High Court of KeralaSingle Judge2024-04-05Disposed of with directions

Babu Abraham Anchanickal v State of Kerala and Others

Case / Petition Number:WP(C) No. 28346 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2024-04-05
Court Decision / Holding: i. It is declared that the Panchayat has no authority to resist or object the petitioner to remove the red earth from his property, in pursuance of Ext. P4 order, outside the Panchayat area. ii. The respondent Panchayat is directed not to object to removing red earth from the petitioner’s property (Ext.P1 & P2) pursuant to Ext.P4 order issued by the Geologist.
Final Disposition: Disposed of with directions

Parties to the Case

Appellants / Petitioners

Babu Abraham Anchanickal, Vazhoor East P O, Kottayam District, Kerala

Respondents

State of Kerala rep by its Secretary, Department of Local Self Government, Thiruvananthapuram-695001
Revenue Divisional Officer, Kottayam-686002
Department of Mining and Geology represented by Geologist, District Office, Government of Mining and Geology, Kottayam-686002
Village Officer Vazhoor Village, Vazhoor-686009
Vazhoor Grama Panchayath represented by its Secretary, Vazhoor-686009

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Saiby Jose Kidangoor
• Smt. Krishna Rajendran

Counsels for Respondents

• Sri. B.S. Syamantak
• Sri. Liji J. Vadakedom

Case Synopsis & Summary

The petitioner, Babu Abraham Anchanickal, is the absolute owner of 6.07 acres in Vazhoor Village, Kottayam District. He sought permission to remove red earth from his property to facilitate construction, obtaining Ext. P4 from the Geologist, which authorized removal in line with Ext. P3 building permit and Ext. P2 tax receipt. The 5th respondent, Vazhoor Grama Panchayath, opposed the removal, claiming a Panchayat resolution (No. 1/2012) prohibits transportation of red soil outside the Panchayat area. The petitioner filed Ext. P6 (a representation) without response. He contends that the Geologist’s order supersedes local objections and that there is no rational basis to bar removal beyond the Panchayat’s jurisdiction; the order should prevail. The respondents rely on the Panchayat’s resolution to regulate extraction and transport and argue the Panchayat’s authority to prevent outside transport. The High Court, citing Shynymol v. State of Kerala and Others (2012 930 KHC 404), notes that if Ext. P5 reflects the resolution’s content, there is no rational basis for the restriction and there is no bar to transporting red earth outside the Panchayat area where removal is authorized. The court thus directs that the Panchayat has no authority to resist removal outside its jurisdiction under Ext. P4, and that it should not object to removal within the petitioner’s property under Ext. P4, disposing the petition with these directions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that Ext. P4 order by the Geologist permits removal of red earth from his property. He contends that the Panchayat, by resolution 1/2012 dated 14/06/2012, resolved to prohibit transportation of red soil outside its area; however, Ext. P4 order supersedes the Panchayat's objection within the scope of the geologist's permission. He asserts the Panchayat lacks authority to resist removal beyond its jurisdiction and that the contradictory resolution and absence of timely response to Ext. P6 render the objection untenable. The petitioner seeks a declaration that the Panchayat has no authority to resist removal outside the Panchayat area and seeks directions to permit removal under Ext. P4 (i–iii).

Contentions of Respondents

The Panchayat argued that it prohibits transportation of red soil outside its area as per the resolution; it relied on Ext. P5 as reflecting the Panchayat’s stance and noted inaction of officials. The respondents contend that local control over extraction and transport is within the Panchayat’s powers, and Ext. P4 cannot override such Regulations. The court’s analysis, aided by Shynymol, ultimately favors the petitioner by clarifying that removal within the geologist’s order may proceed and that the Panchayat cannot unreasonably restrain removal beyond its jurisdiction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shynymol v. State of Kerala and Others	2012 930 KHC 404	Positive	Cited to support the proposition that a Panchayat cannot validly prohibit removal outside its jurisdiction when an order (Ext. P4) from the geologist permits removal; the judgment uses this precedent to justify the petitioner's position.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ## WP(C) NO. 28346 OF 2013 ## PETITIONER: BABU ABRAHAM ANCHANICKAL, VAZHOOR EAST P O, KOTTAYAM DIST, KERALA BY ADVS. SRI.SAIBY JOSE KIDANGOOR SMT.KRISHNA RAJENDRAN ## RESPONDENTS: - 1 STATE OF KERALA REP BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM-695 001 - 2 THE REVENUE DIVISIONAL OFFICER KOTTAYAM-686 002 - 3 DEPARTMENT OF MINING AND GEOLOGY - REP BY GEOLOGIST, DISTRICT OFFICE,GOVERNMENT OF MINING AND GEOLOGY, KOTTAYAM-686 002 - 4 THE VILLAGE OFFICER - VAZHOOR VILLAGE, VAZHOOR-686 009 - 5 VAZHOOR GRAMA PANCHAYATH REP BY ITS SECRETARY, VAZHOOR-686 009 BY ADVS. SRI.B.S.SYAMANTAK, GP SRI. LIJI.J.VADAKEDOM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28346 OF 2013 2 ## P.V.KUNHIKRISHNAN, J. -------------------------------------------W.P.(C) No.28346 of 2013 ---------------------------------------------Dated this the 05[th ] day of April, 2024 ## JUDGMENT The above writ petition is filed with the following prayers: _“i. Declare that the respondent Panchayat has no authority to resist or object the petitioner to remove the petitioner from his property being carried out in pursuant to Exhibit P4 sanction order._ _ii. Direct the respondent Panchayat not to object the petitioner from removing red earth from his property (Exhibit P 1 & P 2), in pursuant to Exhibit P4 order issued by the Geologist._ _iii. grant any other further or consequential reliefs, as may be prayed for and deemed fit by this Honourable Court.” SIC_ WP(C) NO. 28346 OF 2013 3 2. The petitioner is the absolute owner and in possession of a property to an extent of 6.07 Ares comprised in Sy. Nos. 270/3 and 270/4 of Vazhoor Village, Changanacherry Taluk, Kottayam District. Ext.P1 is the deed executed in favour of the petitioner. Ext.P2 is the tax receipt. It is submitted that the land of the petitioner is situated in an upper level compared to the road laying near to the petitioner’s property. The petitioner with an intention to construct a building had initiated steps to remove the red earth from his property, is the submission. Ext.P3 is the building permit issued to the petitioner. The petitioner, therefore, submitted an application before the Geologist, Kottayam to get permission to remove the 4 WP(C) NO. 28346 OF 2013 red earth from the petitioner’s property. The 3[rd] respondent issued Ext.P4 order. In pursuant to Ext.P4 order, the petitioner initiated steps to remove red earth from his property. But, at that stage, the 5[th] respondent started to object the removal of the red earth from the petitioner’s property stating that the Panchayat has taken a decision not to allow the petitioner to remove the red earth from his property to the outside jurisdiction of the Panchayat. The petitioner submitted Ext.P6 representation before the Panchayat. Even then, there is no response from the concerned authorities. Hence, this writ petition is 3. Heard the learned counsel appearing for the 5 WP(C) NO. 28346 OF 2013 ## petitioner and the learned Government Pleader. 4. The petitioner is aggrieved by the condition regarding the removal of the red earth beyond the jurisdiction of the Panchayat. This point is considered by this Court in _Shynymol v. State of Kerala and Others_ [2012 930 KHC 404]. It will be better to extract the relevant portion of the above judgment: _“9. Apart from all these, it merits notice that in Ext.P5, the communication issued to the petitioner what is informed is that by resolution No. 1/2012 dated 14/06/2012, it has been resolved by the Panchayat to prohibit transportation of the red soil to outside its area. In other words, this communication shows that removal and transportation of red soil within the Panchayat limits is permissible. If removal and transportation within Panchayat area is permissible, there is absolutely no rationale in prohibiting transportation outside the Panchayat area. Therefore, if what is stated in Ext. P5 is the true content of the resolution, relied on by the Secretary, there is absolutely no rationale for such a_ WP(C) NO. 28346 OF 2013 6 _resolution.”_ 5. In the light of the same, I think, there is no bar in transporting red earth outside the jurisdiction of the Panchayat. Therefore, this writ petition is disposed of with the following directions: - _i. It is declared that the Panchayat has no_ - _authority to resist or object the petitioner_ _to remove the red earth from his property,_ _in pursuant to Ext.P4 order, outside the_ _Panchayat area._ - _ii. The respondent Panchayat is directed, not_ _to object the petitioner from removing red earth from his property (Ext.P1 & P2)_ WP(C) NO. 28346 OF 2013 **==> picture [7 x 8] intentionally omitted <==** _pursuant to Ext.P4 order issued by the_ _Geologist._ Sd/- nvj P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 28346 OF 2013 8 ## APPENDIX OF WP(C) 28346/2013 ## PETITIONER EXHIBITS P1:-TRUE COPY OF THE SALE DEED NO 1247/07 DTD 17/9/2007 P2:-TRUE COPY OF THE TAX RECEIPT NO 5914819 DTD 3/10/2013 P3:-TRUE COPY OF THE BUILDING PERMIT NO A- 330/08 DTD 2/4/2008 P4:-TRUE COPY OF THE ORDER NO 214/OE/QP/2013-2014/1646/DOY/ML/2013 DTD 6/11/2013 ISSUED BY THE GEOLOGIST, KOTTAYAM P5:-TRUE COPY OF THE COMMUNICATION NO ABI(B)3100/2012 DTD 5/10/2013 ISSUED FROM THE OFFICE OF THE EXECUTIVE ENGINEER, PWD DIVISION, ALAPPUZHA P6:-TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER TO THE 5TH RESPONDENT DTD 8/11/2013 RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE