Shaju v. Alagappa Nagar Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** **WP(C).No. 9291 of 2016 (J) ---------------------------** **PETITIONER(S): -------------** **SHAJU,** **AGED 46 YEARS,S/O.C.U.DEVASSY,CHUNDAKATTIL HOUSE, PUTHUKKAD P.O,MUKUNDAPURAM TALUK,THRISSUR DISTRICT, PIN 680 301.** **BY ADVS.SRI.K.ABDUL JAWAD SMT.V.K.ANJU** **RESPONDENT(S): --------------** **1. ALAGAPPA NAGAR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,ALAGAPPA NAGAR P.O, THRISSUR DISTRICT. 2. THE SECRETARY,ALAGAPPA NAGAR GRAMA PANCHAYATH, ALAGAPPA NAGAR P.O,THRISSUR DISTRICT. ADDL.R3 THE GEOLOGIST, DISTRICT OFFICE OF MINING & GEOLOGY MINI CIVIL STATION,THRISSUR -680 020 ADDL.R4 E.M. SUNNY, AGED 54 YEARS, MANAGING PARTNER, VICTORY GRANITE METALS, MANNAMPETTA, VARAKKARA P.O., THRISSUR DISTRICT PIN 680 325 ADDL.R5 ALPHONSA JAMES, AGED 59 YEARS, PROPRIETOR, KUNDUPARAMBIL METAL PRODUCTS MANNAMPETTA, VARAKKARA P.O, THRISSUR DISTRICT PIN 680 325** **(ADDL. R3 TO R5 ARE IMPLEADED AS PER ORDER DTD 14.3.2016 IN I.A. 3576/2016)** **RADDL.4-R5) BY ADV. SRI.T.M.CHANDRAN RADDL.4-R5) BY ADV. SRI.S.SUJITH R1,R 2 BY ADV. SRI.K.S.BHARATHAN R1,R 2 BY ADV. SMT.S.ANJUSHA R1,R 2 BY ADV. SRI.B.C.MENON ADDL.R3 BY GOVERNMENT PLEADER SRI. MANOJ P KUNJACHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9291 of 2016 (J) ::2:: ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT:P1 TRUE COPY OF THE NOC DATED 16.4.2015** **EXT:P2 TRUE COY OF T HE PROCEEDINGS OF THE 2ND RESPONDENT DATED 18.09.2015** **EXT:P3 TRUE COPY OF THE PROCEEDINGS OF THE GEOLOGIST, THRISSUR DISTRICT,DATED 1.10.2015.** ## **EXT:P4 TRUE COY OF THE ORDER DATED 18.11.2015 ISSUED BY THE 2ND RESPONDENT.** **EXT:P5 TRUE COPY OF THE JUDGMENT DATED 13.01.2016 IN W.P(C) NO.35595/2015 ON THE FILES OF THIS HON'BLE COURT.** **EXT:P6 TRUE COPY OF THE COMMON JUDGMENT DTD.21.1.2016 IN W.A.104 FO 2016 ON THE FILES OF THIS HON'BLE COURT.** **EXT:P7 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 17.02.106.** **EXT:P8 TRUE COPY OF THE APPLICATION FOR BUILDING NUMBER AND OCCUPANCY CERTIFICATE DATED 17.02.2016.** **EXT:P9 TRUE COPY OF THE RECEIPT OF EXT.P8 APPLICATION.** **EXT.P10: TRUE PHOTOGRAPHS SHOWING THE COMPLETION OF THE CONSTRUCTION AND THE PLOT, WHERE IT LOCATES.** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **EXT.R1(a): TRUE COPY OF THE PRELIMINARY REPORT ON 04.03.2016 OF THE ASSISTANT ENGINEER** **EXT.R1(b): TRUE COPY OF THE LETTER DATED 8.3.2016** **EXT.R1(c): TRUE COPY OF the REPORT DATED 18.03.2016 OF THE ASSISTANT ENGINEER** **EXT.R1(d): TRUE COPY OF THE COMMUNICATION DT 22.3.2016** **EXT.R1(e): TRUE COPY OF THE COMMUNICATION DT 26.2.2016 EXT.R1(f): TRUE COPY OF the LETTER DATED 5.3.2016 EXT.R4(a): TRUE COPY OF THE ROUGH SKETCH EXT.R4(b): TRUE COPY OF the LEGAL NOTICE DT 26.3.2015 EXT.R4(c): TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DT 27.6.2015 EXT.R4(d): TRUE COPY OF THE REPOET OF THE GEOLOGIST** **WP(C).No. 9291 of 2016 (J) ::3::** **EXT.R4(e): TRUE COPY OF THE REPORT OF THE HEALTH INSPECTOR DT 9.9.2015** **EXT.R4(f): TRUE COPY of the REPORT DT 27.6.2015 SENT TO THE MUKUNDAPURAM TAHSILDAR** **EXT.R4(g): TRUE COPY OF THE CONSENT DT 18.11.2014 EXT.R4(h): TRUE COPY OF THE BUILDING PERMIT DT 17.12.2014 EXT.R4(i): TRUE COPY of THE CIRCULAR DT 17.3.2015** ## **TRUE COPY** **P.A TO JUDGE** **jma** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 9291 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of June, 2016 ## J U D G M E N T The petitioner is aggrieved with the failure of the 1[st] respondent to number the building constructed by the petitioner in the land owned by three persons jointly; the two others being his siblings. 2. The petitioner had obtained a No Objection Certificate (NOC) from the Panchayath as per Ext.P1 dated 16.04.2015 for construction of a residential building. Since the Panchayath is a Grade II Panchayath, the Kerala Panchayath Building Rules, 2011 have not been made applicable. The requirement is only to get a NOC from the Panchayath. On construction being proceeded with, there was a complaint raised by the additional respondents 4 and 5; that there was illegal mining of sand carried on from the said property, by the petitioner. The WPC.No.9291/2016 : 2 : complainants themselves were carrying on mining operations in the nearby properties. It was also complained of, that if the residential building is allowed to be constructed, near their mining area; the area for the mining and crushing operations carried on by the additional respondents, cannot be expanded. 3. The petitioner was issued with a stop memo as is indicated at Ext.P4 dated 18.11.2015 on which the petitioner approached this Court with a writ petition No. W.P(C) No.35595/2015. This Court in Ext.P5 found that the respondents 4 and 5' who were also made parties therein, could not take up a contention that having established a mining area, if a residential building is erected near to the premises, that would restrict the quarry operators right to expand the area of operation. This Court noticed the judgment in Joseph v. State of Kerala reported in 2003 (3) KLT 296 which had considered the specific complaint raised by the party respondents. This Court held that no quarry owner WPC.No.9291/2016 : 3 : could contend that he having been permitted to occupy and exploit certain properties, others are automatically subjected to a disability for all time to come; to enjoy and use the properties in the nearby area. 4. The petitioner, in the said writ petition also raised a contention that no quarrying permit is necessary for extraction of ordinary earth to put up a residential building whose plinth area is less than 300 Square meters. The said contention was raised since the additional respondents 4 and 5 had approached this Court with writ petitions Nos. 13410/2015 and 13411/2015 contending that the petitioner had carried on unauthorised quarrying operations. The said writ petitions were disposed of by judgment dated 04.08.2015. Therein the Panchayath was directed to conduct an enquiry into the same within a period of one month. The Panchayath contends that the Panchayath had written to the Geologist as per Ext.R1(e) and reply has been received by Ext.R1(f). WPC.No.9291/2016 : 4 : 5. Obviously the enquiry directed in the judgment in W.P(C) No.13410/2015 and 13411/2015 cannot be carried out by the Panchayath, since, an unauthorised quarrying, if carried on could be proceeded with only under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957(for short MMDR only) and Kerala Minor Mineral Concession Rules 2015 (for short KMMC Rules) for which the the additional 3[rd] respondent alone is competent. It is also to be noticed that if the petitioner is found to have removed the earth unauthorisedly, then necessary prosecution would ensue and penalty would also be imposed. In which case, the State would also have a claim for royalty as provided under the enactment. However, that cannot stand in the way of the petitioner's building being numbered. 6. The learned Single Judge who considered the earlier writ petition filed by the petitioner was also of the opinion that the consequences from extraction of ordinary earth without permit WPC.No.9291/2016 : 5 : would only lead to a levy of penalty and royalty under the KMMC Rules, 2015. The construction of the building was hence directed to be continued,however, leaving open the right to proceed against the allegation of illegal quarrying; as directed in WP(C) 13410/2015 and 13411/2015. The Panchayath banks on such reservation made to desist from numbering the building. 7. The Panchayath had also relied on Ext.R1(c) a report keeping the numbering in abeyance for reason of the last paragraph as extracted herein:- ÄÞÎØÞÕÖcJßÈÞÏáU ¨ æµGß¿Jßæa µÞøcJßW ØÞçCÄßµÎÞÏß ÕßÜÏßøáJáçOÞZ çÕØíxí ÕÞGVÉßxí Äá¿Bß ØÞÈßxùß æËØßÜßxàØí ÉâVJàµøßAáµÏᢠÎYÄßGÏáæ¿ µÞøcJßW ¦ÏÄí §¿ßEáÕàÝÞJÕßÇ¢ æºøßçÕÞ¿áµâ¿ß dµÎàµøßAáµçÏÞ ÍßJßæµGß Ø¢øfßAáµÏᢠæºÏîáKÎáùÏíAí ÉâVJàµøâ ÈWµáÕÞX µÝßÏáKÄÞÃí. µáùßMí: ©ÏVKí ÈßWAáK ÎHßæa µÞøc¢ (ÎYÄßGÏáæ¿ µÞøc¢) æ¼Áí¼íæÎaáµ{ßW ²ÝßÕÞAáÕÞX ÈßVçgÖÎáæICßW ¦ÏÄí çÉÞøÞÏíÎÏÞÏß ©KÏßçAIÄßÜï. WPC.No.9291/2016 : 6 : 8. It is pertinent that the Building Rules are not applicable to the Grade II Panchayath which has been declared by Ext.P5 judgment and affirmed in Ext.P6 by the Division Bench. In such circumstance, none of the objections raised need detain the Panchayath from numbering the residential building constructed by the petitioner; on the strength of a NOC. It is also very relevant that with respect to the NOC the learned Single Judge in Ext.P5 judgment extracted the counter filed by the Panchayath in W.P(C) No.13411/2015 wherein it was contented that the NOC was issued after the inspection of the property. As of now, there is no reason why the enquiry contemplated in Ext.R1(f), if at all, should detain the Panchayath from numbering the residential building constructed on the strength of a NOC validly issued by the Panchayath. The objections of the respondents 4 and 5 were already considered and rejected as per Ext.P5 and affirmed in Ext.P6. The enquiry directed in W.P(C) No.13410/2015 and WPC.No.9291/2016 : 7 : 13411/2015 as has already been held to lead to consequences herein above mentioned which the Geologist would be entitled to proceed with, if so advised. The attempt of the respondents 4 and 5 is to somehow stall the numbering of the building, to advance their business interests. When they directly cannot do, is attempted to be done indirectly. The building of the petitioner has to be numbered and it shall be done within a period of two weeks from the date of receipt of a copy of this judgment. The construction would also stand regularised. Writ petition would stand allowed. Parties shall suffer their respective costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge