Fransy vs District Geologist
2023 Latest Caselaw 1115 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                     WP(C) NO. 1579 OF 2023
PETITIONER:

         FRANSY
         AGED 44 YEARS
         S/O.MATHEW
         VAYALIL HOUSE,
         RANDUKAI JUNCTION,
         CHAIPPANKUZHY (PO),
         KUTTICHIRA,
         THIRSSUR DISTRICT, PIN - 680 724

         BY ADVS.
         K.S.BHARATHAN
         ALPHIN ANTONY
         AADITHYAN S.MANNALI
         VISAKH ANTONY
         RANCE R.


RESPONDENTS:

    1    DISTRICT GEOLOGIST
         OFFICE OF THE DISTRICT GEOLOGIST,
         MINI CIVIL STATION,
         CHEMBOOKKAVU,
         THRISSUR, PIN - 680 020.
    2    THE TAHZILDAR
         (LAND RECORDS),
         TALUK OFFICE,
         PALACE ROAD,
         THRISSUR, PIN - 680 020
    3    VILLAGE OFFICER
         KUTTICHIRA VILLAGE,
         KUTTICHIRA P.O.,
         THRISSUR DISTRICT, PIN - 680 724

         BY SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER

     THIS WRIT PETITION       (CIVIL) HAVING COME UP    FOR
ADMISSION ON 18.01.2023,      THE COURT ON THE SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) No.1579 of 2023
                                  :2 :




                          JUDGMENT

------------------------

Dated this the 18th day of January, 2023

The petitioner, who is owner in possession of 6

Ares 7 Square Metres of dry land in Kuttichira Village of

Chalakkudy 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 6 Ares 7 Square Metres of dry land in Survey Nos.1612/2-1

and 1613/1 of Kuttichira Village of Chalakkudy Taluk in

Thrissur District. The petitioner came into possession of the

property under Ext.P1 document.

WP(C) No.1579 of 2023

3. As the petitioner wanted to construct a building,

applications for Building Permit and Development Permit were

submitted. Permits were granted by the local authority. The

petitioner approached the 1st respondent for issuance of

Mineral Transit Pass for removal of ordinary earth for

construction of the residential house.

4. When the petitioner approached the 1 st 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 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 constructions and directed the Geologist

to issue Transit Pass. The petitioner is also entitled to identical WP(C) No.1579 of 2023

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.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 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 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 WP(C) No.1579 of 2023

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."

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. WP(C) No.1579 of 2023

Consequently, there will be a direction to the 1 st respondent-

District Geologist 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. The petitioner shall

produce a copy of the Patta before the Geologist.

Consideration of the application will be strictly according to the

Development Permit.

Sd/-

N. NAGARESH JUDGE sss WP(C) No.1579 of 2023

APPENDIX OF WP(C) 1579/2023

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF DOCUMENT NO.4358/I/2014 OF S.R.O. CHALAKUDY DATED 29.09.2014 EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 22.04.2022 ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT BEARING NO.A2-BA(94991)/2021 DATED 16.04.2021 EXHIBIT P4 TRUE COPY OF THE SITE PLAN DATED 19.11.2022 EXHIBIT P5 TRUE COPY OF ORDER NO. 2493/C1/TDO/2022 DATED 30.12.2022 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF THE PATTA NO.1071 DATED 15.03.1979 ISSUED BY THE SPECIAL TAHSILDAR, LAND ASSIGNMENT, THRISSUR 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