RAFEEQ V.M. v. District Geologist Office of the District Geologist, Mini Civil Station, Chembukkavu, Thrissur; Village Officer Killanur Village; Mulankunnathukavu Grama Panchayat represented by its Secretary; Secretary Mulankunnathukavu Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 WP(C) NO. 18902 OF 2023** ## **PETITIONER:** **RAFEEQ V.M. AGED 54 YEARS S/O MOIDEEN KUTTY, AGED 54 YEARS, VALIYAKATH HOUSE, 4/158, THOYAKKAVU P.O., VENKIDANGU, THRISSUR DISTRICT, PIN - 680513 BY ADV BINOY VASUDEVAN** ## **RESPONDENTS:** `` - **1 THE DISTRICT GEOLOGIST OFFICE OF THE DISTRICT GEOLOGIST, MINI CIVIL STATION, CHEMBUKKAVU, THRISSUR,, PIN - 680020** - **2 THE VILLAGE OFFICER KILLANUR VILLAGE, MULAMKUNNATHUKAVU P.O., THRISSUR DISTRICT., PIN - 680581** - **3 MULANKUNNATHUKAVU GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MULAMKUNNATHUKAVU P.O., THRISSUR DISTRICT, PIN - 680581** - **4 THE SECRETARY MULAMKUNNATHUKAVU GRAMA PANCHAYAT, MULAMKUNNATHUKAVU P.O., THRISSUR DISTRICT,, PIN - 680581 BY ADV SHEEJO CHACKO BY GP – SRI. AJITH VISWANATHAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** : 2 : W.P.(C). No.18902 of 2023 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.18902 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of March, 2024 ## **JUDGMENT** The above writ petition is filed seeking the following reliefs: i. Issue a Writ of Certiorari or other appropriate Writs, orders or directions to call for the records leading up to Exhibit P- 11 and to quash the same. ii. Issue a Writ of Mandumus or other appropriate Orders or Directions commanding the 1[st] respondent to grant permission to the petitioner to remove rocks from the property covered by Exhibit P1 document Invoking the power under Rule 106 of the Kerala Minor Mineral Concession Rules, 2015 as expeditiously possible at any rate within a time frame to be fixed by this Hon'ble Court in the Interest of justice. iii. To dispense with the production of English Translation of Malayalam Exhibits produced along with the Writ Petition in the interest of justice; W.P.(C). No.18902 of 2023 : 3 : iv. Render such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the absolute owner in possession of 0.0190 hectares (4.69 cents) of dry land obtained as per Ext.P1 document. After the purchase mutation was effected and tax was paid as evident from Ext.P2 and Ext.P3 possession certificate was also issued. The petitioner with a desire to construct a residential house submitted Ext.P4 application before the local authority which was declined as per Ext.P5 stating certain technical defects and also stating that the property is an assigned land and therefore permission has to be obtained from the 1[st] respondent. The petitioner submits that the most important defect noted by the technical committee of the local authority is that the property has rocks and without removal of the same, building cannot be constructed. Thereupon invoking Rule 106 of the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as KMMC Rules 2015), the petitioner submitted Ext.P7 application. Thereafter the petitioner approached this Court filing W.P.(C) No. 7613 of 2023 which was disposed of as per Ext.P9 wherein this Court directed the 4[th] respondent local authority to take up the W.P.(C). No.18902 of 2023 : 4 : application submitted by the petitioner for building permit, consider and issue the same showing the inevitability of the removal of the minor mineral and the quantity of minor mineral to be removed in the building permit. In compliance with the same Ext.P10 building permit was issued. The local authority has already sent communication to the 1[st] respondent intimating about the removal of rocks but the application has been rejected by the 1[st] respondent as per Ext.P11 stating that the land is an assigned land and quarrying of granite cannot be permitted in view of the judgment in _**Raphy John v. Land Revenue Commissioner, 2022 (3) KLT 679.**_ This Court as per interim order dated 30.09.2023 directed the 4[th] respondent to issue separate proceedings in respect of the quantity of minor minerals to be removed for the purpose of construction of the building and thereafter the local authority has issued Ext.P14 communication informing the quantity of minor mineral to be removed for the purpose of construction of the building. 3. A counter affidavit has been filed by the 1[st] respondent reiterating the stand taken in Ext.P11 stating that the land is an assigned land and quarrying of granite cannot be permitted. : 5 : W.P.(C). No.18902 of 2023 4. Admittedly, the land in ownership and possession of the petitioner is 4.69 cents of land and Ext.P10 building permit has been issued by the local authority. By Ext.P14 the local authority has issued a certificate to the effect that 469.73 m3 quantity of granite is to be removed for construction of the residential building. Ext.P6 is the patta issued in favour of the petitioner under Rule 9(2) of the Land Assignment Rules, 1964 (hereinafter referred to as Rules, 1964). Rule 9(2) mandates that in cases where registry is made, patta shall be issued in the form in Appendix II of the Rules, 1964. Appendix II deals with the form of patta and Clause 8 of the conditions of patta in the specimen form attached to the Rules, 1964 mandates that the assignee or any member of his family or successor in interest shall reside in / cultivate the land, which also would show that construction of a residential building in the assigned land is not an activity prohibited, though all those conditions in the prescribed form were not seen imposed in Ext.P6 patta. Ext P6 patta is also issued in Appendix II as provided in Rule 9(2) of the Rules 1964. What has been requested by the petitioner is for permission under Rule 106 of KMMC Rules 2015 which mandates that in any case or class of cases such as the construction of common facility or residential building where extraction of minor W.P.(C). No.18902 of 2023 : 6 : minerals is inevitable as a part of work, the person doing such work may be exempted from obtaining quarrying permit/lease under these Rules. The relevant portion of Rule 106 of KMMC Rules 2015 with the proviso reads as follows: _“106. Extraction of minerals for special purposes.-_ _(1) In any case or class of cases such as construction of common facilities or residential building where extraction of minor mineral is inevitable as a part of the work, the person doing such work may be exempted from obtaining quarrying permit/lease under these rules:_ _Provided that before extraction of minor minerals, the person concerned shall intimate the competent authority his intention to carry out the works to be performed and shall furnish necessary documents as required by the competent authority in this regard. If the extracted mineral is to be transported outside the worksite, the competent authority may issue special mineral transit passes after collecting the royalty._ _Explanation:- For the purpose of this rule, “common facility” includes waiting sheds, public wells, public libraries and reading rooms, temples, churches, mosques used for public purpose_ _(2) Quarrying of minor minerals from Government owned lands including porambokes, by Gramapanchayats, Municipalities and Corporations for bona fide public purposes, as long as the work is done_ : 7 : W.P.(C). No.18902 of 2023 _under their direct supervision shall be exempted from the obligation of obtaining a quarrying permit or quarrying lease. But they shall pay royalty for all minor minerals extracted by them at the rates prescribed in Schedule I. The royalty shall be paid to the credit of the Department of Mining and Geology before the 10th day of succeeding month to which the royalty relates. If the extracted mineral is to be transported out of the work site, the competent authority shall issue mineral transit passes after collecting the royalty on an application made by the Local Self Government Institutions._ _(3) Where in the construction of public works like roads, canals, irrigation projects, railways, as a part of the work, if extraction of minor mineral is inevitable, the department/authority may do so without obtaining quarrying permit under these rules. If the extracted mineral is to be transported out of the work site, competent authority shall issue mineral transit passes on an application made by the authority concerned, after collecting the royalty:_ _(4) Before quarrying minor minerals under sub-rule (2) Grama panchayats, Municipalities and Corporations concerned shall intimate the competent authority of their intention to conduct quarrying from any locality. In the case of Poramboke lands and forest land, the written permission of the District Collector and the Conservator of Forests respectively shall be produced._ _(5) Nothing in these rules shall apply to the extraction_ : 8 : W.P.(C). No.18902 of 2023 _of ordinary clay up to a quantity of 50 tonnes by traditional artisans making earthern pots or Cooperative Societies of such artisans for making pots by traditional means in a calendar year:_ _Provided further that in cases where traditional artisans making earthern pots or Cooperative Societies of such artisans produce identity cards issued by the General Manager of the District Industries Centre of the State or such other authorities so as to prove their identity in this respect, the competent authority under these rules may issue special transit passes for the transportation of 50 tonnes of ordinary clay every year without payment of any royalty or fee by them.”_ The Division Bench in _**Raphy John**_ ’s case cited supra was dealing with quarrying operations in an assigned land and held that if the land is an assigned land for agricultural operation etc., it cannot be granted with a quarrying lease. In the present case what is requested is for removal of minerals for the purpose of undertaking the construction of a residential building in 4.69 cents of land for which Ext.P10 building permit was issued by the local authority and the necessity and the quantity to be removed was certified by the local authority as per Ext.P14 certificate. Going by Rule 106 of the KMMC Rules 2015 when extraction of minor minerals is W.P.(C). No.18902 of 2023 : 9 : inevitable for construction of a residential building, the person doing such work is exempted from obtaining quarrying permit/lease under these Rules. In view of the fact that no quarrying permit/lease is required for the work undertaken by the petitioner, I am of the view that the rejection as per Ext.P11 relying on _**Raphy John**_ ’s case cited supra is unsustainable. This Court in W.P.(C) No.4782 of 2022 was dealing with an identical situation and the Court held in paragraphs 3 and 4 of the judgment as follows: “3 _. It is evident from Exts.P9 to P12 that the construction of residential buildings is not prohibited in the assigned land. There is also no contention for the respondents that the land is not alienable. It is also not disputed that use for residential purposes will not be a violation of the conditions of the assignment. The development permit is ancillary to the building permit and the removal of the ordinary earth is only for the purpose of effecting the construction. As such, the reasons stated in Ext.P8 are not legally sustainable. The Senior Government Pleader pointed out condition No.8 in Exts.P9 to P12 and submitted that there is a requirement that the assignee or any member of his family and successor-in-interest shall reside in/cultivate the land and that such residence/cultivation shall commence within the_ : 10 : W.P.(C). No.18902 of 2023 _period of one year from the date of receipt of the patta. I do not think condition No.8 can have any bearing on the facts of this case. The patta was issued as early as 23.5.1980 and there is no case for the respondent that there has been a violation of any of the conditions of the patta from 1980, till the date of transfer of the property to the petitioner. It is also evident that the petitioner only seeks to use the land for residential purposes, which is an activity permitted as per the assignment. It is also evident that whoever resides in the property will be a successor-in-interest, since alienation is permitted._ _4. In the result, the writ petition is allowed. Ext.P8 is quashed. The 1st respondent is directed to consider the application submitted by the petitioner for transit passes and grant the same if the petitioner is otherwise entitled. It is made clear that this judgment will not in any manner affect the reservations available to the Government as per the Land Assignment Rules.”_ In W.P.(C) No.16226 of 2022 also relief was granted by this court in a similar circumstance. 5. In view of the above, the above writ petition is disposed of as follows: - 1.Ext.P11 is set aside. - 2.The 1[st] respondent shall reconsider the application dated - 01.11.2022 submitted by the petitioner in the light of Ext.P10 W.P.(C). No.18902 of 2023 : 11 : building permit and Ext.P14 order dated 21.10.2023 issued by the 4[th] respondent, whereby the quantity of minor mineral to be removed has been certified, in accordance with law and grant transit pass to the petitioner within a period of 1 month, if the petitioner is otherwise eligible. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.18902 of 2023 : 12 : ## **APPENDIX OF WP(C) 18902/2023** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF DOCUMENT NO. 1280/20 OF S.R.O.THRISSUR DATED 17-08-2020 Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 05-05-2022 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25-10-2022 ISSUED BY THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER THROUGH ON-LINE BEFORE THE PANCHAYAT ON 30-11-2021 Exhibit P5 TRUE COPY OF LETTER NO.A3-5268/2021 DATED 05-02-2022 ALONG WITH THE TECHNICAL REPORT Exhibit P6 TRUE COPY OF THE PATTA BEARING NO.LA(P) 735/74/KLNR DATED 23.10.74 ISSUED BY THE SPECIAL TAHSILDAR LAND ASSIGNMENT, THRISSUR IN FAVOUR OF THE PREDECESSOR IN INTEREST OF THE PETITIONER Exhibit P7 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER ON 31-10-2022 BEFORE THE 1ST RESPONDENT Exhibit P8 TRUE COPY OF THE RECEIPT DATED 17-11-2022 Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 14.03.2023 IN W.P.(C)NO.7613 OF 2023 Exhibit P10 TRUE COPY OF THE BUILDING PERMIT NO.A3BA(134512)/2023 DATED 12.04.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 06.06.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P 12 TRUE COPY OF THE JUDGMENT DATED 10.05.2022 IN W.P.(C)NO. 4782 OF 2022 Exhibit P 13 TRUE COPY OF THE JUDGMENT DATED 14.06.2022 IN W.P.(C)NO.16226 OF 2022 Exhibit P14 TRUE COPY OF ORDER NO.A3-BA(134512)/2023 DATED 21-10-2023**