The Court quashed a stop memo issued by a Village Officer, holding that Section 21(4) of the Mines and Minerals Act empowers seizure for illegal mining without authority, not issuance of stop memos for breaches of other enactments like the Panchayat Raj Act requiring development permits.
The impugned stop memo issued by the fifth respondent is quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942
WP(C).No.21560 OF 2020(T)
PETITIONER:
SEBASTIAN.V.J AGED 54 YEARS S/O. LATE JOSEPH, VADAPARAMBIL HOUSE, MYLADI, NILAMBUR POST, MALAPPURAM DT., PIN-679329.
BY ADV. SHRI.A.V.JAMES
RESPONDENTS:
REP. BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
3 THE GEOLOGIST, DISTRICT OFFICE, MINING AND GEOLOGY DEPARTMENT, MANJERI, MALAPPURAM DISTRICT, PIN-676517.
5 THE VILLAGE OFFICER, NILAMBUR VILLAGE, NILAMBUR POST, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679329.
R1-5 BY GOVERNMENT PLEADER
OTHER PRESENT:
GP. PAUL ABRAHAM VAKKANAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2020, THE COURT ON 14-12-2020 DELIVERED THE FOLLOWING:
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P.B.SURESH KUMAR, J.
W.P.(C) No.21560 of 2020
Dated this the 14th day of December, 2020
JUDGMENT
Petitioner holds a land in Nilambur Village. He obtained a permit to construct a building in the said land from Nilambur Municipality. Ext.P2 is the building permit obtained by the petitioner. Ext.P2 is valid till 04.12.2021. Immediately after obtaining Ext.P2 building permit, the petitioner obtained a development permit also from the Municipality. Ext.P3 is the development permit. In terms of Ext.P3, the petitioner was granted permission to develop the land subject to the conditions mentioned therein including the condition that the land development is to be done within five days after obtaining permission from the Mining and Geology Department. On the application of the petitioner, the Geologist concerned has issued Ext.P4 order thereafter to remove ordinary earth from the land for undertaking the
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construction. The quantity of ordinary earth permitted to be removed for the said purpose is 451 cubic meters. After Ext.P4 permission, the petitioner preferred an application before the Geologist seeking permission to remove clay rock (മട�പ�റ) in the land also, for the purpose of undertaking the construction. On the said application, the Geologist issued Ext.P5 communication to the petitioner stating that if the petitioner is possessing the required building permit from the local authority for the purpose of constructing the building proposed by him, the permission of the Mining and Geology Department is required for the purpose of levelling the land. It is stated in Ext.P5 that on the strength of the building permit and development permit obtained by the petitioner from the local authority, he is entitled to level the land for the purpose of undertaking the construction. The petitioner was, however, cautioned by the Geologist in Ext.P5 communication that the permission of the department is required for removing minerals from the land. The case set out by the petitioner in the writ petition is that while the petitioner was carrying out the levelling work, the fifth respondent, Village Officer intervened and issued Ext.P6 stop memo stating that
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the conduct of the petitioner in removing the clay rock using machines would affect the environment and he should therefore stop the activity forthwith. The petitioner is aggrieved by Ext.P6 stop memo. According to the petitioner, insofar as he has obtained permission from the Geologist to level the land by removing even the clay rock, the fifth respondent has no authority to interdict the activity undertaken by the petitioner. Hence, this writ petition.
“On 08/10/2020 as per the instruction of the Tahsildar Nilambur, I along with the VFA Sri. Sajid K visited the land comprised in Block 93 Re.Survey numbers 47/2-7, 47/2-8, 47/29, 47/4-5, 47/4-6, 50/2-8 and 50/3-5 for a site inspection. On
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arriving the spot I came to see a Hitachi mining soft rock aforesaid property. I asked the supervisor of the site to get produce the original permit papers regarding this mining. Even though he produced Nilambur Municipalities development permit dated 29/12/2018 and Geologist Manjery's DOM/M 4749/2019 letter dated 31/01/2019. It was understood that the validity of the permit had expired. He obtained a development permit on 29/12/2018 with a condition that the work may be done within 5 days after obtaining permission from Geology Department and the same was obtained on 25/01/2019 with a specific period from 29/01/2019 to 02/02/2019. Thus the development permit is not in effect.
