Sarojam Sidharthan v. Revenue Divisional Officer, Irinjalakuda, Thrissur District and Others

## **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. 32933 OF 2023** ## **PETITIONER:** **SAROJAM SIDHARTHAN AGED 62 YEARS WIFE OF SIDHARTHAN, PULIKAL HOUSE, MULANGUE, CANAL ROAD, MULANGUE THOTTIPAL, MUKUNDAPURAM, THRISSUR DISTRICT, PIN - 680310** **BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER (R.D.O.) IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680125** - **2 THE VILLAGE OFFICER THOTTIPAL VILLAGE, THRISSUR DISTRICT, PIN - 680310** - **3 AGRICULTURAL OFFICER PARAPOOKARA, KRISHI BHAVAN, THRISSUR DISTRICT, PIN - 680310** - **4 THE DEPUTY DIRECTOR OF FISHERIES THRISSUR, THRISSUR DISTRICT, PIN - 680001** - **5 THE DISTRICT GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, THRISSUR DISTRICT, PIN - 680020** - **6 THE DISTRICT COLLECTOR CIVIL STATION, THRISSUR DISTRICT, PIN - 680003** - **7 THE DIRECTOR OF MINING AND GEOLOGY KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM, PIN - 695004** ## **OTHER PRESENT:** ## **SR.GP - DEEPA NARAYANAN** **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.32933 of 2023 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.32933 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of March, 2024 ## **JUDGMENT** The above writ petition is filed seeking to quash Ext.P11 order passed by the 1[st] respondent and for a consequential direction to the 1[st] respondent to issue NOC to the petitioner for consideration of the application submitted under Rule 104 of the Kerala Minor Mineral Concession Rules 2015 (hereinafter referred to as Rules 2015). Petitioner is in possession of a certain extent of land for which tax was paid as per Ext.P1. There is a pond in existence in the property and the petitioner was doing aqua culture in the said property. The waste and clay were removed from the pond and were stacked in the property of the petitioner. Petitioner wanted to remove the said clay so that the property could be put to use for other purposes and approached the 5[th] respondent and he was informed that permission under Rule 104 of the Rules 2015 is to be obtained for the said purpose. Ultimately, by Ext.P11 order, the request of the petitioner for NOC was declined by the 1[st] respondent stating that the extraction and removal of minor minerals is not inevitable for the legitimate purpose of undertaking : 3 : W.P.(C). No.32933 of 2023 aqua culture and that the statement given by the son of the petitioner reveal that their intention is to sell away the mineral which is extracted from the pond in question. Petitioner contends that the stand taken by the 1[st] respondent in Ext.P11 is absolutely arbitrary and unjust. The land of the petitioner is agricultural land and the entire family of the petitioner depends upon the agricultural activity and aqua culture undertaken in the property and removal of the clay stacked in the premises is absolutely necessary for putting the property to beneficial use. Petitioner submits that he has been doing aqua culture in the pond for decades together and cleaning of the pond by removing clay and mud from the pond for the purpose of aquaculture cannot be said to be a prohibited activity. 2. A counter affidavit has been filed by the 1[st] respondent reiterating the stand that the accumulation of clay thereon would not in any way affect the fish farming and the extraction of the minor mineral is not inevitable for any legitimate purpose and that the intention of the petitioner is to sell the mineral extracted from the farm. Admittedly, the petitioner has been undertaking aquaculture activity in the property of the petitioner after obtaining the W.P.(C). No.32933 of 2023 : 4 : necessary licence from the 4[th] respondent as is evident from Ext.P5 licence. A perusal of Ext.P11 would reveal that the mineral has been extracted from the pond and that there exist a pond wherein aquaculture activity is being undertaken by the petitioner. As per Rule 104, if any person wishes to extract and transport minor minerals where extraction of minor minerals is inevitable for legitimate purposes, necessary permission shall be obtained from the Government, for which NOC from the Revenue Divisional Officer is to be obtained. It is a fact that the mineral has been extracted without obtaining permission as per Rule 104 of the Rules 2015 but the same has not been removed from the property and in the inspection, the same is seen stacked in the property. The impugned order also reveals that the property is not included in the data bank. The question to be considered is as to whether the rejection of the request for issuance of NOC as per Ext.P11 order is valid or not. The reason stated in Ext.P11 is that the removal of the mineral from the property which has been extracted from the pond and kept in the property is not necessary for the aquaculture activity undertaken by the petitioner and on the said basis the 1[st] respondent has taken a stand that the removal of the mineral which W.P.(C). No.32933 of 2023 : 5 : is stacked in the property is not inevitable for the legitimate purpose of aquaculture. Petitioner relies on the judgment in _**Diamond Crushers v. State of Kerala, 2023 (4) KLT 463**_ , wherein it is held that when the revenue authorities consider the request for a survey plan for the purpose of applying for a letter of intent for starting mining operation, they are not the concerned authority to consider whether mining operation should be permitted in the said land and the question as to whether the removal of minerals is inevitable for a legitimate purpose is an aspect which should be considered by the Government while considering an application under Rule 104 and it is not for the 1[st] respondent to consider the same. Learned Government pleader relying on the judgment in _**Mathew P.T. v. District Collector, Kottayam and Others, 2022 (5) KHC 695,**_ contends that the 1[st] respondent while considering an application for NOC under Rule 104 also has to decide whether extraction of minor mineral is inevitable for a legitimate purpose. Here in this case, the Revenue Divisional Officer has entered a finding that the removal of mineral stacked in the property is not necessary for the conduct of the aquaculture in the pond. All these contingencies happened due to the reason that the petitioner had already : 6 : W.P.(C). No.32933 of 2023 removed the mineral from the pond before getting permission under Rule 104. Now the factual position is that the mineral has been removed and kept in the property of the petitioner. While granting permission under Rule 104, the authority has to consider whether extraction of minor minerals is inevitable for a legitimate purpose. The stand of the 1[st] respondent that the removal of minerals stacked in the property is not necessary for the conduct of the aquaculture in the pond and therefore extraction of minor minerals is not inevitable for a legitimate purpose, cannot be accepted. Admittedly, the petitioner is conducting aqua culture in the pond on the strength of Ext.P5 licence issued by the 4[th] respondent. In the inspection also it was found that the mineral has been removed from the pond and aquaculture activities are being undertaken in the said pond. Therefore, the legitimate purpose for which the mineral has been removed is the conduct of the aquaculture activity and while considering an application under Rule 104, the aspect to be considered is as to whether the removal of mineral from the pond is inevitable for the conduct of the aquaculture activity and not as to whether the removal of the mineral kept in the property is inevitable for aquaculture activity. A perusal of Ext.P1 will not show that the 1[st] respondent has : 7 : W.P.(C). No.32933 of 2023 considered the aspect as to whether the removal of minerals from the pond was inevitable and for a legitimate purpose of undertaking aqua culture activity which is a permitted activity as evident from Ext.P5 licence issued by the 4[th] respondent. The 1[st] respondent has casually stated that the removal of the mineral from the property, which is extracted from the pond and kept in the property is not inevitable for undertaking aquaculture activity. Since this crucial aspect was not considered in a proper perspective, I am of the view that Ext.P11 is liable to be interfered with and accordingly it is quashed with a consequential direction to the 1[st] respondent to reconsider the request of the petitioner for issuance of an NOC under Rule 104 of the Rules 2015 after rendering a finding as to whether the removal of minerals from the pond was an inevitable activity for a legitimate purpose of aquaculture by the petitioner. A fresh decision in the matter shall be taken by the 1[st] respondent within an outer limit of 1 month from the date of receipt of a copy of the judgment after affording an opportunity of being heard to the petitioner. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.32933 of 2023 : 8 : ## **APPENDIX OF WP(C) 32933/2023** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TAX RECEIPT OF THE PROPERTY OF PETITIONER DATED 1.9.2021 ISSUED BY THE SECOND RESPONDENT** **Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 14.2.2022 ISSUED BY THE SECOND RESPONDENT** **Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF DRAFT DATA BANK IN CONNECTION WITH THE PROPERTY OF PETITIONER** **Exhibit P4 TRUE COPY OF THE RELEVANT PAGES OF FINAL DATA BANK EXCLUDING THE PROPERTY OF THE PETITIONER ISSUED BY THE THIRD RESPONDENT Exhibit P5 TRUE COPY OF AQUA CULTURE LICENSE DATED 10.08.2022 ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER Exhibit P6 TRUE PHOTOGRAPHS OF THE CLAY AND WASTE REMOVED FROM THE POND AND STACKED IN THE PREMISES OF THE PETITIONER Exhibit P7 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 24.2.2022 IN WPC NO.6190/2022 Exhibit P8 . TRUE COPY OF THE REPORT SUBMITTED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT DATED 30.4.2022 OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT Exhibit- P 9 TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 3.6.2022 NO.C3-1974/2022 Exhibit- P 10 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 16.2.2023 IN WPC NO.3024/2023 Exhibit - P11 TRUE COPY OF THE ORDER NO.C3-1974/22 DATED 5.4.2023 ISSUED BY THE FIRST RESPONDENT**