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2023 Supreme(Online)(Ker) 56503
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945 WP(C) NO. 34257 OF 2022 PETITIONER:
1 MOHANDAS P.D AGED 57 YEARS S/O LATE DIVAKARAN, AGED 57 YEARS, PATHIKALAYIL, MAILATTUMPARA PEECHI P.O., THRISSUR DISTRICT-680 653.
BY ADV BINOY VASUDEVAN RESPONDENTS:
1 THE DISTRICT GEOLOGIST OFFICE OF THE DISTRICT GEOLOGIST, MINI CIVIL STATION, CHEMBOOKKAVU, THRISSUR, 680 020.
2 THE TAHSILDAR, (LAND RECORDS), TALUK OFFICE, PALACE ROAD,THRISSUR-680 020.
3 THE RANGE FOREST OFFICER, PEECHI FOREST STATION, PEECHI P.O., THRISSUR DISTRICT-680 653. 4 THE VILLAGE OFFICER, PEECHI VILLAGE PEECHI P.O., THRISSUR DISTRICT, 680 653 SRI.T.P.SAJAN, SPL GP(FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023, ALONG WITH WP(C).35502/2022, 36460/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945 WP(C) NO. 35502 OF 2022 PETITIONER:
JAYAPRAKASH, AGED 54 YEARS S/O.DIVAKARAN, AGED 54 YEARS, PATHIKALAYIL HOUSE, MYLATTUPARA, PEECHI P.O., THRISSUR DISTRICT-680 653 REPRESENTD BY ITS POWER OF ATTORNEY HOLDER RAMESH, S/O DIVAKARAN, AGED 58 YEARS, PATHIKALAYIL HOUSE MYLATTUPARA, PEECHI.P.O, THRISSUR DISTRICT-680653 BY ADV BINOY VASUDEVAN RESPONDENTS:
1 THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINI CIVIL STATION, CHEMBOOKKAVU, THRISSUR, PIN-680 020.
2 THE TAHSILDAR,(LAND RECORDS), TALUK OFFICE, PALACE ROAD, THRISSUR, PIN-680 020.
3 THE RANGE FOREST OFFICER, PEECHI FOREST STATION, PEECHI.P.O, THRISSUR DISTRICT, PIN-680653.
4 THE VILLAGE OFFICER, PEECHI VILLAGE, PEECHI.P.O, THRISSUR DISTRICT, PIN-680653.
SRI.T.P.SAJAN, SPL GP(FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023, ALONG WITH WP(C).34257/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945 WP(C) NO. 36460 OF 2022 PETITIONER:
POULY GEORGE PALATHUNGAL HOUSE, MANIMARUTHUCHAL, OONNUKAL, NERIAMANGALAM, ERNAKULAM DISTRICT, PIN – 686693 BY ADV BINU PAUL RESPONDENTS:
1 THE DISTRICT GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030
2 RANGE FOREST OFFICER KOTHAMANGALAM RANGE, ERNAKULAM DISTRICT, PIN – 686693 SRI.T.P.SAJAN, SPL GP(FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023, ALONG WITH WP(C).34257/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945 WP(C) NO. 37996 OF 2022 PETITIONER:
KRISHNANKUTTY AGED 70 YEARS S/O. NARAYANAN, KALLAMPARAMBIL HOUSE, ASSARIKKAD (PO), PEECHI, THRISSUR DISTRICT, PIN - 680 653.
BY ADV BINOY VASUDEVAN RESPONDENTS:
1 THE DISTRICT GEOLOGIST OFFICE OF THE DISTRICT GEOLOGIST, MINI CIVIL STATION, CHEMBOOKKAVU, THRISSUR, PIN - 680 020.
2 THE TAHSILDAR(LAND RECORDS), TALUK OFFICE, PALACE ROAD, THRISSUR PIN - 680 020.
3 THE RANGE FOREST OFFICER PEECHI FOREST STATION, PEECHI P.O., THRISSUR DISTRICT, PIN - 680 653.
4 THE VILLAGE OFFICER PEECHI VILLAGE, PEECHI P.O., THRISSUR DISTRICT, PIN - 680 653.
SRI.T.P.SAJAN, SPL GP(FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023, ALONG WITH WP(C).34257/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CR N. NAGARESH, J.
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W.P.(C) Nos.34257, 35502, 36460 and 37996 of 2022 `````````````````````````````````````````````````````````````
Dated this the 2nd day of May, 2023
Landowners assigned land under specific regulations are permitted to excavate ordinary earth for construction unless prohibited by law, which was not the case here.
Headnote:(A) Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rules, 1993 - Kerala Minor Mineral Concession Rules, 2015 - Writ petitions to permit issuance of Mineral Transit Passes for removal of earth - The court held that denial of passes by the District Geologist was illegal, as there was no statutory prohibition against removal or transportation of ordinary earth for house construction as per the conditions of assignment. (Paras 3, 20, 23)
(B) Environmental considerations - The Respondents argued against excavation based on environmental impacts; however, the court noted that without statutory restrictions, landowners have rights to utilize their land as permitted by law. (Paras 21, 22)
Facts of the case:
The petitioners sought approval to remove ordinary earth for construction from their land assigned under the Special Rules, 1993. The District Geologist refused to issue the necessary passes pending opinion from the Forest Range Officer, leading to a challenge in court.
Findings of Court:
The court found the refusal to issue Mineral Transit Passes as arbitrary, emphasizing the need for the District Geologist to act on statutory applications without unnecessary delays or conditions.
Issues: Whether the petitioners have the right to excavate and transport soil under the Special Rules, 1993 and whether the refusal for Mineral Transit Passes was justified.
Ratio Decidendi: The court emphasized that conditions of the land assignment do not prohibit excavation of soil unless specified in law or regulations; thus, the refusal of passes was not lawful.
Result: Writ petitions disposed of with a directive for the District Geologist to consider the applications for Mineral Transit Passes.
JUDGMENT
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These writ petitions raise a common question of law almost on similar facts. Hence, they are heard together and disposed of by a common judgment.
2. For convenience, facts of the case in W.P.(C) No.34257 of 2022 are narrated here. Facts in other cases are almost identical. The petitioner is in ownership and possession of 0.297 Hectares of land situated in Peechi Village of Thrissur Taluk. The petitioner wanted to construct a residential building on the property. The Grama Panchayat, after verification, granted Ext.P3 Building Permit.
3. For the purpose of construction, ordinary earth has to be removed from the property. The Building Plan approved by the Panchayat indicated the quantity of ordinary earth to be removed for facilitating the construction. The ordinary earth so removed is to be transported out. Ordinary earth being a minor mineral, the petitioner requires Mineral Transit Passes to be issued by the 1st respondent-District Geologist.
4. The District Geologist, instead of issuing Mineral Transit Passes, issued Ext.P5 letter dated 23.02.2022 to the Range Forest Officer asking for his opinion as to whether the land of the petitioner being originally one assigned under the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rules, 1993 (hereinafter referred to as “the Special Rules, 1993” for brevity) and since the Possession Certificate also indicated that it is an ‘assigned land’, can permission be granted to remove and transport out earth from the land for construction of residential building.
5. According to the petitioner, the Forest Range Officer did not respond to the communication sent by the District Geologist and the District Geologist is refusing to issue Mineral Transit Passes without the concurrence of the Forest Range Officer. According to the petitioner, the District Geologist, in issuing Mineral Transit Passes, is exercising a statutory power and cannot exercise that power based on the opinion of the Forest Range Officer. The petitioner would argue that this Court, in Exts.P7 to P9 judgments, has held that ordinary earth can be permitted to be removed and transported for the purpose of construction of residential houses.
6. The Special Government Pleader (Forests) resisted the writ petitions filing Statements/Counter Affidavits. On behalf of the Range Forest Officer, it is submitted that the assignment of the forest land is made under Rule 9(3) of Kerala Land Assignment Rules (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rule 1993. The land was formerly part of Paravattanimala Notified Reserve. As per Rule 3 of the rules the purpose of assignment is for personal cultivation, house construction or shop room construction. So the land cannot be used for any other purpose. The petitioner is entitled to construct building in the property but under the guise of house construction, the soil of the forest land cannot be removed from the said land. The petitioner obtained the aforesaid land falling under Survey Number.3385/P of Peechi Village through a partition deed among his siblings and registered as Document No.1949 of 2014 of S.R.O. Ollukkara dated 20.05.2014. The land was formerly forest land and it was actually assigned as part of regularization of the occupation of forest land. The petitioner has not submitted any application before the Divisional Forest Officer, Thrissur or any other subordinate forest officers for the removal of earth from his forest assigned land.
7. The petitioner's forest assigned land is located at the right side of Poolachodu-Mayilattumpara Road. This land is situated in 2 meters height from the road. The land is just 200 meters away from Mayilatumpara forest area of Paravattanimala Notified Reserve. Soil excavation from the land would affect climatic and edaphic factors of the area. The Patta of the land attached by the petitioner as Ext.P6 with the petition is the same as the Patta anne
