SHYNYMOL Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard the counsel for petitioner, learned Government Pleader appearing for respondents 1 to 4 and the counsel appearing for the fifth respondent. Petitioner claims to be the owner of a property having an extent of 18.23 areas comprised in survey No. 30/6 and 30/1 of Chirakkadavu Village. According to the petitioner by Ext. P4 order the Revenue Divisional Officer permitted her to remove red earth from the property in the manner as provided therein. It appears from Ext. P4 that red earth should have been removed between the period from 15.6.2012 to 26.6.2012. However, by Ext. P5, the Secretary of the Panchayat informed her that the Panchayat has passed resolution No. 1/2012 dated 14.6.2012, prohibiting transportation of red soil from within the areas of the Panchayat to outside. On that basis the petitioner was prohibited from removing red soil as permitted in Ext. P4. It was thereupon this Writ Petition was filed.

(2.) The petitioner contents that she having obtained Ext. P4 order of the Revenue Divisional Officer, the Panchayat had no power at all to issue Ext. P5. It is on that basis the Writ Petition has been filed seeking to quash Ext. P5 communication and consequential reliefs are also sought for. On behalf of the Panchayat, an affidavit has been filed by its Secretary. In the affidavit, three contentions raised. First one is that red soil being not a minor mineral, the R.D.O. is not the competent authority to permit its removal or transportation. It was then contended that under S.166 of the Kerala Panchayat Raj Act read with its Third Schedule, soil protection is one of the mandatory duties of the Panchayat. Therefore, the Panchayat was justified in passing resolution and issuing Ext. P5. Yet another contention raised is that the petitioner has not obtained any development permit and in the absence of such a permit, she could not remove red earth from her property.

(3.) In so far as the first contention that red soil is not a minor mineral is concerned, in my view, this contention is already answered against the Panchayat in the Division Bench decision of this court in Construction Materials Movers Association v. State of Kerala, 2008 4 KerLT 909, wherein it has been held that red soil is a minor mineral. Once it is accepted that red soil is a minor mineral, then the question to be examined is whether the Revenue Divisional Officer is a competent authority to issue Ext. P4. This contention will have to be answered with reference to Kerala Minor Minerals Concession Rules. It is seen that in terms of Rule 3 of the Rules, Government of Kerala have issued notification No. 32010/L2/93/ID dated 22.6.1995, wherein competent authority have been notified, which includes the Revenue Divisional Officer also. If that be so, this contention raised by the Panchayat, does not deserve acceptance.