Kuriachan vs Pazhayannur Gramapanchayath
2021 Latest Caselaw 19777 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
    THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                         WP(C) NO. 259 OF 2021
PETITIONER:

          KURIACHAN
          AGED 63 YEARS
          S/O. POULOSE, KUNNASSERY HOUSE, ADICHIRA, ELANAD,
          THRISSUR DISTRICT, PIN - 650 586.

          BY ADV V.M.KRISHNAKUMAR



RESPONDENTS:

    1     PAZHAYANNUR GRAMAPANCHAYATH
          PAZHAYANNUR P. O., THRISSUR DISTRICT, PIN - 680 587.

    2     SECRETARY
          PAZHAYANNUR GRAMAPANCHAYATH, PAZHAYANNUR P. O.,
          THRISSUR DISTRICT, PIN - 680 587.

    3     ADDL.R3
          DISTRICT GEOLOGIST,
          MINING AND GEOLOGY DEPARTMENT,
          THRISSUR

          ADDL.R3 IS IMPLEADED AS PER ORDER DATE 26.07.2021 IN
          I.A.NO.2/2021 IN W.P.(C)NO.259/2021.

          BY ADVS.
          R1 & R2 BY SRI. BRIJESH MOHAN
          SRI.R.RAJ PRADEEP

          R3 BY SRI.P.S.APPU, GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 259 OF 2021

                                              2




                                       JUDGMENT

This writ petition is filed seeking the following reliefs:

i. Issue a writ in the nature of mandamus commanding the 2 nd respondent to consider Ext.P3 and grant the permission contemplated under Rule 10 of Kerala Panchayath Building Rules 2019 within such time as may be fixed by this Hon'ble Court.

i(a) Issue a writ in the nature of mandamus commanding 3 rd respondent to permit transportation of ordinary earth excavated on the basis of Exhibit P2 building permit, as requested in Exhibit P5 and P6 representation in view of the Exhibit P4 clarification.

ii. Issue such other orders, writs or directions as are deemed fit by this Hon'ble Court.

iii. Award cost of this proceedings to the petitioner.

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

Government Pleader as well as the learned counsel appearing for the

respondent Panchayat.

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

petitioner is the owner in possession of the property in Elanad Village under

the jurisdiction of the 1st respondent Panchayat. He had submitted an

application for site approval and building permit before the Panchayat and

the Panchayat granted the same for construction of 267.01 m2 building,

which is a residential building. It is submitted that the property required WP(C) NO. 259 OF 2021

leveling and the petitioner therefore had submitted an application for

development permit before the Panchayat. However, the said request for

development permit was declined by Ext.P4 stating that no development

permit is required. The learned counsel for the petitioner submits that the

petitioner thereupon, submitted Exts.P5 and P6 representations before the

additional 3rd respondent seeking permission to remove the ordinary earth.

However, no orders are passed thereon.

4. The 2nd respondent has placed a counter affidavit on record. It is

submitted that since the application submitted by the petitioner was only for

construction of a residential building with a plinth area of 267.10 m2 and

there is no requirement for a Development permit. The decision of this Court

in Ramachandran T. K. and Another v. Vellavoor Grama Panchayath

and Others [2021(5) KHC 51] is also relied on.

5. The learned Government Pleader would submit that the said

decision specifically directs that in case no development permit is required

since no land development in terms of the Kerala Panchayat Building Rules,

2019 is involved, then also the Panchayat is duty bound to issue an approved

building plan containing the details of area of land for construction of the

building and the quantity of the ordinary earth to be removed for

construction. It is submitted that it is only thereafter that the request made by WP(C) NO. 259 OF 2021

the petitioner for permission to remove ordinary earth can be considered by

the additional 3rd respondent. The learned Government Pleader submits that

guidelines have also been issued by the Government on 18.09.2021 to local

authorities with regard to the details required as per Rule 14 of the Kerala

Minor Mineral Concession Rules, 2015.

6. Having considered the contentions advanced and having noticed

the provisions of Rule 4, 5 and 10 of the Kerala Panchayat Building Rules,

2019 as well as Rule 14 of the Kerala Minor Mineral Concession Rules,

2015, I am of the opinion that the request made by the petitioner for

development permit is to be taken up by the Panchayat and the site plan &

permit showing the area of land required for the construction and the quantity

of the ordinary earth to be extracted for the construction is to be specified by

the Panchayat. On such details being furnished by the Panchayat, the

application made by the petitioner for permission to remove ordinary earth

shall be considered by the additional 3rd respondent in accordance with law,

taking note of the building permit and the details furnished by the Panchayat.

If such details are made available by the Panchayat and is produced before

the additional 3rd respondent, the applications submitted by the petitioner as

per Exts.P5 and P6 shall be considered by the Geologist in accordance with

law, without any delay at any rate within a period of two months from the WP(C) NO. 259 OF 2021

date of receipt of the application complete in all respects.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

DK WP(C) NO. 259 OF 2021

APPENDIX OF WP(C) 259/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 19.08.2020.

EXHIBIT P2 TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT DATED 01.12.2020 ISSUED BY THE RESPONDENT PANCHAYATH.

EXHIBIT P3 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 20.12.2020.

EXHIBIT P3(a) TRUE COPY OF THE E-FILING DETAILS OF PETITIONER'S APPLICATION.

EXHIBIT P3(b) TRUE COPY OF THE CERTIFICATE OF CHARTERED ENGINEER DATED 13.05.2005.

EXHIBIT P4 TRUE COPY OF THE LETTER DATED 21.01.2021 ISSUED BY THE PANCHAYATH TO THE PETITIONER

EXHIBIT P5 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE GEOLOGIST DATED 04.01.2021.

EXHIBIT P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE GEOLOGIST DATED 25.06.2021.

RESPONDENT EXHIBITS

EXHIBIT R2(a) TRUE COPY OF THE CLARIFICATION VIDE NO.TCPCTP/2164/2020-E3 DATED 22.12.2020 ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM