NYDIA PROJECTS & PROPERTIES PVT.LTD. v. District Collector, Kottayam & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936 WP(C).No. 27850 of 2013 (E) --------------------------------------- ## PETITIONER(S): --------------------- NYDIA PROJECTS & PROPERTIES PVT.LTD., REGISTRATION NO. U45200KL2009PTC024815, 8/945, PIPE LINE, MALAPARAMBA P.O, CHEVAYOOR KARA, CHEVAYOOR VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN 673 009, REPRESENTED BY ITS MANAGING DIRECTOR , THOMAS PAZHAYAVEETTIL KURIAN THROUGH ITS MANAGER & AUTHORIZED OFFICER, A.J JOHN, AGED 61 YEARS, S/O.JOSEPH, ADUKUZHIYIL HOUSE, KADAVOOR P.O., NEDAMAKADU KARA, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK, PIN 686 671. BY ADVS.SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H. RESPONDENT(S): ----------------------- 1. DISTRICT COLLECTOR, KOTTAYAM, PIN 686 001. 2. REVENUE DIVISIONAL OFFICER, KOTTAYAM, PIN 686 001. 3. VILLAGE OFFICER, PAMPADY VILLAGE, PAMPADY, KOTTAYAM PIN 686 502. 4. TAHSILDAR, - KOTTAYAM, PIN 686 001. 5. SECRETARY, PAMPADY GRAMA PANCHAYATH, PAMPADY, KOTTAYAM, PIN 686 502. 6. PAMPADY GRAMA PANCHAYATH, PAMAPDY, KOTTAYAM, REPRESENTED BY ITS SECRETARY, PIN 686 502. WP(C).No. 27850 of 2013 (E) R1 TO R4 BY GOVERNMENT PLEADER SMT. K.T.LILLY R5 & R6 BY ADV. SRI.GEORGE SEBASTIAN, SC, PAMPADY GRAMA PANCHAYATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27850 of 2013 (E) ---------------------------- ## APPENDIX PETITIONER’S EXHIBITS : ---------------------------------- EXHIBIT P1 COPY OF THE SALE DEED DATED 06-10-2009 BEARING NUMBER 1560/2009 BEFORE THE SUB REGISTRAR'S OFFICE, PAMPADY. EXHIBIT P2 COPY OF BASIC TAX RECEIPT PERTAINING TO THE PROPERTY COVERED BY EXHIBIT P1. EXHIBIT P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4 COPY OF THE JUDGMENT DATED 05-08-2013 IN WPC NO 19337/2013 BEFORE THIS HON'BLE COURT. EXHIBIT P5 COPY OF THE FORWARDING NOTE MADE ON EXHIBIT P3 REPRESENTATION BY THE 1ST RESPONDENT. EXHIBIT P6 COPY OF THE REPORT & PLAN DATED 04-10-2013. EXHIBIT P7 COPY OF COMMUNICATION DATED 08-10-2013 BEARING NUMBER K312200/13 SENT BY THE 4TH RESPONDENT. EXHIBIT P8 COPY OF COMMUNICATION DATED 29-10-2013 BEARING NUMBER A25558/13 ISSUED BY THE 5TH RESPONDENT RESPONDENTS’ EXHIBITS : ------------------------------------R5(A) COPY OF THE REPRESENTATION DATED 24.12.2013. R5(B1) PHOTOGRAPH SHOWING THE NATURE AND LIE OF THE PETITIONER’S PROPERTY. R5(B2) PHOTOGRAPH SHOWING THE NATURE AND LIE OF THE PETITIONER’S PROPERTY. // True Copy // P.A. To Judge DSV/22/04 ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.27850 of 2013 --------------------------------------------Dated this the 28[th] day of March, 2014 ## **JUDGMENT** Ext.P8 communication issued by the 5[th] respondent along with a general resolution passed by the sub committee formed by the Governing Committee of the 6[th] respondent Panchayat is under challenge in this writ petition. 2. The petitioner is having 2 hectres 9 Ares 45 sq.metre of property comprised in Re.sy.No.7/3, 7/4, 7/5 and 7/6 in Block No.38 of Pampady Village, Kottayam Taluk. As the property is having an uneven surface, the petitioner wanted to remove earth from the property to divide into housing plots. Therefore, the petitioner made Ext.P3 representation before the first respondent who in turn forwarded the same to the 4[th] respondent for enquiry and report. WPC No.27850/2013 2 3. The petitioner alleges that on the basis of Ext.P7 communication, the 5[th] respondent who is the Secretary of the respondent Panchayat issued Ext.P8 letter which contains certain guidelines regarding the removal of soil. 4. The case of the petitioner is that the respondent Panchayat has no powers or authority whatsoever to formulate any guidelines as stipulated in Ext.P8 with regard to the removal of earth/red soil from the petitioner's property. It is with this background, the petitioner has come up before this Court. 5. The petition is seriously opposed by the 5[th] and 6[th] respondents by a detailed counter. They maintained the stand that the respondent Panchayat has the authority to issue guidelines regarding the removal of soil from the properties within their local limits. According to them, if the petitioner is undertaking any developmental activities, it is bound to take development permit WPC No.27850/2013 3 from the Panchayat. According to them, going by the averments, the petitioner is intending to remove soil by excavation for development of land and this will cause material change regarding the use of the land. Therefore, they would contend that as the activity of the petitioner is well within the purview of 'development of land', the Panchayat has a say in the matter and without the permission of the Panchayat, the petitioner cannot remove the soil. 6. Arguments have been heard. 7. The ownership of the petitioner to the property in question is not in dispute. For the removal of soil for levelling the land, the petitioner approached the first respondent District Collector with Ext.P3 representation. As there was inaction on the part of the first respondent, the petitioner preferred WPC No.19337/2013 which was disposed of directing the first respondent to consider and pass appropriate orders on Ext.P3. In the light of the aforesaid judgment, the first respondent WPC No.27850/2013 4 forwarded Ext.P3 representation to the Village Officer for an enquiry and report. The 4[th] respondent thereafter called a report from the third respondent which was submitted along with a location plan. Ext.P6 is the report and plan. 8. It is stated by the third respondent that for the purpose of dividing the petitioner's property into plots, it is necessary to level the land for which approximately 5650 cubic metres of soil will have to be removed. It was also stated that the area falling within a radius of 50 metres from the centre point of the plot does not have any residential building. It is further stated that on other sides of the plot earmarked for removing soil, the property of the petitioner is situated. 