IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 2170 of 2010(U) ------------------------------------- PETITIONER(S): ---------------------- JOJI VARGHESE, AGED 33 YEARS, S/O.A.V. CHACKO, ATTUPURATHU HOUSE, KARIPUZHA.P.O, MAVELIKKARA. BY ADV. MR.ALIAS M.CHERIAN, MR.JINU JOSEPH. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE REVENUE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE DEPUTY COLLECTOR (LR), COLLECTORATE, KOTTAYAM. 4. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOTTAYAM. 5. THE THASILDAR, TALUK OFFICE, CHANGANACHERRY. 6. THE VILLAGE OFFICER, VILLAGE OFFICE, KARUKACHAL, KOTTAYAM. 7. MRS.PRASENNA, W/O.SASIKUMAR, PARAMBATH HOUSE, NEAR N.S.S.JUNCTION, KARUKACHAL, KOTTAYAM. R1 TO R6 BY GOVERNMENT PLEADER MR.K. RAMESH. R7 BY ADV. MR.JACOB GEORGE (PATHAZHAKKUZHIKAL), MR.JOSEPH A.VADAKKEL, MR.GEORGE KARITHANAM VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2170/2010-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.262/2006 DATED 02/02/2006. EXT.P2: COPY OF THE APPLICATION DATED 20/04/2009 BEFORE THE 6TH RESPONDENT. EXT.P3: COPY OF THE BUILDING PERMIT AND PLAN. EXT.P4: COPY OF THE REPORT DATED 24/04/2009. EXT.P5: COPY OF THE PROCEEDINGS DATED 18/05/2009 BY THE 5TH RESPONDENT. EXT.P6: COPY OF THE PROCEEDINGS DATED 20/05/2009 BY THE 5TH RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DATED 26/05/2009 SUBMITTED BY THE PETITIONER TO DISTRICT COLLECTOR. EXT.P8: COPY OF THE JUDGMENT DATED 14/07/2009 IN WP(C) NO. 19678/2009. EXT.P9: COPY OF THE OBJECTION DATED 31/08/2009 BY THE 7TH RESPONDENT. EXT.P10: COPY OF THE ORDER DATED 30/10/2009 BY THE 3RD RESPONDENT. EXT.P11: COPY OF THE APPLICATION DATED 14/12/2009 SUBMITTED BEFORE THE GEOLOGIST. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 2170 of 2010-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010. JUDGMENT Ext.P10 order passed by the District Collector is under challenge herein. By the said order, the District Collector cancelled the application made by the petitioner for removal of read earth for the purpose of constructing a residential house in his own property. The total extent of the property is 38 cents in Karukachal Village, Changanacherry Taluk of Kottayam District. Ext.P1 is the sale deed showing the title to the property. The property is lying as a slope at a higher level for about 6 metres from the public road. Therefore, he wanted to level the plot by removing earth for a depth of about 2 meters. Since he has no other property to stock the red earth, he submitted an application for removal of red earth before the Village Officer as per Ext.P2. Ext.P3 is the building permit obtained for construction of a residential building. After site inspection, the Village Officer forwarded a report recommending the removal of red earth for the construction of the residential building. The same was forwarded to the Tahsildar for action who granted permission as per Ext.P5. The permission granted is to remove ordinary earth from the petitioner’s property and to wpc2170 /2010 2 transport the same to a work site of the Government. When the petitioner started levelling the plot, objections were raised by the 7th respondent who is a neighbour and oral instructions were issued by the Tahsildar to stop the work. By Ext.P6, the Tahsildar cancelled the permission granted earlier. The petitioner moved this Court by filing W.P.(C) No.19678/2009 wherein a direction was issued to the District Collector to consider the matter as prayed for in Ext.P7. After hearing parties, the present order has been passed by the District Collector. The premise under which Ext.P10 order is passed, is that the house of the 7th respondent herein is situated in a nearby plot and if red earth is removed, it may cause damage to the building of the 7th respondent. It is further pointed out that the permission of the Geology department for removing red earth has also not been obtained. 2. Heard learned counsel for the petitioner and learned counsel appearing for the 7th respondent who has filed a detailed counter affidavit in the matter. Learned counsel for the petitioner submitted that recalling of the permission is really arbitrary and illegal and there is no basis for the objection raised by the 7th respondent. It is submitted that the property is having an extent of 38 cents and the red earth has to be removed only from an area having 10 cents. It is submitted that the petitioner has got a right to construct a residential building in his property. The building permit has wpc2170 /2010 3 already been granted. What is sought for is only a permission to remove red earth which was granted by the Tahsildar after the Village Officer found that it is perfectly justified. It is submitted by the learned counsel for he petitioner that his right to enjoy the property and to construct the residential building cannot be prevented at the instance of 7th respondent who is only a neighbouring land owner. It was also submitted that the order is passed at the influence exerted by the 7th respondent. By the impugned order the right to have a residential building is denied. 