W.P.(C)No.4782 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 4782 OF 2022
PETITIONER:
KANNAN P.G.,
AGED 38 YEARS, S/O. GOPALAN,
PULIKKUNATH HOUSE, POTTUR P.O.,
THRISSUR DISTRICT.
BY ADVS.
SRI RANJITH THAMPAN (SR.)
SRI V.M.KRISHNAKUMAR
SMT P.R.REENA
RESPONDENTS:
1 DISTRICT GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY,
CHEMBUKKAV, THRISSUR, KERALA-680020.
2 THE TAHSILDAR (LR),
TALUK OFFICE, KUNNAMKULAM TALUK,
KUNNAMKULAM, THRISSUR DISTRICT-680503.
SRI.KANNAN, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.03.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.4782 of 2022
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T.R. RAVI, J.
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W.P.(C)No.4782 of 2022
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Dated this the 10th day of May, 2022
JUDGMENT
Petitioner is the present owner of 1 Acre of dry land in Sy.Nos.735A/8, 10 and 11 of Erumapetty Village. The properties were originally assigned as per Exts.P9 to P12 proceedings to M/s. Velayudhan, Sankaran, Ayyappan and P.K.Balan. The conditions of the assignment stated in Exts.P9 to P12 will show that the properties are alienable after three years of assignment. The petitioner had purchased the properties from the aforesaid persons and has obtained a building permit for the construction of houses in the aforesaid property from the Erumapetty Grama Panchayat. Ext.P4 is the building permit. It can be seen from Ext.P4 that the permission is for the construction of 8 residential houses. The petitioner has also been issued with Ext.P5 development permit by the Panchayat permitting the removal of ordinary earth from the property. It is stated in the writ petition that the Assistant Engineer has assessed the quantity of ordinary earth that is to be removed as 5777.15 M3. The petitioner applied to the 1 st respondent for issuance of transit passes for removing the earth. The 3rd respondent obtained Ext.P7 report from the 2nd respondent which states that if necessary permissions have been issued by the Grama Panchayat, transit W.P.(C)No.4782 of 2022 3 passes can be issued subject to conditions. By Ext.P8, the 1 st respondent has rejected the request. The reason for the rejection is not clearly discernible from Ext.P8. Ext.P8 states that the properties were originally assigned lands. It is further stated that assignments are usually granted as per the Land Assignment Rules of 1964 and Rules issued in 1993, for purposes of Agriculture, construction of residence, construction of small shop rooms and beneficial enjoyment. A report of the Tahsildar dated 28.1.2022 which had been obtained by the 1st respondent is cited in Ext.P8 to say that user of land for purposes other than for which it has been assigned can only be treated as a violation of the Rules. Thereafter, Ext.P8 concludes that in view of the clarification obtained from the Tahsildar, transit pass cannot be issued.
2. Heard Sri Ranjith Thampan, Senior Advocate instructed by Sri V.M.Krishnakumar on behalf of the petitioner and Sri Kannan, Senior Government Pleader on behalf of the respondents.
3. It is evident from Exts.P9 to P12 that the construction of residential buildings is not prohibited in the assigned land. There is also no contention for the respondents that the land is not alienable. It is also not disputed that use for residential purposes will not be a violation of the conditions of the assignment. The development permit is ancillary to the building permit and the removal of the ordinary earth is only for the purpose of effecting the construction. W.P.(C)No.4782 of 2022 4 As such, the reasons stated in Ext.P8 are not legally sustainable. The Senior Government Pleader pointed out condition No.8 in Exts.P9 to P12 and submitted that there is a requirement that the assignee or any member of his family and successor-in-interest shall reside in/cultivate the land and that such residence/cultivation shall commence within the period of one year from the date of receipt of the patta. I do not think condition No.8 can have any bearing on the facts of this case. The patta was issued as early as 23.5.1980 and there is no case for the respondent that there has been a violation of any of the conditions of the patta from 1980, till the date of transfer of the property to the petitioner. It is also evident that the petitioner only seeks to use the land for residential purposes, which is an activity permitted as per the assignment. It is also evident that whoever resides in the property will be a successor-in-interest, since alienation is permitted.
4. In the result, the writ petition is allowed. Ext.P8 is quashed. The 1st respondent is directed to consider the application submitted by the petitioner for transit passes and grant the same if the petitioner is otherwise entitled. It is made clear that this judgment will not in any manner affect the reservations available to the Government as per the Land Assignment Rules.
Sd/-
T.R. RAVI JUDGE dsn W.P.(C)No.4782 of 2022 5 APPENDIX OF WP(C) 4782/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 22/07/2020.
Exhibit P2 TRUE COPY OF LOCATION SKETCH OF THE PETITIONER'S PROPERTY ISSUED BY THE VILLAGE OFFICER.
Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE NO. 388/21 DATED 23/09/2021.
Exhibit P4 TRUE COPY OF BUILDING PERMIT ISSUED BY ERUMAPETTY PANCHAYATH DATED 05/01/2022. Exhibit P5 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 03/06/2021 ISSUED BY ERUMAPETTY PANCHAYATH.
Exhibit P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 29/06/2021 ALONG WITH AFFIDAVIT OF THE PETITIONER.
Exhibit P7 TRUE COPY OF THE LETTER NO. B4/342390/22 DATED 31/01/2022 OF THE TAHSILDAR.
Exhibit P8 TRUE COPY OF THE LETTER DATED 08/02/2022 OF 1ST RESPONDENT GEOLOGIST.
Exhibit P9 TRUE COPY OF PATTA NO.LA.39/76/NLY DATED 23/5/1980 Exhibit P10 TRUE COPY OF THE PATTA NO.LA.40/76/NLY DATED 23/5/1980 Exhibit P11 TRUE COPY OF PATTA NO.LA.41/76/NLY DATED 23/5/1980 Exhibit P12 TRUE COPY OF PATTA NO.LA.43/76/NLY DATED 23/5/1980