Oseela Beevi v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** ## **WP(C).No.5098 OF 2020(J)** ## **PETITIONER:** **OSEELA BEEVI AGED 56 YEARS W/O.SHERAFUDEEN, THACHANKAZHIKKATH, MYLAPORE, UMAYANALLOOR, INDUSTRIAL ESTATE P.O., KOLLAM-691 589.** **BY ADV. SRI.R.KISHORE (KALLUMTHAZHAM)** ## **RESPONDENTS:** - **1 STATE OF KERALA TO BE REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, SECRETARIAT, TRIVANDRUM-695 001.** - **2 STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY(SEIAA), REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, K.S.R.T.C. BUS TERMINAL COMPLEX, 4TH FLOOR, THAMPANOOR, THIRUVANANTHAPURAM-695 001.** - **3 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, KESAVANIKETHAN ASRAMOM, KOLLAM-691 002.** - **4 SECRETARY, POOYAPALLY GRAMA PANCHAYATH, POOYAPALLY-691 537.** - **BY ADVS.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1 AND R3 , SRI.M.P.SREEKRIAHNAN SC FOR R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.5098 OF 2020(J) 2 ## **ALEXANDER THOMAS, J.** ## **=========================== W.P(C) No.5098 of 2020** **===========================** Dated this the 24[th] day of February, 2020 ## **JUDGMENT** The case set up in the Writ Petition (C) is as follows:- The petitioner has submitted an Application for removal Red Earth for the construction of her residential building with a total plinth are of 277.71 meter square (Ground Floor) before the 3[rd] respondent Revenue Divisional officer. 2. The Property of the petitioner in survey numbered as 5- 26/9-1, 26/9-2, 26/9-3 of pooyappally comprises 38 ares of land. The Petitioner was directed to procure environmental Clearance for granting permit for Quarrying. The Petitioner obtained Environmental Clearance with a sanction to remove 6600 Meter cube of earth within period 6 months (ExtP2). The Petitioner after obtaining clearance from Environmental Authority approached the 3[rd] respondent for Transit Pass by application (Ext.P1). The 3[rd] respondent insisted for some requirements which are submitted in Original. The Petitioner was not given the transit pass by the 3[rd] respondent and hence the Petitioner approached this Court in WP(C) 650/2020. The Petitioner had WP(C).No.5098 OF 2020(J) 3 preferred an Appeal before the Division Bench against the order of the Single Bench with an additional document which is produced in this Ext.P5. The Division Bench had observed that petitioner can avail appropriate remedial measures. The Petitioner hence filed this Petition challenging Exhibit:P5 issued by the 3rd respondent with following prayers: - _“i. Issue a Writ of Mandamus or any appropriate writ, order or direction to 3[rd] respondent to consider the representation submitted by the petitioner as Exhibit :P6 within a time frame issued by this Hon'ble Court._ _ii. Issue a Writ of Mandamus or any appropriate writ, order direction to 3rd respondent to provide transit pass with reasonable time to remove the red earth by the petitioner as per law. iii. Issue a Writ of Mandamus or any appropriate writ, order or direction setting aside the notice issued by the 3[rd] respondent produced as Exhibit: P5._ _iv. Any other relief this Hon'ble Court may deem fit. v. Grant Cost of the Writ petition.”_ 3. Heard Sri.Kishore R Kallumthazham learned counsel for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader for R1 & R3 and , Sri.M.P. Sreekrishnan, learned standing counsel for the Kerala State Environmental Impact Assessment Authority (SEIAA) appearing for the 2[nd] respondent. In the nature of the orders proposed to be passed, notice to R4 (Pooyapally Grama Panchayat) will stand dispensed with. 4. It is pointed out by the petitioner that Ext.P1 building WP(C).No.5098 OF 2020(J) 4 permit has been issued in favour of the petitioner by the 4[th] respondent Pooyapally Grama Panchayath, wherein it is clearly shown that a total built-up area covered by the said building permit is 342.16 m[2] . Though environmental clearance in a matter like this is not mandatory, the petitioner has also obtained environmental clearance as per Ext.P2 proceedings dated 26.09.2019, which is valid up to 26.06.2019 issued by the 2[nd] respondent – Kerala State Environmental Impact Assessment Authority. Therefore, the impugned order passed by the 3[rd] respondent Geologist as per Ext.P5 order declining to grant permission to the petitioner is illegal and improper. It is pointed out that for the above said construction purpose pursuant to Ext.P1 building permit, no quarrying permit is required for removal of the sand, going by the provisions under Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015. It is also contended by the petitioner that quarrying permit is not required, going by the provisions contained in Kerala Minor Mineral Concession Rules, 2015 for excavating earth for undertaking the construction covered by Ext.P1 building permit, etc. 5. Per contra, Sri.Saigi Jacob Palatty, learned Senior Government Pleader would invite this Court's attention to the provisions contained in Rule 14(2) of the Kerala Minor Mineral WP(C).No.5098 OF 2020(J) 5 ## Concession Rules, 2015 which, reads as follows: _“14. Quarrying Permit for Ordinary earth. - (1) ********_ _(2) Notwithstanding anything contained in sub-rule (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 square metres if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned:_ _Provided that in cases where transportation of ordinary earth is required, the owner shall pay royalty for the quantity to be transported and shall obtain mineral transit passes under the Kerala State Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 from the competent authority:_ _Provide further that the competent authority shall not issue mineral transit passes for removal of ordinary earth exceeding the quantity needed to be extracted, as ascertained by it through a site inspection.”_ The learned Government Pleader would point out that even a mere perusal of Ext.P1 building permit, more particularly given on internal page 3 thereof [see page No.12 of the paper book of the W.P.(c)] would show that the total built-up area for the 1[st] floor is 277.71 m2 and that for the 2[nd] floor is 64.45 m2 and that therefore, the total plinth area for the aforesaid construction covered by Ext.P1 building permit would come to 342.16 m2, which is much above the threshold minimum requirement of 300 m2 stipulated in Rule 14(2) of Kerala Minor Mineral Concession Rules, 2015 and therefore, quarrying permit is mandatory even for excavation of the earth even for undertaking the building construction pursuant to Ext.P1 building permit. Further the learned senior Government Pleader would point out that various other WP(C).No.5098 OF 2020(J) 6 deficiencies have already been pointed out by the 3[rd] respondent District Geologist in Ext.P5 memo dated 23.01.2020, which reads as ## follows:- " നന. 3269/ഡഡഒകക/എസസ2/2017 ജജിയയയോളജജിസസ കകയോലസലല. ശസരരീമതജി ഒസരീല ബരീവജി, തച്ചൻറഴജികതസ, മമലയോപപ്പൂരസ, ഉമയനലസലപ്പൂർ, ഇൻഡസസരജിയൽ എയസറസ പജി ഒ., കകയോലസലല. സർ, വജിഷയല: മമനർ മജിനറൽ - കചെററുകജിട ധയോതറു - സയോധയോരണ മണസ - കസവയോറജിയജിലഗസ കപർമജിറസ അയപക്ഷ - അളവസ - സലബനജിച്ചസ സപ്പൂചെന: **1. 