Baby Mathew vs State Of Kerala
2021 Latest Caselaw 16584 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  WEDNESDAY, THE 11TH DAY OF AUGUST 2021/20TH SRAVANA, 1943
                      WP(C) NO. 1515 OF 2021


PETITIONER:

         BABY MATHEW,
         AGED 52 YEARS,
         S/O MATHEW,
         MUNDANKANJIRATHUMKAL HOUSE,
         KURAVILANGAD P.O.,
         KOTTAYAM-686 633.

         BY ADVS.
         ROY CHACKO
         SRI.K.C.VINCENT


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY SECRETARY,
         DEPARTMENT OF REVENUE,
         THIRUVANANTHAPURAM-695 001.

    2    THE GEOLOGIST, OFFICE OF THE
         DISTRICT GEOLOGIST,
         KOTTAYAM-686 002.

    3    THE TAHSILDAR (LR),
         MEENACHIL TALUK OFFICE,
         PALA P.O., KOTTAYAM-686 575.

    4    THE VILLAGE OFFICER,
         KURAVILANGAD,
         KURAVILANGAD P.O.,
         KOTTAYAM-686 633.

    5    THE SECRETARY,
         THE KURAVILANGD GRAMA PANCHAYATH,
         KURAVILANGAD P.O.,
         KOTTAYAM-686 633.

    6    THE KURAVILANGAD GRAMA PANCHAYATH,
         KURAVILANGAD P.O.,
 WP(C) No.1515/2021

                             2



           KOTTAYAM-686 633,
           REPRESENTED BY ITS SECRETARY.

           BY ADVS.
           R1-R4 BY SR.GOVT.PLEADER SRI.SYMANTHAK B.
           R5-SRI.SIJI ANTONY
           R5-SRI.P.S.SAJEEV (CHIRAYIL)

     THIS WRIT PETITION (CIVIL) HAVING COME UP         FOR
ADMISSION ON 11.08.2021, THE COURT ON THE SAME         DAY
DELIVERED THE FOLLOWING:
 WP(C) No.1515/2021

                                 3




                          JUDGMENT

Dated this the 11th day of August, 2021

The writ petitioner is before this Court aggrieved by

Ext.P7 and seeks to direct the 2nd respondent to conduct a

site inspection and to issue transit passes on the strength of

Ext.P3 and P5 permits issued by the 5th respondent and

Ext.P4 Certificate issued by the 4th respondent. The

petitioner further seeks to direct the respondents 3 and 4 to

demarcate the property involved in Ext.P5 Development

Permit.

2. The petitioner is the owner of 61.79 Ares of

property comprised in Re.Survey No. 265/4 in Block No.8 of

Kuravilangad Village in Meenachil Taluk. The petitioner

intended to construct a residential building and approached

the 5th respondent-Secretary to Kuravilangad Grama WP(C) No.1515/2021

Panchayat seeking building permit. The Secretary issued

Ext.P3 building permit to the petitioner on 18.06.2020. As

the construction required removal of ordinary earth, the

petitioner approached the Village Officer seeking No

Objection Certificate for issuance of Development Permit.

The Village Officer issued Ext.P4 No Objection Certificate.

Thereupon, the Panchayat issued Ext.P5 Development

Permit on 24.09.2020.

3. The petitioner would submit that the ordinary

earth is to be removed only from 7.98 Ares of land. The

petitioner submitted application to the Village Officer

requesting to take necessary steps to demarcate the 7.98

Ares of property from where ordinary earth is to be removed.

The Village Officer has forwarded the application to the 3 rd

respondent-Tahsildar.

4. To the surprise and predicament of the petitioner,

when the Tahsildar received the reference from the Village WP(C) No.1515/2021

Officer, the Tahsildar issued Ext.P7 notice to the petitioner

alleging that a KSEB tower is situated less than 50 meters

away from the property and further that more than the

ordinary earth stipulated in Ext.P5 will have to be removed

for the purpose of construction. It is aggrieved by Ext.P7

notice of the Tahsildar that the petitioner has approached

this Court.

