Dismissed

Shabilatha B.S. v. Unnikulam Grama Panchayath

Kerala HC11 Nov 2016WP(C)/22825/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging the rejection of a D&O licence. The Court found the petitioner carried out illegal excavation without a valid mining permit for brick manufacturing and refused to exercise extraordinary jurisdiction to grant a licence.

What did the court decide?

The writ petition was dismissed with no costs. The Geologist was directed to enquire and initiate prosecution proceedings.

Shabilatha B.S. Vs Unnikulam Grama Panchayath — Land Acquisition | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938

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WP(C).No. 22825 of 2016 (C)

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PETITIONER:

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SHABILATHA B.S., W/O.CHANDRASEKHARAN, AGED 52 YEARS, RESIDING AT 'SREYAS', KARUMALA P.O., BALUSSERI, KOZHIKODE DISTRICT.

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BY ADVS.SRI.P.K.RAMKUMAR SMT.ANITHA MENON

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RESPONDENT(S):

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1. UNNIKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O.UNNIKULAM, KOZHIKODE DISTRICT-673612.

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2. T.C.BHASKARAN, AGED 62 YEARS, S/O.KUNHIPERACHAN, RESIDING AT THEERTHAKUZHICHALIL HOUSE, KARUMALA P.O., BALUSSERY, KOZHIKODE DISTRICT-673612.

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3. P.K.SAJEEVAN, S/O.CHANGAROTTY, AGED 45 YEARS, THEERTHAKUZHICHALIL HOUSE, KARUMALA P.O., VIA BALUSSERY, KOZHIKODE DISTRICT-673612.

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*ADDL. R4 & R5 IMPLEADED

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4. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR OF KOZHIKODE, P.O. CIVIL STATION, KOZHIKODE-673001.

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--2--

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WP(C).No. 22825 of 2016 (C)

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5. GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, P.O.CIVIL STATION, KOZHIKODE DISTRICT-673001.

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ADDL. R4 & R5 ARE IMPLEADED AS PER ORDER DATED 6.9.2016 IN IA.14080/2016.

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R1 BY ADV. SRI.T.SHIHABUDHEEN R2 & R3 BY ADV. SRI.P.V.KUNHIKRISHNAN ADDL.R4 & R5 BY SENIOR GOVT.PLEADER SRI.RENIL ANTO

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22825 of 2016 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT PASSED IN WPC NO. 16996 OF 2013 (Y) DATED 23-05-2014.
P2 : TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT PASSED IN WPC NO. 6386/2015 DATED 12-03-2015.
P3 : TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT PASSED IN WPC NO. 11757 OF 2015 DATED 9-4-2015.
P4 : TRUE COPY OF THE INJUNCTION APPLICATION IN O.S.NO. 387/15 AND INTERIM ORDER DATED 23-11-2015.
P5 : TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT AUTHORITIES DATED 29-3-2016 IN PETITION NO. 200/2016.
P6 : TRUE COPY OF THE ORDER DATED 26-05-2016 IN I.A.NO.28/2016 IN PETITION NO. 200/2016 PASSED BY OMBUDSMAN FOR LOCAL SELF GOVT. INSTITUTIONS.
P7 : TRUE COPY OF THE ORDER NO. 1155/16 DATED 30-6-2016 BY THE SECRETARY, UNNIKULAM GRAMA PANCHAYATH.
P8 : TRUE COPY OF THE ORDER OF THE POLLUTION CONTROL BOARD DATED 10-8-2015.
P9 : TRUE COPY OF THE LICENSE ISSUED FOR BRICK MANUFACTURING TO THE PETITIONER FOR THE YEAR 2015-16.
P10 : TRUE COPY OF THE LETTER DATED 29.3.2014 FROM THE GEOLOGIST TO THE DISTRICT COLLECTOR.
P11 : TRUE COPY OF THE SKETCH OF THE SIVAPURAM VILLAGE OFFICER DATED 27.8.2013 ISSUED TO THE PETITIONER.
P12 : TRUE COPY OF THE KERALA GAZATTE NOTIFICATION DATED 30.6.2014.
P13 : TRUE COPY OF THE ORDER DATED 22.2.2016 OF THE GEOLOGIST.
P14 : TRUE COPY OF THEORDER PASSED BY THE UNNIKULAM GRAMA PANCHAYATH TO THE PETITIONER.
P15 : TRUE COPY OF THE COMMUNICATION OF THE TAHASILDAR, KOYILANDY 31.12.2013 TO THE DISTRICT COLLECTOR. --2--

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WP(C).No. 22825 of 2016 (C)

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RESPONDENT(S)' EXHIBITS:

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--------- EXT.R3A:	-------------- TRUE COPY OF THE ORDER DATED 4.8.2014 OF THE SUB DIVISIONAL MAGISTRATE, KOZHIKODE.
EXT.R3B:	TRUE COPY OF THE BUILDING PERMIT NO.A2-359/14-15 DATED 4.9.2014 OF THE SECRETARY UNNIKULAM GRAMA PANCHAYAT.
EXT.R3C:	TRUE COPY OF THE LETTER NO.A6/7203/14 DATED 22.12.2014 FROM THE SECRETARY, UNNIKULAM GRAMA PANCHAYATH TO THE GEOLOGIST.
EXT.R3D:	TRUE COPY OF THE LETTER NO.A6-7203/2014 DATED 21.1.2015 FROM THE SECRETARY, UNNIKULAM GRAMA PANCHAYATH TO THE DEPUTY DIRECTOR OF PANCHAYATH, KOZHIKODE.
EXT.R3E:	TRUE COPY OF THE ORDER NO.A2-2400/16 DATED 26.3.2016 OF THE SECRETARY UNNIKULAM GRAMA PANCHAYAT. //TRUE COPY// P.S. TO JUDGE

