Disposed

M.Sivan, v. Fathima Kareem M.H

Kerala HC17 Mar 2023WP(C)/2544/2023

Case brief

AI extract

What is this about?

This public interest litigation concerned the illegal removal of ordinary earth beyond the permitted limits by the first respondent. The court directed the second respondent, District Geologist, to take action in accordance with law and pay penalties for the violation of permit conditions.

What did the court decide?

District Geologist directed to take action as per law and impose penalty for extraction outside permitted area.

M.Sivan, Vs Fathima Kareem M.H — Environment and Pollution | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶4

¶5

THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

¶6

FRIDAY, THE 17TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944
WP(C) NO. 2544 OF 2023

¶7

PETITIONER/S:

¶8

1M.SIVAN
AGED 58 YEARS
ILLATHUPPADY HOUSE, METHALA PO, ASAMANNOOR
VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.,
PIN - 683545

¶9

2 P.K.RAJESH AGED 46 YEARS S/O KUNJU, PARAYILPUTHANPURA, METHALA P.O., ASAMANNOOR VILLAGE, KUNATHUNDAU TALUK, ERNAKULAM DISTRICT., PIN - 683545

¶10

3P.K.JAMAL
AGED 52 YEARS
S/O KOYAN, PARAKKADUPUTHANPURA, METHALA P.O.,
ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM
DISTRICT., PIN - 683545
BY ADVS.
SHIBU VARGHESE
BASIL JOY

¶11

RESPONDENT/S:

¶12

1 FATHIMA KAREEM M.H AGED 44 YEARS MAIKANAYATH HOUSE, KUTTILANJI, IRAMALLOOR P.O., KOTHAMAGALAM, ERNAKULAM DISTRICT., PIN - 686691

¶13

2 THE DISTRICT GEOLOGIST OFFICE OF THE DISTRICT GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, ERNAKULAM., PIN - 682030

¶14

3 THE DISTRICT COLLECTOR ERAKULAM DISTRICT, CIVIL STATION, KAKKANAD., PIN - 682030

¶15

4 STATE OF KERALA (DELETED) REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT

¶16

W. P. (C) No. 2544 of 2023

¶17

-2-

¶18

SECRETARIATE, THIRUVANANTHAPURAM. PIN - 695001
(R4 IS DELETED FROM THE ARRAY OF PARTIES AS PER
THE ORDER DATED 27/1/2023 IN WP(C) NO.2544/2023.,

¶19

5 THE STATION HOUSE OFFICER KOTHAMANGALAM POLICE STATION, KOTHAMANGALAM, KOTHAMMANGALAM TALUK, ERNAKULAM DISTRICT, KERALA., PIN - 686691

¶20

6 THE EXECUTIVE ENGINEER THE PERIYAR VALLEY IRRIGATION PROJECT, IRINGOLE, PERUMBAVOOR., PIN - 683542

¶21

BY ADV MANOJ P. KUNJACHAN

¶22

OTHER PRESENT:

¶23

SRI. K. P. HARISH, SR. GP

¶24

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶25

W. P. (C) No. 2544 of 2023

-3-

J U D G M E N T

S. Manikumar, C. J.

Taking note of the averments and the prayers sought for, on

¶30

27.01.2023, we passed the following order:-

¶31

“Instant public interest litigation is filed for the following

¶32

reliefs:

¶33

“1. Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2 to 5 to take action to stop the illegal removing of ordinary earth by the 1^st respondent.

¶34

Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2 to 4 to assess the quantity of and the area from which ordinary earth has been removed on the strength of Ext P1, and proceed against the 1st respondent in accordance with law for the illegal activity.

¶35

Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2, 3 and 5 to action on Ext P7, Ext.P8 and Ext.P9.”

