Kannan P.G vs District Geologist
2022 Latest Caselaw 5167 Ker

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

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

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

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