Disposed

Faziludeen v. State of Kerala

Kerala HC16 Nov 2019WP(C)/12089/2019

Case brief

AI extract

What is this about?

Petitioner challenged the Geologist's inaction on his quarrying permit application for removing ordinary earth for residential construction. The Court declined to decide on merits but directed the Geologist to consider the application and dispose of it within two months following due procedure after petitioner submitted necessary documents.

What did the court decide?

The District Geologist directed to take up the petitioner's application (Ext.P3) and dispose of it within two months of receiving a copy of the judgment after affording an opportunity of hearing.

Faziludeen Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941

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WP(C).No.12089 OF 2019(I)

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PETITIONER:

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FAZILUDEEN, AGED 57 YEARS, S/O.MUHAMMED MUSTHAFA, DARULAHUVAN,VAZHAKKODU, NILAMEL.P.O, NILAMEL VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT,PIN-691 535.

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BY ADVS. SRI.K.SIJU SRI.S.ABHILASH SMT.S.REKHA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERMENT, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 DIRECTOR OF MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM.P.O, THIRUVANANTHAPURAM-695004.

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3 THE DISTRICT GEOLOGIST, OFFICE OF MINING AND GEOLOGY, KESAVANIKETHAN, ASRAMAM, KOLLAM-691002.

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4 THE NILAMEL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, NILAMEL.P.O,KOLLAM DISTRICT-691535.

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SRI. K.J. MANURAJ, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.12089 OF 2019 2

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JUDGMENT

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The petitioner has approached this Court complaining that his application for quarrying permit, so as to enable him to remove ordinary earth from his property for construction of a residential complex, namely Ext.P3, has not been taken up and disposed by the Geologist. The petitioner says that the Geologist is enjoined in law to consider his application and to issue appropriate orders thereon; and alleges that failure to do so amounts to abdication of his duties. He, therefore, prays that the Geologist be directed to issue orders on Ext.P3 within a time frame to be fixed by this Court.

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The learned Government Pleader - Sri.Manuraj K.J. appearing on behalf of the 3^rd respondent submits that a detailed counter affidavit has been filed, wherein the following had been stated:-

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It is true that an application i.e Exthibit P3 for quarrying permit was received by this respondent on 05.10.2018 from the power of attorney holder of the petitioner to remove ordinary earth from 21.05 ares of land comprised in survey No.431/3/2, 431/3/5/2, 431/3/5/3, 431/3/5/4/1, 431/3/5/4/2 Nilamel Village, Kottarakkara Taluk, Kollam district in order to

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WP(C).No.12089 OF 2019 3

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construct a commercial building whose plinth area is 416.06m² . On processing the application this respondent found that the plinth area of the proposed building is more than 300 m² and the development permit submitted by the applicant showed that a huge quantity of ordinary earth, that is 4914 m³ (9828MT) has to be removed from the averred site. This site is a hilly terrain and petitioner wants to erase the hilly terrain without environmental clearance and level it to the road level. Moreover, the application submitted lacked other statutory documents under Rule 4 of the Kerala Minor Mineral Concession Rules, 2015 also, since Kerala Minor Mineral Concession Rules, 2015 Rule 14(2) states that environmental clearance is a must for extraction of ordinary earth in case of construction of building over plinth area 300 m² and also since the application submitted lacked certain documents, the applicant was asked to submit Environmental clearance from the concerned authority and other documents including identity cards of the petitioner as well as of the power of attorney for considering his application by communication dated 22.10.2018. But, no response was received from the applicant/his power of attorney regarding this so far. Hence the application was not processed further and there is no inordinate delay in processing the application from the part of the respondent as averred by the petitioner.

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The learned Government Pleader says that it is, therefore,

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WP(C).No.12089 OF 2019 4

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obvious from the afore extracted averments in the counter affidavit that the petitioner has preferred Ext.P3 without any of the required documents and consequentially, that the Geologist has been incapacitated from considering the said application; and thus prays that this writ petition be dismissed.

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In response, Smt.Rekha S., learned counsel appearing for the petitioner, submitted that the counter affidavit, the averments of which have been extracted above, was filed as early in June 2019 and that her client has now preferred all the necessary information and documents. She, therefore, prays that this Court may direct the Geologist to consider Ext.P3, however, without insisting on environmental clearance, since her client is relying on the notification issued by the Government of India, dated 14.09.2006 , wherein it is stipulated that a project involving a construction up to 20,000 sq.m is not required to get a prior environmental clearance. She further adds that this notification has been approved by this Court in Ext.P4 judgment.

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Even when I hear Smt.Rekha S. on the afore lines, it will be premature for this Court to make any affirmative declarations in favour of the petitioner, since it is up to the Geologist to consider Ext.P3 in terms of law, if the petitioner has already preferred all necessary documents and materials as per the

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WP(C).No.12089 OF 2019 5

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applicable Statutes and Regulations. I am, therefore, of the view that this Court will only be justified in asking the Geologist to consider the petitioner's application and issue appropriate orders thereon, leaving the petitioner liberty to pursue all his contentions before the said Authority when it is so done.

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Resultantly, without entering into the merits of any of the rival contentions of any parties, I order this writ petition and direct the 3^rd respondent - Geologist to take up Ext.P3 application of the petitioner and dispose of the same in terms of law, after affording an opportunity of hearing to him, and following due procedure, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.

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I make it clear that I have not found any entitlement in favour of the petitioner in this judgment and it will be up to the Geologist to take an apposite decision, after assessing and evaluating all the relevant and necessary inputs and materials.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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sru

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WP(C).No.12089 OF 2019 6

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF BUILDING PERMIT DATED 28.6.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P2 THE TRUE COPY OF DEVELOPMENT PERMIT DATED 28.6.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF THE APPLICATION DATED 25.1.32019 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF JUDGMENT IN W.P(C)NO.10931/2018 DATED 04.04.2018 OF THE HON'BLE HIGH COURT OF KERALA.

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RESPONDENTS' EXHIBITS:NIL

Faziludeen v. State of Kerala

Case brief

What is this about?

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Faziludeen v. State of Kerala

Case brief

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