On verification it was found that the activity of mining was illegal. The are was found to be ecologically sensitive with a lot of dwelling houses and schools are around. More over the mining, using this Hitachi is done by leveling a huge hill of soft rock. On appearance itself the site seems to be vulnerable to land slide. Realising the fact that such mining has to be stopped, immediately I issued a stop memo stating to stop all illegal activities in the site until further orders. I also instructed the supervisor to bring all the machineries used for mining to the Taluk Office Nilambur, as per the direction of the Tahsildar. I have sent a detailed report immediately to Tahsildar Nilambur for further action.”
as also the learned Government Pleader.
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communication and that the fifth respondent has no authority to interdict such an activity. The learned Government Pleader did not attempt to support Ext.P6 stop memo on any of the grounds referred to in Ext.P6 and in the report filed by the fifth respondent, except pointing out that the petitioner was not holding a valid development permit from the Municipality for the work undertaken by him at the time of inspection of the fifth respondent.
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Geologist issued Ext.P5 communication to the petitioner informing him that he does not require any permission so long as he does not wish to remove any mineral out of the land. The fifth respondent has no case that the petitioner has removed or attempted to remove any mineral out of his land. As noted, the justification of the fifth respondent in issuing Ext.P6 stop memo is that he is entitled to issue such stop memos in exercise of his powers under Section 21(4) of the Act. Section 21(4) of the Act reads thus:
“21. Penalties.--
x x x x x x
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.”
The extracted provision confers power on the competent authority to seize the tool, equipment, vehicle etc. used for the purpose of raising and transporting any mineral without lawful authority. The said provision does not confer any
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authority on the fifth respondent to issue stop memos in the nature of Ext.P6. Be that as it may. As noted, the submission made by the learned Government Pleader to support the impugned stop memo is that since it was found that the petitioner was not holding a valid development permit from the Municipality at the time of inspection of the fifth respondent, he is justified in issuing the stop memo. I am unable to accept this contention. The development permit is a requirement under the Panchayat Raj Act. If anybody undertakes an activity for which a development permit is required, without obtaining the same, the competent authority under the Panchayat Raj Act would certainly be entitled to intervene and interdict the activity. Admittedly, the fifth respondent has nothing to do with the enforcement of the provisions of the Panchayat Raj Act. Even according to the fifth respondent, he was only exercising the power under Section 21(4) of the Act. The power under Section 21(4) of the Act can be exercised only when a person does any of the activities referred to in sub-section (4) of Section 21, contrary to the provisions of the Act and the Rules made thereunder and not for breach of the provisions of other enactments. In a
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case of this nature, if the fifth respondent was of the view that the petitioner should have a valid development permit for the purpose of undertaking the activity, he should have informed the matter to the concerned authority of the Panchayat, for it is only based on the subjective satisfaction of that authority, action under the Panchayat Raj Act can be initiated against the petitioner. If stop memos in the nature of Ext.P6 are justified on moral grounds as done by the fifth respondent, there would be utter chaos. This Court, in the circumstances, is constrained to interfere with the impugned stop memo.
In the result, the writ petition is allowed. Ext.P6 stop memo is quashed. It is, however, made clear that this judgment will not preclude the competent authority under the Panchayat Raj Act in interdicting the activity of the petitioner, if the activity undertaken by the petitioner is one for which a development permit is required.
Sd/P.B.SURESH KUMAR, JUDGE.
ds 27.11.2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 9.10.2020 ISSUED FROM THE VILLAGE OFFICE, NILAMBUR TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED 3.12.2018 ISSUED TO THE PETITIONER BY THE NILAMBUR MUNICIPALITY.
EXHIBIT P3 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 29.12.2018 ISSUED BY THE NILAMBUR MUNICIPALITY TO THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.1.2019 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DISTRICT GEOLOGIST.I
EXHIBIT P5 TRUE COPY OF THE PERMISSION LETTER DATED 30.1.2019 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DISTRICT GEOLOGIST.
EXHIBIT P6 TRUE COPY OF THE STOP MEMO DATED 8.10.2020 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT.
3 issues framed by the court
Whether the Village Officer had the authority to issue a stop memo under Section 21(4) of the Mines and Minerals Act for a breach of the Panchayat Raj Act.
Whether the competent authority under Section 21(4) can issue a stop memo for a violation of provisions other than those of the Act itself.
Whether regulatory chaos would result if moral grounds were the justification for issuing stop memos contrary to the specific powers conferred by the Act.
1 provisions across 1 enactments
Sebastian.V.J
State of Kerala
The District Collector, Malappuram District
The Geologist, District Office
The Thahasildar, Nilambur Taluk
The Village Officer, Nilambur Village
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
