BIJU THOMAS v. THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOTTAYAM; VELLAVOOR GRAMA PANCHAYATH; THE SECRETARY, VELLAVOOR GRAMA PANCHAYATH

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA,1944 ``` ``` WP(C) NO. 18189 OF 2022 ``` ## **`PETITIONER:`** ``` BIJU THOMAS AGED 48 YEARS S/O.THOMAS, CHAMAKALAYIL HOUSE, CHERUVALLY P.O., KOTTAYAM DISTRICT, PIN - 686 543 ``` ``` BY ADVS. BABU S. NAIR SMITHA BABU ``` ## **`RESPONDENTS:`** - **`1 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOTTAYAM KOTTAYAM DISTRICT, PIN - 686 001`** - **`2 THE VELLAVOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MANIMALA P.O., KOTTAYAM DISTRICT, PIN - 686 543.`** - **`3 THE SECRETARY, VELLAVOOR GRAMA PANCHAYATH, MANIMALA P.O., KOTTAYAM DISTRICT, PIN - 686 543.`** ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.LIJI J. VADAKKEDAM, STANDING COUNSEL, VELLAVOOR GRAMA PANCHAYAT GOVERNMENT PLEADER(GP-1) ``` ## **`SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER`** W.P.(C) No.18189 of 2022 : 2 : ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.18189 of 2022 : 3 : ## **JUDGMENT** Dated this the 13[th] day of October, 2022 The petitioner is in possession of 10.25 Cents of property in Survey Nos.330/16-4, 5 and 330/22-2 of Vellavoor Village in Kottayam District. He wanted to construct a building in the property. He made an application for Building Permit before the 3[rd ] respondent-Secretary. The 3[rd ] respondent-Secretary rejected the Building Permit application stating that only after getting permission from the Mining and Geology Department for removal of rock in the properties, the application can be considered. 2. The petitioner approached the 1[st] respondentGeologist. The 1[st] respondent as per Ext.P5 Communication informed the petitioner that the District Collector has exempted the 1[st] respondent from issuing No Objection Certificate for development of land and that permission has to be given by the Panchayat. W.P.(C) No.18189 of 2022 : 4 : 3. Now, the situation is that the petitioner is not able to get a Building Permit and Development Permit because the Panchayat insists for obtaining a No Objection Certificate from the Geologist, whereas the Geologist states that he is exempted from giving No Objection Certificate for excavation of minerals for the purpose of construction of buildings and land developments. 4. This Court in the judgment in _**Ramachandran T.K. and another v. Vellavoor Grama Panchayath and others** [2021 (5) KLT 1]_ has held as follows: (i) A development permit from the local authority is necessary only when 'development of land' in terms of the building rules is involved. (ii) Quarrying permit is not required for extraction of ordinary earth in connection with construction of building which does not require environmental clearance, provided, a valid building permit is obtained. (iii) For obtaining transit passes for transportation of ordinary earth, (a) In cases where 'land development', as defined under the concerned building rules is involved, a land development permit from the local authority shall be made available. W.P.(C) No.18189 of 2022 : 5 : (b) In cases where no 'land development', in terms of the building rules is involved, an approved building plan containing the area of land for construction of the building and the quantity of ordinary earth to be extracted for construction, shall be obtained from the local authority. (iv) R.5(4) of the Panchayat Building Rules does not require NOC/ Permission from the Department of Mining and Geology for issuance of development permit by the local authority 5. In view of the afore judgment, it is clear that a quarrying permit is not required for extraction of ordinary earth in connection with construction of building which does not require Environmental Clearance, provided a valid Building Permit is obtained. Though the judgment speaks only about ordinary earth, the petitioner would submit that the petitioner want to excavate rocks only for the purpose of construction of building and the petitioner does not intend to transport the rocks for which alone Mineral Transit Pass is required. The petitioner would further submit that though a prayer has been made in the writ petition seeking Mineral Transit Passes, the petitioner is not pressing for that relief as the rocks so excavated will be used W.P.(C) No.18189 of 2022 : 6 : for the purpose of building construction alone in the very same land. 6. In view of the above, this Court is of the view that the Panchayat Authorities shall consider the application for Building Permit without insisting for No Objection Certificate from the 1[st] respondent-Geologist, provided the petitioner files an affidavit to the effect that the petitioner will not be transporting the rocks so excavated from the land. The writ petition is therefore disposed of directing respondents 2 and 3 to consider and pass orders on the application for Building Permit and Development Permit submitted by the petitioner without insisting for No Objection Certificate from the District Geologist, after obtaining an affidavit from the petitioner on the above lines. **N.NAGARESH JUDGE** sss W.P.(C) No.18189 of 2022 : 7 : ## **`APPENDIX OF WP(C) 18189/2022`** ## **`PETITIONER'S EXHIBITS`** ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE PROPERTIES OWNED BY THE PETITIONER DATED, 7-4-2022. ``` ``` TRUE COPY OF THE ACKNOWLEDGMENT FOR THE BUILDING PERMIT APPLICATION DATED, 30-4-2021. ``` ``` Exhibit P3TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 2ND RESPONDENT DATED, 30-3-2021. Exhibit P4TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED, 27-4-2021. ``` ``` Exhibit P5TRUE COPY OF THE ORDER ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT DATED, 16-7-2021. ``` ``` Exhibit P6TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT COLLECTOR TO THE DEPUTY DIRECTOR OF PANCHAYATHS, KOTTAYAM DATED, 14-1-2022. ``` ``` Exhibit P7 ``` ``` TRUE COPY OF THE LETTER ADDRESS BY THE DEPUTY DIRECTOR OF PANCHYATHS, KOTTAYAM TO THE DIRECTOR OF PANCHYATHS, THIRUVANANTHAPURAM DATED, 18-3-2022. ``` W.P.(C) No.18189 of 2022 : 8 : W.P.(C) No.18189 of 2022 : 9 :