¶36

Short facts leading to filing of the writ petition are as

¶37

under:

¶38

2.1 The 1^st respondent, who is the owner of an extent of 110 Cents in Sy.No.226/1A-9-7, obtained a permit for removing ordinary earth from 23 cents of the said land, and on 20.12.2022

¶39

W. P. (C) No. 2544 of 2023

¶40

-4-

¶41

and 21.12.2022, removed and is still removing ordinary earth from an extent of area and in excess of the quantity allowed by the permit issued by the 2^nd respondent and from the area not covered by the permit. The 1^st respondent has removed ordinary earth from an extent of at least two acres. The land from which the ordinary earth is excavated is just adjacent to the Kottachira SC Colony. This act of the 1^st respondent is causing heavy environmental problems to the residents of the Kottachira SC Colony. The 1^st respondent is taking away huge quantities of ordinary earth from the land for commercial purpose under the cover of a building permit, which building is not going to be constructed since there is no proper road access to the land from where mud is excavated. The application by the 1^st respondent and the permit do not specify the level to which ordinary earth can be excavated. From the plan, it cannot be seen whether a dimensioned plan and sectional drawing showing the abutting road level, the levels and depths of the cutting at all places in respect of excavations for building construction and land development works has been submitted. The 6^th respondent has assisted the 1^st respondent by constructing a temporary bridge over the PVIP Irrigation Canal for the 1^st respondent to transport the ordinary earth without any valid permission. Though the residents of the locality and the petitioners had made complaints before the respondents 2 to 6, no action was taken against the 1^st respondent so far, and the illegal ordinary earth removing is going on. The petitioners are aggrieved by the inaction from the respondents. Hence this Writ Petition.

¶42

W. P. (C) No. 2544 of 2023

¶43

-5-

¶44

Main contention of the writ petitioner is that contrary to the extent of permission granted for removal of ordinary earth, respondent No.1 has extracted and illegally removed ordinary earth and despite Exhibits P7, P8 and P9 representations, no action has been taken.

¶45

Material on record discloses that when petitioners 1 and 2 herein and another person obstructed removal of ordinary earth, W.P(C).No.38939 of 2022 has been filed by respondent No.1 herein and another, for a mandamus directing the Station House Officer, Kothamangalam Police Station, Ernakulam District, to afford Police protection to the petitioners therein, his workers, machineries and vehicles used, for removal of ordinary earth and construction activities in 092 Acres of land comprised in Survey No.226/1A/9/7/2 of Iramalloor Village in Kothamangalam Taluk. The said writ petition has been disposed of on 9.12.2022, by a learned Single Judge of this Court as under:

¶46

“3. The learned Government Pleader would submit that pursuant to the complaint submitted by the petitioners, a conciliation was attempted between the parties and, at present, there is no law and order situation.

¶47

It is submitted by the learned counsel appearing for respondents 3 to 5 that, at present, the petitioners do not have any authorization or pass to transport the ordinary earth out of the property.

¶48

Having considered the contentions advanced and in view of the contentions raised by the petitioners that the petitioners have been granted Building Permit, Development Permit as well as due permissions from the

¶49

W. P. (C) No. 2544 of 2023

¶50

-6-

¶51

Geologist for removal of the ordinary earth as evidenced by Ext.P4, I am of the opinion that the party respondents cannot illegally obstruct such removal. In case they have any objections with regard to removal of earth by the petitioners, it is for them to raise it before the appropriate authorities.

¶52

In the above view of the matter, in case transit passes are issued to the petitioners and there is any further illegal obstructions for carrying out of the activities specifically in terms of Exts.P1, P2 and on the strength of transit passes duly issued to the petitioners which are in force, the petitioners may inform the Station House Officer who shall afford adequate protection for the legally permitted activities.

¶53

This writ petition is ordered accordingly.”

¶54

When the instant public interest litigation came up for admission, Mr. V. Tekchand, learned Senior Government Pleader submitted that permit has been granted by Nellikuzhi Grama Panchayat, Ernakulam District, which has not been impleaded as party respondent.

¶55

State of Kerala represented by the Chief Secretary, Government Secretariat, Thirivananthapuram-respondent No.4, is not a necessary and proper party for effective adjudication of the lis, which is the alleged excess removal of ordinary earth. In the above said circumstances, Registry is directed to delete respondent No.4 from the array of parties.

¶56

The District Geologist, Ernakulam-respondent No.2, is directed to cause inspection of the subject site and ascertain as to

¶57

W. P. (C) No. 2544 of 2023

¶58

-7-

¶59

whether there is any excess removal of ordinary earth, as averred.

¶60

Learned Senior Government Pleader is directed to take notice on behalf of respondents 2, 3, 5 and 6. Issue notice to respondent No.1 by speed post, returnable in two weeks.

¶61

Learned Senior Government Pleader is directed to get instructions on the averments and grounds raised and file a statement or counter affidavit, as the case may be, with supporting documents.”

