Kerala High Court
The Secretary vs Gopinathan Pillai on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
WA NO. 165 OF 2022
APPELLANT/S/RESPONDENTS 1 & 2:
1 THE SECRETARY, MAVELIKKARA-THEKKEKKARA GRAMA PANCHAYAT,
PALLARIMANGALAM P.O. MAVELIKKARA - 690 107.
2 MAVELIKKARA THEKKEKKARA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, PALLARIMANGALAM P.O.,
MAVELIKKARA - 690 107.
BY ADV R.GIREESH VARMA
RESPONDENTS/PETITIONER & THE 3RD RESPONDENT:
1 GOPINATHAN PILLAI, AGED 63 YEARS, S/O. SHANKARAPILLAI,
KULATHINTEKIZHAKKATHIL, THEKKEKKARA, PONNEZHA, ALAPPUZHA.
2 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY,
MINI CIVIL STATION, CHERTHALA, ALAPPUZHA - 688 532.
R1 BY SRI. R.SUNIL KUMAR
R2 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 165/2022 :2:
'C.R'
Dated this the 2nd day of February, 2022.
JUDGMENT
S. MANIKUMAR,CJ.
Appellants, who are the respondents 1 and 2 in W.P.(C)
No.12066 of 2021, challenges the judgment dated 29.07.2021 passed
by a learned single Judge of this Court in the aforesaid writ petition
filed by the 1st respondent herein seeking a direction to the Secretary,
Mavelikkara-Thekkekkara Grama Panchayat, 1st appellant, to issue land
development permit to the writ petitioner for extraction and
transportation of ordinary earth from the property, for the construction
of a residential building.
2. Gopinathan Pillai, S/o. Shankarapillai, Kulathintekizhakkathil,
Thekkekkara, Allappuzha, writ petitioner, who is the owner of 12.14
Ares of property situated in Re-Survey No. 645/21 of Thekkekkara
Village, applied for a building permit to construct a residential building
having an area of 178.36 Sq.m. He has submitted Exhibit P1
application seeking for land development permit to remove ordinary
earth from the plot owned by him where he is proposing to construct
the building and for its transportation.
3. Thereafter, the Technical Officer has inspected the site and
reported that the earth to be removed for the purpose of construction
can be deposited and levelled in the very same property. As there is
no 'development' of the land as defined in the Kerala Panchayat
Building Rules, 2019 (Rules, 2019' for short), the Secretary,
Mavelikkara-Thekkekara Grama Panchayat and Mavelikkara
Thekkekkara Grama Panchayat, appellants rejected his application for
development permit. At the same time building permit was granted to
him. Hence the writ petition.
4. Adverting to the rival submissions and taking note of Rule
14(2) of the Kerala Minor Mineral Concession Rules, 2015 ('Rules,
2015' for short), writ court, vide judgment dated 29 th July, 2021
ordered thus:
7. In this context, it is to be noted that in view of Rule 14(2)
of Kerala Minor and Mineral Concession Rules, the petitioner
cannot extract and transport red earth without a mineral transit
pass issued by the Geologist and statutorily the Geologist will not
be legally justified, if mineral transit passes are issued in the
absence of a land development permit. The fact that extraction of
red earth is required from the land of the petitioner for
construction of his house, is not in dispute. In the circumstances, if
the respondents 1 and 2 refused to issue land development permit
that will put the petitioner in a peculiar situation and the petitioner
will have to face even prosecution under the Kerala Minor and
Mineral Concession Rules, if the extracted red earth is to be
transported
In the circumstances, this Court is of the considered opinion
that the respondents 1 and 2 are compellable to issue land
development permit of the petitioner so as to enable the petitioner
to obtain mineral transit pass from the Geologist. Accordingly, the
writ petition is disposed of directing the respondents 1 and 2 to
issue land development permit to the petitioner enabling the
petitioner to obtain mineral transmit pass from the Geologist,
within a period of four weeks.
5. Being aggrieved, the Secretary, Mavelikkara Grama Panchayat
and Mavelikkara Thekkekkara Grama Panchayat, represented by its
Secretary, respondents 1 and 2 in the writ petition, have filed the
instant appeal on the grounds inter alia that development permit and
transit permit, are not required for the removal of the sand. In
support of the above contention, learned counsel for the appellants
placed reliance on the provisions of the Rules, 2019, especially Rule 5,
and a decision of this Court in Ramachandran T.K and another v.
Vellavoor Grama Panchayat and others [2021 (5) KHC 51 =
2021(5) KLT 1].
6. In Ramachandran (supra), a learned single Judge, after
considering Rule 14(2) of the Rules, 2015 and in particular the second
proviso, held that no development permit is required.
7. That apart, the appellants have also relied on Annexure II
Government Order, G.O. (Ordinary) No. 1795/2021/LSGD dated
18.09.2021, in which it has been clarified that in cases where building
permit is issued, it is sufficient for the purpose of removing the earth
for the construction of foundation and also for levelling.
