N.M.Devassiya vs The Secretary, East Eleri Grama ...
2021 Latest Caselaw 13882 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
  TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                    WP(C) NO. 27975 OF 2020
PETITIONER:

         N.M.DEVASSIYA,
         AGED 77 YEARS,
         S/O. MATHAI,
         RESIDING AT NARIMATTATHIL HOUSE,
         PALAVAYAL (P.O),
         KASARAGOD DISTRICT,PIN-670 511

         BY ADVS.
         JAWAHAR JOSE
         SMT.CISSY MATHEWS
         SRI.JAISON ANTONY


RESPONDENTS:

    1    THE SECRETARY,
         EAST ELERI GRAMA PANCHAYATH,
         CHITTARIKKAL (P.O),
         KASARAGOD DISTRICT,PIN-671 326
    2    THE DEPUTY DIRECTOR OF PANCHAYATS,
         2ND FLOOR, B BLOCK, CIVIL STATION,
         VIDYANAGAR (P.O), KASARAGOD, PIN-671 123
    3    THE GEOLOGIST,
         DISTRICT OFFICE,
         DEPARTMENT OF MINING AND GEOLOGY,
         2ND FLOOR, E BLOCK, CIVIL STATION,
         VIDYANAGAR (P.O), KASARAGOD,PIN-671 123

         BY ADV SRI.GEORGE JACOB (JOSE)
         GOVERNMENT PLEADER SRI MANU RAJ

     THIS WRIT PETITION       (CIVIL) HAVING COME UP   FOR
ADMISSION ON 06.07.2021,      THE COURT ON THE SAME    DAY
DELIVERED THE FOLLOWING:
 WP(C) No.27975/2020
                                   :2 :




