Valsala v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.4196 OF 2020(Y)** ## **PETITIONER:** **VALSALA, UTHRAM VEEDU, KURAMPALA, PANDALAM PO, PATHANAMTHITTA - 689 501. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**| ||**GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001**| |**2**|**DIRECTOR OF PANCHAYATH,**| ||**PANCHAYATH DIRECTORATE,**| ||**THIRUVANANTHAPURAM - 695 033.**| |**3**|**PANDALAM THEKKEKARA GRAMA PANCHAYATH,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**PANDALAM THEKKEKARA GRAMA PANCHAYATH,**| ||**THATTAYIL P.O., PATHANAMTHITTA - 691 525.**| |**4**|**SECRETARY,**| ||**PANDALAM THEKKEKARA GRAMA PANCHAYATH,**| ||**THATTAYIL P.O., PATHANAMTHITTA - 691 525.**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 4196 of 2020 --------------------------------------Dated this the 22[nd] day of July, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: _The petitioner is the owner of 10.53 Ares of land in Re.Sy No.445/29 of Pandalam Thekkekara Village. The petitioner got building permit on 25.6.2018. The petitioner submitted application for development permit on 11.11.2018. Thereafter as directed by the 4[th] respondent revised application was submitted on 10.4.2019. This is the 3[rd] writ petition excluding the contempt case filed by the petitioner for getting the development permit. The petitioner filed WP(C) No.2014/2019 and this court issued direction to Secretary to pass orders on application. Vide Ext.P-6, the 4[th] respondent refused to issue permit and this Court set aside the Ext.P-6 vide Ext.P-7 judgment. Now the 4[th] respondent issued a letter to the petitioner and directed to obtain permission from the Revenue Divisional Officer and Geologist in order to get development permit. The petitioner would essentially contend that permission of revenue officials like the RDO or the officials of the Department of Mining and Geology like the District Geologist is not required for grant of development permit as per the provisions of the Kerala Panchayat_ W.P. © No. 4196 of 2020 ..3.. _Building Rules framed under the Panchayat Raj Act._ It is in the light of the abovesaid averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“_ - _i. Issue a writ of certiorari or any other appropriate writ order of direction, call for the records leading to Ext.P8 dated 16.12.2019 of the 4[th] respondent and set aside the same holding that the same is illegalagainst the provisions of the Kerala Panchayath Raj Act and Building Rules._ - _ii. To declare that, no permission from the Revenue Divisional Officer or Geologist is required for issuance of Development permit as per Kerala Panchayath Raj Act and Kerala Panchayath Building Rules._ - _iii. To declare that the petitioner is entitled for development and building permit as per Rule 5 of Kerala Panchayath Raj Building Rules, since, petitioner produced Application along with all required documents._ - _iv. To declare that the petitioners are entitled for deemed development and building permit as per Rule 16(2) of Kerala Panchayath Raj Building Rules, since, the prescribed period was over after submission of Ext.P4 Application and required documents. And_ - _v. Issue such other appropriate writ, order or directions as this Hon'ble Court deem fit and proper, in the circumstances of the case.”_ 2. Heard Sri.K.K.Unni, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 & 2. Though notices on respondents 3 & 4 (Pandalam Thekkekara Grama Panchayat) have been duly served, they have not entered appearance. 3. From the pleadings and materials on record, it is seen that the petitioner has already secured Ext.P-1 building permit dated W.P. © No. 4196 of 2020 ..4.. 25.6.2018 issued by the 4[th] respondent Secretary, Pandalam Thekkekara Grama Panchayat for constructing a residential building having total extent of 71.26 sq.m. in his property having an extent of 10.53 ares. These aspects are clear from Ext.P-1 building permit. Later, when the petitioner was advised by his engineering/architectural consultant that for laying foundation work of said building having an extent of 71.26 sq.m. earth excavation will have to be carried out for a quantity upto 770.37 m[3] and since the said excavated soil will have to be transported away from the excavated site, the petitioner or the transporter concerned would require transit pass to be issued by the District Geologist concerned in terms of the provisions contained in the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, in view of the requirements contained in proviso to Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 (KMMC Rules). For that purpose the petitioner has submitted Ext.P-4 application for grant of development permit before the 4[th] respondent Secretary