8. The grounds on the basis of which the instant writ appeal is
filed are extracted hereunder:
"D. This Hon'ble Court considered the common issue of
whether a development permit is required for the issuance of transit
pass under Rule 14 (2) of the Kerala minor Mineral Concession
Rules 2015 raised in a batch of writ petitions and issued a judgment
in Ramachandran T.K and another Vs. Vellavoor Grama
Panchayat and others (2021 (5) KHC 51) concluding as follows;
(i) A development permit from the local authority is necessary only
when 'development of land' in terms of the Building Rules is
involved.
(ii) Quarrying permit is not required for extraction of ordinary earth
in connection with construction of building which does not require
environmental clearance, provided a valid building permit is
obtained.
(iii) For obtaining transit passes for transportation of ordinary earth,
(a) In cases where 'land development' as defined under the
concerned building rules is involved , a land development permit
from the local authority shall be made available.
(b) in cases where no 'land development' in terms of the building
rules is involved, an approved building plan containing the area of
land for construction of the building and the quantity of ordinary
earth to be extracted for construction shall be obtained from the local
authority.
E. The government vide its Order No.LSGD (R.D) Department No.
1795/2021/L.S.G.D dated 18.9.2021 has clarified that in case a
building permit is issued, it is sufficient for the purpose of removing
of earth for the purpose of construction of foundation and also for
levelling. It has also been stipulated in the above G.O that since
development permit is only for sub division of the plot and for
extraction of , the building plan attached to the building permit is to
be considered as a substitute for development permit as the same
contains the details for granting Mineral Transit Pass as per Rule 14
(2)(1) of the Kerala Minor Mineral Concession Rules 2015.
F. Exhibit P5 communication issued to the petitioner by the 3 rd
respondent in the writ petition, District Geologist and the copy of the
relevant provision, Rule 14(2) of the Kerala Minor Mineral
concession Rules 2015 attached there to itself makes it clear that no
quarrying permit is required for extraction of ordinary earth in
connection with the construction of residential buildings including
flats or commercial buildings having a plinth area of 300 sq.m if the
owner of the land obtained a prior valid permit for construction of
such building from the Local Self Government authorities
concerned.
G. Annexure I government Order also stipulates that the officer who
is granting building permit and the technical officer who is
conducting inspection for that purpose have to examine whether the
earth is to be removed, the extent of area to be levelled, quantity of
ordinary earth to be extracted for such construction. Here in this case
the technical officers have reported after conducting inspection in the
property that the earth to be removed from the place of construction
can be deposited in other parts of the very same plot. Hence there
exists no situation necessitating transportation of earth from the
property."
9. Based on the above grounds, decision, statutory provisions
and the Government Order dated 18.09.2021, Mr. R. Gireesh Varma,
learned counsel for the appellants, prayed interference of this Court
with the impugned judgment, insofar as it directs the appellants to
grant development permit.
10. Mr. R. Sunilkumar, learned counsel for respondent No.1,
submitted that the judgment relied upon by the appellants was
rendered later and has no bearing to the instant case.
11. The judgment in Ramachandran (supra) has been decided
on 26th July, 2021 and the judgment impugned in the writ appeal has
been rendered on 29th July, 2021. Therefore, the contention of the
learned counsel for the first respondent as regards the applicability of
the judgment in Ramachandran to the case on hand, cannot be
countenanced.
12. After considering the statutory provisions of Rules 14(1) and
(2) of the Rules, 2015, a learned single Judge in Ramachandran
(supra) held as follows:
7. . In terms of the Kerala Panchayat Building Rules, a
development permit is necessary only in cases where "development of
land" as defined under the Rules is involved. This Court has
consistently taken the view that, for construction of a building by the
purchaser of a plot of land where no 'development of land' as defined
under the Building Rules is involved, no development permit is
necessary. (See Nafeesa v. Chavakkad Municipality ()). Therefore the
Panchayats were right in taking the stand that, since no 'development of
land' in terms of the Building Rules is involved, a development permit
could not be issued.
8. . Now coming to the stand taken by the Department of Mining
and Geology, before I proceed to discuss on R.14(2) of the KMMC
Rules, 2015 and the provisos thereto, I deem it appropriate to extract
R.14(1), (2) and the provisos.
"(1) A quarrying permit under these rules shall be obtained
for extraction of ordinary earth used for filling or levelling purposes
in construction of embankments, roads, railways or buildings in
Form N. (2) Notwithstanding anything contained in sub-rule (1), no
quarrying permit is required under these rules for extraction of
ordinary earth in connection with the construction and digging of
foundation for the buildings not requiring environmental clearance
under the Environment (Protection) Act, 1986 (Central Act 29 of
1986), if the owner of the land obtained a prior valid permit for
construction of such building from the Local Self Government
authorities concerned or if the owner of the land is entitled to
construct such building as per the Kerala Micro Small and Medium
Enterprises Facilitation Act, 2019 (16 of 2019). Provided that in
cases where transportation of ordinary earth is required, the owner
of the land shall obtain mineral transit passes for the quantity to be
transported under the Kerala Minerals (Prevention of illegal
Mining, Storage and Transportation) Rules, 2015 after making
payment of royalty, on an application submitted in this regard. Such
application shall be accompanied by (1) valid building permit for
construction of building obtained from the Local Self Government
authorities concerned, (2) land development permit obtained from
the Local Self Government authorities concerned in cases where the
levelling of the land and extraction of ordinary earth is involved and
(3) possession and enjoyment certificate of the land issued by the
Village Officer concerned. Provided further that in cases where
levelling of land and extraction of ordinary earth is involved, the
building permit shall be accompanied by an approved building plan
obtained from the Local Self Government authorities concerned
which shall contain the area of land to be developed for the
construction of the building and the quantity of ordinary earth to be
extracted for such construction."
