Sinaj Michael v. Njeezhoor Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021/2ND BHADRA, 1943 WP(C) NO. 8451 OF 2021** **PETITIONER:** **SINAJ MICHAEL, AGED 45 YEARS, S/O.M.K. MICHAEL, MALIAKAL HOUSE, NEENDOOR P.O., ONAMTHURUTHU VILLAGE, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER M.K. MICHAEL, AGED 69 YEARS, S/O. KORATH KURUVILLA, MALIAKAL HOUSE, ONAMTHURUTHU VILLAGE, NEENDOOR P.O., KOTTAYAM DISTRICT.** **BY ADV P.M.ZIRAJ** ## **RESPONDENTS:** **1 NJEEZHOOR GRAMA PANCHAYATH, NJEEZHOOR P.O., KOTTAYAM DISTRICT, PIN686 612, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, NJEEZHOOR GRAMA PANCHAYATH, NJEEZHOOR P.O., KOTTAYAM DISTRICT 686 612. 3 THE SENIOR GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, KOTTAYAM DISTRICT 686 612.** **BY ADVS. R1-R2 SHRI.TOM JOSE, SC R1-R2 SUNNY JOSEPH R1-R2 SHIBU JOSEPH R3 GOVERNMENT PLEADER SRI.MANU RAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.8451/2021 : 2 : **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 24[th] day of August, 2021**_ The petitioner who wants to construct residential villas in his property at Njeezhoor Village, has filed this writ petition seeking to set aside Ext.P13 order of the 2[nd] respondent and to direct the 2[nd] respondent to issue Development Permit to the petitioner. 2. The petitioner states that he purchased property in Survey Nos.281/1, 281/1-1 and 283-7 of Njeezhoor Village in Vaikom Taluk from Mr.James Kunnassery who was issued with Ext.P1 Building Permit. The Building Permit was renewed from time to time and is in the name of the petitioner now and is valid up to 23.01.2023. To construct villas, the petitioner need to remove ordinary earth for which the petitioner require Transit Passes issued under the Kerala Minor Mineral Concession Rules (KMMC Rules). WP(C) No.8451/2021 : 3 : 3. The petitioner approached the 3[rd] respondent for issuance of Transit Passes, which were not issued. The petitioner filed WP(C) No.15461/2015 and this Court, as per Ext.P3 judgment, directed the 3[rd] respondent to issue Mineral Transit Passes on being satisfied with the genuineness of the claim of the petitioner based on the Building Permit without insisting for NOC or Mining Permit. The 3[rd] respondent did not issue Transit Passes on the ground that this Court as per judgment in _**Annamma Poulose v. District Collector, Kollam and others** [2017 (1) KLT 143]_ struck down Rule 14(2) of the KMMC Rules. In the meanwhile, the Ministry of Forest, Environment and Climate Change issued notifications dispensing with the requirement of Environmental Clearance Certificate (EC) to extract ordinary earth for digging foundation of buildings. 4. The petitioner hence filed WP(C) No.13288/2017. By Ext.P4 judgment, this Court directed the 3[rd] respondent to consider the application of the petitioner and pass orders. In the meanwhile, there was an amendment to Rule 14 of KMMC WP(C) No.8451/2021 : 4 : Rules which mandated a Land Development Permit issued by the Local Self Government Institutions for issuing Transit Passes. 5. The petitioner would submit that in view of Ext.P5 GO, increasing the exemption limit on Mining Permits from 300 Sq. M. to 20,000 Sq. M. a Development Permit is required for constructing Villas. Hence, the petitioner submitted Ext.P6 application to the 1[st] respondent for issuing Development Permit. The Panchayat Committee held on 29.07.2020 assumed that the petitioner intends to remove ordinary earth from property having an extent of 15 Acres and hence decided not to grant permission. The decision was communicated to the petitioner as per Ext.P8. 6. Subsequently, the Panchayat Committee held on 27.10.2020 decided to issue Development Permit to remove ordinary earth from the foundation of the building without causing damage to environment. The said decision was communicated to the petitioner as per Ext.P9. The District Town Planner as per Ext.P11 issued proceedings dated WP(C) No.8451/2021 : 5 : 20.01.2021 granting permission to the petitioner to plot his property for 12 villas and make constructions, on conditions. On 19.02 2021, the 2[nd] respondent-Secretary issued Ext.P13 order directing to produce site plan and to include drainage in the plot. The petitioner was required to resubmit the plan for construction of foundations of villas without causing damage to the environment. 7. The petitioner would submit that the condition as to submission of fresh plan insisted by the 2[nd] respondent is illegal. When the plan already submitted by the petitioner is approved by all authorities, the 2[nd] respondent cannot require the petitioner to submit a fresh plan and go through the entire process of approval again. The respondents are therefore compellable to abstain from insisting on the said condition and to issue Development Permit to the petitioner. 8. Respondents 1 and 2 filed counter affidavit and contested the writ petition. The respondents submitted that as per the report of the Assistant Engineer the petitioner is seeking to remove 22,990.79 cubic metre of soil by earth WP(C) No.8451/2021 : 6 : cutting and the depth of the cutting varies from 1.34 m. to 8.37 m. The Report cautioned that when the depth of cutting increases it will adversely impact environment. It will create perennial water scarcity and destroy bio-diversity. And advised to get study report from other departments. 9. Respondents stated that considering the complaint of Sri. C.K. Sasi and others and probable objections by the local residents, probable reports in news papers and protests in several other places, it was decided to place the issue before Panchayat Committee. The committee decided not to give permission for removal of soil in large quantities. The petitioner submitted application stating that he intends to remove soil only from 2 Acres and 12 cents of land out of the 1.5620 Hectares. The committee deliberated and informed the petitioner that it has no objection in removing the soil which is necessary for laying foundation for the villas without affecting/having adverse impact on environment. 10. The respondents pointed out that as per report dared 13.05.2020 of the Assistant Engineer, LSGD, WP(C) No.8451/2021 : 7 : Njeezhoor, the site plan is defective for lack of details of steps for protection of the site as per Rule 10(2) and Rule 10(3) of the KPBR. The site plan should invariably contain boundaries of the property as fixed by the Surveyor. Drainage facility for rain water within the plot should be disclosed in the site plan. Land development plan by cutting earth in 8.37 metres depth will affect environmental safety and destroy biodiversity, contended respondents 1 and 2. 11. Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader representing the 3[rd] respondent. 12. Admittedly, the petitioner holds Building Permit for construction of 2206.78 M[2] , which is valid up to 23.01.2023. As the construction is of 12 villas, the land has to be developed and the petitioner requires transit passes, under KMMC Rules for removal of earth. The petitioner requires Development Permit issued by the Panchayat to obtain Transit Passes, in view of the First Proviso to Rule 14 of the KMMC Rules. In cases where levelling of land and extraction of WP(C) No.8451/2021 : 8 : ordinary earth is involved, the application for Transit Passes shall be made along with building permit accompanied by an approved building plan which shall contain the area to be developed and the quantity of ordinary earth to be extracted for such construction. 13. In the case of the petitioner, he holds a building permit, which is valid up to 23.01.2023, as evidenced by Ext.P2. Respondents 1 and 2 have no case that the petitioner does not hold Possession and Enjoyment Certificate in respect of the land. For obtaining Development Permit, the petitioner should also submit an approved building plan before the Geologist. The petitioner has applied for Development Permit as per Ext.P6 application to the respondents 1 and 2. The respondents initially rejected the application as per Ext.P7 on the ground that removal of earth from the land would entail environmental problems. 14. The petitioner thereupon submitted Ext.P8 letter clarifying that he does not intend to remove earth from 15 Acres and that removal of earth would be required only from 2 WP(C) No.8451/2021 : 9 : Acres and 12 cents. Thereupon, the Secretary to Panchayat informed the Chief Town Planner that there is no objection in construction of villas removing earth proportionately. The Panchayat Committee as per Ext.P9 dated 27.10.2020, resolved to communicate to the District Town Planning authorities that the Panchayat has no objection in petitioner constructing villas without adversely affecting the Environment. However, the Secretary to Panchayat issued Ext.P11 letter dated 25.11.2020 to the Chief Town Planner to the effect that Development Permit will be issued only after obtaining the expert opinion of the Environment Department. 15. Based on Ext.P11 letter of the Secretary, the District Town Planner passed Ext.P12 order dated 20.01.2021 approving Plot Sub Division and Lay Out, subject to eight conditions mentioned therein. The petitioner states that Condition Nos.4 and 6 therein are unsustainable. Condition No.4 is that the Secretary should ensure that due to division of plots there is no environmental pollution issues. Condition No.6 is that since the Division of plots requires cutting and WP(C) No.8451/2021 : 10 : filling, the Secretary should ensure that cutting and filling does not result in environmental issues. 16. Based on Ext.P12, the 2[nd] respondent-Secretary issued Ext.P13 stating that the petitioner shall abide by the conditions in Ext.P11 and a fresh application should be submitted online, along with a Site Plan approved by the Taluk Surveyor; that facilities for drainage of storm water should be indicated in the Site Plan and a fresh plan should be submitted indicating the space required for foundation of each Villa without affecting the environment. The petitioner is aggrieved only by the Condition No.3 in Ext.P13, which requires that a fresh plan should be submitted. 17. Condition No.3 of Ext.P13 is that the petitioner shall resubmit the development plan not adversely affecting the environment, in respect of foundations of each villa. The said requirement does not have the support of any rule either under the Kerala Panchayat Building Rules or KMMC Rules. If the petitioner has submitted plans, certificates and documents as required under the Rule 10, respondents 1 and 2 are WP(C) No.8451/2021 : 11 : bound to process the application. 18. As far as the concern of the respondents on adverse environmental impact is concerned, it may be noted that the petitioner’s project does not require EC. Under Rule 10 of the KMBR, if any objection regarding the construction is received by the Secretary, the Secretary can refer the matter to the Technical Expert Committee under Rule 10(8)(i) and follow the prescribed procedure. In such circumstances, this Court is of the view that respondents 1 and 2 cannot withhold issuance of Development Permit for compliance of condition No.3 in Ext.P13. In the circumstances, the writ petition is allowed. The Condition No.3 in Ext.P13 is set aside. The 2[nd] respondent is directed to consider Ext.P14 Plan submitted by the petitioner and issue Development Permit to the petitioner, within a period of six weeks. Sd/- **N. NAGARESH, JUDGE** aks/17.08.2021 WP(C) No.8451/2021 : 12 : ## **APPENDIX OF WP(C) 8451/2021** **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 24.1.2014 ISSUED BY THE SECOND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE RENEWED BUILDING PERMIT DATED 22.6.2020 ISEUD BY THE SECOND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 26.5.2015 IN WPC NO. 15461/2015.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 11.4.2017 IN WPC NO. 13288/2017.** **EXHIBIT P5 TRUE COPY OF THE G.O. (P) NO. 16/2020/ID DATED 12.06.2020. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 9.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 10.8.2020 ISSUED BY THE SECOND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION WITHOUT DATE SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT FOR CONSIDERATION OF HIS APPLICATION BY THE PANCHAYATH COMMITTEE.** - **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT DATED 5.11.2020 ALONG WITH COPY OF DECISION NO.14/1 IN THE PANCHAYATH COMMITTEE MEETING HELD ON 27.10.2020.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 25.11.2020 ISSUED BY THE DISTRICT TOWN PLANNER TO THE SECOND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 5.1.2201 ISSUED BY THE SECOND RESPONDENT TO CHIEF TOWN PLANNER, KOTTAYAM.** - **EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 21.1.2201 ISSUED BY THE DISTRICT TOWN PLANNER, KOTTAYAM.** WP(C) No.8451/2021 : 13 : **EXHIBIT P13** **TRUE COPY OF ORDER DATED 19.22201 ISSUED BY THE SECOND RESPONDENT.** **EXHIBIT P14 TRUE COPY OF THE APPROVED PLAN WITH ENDORSEMENT OF THE ENGINEER OF LOCAL SELF GOVERNMENT DEPARTMENT.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R2(a) TRUE COPY OF LETTER BEARING NO.TCPKTM/149/2020C DATED 12.03.2020 ISSUED FROM KOTTAYAM DISTRICT TOWN PLANNING OFFICE TO THE PETITIONER EXHIBIT R2(b) TRUE COPY OF REPORT DATED 13.05.2020 OF THE ASSISTANT ENGINEER, LSGD, NJEEZHOOR. EXHIBIT R2(c) TRUE COPY OF REPORT DATED 12.02.2021 OF THE ASSISTANT ENGINEER.** ncd