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2015 Supreme(Online)(KER) 36506
HIGH COURT OF KERALA
ASHOK BHUSHAN, CJ, A.M.SHAFFIQUE, J
JOOBIN MATHEW – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/20801/2015
SRI.G.SREEKUMAR (CHELUR), SRI.NANDAGOPAL S.KURUP, SRI.C.R.SYAMKUMAR, SRI.P.SANKARANKUTTY NAIR, SRI.K.SANDESH RAJA, SRI.VENU MENON M.P, SRI.P.G.SURESH, SRI.G.SUDHEER (THURAVOOR), SRI.RAJAN VISHNURAJ, SRI.V.HARISH, SRI.P.V.VARGHESE (KANJIRAMATTOM), SRI.VARGHESE C.KURIAKOSE
Petitioner entitled to remove red earth as per existing permits under the Kerala Minor Mineral Concession Rules, 2015, without needing environmental clearance.
Headnote:
Protection - Police Protection - Kerala Minor Mineral Concession Rules, 2015 - The court determined that the petitioner, having obtained necessary permits, is entitled to excavate red earth without requiring environmental clearance if the plinth area is less than 300 sq. meters.
Fact of the Case:
The petitioner sought police protection after facing obstruction from respondents regarding the removal of red earth for construction, having received permits from competent authorities.
Finding of the Court:
The court ruled that the petitioner has the right to remove red earth due to existing permits and the provisions of the Kerala Minor Mineral Concession Rules, 2015, negating the need for environmental clearance in this instance.
Issues: Whether the petitioner is entitled to remove red earth for construction and whether the respondents have the right to obstruct this removal.
Ratio Decidendi: The existing rules allow for the removal of red earth for buildings with specified plinth areas without needing an environmental clearance, overriding the obstruction claims by the respondents.
Final Decision: The court permits the petitioner to excavate red earth, ensuring police protection against obstruction.
J U D G M E N T
Shaffique, J Petitioner has approached this Court seeking police protection alleging that respondents 4 to 6 have obstructed removal of red earth from his property which has been permitted by the competent authorities. Petitioner submits that he intends to construct a building in 2.5 ares of land in Survey No.227/1-1, 230/2-1 of Njeezhoor village in Vaikkom Taluk. Ext.P2 is the building permit dated 14/01/2015. Petitioner has also obtained a permit to develop the property in terms of Ext.P4 dated 24/06/2015. He applied before the Mining and Geology Department for permission to remove the red earth. By order dated 01/07/2015, permission was granted to remove 2475 metric tons of ordinary earth from his property on certain conditions as prescribed in the order Ext.P5. Learned counsel submits that the period covered by Ext.P5 has expired and an application has been filed to extend the period, as Ext.P10. The W.P.C.No.20801/2015 2 facts being so, it is stated that the respondents have obstructed the removal of red earth. Petitioner preferred a complaint before the police. Since no action was taken by the police in this regard, this writ petition has been filed.
2. Counter affidavit has been filed by the 4th respondent inter alia stating that the National Green Tribunal, by Ext.R4(c) order dated 31/03/2015, has issued certain interim orders by which the Government Order produced as Annexure R4(b) dated 15/11/2014 has been stayed until further orders. Further 4th respondent submits that the mining of the area requires environment clearance and that it will also affect the lateral strength of his property.
3. It is relevant to note that as per Rule 14(2) of the Kerala Minor Mineral Concession Rules , 2015, it is clearly indicated that no permit is required for removal of red earth if it is for construction of a residential building having a plinth area of 300 sq. meters. Having regard to the existence of the said rules for which there is no challenge, we are of the view that the petitioner, having obtained building permit and development permit for construction of the building having a plinth area of less than 300 sq. meters, is entitled to excavate and remove red earth W.P.C.No.20801/2015 3 from his property. As far as the permit granted by the Mining and Geology Department is concerned, petitioner has to obtain necessary extension of time for transportation of red earth from the said property, as per the terms and conditions stipulated therein.
4. The contention of the respondents that the removal of red earth requires environmental clearance cannot be accepted especially on account of existence of Rule 14(2) of the Kerala Minor Mineral Concession Rules , 2015. In these circumstances, 4th respondent or any other person has no right to physically obstruct the excavation or removal of red earth from the property of the petitioner.
5. Learned counsel appearing for the 4th respondent submits that he had already given a complaint to the District Collector, which is pending consideration. If any competent authority like the District Collector is pleased to stop the excavation of red earth from the property of the petitioner, this judgment shall not preclude such authority from passing appropriate orders, after hearing the concerned persons.
6. As far as the claim of the 4th respondent that excavation of red earth from the property of the petitioner will W.P.C.No.20801/2015 4 loose the lateral support of his property, it being a disputed question of fact, we are of the view that the remedy of the 4th respondent is to approach the Civil Court and obtain appropriate orders preventing the petitioner from removing red earth from his property. Under such circumstances, we are of the view that the writ petition can be disposed of as follows:
i) That in the event of any obstruction from respondents
4 to 6 or their men in the matter relating to excavation or removal of red earth from the property of the petitioner, 9th respondent shall e
