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2023 DIGILAW 1027 (KER)

Muhammadali v. Village Officer

2023-12-12

MURALI PURUSHOTHAMAN

body2023
JUDGMENT : The petitioner submitted Ext.P2 application to the 1st respondent Village Officer to issue non-assignment certificate, demarcation certificate and field measurement book in respect of his property comprised in Sy. No. 556/1-8 of Aloor Village for making application before the Geologist for extraction and transportation of ordinary earth, for use in the construction of the National Highway. The said application was rejected by the Village Officer by Ext.P3 communication stating that the Kandanassery Grama Panchayat has, vide Ext. P4, resolved not to grant permission for removal of earth from Ponmalakunnu area in Aloor village coming within the said Panchayat. The petitioner challenges Ext. P3 contending that the Village Officer lacks authority to reject the request for non-assignment certificate and demarcation certificate concerning his property based on the objection of the Panchayat, and it is for the Geologist to consider whether permission has to be granted for extraction of ordinary earth, at the appropriate stage. 2. Heard Sri. Irfan Ziraj, the learned counsel for the petitioner and Sri. Bimal K. Nath, the learned Senior Government Pleader. 3. The learned Senior Government Pleader contends that, since the certificates applied for in Ext. P2 are for the purpose of submitting application before the Geologist for extraction of ordinary earth, the Village Officer has rightly rejected Ext. P2 application based on the resolution passed by the Panchayat not to grant permission for removal of earth from certain areas within the Panchayat. Sri. Bimal further contends that, without the Kandanassery Grama Panchayat on the array of respondents, the writ petition is not maintainable. 4. Rule 4 of the Kerala Minor Mineral Concession Rules, 2015 (hereinafter referred to as 'the Rules') deals with the application for quarrying permit, which reads as under: 4. Application for quarrying permit.—(1) An application for a quarrying permit shall be made in Form A and shall contain the following particulars, namely:— (a) name, address, profession and nationality of the applicant; (b) name and quantity of the minor mineral for which the permit is required; (c) description such as location, survey number etc. of the lands from which the minor mineral is to be extracted; (d) purpose for which the minor mineral is to be used. of the lands from which the minor mineral is to be extracted; (d) purpose for which the minor mineral is to be used. (2) Every such application shall be accompanied by,— (a) a copy of the survey map of the area, attested by the Village Officer concerned or any other competent officer of the department of Land Revenue having jurisdiction over the area in respect of which permit is applied for or Assistant Director of Survey and Land Records concerned. The area in which extraction is applied for in each survey number shall be demarcated and coloured red in the map; (b) a certificate of demarcation of the boundaries of areas applied for, issued by an officer of the department of Land Revenue not below the rank of Village Officer who has jurisdiction over the relevant area; (c) a certificate from the Village Officer concerned to the effect that the land in respect of which quarrying permit is applied for, is not assigned for any special purpose by the department of Land Revenue; (d) the possession and enjoyment certificate issued by the Village Officer concerned in respect of the land from where the minerals are proposed to be extracted. In case the applied area for quarrying permit is not under the possession and enjoyment of the applicant, then a notarized consent letter from the owner of such land shall be submitted to the effect that he has no objection in extraction of minor mineral by the applicant in the event of grant of quarrying permit by the Department of Mining and Geology. In the event of issuance of letter of intent by the Department of Mining and Geology for the grant of quarrying permit, the owner of the land and applicant shall enter into a lease agreement for sufficient period permitting the applicant to occupy the land for mining operations for which application has been submitted. In the event of issuance of letter of intent by the Department of Mining and Geology for the grant of quarrying permit, the owner of the land and applicant shall enter into a lease agreement for sufficient period permitting the applicant to occupy the land for mining operations for which application has been submitted. The said lease agreement shall be registered as per the Registration Act 1904; (e) No Objection Certificate, in the case of revenue poramboke lands or lands owned by Local Self Government or forest lands, from the District Collector or Secretary of the Local Self Government Institution or Divisional Forest Officer, as the case may be, to the effect that they have no objection for the extraction of minor mineral by the applicant subject to the provisions contained in these rules; (f) [xxx] (g) Bank guarantee from any Nationalized or Scheduled Bank at the rate of Rs.300/-(Rupees three hundred only) per cubic metre for the purpose of reclamation of pits that will be formed after quarrying in the area permitted, in respect of application for extraction of ordinary clay and ordinary sand.” 5. The Village Officer is designated under Sub- Rules (b) & (c) of Rule 4 (2) of the Rules to issue the demarcation certificate and non-assignment certificate which are necessary documents to accompany an application for quarrying permit. Rule 4(2)(e) of the Rules provides that the application for quarrying permit shall be accompanied by No Objection Certificate, in case of revenue puramboke lands or lands owned by Local Self Government or forest lands, from the District Collector or Secretary of the Local Self Government Institution or Divisional Forest Officer concerned, as the case may be, to the effect that they have no objection for the extraction of minor mineral by the applicant subject to the provisions contained in the Rules. NOC of the Local Self Government Institution to accompany an application for quarrying permit is necessary only if the land in respect of which the quarrying permit is sought is owned by the Local Self Government Institution. In this case, the land in question is owned by the petitioner and not by the Kandanassery Grama Panchayat. The Village Officer cannot insist for NOC from the Panchayat for issuance of demarcation and non-assignment certificates. In this case, the land in question is owned by the petitioner and not by the Kandanassery Grama Panchayat. The Village Officer cannot insist for NOC from the Panchayat for issuance of demarcation and non-assignment certificates. No power is vested in the Village Officer to reject an application for demarcation certificate and non-assignment certificate on the basis of any objection made by the Panchayat. Issuance of demarcation and non-assignment certificates itself will not enable the petitioner to conduct quarrying operation. The permission or objection of the Panchayat is totally outside the purview of the Village Officer while considering the application for demarcation and non-assignment certificates. 6. Accordingly, Ext.P3 is set aside. There will be a direction to the 1st respondent to consider the application of the petitioner for issuance of demarcation and non-assignment certificates as also field measurement book, in accordance with law, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment, notwithstanding Ext.P4 resolution passed by the Panchayat. The writ petition is disposed of accordingly.