Kerala High Court
Babu Abraham vs State Of Kerala on 5 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 28346 OF 2013
PETITIONER:
BABU ABRAHAM
ANCHANICKAL, VAZHOOR EAST P O, KOTTAYAM DIST, KERALA
BY ADVS.
SRI.SAIBY JOSE KIDANGOOR
SMT.KRISHNA RAJENDRAN
RESPONDENTS:
1 STATE OF KERALA
REP BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF
GOVERNMENT, THIRUVANANTHAPURAM-695 001
2 THE REVENUE DIVISIONAL OFFICER
KOTTAYAM-686 002
3 DEPARTMENT OF MINING AND GEOLOGY
REP BY GEOLOGIST, DISTRICT OFFICE,GOVERNMENT OF
MINING AND GEOLOGY, KOTTAYAM-686 002
4 THE VILLAGE OFFICER
VAZHOOR VILLAGE, VAZHOOR-686 009
5 VAZHOOR GRAMA PANCHAYATH
REP BY ITS SECRETARY, VAZHOOR-686 009
BY ADVS.
SRI.B.S.SYAMANTAK, GP
SRI. LIJI.J.VADAKEDOM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 28346 OF 2013
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C) No.28346 of 2013
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Dated this the 05th day of April, 2024
JUDGMENT
The above writ petition is filed with the following
prayers:
"i. Declare that the respondent Panchayat has no
authority to resist or object the petitioner to remove
the petitioner from his property being carried out in
pursuant to Exhibit P4 sanction order.
ii. Direct the respondent Panchayat not to object the
petitioner from removing red earth from his property
(Exhibit P 1 & P 2), in pursuant to Exhibit P4 order
issued by the Geologist.
iii. grant any other further or consequential reliefs,
as may be prayed for and deemed fit by this
Honourable Court." SIC
WP(C) NO. 28346 OF 2013
2. The petitioner is the absolute owner and in
possession of a property to an extent of 6.07 Ares
comprised in Sy. Nos. 270/3 and 270/4 of Vazhoor
Village, Changanacherry Taluk, Kottayam District.
Ext.P1 is the deed executed in favour of the petitioner.
Ext.P2 is the tax receipt. It is submitted that the land
of the petitioner is situated in an upper level compared
to the road laying near to the petitioner's property.
The petitioner with an intention to construct a
building had initiated steps to remove the red earth
from his property, is the submission. Ext.P3 is the
building permit issued to the petitioner. The petitioner,
therefore, submitted an application before the
Geologist, Kottayam to get permission to remove the
WP(C) NO. 28346 OF 2013
red earth from the petitioner's property. The 3 rd
respondent issued Ext.P4 order. In pursuant to
Ext.P4 order, the petitioner initiated steps to remove
red earth from his property. But, at that stage, the 5 th
respondent started to object the removal of the red
earth from the petitioner's property stating that the
Panchayat has taken a decision not to allow the
petitioner to remove the red earth from his property to
the outside jurisdiction of the Panchayat. The
petitioner submitted Ext.P6 representation before the
Panchayat. Even then, there is no response from the
concerned authorities. Hence, this writ petition is
filed.
3. Heard the learned counsel appearing for the
WP(C) NO. 28346 OF 2013
petitioner and the learned Government Pleader.
4. The petitioner is aggrieved by the condition
regarding the removal of the red earth beyond the
jurisdiction of the Panchayat. This point is considered
by this Court in Shynymol v. State of Kerala and
Others [2012 930 KHC 404]. It will be better to
extract the relevant portion of the above judgment:
"9. Apart from all these, it merits notice that in
Ext.P5, the communication issued to the petitioner
what is informed is that by resolution No. 1/2012
dated 14/06/2012, it has been resolved by the
Panchayat to prohibit transportation of the red soil to
outside its area. In other words, this communication
shows that removal and transportation of red soil
within the Panchayat limits is permissible. If
removal and transportation within Panchayat area is
permissible, there is absolutely no rationale in
prohibiting transportation outside the Panchayat
area. Therefore, if what is stated in Ext. P5 is the
true content of the resolution, relied on by the
Secretary, there is absolutely no rationale for such a
WP(C) NO. 28346 OF 2013
resolution."
5. In the light of the same, I think, there is no
bar in transporting red earth outside the jurisdiction
of the Panchayat.
Therefore, this writ petition is disposed of with
the following directions:
i. It is declared that the Panchayat has no
authority to resist or object the petitioner
to remove the red earth from his property,
in pursuant to Ext.P4 order, outside the
Panchayat area.
ii. The respondent Panchayat is directed, not
to object the petitioner from removing red
earth from his property (Ext.P1 & P2)
WP(C) NO. 28346 OF 2013
pursuant to Ext.P4 order issued by the
Geologist.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
WP(C) NO. 28346 OF 2013
APPENDIX OF WP(C) 28346/2013
PETITIONER EXHIBITS
P1:-TRUE COPY OF THE SALE DEED NO 1247/07 DTD
17/9/2007
P2:-TRUE COPY OF THE TAX RECEIPT NO 5914819
DTD 3/10/2013
P3:-TRUE COPY OF THE BUILDING PERMIT NO A-
330/08 DTD 2/4/2008
P4:-TRUE COPY OF THE ORDER NO
214/OE/QP/2013-2014/1646/DOY/ML/2013 DTD
6/11/2013 ISSUED BY THE GEOLOGIST, KOTTAYAM
P5:-TRUE COPY OF THE COMMUNICATION NO
ABI(B)3100/2012 DTD 5/10/2013 ISSUED FROM THE
OFFICE OF THE EXECUTIVE ENGINEER, PWD
DIVISION, ALAPPUZHA
P6:-TRUE COPY OF THE REPRESENTATION
PREFERRED BY THE PETITIONER TO THE 5TH
RESPONDENT DTD 8/11/2013
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
