Suja George vs Bharananganam Grama Panchayat
2021 Latest Caselaw 21613 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
    TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                        WP(C) NO. 22867 OF 2021
PETITIONER:

          SUJA GEORGE,
          AGED 45 YEARS
          W/O.SUSEEL JACOB, NAMBUDAKATHU, KALATHUKADAVU P.O.,
          BHARANANGANAM, KOTTAYAM-686 579, PRESENTLY RESIDING AT
          #201, NORTH FORTE APPARTMENT, 22ND NORTH ROAD, NEAR
          HOLY GHOST CHURCH, ST.THOMAS TOWN, BENGALURU,
          KARNATAKA-560 084.

          BY ADV CHITHRA CHANDRASEKHARAN



RESPONDENTS:

    1     BHARANANGANAM GRAMA PANCHAYAT,
          REPRESENTED BY ITS SECRETARY, OFFICE OF THE
          BHARANANGANAM GRAMA PANCHAYATH, BHARANANGANAM-
          PAVITHANAM ROAD, KOTTAYAM-686 578.

    2     THE VILLAGE OFFICER, BHARANANGANAM VILLAGE OFFICE,
          EDAMATTOM, KOTTAYAM-686 577.

    3     THE GEOLOGIST,
          MINING AND GEOLOGY DEPARTMENT,
          KOTTAYAM DISTRICT, PIN-686 002.



          APPU.P.S-GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 22867 OF 2021

                                          2


                                 JUDGMENT

This writ petition is filed seeking the following reliefs:

"i) issue a writ of certiorari or other appropriate writ or order or direction quashing Ext.P7 order passed by the 3 rd respondent.

ii) issue a writ of mandamus or any other appropriate writ, direction or order directing the 3rd respondent to issue appropriate orders granting permit to the petitioner to remove ordinary earth from the property of the petitioner in Sy. Nos.317/3-1 in Block No.36 of Bharananganam Village."

2. Heard the learned counsel for the petitioner, the learned

Standing Counsel appearing for the 1st respondent Panchayath as well

as the learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner that

the petitioner is the owner in possession of an extent of 28.45 Ares of

property in Survey No.317/3-1 in Block No.36 of the Bharananganam

Village in Meenachil Taluk, Kottayam District. It is submitted that the

petitioner had obtained Ext.P3 building permit and Ext.P5 development

permit for developing an area of 13.98 ares of property. It is submitted

that Ext.P5 development permit would show the area where the

construction is to be carried out is clearly demarcated and that the WP(C) NO. 22867 OF 2021

quantity of earth to be removed is also clearly mentioned. It is

submitted that when an application was submitted for transit passes, it

was rejected by the 3rd respondent by Ext.P7 stating that the

permission for removal of ordinary earth can be granted only for the

purpose of construction of one house for one person and that the

petitioner requires an Environmental Clearance and quarrying permit

for the development of the property in question.

4. The learned counsel for the petitioner submits that there is no

such requirement in the Kerala Minor Mineral Concession Rules, 2015

and that the Rule specifically states that there is no necessity for a

quarrying permit where the construction is less than 20,000 m 2. The

learned counsel for the petitioner submits that in view of the fact that

the total construction proposed to be carried out by the petitioner

would come only to 525.95 m2 and that there is no requirement for

either an Environmental Clearance or a quarrying permit in terms of

the Rules.

5. The learned Government Pleader submits that the amended

provision of Rule 14 (2) would make it clear that quarrying permit is

not required for extraction of ordinary earth in connection with WP(C) NO. 22867 OF 2021

construction and digging of foundation for buildings not requiring

Environmental Clearance under the Environmental Protection Act, if

the owner of the land has obtained a prior valid permit for

construction of such building from the Local Self Government

Authority concerned. It is however submitted that in case the

petitioner requires the permit for quarrying of ordinary earth without

actually proposing to construct the two buildings as sought for by her,

then the petitioner is liable to obtain a quarrying permit.

6. Having considered the contentions advanced on either side, I

notice that Ext.P3 building permit as well as Ext.P4 site plan and Ext.P5

development permit have been obtained by the petitioner with regard

to the construction of two residential houses in the property in

question. From a reading of the provisions of Rule 14 of the Kerala

Minor Mineral Concession Rules, 2015, I do not find any provisions

stating that concession is liable to be granted only for the purpose of

construction of one house by one person in one property. No such

restriction is available in Rule 14 of the said Rules. It is also clear from

the amended provision of Rule 14 (2) that Environmental Clearance and

quarrying permit would not be required if the construction does not WP(C) NO. 22867 OF 2021

exceed a built up area of 20,000 m2.

In the above factual situation, I am of the opinion that the

rejection of the application for permission to remove the ordinary

earth and for transit passes by Ext.P7 is completely unjustified. Ext.P7

is, therefore, set aside. There will be a direction to the 3 rd respondent to

take up the application submitted by the petitioner for permission to

remove ordinary earth and for transit passes and to consider and pass

orders on the same after conducting due inspections, taking note of

Exts.P3, P4 and P5, within a period of one month from the date of

receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C) NO. 22867 OF 2021

APPENDIX OF WP(C) 22867/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE NO.54882208 DATED 25.02.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P2 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 10.07.2020 ISSUED BY THE 2ND RESPONDENT.

Exhibit P3 TRUE COPY OF THE BUILDING PERMIT DATED 18.01.2021.

Exhibit P4                TRUE COPY OF THE SITE PLAN DATED
                          23.02.2021.

Exhibit P5                TRUE COPY OF THE DEVELOPMENT PERMIT DATED
                          18.01.2021.

Exhibit P6                TRUE COPY OF THE GO DATED 12.06.2020
                          ISSUED BY THE GOVERNMENT.

Exhibit P7                TRUE COPY OF THE REJECTION ORDER ISSUED BY
                          THE 3RD RESPONDENT DATED 23.07.2021.

Exhibit P8                TRUE COPY OF THE JUDGMENT IN WPC
                          NO.14696/2021 DATED 06.09.2021.