Thomas V J vs District Geologist
2022 Latest Caselaw 11187 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                      WP(C) NO. 32816 OF 2022
PETITIONER

                  THOMAS V J
                  S/O. JOHN, AGED 55 YEARS,
                  VALIYAPARAMBIL HOUSE, MANNUTHY P.O
                  THRISSUR 680651

           BY ADV BINOY VASUDEVAN

RESPONDENTS

             1.    THE DISTRICT GEOLOGIST
                   OFFICE OF THE DISTRICT GEOLOGIST,
                   MINI CIVIL STATION, CHEMBOOKKAVU,
                   THRISSUR 680020

             2.    THE TAHSILDAR, (LAND RECORDS), TALUK OFICE,
                   PALACE ROAD, THISSUR -680020

             3.    THE VILLAGE OFFICER, PEECHI VILLAGE,
                   PEECHI P.O, THRISSUR DISTRICT, PIN 680653




           SRI.DENNY DEVASSY SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   02.12.2022,    THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) No.32816 of 2022
                                  2



                          JUDGMENT

Dated this the 2nd day of December, 2022

The petitioner, who is owner in possession of 0.1700

Hectare of land in Peechi Village of Thrissur Taluk in Thrissur

District, has approached this Court seeking to direct the 1 st

respondent to issue Transit Passes to the petitioner after

accepting the royalty as contained in Rule 14(2) of the Kerala

Minor Mineral Concession Rules, 2015, as expeditiously as

possible and at any rate, within a time frame fixed by this Court.

2. The petitioner states that he is owner in possession

of 0.1700 Hectare of land in Survey No.1397/P of Peechi

Village in Thrissur Taluk of Thrissur District. The petitioner

came into possession of the property under Ext.P1 document.

3. As the petitioner wanted to construct a building,

application for Building Permit was submitted. Building Permit

was granted by the local authority. The petitioner approached

the 1st respondent for issuance of Transit Pass for removal of

ordinary earth for the construction of residential house. WP(C) No.32816 of 2022

4. When the petitioner approached the 1 st respondent

for Transit Pass for removal of ordinary earth, the 1 st

respondent has taken a stand that the property being a patta

land, Transit Pass cannot be issued. It is aggrieved by the said

stand taken by the 1st respondent that the petitioner is before

this Court.

5. The counsel for the petitioner argued that the

petitioner is desirous of constructing a residential building.

This Court considered the issue of construction of residential

building in patta land. In the judgment in W.P.(C) No. 4782 of

2022 delivered in identical circumstances, this Court granted

permission for such construction and directed the Geologist to

issue Transit Pass. The petitioner is also entitled to identical

relief.

6. The Government Pleader entered appearance and

resisted the writ petition. The Government Pleader opposed all

material allegations raised by the petitioner in the writ petition.

The Government Pleader pointed out that Ext.P8 is the Patta

issued to the predecessor of the petitioner. Ext.P8 was issued WP(C) No.32816 of 2022

assigning the land for agricultural purposes. When the land is

assigned specifically for agricultural purposes, the holder of

patta cannot use the said land for any other purpose. Now, the

petitioner wants to excavate ordinary earth from the land

assigned for agricultural purposes. It is not permissible.

7. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents.

8. From the pleadings in the writ petition, it is seen that

this Court considered the very same issue in W.P.(C) No.4782

of 2022. This Court in the judgment held as follows:-

"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. 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 WP(C) No.32816 of 2022

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."

The above judgment will apply to the facts of the petitioner's

case also.

In the circumstances, the writ petition is allowed following

the judgment in W.P.(C) No.4782 of 2022. Consequently, there

will be a direction to the 1 st respondent to consider the

application for Transit Pass submitted by the petitioner, in

accordance with law, and grant Transit Pass to the petitioner, if

the petitioner is otherwise eligible, within a period of one month.

Sd/-

N. NAGARESH, JUDGE

smm WP(C) No.32816 of 2022

APPENDIX OF WP(C) 32816/2022

PETITIONER EXHIBITS

Exhibit P-1 COPY OF THE SETTLEMENT DEED NO.1893/2014 OF SRO, OLLUKKARA, DATED 14.05.2014 Exhibit P-2 COPY OF THE POSSESSION CERTIFICATE DATED 12.07.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P-3 COPY OF THE LAND TAX RECEIPT DATED20.07.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P-4 COPY OF THE BUILDING PERMIT NO.A3-

BA(201957)/2022 DATED 18.06.2022 ISSUED BY THE SECRETARY OF PUTHUR GRAMA PANCHAYAT Exhibit P-5 COPY OF THE APPLICATION DATED 20.07.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P-6 COPY OF THE AFFIDAVIT DATED 20.07.2022 Exhibit7 COPY OF THE ORDER NO.2148/C1/TDO/2022 DATED 10.10.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P-8 COPY OF THE PATTA NO.4269/1999 DATED 20.10.2022

Exhibit P-9 COPY OF THE JUDGMENT DATED 30.03.2022 IN W.P(C)NO.7362 OF 2022 Exhibit P-10 COPY OF THE JUDGMENT DATED 10.05.2022 IN W.P(C)NO.4782 OF 2022 Exhibit P-11 COPY OF THE JUDGMENT DATED 14.06.2022 IN W.P(C)NO.16226 OF 2022