IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 21389 of 2010(W) ---------------------------------- PETITIONER(S): ------------------- P.K.VARGHESE,S/O.KURIAN, PUTHANMANNATHU(H),VETTIKKAL PO, KANAYANNOOR VILLAGE, KANAYANNOOR TALUK,ERNAKULAM. BY ADV. SRI.RENJITH B.MARAR RESPONDENT(S): --------------------- 1. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 2. ADDITIONAL TAHSILDAR, KUNNATHUNADU TALUK,ERNAKULAM. 3. VILLAGE OFFICER,THIRUVANIYOOR VILLAGE. 4. VASANTHI RAJUI,KIZHAKKEKARIKKAL (H), THIRUVANIYOOR VILLAGE - 682 308. 5. K.K.SIJU,KARIKETH HOUSE, THIRUVANIYOOR VILLAGE - 682 308. R1 TO R3 BY GOVT. PLEADER SHYSON P. MANGUZHA R4,5 BY ADV. SRI.M.S.UNNIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 21389/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED NO.1293/1989 DATED 11/04/1989 OF THE PUTHENCRUZ SUB REGISTRY. P2: COPY OF THE RECEIPT DATED 01/03/2008 SHOWING THE PAYMENT OF PROPERTY TAX ISSUED BY THE 3RD RESPONDENT. P3: ORIGINALS OF THE PHOTOGRAPHS SHOWING THE LAY OF THE LAND. P4: COPY OF THE REPRESENTATION DATED 28/02/2008. P5: COPY OF THE APPLICATION DATED 09/03/2008. P6: COPY OF THE REPORT DATED 02/04/2008 OF THE 3RD RESPONDENT. P7: COPY OF THE LETTER BEARING NO.G2-4009/08 DATED 23/04/2008 OF THE 2ND RESPONDENT. P8: COPY OF THE ORDER DATED 20/02/2009 ISSUE BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J. ================ W.P.(C) NO. 21389 OF 2010 ===================== Dated this the 12th day of October, 2011 J U D G M E N T Although notice has been served on respondents 4 and 5, they are neither present nor are they represented by any counsel. 2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1 to 3. 3. Petitioner is the owner of 20.23 ares of land situated in Sy.No.241/4 of Thiruvaniyur Village, which was acquired as per Ext.P1 sale deed No.1293/1989. According to the petitioner, in order to make it a house site, he made Ext.P5 application seeking permission of the 1st respondent for levelling the said land. Thereupon the 1st respondent forwarded the application to the 3rd respondent for his report and after necessary enquiries, the 3rd respondent submitted Ext.P6 report. In Ext.P6, 3rd respondent recommended that permission can be granted subject to three conditions. These conditions are that, a clearance of 1½ meter should be left from the property of the 4th respondent, that after levelling, red earth shall not be removed and sold, and that, the red earth shall be used for levelling the land. Accepting the report WPC No. 21389/10 :2 : of the 3rd respondent, 1st respondent issued Ext.P7 proceedings allowing the request of the petitioner as contained in Ext.P5 application. In Ext.P7 also, the conditions suggested by the 3rd respondent were incorporated. 4. It appears that, subsequently respondents 4 and 5 and certain others made complaint to the 1st respondent alleging that, in the event the petitioner removes red earth from his property, there is a possibility of land slide. Without conducting any enquiry into the said allegation, 1st respondent issued Ext.P8 order prohibiting the petitioner from carrying out the levelling work on the strength of Ext.P7. It is thereupon that this writ petition was filed challenging Ext.P8 and for a direction to the respondents to allow the petitioner to carry out his activities on the strength of Ext.P7 order referred to above. 5. First of all, the Government itself have issued GO(Ms) No.85/2010 dated 5/4/2010 specifically providing that, levelling work for converting properties into house sites can be undertaken without any permission. It was inspite of it that the petitioner made Ext.P5 application and the competent authority, the 3rd respondent conducted enquiries and submitted Ext.P6 report. A WPC No. 21389/10 :3 : reading of this report shows that sufficient safeguards have been provided and that these safeguards have been incorporated in Ext.P7 order issued by the 1st respondent also. It was despite this, merely accepting the assumed possibility of land slide in the event the petitioner removes red earth, Ext.P8 order has been issued. 6. In my view, Ext.P8 is totally unsustainable as it not only proceeds on the basis of surmises, but also on the basis that what the petitioner proposed to carry out is removal of red earth, which is not so. In that view of the matter, I set aside Ext.P8 and direct that, it will be open to the petitioner to level the property mentioned above on the strength of Ext.P7 subject to complying with the conditions incorporated therein. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp