Santosh S.N. v. Vellanad Grama Panchayath and Geologist, Mining and Geology Department

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **WP(C).No.12002 OF 2020(A)** ## **PETITIONER:** **SANTHOSH S.N., AGED 33 YEARS S/O. SUBRAMANIYAN ACHARY, KRISHNALAYAM, SIMON ROAD, URIYACODE P.O., THIRUVANANTHAPURAM-695 543.** ## **BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS:** **1 VELLANAD GRAMA PANCHAYATH REPRESENTED BY SECRETARY, VELLANAD P.O., THIRUVANANTHAPURAM-695 543.** - **2 GEOLOGIST** **MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004.** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12002 OF 2020(A)** **2** ## **ALEXANDER THOMAS, J. =========================== W.P(C) No.12002 of 2020** **===========================** Dated this the 18[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows : _That the petitioner is the absolute owner of 12cents(4.86Are of property comprising the survey No 349/1-1,Block No 39 at Perukulam Village in Trivandrum. He got permit from the 1st respondent for constructing a building in the above site. For construction of building in petitioner’s property, it is essential to remove ordinary earth from the site. So he applied for the permit of removing ordinary earth having an area 373.5 mtr from the land before the 1st respondent. The 1st respondent had issued a notice stating that in case of constructions/ land developments no permit is needed for any earth work excavation to a depth of 1.2 meter under rule 10 Kerala Panchayath Building Rule 2019. The 2nd respondent replied that the application is incomplete and the 2nd respondent directed petitioner to cure the above defect within 30 days. It is submitted that as per the Exhibit P2 the 1[st] respondent is stating that in case of constructions/ land developments no permit is needed for any earth work_ **WP(C).No.12002 OF 2020(A)** **3** _excavation to a depth of 1.2 meter under rule 10 Kerala Panchayath Building Rule 2019. But in section 14 [2] of Kerala Mines Concession Rules 2015 states that notwithstanding anything contained in sub rule [1] no quarrying permit is required for extraction of ordinary earth in connection with construction of residential building including flats or commercial building having a plinth area of 300 square meters if owner of the land had obtained a prior valid permit for construction of such building from local Self Government authorities concerned provided that in case where transportation of ordinary earth is required the owner of land shall obtain mineral transit passes for quantity to be transported under Kerala Mineral [Prevention of illegal Mining, Storage and Transportation] Rules 2015. The petitioner have to extract the ordinary earth of 373.5Mtr from his property and he has to transport it to the property belonged to his father. So the petitioner have to satisfy all the condition enumerated in section 14 of Kerala Mines Concession Rules 2015 for getting permit of removing the ordinary earth from his property and the 2nd respondent categorically stated that for getting permission for removing soil from the land having a plinth area more than 300 square meters the permit from Land Development is required under Kerala Minor Mineral Concession rule 2017. So it is clear that there is conflict with Rule 10 Kerala Panchayath Building Rule 2019 and under_ **WP(C).No.12002 OF 2020(A)** **4** _Kerala Minor Mineral Concession Rule, 2017. The Kerala Minor Mineral Concession Rule 2017 is central act and the Kerala Panchayath Building Rule is State Enactment. Therefore, if any conflict between two enactment the Kerala Minor Mineral Concession Rule 2017. So it is clear that due to the conflicting arguments the petitioner is not able to start his construction process. So Ext.P2 notice issued by the 2nd respondent is illegal and unsustainable in the eye of law._ In the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil). 2. Heard Sri.M.R.Sarin Panicker, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the 2[nd] respondent. In the nature of the orders proposed to be passed in this Writ Petition, notice to the 1[st] respondent (Vellanad Grama Panchayath) will stand dispensed with. 3. According to the petitioner, he has secured Ext.P-1 building permit dated 12.11.2019 issued by the 1[st] respondent-Vellanad Grama Panchayath for constructing a building having an extent of 293.3 square metre. That for carrying out construction in pursuance of Ext.P-1 building permit, the petitioner has to do excavation especially for laying the foundation work for the construction. Therefore, he sought for necessary permit in that regard from the 1[st] respondent-Panchayath, who has issued Ext.P-2 letter dated 17.01.2020 stating that from the details of the **WP(C).No.12002 OF 2020(A)** **5** construction, it is seen that the depth of the excavation is only upto 1.2 Metre and therefore, permit in terms of Rule 10 of the Kerala Panchayath Building Rules, 2019 is not necessary, inasmuch as the said Rule requires permit only if the depth of excavation is 1.5 Metre or both. It appears that the petitioner was then under the impression that Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 mandates that if the quantity of the soil to be excavated for doing the construction work exceeds 300 Cubic Metre, then he has to get necessary quarrying permit from the 2[nd] respondent-District Geologist in terms of the provisions contained in the Kerala Minor Mineral Concession Rules. That on this basis, the petitioner approached the 2[nd] respondent-District Geologist seeking for issuance of quarrying permit. In the application submitted by the petitioner and in the writ petition, the petitioner proceeds on the basis as if the quantity of the excavation of the soil is 373.5 Square Metre, etc. Obviously, the said unit of square metre for describing quantitative volume of the excavated soil is a mistake and it could only refer to Cubic Metre. Further it appears that the 2[nd] respondent-District Geologist was under the impression that the plea of the petitioner is that the area of the construction is 373.5 Square Metre and presumably on that basis Ext.P-4 letter dated 18.02.2020 was issued by the 2[nd] respondent-District Geologist instructing the petitioner to secure land development permit from the local **WP(C).No.12002 OF 2020(A)** **6** body and certain other documents like possession certificate, approved land development plan issued by the Engineer of the Local Self Government Department, etc. From a reading of Ext.P-1 building permit, it is seen that the area of the construction of the building is only 293.3 Square Metre. 4. Therefore, even as per the unamended provisions of the Kerala Minor Mineral Concession Rules, the requirement of quarrying permit for excavation in relation to a construction activity comes into play only if the extent of the area of the building construction is 300 Square Metre or above. If as a matter of fact, the building construction area is only 293.3 Square Metre as shown in Ext.P-1, then there is no necessity to get quarrying permit in terms of Rule 14(2). It is quite possible that the petitioner has confused the quantity of the soil to be excavated with the area of the building construction. Be that as it may, it is not necessary for this Court to get into that vexed issue for the simple reason that now on or with effect from 12.06.2020, the provisions of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015 has been amended as per S.R.O.No.391/2020 issued in terms of G.O.(P)No.16/2020/ID published in the Kerala Gazette Extraordinary dated 12.06.2020. The amended Rules are made effective prospectively from 12.06.2020. Sub Rule 2 of Rule 14 of the Kerala Minor Mineral Concession Rules has been now amended to read **WP(C).No.12002 OF 2020(A)** **7** as follows : “(2) Notwithstanding anything contained in sub-rule (1), no quarrying permit is required under these rules for extraction of ordinary earth in connection with the construction and digging of foundation for the buildings not requiring environmental clearance under the Environment (Protection) Act, 1986 (Central Act 29 of 1986), if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned or if the owner of the land is entitled to construct such building as per the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (16 of 2019)” 5. Therefore, from a reading of the amended provisions of sub-rule (2) of Rule 14, it can be seen that no quarrying permit is required under these Rules for extraction of ordinary earth in connection with the construction and digging of the foundation of the building, which does not require environmental clearance under the Environment Protection Act, if the owner of the land has obtained a prior valid permit for construction of such building from the Local Self Government body concerned or if the owner of the land is entitled to construct such a building as per the provisions of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, etc. It is common ground that the requirement for environmental clearance comes into play only if the extent of the building construction exceeds the threshold limit of 20,000 square metre. Therefore, in the light of these amended provisions for making building construction having an area which below the threshold limit of 20,000 square metre, no quarrying permit or environmental clearance is required. **WP(C).No.12002 OF 2020(A)** **8** 6. However, Sri.K.J.Manu Raj, learned Government Pleader submits that there could be issues that in cases as the instant one, not only building permit but also development permit in terms of the provisions of the applicable building rules may be necessary. From a reading of the pleadings and materials on record, it is seen that the subject property in which the construction as per Ext.P-1 building permit is sought to be made is having an extent of only 12 cents. Whether this Court need not enter into the vexed controversy as to whether development permit is required for the extent of the land in respect of which Ext.P-1 building permit has been granted. That is not the issue raised in this matter and it is a matter that is to be considered by the 1[st] respondent-Vellanad Grama Panchayath. 7. The learned counsel for the petitioner would point out that this Court has held as decisions as in _**Nafeesa v. Chavakkad Municipality**_ [2018 (3) KLT 1] that development permit is not necessary where the subject property in which building construction is sought is only is only in a small extent of land and it comes into play only in respect of large extent of land in which construction is sought to be made and it requires development of the plot as envisaged in the applicable statutory building rules. These are all not matters now to be decided by this Court and these **WP(C).No.12002 OF 2020(A)** **9** aspects of the matter may also be borne in mind by the 1[st] respondentSecretary of the Vellanad Grama Panchayath. 8. The learned counsel for the petitioner would point out that from a reading of Ext.P-2 letter dated 17.01.2020 issued by the 1[st] respondent-Grama Panchayath, it is stated that the depth of the excavation that is involved in this case is 1.2 Metre and therefore, even if permission under Rule 10 of the Kerala Panchayath Building Rules, 2019 may not be necessary, the petitioner intends to take away the said excavated earth/soil from his property to some other property by using lorry, etc., and that transit pass may be necessary to be issued by the 2[nd] respondent-District Geologist, etc. Such a factual scenario has not now arisen for consideration before this Court going by the nature of the cause of action projected in this writ petition. It is for the petitioner to get the requisite factual details in that regard, after ascertaining from the 1[st] respondent-Secretary of the Vellanad Grama Panchayath and as also the matters stated in Ext.P-2 and then may make necessary application before the 2[nd] respondent for grant of such transit pass, which may then be considered by the 2[nd] respondentDistrict Geologist after inspection of the subject property and further action on the request for transit pass may be rendered by him in accordance with the provisions contained in the Kerala Minerals (Prevention of Illegal Mining and Storage) Rules, 2015, etc. Those are all matters which are to be **WP(C).No.12002 OF 2020(A)** **10** considered as and when such issues actually arise for such determination. Going by the nature of the facts and circumstances of the case, no other order or directions in this case is called for. It is for the petitioner and the respondents to proceed further in the matter, in accordance with law. The petitioner will produce certified copies of this judgment along with the copy of the memorandum of this W.P(C) with all the exhibits before both the respondents, for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd **WP(C).No.12002 OF 2020(A)** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PERMIT ISSUED BY THE IST RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF THE LETTER NO.A3/7535/2019 ISSUED BY THE IST RESPONDENT DATED 4.2.2020 TO THE PETITIONER.** **EXHIBIT P3 THE TRUE COPY OF THE PROPOSED LAND DEVELOPMENT PLAN OF THE PETITIONERS PROPERTY.** **EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO PETITIONER ON 18.2.2020.**