Vijayalakshmi I vs District Geologist
2021 Latest Caselaw 17566 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                       WP(C) NO. 16188 OF 2021
PETITIONER:

          VIJAYALAKSHMI I
          AGED 53 YEARS
          D/O.INDIRA, RESIDING AT 'USHUS', S.R.A. NO.18,
          KURISSADY JUNCTION, NALANCHIRA, NALANCHIRA P.O.,
          THIRUVANANTHAPURAM 695 015

          BY ADV T.C.SURESH MENON


RESPONDENT:

          DISTRICT GEOLOGIST
          MINING AND GEOLOGY DEPARTMENT,
          KESEVADASAPURAM, PATTAM PALACE P.O.,
          THIRUVANANTHAPURAM 695 004

          SMT. SURYA BINOY. B.- SR. G.P.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16188 OF 2021

                                         2




                                 JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) call for records leading to passing of Ext.P4 order passed by the respondent and quash the same by issue of a writ in the nature of certiorari or such other writ or order.

(ii) issue a writ in the nature of mandamus directing the respondent to issue permit to the petitioner for removal of the ordinary earth from her property as evident from Ext.P1"

2. Heard the learned counsel for the petitioner and the learned

Government Pleader.

3. It is submitted that the petitioner had obtained a development

permit as a preliminary step for reconstruction of a residential house in

the petitioner's property. It is submitted that some ordinary earth had to

be removed for carrying out the construction. It is submitted that there

was an agreement entered into with regard to removal of the ordinary

earth and a suit for injunction had been filed by the person who entered

into the contract with the petitioner, but no orders had been granted by

the Civil Court. It is specifically stated in the writ petition that though a

suit had been filed, there is no ad-interim injunction against the WP(C) NO. 16188 OF 2021

petitioner and there is no impediment to the respondent issuing permits

on the basis of development permit already granted.

4. The learned Government Pleader submits that specific instructions

have not been obtained from the respondent.

5. However, I notice that even in Ext.P4 order of the respondent, it is

stated that the reason for the rejection of the application for permission

to remove ordinary earth is that there is a suit filed as O.S. No.116/2021

before the Munsiff Court. It is clear that even in Ext.P4, there is no

contention for the respondent that there is any order against the

removal of ordinary earth in the suit. In the above factual situation, I am

of the opinion that the filing of a suit for injunction cannot be a ground

for refusing to entertain an application for permission for removal of

ordinary earth.

6. In the result, there will be a direction to the respondent to consider

the application preferred by the petitioner for permission on the basis of

the development permit already issued to the petitioner untrammelled

by the existence of a suit, unless there is any order of injunction

produced before the respondent. Orders shall be passed without delay on

the application preferred by the petitioner. WP(C) NO. 16188 OF 2021

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 16188 OF 2021

APPENDIX OF WP(C) 16188/2021

PETITIONER'S/S EXHIBITS:

Exhibit P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VATTAPPARA VILLAGE DATED 3.10.2019

Exhibit P2 TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED BY VEMBAYAM GRAMA PANCHAYATH, DATD 19.6.2020

Exhibit P3 TRUE COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND ONE SARATHKUMAR, DATED 3.11.2020

Exhibit P4 TRUE COPY OF THE ORDER NO.1318/DOT/ML/2020 PASSED BY THE RESPONDENT, DATED 25.3.2021

RESPONDENT'S/S EXHIBITS: NIL