Shaju v. Alagappanagar Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 ## WP(C).No. 35595 of 2015 (Y) ---------------------------- PETITIONER(S): ----------------- SHAJU, AGED 46 YEARS S/O.U.C.DEVASSY, CHUNDAKATTIL HOUSE, PUTHUKKAD PO MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 301. BY ADVS.SRI.K.ABDUL JAWAD SMT.V.K.ANJU SMT.P.M.CIGY SRI.NEBU P.JOSEPH RESPONDENT(S): - ------------------- 1. ALAGAPPANAGAR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, ALAGAPPANAGAR PO THRISUR DISTRICT 680 302. 2. THE SECRETARY ALAGAPPANAGAR GRAMA PANCHAYATH, ALAGAPPANAGAR PO THRISSUR DISTRICT 680 302. 3. E.M.SUNNY, AGED 54 YEARS, MANAGING PARTNER, VICTORY GRANITE METALS, MANNAMPETTA VARAKKARA PO, THRISSUR DISTRICT, PIN 680- 325. 4. ALPHONSA JAMES, AGED 59 YEARS PROPRIETOR, KUNDUPARAMBIL METAL PRODUCTS, MANNAMPETTA, VARAKKARA P.O., THRISSUR DISTRICT, PIN - 680 325. R1-R2 BY ADV. SRI.K.S.BHARATHAN R1-R2 BY ADV. SMT.S.ANJUSHA R1-R2 BY ADV. SRI.B.C.MENON R3,R4 BY ADV. SRI.T.M.CHANDRAN R3,R4 BY ADV. SRI.S.SUJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON 13-01-2016, DELIVERED THE FOLLOWING: WP(C).No. 35595 of 2015 (Y) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- P1- TRUE COPY OF THE RESIDENCE CERTIFICATE DATED 30/5/2015 ISSUED BY THE SECRETARY OF PUTHUKKAD GRAMA PANCHAYAT - P2- TRUE COPY OF THE NO OBJECTION CERTIFICATE (NOC) DATED 16.4.2015 ISSUED BY THE 2ND RESPONDENT - P3- TRUE COPY OF THE COPY OF THE APPROVED PLAN APPORVED BY THE 2ND RESPONDENT - P4- TRUE COPY OF THE COUNTER AFFIDAVIT IN WP(C) 13411/2015 FILED BY THE 2ND RESPONDENT P5- TRUE COPY OF THE JUDGMENT DATED 4.8.2015 IN WP(C) NO.13410/2015 ON THE FILE OF THIS HONOURABLE COURT P6- TRUE COPY OF THE JUDGMENT DATED 4.8.2015 IN WP(C) NO.13411/2015 ON THE FILE OF THIS HONOURABLE COURT - P7- TRUE COPY OF THE PROCEEDINGS IN NO.A2-2946/15 OF THE 2ND RESPONDENT, DATED 18.9.2015 P8- TRUE COPY OF THE PROCEEDINGS OF THE GEOLOGIST, THRISSUR DISTRICT, DATED 1.10.2015 P9- TRUE COPY OF THE ORDER DATED 11.11.2015 IN WP(C) NO.33982/2015 PASSED BY THIS HONOURABLE COURT P10- TRUE COPY OF THE ORDER NO.A2-3030/15 DATED 18.11.2015 ISSUED BY THE 2ND RESPONDENT P11-TRUE COPY OF THE QUERY DATED 2/5/2015 UNDER R.T.I.ACT, SUBMITTED BY THE C.D.JOSHY. P12- TRUE COPY OF THE REPLY DATED 30.5.2015 BY THE SECOND RESPONDENT. P13-TRUE COPY OF THE EXPERT OPINION OF A VAASTHU EXPERT. P14-TRUE COPY OF THE REPORT DATED 8.10.2015 BY THE HEALTH INSPECTOR. P15-TRUE COPY OF THE REPLY DATED 31.10.2015 STATING THAT THE PETITIONER DOES NOT HAVE ANY RESIDENTIAL HOUSE IN PUTHUKKADU PANCHAYAT. - P16-TRUE COPY OF THE COMMISSION REPORT WITH ROUGH SKETCH PREPARED BY THE ADVOCATE COMMISSIONER. WP(C) NO.35595/2015 : 2 : RESPONDENT(S)' EXHIBITS : ------------------------------ EXT.R2(a) TRUE COPY OF THE LETTER ISSUED BY THE GEOLOGIST, THRISSUR DATED 6.10.2015 EXT.R2(b) TRUE COPY OF THE LETTER ISSUED BY THE HEALTH INSPECTOR PRIMARY HEALTH CENTRE, ALAGAPPA NAGAR DATED 9.9.2015. //TRUE COPY// P.S. TO JUDGE. **==> picture [162 x 12] intentionally omitted <==** --------------------W.P (C) No.35595 of 2015 --------------------Dated this the 13[th] day of January, 2016 **==> picture [136 x 15] intentionally omitted <==** The construction of a residential building by the petitioner on the basis of Ext.P2 no objection certificate issued by the first respondent Grama Panchayat is objected to. It is beyond dispute that the said Panchayat falls in category II for which no permit is necessary for a residential building under Rule 133 of the Kerala Panchayat Building Rules, 2011. The objections are mainly two fold and they are as under:- - i) The residential building put up by the petitioner would be an impediment for an M- sand unit proposed to be set up by the fourth respondent in the adjacent property. - ii) The petitioner has removed ordinary earth preceding the construction of the residential house without obtaining permit under the Kerala Minor Mineral Concession Rules, 2015. 2. Ordinarily we see occupants of residential houses objecting to the setting up of industrial units within the prohibited distance whereas the position W.P(C) No.35595 of 2015 2 here is exactly the opposite. The possible objection in the fourth respondent setting up an M-sand unit later cannot affect the right if any of the petitioner to construct a residential house. This Court in Joseph v. State of Kerala [2003 (3) KLT 296] had occasion to observe as follows:- “When a dangerous and offensive trade is permitted to start functioning, one of the pre-condition is that there should not be any residential building within a prescribed distance. But when later on an establishment, house or institution authorised and permissible to be put up comes to existence, it may not be possible for the quarry owner to contend that he having been permitted to occupy and exploit his properties, others are automatically subjected to a disability for all time to come.” I therefore overrule the objection of respondents 3 and 4 on this count leaving open the entitlement of the fourth respondent to set up an M-sand unit to be considered in W.P.(C) No.33982/2015 pending. 3. The petitioner contends that no quarrying permit is necessary for extraction of ordinary earth to put up a residential building whose plinth area is less W.P(C) No.35595 of 2015 3 than 300 square meters. Reliance is placed on Rule 14 (2) of the Kerala Minor Mineral Concession Rules, 2015 and it is pointed out that the plinth area in the instant case is less than 100 square meters. Respondents 3 and 4 on the other hand contend that a larger area of ordinary earth has been extracted by the petitioner for which an enquiry by the first respondent Panchayat is pending. The Geologist as well as the Panchayat were directed to consider the objections filed by respondents 3 and 4 in this regard in W.P.(C) Nos.13410/2015 and 13411/2015. The Panchayat has called for a report from the Geologist in Ext.P7 order and the Geologist has called for a report from the Village Officer in Ext.P8 order. The parties are at variance as to when the ordinary earth was extracted and the petitioner is prepared to face the consequences for statutory violations if any . 4. The consequences for not obtaining quarrying permit for extraction of ordinary earth are perhaps to pay penalty in addition to royalty under the Kerala Minor Mineral Concession Rules, 2015. Should the ongoing construction of the residential house of W.P(C) No.35595 of 2015 4 the petitioner be halted pending finalisation of the proceedings is the short question. The construction of the building was not directed to be put on hold while disposing of W.P.(C) Nos.13410/2015 and 13411/2015 requiring the objections to be considered. The Panchayat had itself supported Ext.P2 no objection certificate in the counter affidavit filed to W.P.(C) No.13411/2015 which is extracted hereunder:- “The allegation in the writ petition that Ext.P4 was granted without making any enquiry and without inspecting the property is totally incorrect and denied. The Overseer of the third respondent Panchayat had inspected the property and submitted a report. Ext.P4 has been validly issued and the same in conformity with the Kerala Panchayat Building Rules, 2011.” 5. The Panchayat has called for a report from the Geologist who in turn has called for a report from the Village Officer all of which appears to me as a dilly-dallying tactics. The allegation is that respondents 3 and 4 are so powerful that they are in a position to influence the Village officer as well as the Health Inspector to turn against the petitioner. I W.P(C) No.35595 of 2015 5 do feel that there is no necessity for a blanket stay of construction of the residential house and Ext.P10 stop memo to that effect is vitiated by mala fides. This Court has recently in Secretary, Aruvikara Grama Panchayat v. Anandakumar [2015 (1) KHC 720] observed as follows:- “There is no invariable principle that a show cause notice should not be a subject matter of judicial adjudication under any circumstances. Courts have held time and again that when the notice (1) suffers from the vice of ultra vires (2) is a fait accomply or premeditated or (3) is a product of malice or mala fides, it is justiciable without the party going through the procedural rigmarole.” 6. Ofcourse the enquiry pursuant to the directions in W.P.(C) Nos.13410/2015 and 13411/2015 has to continue and the proceedings taken to a logical end within a time frame. Interest of justice would be met by permitting the petitioner to go ahead with the construction subject to the enquiry without any equities attached. The residential building constructed by the petitioner is liable to be pulled down or assigned a door number dependent on the outcome 6 W.P(C) No.35595 of 2015 of the enquiry aforestated. Ext. P10 memo is quashed and the Writ Petition is allowed. No costs. Sd/V.CHITAMBARESH, Judge. nj.