Sebastin Joseph vs State Of Kerala
2021 Latest Caselaw 18728 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                  WP(C) NO. 8261 OF 2021
PETITIONERS:

    1    SEBASTIN JOSEPH,
         AGED 46 YEARS,
         SON OF JOSEPH, MUNDANTHADATHIL HOUSE,
         THELLAKAM.P.O, KOTTAYAM, KERALA-686016.
    2    ANIT SEBASTIN,
         AGED 39 YEARS,
         WIFE OF SEBASTIN JOSEPH,
         MUNDANTHADATHIL HOUSE,
         THELLAKAM, THELLAKAM.P.O,
         KOTTAYAM, KERALA-686016.

         BY ADVS.
         SHRI.V.JOHN MANI
         SHRI.S.JAYANT
         SRI.JACKSON JOHNY
         SHRI.VARGHESE SABU
         SHRI.SETHULAKSHMI K.K.
         SMT.GAYATHRI MENON


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY THE SECRETARY,
         REVENUE AND HOUSING, SECRETARIAT,
         THIRUVANANTHAPURAM-695001.
    2    VILLAGE OFFICER,
         VILLAGE OFFICE,
         MEENACHIL, KOTTAYAM-686573.
    3    SECRETARY,
         MEENACHIL GRAMA PANCHAYATH,
         EDAMATTAM.P.O.,
         KOTTAYAM, KERALA-686578.

          R3 BY ADV SRI.P.C.HARIDAS
          SRI.SYAMANTHAK B.S, GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 09.09.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.8261/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 9th day of September, 2021

Petitioners are before this Court aggrieved by the

action of the 3rd respondent in issuing Ext.P4 notice and by the

inaction on the part of the 3rd respondent to consider Ext.P5

reply submitted by the petitioners.

2. The petitioners state that they proposed to

construct six residential units in 99.57 Ares of land in

Meenachil Village. As per Ext.P2, the petitioners have been

granted building permit also. Thereafter, since the

construction of six residential units involved development of

land, the petitioners submitted Ext.P3 site plan for obtaining

Development Permit under Rule 5 of the Kerala Panchayat

Building Rules. The request of the petitioners was not

entertained stating that the quantity of earth sought to be WP(C) No.8261/2021

removed is excessive and that for construction of residential

houses, only normal site levelling work is required. The

petitioners were directed to carry out the work on the basis of

the Building Permit already issued.

3. The learned counsel for the petitioners would

submit that the levelling of the plot would naturally require

transportation of ordinary earth for which mineral transit pass

will be required from the Department of Geology and only if

the Grama Panchayat issues Development Permit, the

petitioners will be able to obtain requisite passes from the

Geologist.

4. The 3rd respondent entered appearance and

contested the writ petition filing counter affidavit. In the

counter affidavit, the 3rd respondent stated that the application

submitted by the petitioner for Development Permit has not

been allowed in view of a finding that the quantity of earth

sought to be removed by the petitioners is huge and much

excessive than the requisite quantum. In view of the above,

there is no scope for issuing a Development Permit since the WP(C) No.8261/2021

petitioners can construct the six residential houses after

carrying out normal ground levelling work without extraction of

ordinary earth.

5. I have heard the learned counsel for the petitioners,

the learned Government Pleader appearing for respondents 1

and 2 and the learned Standing Counsel representing the 3 rd

respondent.

6. Since the petitioners are constructing six residential

houses, which involves subdivision of land into plots,

necessarily the petitioners require Development Permit. This

crucial fact has not been taken into consideration in Ext.P4. In

such circumstances, this Court is of the considered view that

the matter has to be reconsidered by the Secretary.

7. In the circumstances, the 3rd respondent-Secretary

is directed to reconsider the request of the petitioners for

issuance of Development Permit. If the petitioners submit all

necessary documents in support of the application for

Development Permit, the Secretary shall consider the same

and pass appropriate orders within a period of one month. To WP(C) No.8261/2021

enable the Secretary to reconsider the matter, Ext.P4 order is

set aside.

Writ petition is disposed of as above.

Sd/-

N. NAGARESH, JUDGE

aks/09.09.2021 WP(C) No.8261/2021

APPENDIX OF WP(C) 8261/2021

PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF SALE DEED EXECUTED BETWEEN 2ND PETITIONER AND TOM JOSEPH DATED 28.09.2019 EXHIBIT P1(A) A TRUE COPY OF SALE DEED EXECUTED BETWEEN 1ST PETITIONER AND SHEILA TOM 24.10.2018.

EXHIBIT P1(B) A TRUE COPY OF SALE DEED EXECUTED BETWEEN 1ST PETITIONER AND TOM JOSEPH DATED 24.10.2018 EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.A3-

BA(35847)/2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS DATED 30.12.2020 EXHIBIT P3 A TRUE COPY OF THE SITE PLAN FOR LAND DEVELOPMENT EXHIBIT P4 A TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 17/02/2021 EXHIBIT P5 A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 22.02.2021 EXHIBIT P6 A TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT FOR EXHIBIT P5 REPLY TO THE PETITIONER EXHIBIT P7 A TRUE COPY OF PHOTOGRAPHS OF THE PROPERTY.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a) TRUE COPY OF THE REPORT DATED MIL OF THE LSGD SECTION OF 3RD RESPONDENT.

SR