Rajesh T.K. v. State of Kerala, represented by the District Collector, Kottayam and The District Collector, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935** ## **WP(C).No. 25354 of 2013 (T)** **----------------------------** **PETITIONER(S):** **------------------------** **RAJESH T.K.,AGED 41 YEARS, S/O T.K.KRISHNANKUTY NAIR, THIRUMALA HOUSE, KIDANGOOR P.O., KOTTAYAM.** **BY ADVS.SMT.SARITHA THOMAS SRI.SAJEEVAN KURUKKUTTIYULLATHIL** **RESPONDENT(S):** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM-686 002.** **2. THE DISTRICT COLLECTOR, KOTTYAM-686 002.** **R1 & R2 BY GOVERNMENT PLEADER SMT. K.T. LILLY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-12-2013 ALONG WITH WPC.NO. 26076/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 25354 of 2013 (T)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1: THE TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 1.3.2010 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2: THE TRUE COPY OF THE ORDER IN WPC NO.28391/20132 BY THIS HONOURABLE COURT.** **EXHIBIT P3: A COPY OF THE APPLICATION DATED 15.12.2012 FILED BY THE PETITIONER.** **EXHIBIT P4: A COPY OF THE CERTIFICATE DATED 13.2.2013 ISSUED BY THE SENIOR GEOLOGIST, KOTTAYAM.** **EXHIBIT P5: A COPY OF THE REPORT DATED 6.4.2013 MADE BY THE TAHSILDAR TO THE 2ND RESPONDENT.** **EXHIBIT P6: A COPY OF THE NO OBJECTION CERTIFICATE DATED 7.3.2013 BEARING NO.A4.397/13(1).** **EXHIBIT P7: THE COPY OF THE ORDER DATED 5/08/2013 IN O.A.171/2013 ISSUED BY THE HON'BLE NATIONAL GREEN TRIBUNAL, NEW DELHI.** **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** **N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)Nos.25354 & 26076 OF 2013** ......................................................................... **Dated this the 5[th] December, 2013** ## **J U D G M E N T** The issue involved in both these cases is rather similar and hence dealt with together. The petitioners have approached this Court with the following prayers: (similar prayers in both the cases). _“i) to issue a writ of mandamus or other appropriate writ, order or direction directing the second respondent to consider and dispose of Ext.P3 expeditiously within a time to be fixed by this Hon'ble Court irrespective of the availability of clearance of Ministry of Environment and Forests._ _ii) to grant such other reliefs as this Hon'ble Court may deem fit in the circumstances of the case.”_ 2. Petitioners are the owners of different extent of land, comprised in the concerned survey numbers of different villages in Meenachil Taluk of Kottayam District. The petitioners, with an intent to extract some minor mineral from the concerned lands, have approached the District Collector for issuance of necessary NOC, which is essential so as to be acted upon by the District ## **W.P.(C)Nos.25354 & 26076 OF 2013** ## **2** Geologist for giving necessary permit in this regard. The case of the petitioners is that they are entitled to extract the minor mineral and thereafter they will fill the pits formed by depositing ordinary earth in accordance with the relevant provisions of law, particularly, the mandate under Rules 5 and 6 of the Kerala Minor Mineral Concession Rules, 1967. It is stated that the petitioners have agreed to satisfy the requisite amount by way of 'Bank Guarantee' before the appropriate authority and have submitted necessary applications before the District Collector for granting NOC. Ext.P1 NOC was issued in both the cases; but, subsequently, on the basis of the interlocutory order in _**Deepak Kumar vs State of Haryana and others**_ (SLP 19628 & 19629 of 2009) passed by the Hon'ble Apex Court, Ext.P1 NOC, issued earlier, was withdrawn. Petitioners had submitted Ext.P3 application for re-issuance of 'NOC' as early as on 15.12.2012, which is still pending before the second respondent/District Collector . Hence these writ petitions. 3. When the matters were taken up for consideration, the learned Counsel for the petitioners submits that the issue is squarely covered by the common judgment (dated 03.12.2013) passed by this Court in W.P.(C)No.23493 of 2013 and connected **3** ## **W.P.(C)Nos.25354 & 26076 OF 2013** cases. The relevant paragraphs of the said judgment are extracted below for the purpose of convenience: _5. In the course of further proceedings, the petitioners have produced additional documents in the concerned cases. The learned counsel for the petitioners points out that the findings arrived at in the impugned orders are not at all correct, as the District Collector himself has observed that the land in question was reclaimed several years back, as reported by the concerned authority. The law has been declared as per the decision rendered in_ _**JafarKhan Vs. K.A. Kochumarakkar & Ors. [2012 (1) KHC 523]** that the provisions of the Conservation of Kerala paddy land and Wet land Act are not applicable in respect of the lands which were not lying as 'paddy land' or 'wet land' as on the date of commencement of the 'Act' and such lands not included in the Data Bank Register._ _6. The learned counsel points out that_ _the idea and understanding of the respondents as to the scope of the order passed by the National Green Tribunal is not correct or sustainable. A copy of the said order has been produced as Ext. P13 in W.P._ **4** ## **W.P.