Forest Department Cannot Deny Soil Excavation Permission To Assignee of Land Just Because It Contains High Levels of Humus: Kerala High Court

The Kerala High Court recently held that the Forest Department cannot deny permission to an assignee of land under the Kerala Land Assignment Special Rules, 1993, to excavate and transport ordinary earth from their land for the purpose of house construction simply because the soil contains high levels of humus.

A single bench of Justice N Nagaresh observed that

“..defence of the respondents is that the soil excavated at the site has the inherent biological properties of the Forest ecosystem with high levels of humus and hence soil can be removed only with the permission of the Forest Department. High levels of humus quality cannot by itself affect the right of a land owner to utilise his land according to his requirements permissible under law and under the terms of assignment. In the absence of any statutory prohibition, restriction or regulation and in the absence of any executive instruction having the force of Article 162, Officers of the Forest Department cannot prevent an assignee of the land under the Special Rules, 1993 from constructing house and for that purpose excavate and transport ordinary earth”

The Court also observed that under Rule 3 of the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rules, 1993 assigned land can be used for personal cultivation, house sites or shop sites. As long the pattayam/conditions of assignment do not contain any specific condition that prohibits removal of ordinary earth from the site, such removal cannot be denied, it said.

“When Rule 3 of the Special Rules, 1993 categorically states that the assignment can be for personal cultivation or for house sites and when the conditions of Pattayam do not expressly or by implication prohibits excavation and/or transportation of ordinary earth / red earth for construction of houses, the respondents cannot contend that the assignees under the Special Rules, 1993 have no right to excavate and transport ordinary earth / red earth to facilitate house construction in the assigned land.”

The Court was considering a batch of petitions filed by persons holding properties that were formerly part of forest land and assigned to the petitioners under the Special Rules, 1993. The petitioners had obtained building permits from the Local Self Government for constructing residential houses in their respective lands.

The petitioners wanted to unearth and transport red earth from their property for construction of their houses. Under the Kerala Minor Mineral Concession Rules, 2015 and the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules 2015, the petitioners were required to obtain Mineral Transit Passes from the District Geologist for this purpose, as ordinary earth is considered a minor mineral. However, the Geologist without considering the application of the petitioners on merit, sought the opinion of the Range Forest Officer as the land was assigned under the Special Rules 1993. The petitioners challenged the refusal of the Geologist in considering their applications.

The Range Forest Officer was of the view that petitioners’ sites were part of the forest ecosystem and had soil that contained humus. The top soil can only be removed with the permission of the Forest Department after monitoring environmental benefits, the respondent argued.The Range Forest Officer argued that removing soil from land assigned under the Special Rules, 1993 would violate Section 2 of the Forest Conservation Act, 1980.

The Court in this regard referred to the decision in Nature Lovers Movement v. State of Kerala and others [AIR 2000 Ker 131] where it was held that the Forest Conservation Act, 1980 does not have retrospective effect. The Court was of the view that violation of the Forest Conservation Act, 1980 could not be a reason to stop petitioners from constructing residential homes in their properties assigned to them under the Special Rules, 1993.

The Court held that the Geologist erred in awaiting the opinion of the Range Forest Officer and denying issuance of Mineral Transit Passes to the Petitioners. Accordingly, the Court directed the District Geologist to consider the application of the Petitioners on merits and pass orders on eligibility within a month.

Case Title: Mohandas P.D V. The District Geologist

Citation: 2023 LiveLaw (Ker) 239

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