W.P.(C) Nos. 23365, 23674 & 23803 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944** ## **WP(C) NO. 23365 OF 2022** ## **PETITIONER:** **JOSE THOMAS PATTARA, AGED 63 YEARS** **S/O P.V. THOMAS, PATTARA PUTHENVEETIL, CHARAMANAGALAM, MUHAMMA P.O, CHERTHALA, ALAPPUZHA-688 525.** ## **BY ADV CHITHRA CHANDRASEKHARAN** ## **RESPONDENTS:** - **1 UZHAVOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING UZHAVOOR, KOTTYAM-686 634.** - **2 THE SECRETARY, UZHAVOOR GRAMA PANCHAYAT, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING UZHAVOOR, KOTTYAM-686 634.** - **3 THE VILLAGE OFFICER, MONIPPALLY VILLAGE OFFICE, MONIPPALLY, KOTTAYAM-686 636.** **BY ADV SHRI.SUNIL CYRIAC, SC, UZHAVOOR GRAMA PANCHAYATH** **SMT.SURYA BINOY, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2022, ALONG WITH WP(C).23674/2022 AND 23803/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 WP(C) NO. 23674 OF 2022** ## **PETITIONER:** **MERCY JOSE PATTARA AGED 59 YEARS D/O.K.T.JOSEPH, PROMINADE VILLA - 17, EDAPPALLY, PADIVATTOM P.O., ERNAKULAM - 682 024.** **BY ADV CHITHRA CHANDRASEKHARAN** ## **RESPONDENTS:** **1 UZHAVOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING, UZHAVOOR, KOTTAYAM - 686 634. 2 THE SECRETARY UZHAVOOR GRAMA PANCHAYAT, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING, UZHAVOOR, KOTTAYAM - 686 634. 3 THE VILLAGE OFFICER MONIPPALLY VILLAGE OFFICE, MONIPPALLY, KOTTAYAM - 686 636.** **BY ADV SHRI.SUNIL CYRIAC, SC, UZHAVOOR GRAMA PANCHAYATH SMT.SURYA BINOY, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2022, ALONG WITH WP(C).23365/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 3 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 WP(C) NO. 23803 OF 2022** ## **PETITIONER:** **THOMAS JOSE PATTARA AGED 28 YEARS D/O.JOSE THOMAS PATTARA, PROMINADE VILLA-17, EDAPPALLY, PADIVATTOM P.O., ERNAKULAM - 682 024.** **BY ADV CHITHRA CHANDRASEKHARAN** ## **RESPONDENTS:** **1 UZHAVOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING, UZHAVOOR, KOTTYAM - 686 634. 2 THE SECRETARY UZHAVOOR GRAMA PANCHAYAT, OFFICE OF THE UZHAVOOR GRAMA PANCHAYATH, 1ST FLOOR, OPPOSITE ANNEX BUILDING, UZHAVOOR, KOTTYAM - 686 634. 3 THE VILLAGE OFFICER MONIPPALLY VILLAGE OFFICE, MONIPPALLY, KOTTAYAM - 686 636.** **BY ADV SHRI.SUNIL CYRIAC, SC, UZHAVOOR GRAMA PANCHAYATH SMT.SURYA BINOY, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.08.2022, ALONG WITH WP(C).23365/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 4 : ## **CR** ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) Nos.23365, 23674 and 23803 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 19[th] day of August, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ In these three writ petitions, the petitioners are aggrieved by the decision of the Secretary to Grama Panchayat in declining approval of Building Permit applications indicating requisite quantity of ordinary earth to be removed to facilitate building constructions. The facts in these writ petitions are almost identical and hence these writ petitions are heard together and being disposed of by a common judgment. 2. The petitioners hold land in Monippally Village in Meenachil Taluk. The petitioners wanted to construct W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 5 : residential buildings in their respective lands. The constructions necessitate providing open space and laying of pathway to the nearby road which, in turn, requires levelling of land and removal of ordinary earth. The petitioners submitted applications for Building Permit along with building plans showing details of earth cutting necessary. 3. By Ext.P5, the petitioners were informed that the Panchayat Committee had taken a decision on 23.11.2018 not to grant permits to extract ordinary earth in a quantity of above 500 cubic metres, within the territorial limits of the Panchayat. They were informed that each of them can be permitted to extract 1000 cubic metres of earth for the purpose of house construction. 4. The petitioners state that the Panchayat Committee has no power to take decisions imposing restraints on removal of ordinary earth for building construction. The petitioners have submitted applications for Building Permits and the Secretary is the licensing authority. The Secretary has to take a decision on the applications independently untrammelled by W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 6 : any resolution passed by the Panchayat. 5. Standing Counsel entered appearance in the writ petitions and opposed the prayers of the petitioners. The Panchayat has taken the decision to regulate earth cutting in larger public interest, contended the Standing Counsel. Unregulated earth cutting is posing a grave threat to the ecology and environment in the Panchayat area. It causes threat to property and human life also. Under the guise of building construction, large scale mining of minor minerals takes place. The decision of the Panchayat Committee is therefore justified. 6. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the Grama Panchayat and the learned Senior Government Pleader representing the Village Officer. 7. The petitioners are owners of land. The petitioners have submitted applications for Building Permits with Building Plans showing the quantity of ordinary earth to be removed. Such removal is warranted as the petitioners want to level the W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 7 : land and lay pathways to the nearby road. The Secretary has informed the petitioners that in view of a Panchayat decision not to permit removal of ordinary earth beyond certain limits, their Building Permit applications cannot be allowed as such. 8. In the judgment in _**Dharmadom Paristhithi Samrakshana Samithi v. Dharmadom Grama Panchayat** [2010 (2) KLT 194],_ this Court held that power to consider and pass orders on an application for Building Permit is exclusively conferred on the Secretary and the Secretary has to exercise the power independently without any interference or influence by Panchayat, President or Chairman of Standing Committees. 9. In the judgment in _**Silvy v. Koovappady Grama Panchayat** [2018 (4) KLT 1059],_ this Court held that a Building Permit application should be considered by the Secretary in accordance with the provisions contained in the Building Rules. 10. Approval of site and plans and issue of Building Permit where excavations of earth to a depth of more than 1.5 W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 8 : metres is involved, is governed by Rule 10 of the Kerala Panchayat Building Rules, 2019. When a subordinate legislation like KPBR, 2019 which is deriving its strength and having its source from Sections 235A, 235B, 235F, 235P, 235W read with Section 254 of the Kerala Panchayat Raj Act, 1994 (13 of 1994), is governing the field of excavation of minor minerals for the purpose of building construction, a Secretary to the Grama Panchayat who is duty bound to exercise licensing powers under the KPBR cannot decline to exercise his powers on the basis of any decision or resolution of the Panchayat. The writ petitions are therefore allowed. Ext.P5 in the writ petitions are set aside. The 2[nd] respondent-Secretary to the Panchayat is directed to take appropriate decisions on the Building Permit applications and applications for approved Building Plans submitted by the petitioners in accordance with law, within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/19.08.2022 W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 9 : ## **APPENDIX OF WP(C) 23365/2022** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**POSSESSION**| |---|---| ||**CERTIFICATE ISSUED BY THE 3RD**| ||**RESPONDENT TO THE PETITIONER DATED**| ||**24/05/2022.**| |**Exhibit P2**|**TRUE COPY OF THE PROPERTY TAX RECEIPT**| ||**ISSUED BY THE 3RD RESPONDENT TO THE**| ||**PETITIONER DATED 19/05/2022.**| |**Exhibit P3**|**TRUE COPY OF THE BUILDING PLAN WITH**| ||**EARTH CUTTING DETAILS PREPARED BY AN**| ||**AUTHORIZED ENGINEER.**| |**Exhibit P4**|**TRUE COPY OF THE RECEIPT ISSUED BY THE**| ||**1ST RESPONDENT TO THE PETITIONER DATED**| ||**15/06/2022**| |**Exhibit P5**|**TRUE COPY OF THE ORDER ISSUED BY THE**| ||**2ND RESPONDENT TO THE PETITIONER DATED**| ||**02/07/2022.**| ## **RESPONDENT'S/S EXHIBITS : NIL** W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 10 : ## **APPENDIX OF WP(C) 23674/2022** ## **PETITIONER'S EXHIBITS** |**Exhibit P1**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**POSSESSION**| |---|---| ||**CERTIFICATE ISSUED BY THE 3RD**| ||**RESPONDENT TO THE PETITIONER DATED**| ||**24/05/2022.**| |**Exhibit P2**|**TRUE COPY OF THE PROPERTY TAX RECEIPT**| ||**ISSUED BY THE 3RD RESPONDENT TO THE**| ||**PETITIONER DATED 16/05/2022.**| |**Exhibit P3**|**TRUE COPY OF THE BUILDING PLAN WITH**| ||**EARTH CUTTING DETAILS PREPARED BY AN**| ||**AUTHORIZED ENGINEER.**| |**Exhibit P4**|**TRUE COPY OF THE RECEIPT ISSUED BY THE**| ||**1ST RESPONDENT TO THE PETITIONER DATED**| ||**15/06/2022.**| |**Exhibit P5**|**TRUE COPY OF THE ORDER ISSUED BY THE**| ||**2ND RESPONDENT TO THE PETITIONER DATED**| ||**02/07/2022.**| ## **RESPONDENT'S/S EXHIBITS : NIL** W.P.(C) Nos.23365, 23674 & 23803 of 2022 : 11 : ## **APPENDIX OF WP(C) 23803/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE NO.65164248 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 24/05/2022. Exhibit P2 TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 19/05/2022. Exhibit P3 TRUE COPY OF THE BUILDING PLAN WITH EARTH CUTTING DETAILS PREPARED BY AN AUTHORIZED ENGINEER. Exhibit P4 TRUE COPY OF THE RECEIPT NO.1220100935/G050406 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 05/07/2022. Exhibit P5 TRUE COPY OF THE ORDER NO.SC21081/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 20/07/2022.** **RESPONDENT'S/S EXHIBITS : NIL**