Excavation for residential construction by permit holders does not require additional quarrying permits under the applicable rules.

J U D G M E N T

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The petitioner, who is owner of a JCB Excavator, has filed this writ petition seeking to direct the 1st respondent to release the Excavator taking note of the issuance of Ext.P2 permit in the name of the 5th respondent by the Mavoor Grama Panchayat and also taking note of Ext.P4 Government Order.

2. The petitioner is owner of a 2010 model JCB Excavator (Non Transport) with registration No.KL-16F-8096. The 5th respondent, who holds a Building Permit for construction of a residential building, required the petitioner to level the land using the Excavator to facilitate the building construction.

3. The petitioner made available the Excavator at the early hours of 24.05.2022 and parked the Excavator on the road side, in front of the land of the 5th respondent. At 05.30 a.m. on 24.05.2022, the 1st respondent-Sub Inspector of Police seized the Excavator as per Ext.P3 Mahazar, alleging that it is used for unauthorised excavation of land.

4. The petitioner states that the Excavator was brought there only to level the land and as per Ext.P4 Government Order, if the owner of the land has valid building permit, no quarrying permit for excavation of ordinary earth is required. The petitioner has not committed any illegality in deploying the Excavator for the said work. Unless the Excavator is released immediately, the petitioner will be put to untold hardship and loss.

5. The 1st respondent filed a counter affidavit. The 1st respondent contended that on 24.05.2022, from 10.30 p.m. onwards, the 1st respondent and his party were on night patrolling duty within the station limits. When they reached the spot in question, at about 5.50 hours on 25.05.2022, the vehicle was found digging natural earth soil from the land very near to the western side of the road and depositing the same in the corner of the plot. The tyre marks of a lorry starting from the plot with wet soil marks were also found. When the person operating the Excavator was questioned, he gave out the details as proved in the seizure mahazar. However, he could not produce any permit that permitted the excavation that was underway. The building permit in Ext.P12 was also not shown to the police party.

6. Unauthorised excavation of earth and its trasport is rampant in Mavoor Panchayat, contended the 1st respondent. The area often faces issues of soil erosion and flood especially in the Monsoon season. The police is in receipt of several complaints from public regarding illegal digging of ordinary earth and sand mining. These activities are undertaken in the wee hours of the day. The officers on night patrolling duty are instructed to take stringent action against these illegalities. The petitioner's vehicle was found excavating the ordinary earthy in early hours of 25.05.2022 in the vicinity of which tyre marks of a lorry with wet soil marks were also found. When the driver of the vehicle could not produce any permission or explain the circumstances under which he was levelling the land, it was necessary that the 1st respondent seize the vehicle to enquire into the matter. The

1st respondent has acted in good faith.

7. I have heard the learned counsel for the petitioner and the learned Government Pleader representing respondents 1 to 4. In view of the nature of the relief to be granted in the writ petition, notice to the 5th respondent is dispensed with.

8. The contention of the petitioner is that the Excavator was deployed to level the land of the 5th respondent for facilitating construction of a residential building. Ext.P2 is a copy of Site Approval and Building Permit issued by the Mavoor Grama Panchayat to the 5th respondent for construction. Ext.P2 would show that the permit is for construction of a Special Residential Building.

9. The statement of the petitioner that the Excavator was seized from near the property of the 5th respondent, is not disputed. Ext.P2 Mahazar states that the Excavator was found removing ordinary earth from the land. The furt