Dismissed

Babu N.P v. Department of Mining and Geology

Kerala HC3 Mar 2020WA/286/2020

Case brief

AI extract

What is this about?

Single judge dismissed the writ petition challenging rejection of letter of intent due to building proximity. Appeal held that Rule 10 does not apply because explosives are intended for quarrying. Appeal dismissed on merits.

What did the court decide?

Appellant's writ appeal was dismissed. Rule 10 of Kerala Minor Mineral Concession Rules, 2015 held inapplicable where explosives are used.

Babu N.P Vs Department of Mining and Geology — Mining and Natural Resources | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941

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WA.No.286 OF 2020

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AGAINST THE ORDER/JUDGMENT IN WP(C) 17247/2019(E) OF HIGH COURT OF KERALA

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APPELLANT/S:

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BABU N.P., AGED 52 YEARS S/O. NJARAMPILLYVEETIL PADMANABHAN, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNAD TALUK, MANAGING PARTNER, M/S. EXEL GRANITES, KODANAD P O, ERNAKULAM-683544.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENT/S:

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1 DEPARTMENT OF MINING AND GEOLOGY REPRESENTED BY THE DIRECTOR, OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, THIRUVANANTHAPURAM-695001,

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2 THE SENIOR GEOLOGIST OFFICE OF THE SENIOR GEOLOGIST, MINING DEPARTMENT, DISTRICT OFFICE, KOTTAYAM-686002.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.286 OF 2020

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J U D G M E N T

S.Manikumar, CJ.

Instant writ appeal is filed by the writ petitioner against the judgment made in WP(C) No.17247 of 2019 dated 02.09.2019, by which the writ court dismissed the writ petition taking note of the law laid down in the decisions cited therein. Operative portion of judgment in WP(C) No.17247 of 2019 dated 02.09.2019 reads thus:

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“18. In view of the law laid down in the decisions referred to supra, no interference on Ext.P2 communication dated 08.03.2019 issued by the 2^nd respondent, whereby the request made by the petitioner for grant of letter of intent stands rejected, is warranted in exercise of the writ jurisdiction under Article 226 of the Constitution of India, on the grounds raised in this writ petition.

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In the result, this writ petition filed on 24.06.2019 challenging Ext.P2 communication dated 08.03.2019 issued by the 2^nd respondent is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail the statutory remedy of appeal under Rule 98 of the Kerala Minor Mineral Concession Rules, against Ext.P2, if so advised.

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Though the writ petition was dismissed with liberty to the

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writ petitioner to a prefer statutory appeal under Rule 98 of the Kerala

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WA.No.286 OF 2020

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Minor Mineral Concession Rules, he has not chosen to prefer any statutory appeal and has proceeded to file instant writ appeal challenging the above said judgment. Short facts leading to the appeal are as follows:

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“WP(C) NO. 17247 of 19 before the learned single judge of this Hon'ble Court was filed by the appellant where the appellant contended that there is a communication served on him on the basis of the request submitted by the appellant for the purpose of issuance of the letter of intent in terms of the provisions of the Kerala Minor Mineral Concession Rules, 2015 where, in the communication it is stated that since within a radius of 50 meters buildings are situated the letter of intent cannot be issued. The application was produced by the appellant as Ext P1 and it contained these specifications as to the property details and the requirement to have the grant of quarrying permit as pertaining to the properties are all described therein. As a matter of fact within a radius of 50 meters from the outer point of the area proposed to be used as the mining area there are no buildings which are situated. The only building situated is the office building of the firm and this cannot be taken to be an obstruction by any other person. The communication was produced as Ext P2 and seeking to quash the same and for issuing appropriate directions on the basis of Ext P1 for the issuance of letter of intent that the writ petition was filed. This is the only objection that the respondents have in the matter and as a matter of fact the

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WA.No.286 OF 2020

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learned single judge was convinced of this. But the learned single judge states that the objector could not waive a statutory requirement. Besides it is also ordered that the appellant can seek the statutory remedy of preferring an appeal. There is no dispute to be resolved. The building is in the control of the appellant. He only said that if it is assured that the letter of intent could be granted then he can demolish the building. The request of the appellant ought to have been allowed. Hence being aggrieved the appellant begs leave to prefer this appeal.”

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Before the writ court, a counter affidavit has been filed by the 2^nd respondent. Paragraph 3 of the said counter affidavit reads thus;

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“3. It is most humbly submitted that on 01.10.2018 the petitioner placed an application before the 2^nd respondent's office in Form 'A' for obtaining quarrying permit for the extraction of Granite (Building Stone) for an area of 0.9995 hectares comprised in Block No.39 of Re-Survey Nos.286/1, 286/2 in Meenachil Village of Meenachil Taluk in Kottayam District. Along with the application, petitioner submitted mandatory documents like, Possession and Enjoyment Certificate, Survey Map, Non-Assignment Certificate and Demarcation Certificate of the applied area. As per the Possession and Enjoyment Certificate, applied area is in the Possession of Shri.Rajappan (Re-Survey No.286/1) and Shri.Gopalakrishnan (Re-Survey No. 286/2). The Petitioner also submitted Consent Letter of the above land owners and in these consent they gave consent only for

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WA.No.286 OF 2020

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the applied area. On verifying the Survey Map issued by Village Officer, Meenachil it is found that a residential building with building No.176 of ward No.6 of Kozhuvanal Grama Panchayat is situated in Sy.No.286 of Sri.Rajappan on the eastern side of the applied area within a distance of 25 meters. In Survey Map this building is marked as office, located in Survey No.286 which is in the ownership of Shri.Rajappan (S/o.Krishnan Chettiyar, Kochu Puthenpurayil 176, Mevada P.O., 686 573). A true copy of the Survey Map prepared by the Village Officer, given by the petitioner is produced herewith and marked as Exhibit R2(a). The building is not owned by the petitioner as stated in the writ petition. It is the building owned by Sri.Rajappan who has given an affidavit before the respondent.”

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Though inviting attention of this Court to Clause (f) of Rule

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10 of the Kerala Minor Mineral Concession Rules, 2015, Sri.Sreekumar G. (Chelur), learned counsel for the appellant, submitted that there is a provision for granting permission by the authorities concerned for carrying out quarrying operations at or to any points within 100 metres from any railway line except with the previous written permission of the Railway Administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or village roads or one kilometre

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WA.No.286 OF 2020

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from the boundaries of National Park or Wildlife Sanctuaries, to a specific query put forward by us as to whether the appellant has intended to use explosives for quarrying, learned counsel for the appellant has fairly conceded that explosives are intended to be used for quarrying.

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Rule 10 of the Kerala Minor Mineral Concession Rules, 2015 would apply only when explosives are not used for quarrying. Since explosives are intended to be used for quarrying purpose, Clause (f) of Rule 10 of the Kerala Minor Mineral Concession Rules, 2015 is not applicable to the case on hand.

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Hence, instant writ appeal is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

Bka/04.03.2020

Babu N.P v. Department of Mining and Geology

Case brief

What is this about?

What did the court decide?

Babu N.P v. Department of Mining and Geology

Case brief

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