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The High Court of Kerala passed a judgement on  17 January, 2023which stated that no quarrying could have been undertaken in the property for the basic reason that the area wherein the property in question is situated, is a red zone area in the zonation map, and therefore, quarrying is prohibited. It was stated in the case of Augustine Joseph vs Poonjar Thekkekkara Grama Panchayat (WA NO. 1515 OF 2022) which was passed by the division bench comprising of THE CHIEF JUSTICE MR.S.MANIKUMAR and JUSTICE SHAJI P.CHALY

 

FACTS OF THE CASE:

The petitioner is the absolute owner and in possession of 70.70 Ares of land in Sy. Nos.3414/8, 130/1-4 in Ward No.9 of Poonjar Thekkekara Village, Meenachil Taluk, Kottayam. He is remitting tax in respect of the said property and mutation of the property has been effected in his name. With the intention of erecting a residential house, having a total plinth area of 165.35 M2 in his property, petitioner had obtained building permit and development plan for developing required area and to remove ordinary earth quantity of 286.15 cubic meters from his property. It is submitted that, after excavating the ordinary earth, as permitted by the 1st respondent – Poonjar Thekkekkara Grama Panchayat, Represented by its Secretary, Kottayam, as per Ext.P5, a bed of rock was found. To lay foundation of the building, it was necessary to remove the rock. Otherwise, it is not possible to do the abovesaid residential building over the stones found in the property of the petitioner. Hence, petitioner approached the 3rd respondent – Geologist, Mining and Geology Department, Kottayam, intimating his intention to extract a certain quantity of rock beneath the ordinary earth. As instructed by the 3rd respondent, petitioner approached the 2nd respondent, Village Officer, Poonjar Thekkekkara Village Office, Kottayam, who, in turn, inspected the petitioner’s property and demarcated the proposed plot for removing rocks .Petitioner approached the 3rd respondent and submitted an application under Rule 106 of KMMC Rules, 2015, for issuance of required number of transit passes for transportation of the extracted quantity of rocks. After that, petitioner broke the abovesaid bed of rocks into pieces, by using a breaker, and kept in his property itself.The 3rd respondent conducted an inspection of the petitioner’s property and assessed the quantity of the rocks kept therein. According to the 3rd respondent, the quantity of rocks kept in the property of the petitioner is estimated as 805.86M3. Then, the 3rd respondent permitted the petitioner to remit royalty for the ascertained quantity, which was fixed as Rs. 48,352/-. The petitioner remitted the same . However, to the surprise and shock of the petitioner, the 3rd respondent issued letter seeking clarification of the quantity of the rock to be removed to the 1st respondent. Thereafter, the 1st and 2nd respondents imposed a restriction on the petitioner by orders from carrying out further works in his property. By doing so the 1 st and 2nd respondents acted contrary to challan. The petitioner is highly aggrieved by the orders issued by the respondents and non-consideration of request before the 3rd respondent. Hence the Writ Petition was filed seeking a direction to the 3rd respondent to grant permission for the transportation of rocks having a quantity of 805.86 M3 from the property of petitioner in tune with challan and to quash orders issued by the respondents.

 

JUDGEMENT OF THE CASE

The court concluded that the attempt made by the appellant was to conduct a quarrying operation, especially due to the fact that according to the 3rd respondent – Geologist, the entire nearby areas are rocky.The construction was to be carried out by the appellant by removing 286.15 cubic metres of ordinary earth, for which alone development permit was granted by the Secretary of the Grama Panchayat. Therefore, if the appellant indeed wanted to remove the rock, in order to develop the property further, for construction of the building, necessarily, a revised permit ought to have been secured from the Secretary of the Grama Panchayat. The statutory provisions under the Kerala Minor Mineral Concession Rules, 2015, it is quite clear and evident that anyone, who, contravenes the provisions of Rules, 2015, shall be punishable with imprisonment for a term which may extend to two years, or with a fine which may extend to five lakh rupees or with both and in the case of continuing contravention, with an additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.Therefore, it was deduced that it was in the precarious situation, as aforesaid, the respective statutory authorities have issued the impugned orders, which cannot be said to be illegal or arbitrary, justifying interference of a writ court. In sum and substance, learned single Judge was right in refusing interference with the action of the respective statutory authorities.Above all, no quarrying could have been undertaken in the property for the basic reason that the area wherein the property in question is situated, is a red zone area in the zonation map prepared by the District Disaster Management Authority, and therefore, quarrying is prohibited. In that view of the matter, the court held that the appellant has made out any case of jurisdictional error or other legal infirmities justifying us to interfere in the judgment of the learned single Judge in an intra-court appeal. Writ appeal failed. Accordingly, it was dismissed. 

 

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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.

 

Click here to view judgment.