Allowed

Binu Philip v. State of Kerala

Kerala HC26 Jul 2024WP(C)/38322/2023

Case brief

AI extract

What is this about?

Petitioners held rights to agricultural land rendered unusable due to 2019 floods and sand accumulation. After a previous order directed permission, the court held the amended KMMC Rules allow transit passes for removal of minerals due to natural calamities. The court directed the Principal Secretary Revenue to pass orders on the petitioners' request within six months to sell the sand, comply with

What did the court decide?

Directions to grant permission to remove and sell sand accumulated due to flood; to pay royalty as per Schedule 1 of KMMC Rules; and to inspect and demarcate property within six months.

Binu Philip Vs State of Kerala — Environment and Pollution | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 26TH DAY OF JULY 2024 / 4TH SRAVANA, 1946

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WP(C) NO. 38322 OF 2023

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PETITIONERS:

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1BINU PHILIP
AGED 41 YEARS
S/O PHILIPOSE, ANADATHIL HOUSE, POOKOTTUMANNA
P.O., CHUNGATHARA, NILAMBUR, MALAPPURAM,

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PIN - 679334

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2 MARIAMMA PHILIPOSE AGED 64 YEARS W/O PHILIPOSE, ANADATHIL HOUSE, POOKOTTUMANNA P.O., CHUNGATHARA, NILAMBUR, MALAPPURAM, PIN - 679334

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BY ADV
C.DINESH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF ENVIORNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, RSECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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3 THE SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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4 THE LAND REVENUE COMMISSIONER, LAND REVENUE COMMISSIONERATE, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM, PIN - 695001

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5 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM P.O. THIRUVANANTHAPURAM, PIN - 695004

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W.P.(C) NO.38322 OF 2023

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6 THE DISTRICT COLLECTOR, MALAPPURAM, CIVIL STATION, MALAPPURAM P.O, MALAPPURAM, PIN - 676505

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7 REVENUE DIVISIONAL OFFICER, RDO OFFICE, PERINTHALMANNA P.O., MALAPPURAM DISTRICT, PIN - 679322

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8 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY, MANJERI P.O., MALAPPURAM - 676121., PIN - 676121

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9 TAHSILDAR, NILAMBUR TALUK TALUK OFFICE, NILAMBUR P.O., MALAPPURAM, PIN - 679329

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10 THE VILLAGE OFFICER, POTHUKKAL , VILLAGE OFFICE, POTHUKKAL P.O., MALAPPURAM DISTRICT, PIN - 679329

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11 THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICE, MALAPPURAM, PIN - 676505

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12 DISASTER MANAGEMENT AUTHORITY REPRESENTED BY ITS CHAIRMAN, CIVIL STATION, MALAPPURAM P.O, MALAPPURAM, PIN - 676505

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ADDL.R13 THE PRINCIPAL SECRETARY, REVENUE(P) DEPARTMENT, THIRUVANANTHAPURAM.

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[ADDL. R13 IS SUO MOTU IMPLEADED AS ADDITIONAL
RESPONDENT NO.13 IN WP(C) 38322/2023 AS PER
JUDGMENT DATED 26.07.2024 IN WP(C) 38322/2023

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BY ADV.

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SRI. RAJEEV JYOTHISH GEORGE – GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.07.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.P.(C) NO.38322 OF 2023

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JUDGMENT

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The petitioners are in possession of 2.43 Hectares of unsurveyed land in Pothukkal Village, Malappuram District. The said property situates in between Chaliyar and Karadan rivers. The petitioners were cultivating various crops in the property. In the flood and landslides that took place in Kerala in August, 2019, the property of the petitioners was also affected and they lost the entire agricultural crops along with their residential house. Besides the direct damage caused by the flooding, heaps of sand got accumulated in the property of the petitioners. Thereafter, the petitioners could not use the property for cultivation. According to the petitioners, for preparing the land for cultivation, initially, the sand deposited in the land have to be removed and then it has to be filled with soil. Therefore, the petitioners submitted applications before the 6^th , 7^th and 8^th respondents seeking permission to remove the sand deposited in their property. The 7^th respondent issued Ext.P5 NOC to the petitioners as prescribed under Rule 104 of the Kerala Minor Mineral Concession Rules,

