Disposed

Kamal v. the District Collector

Kerala HC5 Nov 2019WP(C)/4540/2019

Case brief

AI extract

What is this about?

Petitioner sought directive for disposal of representation regarding removal of earth for construction. Court, upon clarifying intention to construct rather than litigate against authority, ordered joint site inspection by Geologist and Panchayat officials and issuance of necessary orders. Petitioner withdrawn allegations against authority.

What did the court decide?

Petitioner given up allegations against Geologist. Geologist directed to conduct site inspection with Panchayat officials and issue orders for earth removal as necessary for construction.

Kamal Vs the District Collector — Land Acquisition | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

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WP(C).No.4540 OF 2019(N)

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PETITIONER:

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KAMAL

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AGED 58 YEARS S/O.KHADAR PILLAI, RESIDING AT VATTAKKATTU PACHAYIL KUNNUMPURATHU VEEDU, NETTAYAM PALLICKAL.P.O, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.SHIBU JOSEPH

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR THIRUVANANTHAPURAM DISTRICT.

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2 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESHAVADASAPURAM, PATTAM, THIRUVANANTHAURAM-695001.

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3 THE DISTRICT MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESHAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM-695001.

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4 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIAL DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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5 THE SECRETARY MADAVOOR GRAMA PANCHAYATH, PALLIKKAL.P.O., THIRUVANANTHAURAM.

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R1-4 BY GOVERNMENT PLEADER

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SRI.PAUL ABRAHAM VAKKANAL- G.P

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.4540 OF 2019(N)

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JUDGMENT

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The petitioner has approached this Court seeking that Ext.P9 representation preferred by him before the 3^rd respondentDirector of Mining and Geology be directed to be taken up and disposed of within a time frame.

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As is evident from Ext.P9, the allegations of the petitioner therein are targeted against the 2^nd respondentGeologist and he complains that the said Authority has not permitted to remove ordinary earth from his property as per Ext.P4 Development Permit and therefore, that he has been unable to make construction thereon, as has been permitted by the 5^th respondent-Secretary of Madavoor Grama Panchayat.

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According to the petitioner, even though as per the Development Permit, the Engineer of the Grama Panchayat had permitted him to remove the earth to the extent of 6510 cubic metre, the Geologist did not consider his application for issuance of passes; and that he was thus constrained to approach this Court and to obtain Ext.P5 judgment, pursuant to which, the Geologist issued 40 passes, to enabling him to remove only 452

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WP(C).No.4540 OF 2019(N)

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Metric Tonnes from the property. He says that, since this is completely insufficient to develop the land for the purpose of constructions, he was constrained to approach this Court again and to obtain Ext.P7 judgment, based on which, the Geologist then issued 142 passes permitting him to remove 1426 Metric Tonnes, but that he was unable to remove the full quantity within the time granted, which was only seven days between 10.08.2018 and 18.09.2018. He says that he was thus able to remove only 1221 Metric Tonnes and that the balance could not be removed on account of constraints of time. The petitioner asserts that as per the Development permit, the quantity of earth allowed to be removed by the Engineer of the Panchayat is 13020 Metric Tonnes, but that the Geologist has permitted only to remove a total of 1878 Metric Tonnes which is insufficient to ready the land for construction. He, therefore, submits that he was forced to make Ext.P9 representation before the Director of Mining and Geology and to seek necessary action against the Geologist.

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Even though, the afore averments and allegations have been made on record by the petitioner in this writ petition,

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WP(C).No.4540 OF 2019(N)

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at the time when this matter was taken up, learned counsel Sri.Shibu Joseph submitted that his client's intention is not to make allegations against any Authority, but that he wants to make a construction, for which purpose, sufficient amount of earth will have to be removed. He says that, his client was left without any option but to make Ext.P9 representation, because of the unco-operative attitude shown by the Geologist and that if this Court is so inclined, he is willing to give up such contentions, provided the Authorities consider his application for removal of ordinary earth in terms of the Development Permit without any further delay.

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In response, the learned Government Pleader-Sri.Paul Abraham Vakkanal, submitted that the amount of earth indicated in the Development Permit is so huge that the Geologist could not accede to the same. He says that the Geologist found, from his site inspection, that only the amounts now allowed to be excavated and transported need to be removed and therefore, that he was completely justified in issuing only such number of passes which have now been issued. He, however, says that if this Court permits, the Geologist is willing to make a further site

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WP(C).No.4540 OF 2019(N)

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inspection in the presence of the Secretary and the Engineer of Madavoor Grama Panchayat and then to decide whether any further amount of earth requires to be removed so as to enable a proper construction in the property in question. He prays that no further orders may be issued against the Geologist.

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When I consider the afore submissions and particularly since the petitioner is giving up his allegations against the Geologist made through Ext.P9, I am of the view that if his intention is only to make a proper construction, then the Geologist and the Secretary of the Panchayat must assist him in doing so, as long as his actions are legal and within the parametres of law.

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In the afore perspective and recording the submissions of Sri.Shibu Joseph that all allegations against the Geologist, voiced in Ext.P9 are given up, I order this writ petition and direct the Geologist to cause site inspection of the petitioner's property in the presence of the Secretary and the Engineer of Madvoor Grama Panchayat, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment; and to issue appropriate orders thereon, without any

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WP(C).No.4540 OF 2019(N)

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further delay and communicate the decision to the petitioner immediately thereafter.

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I make it clear that the Geologist will make a thorough assessment of the actual need and will permit only such quantity of earth to be removed from the property of the petitioner, as is absolutely necessary for him to make a construction and no more.

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To enable the Geologist to act in terms of this judgment, I permit him to issue a requisition to the Secretary and the Engineer of the Panchayat immediately and the 5^th respondent and the said Engineer are then directed to be at the site and to assist the Geologist in taking a decision in terms of this judgment

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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nak

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WP(C).No.4540 OF 2019(N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 16.11.2017 ISSUED BY THE SECRETARY, MADAVAOOR GRAMA PANCHAYATH. EXHIBIT P2 THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE MADAVOOR VILLAGE OFFICER, DATED 14.12.2017. EXHIBIT P3 THE TRUE COPY OF THE TAX RECEIPTS OF PETITIONER'S PROPERTY, DATED 19/07/2017. EXHIBIT P4 TRUE COPY OF THE LAND DEVELOPMENT PERMIT AND ITS APPROVED PLAN DATED 16.11.2017. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT OF WP(C)NO.2925/2018 DATED 29/01/2018. EXHIBIT P6 THE TRUE COPY OF THE CHALLAN FOR PAYMENT OF MONEY PAID BY THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT OF WP(C)NO.11893/2018 DATED 29/06/2018. EXHIBIT P8 THE TRUE COPY OF THE ORDER DATED 12/09/2018, FROM 2ND RESPONDENT ON AN APPLICATION SUBMITTED BY ONE SHEEJA. EXHIBIT P9 THE TRUE COPY OF THE APPLICATION DATED 17.12.2018 SUBMITTED BY THE PETITIONER.

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//TRUE COPY// P.A TO JUDGE

Kamal v. the District Collector

Case brief

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Kamal v. the District Collector

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