¶62

Subsequently, on 28.02.2023, while extracting the averments in the counter affidavit, we directed the District Geologist, Department of Mining and Geology, Ernakulam, the 2^nd respondent, to cause inspection of the subject site, and to file a report.

¶63

After causing site inspection of the site in the presence of the 1^st respondent, the District Geologist, Department of Mining and Geology, Ernakulam, the 2^nd respondent, has filed a report dated 03.03.2023, which reads thus:-

¶64

“REPORT SUBMITTED BY THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, ERNAKULAM, BEFORE THE HONOURABLE HIGH COURT OF KERALA IN WP(C) No. 2544/2023 FILED BY SRI M. SIVAN AND OTHERS

¶65

W. P. (C) No. 2544 of 2023

¶66

-8-

¶67

It is humbly submitted that this office had granted permission to Smt. Fathima Karim, Maykkanayath House, Eramalloor, to extract and transport 7816 Metric Tonnes of Ordinary Earth from 9.2 ares of land falling in survey nos. 226/1A-9-7 of Eramalloor Village, Kothamangalam Taluk, for the period from 21.11.2022 to 07.12.2022. The permission was granted as per Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015, based on the building permit, development permit and plans approved by the Secretary, Nellikuzhi Grama Panchayath, for the construction of a 240 m² commercial shed. In compliance with the order of the Honourable Court in WP(C) No. 2544/2023 dt. 27.01.2023, the site of Smt. Fathima Karim was inspected on 02.03.2023, in the presence of her husband, Sri. Karim. Co-ordinates are N 10° 4' 31.81” E 76° 33' 27.39”. During site inspection it was noticed that the permit holder has removed 608 Metric Tonnes of ordinary earth from outside the permitted area. Not much earth has been removed from the permitted area of 9.2 ares. Instead, the permit holder misused the permission to extract earth from a plot adjacent to the permitted area. Sri. Karim informed that the plot from which earth has been removed is in the name of his son, Sri. Thanuf. The permit holder, Smt Fathima Karim, ought to pay penalty as per Rule 14(4) of the Kerala Minor Mineral Concession Rules, 2015.

Sd/-

03.03.2023

SENIOR GEOLOGIST”

4. Going through the averments in the counter affidavit, as well

¶72

as the report dated 03.03.2023 of the District Geologist, it could be deduced that the permit holder has misused the permission to extract earth from a plot adjacent to the permitted area. District Geologist has

¶73

W. P. (C) No. 2544 of 2023

¶74

-9-

¶75

also stated that the permit holder ought to pay penalty as per Rule 14(4) of the Kerala Minor Mineral Concession Rules, 2015, which reads thus:-

¶76

“14(4) In the event of extraction of ordinary earth outside the permitted area, the permission granted for extraction and transportation shall be liable for cancellation and the offender shall be liable to pay an amount equal to five times the royalty of the ordinary earth extracted outside the area of permission as penalty.”

¶77

Penalty is provided under Rule 108 of the Kerala Minor

¶78

Mineral Concession Rules, 2015, which reads thus:-

¶79

“ 108. Penalties .--(1) Whoever contravenes any provision of these rules shall be punishable with imprisonment for a term which may extend to two years, or with a fine which may extend to five lakh rupees or with both and in the case of continuing contravention, with an additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

¶80

(2) Whenever any person raises without any lawful authority any mineral from any land, the Government or the competent authority may recover from such person or the occupier of the land the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also

¶81

W. P. (C) No. 2544 of 2023

¶82

-10-

¶83

recover from such person rent, royalty or tax, as the case may be, for the mineral extracted by such person or occupier of the land without any lawful authority:

¶84

Provided that whenever a person who opted for Consolidated Royalty Payment System extracts minor minerals from the area under mineral concession after the date of expiry of permit or extracts minor minerals from outside the area under mineral concession without any lawful authority, he shall be liable to pay the royalty at the rate prescribed in Schedule I and price of the entire quantity of the minor mineral illegally extracted from the area.

¶85

Provided further that in the case of Government lands, any rent, tax, or fee or compensation for the mineral extracted, as the case may be, as fixed by the department concerned shall be recovered from such person.

¶86

(Note: In this the price of the mineral shall limited to two times the royalty.).

