Allowed

Delphi Cherian v. the Geologist

Kerala HC9 Nov 2022WP(C)/29517/2022

Case brief

AI extract

What is this about?

The High Court at Ernakulam allowed the petitioner's writ petition, setting aside a demand notice for royalty and fines due to violation of natural justice. The court held the petitioner was denied an effective opportunity to defend as no prior notice or inspection report copies were provided before the final demand.

What did the court decide?

Ex.P3 demand notice set aside. 1st respondent directed to issue fresh notice, supply copies of mahazars, and decide within two months.

Delphi Cherian Vs the Geologist — Land Acquisition | Kerala HC (2022)

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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 N.NAGARESH

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WEDNESDAY, THE 9^TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944

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WP(C) NO. 29517 OF 2022

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PETITIONER:

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DELPHI CHERIAN

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AGED 56 YEARS W/O JOSE, VATTAMATTATHIL, KANYAKALAYA BANK, WEST HILL, KOZHIKODE-686609.

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BY ADV S.MOHAMMED AL RAFI

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RESPONDENTS:

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1 THE GEOLOGIST

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THE DISTRICT OFFICE OF MINING AND GEOLOGY, COLLECTORATE, KOTTAYAM- 686002.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTYAM-686002.

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3 THE THASILDHAR, VAIKOM TALUK, TALUK OFFICE, VAIKOM, KOTTAYAM-686 145.

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4 THE VILLAGE OFFICER, VADAYAR VILLAGE, VADAYAR, KOTTAYAM- 686 146.

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5 THE TALUK SURVEYOR, VAIKOM TALUK, TALUK OFFICE, KOTTAYAM-686145.

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BY SMT.VIDYA KURIAKOSE GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No. 29517 of 2022

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J U D G M E N T

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Dated this the 9^th day of November, 2022

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The petitioner is aggrieved by Ext.P3 demand notice issued

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by the 1^st respondent requiring the petitioner to pay an amount of Rs.42,62,032/- towards royalty, price and fine under the Kerala Minor Mineral Concession Rules, 2015.

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The petitioner states that she is in absolute possession and ownership of 80 Ares 93 Square Meters of property in Vadayar Village in Kottayam District. The petitioner inherited properties from her father. The petitioner wanted to construct a building in the property and Building Permit and Development Permit were obtained. The Geologist also issued Ext.P2 dated 19.08.2020 ordering to issue mineral transit pass to the petitioner.

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To the surprise and predicament of the petitioner, the 1^st respondent-Geologist has issued Ext.P3 demand notice dated 25.08.2022 alleging that the petitioner has unauthorisely removed

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WP(C) No. 29517 of 2022

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57,806 Metric Tonne of laterite stone and requiring the petitioner to pay an amount Rs.42,62,032/- towards royalty and fine. The petitioner would contend that Ext.P3 order has been issued in gross violation of the principles of natural justice. The petitioner was not given a show cause notice. Ext.P3 does not refer to any mahazar prepared after inspection of the property. This Court has held that a demand notice under the Kerala Minor Mineral Concession Rules, 2015 has to be issued to the citizens showing the details in respect of the demand made by the Department. Ext.P3 is therefore unsustainable and is liable to be set aside, contends the petitioner.

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The Government Pleader entered appearance and resisted the writ petition. On behalf of the respondents, it is submitted that Building Permit was issued to the petitioner in the year 2020. The Building Permit authorised the petitioner to remove ordinary earth only. It was found that the petitioner has been illegally excavating laterite stone. Thereupon, Ext.R1(a) show

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WP(C) No. 29517 of 2022

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cause notice was issued to the petitioner on 27.10.2021.

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Government Pleader further submitted that to Ext.R1(a)

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notice, the petitioner submitted Ext.R1(b) reply admitting that the excavation of laterite stone is a mistake committed by the petitioner inadvertently.

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Thereafter, a further inspection of the land was conducted and Ext.R1(c) mahazar was prepared on 25.11.2021. Thereafter, on the instructions of the District Collector, the land was inspected again on 28.06.2022 and Ext.R1(d) mahazar was

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prepared. It was after getting all information and reports that Ext.P3 demand is issued .

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Government Pleader submitted that the petitioner has unauthorisely excavated 57,806 metric tonne of laterite stone illegally. Therefore, this is not a fit case to invoke Article 226 of the Constitution of India, to grant relief.

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I have heard the learned counsel for the petitioner and

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the learned Government Pleader representing the respondents.

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WP(C) No. 29517 of 2022

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The grievance of the petitioner is that Ext.P3 order imposing a penalty of Rs.42,62,032/- has been issued without any notice to the petitioner. Copy of the mahazar has not been given to the petitioner. In the absence of materials available, the petitioner will the disabled to give an effective reply to Ext.P3 notice. Ext.P3 notice requires the petitioner to pay huge amount within 10 days.

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It is to be noted that the respondents have issued Ext.R1(a) show cause notice to the petitioner on 27.10.2021 and it is stated that a mahazar was prepared on 25.11.2021.

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However, Ext.P3 demand notice has been issued on the basis of an inspection conducted on 28.06.2022. Therefore, obviously, materials obtained subsequent to Ext.R1(a) show cause notice have been relied upon for issuance of Ext.P3. In the afore facts of the case, this Court is of the view that Ext.P3 cannot stand the scrutiny of law as the petitioner has been denied an effective opportunity to defend the charges in the matter.

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WP(C) No. 29517 of 2022

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In the facts of the case, the writ petition is allowed setting aside Ext.P3 demand notice. It is made clear that the 1^st respondent-Geologist will be at liberty to proceed against the petitioner in accordance with law after giving a reasonable opportunity to the petitioner to defend the case. The petitioner shall also be supplied with copies of mahazars and other documents that are relied on by the Geologist. A decision afresh in the matter shall be taken within a period of two months from the date of issue of fresh notice/demand.

Sd/-

N. NAGARESH

JUDGE

ams/10.11.2022

WP(C) No. 29517 of 2022

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APPENDIX OF WP(C) 29517/2022

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PETITIONER'S EXHIBITS

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Exhibit P1 TRUE COPY OF LAND TAX RECEIPT DATED 04/04/2022 ISSUED TO PETITIONER BY THE 4TH RESPONDENT.

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Exhibit P2 TRUE COPY OF THE SAID ORDER DATED 19/08/2020 ISSUED BY THE 1ST RESPONDENT. Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED 25/08/2022 BY 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS

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Exhibit R1(a) A true copy of the show cause notice dated 27.10.2021.

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Exhibit R1(b) A true copy of the letter dated 15.11.2021 of the petitioner to District Geologist.

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Exhibit R1(e) True copy of the letter No.C2/1443/2021 dated 21.07.2022 of Tahsildar Vaikom.

Delphi Cherian v. the Geologist

Case brief

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What did the court decide?

Delphi Cherian v. the Geologist

Case brief

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