3. The contentions of the 7th respondent are three fold. The petitioner had earlier removed red earth for construction of a weigh bridge. At that time there was an oral agreement to construct a protective wall to prevent any soil erosion, but that was not constructed by him. By excavation of soil, there will be lowering of water level in the land. If the red earth is removed from the higher level, there will be a depletion of water source. It is also submitted by the 7th respondent that the building permit shows that the building is proposed to be constructed in different survey numbers which have not been earmarked. 4. As rightly pointed out by the learned counsel for the petitioner, the order is passed merely on the basis of the plea raised by the 7th respondent. No scientific data was available with the District Collector to wpc2170 /2010 4 conclude that if earth is removed by two meters, it will have adverse impact on the residential building of the neighbouring owner, viz. the 7th respondent. That the petitioner has got a right to enjoy his property and to use the same for the said purpose, cannot be disputed. The same is the right every land owner is having. Of course, the building has to be constructed based on the permit issued by the concerned authority which the petitioner has obtained. The plea raised by the 7th respondent that there was a promise to provide a protective wall and it is not implemented by the petitioner, cannot be a bar from considering his application for permission to remove red earth. What is proposed is to level the property only by two meters. The 7th respondent has to work out her remedies to provide the protective wall, if any promised, through other forums, viz. civil court, if there is an allegation that removal of red earth will affect her property. The order Ext.P10 passed by merely concluding that removal of red earth will cause danger to the residential building of the 7th respondent. Obviously, the entire extent of 38 cents is not proposed to be utilized for construction of the residential building. A reading of the order further shows that actually the hearing was conducted by the Deputy Collector (LR) and based on it, the roder is passed by the District Collector. This is not in tune with the directions issued in Ext.P8 judgment. wpc2170 /2010 5 5. The matter is only one concerning the application to transport red earth and permission is sought only for that purpose. All objections by the 7th respondent are based on the alleged promise to provide a protective wall. There is no scientific data available to show that by merely levelling the property, the water level will be affected throughout the area. Such a contention raised by the 7th respondent is without the support of any scientific data ought not have been accepted at its face value, to deny permission to the petitioner, that too for construction of a residential building. 6. Learned counsel for the petitioner also submitted that actually no permission from the Geologist is required in the light of Rule 57 of the Minor Mineral Concession Rules. Going by the said rule, quarrying permit may not be required in a situation like this. But still, it is pointed out that the petitioner has already filed an application to the Geologist since such a requirement is mentioned in Ext.P10 order. 7. The entire matter requires a fresh consideration. Ext.P10 order is therefore quashed. The issue will be reconsidered by the District Collector in the light of the findings rendered above. Appropriate order will be passed within one month from the date of receipt of a copy of this judgment after hearing the parties. While passing fresh orders, the District wpc2170 /2010 6 Collector can also direct the petitioner to earmark the area from where red earth is sought to be removed, so that further controversies regarding the same could be avoided. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/