¶87

(3) Whenever a lessee who has obtained a registration for a metal crusher unit as per the provisions of these rules, is found operating any additional number of crushers than permitted or found operating any crusher with size or sizes other than the permitted one such action of the lessee shall be considered as illegal and he shall be liable for payment of an amount equal to two times the annual consolidated royalty for the size of the illegally operating crusher as stipulated in Schedule III of these

¶88

W. P. (C) No. 2544 of 2023

¶89

-11-

¶90

rules, in addition to the amount remitted for obtaining a registration for the metal crusher unit for the financial year.

¶91

(4) Whenever any person raises without any lawful authority any mineral from any land for the purpose of winning minerals and for that purpose brings on the land any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be seized by an officer or authority specially empowered in this behalf by the Government.”

¶92

In as much as the permit holder has contravened the statutory provisions and permit conditions, the District Geologist, Department of Mining and Geology, Ernakulam, the 2^nd respondent, is directed to take action, in accordance with law.

¶93

Accordingly, the writ petition is disposed of.

¶94

Sd/-

¶95

S. MANIKUMAR CHIEF JUSTICE

¶96

Sd/MURALI PURUSHOTHAMAN JUDGE

¶97

¶98

///TRUE COPY/// P. A. TO JUDGE

¶99

W. P. (C) No. 2544 of 2023

¶100

-12-

¶101

APPENDIX OF WP(C) 2544/2023

¶102

PETITIONER EXHIBITS

¶103

`EXHIBIT P1`	`TRUE COPY OF THE PERMIT ISSUED TO R1 TO` `REMOVE ORDINARY EARTH BY THE R2 DATED` `16.11.2022 ALONG WITH ENGLISH` `TRANSLATION.`
`EXHIBIT P2`	`TRUE COPY OF THE BUILDING PERMIT ISSUED` `TO R1 BY THE PANCHAYATH DATED` `04.10.2021.`
`EXHIBIT P3`	`PHOTOGRAPH SHOWING USING MANY HEAVY` `EARTH MOVERS TO EXTRACT ORDINARY EARTH.`
`EXHIBIT P4`	`PHOTOGRAPH SHOWING MANY TORUS LORRIES TO` `REMOVE ORDINARY EARTH.`
`EXHIBIT P5`	`PHOTOGRAPH SHOWING THE VAST EXTENT FROM` `WHICH R1 HAS REMOVED ORDINARY EARTH.`
`EXHIBIT P6`	`PHOTOGRAPH SHOWING THE DEPTH TO WHICH R1` `HAS REMOVED ORDINARY EARTH.`
`EXHIBIT P7`	`THE TRUE COPY OF THE COMPLAINT MADE BY` `THE PETITIONERS TO R2 DATED 28.11.2022` `ALONG WITH ENGLISH TRANSLATION.`
`EXHIBIT P8`	`THE TRUE COPY OF THE COMPLAINT MADE BY` `THE PETITIONERS TO R3 DATED NIL ALONG` `WITH ENGLISH TRANSLATION.`
`EXHIBIT P9`	`THE TRUE COPY OF THE COMPLAINT MADE BY` `THE PETITIONERS TO R5 DATED NIL ALONG` `WITH ENGLISH TRANSLATION.`
`EXHIBIT P10`	`TRUE COPY OF THE ORDER IN` `WP(C)38939/2022 DATED 01.12.2022 OF THE` `HONOURABLE HIGH COURT OF KERALA.`
`RESPONDENT EXHIB`	`ITS`
`EXHIBIT R1(A)`	`TRUE COPY OF THE RECEIPT NUMBER KL-FP-` `13018/2022 ISSUED UNDER K-SWIFT DATED` `13/07/2022`
`EXHIBIT R2(A)`	`A TRUE COPY OF THE LOCATION SKETCH` `ISSUED BY THE VILLAGE OFFICER,ERARNALLOR` `IS PRODUCED`

M.Sivan, v. Fathima Kareem M.H

Case brief

What is this about?

What did the court decide?

M.Sivan, v. Fathima Kareem M.H

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Babu Joseph Puthenangadi Vs State of Kerala

Athena Solomon.K Vs Union of India

Adarsh K Vs Kerala Lok Ayukta

Poulos M O Vs the Controller of Explosives/Deputy Chief Controller of Explosives

The Managing Director Vs the Kerala Lok Ayuktha

P.L.Jacob Vs the State of Kerala