IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 6456 of 2011(F) ------------------------- PETITIONER(S): --------------- BHASKARAN.A.R, S/O. RAMAN, ARIKKATHIL, MULAKKULAM SOUTH.P.O, KOTTAYAM. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENT(S): --------------- 1. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, BAKER JUNCTION, KOTTAYAM - 686 001. 2. THE REVENUE DIVISIONAL OFFICER RDO, PALA, KOTTAYAM - 686 575. 3. THE TAHSILDAR, VAIKOM TALUK, VAIKOM, KOTTAYAM - 686 608. 4. THE VILLAGE OFFICER, KULASEKHARAMANGALAM VILLAGE, VAIKOM, KOTTAYAM - 686 608. 5. THE AGRICULTURAL OFFICER, MARAVANTHURUTHU, VAIKOM, KOTTAYAM - 686 608. 6. THE DISTRICT COLLECTOR, KOTTAYAM- 686 001. BY G.P.SRI. NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 6456/2011 APPENDIX EXT.P1 COPY OF THE SALE DEED NO.3010/08. EXT.P2 COPY OF LAND TAX RECEIPT DATED 1.3.09. EXT.P3 COPIES OF PHOTO PRINTS OF THE PROPERPTY VIDE EXT.P1 EXT.P4 COPIES OF PHOTOGRAPHS OF PROPERTY SURROUNDING P1 PROPERTY EXT.P5 COPY OF APPLICATION DATED 25.10.08 FOR SKETCH AND PLAN EXT.P6 COPY OF SKETCH OF P1 PROPERTY AND SURROUNDINGS EXT.P7 COPY OF POSSESSION CERTIFICATE NO.39/09 DATED 3.1.09 EXT.P8 COPY OF REPORT NO.3/09 DATD 3.1.09 EXT.P9 COPY OF LETTER NO.C2-308/09 DATED 22.1.09 SENT TO RDO BY TAHSILDAR EXT.P10 COPY OF LETTER NO.C2-308/09 DTD 12.2.2009 EXT.P11 COPY OF JUDGMENT IN WPC 5460/09 EXT.P12 COPY OF NOTIFICATION NO.SRO.256/09 DATED 12.3.09 EXT.P13 COPY OF LETTER NO.E10-36168/09 DTD 1.8.09 EXT.P14 COPY OF LOCATION SKETCH EXT.P15 COPY OF LETTER NO.C2-5956/09 DTD 13.1.2010 EXT.P16 COPY OF LETTER NO.E10-36163 DTD 27.1.2010 EXT.P17 COPPY OF REPORT DTD 30.1.2O1O OF VILLAGE OFFICER AND AGRICULTURAL OFFICER EXT.P18 COPY OF LETTER NO.E10-36168/09 DTD 8.2.2010 ISSUED BY DISTRICT COLLECTOR EXT.P19 COPY OF JUDGMENT DTD 24.11.2010 IN WPC 4844/10 EXT.P20 COPY OF LETTER NO.E10(1) 36168/10 DTD 9.2.2011 /TRUE COPY/ P.A. TO JUDGE cl P.R.RAMACHANDRA MENON, J. ------------------------- W.P (C) No.6456 of 2011 -------------------------- Dated this the 21st March, 2011 J U D G M E N T The petitioner has approached this Court with the following prayers: "i. Issue a Writ of Certiorari or any other Writ calling for the records of the case leading to Ext.P20 and quash the same; ii. Issue a writ declaring that the land of the petitioner vide Exts.P1, P2, P3, P4, P7, P8, P15 etc is not paddy land or wet land as envisaged under Kerala Conservation of Paddy Land & Wet Land Act 2008 and as settled by the decisions reported in 2009 (3) KLT 899 and 2010 (2) KHC 499 (DB); iii. Issue a writ of mandamus commanding 6th respondent to issue NOC covering Ext.P1 property for grant of mining permit in the light of the report vide Ext.P15 of the Tahasildar which indicate that the land in question is physically purayidam and not Nilam and that there are no residential houses within 50 meters from the land in strict compliance with Ext.P19 judgment." 2. The case as projected by the learned counsel for the petitioner is that the application preferred by the petitioner for granting mining permit, in view of the W.P (C) No.6456 of 2011 2 amended rules, has not been acted upon or dealt with properly by the concerned respondent, which made the petitioner to pursue different rounds of litigations. 3. With reference to materials on record the learned counsel for the petitioner submits that, in view of the amended rules, as above, for obtaining necessary permit from the Geologist, 'No Objection Certificate' is very much essential to be issued by the concerned District Collector. Since the attempt made by the petitioner in this regard did not turn to be fruitful, the petitioner was constrained to approach this Court by filing W.P.