IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 15298 of 2011(J) -------------------------- PETITIONER(S): --------------- NAZAR K.M., AGED 40 YEARS, S/O.MOHAMMED, KANDAKATU HOUSE, PALAPRASSERY, CHENGAMANAD P.O., ALWAYE, ERNAKULAM DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE SRI.K.V.SREE VINAYAKAN SMT.P.K.PRIYA RESPONDENT(S): --------------- 1. THE GEOLOGIST, DISTRICT OFFICE OF DEPARTMENT & MINING AND GEOLOGY, PALAKKAD. 2. THE DISTRICT COLLECTOR, PALAKKAD. 3. ELAPPULLY GRAMA PANCHAYAT, PARA, ELAPPULLY P.O., PALAKKAD DISTRICT, REPRESENTED BY SECRETARY. ADV. SRI.RAJESH SIVARAMANKUTTY FOR R3 SRI.GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).15298/11 APPENDIX EXHIBITS EXT.P1- THE TRUE COPY OF B.T.RECEIPT DATED 27.5.2010 IN RESPECT OF THE PROPERTY OWNED BY THE PETITIONER EXT.P2- TRUE COPY OF THE BUILDING PERMIT ISSUED BY 3RD RESPONDENT EXT.P3- TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 11.8.2010 ISSUED BY 3RD RESPONDENT EXT.P4- TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 28.9.2010 EXT.P5- TRUE COPY OF THE BANK GUARANTEE DATED 18.10.2010 ISSUED BY FEDERAL BANK, KANJIKODE BRANCH EXT.P6- TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL TAHSILDAR, PALAKKAD DATED 20.10.2010 PERMITTING THE PETITIONER TO MINE 1000 MT ORDINARY SAND FROM 20.10.2010 TO 19.11.2010 EXT.P7- TRUE COPY OF THE PERMIT ISSUED BY THE 1ST RESPONDENT NO.93/DOP/1791/2010/A1 DATED 20.10.2010 EXT.P8- TRUE COPY OF THE PERMIT NO.99/DOP/2072/2010/A1 DATED 24.11.2010 ISSUED BY 1ST RESPONDENT EXT.P9- TRUE COPY OF THE RESOLUTION OF THE ELAPPULLY GRAMA PANCHAYAT DATED 6.12.2010 EXT.P10- TRUE COPY OF THE PETITION DATED 5.1.2011 EXT.P11- TRUE COPY OF THE ORDER OF 1ST RESPONDENT DATED 19.1.2011 EXT.P12- TRUE COPY OF THE APPROVED BUILDING PERMIT APPROVED BY THE 3RD RESPONDENT (True copy) P.A. To Judge ANTONY DOMINIC, J ......................................... W.P.(C).15298/2011 .............................................. Dated this the 23rd day of August, 2011 JUDGMENT Petitioner claims to be the owner of 10 cents of property in Block No.41, R.S.No.217/7-2 of Elapully I Village, Palakkad District. 2. For construction of a residential building, the petitioner made an application to the third respondent Panchayat and obtained Ext.P2 building permit. According to the petitioner, for converting the site he had to remove the sand. Therefore he applied to the Panchayat and obtained Ext.P3 No Objection Certificate. Thereafter the District Collector as per Ext.P4 proceedings directed the Geologist to grant permission to the petitioner for removal of the sand subject to the conditions mentioned therein. Based on Ext.P3, Tahsildar issued Ext.P6 proceedings, permitting mining. 3. Subsequently on the strength of all the above, petitioner obtained Ext.P7 mining permit from the Geologist permitting the petitioner to mine and remove 1000 MT sand from the property in question. On expiry of the period of the permit, petitioner was issued Ext.P8 mining permit permitting quarrying of 770 MT valid upto 22.12.2010. W.P.(C).15298/11 2 4. In the meanwhile, on being informed that instead of converting the site in question for construction of a residential house as claimed, the petitioner was resorting to mining on a commercial basis, Panchayat passed Ext.P9 (2) resolution, resolving to issue notice to the petitioner to stop further mining activities. Panchayat there upon issued Ext.P9 to the petitioner. In the meanwhile, the period specified in Ext.P8 permit expired and the petitioner made an application to the Geologist for a further permit. On receipt of the application, Geologist rejected the petitioner's request as per Ext.P11 communication dated 19.1.2011, relying on the communication received from the Panchayat objecting to the grant of mining permits. It is on receipt of Ext.P11, this writ petition has been filed seeking to quash the the said communication and to direct the Geologist to pass orders on Ext.P10 request made by him. 5. The third respondent Panchayat has filed a counter affidavit. According to the Panchayat, Ext.P3 NOC was issued for the limited purpose of enabling the petitioner to obtain necessary permit from the Mining and Geology Department. It is stated that on the W.P.(C).15298/11 3 strength of Ext.P3 and other orders, petitioner obtained mining permit and instead of converting the property into a house site, he was carrying on mining on a commercial basis and was selling the sand even in distant places. It is stated that in view of the misuse of the permit obtained, the Panchayat passed Ext.P9(2) resolution and communicated the same to the Geologist. 6. As already seen, the grievance of the petitioner is against Ext.P11. By this communication the request of the petitioner for issuing a fresh permit for mining 1400 MT of ordinary sand, has been rejected. To justify the rejection, Geologist has relied on the communication to the Panchayat stating that misusing the permit granted, the petitioner was resorting to large scale mining on a commercial basis. Although the right of the petitioner to remove sand for the limited purpose of converting the site into a residential one cannot be objected, still if as reported by the Panchayat, under the cover of the mining permit obtained, petitioner was resorting to mining on a commercial basis, that should be prevented and that duty and responsibility of the Geologist, has to be recognized and upheld. W.P.(C).15298/11 4 7. Therefore, I direct that the Geologist will reconsider Ext.P10 application made by the petitioner by inspecting the site in question and assessing the required quantity of ordinary sand and to that limited extent, petitioner will be issued a permit. In order to enable the Geologist to do so, I quash Ext.P11 and direct that the aforesaid process of inspection and consideration shall be completed and orders on Ext.P10 passed, with notice to the Panchayat and the petitioner, as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs