Remanded

John Joseph v. the District Collector

Kerala HC8 Jan 2015WP(C)/34412/2014

Case brief

AI extract

What is this about?

Petitioner sought a writ of certiorari to set aside an order rejecting his application for a No Objection Certificate to mine sand on his property. The court held that sand mining is exempt from the 50-meter restriction but must be 10 meters away from the river bank.

What did the court decide?

Setting aside the impugned order and directing the respondent to reconsider the application for No Objection Certificate within six weeks.

John Joseph Vs the District Collector — Environment and Pollution | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THURSDAY, THE 8TH DAY OF JANUARY 2015/18TH POUSHA, 1936

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WP(C).No. 34412 of 2014 (B)

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PETITIONER :

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JOHN JOSEPH, S/O JOSEPH,AGED 50 YEARS, THEREZHATH, UDAYANAPURAM P.O, VAIKOM TALUK, KOTTAYAM DISTRICT.

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BY ADVS.SRI.P.M.ZIRAJ SRI.A.M.ABDULLA SRI.O.M.SAJAYAN SRI.K.S.DHANESH KUMAR SRI.K.S.SREENATH SMT.RESHMA P.JOSEPH SMT.SUBI.K SRI.P.MOHAMED SABAH

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM DISTRICT -686 531

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2. THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM DISTRICT -686 531

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R1 & R2 BY SR GOVERNMENT PLEADER SRI.K.C.VINCENT

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 34412 of 2014 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE TAX RECEIPT DATED 26-05-2014 ISSUED BY THE VILLAGE OFFICER, VADAKKEMURI VILLAGE
EXHIBIT P2	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 18-07-2014 ISSUED BY THE VILLAGE OFFICER, VADAKKEMURI VILLAGE
EXHIBIT P3	TRUE COPY OF THE SITE PLAN OF THE PROPERTY FROM WHERE PETITIONER INTENDED TO THE EXTRACT AND REMOVE ORDINARY SAND.
EXHIBIT P4	TRUE COPY OF THE APPLICATION DATED 27-06-2014 SUBMITTED BY THE PETITIONER BEFOR ETHE FIRST REPSONDENT
EXHIBIT P5	TRUE COPY OF THE ORDER DATED 14-12-2014 PASSED BY THE FIRST RESPONDENT

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RESPONDENT(S)' EXHIBITS: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

P.R. RAMACHANDRA MENON, J.

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========================

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W.P.(C). No. 34412 of 2014

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-------------------------------------------Dated this the 8th day of January, 2015

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JUDGMENT

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The petitioner has approached this Court with the following

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prayers:

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“1. Issue a writ of certiorari or any other appropriate writ, direction or order by calling for the records leading to the issuance of Ext.P5 order and set aside the same as illegal.

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Issue a writ of certiorari or any other appropriate writ, order or direction, directing the first respondent to consider and dispose Ext.P4 application of petitioner for mining ordinary sand afresh after conducting a proper enquiry in the subject matter and after giving an opportunity to the petitioner for personal hearing.

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Declare that the certificate from the Kerala State Environmental Impact Assessment Authority is not required for mining ordinary sand from the private property of petitioner.”

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The learned counsel for the petitioner submits that, the

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petitioner is the owner of the property having an extent of 129 Ares situated in Sy.No. 30/1, 31/1B, 31/A1 of Vadakkemuri Village and enjoying the same, also remitting tax as borne by Ext.P1 issued by the concerned Village Officer. Ext.P2 is the Possession Certificate and Ext.P3 is the site plan. The petitioner intends to carry out some sand mining in the property and accordingly Ext.P4 application was submitted before the 1st

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W.P.C. No. 34412 of 2014 -2-

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respondent for granting NOC so as to enable him to approach the concerned Geologist for further steps. The said application was rejected as per Ext.P5 dated 14.12.2014 which in turn is under challenge in this writ petition.

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Heard the learned counsel for the petitioner as well as the learned Government Pleader.

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With reference to the materials on record, the learned counsel for the petitioner points out that, even as per Ext.P5, the 1st respondent points out that the distance between the property and canal is above 50 mtrs (51 mtrs) and NOC has been rejected stating that there was chance to have adverse impact with regard to environmental aspects. It is stated that, petitioner is ready to produce 'clearance certificate' before the concerned Village Officer and the present request is to have NOC in so far as the property is situated more than 50 mtrs from the Bank of the river/canal. The relevant provisions in this regard is Rule 29(i) of the Kerala Minor Mineral Concession Rules, 1967 which is extracted below:

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“Rule 29(i) The lessee shall not carry on, or allow to be carried on any mining operations at any point within a distance of 75 metres from any railway line, except under and in accordance

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W.P.C. No. 34412 of 2014

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-3-

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with written permission of the railway administration or from any bridge on National Highway or 50 metres from any reservoir, tanks, canals, roads, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds or burning ghats, except under and in accordance with the previous permission of the State Government or the competent authority. The railway administration or the State Government or the competent authority may in granting such permission impose such conditions as may be found necessary.”

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On going through the said Rule, it is seen that the mining activities cannot be conducted within 75 metres from railway line, except under and in accordance with written permission of the railway administration or from any bridge on National Highway or 50 metres from any reservoir, tanks, canals, roads, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds or burning ghats, except under and in accordance with the previous permission of the State Government or the competent authority. The provision therein specifically make it clear that, no mining operation shall be carried on within 50 metres of any river bank except in the case of mining sand. This means sand mining stands exempted and is permissible to be done within 50 metres

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W.P.C. No. 34412 of 2014 -4-

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from the river bank. The learned counsel for the petitioner also brought to the notice of this Court that, the permit has to be issued in the relevant form i.e., Form U which is in terms of Rule 3, 4(1A) of the Kerala Minor Mineral Concession Rules, 1967. Condition No.2 of the said Form clearly stipulates the course open which reads as follows:

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“2. No Quarrying shall be done within 75 meters of the Railway line and bridges or 50 meters from State Highway, residential buildings and river banks. In the case of sand and ordinary clay the mining operation shall be carried out only 10 meters away from the river bank.”

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The said condition clearly shows that, even though mining of sand is permissible to be done within 50 mtrs from the river bank, there has to be a restriction in the activity by confining the same after leaving a gap of 10 mtrs from the river bank and such activity is possible only in the remaining extent. The learned counsel for the petitioner submits that the petitioner is ready to comply with the said condition as well.

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In the above circumstance, the writ petition is disposed of, directing the 1st respondent to reconsider Ext.P4 application

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preferred by the petitioner for granting NOC. The proceedings as

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W.P.C. No. 34412 of 2014 -5-

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above shall be finalized after hearing the petitioner at any rate, within 'six weeks' from the date of receipt of a copy of the judgment. It will be for the petitioner to produce the environmental clearance before the Geologist for obtaining the permit and if any such permit is granted the conditions and the relevant provisions of the law shall be strictly complied with while giving effect to the activity. Ext.P5 will stand set aside so as to facilitate such exercise.

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The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the first respondent for further steps.

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P.R. RAMACHANDRA MENON, JUDGE.

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kp/-

John Joseph v. the District Collector

Case brief

What is this about?

What did the court decide?

John Joseph v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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