9. The complication arose when the 4[th] respondent sent a communication to the 5[th] respondent, who is the Secretary of the respondent Panchayat, seeking the opinion of the Panchayat Committee. Ext.P7 is the said communication. WPC No.27850/2013 5 Pursuant to Ext.P7, the 5[th] respondent issued Ext.P8 communication along with a general resolution passed by the sub committee formed by the governing committee of the 6[th] respondent Panchayat which says that the respondent Panchayat would be permitting removal of earth within the Panchayat area only in accordance with the general guidelines appended along with the aforesaid communication. It was also stated that the soil so removed would not be permitted to be transported outside the Panchayat limits. There is yet another condition that if requisition for removal of soil is for building construction, the permission to remove the soil on submission of the building site and plan would be only for the particular area required for construction and the same shall not be permitted to be transported beyond the Panchayat limits. 10. The material question to be considered is whether the activities intended to be carried out by WPC No.27850/2013 6 the petitioner in their property would come within the definition of _'land development_ '. 11. Rule 2(ac) of the Panchayat Building Rules 2011 defines ' _development_ '. Rules 4 & 5 deals with the _application_ . Rule 12 deals with _excavation of soil_ . ## 12. The meaning of the term 'development of land' as per Rule 2(ac) is as follows: “ ' _Development of land_ ' means any material change on the use of land other than for agricultural purposes brought about or intended to be brought about by filling up of the land and/or water bodies, changing from the existing/former use of the land, layout of the streets and footpaths, sub-division of land, conversion of wet land and developing parks, play grounds and social amenities of the like but does not include legal partitioning of family property among heirs.” ## 13. Rule-4 which deals with essentiality of permit which reads as follows: (1) No person shall develop or re-develop any parcel of land without first obtaining a development permit for each such development or re-development from the Secretary; ## 14. By the reading of these rules would reveal that the permit is required for development or re- WPC No.27850/2013 7 development of any parcel of land under Sub Rule-1 and for erecting or re-erecting a building under sub rule (2). 15. As already stated Rule 5 prescribes the procedures for obtaining development permit. 16. The learned counsel for the respondent Panchayat would argue that as the soil protection is one of the duties of the respondent Panchayat, the Panchayat has absolute authority to safeguard the soil deposited within its area. 17. It is true that Section 166(1) of the Kerala Panchayat Raj Act provides that it shall be the duty of the Panchayat to meet the requirements of Panchayat area in respect of matters enumerated in the Third schedule. One of the activities made mention of in the Third Schedule is _soil protection_ . 18. This Court in _**Shynymol**_ v _**State of Kerala**_ (2012(3) KLT 646) has observed that it cannot be thought that the Third Schedule is not meant to authorise Panchayat to deal with minor WPC No.27850/2013 8 minerals to the exclusion of authorities created under Minor Mineral Concesson Rules. 19. By the resolution appended along with the impugned communication, it has been resolved by the respondent Panchayat that transportation of soil outside their local limits be prohibited. 20. In the decision cited above, it was held that red soil is a minor mineral and it is within the competence of Revenue Divisional Officer to grant permission for removal of red soil. It was also observed that the removal of red soil by itself will not come within the expression ' _development of land_ '. 21. Here also, the proximate need of the petitioner is to get the land levelled as the same is having an uneven surface. 22. For developmental activities, certainly, the permission of the Panchayat would be required. But, at this point of time, the respondent Panchayat cannot say that the petitioner cannot remove soil WPC No.27850/2013 9 from its property. Therefore, this Court is of the definite view that the petitioner is entitled to succeed. In the result, this writ petition is allowed making it clear that no permission is required from the respondent Panchayat for the removal of soil from the petitioner's property. It is hereby made clear that if the petitioner is intending to make any further development, the same shall be done only with the permission of the respondent Panchayat through a proper application. **Sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE