IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 22618 of 2009(V) -------------------------- PETITIONER(S): --------------- P.L.MOHANAN, S/O. PARAMESWARAN, AGED 51, LAKSHMI VILASAM, MANTHANAM MURI, KUNANTHANAM P.O., MALLAPPALLY, PATHANAMTHITTA DT. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE (P) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. 3. THE SUB COLLECTOR, THIRUVALLA. 4. THE ADDL. TAHSILDAR, TALUK OFFICE, THIRUVALLA. 5. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, PATHANAMTHITTA. ADV. SRI.ISAAC KURUVILLA ILLIKAL,COMMISSIONER GOVERNMENT PLEADER SRI.SUNIL KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22618 of 2009 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF AGREEMENT DATED 20.11.06 EXECUTED BETWEEN PETITIONER & OTHERS WITH MINI PHILIP EXT.P2- TRUE COPY OF PERMIT DATED 1.1.07 ISSUED BY 5TH RESPONDENT GEOLOGIST, DISTRICT OFFICE, PATHANAMTHITTA EXT.P3- TRUE COPY OF PROCEEDINGS DATED 1.1.08 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT EXT.P4- TRUE COPY OF APPLICATION DATED 23.1.08 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT EXT.P5- TRUE COPY OF DOCUMENT NO.2122/08 DATED 21.6.08 OF THIRUVALLA SRO EXT.P6- TRUE COPY OF DOCUMENT NO.2121/08 DATED 21.6.08 OF THIRUVALLA SRO EXT.P7- TRUE COPY OF LETTER DATED 23.1.08 ISSUED BY TE 5TH RESPONDENT EXT.P8- TRUE COPY OF REPORT DATED 3.6.08 SUBMITTED BY THE VILLAGE OFFICER EXT.P9- TRUE COPY OF PROCEEDINGS DATED 20.6.08 ISSUED BY THE 3RD RESPONDENT EXT.P10- TRUE COPY OF LETTER DATED 22.7.08 ISSUED BY THE 3RD RESPONDENT EXT.P11- TRUE COPY OF PROCEEDINGS DATED 3.10.08 BY THE 2ND RESPONDENT EXT.P12- TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR REVENUE DATED 12.1.09 EXT.P13- TRUE COPY OF ORDER DATED 18.2.09 PASSED BY THE 1ST RESPONDENT EXT.P14 SERIES- TRUE COPY OF PHOTOGRAPHS EXT.P15- TRUE COPY OF JUDGMENT IN W.P.(C).6505/09 DATED 26.3.09 EXT.P16- TRUE COPY OF ORDER OF 1ST RESPONDENT DATED 3.8.09 (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).22618/2009 -------------------- Dated this the 29th day of October, 2009 JUDGMENT Property having an extent of 66 cents in Old Survey Nos. 521/3 and 521/4, Re-Survey No.111/6-2 in Block No.10 of Kuttoor Village, Thiruvalla Taluk, belonged to one Mini Mol Philip. Petitioner and the others entered into Ext.P1 agreement for conducting quarrying of sand from the said property. It seems that certain rubber trees standing in the property were cut and removed. One of the partners of the firm, constituted by the petitioner also, obtained a quarrying permit, Ext.P2. But the period of validity of Ext.P2 was extended till 31.3.2007 and then an application was submitted for renewal of the same. It seems that the quarrying continued in spite of the expiry of the permit and the 4th respondent, the additional Tahasildar, issued a stop memo. Geologist, the competent authority to renew the permit, sought for the permission of the Sub Collector to renew the same. This was granted under Ext.P3, subject to conditions. In the meanwhile, the person in whose name the permit was originally issued, Mr.Syed Mohammed, retired from the firm. Petitioner and another acquired title to the property from W.P.(C).22618/09 2 where the quarrying was done earlier, as per Ext.P5. On the application for renewal of the permit submitted by the erstwhile owner and continued by the subsequent owners, the Geologist, the competent authority sought for the permission of the District Collector in this regard. Ext.P8 report was submitted by the Village Officer, presumably as part of the process for a report to be submitted before the District Collector. Ultimately by Ext.P11 communication, District Collector, after referring to the nature of the land in question, affirmed that the land was shown as 'Nilam' in the revenue records. Going by the actual ground situation, a re-classification of the land from 'Nilam' to 'Purayidam' was sought for. 2. By Ext.P13 order, the permission sought for in this regard was declined. This was challenged by the petitioner in W.P.(C). 6505/2009. Referring to the report of the District Collector also, this Court set aside Ext.P13 order and directed a fresh consideration in the light of Ext.P11 report of the District Collector. The matter was re-considered by the Government and the request made for re-classification was rejected under Ext.P16, which has been challenged in the writ petition. W.P.(C).22618/09 3 3. An Advocate Commissioner was deputed from this Court to conduct a local inspection and submit a report. The Commissioner has filed a report. 4. Counter affidavit has been filed by the Government. I heard learned counsel for the petitioner and learned Government Pleader. 5. A perusal of Ext.P16 order would show that essentially the Government has proceeded on the premise that the land in relation to which a renewal of the quarrying permit has been sought, is situated by the side of a river. The land was not extensive enough to generate a further 1000 MT of sand there from and therefore, intention of the applicant seems to be make use of the proximity of the land to the river and remove river sand unauthorizedly. 6. I am afraid that the approach made in this regard is not correct. Application for renewal of a permit earlier granted under the Mine and Mineral Concession Rules was referred by the competent authority to the District Collector and the District Collector had thereafter, by Ext.P11 sought for the W.P.(C).22618/09 4 permission of the Government to re-classify the land. The actual terrain of the land currently available and the question as to whether there are adjacent paddy fields or wet lands was considered and the District Collector reported that in the absence of any paddy cultivation or signs of the same in the land and the absence of any paddy field in the neighbourhood, taking note of the fact that there seems to have been Rubber cultivation years earlier, request was made for conversion of the land. Government does not say in Ext.P16 order that the factual details given in Ext.P11 are incorrect. Nor was there any other material, before the Government indicating that the contents of Ext.P11 are factually wrong or unreliable. 7. Detailed report of the Advocate Commissioner deputed from this Court affirms the stand taken by the petitioner as regards the physical characteristics of the land obtaining at present. The request made by the District Collector in Ext.P11 and which request was required to be considered by the Government was for a re-classification of the land for the purposes of the Land Utilisation Order. That has not been dealt with properly. W.P.(C).22618/09 5 8. Learned Government Pleader submits that the intention of the petitioner is only to mine sand from the property. The application is for a quantity of 1000 MT. The land in question, it seems, would not be able to absorb such exploitation. 9. It is upto the competent authority under the Mine and Mineral Concession rules, to first ascertain whether a renewal of the permit is necessary. Local inspection of the land in question is obviously required in the first instance. In the present case, since the issue had reached the level of the Government, it is appropriate that the petitioner's application for renewal of the permit may be dealt with by the Director of Geology itself. But this should be preceded by a proper order by the Government in the place of Ext.P16. 10. Accordingly, Ext.P16 is quashed. Government is directed to pass fresh orders on the request made by the District Collector as per Ext.P11, taking note of the findings given by the Advocate Commissioner, appointed by this Court in its report. Copy of the report along with the copy of the writ petition shall also be forwarded to the Government. Petitioner's representation shall be heard before such orders are passed. W.P.(C).22618/09 6 11. I make it clear that the Government shall pass orders as regards the request for re-classification of the land in the light of the physical characteristics of the land that is currently obtaining. Such order shall be passed within two months from the date of receipt of a copy of this judgment. Copy of the order shall be forwarded to the Director of Mining and Geology simultaneous to the copy being forwarded to the petitioner also. The Director of Mining shall thereafter, take up the petitioner's application for renewal of the permit and subject to compliance with any statutory formalities, a decision shall be taken on the application for renewal of the permit, after notice to the petitioner, within one month from the date of receipt of the order to be passed by the Government as directed herein. Writ petition is disposed of as above. V.GIRI, Judge mrcs