Kerala High Court
Joseph vs The District Disaster Management ... on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(C) NO. 5380 OF 2024
PETITIONER:
1 JOSEPH
AGED 76 YEARS
SON OF THOMAS, PANTHALANIKKAL, KUNDUKADU P.O.,
MADAKKATHARA VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT, PIN - 680028
BY ADVS.
P.M.ZIRAJ
IRFAN ZIRAJ
RESPONDENTS:
1 THE DISTRICT DISASTER MANAGEMENT AUTHORITY
THRISSUR DISTRICT, COLLECTORATE, THRISSUR DISTRICT,
REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR,
THRISSUR., PIN - 680003
2 THE DISTRICT COLLECTOR
COLLECTORATE, THRISSUR DISTRICT, PIN - 680003
3 THE DISTRICT GEOLOGIST
DEPARTMENT OF MINING AND GEOLOGY,
THRISSUR DISTRICT, PIN - 680020
4 MADAKKATHARA GRAMA PANCHAYATH
MADAKKATHARA, THRISSUR DISTRICT,PIN - 680651
REPRESENTED BY ITS SECRETARY
5 THE SECRETARY
MADAKKATHARA GRAMA PANCHAYATH, MADAKKATHARA,
THRISSUR DISTRICT, PIN - 680651
6 ASSISTANT ENGINEER
(LSGD), MADAKKATHARA GRAMA PANCHAYATH,
MADAKKATHARA, THRISSUR DISTRICT, PIN - 680651
7 DISTRICT SOIL CONSERVATION OFFICER
THRISSUR, THRISSUR DISTRICT, PIN - 680020
BY ADVS.
SRI.AJITH VISWANTHAN, GP
SRI.RAJIT, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.) No.5380 of 2024
2
C.JAYACHANDRAN, J.
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W.P.(C.) No.5380 of 2024
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Dated this the 31st day of May, 2024
JUDGMENT
The petitioner is in need of issuance of permit and
transit passes to transport ordinary earth, which
happened to be accumulated in his property pursuant to a
land slide. Ext.P1 order enabling removal of ordinary
earth was issued by the Divisional Forest Officer, based
upon which Ext.P2 report was preferred by the Tahasildar
recommending grant of necessary permit. The 3 rd
respondent, after site inspection, issued Ext.P4
communication to the 2nd respondent/District Collector
informing that it is impossible to use the land without
removing the earth. On the premise that the subject
property is adjacent to forest land, necessary enabling
orders were issued by the Divisional Forest Officer, as
also, the Deputy Range Forest Officer vide Exts.P5 and
P6. On the strength of the above referred orders, Ext.P7
permit and transit passes were issued by the 3 rd
respondent/Geologist to transport 350 M3 of ordinary
earth from the petitioner's property. The petitioner was
subsequently issued with Ext.P8 patta by the Special
Tahasildar, Land Assignment, Thrissur, based upon which
he paid land tax as evident from Ext.P9. Since a
substantial portion of the earth is still remaining in the
petitioner's property, the petitioner again applied for
permit and transit license, expressing his willingness to
pay royalty. After various proceedings, the 7 th
respondent/District Soil Conservation Officer preferred
Ext.P16 report, which recommended removal of ordinary
earth to an extent 307.41 M3. The 6th
respondent/Assistant Engineer (LSGD) also conducted an
inspection and submitted a report recommending removal
of earth to the extent of 94.6 M3. The report preferred by
the 6th respondent is illegal and without authority. The
petitioner seeks issuance of a writ of mandamus directing
the 3rd respondent/Geologist to issue permit and sufficient
transit passes to transport the remaining earth.
2. Heard the learned counsel for the petitioner,
learned Government Pleader appearing for respondents 1
to 3 and 7 and the learned counsel appearing for the 4th
respondent/Panchayat, 5th respondent/Secretary and the
6th respondent/Assistant Engineer.
3. A concern was raised by the 4 th
respondent/Panchayat to the effect that the natural
disaster in the form of land slide/flood was caused by the
activities of the petitioner himself, which is evident from
the report of the 3 rd respondent. It was also pointed out
that the petitioner was earlier directed to surrender some
transit passes, which he had not obliged.
4. This Court notice that the 7th respondent is the
competent authority, who recommended removal of sand
to the extent of 307.41 M3. The 6th respondent is the
Assistant Engineer (LSGD) of the Grama Panchayat
concerned, who recommended removal of the earth to the
extent of only 97.674 M3. When the report of a more
competent authority like the 7th respondent recommends
removal of earth to the extent of 307.41 M3, the report of
the 6th respondent cannot be relied upon to refuse the
permit/transit passes sought for by the petitioner.
5. In the circumstances, the 3rd
respondent/Geologist is directed to consider the
petitioner's request for issuance of necessary permit and
transit pass for transportation of ordinary earth, after
taking into account all relevant considerations - statutory
or otherwise - in accordance with law, within a period of
one month from the date of receipt of a copy of this
judgment. The petitioner will produce a copy of this
judgment before the 3rd respondent/Geologist.
The Writ Petition is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/31-05
APPENDIX OF WP(C) 5380/2024
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE DIVISIONAL FOREST
OFFICER, THRISSUR DIVISION DATED 12.9.2018
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
TAHASILDAR(R.R), THRISSUR TO THE SECOND
RESPONDENT DATED 1.1.2019
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT
DATED 6.3.2019
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 21.3.2019
ISSUED BY THE THIRD RESPONDENT TO THE SECOND
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 14.6.2019
ISSUED BY THE FOREST DIVISIONAL OFFICER,
THRISSUR DIVISION
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 15.6.2019
ISSUED BY THE DEPUTY RANGE FOREST OFFICER,
PONGANAMKADU
EXHIBIT P7 COPY OF THE ORDER DATED 18.6.2019 ISSUED BY THE
THIRD RESPONDENT
EXHIBIT P8 TRUE COPY OF THE PATTA DATED 15.11.2021 ISSUED
BY THE SPECIAL TAHASILDAR, LAND ASSIGNMENT
NO.1, THRISSUR
EXHIBIT P9 TRUE COPY OF THE TAX RECEIPT DATED 15.6.2022
ISSUED BY THE VILLAGE OFFICER, MADAKATHARA
EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF THIS HONORABLE
COURT DATED 6.10.2022 IN W.P (C). NO.23601 OF
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 27.10.2023 IN
WPC NO.8267 OF 2023
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 18.10.2023 ISSUED
BY THE FIRST RESPONDENT
EXHIBIT P13 TRUE COPY OF THE SITE INSPECTION REPORT
PREPARED BY THE THIRD RESPONDENT DATED
3.10.2023
EXHIBIT P14 TRUE COPY OF THE REPORT SUBMITTED BY THE
VILLAGE OFFICER, MADAKKATHARA TO THE
THAHASILDAR DATED 27.9.2023
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 28.11.2023 ISSUED
BY THE FIRST RESPONDENT
EXHIBIT P16 TRUE COPY OF THE REPORT SUBMITTED BY THE
SEVENTH RESPONDENT BEFORE THE FIRST RESPONDENT
DATED 20.9.2023
EXHIBIT P17 TRUE COPY OF THE PLAN SUBMITTED BY THE
PETITIONER BEFORE THE SIXTH RESPONDENT IN
ACCORDANCE WITH EXHIBIT P16 REPORT OF THE
SEVENTH RESPONDENT
EXHIBIT P18 TRUE COPY OF THE REPORT ALONG WITH A SKETCH OF
RETAINING WALL AND PLAN DATED 23.12.2023 ISSUED
BY THE SIXTH RESPONDENT
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
