Kerala High Court
John Raphy vs The District Geologist on 7 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
WP(C) NO. 18339 OF 2023
PETITIONER:
JOHN RAPHY
AGED 53 YEARS
S/O. JOSEPH AGED 53 YEARS, KANJIRATHINGAL HOUSE,
MULLASSERI (PO), THRISSUR DISTRICT, PIN - 680509
BY ADV BINOY VASUDEVAN
RESPONDENTS:
1 THE DISTRICT GEOLOGIST
OFFICE OF THE DISTRICT GEOLOGIST,
MINI CIVIL STATION, CHEMBUKKAVU,
THRISSUR, PIN - 680020
2 THE VILLAGE OFFICER
KILLANNUR VILLAGE MULANKUNNATHUKKAVU P.O.,
THRISSUR DISTRICT, PIN - 680020
SMT. K M RESHMI, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.18339 of 2023
2
JUDGMENT
Dated this the 7th day of August, 2023
The petitioner, who is owner in possession of 20.34
Ares of land in Killannur Village of Thrissur Taluk in Thrissur
District, has approached this Court seeking to direct the
1st respondent-District Geologist 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 20.34 Ares of land in Survey Nos.1399/7PT
and 1399/10PT of Killannur 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 residential
houses, applications for Building Permit and Development
WP(C) No.18339 of 2023
Permit were submitted. Permits were granted by the local
authority. The petitioner approached the 1 st respondent for
issuance of Transit Pass for removal of ordinary earth for the
construction of residential houses.
4. When the petitioner approached the
1st respondent for Transit Pass for removal of ordinary earth,
the 1st 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 1 st respondent that the
petitioner is before this Court.
5. The counsel for the petitioner argued that the
petitioner is desirous of constructing residential buildings.
This Court considered the issue of construction of residential
buildings in patta land. In the judgment in W.P.(C) No. 4782
of 2022 delivered in identical circumstances, this Court
granted permission for such constructions and directed the
Geologist to issue Transit Pass. The petitioner is also
entitled to identical relief.
WP(C) No.18339 of 2023
6. 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.P6 is
the Patta issued to the predecessor of the petitioner. Ext.P6
was issued assigning the land for agricultural purposes.
When the land is assigned specifically for agricultural
purposes, the holder of Patta or his successors cannot use
the said land for any other purpose. Now, the petitioner
wants to effect constructions in 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 appears
that this Court considered the very same issue in W.P.(C)
No.4782 of 2022. This Court in the judgment held as
WP(C) No.18339 of 2023
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
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."
WP(C) No.18339 of 2023
The above judgment will apply to the facts of the petitioner's
case.
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-
District Geologist to consider the application for Transit
Passes submitted by the petitioner, in accordance with law,
and grant Transit Passes to the petitioner, if the petitioner is
otherwise eligible, within a period of one month.
Sd/-
N.NAGARESH
JUDGE
spk
WP(C) No.18339 of 2023
APPENDIX OF WP(C) 18339/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF DOCUMENT NO.1190/2011
DATED 17.03.2011 OF S.R.O.THRISSUR
Exhibit P2 TRUE COPY OF THE LAND TAX RECEIPT
DATED 09.05.2023 ISSUED BY THE 2ND
RESPONDENT
Exhibit P3 TRUE COPY OF THE POSSESSION, LOCATION
AND NON-LA CERTIFICATE DATED
19.05.2023 ISSUED BY THE 2ND
RESPONDENT
Exhibit P4 TRUE COPY OF THE BUILDING PERMIT
ISSUED BY THE MULLANKUNNATHUKKAVU
GRAMA PANCHAYAT VIDE NO.A3-
BA(169205)/2023 DATED 16.05.2023
Exhibit P5 TRUE COPY OF ORDER
NO.DOTHR-DMG/1162/2023-E DATED
31.05.2023, THE 1ST RESPONDENT
Exhibit P6 TRUE COPY OF THE PATTA ISSUED UNDER
RULE 9(2) OF THE KERALA LAND
ASSIGNMENT RULES, 1964 DATED
23.10.1974
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED
10.05.2022 IN W.P.(C)NO. 4782 OF 2022
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED
14.06.2022 IN W.P.(C)NO.16226 OF 2022
Exhibit P9 TRUE COPY OF THE JUDGMENT DATED
12.04.2023 IN W.P.(C)NO.12214 OF 2023
