Joby George vs Akalakunnam Grama Panchayath
2021 Latest Caselaw 16409 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                    WP(C) NO. 27660 OF 2020
PETITIONER:

         TOMY THOMAS,
         AGED 55 YEARS,
         S/O. THOMAS, MEKKATTU HOUSE, KOORAPPADA P.O,
         PAMPADY TALUK, KOTTAYAM DISTRICT.

         BY ADV P.M.ZIRAJ


RESPONDENTS:

    1    AKALAKUNNAM GRAMA PANCHAYATH,
         MANALUNKAL P.O, KOTTAYAM DISTRICT - 686503,
         REPRESENTED BY ITS SECRETARY.
    2    THE SECRETARY,
         AKALAKUNNAM GRAMA PANCHAYATH, MANALUNKAL P.O,
         KOTTAYAM DISTRICT - 686503,
    3    STATE OF KERALA,
         REPRESENTED BY THE SECRETARY TO GOVERNMENT,
         INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM - 695001.

         BY ADV SRI.P.I.GEORGEKUTTY, SC
         SR. GOVERNMENT PLEADER SMT. SURYA BINOY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.08.2021, ALONG WITH WP(C).10512/2021,
10513/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.27660/2020 & Connected cases
                                   :2 :



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                      WP(C) NO. 10512 OF 2021
PETITIONER:

            JOBY GEORGE,
            AGED 48 YEARS,
            S/O. GEORGE, VETTIKATTIL HOUSE,
            ARUVIKUZHI P.O., AKALAKUNNAM VILLAGE,
            KOTTAYAM TALUK, KOTTAYAM DISTRICT.

            BY ADV P.M.ZIRAJ


RESPONDENTS:

     1      AKALAKUNNAM GRAMA PANCHAYATH,
            MANALUNKAL P.O., KOTTAYAM DISTRICT 686 503,
            REPRESENTED BY ITS SECRETARY.
     2      THE SECRETARY,
            AKALAKUNNAM GRAMA PANCHAYATH,
            MANALUNKAL P.O.,
            KOTTAYAM DISTRICT 686 503.
     3      THE SENIOR GEOLOGIST,
            DEPARTMENT OF MINING AND GEOLOGY,
            CIVIL STATION,
            KOTTAYAM DISTRICT 686 002.
     4      CHIEF TOWN PLANNER,
            OFFICE OF CHIEF TOWN PLANNER ,
            2 AND 3RD FLOOR,
            SWARAJ BHAVAN, NANDANCODE,
            KAWADIYAR P.O., THIRUVANANTHAPURAM 03.

          BY ADV. SRI.P.I.GEORGEKUTTY, SC FOR PANCHAYATH
          BY GOVERNMENT PLEADSER SMT. SURYA BINOY
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.08.2021, ALONG WITH WP(C).27660/2020 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.27660/2020 & Connected cases
                                   :3 :



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                      WP(C) NO. 10513 OF 2021
PETITIONER:
          THOMASKUTTY,
          AGED 55 YEARS,
          S/O. JOSEPH, MYLADIYIL HOUSE,
          MANALINKAL P.O. AKALAKUNNAM VILLAGE,
          KOTTAYAM TALUK, KOTTAYAM DISTRICT.

            BY ADV P.M.ZIRAJ
RESPONDENTS:
     1    SENIOR GEOLOGIST,
          DISTRICT OFFICE,
          DEPARTMENT OF MINING AND GEOLOGY,
          CIVIL STATION , KOTTAYAM 686 002.
     2    CHIEF TOWN PLANNER,
          OFFICE OF CHIEF TOWN PLANNER,
          2 AND 3RD FLOOR, SWARAJ BHAVAN,
          NANDANCODE, KAWADIYAR P.O.
          THIRUVANANTHAPURAM 03.
  ADDL.3 AKALAKUNNAM GRAMA PANCHAYATH,
          MANALUNKAL P.O.,
          KOTTAYAM DISTRICT, PIN-686503
          REPRESENTED BY ITS SECRETARY.
  ADDL.4 THE SECRETARY,
          AKALAKUNNAM GRAMA PANCHAYATH,
          MANALUNKAL P.O.,
          KOTTAYAM DISTRICT, PIN:686503

