Augustine Joseph v. Poonjar Thekkekkara Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 20[TH] DAY OF SEPTEMBER 2022 / 29TH BHADRA, 1944** **WP(C) NO. 21359 OF 2022** ## **PETITIONER:** **AUGUSTINE JOSEPH, AGED 70 YEARS, S/O JOSEPH, KANDATHIL, PATHAMPUZHA P.O., POONJAR THEKKEKKARA, KOTTAYAM-686 582.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SMT.CHITHRA CHANDRASEKHARAN** **RESPONDENTS:** - **1 POONJAR THEKKEKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE POONJAR THEKKEKKARA GRAMA PANCHAYAT, POONJAR TOWN ROAD, KOTTAYAM-686 582.** - **2 THE VILLAGE OFFICER, POONJAR THEKKEKKARA VILLAGE OFFICE, PANACHIPPARA, POONJAR, KOTTAYAM-686 581.** - **3 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, KOTTAYAM DISTRICT, PIN-686 002.** **BY ADVS. R1 BY SRI.V.K.PRASAD** **SMT.SURYA BINOY, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21359/2022 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.21359 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 20[th] day of September, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is owner of 70.70 Ares of land in Poonjar Thekkekkara Village, seeks to quash Exts.P7, P8 and P9 and to direct the 3[rd] respondent to permit the petitioner to transport broken rocks having a quantity of 805.86 cubic metre extracted and kept in the property of the petitioner. 2. The petitioner states that with an intent to construct a residential building in his property, the petitioner obtained Ext.P3 Building Permit and Ext.P5 approved building plan from the 1[st] respondent-Panchayat. Ordinary earth was required to be removed for building construction. In the approved Development Plan, the ordinary earth to be W.P.(C) No.21359/2022 : 3 : removed was stipulated as 286.15 cubic metre. As the petitioner did not want to transport the ordinary earth excavated from the property of the petitioner, a transit pass under Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 was not obtained. 3. The petitioner states that while excavating ordinary earth, a bed of rock was found beneath the earth. To construct foundation of the building, the rock had to be removed. When the petitioner approached the 3[rd] respondent-Geologist seeking permission, the petitioner was informed that for grant of permit, the property should be demarcated by the 2[nd] respondent-Village Officer. 4. The petitioner submitted an application under Rule 106 of the KMMC Rules, 2015 to the 3[rd] respondent seeking permission for extraction and transportation of the rock from his property. The petitioner broke the bed of rock into pieces and kept the same in the petitioner's property. The 3[rd] respondent conducted an inspection on 19.02.2022 and measured the quantity of rocks. The 3[rd] respondent found W.P.(C) No.21359/2022 : 4 : that 805.86 cubic metres of rock was excavated. The petitioner was required to pay royalty amount of ₹48,352/- for the 805.86 cubic metre of rock excavated. The petitioner remitted the amount. 5. On 02.04.2022, the 3[rd] respondent issued Ext.P7 letter to the 1[st] respondent-Secretary to the Panchayat pointing out that since the quantity of minerals required to be removed has not been mentioned by the LSGD Engineer in the Building Permit, the 1[st] respondent shall give a clarification as to the quantity of the mineral to be removed. The petitioner would submit that Ext.P7 letter is illegal and in view of Rule 106 of KMMC Rules, 2015 and in view of the law laid down by this Court in _**Varghese v. District Collector** [2015 (3) KLT 642]._ The 3[rd] respondent himself has to conduct inspection and fix royalty. 6. The 1[st] respondent thereafter issued Ext.P8 letter to the petitioner alleging that though the permission was to extract 286.15 cubic metre of ordinary earth, the petitioner had quarried 5000 cubic metre of rocks and has kept the W.P.(C) No.21359/2022 : 5 : rocks in his property at a height of 5 metres. By Ext.P8, the petitioner was directed to stop all the works being done in the property. 7. On 09.05.2022, the 2[nd] respondent-Village Officer issued Ext.P9 letter stating that he has received information that the petitioner has extracted a quantity of 500 cubic metre of rocks though the permission was only to extract 286.15 cubic metre of ordinary earth. The 2[nd] respondent also required the petitioner to stop the construction activities. The petitioner submitted Ext.P10 representation before the 1[st] respondent and Ext.P11 representation before the 2[nd] respondent to revoke the stop memos issued by them. The petitioner submitted Ext.P12 application to the 3[rd] respondent-Geologist to issue Special Transit Pass to the petitioner. 8. The petitioner submitted that once the petitioner has remitted royalty amount payable under Rule 106, the 3[rd] respondent has to issue Special Transit Passes for transportation of rocks. The refusal of the 3[rd] respondent to W.P.(C) No.21359/2022 : 6 : issue Transit Passes is illegal. The petitioner has remitted royalty of ₹48,452/- for the purpose of obtaining Special Transit Passes. Exts.P7, P8 and P9 notices are therefore illegal and unsustainable. 9. The 1[st] respondent opposed the writ petition. After getting Ext.P7 communication from the Geologist, the Assistant Engineer of the Panchayat visited the property of the petitioner and it was noted that extraction has been done to a depth of about of 5 metres in the property. It was evident that the petitioner's intention was to extract rock on a massive scale under the guise of construction. 10. The 1[st] respondent further submitted that in view of Rule 10(4) of the Kerala Panchayat Building Rules, 2019, the petitioner ought to have informed the Panchayat when a bed of rock was found on excavation and the petitioner was bound to submit revised drawings, specifications and details. In the site inspection conducted by the Assistant Engineer, it was found that the petitioner has resorted to mining in a massive scale and about 5000 cubic metres of rock was W.P.(C) No.21359/2022 : 7 : extracted and kept in the petitioner's property. 11. The 1[st] respondent further submitted that the Secretary to the Panchayat along with the Assistant Engineer visited the site on 15.07.2022 in order to ascertain the quantum of rocks and it was found that rock extraction had been undertaken in an area with a length of about 35 metres and a depth of about 7 metres. About 5000 cubic metres of rock was found strewn all over the area, making it impossible to identify the exact location of the proposed building and to calculate the quantum of earth rock to be removed for the construction of the building. 12. The 3[rd] respondent also resisted the writ petition filing a counter affidavit. The 3[rd] respondent stated that the site was inspected on 22.07.2022 in the presence of the petitioner and it was found that quarrying has been undertaken in a hard rock terrain and about 5040 cubic metres of granite building stone was stocked at the site. The 3[rd] respondent further submitted that the petitioner's building site is situated in a hard rock terrain and is slopping towards W.P.(C) No.21359/2022 : 8 : the east at an angle of more than 38[0] . In the circumstances, the writ petition filed by the petitioner is liable to be dismissed, contended the 3[rd] respondent. 13. The petitioner filed a reply affidavit. The petitioner stated that the Mineral Revenue Inspector had quantified the rock removed at 805.86 cubic metre and the petitioner has paid royalty amount of ₹48,352/- at the rate of ₹60/- per cubic metre. The procedures under Rule 106 of the KMMC Rules are followed for extracting and transporting the rock. The 3[rd] respondent erred in seeking clarification from the 1[st] respondent as per Ext.P7. 