WA No. 165 of 2022; The Secretary, Mavelikkara-Thekkekkara Grama Panchayat & Mavelikkara Thekkekkara Grama Panchayat v. Gopinathan Pillai & District Geologist

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ## WA NO. 165 OF 2022 ## APPELLANT/S/RESPONDENTS 1 & 2: 1 THE SECRETARY, MAVELIKKARA-THEKKEKKARA GRAMA PANCHAYAT, PALLARIMANGALAM P.O. MAVELIKKARA – 690 107. 2 MAVELIKKARA THEKKEKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PALLARIMANGALAM P.O., MAVELIKKARA – 690 107. BY ADV R.GIREESH VARMA ## RESPONDENTS/PETITIONER & THE 3RD RESPONDENT: 1 GOPINATHAN PILLAI, AGED 63 YEARS, S/O. SHANKARAPILLAI, KULATHINTEKIZHAKKATHIL, THEKKEKKARA, PONNEZHA, ALAPPUZHA. 2 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, CHERTHALA, ALAPPUZHA – 688 532. R1 BY SRI. R.SUNIL KUMAR R2 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No. 165/2022 : 2 : ## **'C.R'** ## **Dated this the 2[nd ] day of February, 2022.** ## **JUDGMENT** ## **S. MANIKUMAR,CJ.** Appellants, who are the respondents 1 and 2 in W.P.(C) No.12066 of 2021, challenges the judgment dated 29.07.2021 passed by a learned single Judge of this Court in the aforesaid writ petition filed by the 1[st] respondent herein seeking a direction to the Secretary, Mavelikkara-Thekkekkara Grama Panchayat, 1[st] appellant, to issue land development permit to the writ petitioner for extraction and transportation of ordinary earth from the property, for the construction of a residential building. 2. Gopinathan Pillai, S/o. Shankarapillai, Kulathintekizhakkathil, Thekkekkara, Allappuzha, writ petitioner, who is the owner of 12.14 Ares of property situated in Re-Survey No. 645/21 of Thekkekkara Village, applied for a building permit to construct a residential building having an area of 178.36 Sq.m. He has submitted Exhibit P1 application seeking for land development permit to remove ordinary earth from the plot owned by him where he is proposing to construct the building and for its transportation. W.A.No. 165/2022 : 3 : 3. Thereafter, the Technical Officer has inspected the site and reported that the earth to be removed for the purpose of construction can be deposited and levelled in the very same property. As there is no ‘development’ of the land as defined in the Kerala Panchayat Building Rules, 2019 (Rules, 2019' for short), the Secretary, Mavelikkara-Thekkekara Grama Panchayat and Mavelikkara Thekkekkara Grama Panchayat, appellants rejected his application for development permit. At the same time building permit was granted to him. Hence the writ petition. 4. Adverting to the rival submissions and taking note of Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015 ('Rules, 2015' for short), writ court, vide judgment dated 29[th] July, 2021 ordered thus: 7. In this context, it is to be noted that in view of Rule 14(2) of Kerala Minor and Mineral Concession Rules, the petitioner cannot extract and transport red earth without a mineral transit pass issued by the Geologist and statutorily the Geologist will not be legally justified, if mineral transit passes are issued in the absence of a land development permit. The fact that extraction of red earth is required from the land of the petitioner for construction of his house, is not in dispute. In the circumstances, if the respondents 1 and 2 refused to issue land development permit that will put the petitioner in a peculiar situation and the petitioner W.A.No. 165/2022 : 4 : will have to face even prosecution under the Kerala Minor and Mineral Concession Rules, if the extracted red earth is to be transported In the circumstances, this Court is of the considered opinion that the respondents 1 and 2 are compellable to issue land development permit of the petitioner so as to enable the petitioner to obtain mineral transit pass from the Geologist. Accordingly, the writ petition is disposed of directing the respondents 1 and 2 to issue land development permit to the petitioner enabling the petitioner to obtain mineral transmit pass from the Geologist, within a period of four weeks. 5. Being aggrieved, the Secretary, Mavelikkara Grama Panchayat and Mavelikkara Thekkekkara Grama Panchayat, represented by its Secretary, respondents 1 and 2 in the writ petition, have filed the instant appeal on the grounds _inter alia_ that development permit and transit permit, are not required for the removal of the sand. In support of the above contention, learned counsel for the appellants placed reliance on the provisions of the Rules, 2019, especially Rule 5, and a decision of this Court in _**Ramachandran T.K and another v. Vellavoor Grama Panchayat and others**_ [2021 (5) KHC 51 = 2021(5) KLT 1]. 6. In _**Ramachandran**_ (supra), a learned single Judge, after considering Rule 14(2) of the Rules, 2015 and in particular the second W.A.No. 165/2022 : 5 : proviso, held that no development permit is required. 