IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 20^TH DAY OF SEPTEMBER 2022 / 29TH BHADRA, 1944 WP(C) NO. 21359 OF 2022 PETITIONER:

AUGUSTINE JOSEPH, AGED 70 YEARS, S/O JOSEPH, KANDATHIL, PATHAMPUZHA P.O., POONJAR THEKKEKKARA, KOTTAYAM-686 582.

BY ADVS.

SRI.S.SREEKUMAR (SR.)

SMT.CHITHRA CHANDRASEKHARAN RESPONDENTS:

1 POONJAR THEKKEKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE POONJAR THEKKEKKARA GRAMA PANCHAYAT, POONJAR TOWN ROAD, KOTTAYAM-686 582.

2 THE VILLAGE OFFICER, POONJAR THEKKEKKARA VILLAGE OFFICE, PANACHIPPARA, POONJAR, KOTTAYAM-686 581.

3 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KOTTAYAM DISTRICT, PIN-686 002.

BY ADVS.

R1 BY SRI.V.K.PRASAD SMT.SURYA BINOY, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

N. NAGARESH, J.

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W.P.(C) No.21359 of 2022 `````````````````````````````````````````````````````````````

Dated this the 20<sup>th</sup> day of September, 2022

J U D G M E N T

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The petitioner, who is owner of 70.70 Ares of land in Poonjar Thekkekkara Village, seeks to quash Exts.P7, P8 and P9 and to direct the 3<sup>rd</sup> respondent to permit the petitioner to transport broken rocks having a quantity of 805.86 cubic metre extracted and kept in the property of the petitioner.

2. The petitioner states that with an intent to construct a residential building in his property, the petitioner obtained Ext.P3 Building Permit and Ext.P5 approved building plan from the 1<sup>st</sup> respondent-Panchayat. Ordinary earth was required to be removed for building construction. In the approved Development Plan, the ordinary earth to be removed was stipulated as 286.15 cubic metre. As the petitioner did not want to transport the ordinary earth excavated from the property of the petitioner, a transit pass under Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 was not obtained.

3. The petitioner states that while excavating ordinary earth, a bed of rock was found beneath the earth. To construct foundation of the building, the rock had to be removed. When the petitioner approached the 3<sup>rd</sup> respondent-Geologist seeking permission, the petitioner was informed that for grant of permit, the property should be demarcated by the 2<sup>nd</sup> respondent-Village Officer.

4. The petitioner submitted an application under Rule

106 of the KMMC Rules, 2015 to the 3<sup>rd</sup> respondent seeking permission for extraction and transportation of the rock from his property. The petitioner broke the bed of rock into pieces and kept the same in the petitioner's property. The 3<sup>rd</sup> respondent conducted an inspection on 19.02.2022 and measured the quantity of rocks. The 3<sup>rd</sup> respondent found that 805.86 cubic metres of rock was excavated. The petitioner was required to pay royalty amount of ₹48,352/- for the 805.86 cubic metre of rock excavated. The petitioner remitted the amount.

5. On 02.04.2022, the 3<sup>rd</sup> respondent issued Ext.P7 letter to the 1<sup>st</sup> respondent-Secretary to the Panchayat pointing out that since the quantity of minerals required to be removed has not been mentioned by the LSGD Engineer in the Building Permit, the 1<sup>st</sup> respondent shall give a clarification as to the quantity of the mineral to be removed. The petitioner would submit that Ext.P7 letter is illegal and in view of Rule 106 of KMMC Rules, 2015 and in view of the law laid down by this Court in Varghese v. District Collector [2015 (3) KLT 642]. The 3<sup>rd</sup> respondent himself has to conduct inspection and fix royalty.

6. The 1<sup>st</sup> respondent thereafter issued Ext.P8 letter to the petitioner alleging that though the permission was to extract 286.15 cubic metre of ordinary earth, the petitioner had quarried 5000 cubic metre of rocks and has kept the rocks in his property at a height of 5 metres. By Ext.P8, the petitioner was directed to stop all the works being done in the property.

7. On 09.05.2022, the 2<sup>nd</sup> r