(C)Nos.25354 & 26076 OF 2013** _(C) No. 27922 of 2013. It deals with the interception made as to the mining activity or removal of sand from river beds anywhere in the country, without obtaining Environmental Clearance from MoEF/SEIAA and licenses from the competent authorities. The scope of the said order was considered by the authorities of the Mining and Geology Department of the State as well and the concerned Senior Geologist has already issued necessary clarification by way of Ext. P14 dated 23.09.2013 addressed to District Collector, Kottayam to the effect that same does not stand in the way of the authorities concerned in considering NOC to be given in appropriate cases. It is in the said circumstances, that the petitioners have approached this Court by filing the writ petitions, seeking for a direction to be issued to the first respondent to have the matter reconsidered._ _7. The learned Government Pleader appearing for the respondents submits that the land concerned in W.P.(C) No. 23494 of 2013 stands described as 'Nilam' + 'Nilam Nikath' in the Data Bank Register, which means that some portion of the land is still lying as 'Nilam'._ _8. Going by the pleadings and_ **5** ## **W.P.(C)Nos.25354 & 26076 OF 2013** _proceedings, the factual position as to the reclamation of the land effected years back, as described in Data Bank Register, is not disputed. Similarly, the interim order passed by the National Green Tribunal is not in respect of extraction of ordinary sand from the property as in the instant cases and there is no doubt or dispute in this regard as far as the Mining and Geology Department is concerned._ _9. Rules 5 and 6 of the Kerala Minor Mineral Concession Rules, 1967 read as follows_ : “(5) Every application for grant of quarrying permit in respect of minor minerals mentioned in item 2 of Schedule I appended to these rules shall be accompanied by a No Objection Certificate from the District Collector concerned. Provided that an application for obtaining permission for digging up of or renovation of ponds or wells or tanks and for the renovation of stagnant water bodies in patta lands in **6** ## **W.P.(C)Nos.25354 & 26076 OF 2013** order to store water for irrigation, agriculture, pisciculture (aquaculture) or for such other purposes where extraction of ordinary clay and/or ordinary sand is necessary the No Objection Certificate stipulated in this rule is not mandatory but shall be accompanied by a certificate from the Agriculture Officer or officer in charge of Marine Products Export Development Agency or Department of Fisheries or Village Officer or local authority concerned to the effect that the applicant is in need of digging up of or renovation of ponds or wells or tanks or in need of renovation of stagnant water bodies in patta land in order to store water for irrigation or agriculture or pisciculture (aquaculture) purposes, as the case may be: Provided further that in the case of applications for extraction of ordinary clay from the lands specified **7** ## **W.P.(C)Nos.25354 & 26076 OF 2013** in Government Orders issued from time to time in this regard, production of No Objection Certificate from the District Collector is not mandatory. (6) Every application for grant of quarrying permit in respect of minor minerals mentioned in item 2 of Schedule I appended to these rules shall be accompanied by a financial security in the form of bank guarantee from any Nationalized/Scheduled Bank at the rate fixed by Public Works Department for the purpose purpose of reclamation of pits to be formed in the applied area after quarrying. Provided that in the case of application for obtaining permission for digging up of or renovation of ponds or wells or tanks for renovation of stagnant water bodies in order to store water for irrigation or agriculture or pisciculture (aquaculture) purposes or for such **8** ## **W.P.(C)Nos.25354 & 26076 OF 2013** other purposes where extraction of ordinary clay and/or ordinary sand is necessary, conditions stipulated in this shall not apply”. _4. After hearing both the sides, this Court finds that the observation made by the District Collector in the impugned orders as to the alleged hurdles placed on the way is not correct or sustainable. The impugned orders [Ext. P5 in W.P.(C) Nos. 23493 and 23494 of 2013, Ext. P8 in W.P.(C) No. 27196 of 2013 and Ext. P12 in W.P.(C) No. 27922 of 2013] are set aside and the first respondent/District Collector is directed to reconsider the application for NOC submitted by the petitioners seeking for permission to extract ordinary sand from the property concerned, if the same has not been described as 'Nilam' in the Data Bank Register. It shall be done after conducting a spot inspection with prior notice to the petitioners, in the light of the observations made hereinbefore, in accordance with law, subject to satisfaction of the conditions as_ **9** ## **W.P.(C)Nos.25354 & 26076 OF 2013** _contemplated in Rules 5 and 6 of the Kerala Minor Mineral Concession Rules. The proceedings as above shall be finalized, after giving an opportunity of hearing to the petitioners, at the earliest, at any rate, within six weeks from the date of receipt of a copy of this judgment.”_ In the above circumstance, these writ petitions are also disposed of, in terms of the common judgment dated 03.12.2013 in W.P.(C)No. 23493 of 2013 and connected cases. ## **P.R.RAMACHANDRA MENON JUDGE** lk