` WP(C) No.24614 of 2022 2 ## `RESPONDENTS` - `1 STATE OF KERALA REPRESENTED BY SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.` - `2 DIRECTOR DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM, PALACE P.O., THIRUVANANTHAPURAM, PIN - 695 004.` - `3 GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, COLLECTORATE, KAKKANADU, ERNAKULAM DISTRICT, PIN - 682 030.` ## `OTHER PRESENT:` ``` SMT.DEEPA NARAYANAN SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.24614 of 2022 3 ## **J U D G M E N T** ## **Dated this the 6[th] day of December, 2022** The petitioners are aggrieved by Ext.P6 order issued by the 3[rd] respondent, whereby the petitioners are directed to pay an amount of ₹7,11,104/- towards royalty and compounding fee. 2. The petitioners state that they obtained a Building Permit and a Development Permit and started construction of building in their property. Granite as well as ordinary earth had to be removed for the purpose of construction of the basement of the building. When the petitioners were removing rocks and ordinary earth, they were issued with Ext.P5 Stop Memo of the District Geologist. In Ext.P5, the District Geologist alleged that the petitioners are transporting granite without obtaining any permission. The petitioners were required to show cause why proceedings should not be initiated against them, within a period of seven days. WP(C) No.24614 of 2022 4 3. The petitioners state that subsequently, the District Geologist has issued Ext.P6 demand notice. By Ext.P6 demand notice, the petitioners were required to pay an amount of ₹7,11,104/-. The petitioners state that Ext.P6 has been passed without giving an effective opportunity of hearing to them. The petitioners are not aware as to the quantum of the alleged illegal excavation of granite. No show cause notice was issued to the petitioners. On that ground alone, Ext.P6 demand notice is liable to be set aside in the light of the judgment of this Court in _**Biju K Varghese v. Geologis**_ t [2020 (6) KHC 450] . 4. Senior Government Pleader entered appearance and resisted the writ petition. The Senior Government Pleader pointed out that Ext.P6 was preceded by Ext.P5 Stop Memo. In Ext.P5 Stop Memo, the District Geologist has categorically stated that the petitioners are excavating and removing granite and transporting the same to other places. Ext.R3(a) is a report submitted by the Asistant Geologist, Department of WP(C) No.24614 of 2022 5 Mining and Geology. Ext.R3(a) would clearly indicate the quantum of granite removed by the petitioners. The Government Pleader pointed out that Ext.R3(a) would indicate that a Mahazar was prepared in the presence of the petitioners. Therefore, the petitioners cannot feign ignorance of the quantum of granite illegally removed by them. 5. I have heard the learned counsel for the petitioners and the learned Senior Government Pleader representing the respondents. 6. It is an admitted position that the petitioners have obtained a Building Permit and a Development Permit for the purpose of construction of the building. 7. Ext.P5 is the Stop Memo dated 28.06.2022 issued by the Geologist requiring the petitioners to show cause why action should not be taken against the petitioners for illegal excavation of granite. It is to be noted that Ext.P5 does not disclose as to the quantum of illegal excavation made by the petitioners. Unless the quantum of the alleged illegal excavation is specified, the petitioners cannot give an effective WP(C) No.24614 of 2022 6 reply to such notice. It has been so held in the judgment in _**Biju K Varghese**_ (supra). 8. It is the specific case of the Government Pleader that Ext.P6 was issued based on a report given by the Assistant Geologist as per Ext.R3(a). In Ext.R3(a), the quantum of earth/granite removed has been mentioned. Ext.R3(d) is the Mahazar prepared by the Geologist in the presence of the petitioners. 9. However, I find that as the petitioners are inflicted with a penal provision and are required to pay penalty along with royalty, a proper show cause notice ought to have been issued to the petitioners indicating the quantum of granite allegedly excavated and transported by the petitioners. 10. In view of the above, Exts.P5 and P6 are set aside. It is made clear that this will be without prejudice to the right of the Geologist to proceed against the petitioners issuing a proper demand notice in accordance with law, if the Geologist finds it necessary. It is made clear that the petitioners shall maintain status quo as regards the nature of the property in 7 WP(C) No.24614 of 2022 the meanwhile. The writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** smm WP(C) No.24614 of 2022 8 ## `APPENDIX OF WP(C) 24614/2022` ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY ARAKKAPPADY VILLAGE DATED 10/08/2021.` - `Exhibit P2 TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT ALONG WITH APPROVED PLAN ISSUED BY VENGOLA GRAMA PANCHAYATH DATED 15/06/2020.` - `Exhibit P3 TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE SECRETARY, VENGOLA GRAMA PANCHAYATH DATED 10/06/2020.` - `Exhibit P4 TRUE COPY OF THE CHALAN SHOWING THE REMITTANCE OF ROYALTY, PRICE AND FINE DATED 17/11/2021.` - `Exhibit P5 TRUE COPY OF THE STOP MEMO ISSUED BY THE RESPONDENT DATED 28/06/2022.` - `Exhibit P6 TRUE COPY OF THE DEMAND NOTICE ISSUED THROUGH E MAIL 18/07/2022.` - `Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 04/10/2021 IN WP(C) 11428/2021.` - `Exhibit P8 TRUE COPY OF THE TAX RECEIPT ISSUED BY ARAKKAPPADY VILLAGE DATED 10/08/2021.` - `RESPONDENT EXHIBITS Exhibit R3(b) True copy of the stop notice issued by the Vengola Grama Panchayath` - `Exhibit R3(c) True copy of the photographs of the site` - `Exhibit R3(d) A true copy of the Site Mahazar Exhibit R3(a) True copy of the submission of the Assistant Geologist`