                          JUDGMENT

~~~~~~~~~

Dated this the 6th day of July, 2021

The petitioner is aggrieved by Ext.P3 order passed

by the 1st respondent and seeks to direct the 1 st respondent to

consider Ext.P7 application in the light of Ext.P6 Contour map,

and issue building permit to the petitioner.

2. The petitioner states that he owns 88.5 cents of

land in Palavayal Village in Kasaragod District. The land is

sloppy and has rocky surfaces. With an intent to construct

building in the land, the petitioner submitted an application to

the 1st respondent for building permit on 20.03.2019. The

application was rejected holding that the petitioner should first

obtain development permit, as the construction required

levelling of land.

3. The petitioner submitted application for

Development Permit, which was rejected by the 1 st respondent WP(C) No.27975/2020

as per Ext.P3 order dated 09.01.2020 on the ground that the

land is having a slope of 45 degrees. Ext.P3 was passed

without physical verification, contends the petitioner. Hence,

he filed a complaint before the 2 nd respondent-Deputy Director

of Panchayats. That complaint was rejected as per Ext.P4

order dated 14.09.2020.

4. The petitioner had sought permission from the 3 rd

respondent-Geologist for removing rocks in the property. The

intention was to cultivate crops in the remaining property. The

District Collector, as per Ext.P5 communication, informed the

petitioner that rocks can be removed only after obtaining

Development Permit and a building permit. The petitioner

thereafter approached a Surveyor. The Surveyor prepared a

contour map (Ext.P6) of the property and found that the

property has only 24 degree slope. Immediately, the petitioner

submitted Ext.P7 application to the 1 st respondent requesting

to reconsider his applications for building permit/development

permit. As Ext.P7 was not positively responded to, the

petitioner has filed this writ petition. WP(C) No.27975/2020

5. The 1st respondent filed counter affidavit and

contested the writ petition. The 1 st respondent stated that the

petitioner has clandestinely mined and removed granite

without obtaining development permit. The Village Officer

hence issued Ext.R1(A) Stop Memo. When the petitioner filed

application for building permit, he was required to cure certain

defects. The petitioner submitted revised plan and the

Panchayat conducted site inspection. The petitioner was

informed that as the property needs levelling, he has to obtain

development permit.

6. On petitioner's application for development permit,

an inspection was conducted on 07.01.2020 and it was found

that the petitioner's land has a slope of 45 degrees. A further

inspection was scheduled to be conducted on 25.11.2020, but

the petitioner and Surveyor did not turn up. According to the

1st respondent, during 2019 floods, a house constructed on a

similar slope hardly one kilometer far, was washed away. In

the circumstances, the writ petition should be dismissed.

7. Heard learned counsel for the petitioner, learned WP(C) No.27975/2020

Standing Counsel for the 1st respondent and learned

Government Pleader representing respondents 2 and 3.

8. When this writ petition came up for hearing, this

Court passed an interim order on 03.02.2021 directing the 1 st

respondent to file a statement after ascertaining the slope of

the plot of the petitioner with the assistance of a technical

expert preferably in the service of the State Government.

Pursuant thereto, the 1st respondent has filed a statement

dated 17.02.2021, paragraph 4 of which reads as follows:

"In the wake of the considerably lengthy process involved in taking measurements at various sots reckoning the angle, height and length, the services of 2 employees having experience in the measurement process were also availed. After completing the measurement process, the taluk surveyor had made a contour map portraying that the slope was between 220 and 250. True copy of the contour map prepared by the taluk surveyor is produced herewith and marked as AnnexureR1(E)."

Therefore, it has come out now that the slope of the land in

question is between 20 degrees and 25 degrees. Ext.P3

order is therefore based on erroneous data and is therefore

liable to be set aside.

WP(C) No.27975/2020

9. The further defence of the 1 st respondent is that the

petitioner has removed granite without permission and that in

similar circumstances, another house was washed away

during 2019 floods.

10. The petitioner has stated that he has made an

application to the 3rd respondent seeking permission to

remove the rocks in order to level the property. The 3 rd

respondent being the competent authority in this regard, it is

for the 3rd respondent to take any action in this regard. It

cannot be a reason for the 1 st respondent to reject an

application for building permit, unless such rejection is a

statutory mandate. No such requirement is brought to the

notice of this Court. If rules permit construction of buildings in

property with 20 to 25 degrees, then building permit cannot be

denied by the Panchayat for the reason that another building

nearby was washed away during floods earlier.

11. In the facts and circumstances of the case, Ext.P3

is set aside. The 1st respondent is directed to consider Ext.P7

application filed by the petitioner in the light of Ext.P6 contour WP(C) No.27975/2020

map and issue building permit to the petitioner, if the petitioner

is otherwise eligible for building permit. The 1 st respondent

shall also consider the request of the petitioner for a

development permit based on Ext.P6. A decision in this

regard shall be taken by the 1st respondent within a period of

four weeks.

Writ petition is disposed as above.

Sd/-

N. NAGARESH, JUDGE

aks/07.07.2021 WP(C) No.27975/2020

APPENDIX OF WP(C) 27975/2020

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 23.5.2019 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE DECISION OF THE ADALAT DATED 26.7.2019 ORGANIZED BY THE LOCAL- SELF GOVERNMENT INSTITUTIONS DEPARTMENT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 9.1.2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14.9.2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 20.2.2020 ISSUED BY THE DISTRICT COLLECTOR, KASARGOD EXHIBIT P6 TRUE COPY OF THE CONTOUR MAP PREPARED BY THE SURVEYOR ON 20.10.2020 EXHIBIT P6A COPY OF THE PHOTOGRAPHS (THREE IN NUMBER) EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 22.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P8 COPY OF THE PHOTOGRAPHS

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE STOP MEMO COMMUNICATION ISSUED BY THE VILLAGE OFFICER, PALAVAYAL EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 5/12/2019 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 18/11/2020 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER EXHIBIT R1(D) TRUE COPY OF THE REPORT DATED 26/11/2020 OF THE ASSISTANT ENGINEER OF THE PANCHAYATH.

EXHIBIT R1(E) TRUE COPY OF THE CONTOUR MAP PREPARED BY THE TALUK SURVEYOR, VELLARIKUNDU AS DIRECTED BY THIS HON'BLE COURT.

SR