14. The petitioner pointed out that the 1[st] respondent has no authority or expertise in giving a clarification as required by the 3[rd] respondent. The petitioner submitted that his property is not situated in a high risk zone. The learned Senior Counsel assisted by the learned counsel for the petitioner argued that no specific permission is required under the KMMC Rules for extraction of minerals for the purpose of building construction. Law only requires that an W.P.(C) No.21359/2022 : 9 : intimation should be given to the competent authority. The petitioner had intimated the matter to the 3[rd] respondent who is the competent authority. 15. The Senior Counsel pointed out that the Mineral Revenue Inspector had quantified the excavated rock as 805.86 cubic metre. The petitioner had paid royalty demanded for the said quantity. The competent authority is therefore compellable to issue Mineral Transit Passes to transport the said quantity of rock. 16. The Senior Counsel further pointed out that if the depth of earth cutting is more than the horizontal distance of such cutting from the plot boundary, Rule 10(4) of the KPBR will apply. In the case of the petitioner, Rule 10(4) will not apply. 17. Even if there is any marginal violation of the provisions of the Kerala Panchayat Building Rules, Rule 92 of the KPBR, 2019 empowers the Secretary to regularise the constructions. Therefore, the Secretary is compellable to withdraw the Ext.P8 notice issued to the petitioner. W.P.(C) No.21359/2022 : 10 : 18. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader representing the 2[nd] and 3[rd] respondents and the learned Standing Counsel appearing for the 1[st] respondent. 19. The petitioner has obtained Ext.P5 Building Plan for the construction of the building. As per Ext.P5 Building Plan, the quantum of ordinary earth to be removed for facilitating the construction is 286.15 cubic metres. The petitioner states that while extracting ordinary earth, a bed of rock was found beneath the earth and the same had to be removed. According to the petitioner, in view of Rule 106 of the KMMC Rules, 2015 in any case of construction of residential building where extraction of minor mineral is inevitable as a part of the work, the person doing such work may be exempted from obtaining quarrying permit/lease. 20. The proviso to Rule 106 mandates that before extraction of minor minerals, the person concerned shall intimate the competent authority his intention to carry out the works to be performed and shall furnish necessary W.P.(C) No.21359/2022 : 11 : documents as required by the competent authority in this regard. If the extracted mineral is to be transported outside the worksite, the competent authority may issue Special Mineral Transit Passes after collecting the royalty. 21. In the petitioner's case, there is no dispute that the petitioner has intimated his requirement for excavation of rock for the purpose of building construction, to the 3[rd] respondent. The 3[rd] respondent has caused inspection of the site, assessed the quantum of rock at 805.86 cubic metre and has levied royalty for the said quantity of rock, which the petitioner has paid. In the circumstances, ordinarily, the 3[rd] respondent is bound to issue Special Mineral Transit Passes to the petitioner for the quantity 805.86 cubic metres. 22. However, the facts disclosed from the pleadings would establish that the petitioner has excavated huge quantity of minerals over and above the requirements and more than 805.86 cubic metres for which the petitioner has paid royalty. After getting Ext.P7 letter from the 3[rd] respondent, the Assistant Engineer of the Panchayat visited W.P.(C) No.21359/2022 : 12 : the property and it was found that excavation has been done to a depth of more than 5 metres and the excavation establishes that the intention of the petitioner was to extract rock on a massive scale under the guise of construction. During the site inspection conducted by the Panchayat authorities, it was found that more than 5000 cubic metres of rock was extracted and kept in the property. Annexure-R1(a) communication given by the Assistant Engineer, LSGD Section to the Secretary would show that excavation has been carried out by the petitioner at such scale which may result in damage to environment. 