IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 25260 of 2011(F) -------------------------- PETITIONER(S): ----------------------- ST.FRANCIS ASSISI MINOR SEMINARY, MANALIKKAD, MADATHUMPADI VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, REP.BY ITS RECTOR. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF INDUSTRY, SECRETARIAT, THIRUVANANTHAPURAM. 2. VILLAGE OFFICER, MADATHUMPADI VILLAGE OFFICE, THRISSUR DISTRICT. 3. THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, THRISSUR. 4. REVENUE DIVISIONAL OFFICER, THRISSUR. 5. TAHSILDAR, MUKUNDAPURAM TALUK, IRINJALAKUDA, THRISSUR, PIN-680 121. 6. SUB INSPECTOR OF POLICE, MALA POLICE STATION, MALA, THRISSUR DISTRICT-680 302. SR.GOVT.PLEADER SMT.M.J.RAJASHREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25260/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1 : TRUE COPY OF THE G.O.(MS)NO.85/2010/IND. DTD.5.4.2010. EXT.P2 : TRUE COPY OF THE SALE DEED NO.400/93/1, DTD.23.2.1993. EXT.P3 : TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DTD.21.5.2011. EXT.P4 : TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER DTD.21.5.2011. EXT.P5 : TRUE COPY OF THE CONTRACT AGREEMENT DTD.29.9.2010 EXECUTED BY THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY WITH SPL INFRASTRUCTURE. EXT.P6 : TRUE COPY OF THE LETTER DTD.21.5.2011 ISSUED BY SPL INFRASTRUCTURE TO POYYA PANCHAYAT. EXT.P7 : TRUE COPY OF THE JUDGMENT DTD.2.6.2011 IN WPC NO.14264/2011. EXT.P8 : TRUE COPY OF THE PROCEEDINGS DTD.22.8.2011. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 25260 OF 2011 ===================== Dated this the 10th day of October, 2011 J U D G M E N T The challenge in the writ petition is against Ext.P8 to the extent the petitioner is directed to obtain sanction of the Revenue Divisional Officer for removal of ordinary earth as per the provisions of the Kerala Land Conservancy Act. Petitioner says that they wanted to remove ordinary earth from some portion of their own property. There was obstruction from respondents 1 to 3 and the matter was finally resolved by the 1st respondent as per Ext.P8. In Ext.P8, 1st respondent clarified that ordinary earth is not an item included in the schedule to Kerala Minor Mineral concession Rules and no sanction is required under the said Rule. However, proceeding further, the petitioner was directed to obtain necessary sanction from the Revenue Divisional Officer under the provisions of the Kerala Land Conservancy Act. It is this direction in Ext.P8, which is under challenge. 2. I heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents and considered their respective submissions. WPC No. 25260/11 :2 : 3. The relevant portion of Ext.P8 reads as under:- “Fr.Joy Kallarakkal for St.Francis Assissi Seminary was heard in person on 22/7/11. The Deputy Director, Directorate of Mining and Geology who was also present informed that the schedule appended to KMMC Rule does not include ordinary earth as a mineral and hence the same cannot be considered as per Rule 57(1)(b) of KMMC Rules. He has also informed that the RDO is the authority to give sanction for removing ordinary earth for various purposes as per KLC Act. Since the schedule appended to KMMC Rules 1967 does not include ordinary earth as a mineral and as per G.O read as 1st paper above Government had clarified that no permission of Mining and Geology Department is required for mining and removal of ordinary earth from the private property and no royalty need be remitted to Government in these cases the request of St.Francis Assissi Minor Seminary read as 3rd paper above is disposed of informing the above position with a direction to approach the concerned authority of Revenue Department for obtaining necessary sanction in this matter.” 4. Thus the only question is whether in respect of the petitioner's own property, petitioner is required to obtain any permission from the Revenue Divisional Officer for removal of ordinary earth in terms of the provisions contained under the Kerala Land Conservancy Act. For removal of ordinary earth from the land, which is the property of the Government, permit is required to be obtained as per Section 6 of the said Act. In this case, even in Ext.P8, 1st respondent had no case that the property in question is that of the Government. If that be so, the petitioner WPC No. 25260/11 :3 : could not have been compelled to obtain any permit from the Revenue Divisional Officer. 5. Therefore, the direction to the extent contained in Ext.P8 requiring the petitioner to obtain permit from the Revenue Divisional Officer for removal of ordinary earth from their own property is illegal and has to be set aside and I do so. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp