Shekkila Roshan vs Director

The petitioner, who is the owner in possession of 1.50 acres of land comprised in Re.sy. Nos.216/3 and 216/7 in Eranellur Village, Thrissur District covered by Ext.P1 possession certificate dated 27.03.2019, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 15.05.2019 of the 3rd respondent; an order declaring that the seizure of four lorries and two excavators by virtue of Ext.P6 is illegal in view of Ext.P5 order of the 4th respondent; a writ of mandamus commanding the 3rd respondent to forthwith release lorries bearing registration Nos.KL-51/J-3841, KL-45/N-52, KL-45/L-4818 and KL-48/K-7420 and two excavators seized as per Ext.P6, from the property of the petitioner; and an appropriate writ declaring the right of the petitioner to excavate clay from the property, as permitted in Ext.P2, and to transport the same, as permitted in Ext.P5, without hindrance from the 2nd or 3rd respondents or officers acting under them.

On 21.05.2019, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. The 5th respondent entered appearance through the learned Standing Counsel. The learned Government Pleader and also the learned Standing Counsel for the 5th respondent were directed to get instructions.

On 28.05.2019, when this writ petition came up for consideration, it was ordered to be listed today for further consideration. The learned Government Pleader was directed to get specific instructions from respondents 3 and 4 as to the violations, if any, in the extraction of clay from the petitioner's property, which necessitated seizure of the vehicles by Ext.P6.

Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and additional respondents 6 and 7 and also the learned Standing Counsel for respondents 4 and 5.

The learned counsel for the petitioner would submit that, it is on the strength of Ext.P2 development permit issued by the Grama Panchayat and Ext.P5 permission granted by the 4th respondent that the petitioner had extracted clay from his property and such extraction is well with the permission granted by the 4th respondent in Ext.P5. Therefore, the additional 6th respondent Tahsildar or the 3rd respondent Village Officer are not at all justified in seizing the vehicles/excavators involved in such extraction and transportation, vide Ext.P6.

The learned Government Pleader and also the learned Standing Counsel for the 5th respondent Grama Panchayat would point out that, as per Ext.P2 development permit, the petitioner was permitted to extract only 3,250 cubic meters of clay. However, the petitioner had already extracted 4,117 cubic meters of clay, as discernible from Ext.P5 order, which is in violation of the statutory mandate. The learned Standing Counsel for the Grama Panchayat would also point out that, Ext.P2 development permit has already been cancelled on 22.05.2019 and a copy of the said order has also been forwarded to the petitioner through post. The learned counsel for the petitioner would submit that the petitioner is yet to receive the copy of that order.

The learned Standing Counsel for the 5th respondent has handed over a copy of that order to the learned counsel for the petitioner.

The learned Government Pleader would submit that, the seizure of the vehicles/excavators vide Ext.P6 has already been reported by the additional 6th respondent Tahsildar to the additional 7th respondent Revenue Divisional Officer, who shall report the matter to the 4th respondent Senior Geologist, today itself.

The learned counsel for the petitioner would submit that the petitioner, along with the registered owners of the motor vehicles/owners of the excavators, shall approach the 4th respondent for necessary orders and that, the owners of the vehicles/excavators shall move applications for custody of those vehicles/excavators.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions;

(i) The additional 6th respondent Revenue Divisional Officer shall forward the files relating to Ext.P6, regarding seizure of the vehicles/excavators from the property of the petitioner, to the 4th respondent Senior Geologist, today itself.

(ii) The petitioner along with the registered owners of the motor vehicles/owners of the excavators shall approach the 4th respondent for necessary orders and the owners of the vehicles/excavators shall move applications for release of those vehicles/excavators.

(iii) If any such applications are received, the 4th respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also the owners of those vehicles/excavators and after affording them an opportunity of being heard.

(iv) A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of ten days from the date of receipt of those applications.

It is made clear that this Court has not expressed anything as to the legality or otherwise of the excavation of clay by the petitioner from the property in question and also the cancellation of Ext.P2 development permit by the 5th respondent Grama Panchayat. The legal and factual contentions raised by both sides are left open to be raised before the appropriate forum at appropriate stage.

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE POSSESSION CERTIFICATE DATED 27.3.19 OF THE 3RD RESPONDENT.

EXHIBIT P2 PHOTOCOPY OF THE DEVELOPMENT PERMIT ISSUED BY THE 5TH RESPONDENT DATED 16.2.19 ALONG WITH THE SKETCH OF THE PROPERTY.

EXHIBIT P3 PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P4 PHOTOCOPY OF THE CHELLAN DATED 3.5.19.

EXHIBIT P5 PHOTOCOPY OF THE ORDER NO. 71/19- 20/780/OC/C2/TDO/19 DATED 6.5.19 OF THE 4TH RESPONDENT.

EXHIBIT P6 PHOTOCOPY OF THE CONFISCATION NOTICE DATED 15.5.19 OF THE 3RD RESPONDENT.

RESPONDENTS' EXHIBITS: NIL