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W.P.(C) NO.38322 OF 2023

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2015 (for short 'the KMMC Rules). After the issuance of Ext.P5 NOC, the 6^th respondent forwarded the applications with all relevant documents to the 5^th respondent. Since there was no further action in the applications, the petitioners approached this Court by filing W.P.(C).No.32826/2022 seeking for a direction to the respondents to take immediate steps to consider and dispose of the pending applications within a time frame. This Court as per Ext.P7 judgment, gave a direction to the 2^nd respondent therein to pass final orders on the applications submitted by the petitioners for grant of special permission as prescribed under Rule 104 of the KMMC Rules to extract and remove the sand accumulated in the agricultural land of the petitioners. Accordingly, the 2^nd respondent herein passed Ext.P8 order granting permission to the petitioners to extract and remove the sand accumulated in their property for the purpose of making the property fit for cultivation. The prayer of the petitioners to issue transit pass to remove the sand accumulated in the agricultural land by paying royalty as specified in Schedule 1 of the KMMC Rules

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W.P.(C) NO.38322 OF 2023

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was not allowed by the 2^nd respondent. It is in these circumstances, the petitioners have approached this Court by filing this writ petition.

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I have heard Sri. C. Dinesh, the learned counsel for the petitioners and Sri. Rajeev Jyothish George, the learned Government Pleader for the respondents.

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The Government of Kerala by way of SRO No.456 of 2023 dated 31.03.2023 amended KMMC Rules. Accordingly, the following note has been inserted after the proviso of Rule 104 of KMMC Rules.

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“Note 3:- In cases where extraction/removal of mineral is inevitable for prevention of any disaster or for removal of mineral deposited or accumulated consequent to any natural calamity, the competent authorities of the Department of Mining and Geology shall issue mineral transit passes for removal of such mineral after obtaining prior permission from the District Disaster Management Authority. The applicant shall remit royalty as specified in Schedule 1 for transporting the mineral.”

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W.P.(C) NO.38322 OF 2023

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As per the above amended provision, the competent authorities of the Department of Mining and Geology is empowered to issue mineral transit pass for removal of mineral after obtaining prior permission from the District Disaster Management Authority, if the extraction/removal of mineral is inevitable for prevention of any disaster or for removal of mineral deposited or accumulated consequent to any natural calamity. In such case, the applicant shall remit royalty as specified in Schedule 1 for transporting the mineral. The petitioners’ case fall under the above clause inasmuch as the petitioners wanted to remove the minerals deposited or accumulated consequent to the flood, which is a natural calamity.

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Pursuant to the directions in Ext.P8, the 6^th respondent gave a report to the Principal Secretary, Revenue(P) Department, Thiruvananthapuram recommending that permission can be granted to the petitioners to remove minerals deposited and accumulated in their property

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W.P.(C) NO.38322 OF 2023

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consequent to the flood, to sell the same and to use the sale consideration to make the property fit for cultivation. The Principal Secretary, Revenue (P) Department, Thiruvananthapuram is suo motu impleaded as additional 13^th respondent.

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For the reasons stated above, the additional 13^th respondent is directed to pass orders on the request of the petitioners to remove and sell the sand accumulated in their property in accordance with law as recommended by the 6^th respondent in Ext.P10, within a period of six months from the date of receipt of a copy of this judgment. The applicant can be directed to pay royalty as specified in Schedule 1 of KMMC Rules for transporting the sand. The 9^th respondent is directed to take urgent steps to conduct inspection of the property and demarcate its boundaries.

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The Writ Petition is disposed of as above.

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Sd/DR. KAUSER EDAPPAGATH JUDGE

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W.P.(C) NO.38322 OF 2023

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APPENDIX OF WP(C) 38322/2023

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`PETITIO` `Exhibit`	`NERS’ EXH` `P1`	`IBITS` `COPY OF THE`	`POSSESSION CERTIFICATE ISSUED`
		`BY THE 6TH` `THE 1ST P` `1.2141 HECT`	`RESPONDENT, VILLAGE OFFICER TO` `ETITIONER FOR AN EXTENT OF` `ORS OF LAND DATED 8.6.2022`
`Exhibit`	`P1(a)`	`COPY OF THE` `TO THE 2ND` `0.8094 HECT`	`POSSESSION CERTIFICATE ISSUED` `PETITIONER FOR AN EXTENT OF` `ORS OF LAND DATED 8.6.2022`
`Exhibit`	`P2`	`COPY OF THE` `RESPONDENT` `PETITIONER`	`TAX RECEIPT ISSUED BY THE 6TH` `DATED 6.8.2021 TO THE 1ST`
`Exhibit`	`P2(a)`	`COPY OF THE` `PETITIONER`	`TAX RECEIPT ISSUED TO THE 2ND` `DATED 6.8.2021`
`Exhibit`	`P3`	`TRUE COPY O` `MANORAMA DA` `THE PLIGHT`	`F THE NEWS ITEM PUBLISHED IN` `ILY DATED 22.8.2019 NARRATING` `OF THE PETITIONERS`
`Exhibit`	`P3(a)`	`COPY OF T` `MATHRUBHUMI`	`HE NEWS ITEM PUBLISHED IN` `DAILY DATED 18.8.2019`
`Exhibit`	`P4`	`TRUE COPY` `THE 10TH RE` `THE 1ST` `STATING TH` `CROPS HAVE` `BE USED FOR`	`OF THE CERTIFICATE ISSUED BY` `SPONDENT, VILLAGE OFFICER, TO` `PETITIONER DATED 13.11.2019` `AT THE ENTIRE AGRICULTURAL` `BEEN LOST AND THE LAND CANNOT` `CULTIVATION`
`Exhibit`	`P4(a)`	`TRUE COPY` `ISSUED TO` `13.11.2019`	`OF THE SIMILAR CERTIFICATE` `THE 2ND PETITIONER DATED`
`Exhibit`	`P5`	`COPY OF T` `RESPONDENT`	`HE NOC ISSUED BY THE 7TH` `DATED 25.2.2022`
`Exhibit`	`P6`	`COPY OF THE` `BY THE` `AGRICULTURA` `RESPONDENT,` `EXPLAINING` `AND APPROXI` `LAND FOR CU`	`LETTER DATED 3.2.2022 ISSUED` `11TH RESPONDENT, PRINCIPAL` `L OFFICER, TO THE 6TH` `DISTRICT` `COLLECTOR,` `THE NATURE AND LIE OF THE LAND` `MATE COST FOR PREPARING THE` `LTIVATION`
`Exhibit`	`P7`	`COPY OF THE`	`JUDGMENT IN WP(C) NO.32826 OF`
		`2022 DATED` `COURT`	`21.12.2022 OF THIS HON'BLE`

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W.P.(C) NO.38322 OF 2023

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`Exhibit P8`	`COPY OF` `RESPONDEN`	`THE` `T DAT`	`ORDER ISSUED BY THE 2ND` `ED 2.5.2023`
`Exhibit P9`	`COPY OF` `RULES`	`THE`	`RELEVANT PAGES OF THE KMMC`
`Exhibit P10`	`TRUE COPY` `6TH RESPO`	`OF T` `NDENT`	`HE LETTER ISSUED BY THE THE` `DATED 25-04-2024`
`Exhibit P11`	`THE TRUE` `TO THE 1S`	`COPY` `T PET`	`OF THE LOCATION MAP ISSUED` `ITIONER DATED 23.07.2024`
`Exhibit P11(a)`	`THE TRUE` `TO THE 2N`	`COPY` `D PET`	`OF THE LOCATION MAP ISSUED` `ITIONER DATED 23.07.2024`
`Exhibit P12`	`THE TRUE` `TO THE 1S`	`COPY` `T PET`	`OF THE TAX RECEIPT ISSUED` `ITIONER DATED 23.07.2024`
`Exhibit P12(a)`	`THE TRUE` `TO THE 2N`	`COPY` `D PET`	`OF THE TAX RECEIPT ISSUED` `ITIONER DATED 23.07.2024`

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RESPONDENTS’ ANNEXURES

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Annexure R6 (a) TRUE COPY OF THE GO(RT) 807/2023/RD DATED
20/02/2023
Annexure R6 (b)TRUE COPY OF THE GO(RT) NO. 1706/2023/RD
DATED 02/05/2023.

Binu Philip v. State of Kerala

Case brief

What is this about?

What did the court decide?

Binu Philip v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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