2015** കല യകരള മമനർ മജിനറൽ കൺസഷൻ ചെട്ടങ്ങൾ **2.** യകരള മജിനറൽസസ (പസരജിവൻഷൻ ഓഫസ ഇലസലരീഗൽ മമനജിങസ, യസയോയറജസ **&** ടസരയോൻസസയപയോർയട്ടഷൻ) ചെട്ടങ്ങൾ **2015. 3.** തയോങ്കളറുകട **14.10.2019** തരീയതജിയജികല അയപക്ഷ. യമൽ സപ്പൂചെനകൾ ശസരദജികറുക. കകയോട്ടയോരകര തയോലപ്പൂകജിൽ പപ്പൂയപളജി വജിലസയലജജിൽ സ.നല.26/9-1, 26/9-2, 26/9-3 ൽ കപട്ട **0.3800** കഹെക്ടർ സ്ഥലതറുനജിനറുല സയോധയോരണ മണസ ഖനനല കചെയസയറുനതജിനറുള കസവയോറജിയജിലഗസ കപർമജിറജിനയോയജി തയോങ്കൾ സമർപജിച്ച അയപക്ഷയറുകട അടജിസ്ഥയോനതജിൽ ഈ ആഫരീസജിൽ നജിനറുല **7.1.2020** തരീയതജിയജിൽ നടതജിയ സ്ഥലപരജിയശയോധനയജിൽ കസവയോറജിയജിലഗസ കപർമജിറജികന അടജിസ്ഥയോനതജിൽ മണസ എടറുയകണ സ്ഥലല പജിലസലർ/കമജിയവലജി കകട്ടജി യവർതജിരജിച്ചജിട്ടജിലസല. പയോരജിസ്ഥജിതജികയോനറുമതജിയജിൽ നരീകല കചെയസയയണ മണജികന അളവസ 6650 കക.മരീറർ എനസ യരഖകപടറുതജിയജിരജികറുനറു. ടജി അളവസ എങ്ങകന നജിർണയജിച്ചറുകവനസ സ്ഥലപരജിയശയോധനയജിൽ വസയകസതമയോകറുനജിലസല. ആയതജിനയോൽ മണസ ഖനനല കചെയസയയണ സ്ഥലല പജിലസലർ/കമജിയവലജി കകട്ടജി യവർതജിരജിയകണതറുല ടജി സ്ഥലതറു നജിനറുല നരീകല കചെയസയയണ മണജികന അളവസ സലബനജിച്ചസ വസയകസതത വരറുയതണതറുമയോണസ. വജിശസവസ് യയയോകട, ജജിയയയോളജജിസസ" WP(C).No.5098 OF 2020(J) 7 6. The learned counsel for the petitioner has raised a new contention that the ground floor area alone will be taken into consideration for applicability of Rule 14(2) of Kerala Minor Mineral Concession Rules, 2015 and that in the instant case the built-up area for the ground floor area is only 277.71 m2, which is below the minimum threshold of 350 m2 covered by Rule 14(2) and therefore quarrying permit is not mandatory, etc. 7. After hearing both sides, it is ordered that it is for the petitioner to immediately clear all the defects mentioned in Ext.P5 and may submit application for grant of quarrying permit for removal of the ordinary earth for undertaking the construction covered by Ext.P1 building permit, if that is actually mandatory. In case the petitioner has not so far filed the application for getting quarrying permit, such application may be submitted by the petitioner before the 3[rd] respondent District Geologist without much delay and thereupon the 3[rd] respondent District Geologist will conduct appropriate inspection of the site with due prior notice to the petitioner and a copy of the inspection report should also be given to the petitioner and thereafter the 3[rd] respondent will consider the request of the petitioner and take a considered decision thereon without much delay, preferably within a WP(C).No.5098 OF 2020(J) 8 period of one month, etc. The issue as to whether the quarrying permit is mandatory going by the provisions contained in Rule 14(2) of the Rules, in the facts and circumstances of the case is left open. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** **SCS** WP(C).No.5098 OF 2020(J) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 14.10.2019.** **EXHIBIT P1 A** **THE TRUE COPY OF THE PERMIT ISSUED BY THE 4TH RESPONDENT PANCHAYATH DATED 26.05.2018.** **EXHIBIT P2** **THE TRUE COPY OF THE PROCEEDINGS OF THE ADMINISTRATOR STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY DATED 26.09.2019.** **EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC 650/2020 DATED 16.01.2020.** **EXHIBIT P4** **THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NUMBERED AS 274/2020 DATED 14TH FEBRUARY 2020.** **EXHIBIT P5** **THE TRUE COPY OF THE NOTICE DATED 23.01.2020 SERVED TO THE PETITIONER BY THE 3RD RESPONDENT.** **EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 19.02.2020.** **//TRUE COPY// PA TO JUDGE**