Purushothaman v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934 WP(C).No. 23852 of 2012 (F) --------------------------- PETITIONER(S): ------------- PURUSHOTHAMAN, AGED 54 YEARS, S/O.RAGHAVAN, MATTAPPALLIL THOTTUNKAL, VAZHOOR P.O.-686504, KOTTAYAM DISTRICT. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT(S): -------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM -695001. 2. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM-686001. 3. THE VILLAGE OFFICER, VAZHOOR VILLAGE -686504. 4. THE VAZHOOR PANCHAYAT, REP.BY ITS SECRETARY, VAZHOOR-686504. BY GOVERNMENT PLEADER SMT. C.K.SHERIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 23852 of 2012 (F) APPENDIX ## PETITIONER(S) EXHIBITS : EXT.P1 COPY OF THE DEED NO.44/06 DATED 9/1/2006 OF SRO, KANJIRAPPALLY. EXT.P2 COPY OF THE BUILDING PERMIT NO.A3 21/12 DATED 13.8.2012 ISSUED BY THE 4TH RESPONDENT. EXT.P3 COPY OF THE DEVELOPMENT PERMIT NO.A3 24/2012 DATED 13.8.2012 ISSUED BY THE 4TH RESPONDENT. EXT.P4 COPY OF THE LETTER NO.15/AE III/2010-11 DATED 4/9/12 ISSUED BY THE ASSISTANT ENGINEER TO THE RDO, KOTTAYAM. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE DSV/- **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.23852 of 2012 ---------------------------------------------------Dated this the 18[th] October, 2012** ## **J U D G M E N T** The petitioner has filed this writ petition challenging condition No.6 imposed by Exhibit P3 proceedings while issuing a Development Permit by the 4[th] respondent. As per the above condition the petitioner has been informed that removal of sand from the site to any place outside the Panchayat area would not be allowed. According to the petitioner the above stipulation is without any authority and is liable to be set aside. Reliance is placed on the decision of this court in Shynymol v. State of Kerala and Others [2012(3) KHC 404]. 2. In view of the fact that a statutory appeal has been provided by Section 276 of the Kerala Panchayath Raj Act, 1994 and under Rule 151 of the W.P(c) No.23852 of 2012 2 Kerala Panchayath Building Rules, 2011, the counsel was asked to explain why he should not be relegated to the alternative remedy that is available to him. Accordingly, the question of maintainability has been heard. 3. Adv. Saiby Jose Kidangoor, who appears for the petitioner submits that the issue in the present case is clearly covered by the decision in Shynymol v. State of Kerala and Others (Supra). In the said case, according to the counsel, a similar clause restricting removal of red earth from within the limits of the Panchayath area has been held to be without jurisdiction. Therefore, according to the counsel, the said dictum applies on all fours to this case also. Reliance is also placed on two other decisions, one of the Orrisa High Court and the other of the Madras High Court in support of the W.P(c) No.23852 of 2012 3 above contention. 4. Therefore the question that arises for consideration is whether the petitioner should be relegated to his statutory remedy of filing an appeal. The clause in Exhibit P3 that is challenged in this writ petition reads as follows: - "(6) Removal of sand from the site to outside of Panchayat area will not be allowed." It is clear from the above clause that the restriction imposed by the above clause is on removal of 'sand' from the site to outside the Panchayat area. The Counsel for the petitioner submits that though the word 'sand' has been used, what is actually meant is red earth and nothing else. However, there is no evidence or material on record to justify such a conclusion. In Shynymol v. State of Kerala and Others [2012(3) KHC 404] (Supra), the petitioner W.P(c) No.23852 of 2012 4 had been granted an order by the Revenue Divisional Officer permitting her to remove red earth from her property in the manner provided therein. The period during which the removal of red earth was permitted was also specified in the said order. However, the Secretary of the Panchayat had informed that the Panchayat by a resolution had prohibited transportation of red soil from within the area of the Panchayat to outside areas. This court has found that the Panchayat had no jurisdiction to pass such a resolution restricting the removal of red earth outside the limits of the Panchayat area, in view of the fact that, the Revenue Divisional Officer who is the competent authority had already granted permission to the petitioner to remove red earth. No such situation exists in the present case. 5. In the present case the petitioner has sought W.P(c) No.23852 of 2012 5 for the grant of a Development Permit. As a condition of the Development Permit that has been granted as per Exhibit P3, the 4[th] respondent has stipulated that removal of sand outside the Panchayat area would not be allowed. There is no mention of any Panchayat Resolution on the basis of which the condition has been stipulated. The petitioner has also not obtained any permission from the Revenue Divisional Officer or other competent authority for the removal of sand or red earth. It is probable that, the restriction has been imposed for the reason that the petitioner has not been permitted to remove red earth or sand by the competent authority. Since nothing has been in these to warrant a produced proceedings conclusion that the petitioner has been granted any such permission, I am of the opinion that the facts in W.P(c) No.23852 of 2012 6 this case are different from the facts in the decision reported in [2012(3) KHC 404]. 6. The counsel for the petitioner has placed reliance on a Division Bench decision of the Orrisa High Court in Kukumina Construction (P) Ltd., (M/s.) v. Sub Registrar cum Stamp Collector, Khurda and Others [2010 KHC 6860]. In paragraph 6 of the said Judgment, it has been held that where a writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of principles of Natural Justice or where an order or proceedings are wholly without jurisdiction or the vires of an Act is challenged, a writ petition under Article 226 can be entertained despite the existence of an alternative remedy. The counsel for the petitioner has also placed reliance on the decision in Vinmani P. v. General Manager, State W.P(c) No.23852 of 2012 7 Bank of India, SAM Branch, Anna Salai, Chennai (2011 KHC 2761) where a Division Bench of the Madras High Court has also expressed a similar view. There can be no quarrel with the proposition laid down by the decisions cited before me. I am not satisfied that the condition imposed is wholly without jurisdiction. The petitioner if aggrieved by the condition imposed by Exhibit P3 is free to challenge the same by filing a statutory appeal. Reserving the said right of the petitioner, this writ petition is dismissed. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ // TRUE COPY // ## P.A. TO JUDGE DSV/-