7. That apart, the appellants have also relied on Annexure II Government Order, G.O. (Ordinary) No. 1795/2021/LSGD dated 18.09.2021, in which it has been clarified that in cases where building permit is issued, it is sufficient for the purpose of removing the earth for the construction of foundation and also for levelling. 8. The grounds on the basis of which the instant writ appeal is filed are extracted hereunder: “ **D.** This Hon’ble Court considered the common issue of whether a development permit is required for the issuance of transit pass under Rule 14 (2) of the Kerala minor Mineral Concession Rules 2015 raised in a batch of writ petitions and issued a judgment in **Ramachandran T.K and another Vs. Vellavoor Grama Panchayat and others (2021 (5) KHC 51)** concluding as follows; (i) A development permit from the local authority is necessary only when ‘development of land’ in terms of the Building Rules is involved. (ii) Quarrying permit is not required for extraction of ordinary earth in connection with construction of building which does not require environmental clearance, provided a valid building permit is obtained. (iii) For obtaining transit passes for transportation of ordinary earth, W.A.No. 165/2022 : 6 : (a) In cases where ‘land development’ as defined under the concerned building rules is involved , a land development permit from the local authority shall be made available. (b) in cases where no ‘land development’ in terms of the building rules is involved, an approved building plan containing the area of land for construction of the building and the quantity of ordinary earth to be extracted for construction shall be obtained from the local authority. **E.** The government vide its Order No.LSGD (R.D) Department No. 1795/2021/L.S.G.D dated 18.9.2021 has clarified that in case a building permit is issued, it is sufficient for the purpose of removing of earth for the purpose of construction of foundation and also for levelling. It has also been stipulated in the above G.O that since development permit is only for sub division of the plot and for extraction of , the building plan attached to the building permit is to be considered as a substitute for development permit as the same contains the details for granting Mineral Transit Pass as per Rule 14 (2)(1) of the Kerala Minor Mineral Concession Rules 2015. **F.** Exhibit P5 communication issued to the petitioner by the 3[rd] respondent in the writ petition, District Geologist and the copy of the relevant provision, Rule 14(2) of the Kerala Minor Mineral concession Rules 2015 attached there to itself makes it clear that no quarrying permit is required for extraction of ordinary earth in connection with the construction of residential buildings including flats or commercial buildings having a plinth area of 300 sq.m if the owner of the land obtained a prior valid permit for construction of such building from the Local Self Government authorities W.A.No. 165/2022 : 7 : concerned. **G.** Annexure I government Order also stipulates that the officer who is granting building permit and the technical officer who is conducting inspection for that purpose have to examine whether the earth is to be removed, the extent of area to be levelled, quantity of ordinary earth to be extracted for such construction. Here in this case the technical officers have reported after conducting inspection in the property that the earth to be removed from the place of construction can be deposited in other parts of the very same plot. Hence there exists no situation necessitating transportation of earth from the property.” 9. Based on the above grounds, decision, statutory provisions and the Government Order dated 18.09.2021, Mr. R. Gireesh Varma, learned counsel for the appellants, prayed interference of this Court with the impugned judgment, insofar as it directs the appellants to grant development permit. 10. Mr. R. Sunilkumar, learned counsel for respondent No.1, submitted that the judgment relied upon by the appellants was rendered later and has no bearing to the instant case. 11. The judgment in _**Ramachandran**_ (supra) has been decided on 26[th] July, 2021 and the judgment impugned in the writ appeal has been rendered on 29[th] July, 2021. Therefore, the contention of the learned counsel for the first respondent as regards the applicability of W.A.No. 165/2022 : 8 : the judgment in _**Ramachandran**_ to the case on hand, cannot be countenanced. 12. After considering the statutory provisions of Rules 14(1) and (2) of the Rules, 2015, a learned single Judge in _**Ramachandran**_ (supra) held as follows: **7.** . In terms of the Kerala Panchayat Building Rules, a development permit is necessary only in cases where "development of land" as defined under the Rules is involved. This Court has consistently taken the view that, for construction of a building by the purchaser of a plot of land where no 'development of land' as defined under the Building Rules is involved, no development permit is necessary. ( _See Nafeesa v. Chavakkad Municipality_ ()). Therefore the Panchayats were right in taking the stand that, since no 'development of land' in terms of the Building Rules is involved, a development permit could not be issued. **8.** . Now coming to the stand taken by the Department of Mining and Geology, before I proceed to discuss on R.14(2) of the KMMC Rules, 2015 and the provisos thereto, I deem it appropriate to extract R.14(1), (2) and the provisos. _"(1) A quarrying permit under these rules shall be obtained for extraction of ordinary earth used for filling or levelling purposes in construction of embankments, roads, railways or buildings in Form N. (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_ W.A.No. 165/2022 : 9 : _construct such building as per the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (16 of 2019). 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."_ **9.** . Though R.14(1) of the Kerala Minor Minerals Concessions Rules, 2015 require a quarrying permit for extraction of ordinary earth, R.14(2) provides that, a quarrying permit is not required in cases where the extraction is in connection with the construction of buildings which do not require environmental clearance, provided that, the construction is on a valid building permit. **10.** . The first proviso to R.14(2) requires production of the following documents for issuance of transit pass for transportation of ordinary earth: ## (a) Building Permit. ## (b) Land Development Permit and, ## (c) Possession Certificate. **11.** . In cases where 'development of land' as defined under the Panchayat / Municipalities Act is not involved, a development permit could not be insisted upon by the Geology Department because, the Building Rules do not provide for issuance of the same. It is only in cases in which a development permit is required under the Building Rules, could the same be insisted upon for issuance of transit pass. **12.** . The Minor Mineral Concession Rules do not seem to explicitly provide for the documents to be submitted for issuance of W.A.No. 165/2022 : 10 : transit passes in cases where the Building Rules do not provide for issuance of a Development Permit. According to me, in such cases, the second proviso to R.14(2) of the KMMC Rules, 2015 would apply. As per the second proviso, an approved building plan containing the area of land to be utilized for construction of the building and the quantity of ordinary earth to be extracted, is to be obtained from the Panchayat / Municipality, for the issuance of transit passes. Though the said proviso makes a reference to 'the land to be developed', the term 'develop' as occurring therein means, making the land suitable for the proposed construction. It does not refer to 'development of land' as defined under the Building Rules. Such an understanding of the provisions would, avoid inconsistency or the vacuum, if at all any, in the Building Rules and the Minor Mineral Concession Rules, 2015. **13.** . Now coming to the insistence by the Panchayats for a 'No Objection Certificate' from the Department of Mining and Geology in terms of R.5(4) of the Kerala Panchayat Building Rules, 2019 for the issuance of a development permit, the objection cannot stand. R.5(4) requires production of a consent / NOC from the authorities specified thereunder, for issuance of a development permit or building permit. However, the Department of Mining and Geology is not included therein. ## **14.** . To sum up: (i) A development permit from the local authority is necessary only when 'development of land' in terms of the building rules is involved. (ii) Quarrying permit is not required for extraction of ordinary earth in connection with construction of building which does not require environmental clearance, provided, a valid building permit is obtained. (iii) For obtaining transit passes for transportation of ordinary earth, (a) In cases where 'land development', as defined under the concerned building rules is involved, a land development permit from the local authority shall be made available. (b) In cases where no 'land development', in terms of the building rules is involved, an approved building plan containing the area of land for construction of the building and the quantity of ordinary earth to be extracted for construction, shall be obtained from the local authority. (iv) R.5(4) of the Panchayat Building Rules does not require NOC / Permission from the Department of Mining and Geology for issuance of development permit by the local authority. **15.** . In the light of the conclusions as above, the respondent Panchayats in the respective writ petitions shall pass appropriate orders on the development permit applications submitted by the respective petitioners. In cases where development permits are not required, the approved building plan with the details as referred to in the second proviso to R.14(2) shall be issued. The writ petitions W.A.No. 165/2022 : 11 : are disposed of as above.” 13. That apart, Government have also issued Government Order dated 18.09.2021 clarifying the issuance of development permit in terms of the Building Rules. For convenience, the said order is reproduced hereunder: ## **GOVERNMENT OF KERALA** SUMMARY DEPARTMENT OF LOCAL SELF GOVERNMENT -ORDER ISSUED CLARIFYING ISSUINGOF DEVELOPMENT PERMITAS PER RULE 109 OF THE BUILDING RULES 2019 DEPARTMENT OF LOCAL SELF GOVERNMRNT (R.D) G.O (ordinary) no.1795/2021/LSGD Dated:Thiruvanthapuram 18.09.2021 Reference:- 1. Letter No.TCPCTP/2164/2020-E3 dated 22.12.2020 by Chief Town planner . 2.Govt.Letter NO.LSGD-RA3/98/2021/LSGD Dated 15/04/2021 ## **ORDER** As per letter (2) directions were issued to all Panchayat Secretaries that when the officers from the Panchayat inspect the site for issuing land development permit, the place from where the earth is to be removed shall be clearly demarcated and after removing of the earth inspection has to be conducted again and then only to issue building permit. The government are receiving complaints that when applications are submitted for levelling of the earth for the construction of building before the department of geology ,the officers of the department of geology demand building permit and land development permit as per Rule 14 of the Kerala Minor Mineral Concession (KMMC) Rules 2015, but which are not received at the same time as per the above two references, and hence, the said directions are against the Building Rules, and Minor Mineral Concession Rules . (2) The proviso 1 of rule 14(2) of Kerala Minor Mineral Concession W.A.No. 165/2022 : 12 : Rules stipulates that transit pass is required for transporting the earth removed from a plot and in cases where land levelling work is involved by removing the earth, building permit is to be produced along with development permit to obtain the mineral transit pass. But vide Rule 4(1) of KMBR AND KPBR no direction can be issued to issue development permit from panchayat and municipalities as the removing of earth to make the land suitable for building construction is not an act which requires development permit . (3)In Proviso 2 of Rule 14 (2) of Kerala Minor Mineral Concession Rules it has been stipulated that in the matter involving levelling of land and removal of earth, building permit shall be accompanied with building plan specifying the area of land to be developed and the quantity of ordinary earth to be extracted for such construction. (4) In the above circumstances following clarifications are made in allowing land development permit by cancelling the directions in the reference (2) letter dated 15/04/2021. (i) Once a building permit is sanctioned for construction of a building that permit will be sufficient to enable the removal of requisite earth and levelling required for the construction of the building. As per rule 6(7) of KPBR /KMBR 2019 in case mineral transit pass is required the applicants for building permit from panchayat/ municipality shall mention in the building plan ( in the plan itself or in additional sheet) the extent of the area of land to be developed and the quantity of earth to be extracted for such construction and plan of the same (dimensional plan and sectional drawing showing the abutting road level , the levels and cutting at all places in respect of excavations for building construction and land development works ) are to be included and attested by the applicant and the registered licensee as prescribed by the KPBR /KMBR . (II) The official of the technical section who examines the plan and site on behalf of the Officer issuing permit shall precisely examine the area of land to be developed, quantity of earth to be extracted for such construction and dimensional plan and sectional drawing showing the abutting road level , the levels and depths of cutting at all places in respect of excavations for building construction and land development works to decide whether the building plan can be approved and if cannot be approved, the reasons are to be entered in to the building plan and enquiry report and if earth is to be removed the area to be levelled shall be demarcated in terms of the extent of the site to be levelled . It shall be ensured that only the requisite area is included in the plan for open space,security reasons in and around the building as per the rule . (iii) The officials shall enter their signature ,name .PEN, and W.A.No. 165/2022 : 13 : designation in the all reports and approvals . (iv) The conditions applicable as per rule 10 of KPBR /KMBR shall be ensured where ever so applicable . ( v) Since rule 4(1) of KPBR/KMBR 2019 specifies that development permit is required only for effecting plot subdivision where plot subdivision does not exist, and as for extraction of earth no development permit is required and as “ Development of Land ‘ does not exist as per building construction rules , the building plan ,issued along with building permit, which endorses the extent and quantity measurement of earth excavated , as it incorporates the details for allowing “ Mineral transit pass ‘ it shall be considered as substitute for the Development Permit prescribed as per proviso 1 of rule 14(2) of KMMC rules . ( vi) But Development permit as per rule 4 (1) of KPBR/KMBR is required in matters that involve plot sub division. Hence in matters where land levelling and earth extraction is required Development permit is also to be issued along with building plan and building permit that endorse the extent of the site of earth extraction and the quantity of earth. (vii) In cases where building permit incorporating details for allowing Mineral transit pass is issued a copy of the building permit and building plan shall be sent to the District Geologist by e mail with in 3 days of issuing of permit and print copy of the same shall be added to the file . (viii) In cases where for the purpose of Mineral transit pass, the area of land to be levelled and the quantity of earth to be extracted have been endorsed, the applicant and the registered licensee have to submit a signed certificate/report that the extent and quantity of sand more than that is endorsed in the plan attached to the permit to extract earth along with the appendix P form issued as per 2019 KPBR/KMBR Rule 19 E to conduct plinth level inspection and the intimation issued for obtaining Concurrence as per KPBR/KMBR Rule 10 (6). The responsible officer during plinth level inspection and also while conducting inspection as per Rule 10(7) for allowing concurrence shall examine the site demarcated for removal of earth and in case the earth removed is in excess of the area and quantity as endorsed in the building plan, the same shall be intimated to the secretary along with the report and the said details /information shall be intimated by the secretary to the applicant and to the district geologist and a print copy of the said intimation sent to the district geologist by e mail shall be added to the file . (ix) In the matter of issuing building permit including the details for issuing mineral transit pass, the details including the area of land to be developed and the quantity of ordinary earth to be extracted for such W.A.No. 165/2022 : 14 : construction have to be entered in the remarks colum of the building permit application register. Additional Chief Secretary)” 14. The decision in _**Ramachandran**_ (supra) and the Government Order dated 18.09.2021 extracted above would make it clear that in cases where the building permit is issued, it is sufficient for the purpose of removing the earth for the purpose of construction of foundation and also for levelling. 15. In the light of the above, we are of the view that the Geologist/respondent No.2 cannot insist for the issuance of the development permit from the Panchayat, insofar as the transit of the earth is concerned. 16. Even though Mr. R. Gireesh, the learned counsel for the appellants, submitted that as per the instructions contained in the above said Government Order, building plan has to be produced, it is the contention of the learned counsel for the first respondent that while seeking building permit, plan has already been submitted. 17. Be that as it may, it is for the Panchayat as well as the District Geologist, Department of Mining and Geology, Alappuzha, respondent No.2, to strictly follow the decision of this Court in W.A.No. 165/2022 : 15 : _**Ramachandran**_ (supra) as well as the Government Order dated 18.09.2021 and pass orders permitting the first respondent/writ petitioner to remove sand depending upon the extent required, which shall be quantified by the Panchayat and transit permit shall also be issued by the Geologist, the 2[nd] respondent, in accordance with law, as discussed above. 18. In the light of the above discussion, direction of the writ court to the appellants to issue development permit is set aside. However, the directions for issuance of transit pass by the Geologist shall remain in tact. This appeal is allowed as above. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.A.No. 165/2022 : 16 : ## **APPENDIX** APPELLANTS' ANNEXURES: ANNEXURE 1: TRUE COPY OF THE GOVERNMENT ORDER NO.LSGD (RD) DEPARTMENT NO.1795/2021/LSGD DATED 18.09.2021. ANNEXURE II: ENGLISH TRANSLATION OF THE GOVERNMENT ORDER NO.LSGD(R.D) DEPARTMENT NO.1795/2021/LSGD DATED 18.09.2021. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ PS to Judge. rv