Kerala High Court
R U Human Foundation vs State Of Kerala on 19 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
WP(C) NO. 39270 OF 2023
PETITIONER:
R U HUMAN FOUNDATION,
KUMARANASSAN SMARAKA SOUDAM,
CHATHANGADU ROAD, PALARIVATTOM, KOCHI,
REPRESENTED BY ITS CHAIRMAN,
P.U. RAJAN @ SWAMI GURUSREE,
S/O. P.V. ULAHANNAN, PATTUPALAYIL HOUSE,
NORTH PALAKKUZHA, KARIMPANA P.O.,
KOOTHATTUKULAM,
ERNAKULAM DISTRICT ., PIN - 682025
BY ADV GEORGE SEBASTIAN
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE SECRETARY TO THE
DEPARTMENT OF MINING AND GEOLOGY ,
SECRETARIAT,
THIRUVANTHAPURAM, PIN - 695001
2 THE SENIOR GEOLOGIST,
DISTRICT OFFICE,
DEPARTMENT OF MINING AND GEOLOGY,
CIVIL STATION, KAKKANAD P.O.,
KOCHI ., PIN - 682030
3 THE THIRUMARADY GRAMA PANCHAYATH,
THIRUMARADY GRAMA PANCHAYATH OFFICE,
REP. BY ITS SECRETARY, THIRUMARADY P.O.,
ERNAKULAM., PIN - 686662
WP(C) No.39270 of 2023 2
ADDL.R4 THE DISTRICT DISASTER MANAGEMENT AUTHORITY,
REPRESENTED BY ITS CHAIRPERSON, CIVIL STATION
ROAD, KAKKANAD P.O., COCHIN, PIN - 682030
IS SUO MOTU IMPLEADED VIDE ORDER DTD.19.04.2024
IN WP(C) NO.39270/23.
BY ADV GIGIMON ISSAC
SR. GP JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ORDERS ON 19.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.39270 of 2023 3
VIJU ABRAHAM, J.
.................................................................
W.P (C) No.39270 of 2023
.................................................................
Dated this the 19th day of April, 2024
JUDGMENT
The above writ petition has been filed challenging Ext.P21 wherein the request for renewal of permission for removal of ordinary earth was declined by the 2nd respondent.
2. It is averred that the petitioner, a company with an intention to start a Medical College had purchased certain extent of land and had obtained Ext.P2 building permit in this regard. There was some level difference in the lie of the property of the petitioner and some earth have to be removed for leveling the property so as to make it conducive for starting the construction of the building. Thereupon Ext.P3 application was made in this regard. The 2nd respondent conducted a site inspection and granted permission for removal of 34006 metric ton ordinary earth from the property on payment of necessary royalty as per Ext.P4. Petitioner had paid the royalty and other charges in this regard. Thereafter pass was also issued as evident from Ext.P5. While so there was protest from the local people and the petitioner was constrained to file W.P.(C) No.40276 of 2022 seeking for police protection and this Court by Ext.P6 judgment afforded protection to the petitioner for carrying out the activities in terms WP(C) No.39270 of 2023 4 of Exts.P2 and P4. Due to the obstruction the activities could not be completed within time and Ext P4 permit had expired. Therefore by Ext.P7 the application submitted for renewal of Ext.P4 was allowed. Even thereafter there was obstruction regarding the removal of earth from the petitioner's property and the petitioner was constrained to prefer Contempt of Court Case (Civil) No.489 of 2023 which is pending consideration before this Court and while the contempt of court case was pending consideration Ext.P7 renewed order has also expired. Thereupon Ext.P8 request was made for renewal of permit. Thereafter Ext.P9 fresh application was also submitted. Since there was no action on Exts.P8 and P9 petitioner had preferred W.P.(C) No.33166 of 2023 and pursuant to the direction issued in Ext.P10 judgment the request made by the petitioner was considered and the petitioner was informed as per Ext.P12 that necessary orders will be passed as soon as communication is received from the 3rd respondent Panchayat regarding certain aspects sought for. The 3rd respondent Panchayat has issued Ext.P14 communication and also took Ext.P15 decision. A perusal of Ext.P15 would reveal that the apprehension raised by the 3rd respondent is that if earth is removed from the said property it may cause serious danger to hundreds' of houses in the nearby area and may result in water scarcity. The 2nd respondent Geologist addressed the 3rd respondent by Ext.P16 wherein it is informed that the Panchayat authorities could ask for a slope stability study report WP(C) No.39270 of 2023 5 as provided in Rule 14(2)(d) of the Kerala Minor Mineral Concession Rules, 2015 (in short, Rules 2015"). Thereupon the 3 rd respondent as per Ext.P17 intimated the petitioner to submit a geotechnical study regarding the slope stability of the property. To which Ext.P18 reply was submitted by the petitioner. Thereafter the Panchayat committee again met and by Ext.P19 communication, Ext.P20 minutes of the meeting was forwarded to the 2nd respondent wherein various complaints and apprehension raised by the nearby residents were discussed and requested the Geologist not to renew the permit for removal of ordinary earth. Thereupon as per Ext.P21 order petitioner was informed that based on the report submitted by the 3 rd respondent the permission sought for cannot be granted.
3. A statement has been filed by the 3 rd respondent wherein it is stated that Ext.P11 application for renewal of the permit was subsequent to the amendment of Rule 14 of the Rules 2015 and thereupon the Panchayat has asked for a slope stability study report and that as per the decision of the Panchayat committee the 3rd respondent has requested the 2nd respondent to take a decision in the matter only after considering the threat to about hundreds' of houses and about 67 numbers of water channel nearby the proposed project.
4. A statement has been filed by the 2nd respondent wherein it is stated that based on report submitted by the 3 rd respondent that there is illicit quarrying of granite building stones from the site, show cause notice was WP(C) No.39270 of 2023 6 issued to the petitioner and the petitioner has remitted an amount of Rs.7,11,500/- towards royalty and fine for illicit quarrying of granite building stones under Rule 108(2) of the Rules 2015. It is also stated that there was an enquiry from the Vigilance and Anti-corruption Bureau regarding the grant of permission for the extraction of the ordinary earth from the subject land. Later on the 3rd respondent has informed the decision of the Panchayat committee that since excavation of ordinary earth will lead to landslip/landslide and the same will affect numerous residence in the area, the permit shall not be renewed. It is on the basis of the same Ext.P21 was issued. It is also stated that the Tahsildar, Muvattupuzha has also reported to the District Collector that the quarrying of ordinary earth in the said land will cause law and order situation in the area.
5. Heard the learned counsel appearing for the respective parties.
6. The learned counsel for the petitioner would submit that Ext.P4 permit was granted on 02.12.2022 and it is only due to the objection from the public that the petitioner could not remove the ordinary earth and thereupon he has filed an application for renewal of the same. Rule 14(2) of the Rules 2015 which was amended and incorporated in the statute book only on 31.03.2023, mandates that if the proposed building construction site is located in a hilly terrain with steep slopes where excavation of ordinary earth may result in slope failures, the building permit granting authority may insist the applicant to submit a slope stability WP(C) No.39270 of 2023 7 study report prepared by a reputable agency providing geotechnical investigation services and the decision to grant permit may be taken based on the recommendations provided in the report. The learned counsel for the petitioner would submit that the mandate of the proviso to Rule 14 which was brought into the statute book only on 31.03.2023 cannot be made applicable to the case of the petitioner since that is an aspect which should have been looked into at the time of issuance of building permit by the local authority and that Ext.P2 building permit has been granted on 18.12.2021, prior to the incorporation of the proviso in Rule 14 of the Rules 2015.
7. It is true that the proviso to Rule 14(2) of Rules 2015 mandates for a slope stability study report before issuance of a building permit and since Ext.P2 building permit has been issued as early as on 18.12.2021 the insistence that the proviso to Rule 14 to be complied with cannot be accepted. But one important aspect to be noted is that the people of the locality have complained that the removal of ordinary earth if permitted from a hilly terrain will lead to landslip/landslide and the same will affect numerous residence in the area and that the same will also affect 67 numbers of water channel nearby the proposed project. Yet another aspect to be noted is that the Tahsildar, Muvattupuzha has also reported to the District Collector that the quarrying of ordinary earth from the said land will cause law and order situation in the area. The petitioner, no doubt, is WP(C) No.39270 of 2023 8 entitled to carry out the construction activity on the strength of Ext.P2 building permit. But before the petitioner undertakes necessary activities in this regard and to remove ordinary earth from a hilly terrain the apprehension raised by the general public as well as the 3 rd respondent Panchayat regarding damage or danger that will be caused to about hundreds' of houses in the nearby locality and the damage to the 67 water channels need to be examined. The Disaster Management Act, 2005 has been promulgated for providing for institutional mechanism for preventing and mitigating the effects of disasters, etc. The 'disaster management' as defined in Section 2(e) mandates for prevention of danger or threat of any disaster. The District Disaster Management Authority of which the District Collector is the Chairman has been given vide powers as per Section 30 of the said Act which includes to identify the areas in the District vulnerable to different forms of disasters and also measures for prevention of disasters including giving instructions to the authorities at the district level and local authority to take such measures for prevention and mitigation of disasters as may be necessary. The Act further provides for the functions of the local authority under Section 41, which mandates to ensure all construction projects under it or within its jurisdiction shall conform to the standards and specifications laid down for prevention of disasters and mitigation by the National Authority, State Authority and the District Authority and that the local authority may take such other measures as may be necessary for the WP(C) No.39270 of 2023 9 disaster management. The local authority after conducting an enquiry into the matter through the Assistant Engineer, LSGD attached to the 3 rd respondent and considering the threat to about hundreds' houses and 67 numbers of water channel resolved as per Ext.P20 informed the 2 nd respondent Geologist not to give permission for removal of earth by the petitioner and it is based on the same Ext.P21 order was issued declining renewal of the permit and issuance of transit pass. In view of the serious apprehension raised by the 3rd respondent Panchayat and the people of the locality that removal of earth from such a hilly terrain by the petitioner will result in damage or danger to about hundreds' houses and will affect 67 water channels nearby the subject property, I am of the view that the additional 4th respondent District Disaster Management Authority, of which the District Collector is the Chairman, should look into this aspect before any further proceedings are taken in this regard. The 3rd respondent local authority shall forward the complaints as well as their resolutions in this regard to the additional 4th respondent who shall make necessary enquiry into the matter invoking the power granted under the Disaster Management Act, 2005 and verify as to whether the apprehension raised by the 3rd respondent local authority and the people of the locality regarding danger to about hundreds' houses if earth is allowed to be removed from the said property, if required after conducting any technical investigation through any reputable agency and take a final decision in the WP(C) No.39270 of 2023 10 matter as to whether any damage/disaster will be caused due to the removal of earth by the petitioner. The said report shall be prepared and the investigation shall be done with notice to the petitioner and the 3 rd respondent and the proceedings shall be completed within a period of one month from the date of receipt of a copy of the judgment. The report in this regard shall be forwarded to the 2nd respondent who shall take a final decision on the request made by the petitioner for renewal of permit in accordance with law taking into consideration the report of the additional 4th respondent and after hearing the petitioner and the 3rd respondent.
With the abovesaid directions, the writ petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE cks WP(C) No.39270 of 2023 11 APPENDIX OF WP(C) 39270/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PETITIONER ISSUED FROM THE REGISTRAR OF COMPANIES, CENTRAL REGISTRATION CENTRE DATED 25.07.2018 Exhibit P2 A TRUE COPY OF THE BUILDING PERMIT DATED 18.12.2021 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 22.06.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P4 A TRUE COPY OF THE ORDER DATED 02.12.2022 PASSED BY THE 2ND RESPONDENT Exhibit P5 A TRUE COPY OF THE PASS ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT FOR THE PERIOD 07.12.2022 TO 31.01.2023 Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 10.01.2023 IN WP(C) 40267/2022 Exhibit P7 A TRUE COPY OF THE ORDER DATED 08.02.2023 PASSED BY THE 2ND RESPONDENT Exhibit P8 A TRUE COPY OF THE REQUEST DATED 04.06.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P9 A TRUE COPY OF THE APPLICATION DATED 08.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P10 A TRUE COPY OF THE JUDGMENT DATED 10.10.2023 IN WP(C) 33166/2023 Exhibit P11 A TRUE COPY OF THE REQUEST DATED 12.10.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P12 A TRUE COPY OF THE ORDER DATED 31.10.2023 BEARING NO. DOERN-DMG/1855/2022-MDO ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WP(C) No.39270 of 2023 12 Exhibit P13 A TRUE COPY OF THE LETTER DATED 29.09.2023 BEARING NO. DOE/1855/E2/2022 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT Exhibit P14 A TRUE COPY OF THE LETTER OF THE SECRETARY OF THE 3RD RESPONDENT GRAMA PANCHAYATH TO THE 2ND RESPONDENT DATED 03.11.2023 BEARING NO400646/BADCO1/GP OFFICE/2023/4007(1) Exhibit P15 A TRUE COPY OF THE DECISION OF THE COMMITTEE OF THE 3RD RESPONDENT GRAMA PANCHAYATH BEARING NO. 5 DATED 11.10.2023 Exhibit P16 A TRUE COPY OF THE LETTER DATED 10.11.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P17 A TRUE COPY OF THE COMMUNICATION BEARING NO.
400646/BADC01/GP OFFICE/2023/4523(1) DATED 13.11.2023 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT TO THE PETITIONER Exhibit P18 A TRUE COPY OF THE REPLY DATED 14.11.2023 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P19 A TRUE COPY OF THE LETTER BEARING NO400646/BADCO1/GP OFFICE/2023/4523(4) DATED 16.11.2023 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT Exhibit P20 A COPY OF THE DECISION OF THE COMMITTEE OF THE GRAMA PANCHAYATH DATED 16.11.2023 BEARING NO. 1(I) Exhibit P21 A TRUE COPY OF THE ORDER DATED 22.11.2023 BEARING NO. DOREN - DMG/1855/2022- MDO PASSED BY THE 2ND RESPONDENT Exhibit P22 A TRUE COPY OF THE APPROVED DEVELOPMENT PLAN DATED 18.12.2021 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT GRAMA PANCHAYATH