23. It is to be noted that the quantum of earth to be removed for the purpose of building construction was only 286.15 cubic metres. If that be so, it is not clear why the petitioner excavated 805.86 cubic metre of rock for building construction, for which the petitioner had paid royalty. The inspection conducted by the authorities revealed that though the petitioner has paid royalty amount for 805.86 cubic metres, the quantum of rock excavated is about 5000 cubic W.P.(C) No.21359/2022 : 13 : metres. 24. It is also evident from the counter affidavit filed by the 3[rd] respondent that the entire area where the petitioner's property is located, is at a higher elevation than the nearby Pathampuzha – Mannam Panchayat Road and the entire area is a hard rock terrain. To make matters worse, the area . is slopping towards the east at an angle of more than 38[0] According to the 3[rd] respondent, the area falls under a high risk zone (red zone) in the mapping of the landslide–prone area prepared by the State Disaster Management Authority. The large scale excavation carried out by the petitioner, much above the requirement for building construction, therefore cannot be justified under any circumstances. The writ petition is therefore without any merit and consequently, it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/17.09.2022 W.P.(C) No.21359/2022 : 14 : ## **APPENDIX OF WP(C) 21359/2022** ## **PETITIONER'S EXHIBITS:** |**Exhibit P1**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**POSSESSION**| |---|---| ||**CERTIFICATE NO. 62336627 DT. 21-12-**| ||**2021 ISSUED BY THE 2ND RESPONDENT.**| |**Exhibit P2**|**TRUE COPY OF THE BASIC TAX RECEIPT DT.**| ||**16-09-2021 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**Exhibit P3**|**TRUE COPY OF THE BUILDING PERMIT**| ||**NO.A2-BA(271764)2021 DATED 10-11-2021.**| |**Exhibit P4**|**TRUE COPY OF THE LOCATION SKETCH NO.**| ||**258/21. DT. 21-12-2021.**| |**Exhibit P5**|**TRUE COPY OF THE DEVELOPMENT PLAN**| ||**DATED 10-11-2021 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**Exhibit P6**|**TRUE COPY OF THE CHALLAN DATED**| ||**04/03/2022.**| |**Exhibit P7**|**TRUE COPY OF THE LETTER ISSUED BY THE**| ||**3RD RESPONDENT TO 1ST RESPONDENT NO.**| ||**1205/DY/ML/2021 DATED 02/04/2022.**| |**Exhibit P8**|**TRUE COPY OF THE LETTER ISSUED BY THE**| ||**1ST RESPONDENT TO THE PETITIONER NO.**| ||**A2-1952/2021 DATED 29/04/2022.**| |**Exhibit P9**|**TRUE COPY OF THE LETTER ISSUED BY THE**| ||**2ND RESPONDENT TO PETITIONER NO.**| ||**103/2022 DATED 09/05/2022.**| |**Exhibit P10**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**17-6-2022**<br>**AND**<br>**RECEIPT**<br>**DATED**| ||**23/06/2022.**| |**Exhibit P11**|**TRUE COPY OF THE REPRESENTATION**| ||**SUBMITTED BY THE PETITIONER BEFORE THE**| ||**2ND RESPONDENT DATED 23/06/2022.**| |**Exhibit P12**|**TRUE COPY OF THE REQUEST SUBMITTED BY**| ||**THE PETITIONER BEFORE THE 3RD**| ||**RESPONDENT ON 2016/22**| |**Exhibit P13**|**TRUE COPY OF THE PERMIT ISSUED BY THE**| ||**3RD RESPONDENT TO SRI. SHINO JOHN**| ||**DATED 24/01/022**| W.P.(C) No.21359/2022 ## : 15 : ## **RESPONDENTS' EXHIBITS:** **Exhibit R1(a) A TRUE COPY OF THE APPROVED PLAN UNDER REF: NO. A2-1952/21 DATED 18.09.2021 ISSUED BY POONJAR THEKKEKARA GRAMA PANCHAYAT.** **Exhibit R1(b) A COPY OF REPORT OF ASSISTANT ENGINEER, L.S.G.D SECTION OF POONJAR THEKKEKARA GRAMA PANCHAYAT DATED 16.07.2022.** **ANNEXURE-R1 (a) A TRUE COPY OF THE REPORT DATED 25.04.2022 SUBMITTED BY THE ASSISTANT ENGINEER.** **ANNEXURE-R1 (b) A TRUE COPY OF THE LETTER UNDER REF NO.A2-1952/2021 DATED 26.04.2022 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT R3(a) TRUE COPY OF SATELLITE PICTURE OF THE LOCATION OF THE SITE IN THE LANDSLIDE PRONE MAP EXHIBIT R3(b) TRUE COPY OF PHOTOGRAPH OF THE AREA.** SR