(C). No.4844/2010, finally culminating in Ext.P19 judgment. It has been observed in the said verdict (referring to the relevant records, particularly the report submitted by the Village Officer and the Tahasildar as forwarded to the District Collector) that the property was having coconut palms of more than 30 years of age. Referring to Ext.P15 issued by the concerned Tahasildar, it has been noted that in paragraph 4 of the said judgment that the property was remaining as a 'purayidom' and there were no residential W.P (C) No.6456 of 2011 3 houses within 50 meters. Still the District Collector directed the Village Officer to furnish a report after conducting a joint inspection by the Village Officer and the Agricultural Officer. A copy of the report was produced as Ext.P17 before this Court. In the said proceeding, it was revealed that the property was not suitable for paddy cultivation and that there were a lot of aged coconut palms. It was without any regard to the said report, that the District Collector directed the petitioner to approach the Local Level Monitoring Committee which made the petitioner to approach this Court by filing W.P. (C) No.4844/2010. 4. After hearing both the sides and placing reliance on the relevant binding judicial precedents including the decision reported in Praveen K. Vs. Land Revenue Commissioner, Thiruvananthapuram and others [2010 (2) KHC 499 (DB)] a positive finding was rendered by this Court in paragraph 7 of the judgment therein (produced as Ext.P19), that the land was not a paddy land or wet land as on the date of coming into force of the W.P (C) No.6456 of 2011 4 relevant enactment . It was accordingly that the matter was directed to be considered afresh in the light of the above observations by the District Collector for issuance of 'No Objection Certificate'. 5. Pursuant to Ext.P19, the matter is stated as considered by the District Collector who has passed Ext.P20 order dated 9.2.2011, simply stating that the land is described as 'Nilam' as per the revenue records and as such, it cannot be converted for any other purposes than for cultivation of paddy as per the Kerala Conservation of Paddy Lands and Wet Lands Act, 2008. It is also stated therein that there are quite a number of buildings/residential houses within the prohibitory distance of 50 meters from the property concerned and as such, 'No Objection Certificate' cannot be given by virtue of the stipulations under Rule 29 (i) (f) the Kerala Minor Mineral Concession Rules. Challenge raised by the petitioner against Ext.P20 is that it is totally contrary to the finding rendered by this Court and the directions given vide Ext.P19 judgment. W.P (C) No.6456 of 2011 5 6. Heard the learned Government Pleader as well. 7. With regard to the observations made by the 6th respondent in Ext.P20, referring to the the nature and description of the property as 'Nilam' in the revenue records, it is no more liable to be sustained in view of the positive finding with reference to the records/reports and the observation in paragraph 7 of Ext.P19 judgment. With regard to the other reason shown in Ext.P20, that there are residential houses/ buildings within 50 meters of the prohibitory distance, it is evident from Ext.P14 sketch of the Taluk Surveyor that the distance to the nearest residential building from the property in question is 50.4 meters (i.e. of one Mr. Damdaran). There is no case for the respondents that Ext.P14 is wrong and unsustainable on any ground. Similarly, Ext.P15 report submitted by the Tahsildar before the 6th respondent clearly refers to the fact that there is no residential building within 50 meters radius from the concerned property, nor is there any other water source, bridge, river etc. As it stands so, the observation made in Ext.P20 by the 6th respondent is clearly W.P (C) No.6456 of 2011 6 contrary to the factual position as revealed from Exts.P14 and 15 and hence the same is wrong and perverse in all respects. 8. In the above circumstances , Ext.P20 is set aside and the 6th respondent is directed to give 'No Objection Certificate' to the petitioner immediately, at any rate within 'one month' from the date of receipt of a copy of this judgment, based on which, the petitioner is at liberty to pursue further steps for getting the necessary sanction from the 1st respondent. It is made clear that, this will not be a bar for the aggrieved persons, if any to challenge the same if the proposed unit of the petitioner is actually situated within the prohibited distance or for the respondents concerned in taking appropriate disciplinary action against those concerned, if the contents of Exts.P14 and P15 are contrary to the actual facts. The writ petition is allowed accordingly. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE ma /True copy/ P.A to Judge