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2021 DIGILAW 221 (KER)

Kinallur Rock Sand v. State of Kerala

2021-03-05

N.NAGARESH

body2021
JUDGMENT : 1. The petitioner seeks to quash Ext.P2 order of the 3rd respondent-Additional District Magistrate and to direct the District Collector and the Additional District Magistrate to issue NOC as applied for by the petitioner as per Ext.P1. 2. The petitioner submitted an application for grant of NOC for setting up an explosive magazine. The application submitted under the Explosives Rules, 2008 has been rejected on the sole ground that the property wherein the magazine is to be established, is a plantation which was exempted from cealing proceedings under the Kerala Land Reforms Act, 1963. 3. The petitioner would submit that with an intention to establish a quarrying unit in 4.0558 Hectares of property in Re-Survey No.109 of Kinallur Village, Kozhikode, the petitioner applied for and was granted a Letter of Intent on 09.05.2018 by the Director of Mining and Geology under the Kerala Minor Mineral Concession Rules, 2015. Thereafter, the petitioner applied for NOC of the 3rd respondent under the Explosives Rules, 2008. 4. The 2nd respondent-District Collector called for reports from various authorities including the 4th respondent-Tahsildar. After a period of two years, the 3rd respondent, as per Ext.P2, informed the petitioner that NOC cannot be granted since the land in which the magazine is proposed to be established was a plantation land, exempted under the Kerala Land Reforms Act, 1963. 5. The petitioner would contend that there is no restriction under the Kerala Land Reforms Act, 1963 on using a property exempted under the Kerala Land Reforms Act for another purpose. The property, where the magazine is sought to be started, was exempted for plantation purpose. There is no prohibition in starting an explosive magazine in the area. 6. The 3rd respondent opposed the Writ Petition and filed a statement. The 3rd respondent stated that when the application for NOC was received from the petitioner, it was sent for enquiry and report to the District Police Chief (Kozhikode Rural), Divisional Fire Officer (Fire and Rescue Services) and Tahsildar. The Regional Fire Officer reported that permission can be granted subject to terms and conditions of the explosive magazine licence NOC. The District Police Chief initially did not recommend issuance of NOC. However, subsequently, the District Police Chief reported that there is no objection in issuing NOC for explosive magazine, in security point of view. 7. The Regional Fire Officer reported that permission can be granted subject to terms and conditions of the explosive magazine licence NOC. The District Police Chief initially did not recommend issuance of NOC. However, subsequently, the District Police Chief reported that there is no objection in issuing NOC for explosive magazine, in security point of view. 7. The Tahsildar pointed out that the land was exempted from the ceiling area under the Kerala Land Reforms Act, 1963 for plantation purpose. The extended property will have to be maintained for the exempted purpose alone. Therefore, NOC cannot be granted. Therefore, the application submitted by the petitioner for grant of NOC was rejected as per Ext.P2. 8. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader appearing for the respondents. 9. On the basis of enquiries made by the 2nd respondent-District Collector, the Fire and Rescue Officer has reported that there is no objection in granting NOC to the petitioner to start an explosive magazine in the land in question. The District Police Chief has also reported that there is no threat in the security point of view in permitting the petitioner to establish explosive magazine in the land in question. However, as per the report of the Tahsildar, the land where explosive magazine is sought to be established, is exempted land under the Kerala Land Reforms Act. The exemption was granted as the land was a plantation. No permission can be granted to utilise the land for any other purpose than the plantation. 10. It was on that ground alone that NOC has been declined to the petitioner. It may be noted that there is no prohibition in using an exempted land under the Kerala Land Reforms Act for a different purpose. And if the exempted land is utilised for any other purpose, it may fall within one’s ceiling area and the authorities may be able to initiate cealing proceedings. But, that cannot be a reason to decline permission for using the land for another purpose. This view is supported by the Full Bench judgment of this Court in Mathew K. Jacob & Anr. v. District Environmental Impact Assessment Authority, Kottayam ( 2018 (5) KHC 487 ). The Writ Petition is therefore allowed. Ext.P2 is set aside. But, that cannot be a reason to decline permission for using the land for another purpose. This view is supported by the Full Bench judgment of this Court in Mathew K. Jacob & Anr. v. District Environmental Impact Assessment Authority, Kottayam ( 2018 (5) KHC 487 ). The Writ Petition is therefore allowed. Ext.P2 is set aside. The 3rd respondent is directed to reconsider the application of the petitioner for NOC and pass appropriate orders thereon, in accordance with law, within a period of two months.