5. The learned Government Pleader representing

the respondents 1 to 4 contested the case. The 3 rd

respondent filed a counter affidavit in the writ petition. The

3rd respondent submitted that the Village Officer has reported

that he has seen that more earth is to be removed from the

property to construct the building. The Village Officer also

reported that KSEB Tower is situated at a distance of

approximate 50 metres from the property. The earth is to be

removed to a larger extent than the quantity permitted under

Ext.P5.

WP(C) No.1515/2021

6. On receiving the report of the Village Officer, the

Tahsildar inspected the site. The Tahsildar was convinced

about the report of the Village Officer and it was under such

circumstances that Ext.P7 was issued to the petitioner. The

3rd respondent stated that further steps on the application

submitted by the petitioner will be taken on production of the

consent letter from the KSEB and fresh Development Permit

as required.

7. I have heard the learned counsel for the

petitioner, the learned Government Pleader representing

respondents 1 to 4 and the learned Standing Counsel

representing respondents 5 and 6.

8. The application of the petitioner for demarcation

of 7.98 Ares of property for the purpose of construction of the

building has been declined by the respondents as per Ext.P7

stating that on inspection of the site, it was found that the

ordinary earth will have to be removed upto a depth of 3 WP(C) No.1515/2021

metres and it will not be sufficient if the removal of earth is

limited to 1.5 meters. The Tahsildar came to such a

conclusion on the premise that to bring the land at road

level, the ordinary earth is to be removed at a depth of more

than 3 meters. It is on that ground that the Tahsildar has

directed the petitioner to submit a revised Development

Permit. The Tahsildar also noted the existence of electric

tower within 50 meters of property.

9. The learned counsel for the petitioner specifically

contended that the distance between the place where the

building is to be completed and the electric tower is more

than 50 meters and that a proper inspection by the Tahsildar

would disclose this fact. As regards the reasoning given by

the Tahsildar for requirement of removing the excess

quantity of earth, this Court is of the opinion that the

conclusions of the Tahsildar in that regard, are

unsustainable. This is for the reason that the petitioner WP(C) No.1515/2021

states and reasserts that the petitioner does not propose to

construct the building at road level. The proposal is to

construct the building at a height of about 1.5 meters above

the road level. Therefore removing of ordinary earth can be

limited to 1.5 meters.

10. On a perusal of Ext.P5 Development Permit, this

Court finds that as per the said Development Permit, the

total quantity of earth cutting area is stipulated as 1196.99

m3. Therefore unless the petitioner proposes to remove

more ordinary earth than the quantity stipulated in Ext.P5,

the Tahsildar cannot reject the application of the petitioner on

the ground that the construction of the house would require

removal of more quantity of ordinary earth, as long as the

petitioner does not propose to remove the earth exceeding

the quantity stipulated in Ext.P5 Development Permit, the

Tahsildar is bound to honour the building permit issued by

the competent Panchayat.

WP(C) No.1515/2021

11. In such circumstances, this Court is of the

considered opinion that Ext.P7 communication of the

Tahsildar cannot stand a scrutiny of law and it is liable to be

set aside.

In the circumstances, setting aside Ext.P7, the 3 rd

respondent-Tahsildar is directed to demarcate 7.98 Ares of

area where the building is proposed to be constructed and

from where ordinary earth is to be removed. The 3 rd

respondent-Tahsildar shall verify the site again to ensure that

there is sufficient statutory distance between the electric

tower and the plot where the building is to be constructed. If

the 3rd respondent is satisfied that there is sufficient distance,

then the Tahsildar shall proceed to issue site plan to the

petitioner. The directions as above shall be complied with by

the 3rd respondent within a period of six weeks.

Sd/-

N. NAGARESH JUDGE ncd/14.08.2021 WP(C) No.1515/2021

APPENDIX OF WP(C) 1515/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 4.6.2020 EXHIBIT P2 TRUE COPY OF THE LOCATION SKETCH DATED 14.1.2020 EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED 18.6.2020 EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 29.6.2020 ISSUED BY THE VILLAGE OFFICER, KURAVILANGAD.

EXHIBIT P5 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 24.9.2020 EXHIBIT P6 TRUE COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 29.12.2020 ISSUED BY THE TAHSILDAR (LR) MEENACHIL RESPONDENTS' EXHIBITS

ANNEXURE R1(1) TRUE COPY OF THE PROCEEDINGS ORDER NO.DCKTM 241/2018-R7 DATED 19.01.2018.