concerned. Initially the petitioner had submitted an application for development permit on 11.11.2018, and thereafter as directed by the 4[th] respondent, he had submitted a revised application dated 10.4.2019. Since no W.P. © No. 4196 of 2020 ..5.. action was coming forth from the 4[th] respondent, the petitioner was constrained to approach this Court by filing WP©.No.2014/2019 in which this Court had passed Ext.P-3 judgment dated 25.2.2019 whereby the respondent Secretary of Panchayat was directed to consider and pass orders on the said application for development permit in accordance with the provisions contained in Kerala Panchayat Building Rules. It appears that by Ext.P-6 order dated 12.7.2019, the 4[th] respondent has refused to issue development permit in favour of the petitioner. Thereupon, the petitioner was again constrained to approach this Court by filing WP© No. 29442/2019 in which this Court had passed Ext.P-7 judgment on 19.11.2019 whereby this Court had set aside the impugned Ext.P-6 rejection order, and had remitted the matter to the 4[th] respondent for passing orders afresh. Since the directions in Ext.P-7 judgment was not been complied with, the petitioner was again constrained to approach this Court by filing a Contempt of Court case. It appears that during the pendency of said contempt proceedings, that the 4[th] respondent has passed Ext.P-8 order dated 16.12.2019 again rejecting the plea of the petitioner for grant of development permit, on the ground that the petitioner will have to get necessary W.P. © No. 4196 of 2020 ..6.. permission from the District Geologist concerned, as well as from the Revenue Divisional Officer concerned, before his application for grant of development permit could be considered. It is this order at Ext.P-8 that is under challenge. Ext.P-8 order dated 16.12.2019 issued by the 4[th] respondent Secretary of Pandalam Thekkekara Grama Panchayat reads as follows: “തതാങ്കളുടടെ ഉടെമസ്ഥതയയിലുള്ള പന്തളളം ടതകക് **ക** േ ര വയികല്ലേജയിടലെ 445/29-)o നമ്പർ സർകവ്വേ നമ്പറയിൽടപട്ട 10.53 ആർ സ്ഥലെതത് ടകെട്ടയിടെ നയിർമതാണതയിനളം ഭൂവയികെസനതയിനമതായുള്ള അനമതയിക്കേയതായയിഅകപക്ഷ സമർപയിക് **ക** ു യുളം ഭൂവയികെസനതയിനത് 300 ഘനമമീറ്റർ മണത് നമീക്കേളം ടചെയ്യുന്നതയിനത് സൂചെന രണത് പ്രകെതാരളം ഉതരവത് നൽകുകെയുളം ടചെയയിരുന. എന്നതാൽ ടെയി അളവയിൽ കൂടുതൽ മണത് നമീക്കേളം ടചെകയ്യേണതുണത് എന്നത് കെതാണയിചെത് തതാങ്കൾ 06/12/2019 ൽ അകപക്ഷ നൽകെയിയയിട്ടുണത്. 1.50 മമീറ് **റ** യിൽ കൂടുതൽ ആഴതയിൽ ഉൾഖനനളം നടെതയി 770 കെക്യൂബയികെത് അടെയി മണത് നമീക്കേളം ടചെയ്യുന്നതയിനത് ജയില്ലേതാ ജയികയതാളജയിസത്റത് ബന്ധടപട്ട റവനന്യു ഡയിവയിഷണൽ ആഫമീസർ എന്നയിവരുടടെ അനവതാദളം കൂടെയി ആയവ ആവശശ്യമതാണത് ഹതാജരതാകുന്ന മുറയത് ഭൂവയികെസന ടപർമയിറ്റത് നല്കുന്നതതാടണന്ന വയിവരളം അറയിയയിച്ചുടകെതാള്ളുന. ” 4. One of the grounds of rejection in Ext.P-8 is that, the petitioner should get prior permission from Revenue Divisional Officer concerned for excavation of soil for doing the foundation work, and it is only thereafter the grant of development permit could be considered. The issue in this regard is no longer _res integra_ , and is fully covered against respondents 3 & 4 and in favour of the petitioner as per the dictum laid down by this Court as per the judgment rendered on 28.2.2020 in WP©.32877/2019. In the said W.P. © No. 4196 of 2020 ..7.. case, an objection was taken by the local bodies concerned that prior permission from the committee headed by the RDO is before the Secretary of Grama Panchayat can consider the application of the party for development permit in terms of the provisions of the Kerala Panchayat Building Rules. This Court after referring the provisions contained in Rule 5(1) of the Kerala Panchayat Building Rules has held that the reading of said rules would clearly indicate that NOC or permission from revenue divisional officer concerned for grant of development permit is not required by the Panchayat Secretary to consider the plea for grant of development permit. Hence the impugned rejection order therein was quashed by this Court and the Panchayat Secretary was directed to consider the application for development permit in accordance with the Kerala Panchayat Building Rules, and that the insistence to get prior permission from revenue officials concerned is illegal and unsustainable. 5. In that view of the matter it is ordered that the said ground of rejection in Ext.P-8 is illegal and unsustainable. The second round of objection raised in Ext.P-8 is that the petitioner should obtain prior permission from the District Geologist concerned for excavation of soil for construction purposes before the application W.P. © No. 4196 of 2020 ..8.. for development permit could be considered by the 4[th] respondent Secretary of the Grama Panchayat. Rule 14 of the Kerala Minor Mineral Concession Rules as it stood prior to the amendment made effective from 12.6.2020 reads as follows: “ _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 of residential buildings including flats or commercial buildings having a plinth area of 300 square metres if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities concerned:_ _Provided that in cases where transportation of ordinary earth is required, the owner of the land shall obtain mineral transit passes for the quantity to be transported under the Kerala Minerals (Prevention of illegal Mining, Storage and Transportation) Rules, 2015 after making payment of royalty, on an application submitted in this regard. Such application shall be accompanied by (1) valid building permit for construction of building obtained from the Local Self Government authorities concerned, (2) land development permit obtained from the Local Self Government authorities concerned in cases where the levelling of the land and extraction of ordinary earth is involved and (3) possession and enjoyment certificate of the land issued by the Village Officer concerned:_ _Provided further that in cases where levelling of land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authorities concerned which shall contain the area of land to be developed for the construction of the building and the quantity of ordinary earth to be extracted for such construction._ ” 6. As per the unamended provisions contained in Rule 14(2), no quarrying permit is required under those rules for excavation of ordinary earth for construction of residential buildings having a plinth area of 300 sq.m., if the land owner has obtained W.P. © No. 4196 of 2020 ..9.. valid permit for construction of said building from the concerned local self government body authorities. In other words, as per the said unamended rules, in case the proposed construction area does not exceed the threshold level of 300 sq.m., then no quarrying permit is required from the District Geologist concerned and so in a case where the proposed construction is exceeding 300 sq.m., then quarrying permit would be required in terms of the provisions contained in the Kerala Minor Mineral Concession Rules. 7. The provisions contained in the Kerala Minor Mineral Concession Rules, 2015, have been amended with effect from 12.6.2020 as per SRO No.391/2020 G.O.(P) 16/2020/ID dated 12.6.2020 and the amended provisions contained in Rule 14(2) of the KMMC Rules, now reads as follows: _“for sub-rule (2), except the provisos, the following sub-rule shall be substituted, namely:-_ _(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)”_ 8. Hence in view of the amended made effective from W.P. © No. 4196 of 2020 ..10.. 12.6.2020 onwards, no quarrying permit is required so long as the proposed construction area does not exceed the threshold level of 20,000 sq.m. Therefore, in the instant case a reading of Ext.P-1 building permit dated 25.6.2018 issued by none other than the 4[th] respondent Secretary of Grama Panchayat would clearly show that the total construction area permitted thereby is only 71.26 sq.m. Hence, going by the provisions contained in both the unamended rules as well as the amended rules of the Rule 14(2), quarrying permit from the District Geologist is not required in this case. However, the 1[st] proviso to Rule 14(2) would stipulate that, where transportation of ordinary earth is required, the owner of land shall obtain mineral transit passes for the quantity to be transported under the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, after payment of royalty and on application submitted in that regard. Such application shall be accompanied by valid building permit for construction of building obtained from the local self body concerned, and also the land development permit issued from the local self body concerned in case where leveling of land and extraction of ordinary earth is involved. Hence, from a reading of provisos to Rule 14(2) of the KMMC Rules, it is clear that there is no W.P. © No. 4196 of 2020 ..11.. question of getting any prior permission from the District Geologist concerned even as per the said proviso, and the issue of consideration for issuance of transit pass by the District Geologist concerned as per the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, would come into play only after the party concerned gets the valid building permit as well as the valid development permit from the local body concerned. In other words, there is no question of the 4[th] respondent Secretary of Grama Panchayath insisting that the petitioner should get prior permission from the District Geologist in a case like this. In a case where the abovesaid provisos to Rule 14(2) of the KMMC Rules would apply, then the party concerned will have to get not only the building permit but also the development permit from the local self government body concerned, before he can apply to the District Geologist concerned for grant of transit pass as required therein. In other words, the present insistence by the 4[th] respondent Secretary, Grama Panchayat, in Ext.P-8 that, the petitioner should necessarily obtain prior permission from the District Geologist, is illegal, ultra vires and absolutely unsustainable. In that view of the matter it is ordered that, the impugned Ext.P-8 rejection order dated 16.12.2019 will stand set W.P. © No. 4196 of 2020 ..12.. aside and quashed. The application dated 6.12.2019 submitted by the petitioner as referred to in Ext.P-8, as well as the subsequent representation made by the petitioner as per Ext.P-9 dated 3.1.2020 for grant of development permit would stand remitted to the 4[th] respondent Secretary of Grama Panchayat. 9. The petitioner's counsel has pointed out that the proposed quantity of soil to be excavated coming to 770.37 m[3 ] as shown in Ext.P-4 application is on the basis of the estimate made by the civil engineer/architect concerned and that the said aspect has also to be ascertained by the Assistant Engineer of the Local Self Government Department. 10. Hence it is ordered that, the Assistant Engineer of the Local Self Government Department of the area concerned will conduct a site inspection, and may also examine the papers in relation to Ext.P-4 application for grant of development permit, and may ascertain the correctness of estimate of quantity of earth to be excavated shown as 770.37 m[3 ] in Ext.P-4, and such site inspection should be conducted by the Assistant Engineer with prior notice to the petitioner, and inspection report should be submitted by the said officer to the 4[th] respondent Secretary within 2 weeks from the date of W.P. © No. 4196 of 2020 ..13.. production of a certified copy of this judgment, and copy of inspection report should also be given to the petitioner in advance. 11. The 4[th] respondent Secretary of Grama Panchayat will consider Ext.P-4 application of the petitioner for grant of development permit only in accordance with the provisions contained in the Kerala Panchayat Building Rules, and after affording reasonable opportunity of being heard to the petitioner and orders in that regard should be passed after taking due note of the contents of the inspection report, at any rate within an outer time limit of one month from the date of production of a certified copy of this judgment. 12. The 4[th] respondent should bear in mind that this is the 4[th] round of litigative proceedings that the petitioner has been constrained to initiative for the very same grievance. _Prima facie_ , it appears that the 4[th] respondent Secretary, is raising one hyper technical objection after the one to ensure that the claim of the petitioner is rejected at any cost. _Prima facie_ , there is also force in the contention of the petitioner's counsel that, it is only on account of initiation of writ proceedings, and also contempt proceedings arising out of Ext.P-7 judgment that the 4[th] respondent Secretary has taken a W.P. © No. 4196 of 2020 ..14.. hostile attitude and has issued illegal order as per Ext.P-8. 13. It is hoped and expected that the 4[th] respondent Secretary of Grama Panchayat will not unnecessarily raise hyper technical objections, and it shall be ensured that the 4[th] respondent Secretary should take a fair, just and pragmatic decision so as to not prolong the unnecessary agony of the petitioner any longer. 14. The petitioner will produce certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits before the 2[nd] respondent Director of Panchayaths and the 4[th] respondent Secretary, Pandalam Thekkekara Grama panchayath, for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 4196 of 2020 ..15.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 25.6.2018 ALONG WITH APPROVED PLAN** **EXHIBIT P2 TRUE COPY OF THE PRINTOUT OF E-FILE ALONG WITH THE PLAN SUBMITTED FOR DEVELOPMENT PERMIT** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 25.2.20189 IN WP(C) NO.2014/2019** **EXHIBIT P4 TRUE COPY OF THE PRINTOUT OF E-FILE ALONG WITH REVISED PLAN SUBMITTED FOR DEVELOPMENT PERMIT** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 9.5.2019 OF THE 4TH RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.7.2019 OF THE 4TH RESPONDENT** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 19.11.2019 IN W.P.(C) NO.29442/2019** **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 16.12.2019 OF THE 4TH RESPONDENT** **EXHIBIT P9 TRUE COPY OF THE REPLY DATED 3.1.2020 WITH RECEIPT DATED 4.1.2020 ISSUED BY THE 4TH RESPONDENT**