Ranjith v. District Collector, Palakkad and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934** ## **WP(C).No. 3771 of 2012 (V)** ## **--------------------------** ## **PETITIONER :** ## **---------------------** **RANJITH, S/O.RAMAKRISHNAN, AGED 22 YEARS, OONINKAL HOUSE CHOROTTOOR POST, VANIYAMKULAM, PALAKKAD DISTRICT-679521.** ## **BY ADVS.SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR** ## **RESPONDENT(S):** ## **--------------------------** **1. THE DISTRICT COLLECTOR** - **PALAKKAD DISTRICT, CIVIL STATION, PALAKKAD-678001.** **2. THE SUB COLLECTOR, OTTAPALAM, OFFICE OF THE SUB COLLECTOR OTTAPALAM-679101.** **3. THE VANIYAMKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,** - **VANIYAMKULAM POST-679522, PALAKKAD DISTRICT.** **4. THE VILLAGE OFFICER, VANIYAMKULAM - II VILLAGE, PALAKKAD DISTRICT PIN-679522.** **5. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PALAKKAD-678001.** ## **6. THE GEOLOGIST,** - **DEPARTMENT OF MINING AND GEOLOGY, PALAKKAD DISTRICT PIN-678001.** ## **7. HASHIM,** **S/O.ABOOBACKER, VARANATTAPARAMBIL HOUSE VANIYAMKULAM POST-679522, OTTAPALAM.** **R1, R2, R4 & R6 BY GOVT. PLEADER SMT. SANJEETHA R3 BY ADVS. SMT.T.D.RAJALAKSHMI** **SRI.R.SREEHARI** **R5 BY ADV. SRI. M.AJAY, SC R7 BY ADV. SRI.SIRAJ KAROLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2012, ALONG WITH WPC. 7145/2012, THE COURT ON 10-10-2012, DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 3771 of 2012 (V)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **EXT.P1 TRUE COPY OF THE PHOTOGRAPH OF THE PIT FILLED UP WITH WATER. EXT.P2 TRUE COPY OF THE LETTER DATED 9/2/2010 ISSUED BY DEPUTY DIRECTOR OF PANCHAYATH, PALAKKAD. EXT.P3 TRUE COPY OF NOTICE DATED 24/5/2010 ISSUED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT TO SECRETARY OF VANIYAMKULAM GRAMA PANCHAYATH.** **EXT.P4 TRUE COPY OF ORDER NO.D4-25916/09 DATED 9/8/2011 ISSUED BY DIRECTOR OF PANCHAYATH.** - **EXT.P5 TRUE COPY OF ORDER NO.G-1736/2010 DATED 22/4/2010 ISSUED BY REVENUE DIVISIONAL OFFICER, OTTAPPALAM.** - **EXT.P6 TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT VILLAGE OFFICER DATED 15/6/2010.** - **EXT.P7 TRUE COPY OF THE APPLICATION DATED 1/12/2011 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE REVENUE DIVISIONAL OFFICER, OTTAPPALAM.** - **EXT.P8 TRUE COPY OF THE ORDER NO.G-1736/10 DATED 18/1/2012 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P9 TRUE COPY OF REPRESENTATION DATED 28/1/2012 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE IST RESPONDENT.** - **EXT.P10 TRUE COPY OF REPRESENTATION DATED 30/1/2012 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE CHAIRMAN, KERALA STATE POLLUTION CONTROL BOARD.** - **EXT.P11 TRUE COPY OF REPRESENTATION DATED 31/1/2012 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE GEOLOGIST.** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C).Nos. 3771 & 7145 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **DATED THIS THE 10[th] DAY OF OCTOBER, 2012** ## **JUDGMENT** Both these writ petitions concern a common issue, viz. with regard to the removal of clay from the property owned by the petitioner in W.P.(C) No.7145/2012 who is arrayed as 7[th] respondent in W.P.(C) No.3771/2012. 2. The petitioner in W.P.(C) No.3771/2012 is a farmer having agricultural properties in Vaniyamkulam-II Village and is residing in Ward No.IX of Vaniyamkulam Grama Panchayat. His case in a nutshell, is the following: 3. The 7[th] respondent purchased certain items of properties in the middle of the other agricultural properties and started mining of clay from the paddy field from about 3 acres of land situated in various survey numbers. This was objected to by the farmers including the petitioner. It is alleged that the mining was done illegally, without any permission from the statutory authorities and a huge pit was formed which is now full of water and Ext.P1 photograph has been produced to show its nature. It is alleged that the repeated representations made before the Secretary of the Panchayat, were ignored and the Secretary was helping the seventh W.P.(C).No.3771 & 7145/12 -2- respondent. This resulted in the Deputy Director of Panchayats and the Government intervening in the matter and in support of the above plea, Exts.P2 and P3 communications have been produced. Ext.P4 is the proceedings of the Director of Panchayats imposing punishment on the then Secretary of the Panchayat for his alleged failure to intervene with regard to the unauthorised mining of clay from the paddy fields. Ext.P5 is the copy of the order passed by the Revenue Divisional Officer in favour of the seventh respondent wherein permission has been granted to stock clay for a period of three months. It is submitted that the said order cannot be supported and many of the aspects stated therein are not correct. The property is actually a paddy land, but contrary to it, it is mentioned in Ext.P5, that there is a residential building and permanent cultivations are there in the property. Exts.P6 is the copy of the report submitted by the Village Officer. The petitioner has also produced the order passed by the Revenue Divisional Officer as per Ext.P8 permitting the seventh respondent to utilise the clay on certain conditions. It is submitted that the Revenue Divisional Officer has passed the order without verifying the various aspects and the petitioner along with several others, thereafter has approached the District Collector W.P.(C).No.3771 & 7145/12 -3- by filing Ext.P9 representation. 4. Mainly it is pointed out by the petitioner that the clay has been mined illegally and therefore it cannot be allowed to be used for any purpose. The area is in the middle of a paddy field and therefore the provisions of the Kerala Conservation of Paddy Land and Wet Land Act will apply. The challenge is against Exts.P5 and P8 orders and a direction is sought to respondents 1 to 6 to initiate action to stop mining of clay and conduct of brick kiln by the 7[th] respondent. 5. The 7[th] respondent who is the petitioner in W.P.(C) No.7145/2012, has got a totally different case. According to him, the property is not a paddy land and a portion was garden land having number of coconut trees, arecanut trees and various other improvements. Ext.P2 is the photograph produced. He purchased the property for residential and industrial purpose and no paddy cultivation is possible in the said item of property since it is situated in a higher level than that of the paddy lands in the area. It is stated that the data bank published will show that the property is not a paddy field. The petitioner was permitted to collect and stock clay in the property as per Ext.P4 order passed by the Revenue Divisional W.P.(C).No.3771 & 7145/12 -4- Officer (Ext.P5 in W.P.(C) No.3771/2012). He could not use the clay and has kept the same in the property and only when the Revenue Divisional Officer permitted to use the same as per Ext.P5 order dated 18.1.2012 (Ext.P8 in W.P.(C) No.3771/2012), royalty has been assessed and fine has been imposed by the Geologist to the tune of Rs.1,73,000/- by Ext.P6 order and the petitioner remitted the amount as per Ext.P7 challan. An application was submitted by the petitioner before the first respondent for licence as per Ext.P9 and at that time he came to know about the filing of W.P.(C) No.3771/2012. 6. Heard Shri Santheep Ankarath, learned counsel for the petitioner in W.P.(C) No.3771/2012, Shri Siraj Karoli, learned counsel for the petitioner in W.P.(C) No.7145/2012 and learned Government Pleader Smt. Sangeetha. 7. Shri Santheep Ankarath, learned counsel for the petitioner in W.P. (C) No.3771/2012 vehemently submitted that the attempt of the seventh respondent is to influence the authorities for obtaining licence under the provisions of the Act and it is submitted that permission cannot be granted by the authorities which will amount to violation of the provisions of the W.P.(C).No.3771 & 7145/12 -5- Act. It is also submitted that in a paddy field, a brick kiln cannot be established which will also amount to violation of the provisions of the Act. It is submitted that the contention of the seventh respondent that the property is a garden land, is not correct and actually the entire area is now lying as a pond filled with water causing danger to the life of passers-by as well as cattle. 8. Shri Siraj Karoli, submitted that the petitioner in W.P.(C) No.7145/2012 has obtained permission from the Revenue Divisional Officer for the use of the clay collected and royalty has been paid as directed by the Geologist and therefore no objection can be raised for removal of clay. It is submitted that if the clay is kept idle, it will be washed off by rain and the same will cause heavy loss to the petitioner. With regard to the nature of the property, it is submitted that one side of it there is a paddy field and the other side lies at a higher level wherein there is a residential building and it is full of permanent cultivations and the like. The proceedings of the Revenue Divisional Officer will show that Ext.P4 produced in W.P.(C) No.7145/2012 was passed after noting that the property is having an extent of 3 acres and there is a brick kiln as well as a W.P.(C).No.3771 & 7145/12 **==> picture [15 x 9] intentionally omitted <==** residential building along with permanent cultivations. Permission was granted for a period of three months from 22.4.2010. 