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K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.22825 of 2016 - C

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

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Dated this the 11^th day of November, 2016

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J U D G M E N T

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The petitioner is aggrieved with Ext.P7 order passed by the Panchayath. The petitioner had a licence to carry on a brick manufacturing unit under the name and style Royal Building Products. There were objections raised by the nearby property owners on the ground of wide spread excavation having been made in the property of the petitioner, which interfered with the ecological balance of the area and also resulted in the depletion of ground water.

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On proceedings being taken by the various authorities, the petitioner was time and again before this Court; all of which writ petitions were withdrawn as is seen from Exts.P1 to P3. The petitioner then approached the Civil Court against

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W.P.(C) No.22825 of 2016 - C

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certain individuals and obtained an injunction from interfering with the peaceful conduct of the business of the petitioner. The interlocutory application and the order passed, therein is produced at Ext.P4. Here it is to be specifically emphasised that the Panchayath was not a party in the civil suit and injunction against private parties would not enable the petitioner to carry on a business without a D& O licence from the Panchayath.

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The petitioner also approached the Ombudsman for Local Self Government Institutions, twice as is seen from Exts.P5 and P6 and there was a direction to hear the petitioner and dispose of the application for D& O licence. The said application has been rejected by Ext.P7. In Ext.P7, it was found that the petitioner had obtained a building permit from the Panchayath dated 04.09.2014, produced as Ext.R3(b). On the basis of the said building permit wide spread excavation is said to have been carried on relying on the exemptions available for construction of residential house below 300 sq.m as provided in

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W.P.(C) No.22825 of 2016 - C

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the proviso to Rule 14 of the Kerala Minor Mineral Concession Rules, 2015 (for brevity KMMC Rules). It is this excavated earth that was used for the manufacture of bricks, is the ground on which the licence application was rejected. The petitioner seeks interference of Ext.P7 order.

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The 2^nd respondent, one of the residents of the locality has filed a counter affidavit. Ext.R3(a) is a proceedings issued by the Sub Divisional Magistrate, which found illegal excavation having been carried on without permit from the Mining And Geology department; which was sought to be interdicted. The direction in Ext.R3(a) was not to carry on any excavation without a permit from the Geologist for carrying out excavation, which the petitioner is said to have obtained as per Ext.P13. Ext.P13, it is to be noticed; is not a permit for excavation but is a permission to remove the excavated earth, relying on the exemption under the proviso to Rule 14 of the KMMC Rules. It has also been specifically mentioned in Exhibit P13 that the same

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W.P.(C) No.22825 of 2016 - C

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is issued on an application made by the petitioner for excavation of earth for the purpose of house construction. The petitioner is said to have carried out such excavation, but however no building was constructed, is the specific contention taken by the respondent Panchayath as also the party respondents.

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This Court had directed the impleadment of the Geologist who has filed a report along with a memo dated 31.10.2016. It has been stated in the report that after royalty for ordinary earth was introduced there were excavations carried on and in that circumstance, the Geologist had taken proceedings for levy of royalty. It is hence clear that the petitioner had carried on the brick manufacturing activities on the basis of the building permit issued and with the raw materials as obtained from the excavation of ordinary earth, without a valid permit. It is not clear as to why the Geologist has not initiated proceedings for prosecution for illegal excavation, especially since, the petitioner is not seen to have constructed a building as has been

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W.P.(C) No.22825 of 2016 - C

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permitted in Ext.R3(b).

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Considering the facts and the illegal excavation having been conducted, which ordinary earth was used for the

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purpose of brick manufacturing, this Court is not inclined to interfere with Ext.P7. There shall also be a further direction to the 5^th respondent Geologist to enquire into the matter and initiate prosecution proceedings against the petitioner, since admittedly, excavation was carried out without a valid permit based on the exemption under Rules 14 of the KMMC Rules as relied on from Ext.R3(b) permit. If there is no building constructed as per Ext.R3(b), then necessarily, the proceedings for prosecution would have be to initiated against the petitioner. Considering the entire facts and circumstances, this Court is not inclined to invoke its equitable, extraordinary jurisdiction to direct any consideration of a further licence to the petitioner, especially since, the petitioner has been involved in illegal excavation of earth.

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W.P.(C) No.22825 of 2016 - C

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For all the above reasons, the writ petition is found to

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be devoid of merit and the same would stand dismissed. No

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costs.

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Sd/-

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K. VINOD CHANDRAN,

JUDGE

SB/11/11/2016

// true copy //

P.A to Judge

Shabilatha B.S. v. Unnikulam Grama Panchayath

Case brief

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Shabilatha B.S. v. Unnikulam Grama Panchayath

Case brief

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