Kerala High Court
Seena vs State Of Kerala on 16 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 16TH DAY OF JULY 2021/25TH ASHADHA, 1943
WP(C) NO. 22867 OF 2020
PETITIONER:
SEENA, AGED 40 YEARS,
D/O ALPHONSIA, SNEHA BHAVAN,
FATHIMA JN. PERAYAM,
PADAPPAKKARA P.O., KOLLAM.
BY ADV VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-01.
2 DEPUTY DIRECTOR OF PANCHAYATH,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH,
KOLLAM-691 001.
3 GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, KOLLAM-691 001.
4 PERAYAM GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
OFFICE OF PERAYAM GRAMA PANCHAYATH,
MULAVANA P.O., KOLLAM-691 503.
R1-R3 BY GOVERNMENT PLEADER SRI.MANU RAJ
R4 BY ADV. SRI.M.R.SASITH PANICKER, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No.22867/2020
2
JUDGMENT
Dated this the 16th day of July, 2021
The petitioner was granted a site approval and a
building permit, as also a Development Permit for
construction of a residential building. It is seen that
subsequently the Panchayath authorities issued Ext.P4
cancelling the Development Permit granted to the petitioner
mainly on the ground that the petitioner has removed
excess quantity of ordinary earth from the land, than that is
required for development of land and in excess of permitted
quantity. It appears that on the basis of action taken by the
Panchayath authorities, the Geologist has also issued
Ext.P3, cancelling the permission granted to the petitioner,
directing to stop transportation of ordinary earth and
directing the petitioner to surrender unused transit passes.
WP(C) No.22867/2020
2. The petitioner thereupon submitted Ext.P5
representation to the Secretary to the Grama Panchayath.
It is seen from Ext.R4(2) that the Assistant Engineer made a
site visit of the land in question and came to a conclusion
that the petitioner has not excavated/transported excess
quantity of ordinary earth. The Assistant Engineer also
noted that the permit granted to the petitioner has expired
on 26.08.2020. Therefore the Assistant Engineer
recommended that the ordinary earth can be removed only
after getting permission from the Department of Mining and
Geology.
3. The learned Standing Counsel for the
Panchayath submitted that on the basis of complaints
received, the Panchayath issued notice to the petitioner and
stop memo, alleging excess removal of ordinary earth. As
the petitioner could not given satisfactory explanation/reply,
the Development Permit was cancelled as per Ext.P4.
WP(C) No.22867/2020
Subsequently, the petitioner filed Ext.P5 representation
based on which the Panchayath caused inspection by the
Assistant Engineer and obtained as Ext.R4(2) report. The
learned Standing Counsel for the Panchayath submitted
that the Panchayath is ready to consider Ext.P5
representation and take final decision thereon, but the
petitioner will have to obtain necessary clearances from the
Geologist also.
4. The learned Government Pleader filed a
statement in which it is informed that the office of the 3 rd
respondent-Geologist received a notice from the Secretary
stating that removal of ordinary earth from the site is in such
a manner that it will cause damage to the property. It was
based thereon that the 3rd respondent issued Ext.P3 Stop
Memo.
5. I have heard the learned counsel for the
petitioner, the learned Government Pleader representing
WP(C) No.22867/2020
the 1st respondent and the learned Standing Counsel
appearing for the Panchayath.
5. From Ext.R4(2) report prepared by the Assistant
Engineer and made available to this Court, it is seen that
the petitioner has not yet utilised the Development Permit
and removed the ordinary earth upto the limit permitted by
the authorities. This is a matter which should be considered
by the Panchayath authorities for taking a fair decision in
the matter.
In the circumstances, the writ petition is disposed of
directing the Panchayath authorities to consider Ext.P5
representation submitted by the petitioner in the light of
Ext.R4(2) report of the Assistant Engineer. However, it is
made clear that the removal and transportation of ordinary
earth shall be carried out by the petitioner only after
obtaining necessary permits/clearances from the Geologist.
The Geologist will grant such clearances/permit after
WP(C) No.22867/2020
making site inspection. The Panchayat authorities shall
take a final decision on Ext.P5 within a period of four
weeks.
Sd/-
N. NAGARESH
JUDGE
ncd/16.07.2021
WP(C) No.22867/2020
APPENDIX OF WP(C) 22867/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO.
A2-5410/2019/92 DATED 9/1/2020 ALONG
WITH PLAN APPROVED BY THE PANCHAYATH.
EXHIBIT P2 TRUE COPY OF THE ORDER ISSUED BY THE
GEOLOGIST KOLLAM DATED 14/08/2020.
EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE
3RD RESPONDENT DATED 24/08/2020.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED
27/8/2020 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPLY SUBMITTED
BEFORE TE E4TH RESPONDENT.
RESPONDENTS' EXHIBITS
EXHIBIT R4(1): TRUE COPY OF COMPLAINT GIVEN BY LOCAL
RESIDENTS TO THIS RESPONDENT DATED
19/08/2020.
EXHIBIT R4(2): TRUE COPY OF REPORT OF THE ASSISTANT
ENGINEER OF LSGD SECTION DATED
14/10/2020.