9. In Ext.P5 produced in W.P.(C) No.7145/2012, the Revenue Divisional Officer is of the view that the industrial activity for making brick in an agricultural land cannot be permitted, as in the light of the Kerala Conservation of Paddy Land and Wet Land Act, paddy land cannot be used for commercial activities. Mining permit will have to be obtained from Geology Department and the Geology Department has prevented mining from the banks of Bharathapuzha. In fact, permission has been granted by Ext.P5 to utilise the clay already collected, on strict terms: (i) For conducing brick kiln licence from the panchayat concerned and for making brick on industrial basis by using clay, permission from the Geology Department and other agencies are to be obtained and that for using the clay already collected, such permission is necessary; (ii) Further extraction and collection of clay from the property in question is prohibited; (iii) The property will have to be reconverted as agricultural land; and (iv) The activity should not cause any ecological imbalance or environmental impact or pollution. The proceedings of the Geologist as per W.P.(C).No.3771 & 7145/12 -7- Ext.P6 is to the effect that the activities of the petitioner in collecting clay unauthorisedly is in violation of the Kerala Minor Mineral Concession Rules. There is ban under the Kerala Conservation of Paddy Land and Wet Land Act for conducting mining activities in paddy lands and it requires No Objection Certificate from the District Collector. It is in that context an amount of Rs.1,68,000/- has been directed to be remitted as royalty and Rs.5,000/- as penalty, totalling to Rs.1,73,000/-. Ext.P8 is the letter from the Geologist addressed to the Sub Collector, wherein with regard to the plea of the petitioner for using the clay collected, it is stated that stock permit cannot be issued in the light of the prohibition under the Act and as N.O.C. from the District Collector is required and that in Palakkad District mining permit is not being granted to anybody. The recommendation therein is to allow the use of the clay collected, unauthorisedly since royalty has been collected. 10. In the light of the above proceedings, learned counsel for the petitioner in W.P.(C) No.7145/2012, Shri Siraj Karoli submitted that what is involved is only removal of the clay which is collected and as royalty has been paid, it cannot be said that the right of the petitioner to use the same W.P.(C).No.3771 & 7145/12 -8- can be restricted in any manner. Learned Government Pleader submitted that the clay has been collected unauthorisedly and this has resulted in demanding royalty and penalty. Learned counsel also relied upon the recent decision of a Division Bench of this Court in T **hulaseedharan v. State of Kierala** (2012 (4) KLT 15), concerning various aspects regarding issuance of permit for mining of clay. 11. The documents discussed above will show that even for carrying out any mining for commercial or industrial activity, N.O.C. from the District Collector is required. Of course, now the petitioner in W.P.(C) No.7145/2012 wants to remove the clay on the plea that royalty has been remitted. But the petitioner in W.P.(C) No.3771/2012 points out that even in the order dated 22.4.2010 which is produced as Ext.P5 therein, what is permitted is only stocking of clay for a period of three months and not mining. 12. Since No Objection Certificate from the District Collector is required as evident from Ext.P8 letter produced in W.P.(C) No.7145/2012, the entire matter can be considered by the District Collector as the petitioner in W.P.(C) NO.7145/2012 is seeking permission to remove the clay already W.P.(C).No.3771 & 7145/12 -9- mined and collected. In fact, in Ext.P8 recommendation has been made to allow the petitioner to remove it. But the petitioner in W.P.(C) No.3771/2012 has disputed the power of the Revenue Divisional Officer and it is pointed out that No Objection Certificate from the Geologist is required for various activities including mining, I am of the considered view that it is only proper that the matter is considered by the District Collector, whose N.O.C. is required in the matter. 13. Therefore, the writ petition is disposed with the following directions: There will be a direction to the District Collector to consider all aspects and take a decision after hearing both parties and after conducting a local inspection either by himself or through any authorised officer and after getting reports from the various officers, within a period of two months from the date of receipt of a certified copy of this judgment. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**