Shynymol v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 17TH DAY OF JULY 2012/26TH ASHADHA 1934 WP(C).No. 15022 of 2012 (C) --------------------------- PETITIONER(S): ------------SHYNYMOL, W/O.NASSER, PUTHUPARAMBIL, PONKUNNAM. BY ADVS.SRI.SAIBY JOSE KIDANGOOR SRI.JOSWIN THAMBI KUNNATH RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT THIRUVANANTHAPURAM 695 001. 2. THE REVENUE DIVISIONAL OFFICER KOTTAYAM 686 001. 3. THE TAHSILDAR KANJIRAPPILLY TALUK OFFICE, KANJIRAPPILLY, 686 501. 4. THE VILLAGE OFFICER CHIRAKKADAVU VILLAGE, CHIRAKKADAVU KOTTAYAM 686 506. 5. CHIRAKKADAVU PANCHAYAT REP.BY ITS SECRETARY, CHIRAKADAVU 686 506. BY ADV. SRI.ALEX.M.SCARIA BY GOVERNMENT PLEADER SMT. SEREENA GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15022 of 2012 (C) ## APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1. TRUE COPY OF THE LATEST TAX RECEIPT NO.4321743 DATED 185.2012. - EXHIBIT P2. TRUE COPY OF THE POSSESSION CERTIFICATE NO.2790/12 DATED 18.5.2012 ISSUED BY THE VILLAGE OFFICER, CHIRAKKADAVU. - EXHIBIT P3. TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER TO THE 5TH RESPONDENT PANCHAYAT DATED 18.5.2012. - EXHIBIT P4. TRUE COPY OF THE PROCEEDING NO.K-3858/12 DATED 14.06.2012 OF 2ND RESPONDENT. - EXHIBIT P5. TRUE COPY THE LETTER ISSUED BY THE 5TH RESPONDENT DATED 16.6.2012. RESPONDENTS' EXHIBITS : NIL //TRUE COPY // P.A TO JUDGE ## **ANTONY DOMINIC, J** **-----------------------------------------** W.P(C). No. 15022 OF 2012 **------------------------------------------** Dated this the 17[th] day of July, 2012 **==> picture [100 x 13] intentionally omitted <==** Heard the counsel for petitioner, learned Government Pleader appearing for respondents 1 to 4 and the counsel appearing for the fifth respondent. 2. Petitioner claims to be the owner of a property having an extent of 18.23 ares comprised in survey No.30/6 and 30/1 of Chirakkadavu Village. According to the petitioner by Ext.P4 order the Revenue Divisional Officer permitted her to remove red earth from the property in the manner as provided therein. It appears from Ext.P4 that red earth should have been removed between the period from 15.6.2012 to 26.6.2012. However, by Ext.P5, the Secretary of the Panchayat informed her that the Panchayat has passed resolution No.1/2012 dated 14.6.2012, prohibiting transportation of red soil from within the areas of the Panchayat to outside. On that basis the petitioner was prohibited from removing red soil as permitted in Ext.P4. It was thereupon this writ petition was filed. 3. The petitioner contents that she having obtained Ext.P4 order of the Revenue Divisional Officer, the Panchayat had no WP(c). No.15022/12 2 power at all to issue Ext.P5. It is on that basis the writ petition has been filed seeking to quash Ext.P5 communication and consequential reliefs are also sought for. On behalf of the Panchayat, an affidavit has been filed by its Secretary. In the affidavit, three contentions raised. First one is that red soil being not a minor mineral, the RDO is not the competent authority to permit its removal or transportation. It was then contended that under section 166 of the Kerala Panchayat Raj Act read with its third schedule, soil protection is one of the mandatory duties of the Panchayat. Therefore, the Panchayat was justified in passing resolution and issuing Ext.P5. Yet another contention raised is that the petitioner has not obtained any development permit and in the absence of such a permit, she could not remove red earth from her property. 4. In so far as the first contention that red soil is not a minor mineral is concerned, in my view, this contention is already answered against the Panchayat in the Division Bench decision of this court in **Construction Materials Movers Association v. State of Kerala 2008(4) KLT 909** , wherein it has been held that red soil is a minor mineral. Once it is accepted that red soil is a minor mineral, then the question to be examined is whether the WP(c). No.15022/12 3 Revenue Divisional Officer is a competent authority to issue Ext.P4. This contention will have to be answered with reference to Kerala Minor Minerals Concession Rules. It is seen that in terms of Rule 3 of the Rules, Government of Kerala have issued notification No.32010/L2/93/ID dated 22.6.1995, wherein competent authority have been notified, which includes the Revenue Divisional Officer also. If that be so, this contention raised by the Panchayat, does not deserve acceptance. 5. In so far as second contention that in the absence of development permit, petitioner could not have removed red soil is concerned, in my view, for the removal of red soil does not require such permit. This is for the reason that removal of red soil, by itself will not come within the expression “development of land” as contained in Rule 2 (ac) of the Kerala Panchayat Building Rules 2011, which reads as under: **'development of land'** means any material change on the use of land other than for agricultural purpose brought about or intended to be brought about by filling up of the land and/or water bodies, changing from the existing/former use of the land, layout of streets and footpaths, sub-division of land, conversion of wet land and developing parks, play grounds and social amenities of the like but does not include legal partitioning of family property among heirs;” 6. The third contention raised is that in view of section 166 WP(c). No.15022/12 4 of the Kerala Panchayat Raj Act, read with the third schedule, soil protection is one of the mandatory duties of Panchayat and therefore, it is the exclusive power of the Panchayat to safeguard the soil deposits within its area. In other words, according to Panchayat, it alone has the power to issue an order in the nature of Ext.P4. 7. Section 166(1) of the Panchayat Raj Act provides that it shall be the duty of the village panchayat to meet the requirements of the Panchayat area in respect of the matters enumerated in the third schedule. In the third schedule various activities are included. In the sector vise functions of the Panchayat, among the agricultural functions, one of the functions is entrusted to the Panchayat is soil protection. It is relying on this function, it is contended that Panchayat alone has the power to deal with soil deposit in its area. 8. In the context in which the expression soil protection occurs in the 3[rd] schedule, I am inclined to think that this expression has to be appreciated in the context of the functions that is entrusted to the panchayat. If it is so appreciated, the expression soil protection should be understood in the context of the agricultural function and if so, it has to be held as one related WP(c). No.15022/12 5 to soil preservation for the purpose of agriculture. In other words, this expression can in no manner, affect the powers entrusted to Revenue Divisional Officer to deal with minor minerals, in terms of the provisions in Kerala Minor Minerals Concession Rules. Therefore, I am not persuaded to think that the third schedule is meant to authorise Panchayat to deal with minor minerals to the exclusion of the authorities created under Kerala Minor Minerals Concession Rules. Thus the third contention raised also has to be rejected and I do so. 9. Apart from all these, it merits notice that in Ext.P5, the communication issued to the petitioner what is informed is that by resolution No.1/2012 dated 14.6.2012, it has been resolved by the Panchayat to prohibit transportation of the red soil to outside its area. In other words, this communication shows that removal and transportation of red soil within the Panchayat limits is permissible. If removal and transportation within the Panchayat area is permissible, there is absolutely no rationale in prohibiting transportation outside the Panchayat area. Therefore, if what is stated in ExtP5 is the true content of the resolution, relied on by the Secretary, there is absolutely no rationale for such a resolution. WP(c). No.15022/12 6 10. For all these reasons, I quash Ext.P5 and direct that since the period specified in Ext.P4 proceedings of the RDO has expired, if the petitioner obtains a fresh permit or it's renewal she will be permitted to remove red soil in accordance with law. Writ petition is disposed of as above. Sou. Sd/- **ANTONY DOMINIC, JUDGE.** // True copy // P.A to Judge.