          (ADDITIONAL RESPONDENTS 3 AND 4 ARE IMPLEADED AS
          PER ORDER DATED 05.08.2021 IN IA.NO.1 OF 2021)
          BY ADVS.
          GOVERNMENT PLEADER SMT.SURYA BINOY
          SRI. P.I.GEORGEKUTTY, SC FOR PUNCHAYATH
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.08.2021, ALONG WITH WP(C).27660/2020 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.27660/2020 & Connected cases
                                   :4 :




                          JUDGMENT

~~~~~~~~~

Dated this the 5th day of August, 2021

[WP(C) Nos.27660/2020, 10512/2021 & 10513/2021]

In all these writ petitions, the petitioners wanted to

construct Villas. The Akalakunnam Grama Panchayat issued

Building Permits for construction of the Villas. The

construction of the Villas needed levelling of land. Therefore,

the petitioners submitted application for Development Permit.

2. The applications submitted by the petitioners for

Development Permit were not positively considered by the

Panchayat authorities. It is aggrieved by the non-issuance of

Development Permits that the petitioners have approached

this Court.

3. The learned counsel for the petitioners urged that in

the absence of Development Permit, the Geologist will not be

issuing Mineral Transit Passes which are highly necessary for WP(C) No.27660/2020 & Connected cases

construction of the Villas. The action of the Panchayat

authorities in declining Development Permit is highly illegal

and arbitrary.

4. The Akalakunnam Grama Panchayat filed counter

affidavit in W.P.(C) No.27660/2020 and contested the writ

petition. The Panchayat submitted that there were several

complaints against removal of earth, from the neighbouring

property owners and one Nature Protection Samithy.

Considering the seriousness of the complaints, the application

was placed before the Panchayat Committee. Taking into

consideration the consequences which may arise from the

removal of soil from hilltop, the Panchayat did not issue the

Development Permit immediately. The District Collector

sought for a report on the issue. The Village Officer issued

Ext.R1(c) communication to the Secretary to the Grama

Panchayat stating that removal of earth from the top of the hill

would result in scarcity of drinking water, landslide, etc. The

residents of the locality will be adversely affected due to drying

up of drinking water sources. In the circumstances, removal WP(C) No.27660/2020 & Connected cases

of ordinary earth from the hilltop cannot be permitted. It is

based on the said report of the Village Officer that the

Panchayat authorities have desisted from issuing

Development Permit.

5. In W.P.(C) No.10513/2021, on the application

submitted by the petitioner therein for Development Permit,

the Panchayat issued Ext.P3 communication stating that as

Building Permit is already issued to the petitioner therein, no

further Development Permit is required in the light of Ext.P4

communication.

6. The learned Standing Counsel for the Panchayat

would submit that in W.P.(C) No.10513/2021, the Panchayat

authorities have issued Ext.R3(4) communication to the

petitioner making it clear that removal of such huge amount of

ordinary earth is not necessary for the building construction

proposed by the petitioner and the petitioner was required to

submit a revised proposal for removal of ordinary earth. The

petitioner submitted Ext.R3(5) reply to the said Ext.R3(4)

communication and thereafter, the Panchayat authorities WP(C) No.27660/2020 & Connected cases

issued Ext.P3 communication stating that since the petitioner

has already been issued a Building Permit, no further

Development Permit is required.

7. The construction of the petitioner being

construction of Villas, necessarily the work will include land

development. For development of land, a Development

Permit is mandated under the Kerala Panchayat Building

Rules. For transportation of ordinary earth, due sanction from

the Geologist is required under the Kerala Minor Mineral

Concession Rules. Without getting Transit Passes from the

Geologist, if the petitioners carry on the activity, the petitioners

will be facing penal action including prosecution under the

relevant statute. In the circumstances, a Development Permit

is indeed necessary for the petitioners.

8. The contention of the Panchayat is that such

removal of large quantities of ordinary earth from the site is

likely to result in adverse environmental impact. Drinking

water availability will be reduced and removal of earth from the

hilltop may result in drought situation also. It will create untold WP(C) No.27660/2020 & Connected cases

hardship to the local residents and therefore the Panchayat

authorities are not in a position to issue Development Permit.

9. In these cases, it is to be noted that the Panchayat

authorities have relied on a report of the Village Officer for

arriving at the conclusion that removal of ordinary earth will

result in adverse environmental consequences. A report of

the Village Officer is not a material legally sufficient enough for

the Panchayat to decline Development Permit. In case the

Panchayat authorities want to decline Development Permit,

they will have to obtain expert opinion in the matter from a

competent Body. The action of the Panchayat in declining the

application for Development Permit to the petitioners on the

basis of a report by the Village Officer, is therefore

unsustainable.

10. In such circumstances, the Akalakunnam Grama

Panchayat is directed to reconsider the application submitted

by the petitioners for issuance of Development Permit. The

Panchayat authorities will be at liberty to obtain expert opinion

on the environmental issues from a competent Body/expert WP(C) No.27660/2020 & Connected cases

agency. If the Panchayat authorities propose to obtain such

expert opinion, then the applications of the petitioners should

be considered in the light of such expert opinion and a

decision shall be taken in the matter. Final orders on the

applications for Development Permit shall be passed within a

period of six weeks. Ext.P8 decision taken by the Panchayat

Committee and Ext.P9 communication issued by the Secretary

in W.P.(C) No.27660/2020, which are not based on such

expert opinion, are unsustainable and therefore they are set

aside. Exts.P3 and P4 in W.P.(C) No.10512/2021 are also set

aside.

Writ petitions are disposed of as above.

Sd/-

N. NAGARESH, JUDGE

aks/06.08.2021 WP(C) No.27660/2020 & Connected cases

APPENDIX OF WP(C) 27660/2020

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT OF PROPERTY OF PETITIONER DATED 19.05.2020 ISSUED BY THE VILLAGE OFFICER, AKALAKUNNAM VILLAGE.

EXHIBIT P2        TRUE COPY OF THE SKETCH OF THE PROPERTY
                  ISSUED    BY    THE    VILLAGE    OFFICER,
                  AKALAKUNNAM VILLAGE.
EXHIBIT P3        TRUE COPY OF THE POSSESSION CERTIFICATE

DATED 20.08.2020ISSUED BY THE VILLAGE OFFICER, AKALAKUNNAM VILLAGE.

EXHIBIT P4        TRUE COPY OF THE RECEIPT DATED 6.3.2020
                  IN    CONNECTION     WITH    RECEIPT    OF

APPLICATION FOR BUILDING PERMIT ISSUED BY THE SECOND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 30.07.2020 IN CONNECTION WITH RECEIPT OF APPLICATION FOR DEVELOPMENT PERMIT ISSUED BY THE SECOND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE LETTER OF ENQUIRY DATED 14.09.2020 ISSUED BY THE SECOND RESPONDENT TO THE DISTRICT GEOLOGIST, KOTTAYAM.

EXHIBIT P7        TRUE COPY OF THE REPLY DATED 23.09.2020
                  ISSUED   BY   THE   DISTRICT    GEOLOGIST,
                  KOTTAYAM TO THE SECOND RESPONDENT.
EXHIBIT P8        TRUE COPY OF THE RELEVANT PAGES OF THE

DECISION TAKEN BY THE FIRST RESPONDENT IN THE MEETING HELD ON 16.10.2020.

EXHIBIT P9        TRUE COPY OF THE COMMUNICATION ISSUED
                  BY   THE     SECOND    RESPONDENT    DATED
                  28.10.2020 TO THE PETITIONER.
RESPONDENTS' EXHIBITS:

EXHIBIT R1(a)           THE   TRUE   COPY  OF   THE COMPLAINT

SUBMITTED BY TEH AKALAKUNNAM NATURE PROTECTION SAMITHI TO THE DISTRICT COLLECTOR DATED 9.10.2020 WP(C) No.27660/2020 & Connected cases

EXHIBIT R1(b) THE TRUE COPY OF THE COMMUNICATION DATED 23.10.2020 EXHIBIT R1(c) THE TRUE COPY OF THE REPORT BY VILLAGE OFFICER DATED 8.1.2021 WP(C) No.27660/2020 & Connected cases

APPENDIX OF WP(C) 10512/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE TAX RECEIPT DATED
                        24.7.2020    ISSUED    BY    THE    VILLAGE
                        OFFICER, AKALAKUNNAM VILLAGE.
EXHIBIT P2              TRUE COPY OF THE SITE APPROVAL AND

BUILDING PERMIT DATED 22.6.2020 ISSUED BY THE SECOND RESPONDENT ON BEHALF OF FIRST RESPONDENT.

EXHIBIT P3              TRUE COPY OF THE DECISION NO. 14/2 OF
                        THE   PANCHAYATH    COMMITTEE    OF   FIRST
                        RESPONDENT HELD ON 6.11.2020.
EXHIBIT P4              TRUE COPY OF THE COMMUNICATION DATED
                        20.11.2020    ISSUED    BY    THE    SECOND
                        RESPONDENT TO THE PETITIONER.
EXHIBIT P5              TRUE COPY OF THE RECEIPT DATED 3.8.2020
                        ISSUED    BY   THE    SECOND     RESPONDENT

REGARDING RECEIPT OF APPLICATION FOR DEVELOPMENT PERMIT BY THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.12.2020 ISSUED BY THE FOURTH RESPONDENT.

RESPONDENTS' EXHIBITS:

ANNEXURE R1(A) THE TRUE COPY OF THE REQUEST GIVEN BY THE PETITIOENR FOR LAND DEVELOPMENT DATED 27.7.2020 ANNEXURE R1(B) THE TRUE COPY OF THE REQUEST FROM THE PANCHAYATH TO THE ENGINEER DATED 13.8.2020 ANNEXURE R1(C) THE TRUE COPY OF THE REPORT PREPARED BY THE ASSISTANT ENGINEER, LSGD DATED 16.9.2020 ANNEXURE R1(D) THE TRUE COPY OF THE COMPLAINT BY THE NATURE PROTECTION SAMITHY BY ITS LETTER DATED 7.10.2020 ANNEXURE R1(E) THE TRUE COPY OF THE COMPLAINT FROM ONE P.J.KURIAN DATED 23.10.2020 IS PRODUCED AS ANNEXURE R1(F) THE TRUE COPY OF THE MINUTES OF THE PANCHAYATH COMMITTE DATED 16.10.2020 WP(C) No.27660/2020 & Connected cases

ANNEXURE R1(G) THE TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, AKALAKUNNAM DATED 8.1.2021 WP(C) No.27660/2020 & Connected cases

APPENDIX OF WP(C) 10513/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE TAX RECEIPT DATED
                        12.4.2021   ISSUED   BY   THE    VILLAGE
                        OFFICER, AKALAKUNNAM VILLAGE.
EXHIBIT P2              TRUE COPY OF THE SITE APPROVAL AND

BUILDING PERMIT DATED 18.8.2020 ISSUED BY THE SECRETARY AKALAKUNNAM GRAMA PANCHAYATH.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.3.2021 ISSUED BY SECRETARY, AKALAKUNNAM GRAMA PANCHAYATH.

EXHIBIT P4 TRUE COPY OF THE ORDER OF SECOND RESPONDENT DATED 22.12.2020.

EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 23.04.2021 SUBMITTED BY PETITIONER BEFORE THE FIRST RESPONDENT.

SR