IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 21576 of 2011(V) -------------------------- PETITIONER(S): ----------------------- 1. KOCHUPAULOSE @ P.P. PAUL PANACKAL HOUSE, VALLAKOM, VAIKOM TALUK KOTTAYAM DISTRICT. 2. SALOMY PAUL, PANACKAL HOUSE, VALLAKOM, VAIKOM TALUK KOTTAYAM DISTRICT. 3. NIRMALA PAUL PANACKAL HOUSE, VALLAKOM, VAIKOM TALUK KOTTAYAM DISTRICT. 4. THRESSIAMMA PAULOSE PANACKAL HOUSE, VALLAKOM, VAIKOM TALUK KOTTAYAM DISTRICT. PETITIONERS I TO 4 REP BY THE POWER OF ATTORNEY HOLDER MR.MOHAN PAUL, PANACKAL HOUSE, VALLAKOM, VAIKOM TALUK KOTTAYAM DISTRICT. 5. PEEETHAMBARAN, KALLAPRATHARA HOUSE UDAYANAPURAM PO,VAIKOM TALUK,KOTTAYAM DISTRICT. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM 686 002. 2. THE GEOLOGIST, MINING & GEOLOGY DISTRICT OFFICE, CIVIL STATION, COLLECTORATE PO, KOTTAYAM 686 002. 3. THE TAHSILDAR, VAIKOM TALUK OFFICE, VAIOM PO, KOTTAYAM DISTRICT 686 608. WPC NO.21576/11 -2- 4. THE VILLAGE OFFICER VADAKKEMURI VILLAGE OFFICE UDAYANAPURAM PO, VAIKOM,KOTTAYAM DISTRICT 686 143. 5. THE AGRICULTURAL OFFICER AGRICULTURAL OFFICE,PADINJAREKKARA PO VAIKOM, KOTTOYAM DISTRICT. GOVT.PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21576/11 APPENDIX PETITIONERS' EXHIBITS EXT.P1: A TRUE COPY OF THE SALE DEED DATED 25.2.1975. EXT.P2: A TRUE COPY OF THE PADDY LAND AND WET LAND IDENTIFICATION DETAILS KEPT IN THE OFFICE OF THE FOURTH RESPONDENT AND THE FIFTH RSPONDENT ISSUED TO THE PETITIONERS 1 TO 4 WITHOUT DATE. EXT.P3: A TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE POWER OF ATTORNEY HOLDER OF THE PETITIONERS 1 TO 4 AND THE FIFTH PETITIONER DT 16.6.11. EXT.P4: A TRUE COPY OF THE APPLICATION FOR NO OBJECTION CERTIFICATE DT 16.6.11 FILED BY THE 5TH PEITIONER BEFORE THE FIRST RESPONDENT. EXT.P5: A TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, THE 4TH RESPONDENT DT 24.6.11 WITH THE SKTCH OF THE PROPERTY BEFORE THE THIRD RESPONDENT. EXT.P6: A TRUE COPY OF THE REPROT DT 1.7.11 SUBMITTED BY THE 3RD RESPODNENT BEFORE THE 1ST RESPONDENT. EXT.P7: A TRUE COPY OF THE ARGUMENT NOTES DT 6.7.11 SUBMITTED BY THE FIFTH PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P8: TRUE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY WHEREIN THE FIFTH PETITIONER SOUGHT NOC FOR MINING ORDINARY SAND. EXT.P9: A TRUE COPY OF THE ORDER DT 2.8.11 ISSUED BY THE FIRST RESPONDENT TO THE FIFTH PETITIONER. EXT.P10: A TRUE COPY OF THE JUDGMENT DATED 21.3.2011 PASSED BY THIS HON'BLE COURT IN W PC NO.6456/11 //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 21576 OF 2011 ===================== Dated this the 25th day of August, 2011 J U D G M E N T Ext.P4 is an application made by the 5th petitioner to the 1st respondent for NOC for the purpose of quarrying ordinary sand from the property situated in Sy.No.127/1 and 127/5 of Vadakkemury Village. The case of the 5th petitioner is that such application was made on the basis that he had entered into Ext.P3 agreement with petitioners 1 to 4 who are the owners of the said property. The request has been turned down by Ext.P9 order passed by the 1st respondent mainly on the ground that in the BTR, the land in question has been shown as a wet land. It is challenging Ext.P9, this writ petition has been filed. 2. The contention raised by the learned counsel for the petitioners is mainly that in Ext.P1 sale deed of 1975, the land has been shown as a reclaimed land and that in Ext.P2, the joint report prepared by the Village Officer and the Agricultural Officer containing details of the paddy land and wet land, the land in question has been shown as reclaimed 20 years ago. 3. Petitioners further submit that in view of the principles WPC No. 21576/11 :2 : laid down by this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899) and Praveen v. Land Revenue Commissioner (2010(2) KLT 617), 1st respondent would not have gone merely on the basis of the entries in the BTR Register, but should have been guided by the actual state of affairs. 4. Learned Government Pleader on the other hand sought to justify Ext.P9 contending that even going by the documents produced by the petitioners, the land was only a reclaimed one and therefore was a wet land. It is stated that so long as the BTR Register remains as such, respondents can go only on the basis that the land is a wet land. 5. I have considered the submissions made by both sides. Petitioners are well founded in their submission that in view of the principles laid down by this Court in the aforesaid judgments, the 1st respondent could not have gone merely on the basis of the entires in the BTR Register. If that be so, the fact that the land is not a wet land and is a reclaimed land, is obvious from Ext.P1 sale deed and Ext.P2 verification report referred to above. 6. Therefore, necessarily, the conclusion in Ext.P9 is WPC No. 21576/11 :3 : unsustainable and I quash Ext.P9 and direct that, on the production of a copy of this judgment, the 1st respondent will reconsider Ext.P4 application made by the 5th petitioner based on Ext.P3 agreement between himself and petitioners 1 to 4 duly adverting to the judgments referred to above, Ext.P1 sale deed and Ext.P2 verification details. 7. It is made clear that if ultimately the order passed is to permit the petitioners to mine ordinary sand, the 1st respondent shall impose sufficient conditions for filling up the land suitably as held by this Court in the judgment in Soman v. Geologist (2004 (3) KLT 577) and in the light of the provisions contained in Rule 5 of Kerala Minor Mineral Concession Rules. Orders as above shall be passed at any rate within 6 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp