Seethu, vs the District Geologist,

Seethu, vs The District Geologist,

Type Court Judgment Court Kerala Decided Oct 06, 2022

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Citation: sooperkanoon.com/1503812
Court: Kerala High Court
Judge: Honourable Mr.Justice N.Nagaresh
Decided On: Oct 06, 2022
Case Number: WP(C)/23601/2022

Parties & Advocates

Appellant / Petitioner

Seethu,

Respondent

The District Geologist,

Excerpt

.....andresisted the writ petition. the government pleader denied all the allegations made by the petitioner in the writ petition. the government pleader submitted that if the patta issued in respect of the land permits construction of residential building, the petitioner can indeed construct residential building and for that limited purpose, ordinary earth can be removed to facilitate building construction. in the case of the patta in respect of the land held by the petitioner, the patta has been issued for construction of residential buildings also. in view of the above, the matter can be considered by the 1st respondent.7. i have heard the learned counsel for the petitioner and the learned government pleader representing the respondents.8. it is evident from the pleadings that the petitionerproposes to construct a residential building in the property possessed by her. the patta issued in respect of the petitioner's land permits construction of residential building. for the construction of residential building, it is necessary that the ordinary earth excavated be removed from the land.9. this court has considered a similar issue in wp(c)no.14602/2022 and in ext.p7 judgment, this court held that since the petitioner who was similarly situated in the said writ petition has obtained building permit and site approval, the request made by the petitioner for transit pass is liable to be considered in accordance with law. since ext.p5 approved building plan issued to the petitioner indicates the earth work quantity and calculations, the 1st respondent is bound to consider the application of the petitioner for issuance of transit pass in accordance with law and in accordance with site approval plan. in view of the above, the writ petition is disposed of directing the 1st respondent-district geologist to consider the application submitted by the petitioner for issuance of mineral transit pass untrammeled by the stand taken in ext.p6, and issue necessary orders,.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 6TH DAY OF OCTOBER 2022 / 14TH ASWINA, 1944 WP(C) NO. 23601 OF 2022 PETITIONER: SEETHU, AGED 31 YEARS WIFE OF SONY, KIDANGAN HOUSE, MAROTTICHAL P.O., MAROTTICHAL VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680014 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ RESPONDENTS:
1 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, THRISSUR DISTRICT-, PIN - 680020 2 THE DIRECTOR, MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM, PIN - 695001 3 THE DISTRICT COLLECTOR, FIRST FLOOR, CIVIL STATION, CIVIL LINES RD, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003 4 THE VILLAGE OFFICER, PUTHUR VILLAGE, THRISSUR DISTRICT, PIN - 680014
5 THE TAHASILDAR, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680020 6 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 SMT.VIDYA KURIAKOSE GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 6th day of October, 2022 The petitioner intends to construct a residential building having a plinth area of 138.24 Square Metres in her property, for which the petitioner has obtained Site Approval and Building Permit. The petitioner has also obtained a Development Plan from the Puthur Grama Panchayat. The petitioner is aggrieved by the omission on the part of the 1 st respondent-District Geologist in issuing Transit Pass.

2. The petitioner states that she is owner of 4.05 Ares of property comprised in Survey No.882/2/4 of Puthur Village. The petitioner acquired the property as per a partition deed dated 24.02.2021.

3. The petitioner proposed to construct a residential

building having a plinth area of 138.24 Square Metres in the property, for which the Puthur Grama Panchayat has issued a Site Approval and Building Permit and also an Approved Development Plan. In spite of obtaining these approvals and permits, the 1st respondent did not issue Transit Pass to transport the ordinary earth, which is to be removed to facilitate building construction, contends the petitioner.

4. The petitioner states that the 1st respondent-District

Geologist has taken a stand as per Ext.P6 that since the petitioner's land is an assigned land, permission for excavation of ordinary earth for the purpose of building construction cannot be granted. By Ext.P6, the 1st respondent-District Geologist has informed that for construction of residential building, no permit is required from the office of the District Geologist. However, to transport the ordinary earth, a Transit Pass is necessary.

5. The petitioner states that the construction of

foundation of the building necessitates not only excavation of ordinary earth but also transportation of the same. To transport ordinary earth, the petitioner requires Mineral Transit Pass. If the petitioner transports ordinary earth without obtaining Mineral Transit Pass, it will be an offence as contemplated under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015. The stand of the 1st respondent-District Geologist is therefore untenable, contended the counsel for the petitioner.

6. Government Pleader entered appearance and

resisted the writ petition. The Government Pleader denied all the allegations made by the petitioner in the writ petition. The Government Pleader submitted that if the Patta issued in respect of the land permits construction of residential building, the petitioner can indeed construct residential building and for that limited purpose, ordinary earth can be removed to facilitate building construction. In the case of the Patta in respect of the land held by the petitioner, the Patta has been issued for construction of residential buildings also. In view of the above, the matter can be considered by the 1st respondent.

7. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents.

8. It is evident from the pleadings that the petitioner

proposes to construct a residential building in the property possessed by her. The Patta issued in respect of the petitioner's land permits construction of residential building. For the construction of residential building, it is necessary that the ordinary earth excavated be removed from the land.

9. This Court has considered a similar issue in WP(C)

No.14602/2022 and in Ext.P7 judgment, this Court held that since the petitioner who was similarly situated in the said writ petition has obtained Building Permit and Site Approval, the request made by the petitioner for Transit Pass is liable to be considered in accordance with law. Since Ext.P5 Approved Building Plan issued to the petitioner indicates the earth work quantity and calculations, the 1st respondent is bound to consider the application of the petitioner for issuance of Transit Pass in accordance with law and in accordance with Site Approval Plan. In view of the above, the writ petition is disposed of directing the 1st respondent-District Geologist to consider the application submitted by the petitioner for issuance of Mineral Transit Pass untrammeled by the stand taken in Ext.P6, and issue necessary orders, within a period of one month. Sd/- N.NAGARESH JUDGE spk APPENDIX OF WP(C) 23601/2022 PETITIONER EXHIBITS Exhibit- P1 TRUE COPY OF THE PARTITION DEED REGISTERED AS NO.459 OF 2021 DATED 24.2.2021 OF KUTTANELLUR SUB REGISTRAR OFFICE Exhibit- P2 TRUE COPY OF THE TAX RECEIPT IN CONNECTION WITH THE PROPERTY OF PETITIONER DATED 20.4.2021 ISSUED BY THE FOURTH RESPONDENT Exhibit- P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 24.5.2022 ISSUED BY THE FOURTH RESPONDENT Exhibit- P4 TRUE COPY OF THE BUILDING PERMIT DATED 09.05.2022 ISSUED BY THE PUTHUR GRAMA PANCHAYATH Exhibit- P5 TRUE COPY OF THE RELEVANT PORTIONS OF

APPROVED DEVELOPMENT PLAN APPROVED BY THE LSGD ASSISTANT ENGINEER AND SECRETARY OF PUTHUR GRAMA PANCHAYATH Exhibit- P6 TRUE COPY OF THE ORDER DATED 04.7.2022 ISSUED BY THE FIRST RESPONDENT Exhibit- P7 TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT DATED 23.05.2022 IN W.P (C). N0.14602 OF 2022 RESPONDENT'S/S EXHIBITS : NIL

Same Court & Year Kerala · 2022 Same Parties Seethu, vs The District Geologist, Same Judge Honourable Mr.Justice N.Nagaresh