Allowed

Dr. Manoj Kumar G. v. Vallikunnam Grama Panchayath

Kerala HC5 Jun 2012WP(C)/8157/2012

Case brief

AI extract

What is this about?

Petitioner sought removal of red earth from his land. The Revenue Divisional Officer refused, citing a resolution by an all-party meeting. The Court held the RDO is the competent statutory authority and must act independently such extraneous resolutions holding the ban erroneous.

What did the court decide?

Petitioner directed to consider application for removal of red earth in accordance with law within six weeks.

Dr. Manoj Kumar G. Vs Vallikunnam Grama Panchayath — Municipal and Town Planning | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934

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WP(C).No. 8157 of 2012 (T)

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PETITIONER(S):

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DR. MANOJ KUMAR G., AGED 34 YEARS S/O.K.GOPI PILLAI, M.M.BUNGLOW PAVUMBA P.O., KARUNAGAPPALLY, KOLLAM DISTRICT.

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BY ADV. SRI.JOBI JOSE KONDODY

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RESPONDENT(S):

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1. VALLIKUNNAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY VALLIKUNNAM GRAMA PANCHAYATH OFFICE VALLIKUNNAM P.O., ALAPPUZHA DISTRICT-690 501.

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2. THE SECRETARY VALLIKUNNAM GRAMA PANCHAYATH OFFICE VALLIKUNNAM P.O., ALAPPUZHA DISTRICT-690 501.

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3. THE PRESIDENT VALLIKUNNAM GRAMA PANCHAYATH VALLIKUNNAM GRAMA PANCHAYATH OFFICE VALLIKUNNAM P.O., ALAPPUZHA DISTRICT-690 501.

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4. THE REVENEU DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER CHENGANNUR, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.R.SUNIL KUMAR & SMT.A.SALINI LAL BY GOVERNMENT PLEADER SRI.MUHAMMED SHAFI.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 8157 of 2012 (T)

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APPENDIX

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PETITIONER(S) EXHIBITS :-

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EXHIBIT P1: A TRUE COPY OF THE BASIC LAND TAX RECEIPT DATED 28/9/2011 EVIDENCING PAYMENT OF TAX BY THE PETITIONER FOR THE YEAR 2011-2012.

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EXHIBIT P2: A TRUE COPY OF THE APPLICATION DATED 8/3/2012 FILED BY the PETITIONER BEFORE THE 3RD RESPONDENT.

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EXHIBIT P3: A TRUE COPY OF THE MAHAZZAR PREPARED BY THE VILLAGE OFFICER, VALLIKUNNU, DATED 12/3/2012.

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EXHIBIT P4: A TURE COPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICER, VALLIKUNNU, DATD 15/3/2012.

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EXHIBIT P5: TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY the NEIGHBOUR, MANDAKINI TO THE PETITIONER BEFORE THE VILLAGE OFFICER DATED 11/3/2012.

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EXHIBIT P5(A):TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE NEIGHBOUR, MANIYAMMA TO THE PETITIONER BEFORE THE VILLAGE OFFICER, DATED 11/3/2012.

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EXHIBIT P5(B):TURE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE NEIGHBOUR MR.ANIL KUMAR, TO THE PETITIONER BEFORE THE VILLAGE OFFICER DATED 11/3/2012.

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EXHIBIT P6: A TRSUE COPY OF THE AFFIDAVIT FILED BY the PETITIONER BEFORE THE 3RD RESPONDENT WITHOUT DATE.

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EXHIBIT P7: A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 9/3/2012.

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EXHIBIT P8: A TRUE COPY OF THE ORDER DATED 15/3/2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.A TO JUDGE

amk

ANTONY DOMINIC,J

W.P.(C)No.8157 of 2012

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Dated this the 5^th day of June, 2012

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JUDGMENT

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Petitioner says that he owns 24.28 Ares of land comprised in survey No.649/12/3 of Vallikunnam Village in Mavelikkara Taluk. He submitted Ext.P2 application to the RDO, to remove red earth from the property, which according to him is necessary to convert the land into a house site. According to him, the red earth from all the other sides of the property have already been removed and therefore, it is necessary to get orders are sought for in Ext.P2.

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It appears that based on Ext.P2, Ext.P3 Mahazar was prepared by the Village Officer in which, it is stated that the property is situated on a much higher level than the properties on the east, north and southern boundary of the property. Petitioner also obtained Ext.P5 series, consent of the neighbours, which was also produced before the RDO.

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In spite of all this, the RDO wanted consent from the Panchayath to consider Ext.P2. At that stage, the petitioner made Ext.P6 application to the President of the Panchayath,

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W.P.(C)No.8157 of 2012 2

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whereupon the President issued Ext.P8 declining the petitioner's request for the reason that the removal of red earth was banned in the Panchayath till 31.05.2012. It is in these circumstances, the writ petition was filed, seeking to quash Exts.P7 and P8 and to direct consideration of Ext.P2 in accordance with law.

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In this writ petition this Court passed order dated 11.04.2012 requiring the RDO to consider Ext.P2. Today, when the matter was taken up, the learned counsel for the petitioner has produced before me proceedings dated 25.04.2012 issued by the RDO stating that in an all party meeting under the leadership of the local MLA it was resolved to ban removal of red earth and therefore the permission sought for by the petitioner in Ext.P2 cannot be granted.

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Having heard the learned counsel for the petitioner and also the counsel appearing for the respondents including the learned Government Pleader, I am inclined to think that the view taken by the authorities is clearly erroneous. Under the Kerala Minor Mineral Concession Rules, 1967, it is the RDO who is the competent authority to consider a request in the nature of the one made by the petitioner in Ext.P2. Statutory power thus

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W.P.(C)No.8157 of 2012 3

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conferred on the competent authority, will have to be exercised by that authority itself, untrammeled by, any decision taken by any authority, be it a higher authority or a lower authority. Therefore, in considering Ext.P2, the RDO could not have been guided by the decision taken in an all party meeting or elsewhere. Instead, he ought to have independently considered Ext.P2 in the light of the governing Statutory Provisions.

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Be that as it may, the challenge against Ext.P8 is concerned, since the prohibition mentioned therein was only till 31.05.2012, I do not think it necessary for this Court to pronounce on the validity of the said order for the reason that it has lapsed by now.

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Therefore, I dispose of this writ petition directing that the RDO will consider Ext.P2 in accordance with law and with notice to the petitioner, duly adverting the observations made herein above. Such orders shall be passed at any rate, within six weeks of production of a copy of this Judgment.

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Writ petition is disposed of as above.

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ANTONY DOMINIC, JUDGE

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Dr. Manoj Kumar G. v. Vallikunnam Grama Panchayath

Case brief

What is this about?

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Dr. Manoj Kumar G. v. Vallikunnam Grama Panchayath

Case brief

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