9. . Though R.14(1) of the Kerala Minor Minerals Concessions
Rules, 2015 require a quarrying permit for extraction of ordinary earth,
R.14(2) provides that, a quarrying permit is not required in cases
where the extraction is in connection with the construction of buildings
which do not require environmental clearance, provided that, the
construction is on a valid building permit.
10. . The first proviso to R.14(2) requires production of the
following documents for issuance of transit pass for transportation of
ordinary earth:
(a) Building Permit.
(b) Land Development Permit and,
(c) Possession Certificate.
11. . In cases where 'development of land' as defined under
the Panchayat / Municipalities Act is not involved, a development
permit could not be insisted upon by the Geology Department
because, the Building Rules do not provide for issuance of the same.
It is only in cases in which a development permit is required under the
Building Rules, could the same be insisted upon for issuance of transit
pass.
12. . The Minor Mineral Concession Rules do not seem to
explicitly provide for the documents to be submitted for issuance of
transit passes in cases where the Building Rules do not provide for
issuance of a Development Permit. According to me, in such cases,
the second proviso to R.14(2) of the KMMC Rules, 2015 would apply.
As per the second proviso, an approved building plan containing the
area of land to be utilized for construction of the building and the
quantity of ordinary earth to be extracted, is to be obtained from the
Panchayat / Municipality, for the issuance of transit passes. Though
the said proviso makes a reference to 'the land to be developed', the
term 'develop' as occurring therein means, making the land suitable
for the proposed construction. It does not refer to 'development of
land' as defined under the Building Rules. Such an understanding of
the provisions would, avoid inconsistency or the vacuum, if at all any,
in the Building Rules and the Minor Mineral Concession Rules, 2015.
13. . Now coming to the insistence by the Panchayats for a 'No
Objection Certificate' from the Department of Mining and Geology in
terms of R.5(4) of the Kerala Panchayat Building Rules, 2019 for the
issuance of a development permit, the objection cannot stand. R.5(4)
requires production of a consent / NOC from the authorities specified
thereunder, for issuance of a development permit or building permit.
However, the Department of Mining and Geology is not included
therein.
14. . To sum up:
(i) A development permit from the local authority is necessary only
when 'development of land' in terms of the building rules is involved.
(ii) Quarrying permit is not required for extraction of ordinary earth in
connection with construction of building which does not require
environmental clearance, provided, a valid building permit is obtained.
(iii) For obtaining transit passes for transportation of ordinary earth,
(a) In cases where 'land development', as defined under the
concerned building rules is involved, a land development permit from
the local authority shall be made available.
(b) In cases where no 'land development', in terms of the building
rules is involved, an approved building plan containing the area of
land for construction of the building and the quantity of ordinary earth
to be extracted for construction, shall be obtained from the local
authority.
(iv) R.5(4) of the Panchayat Building Rules does not require NOC /
Permission from the Department of Mining and Geology for issuance
of development permit by the local authority.
15. . In the light of the conclusions as above, the respondent
Panchayats in the respective writ petitions shall pass appropriate
orders on the development permit applications submitted by the
respective petitioners. In cases where development permits are not
required, the approved building plan with the details as referred to in
the second proviso to R.14(2) shall be issued. The writ petitions
are disposed of as above."
13. That apart, Government have also issued Government
Order dated 18.09.2021 clarifying the issuance of development permit
in terms of the Building Rules. For convenience, the said order is
reproduced hereunder:
GOVERNMENT OF KERALA
SUMMARY
DEPARTMENT OF LOCAL SELF GOVERNMENT -ORDER ISSUED
CLARIFYING ISSUINGOF DEVELOPMENT PERMITAS PER RULE 109
OF THE BUILDING RULES 2019
DEPARTMENT OF LOCAL SELF GOVERNMRNT (R.D)
G.O (ordinary) no.1795/2021/LSGD Dated:Thiruvanthapuram 18.09.2021
Reference:- 1. Letter No.TCPCTP/2164/2020-E3 dated 22.12.2020 by Chief
Town planner .
2.Govt.Letter NO.LSGD-RA3/98/2021/LSGD Dated 15/04/2021
ORDER
As per letter (2) directions were issued to all Panchayat Secretaries that
when the officers from the Panchayat inspect the site for issuing land
development permit, the place from where the earth is to be removed shall be
clearly demarcated and after removing of the earth inspection has to be
conducted again and then only to issue building permit. The government are
receiving complaints that when applications are submitted for levelling of the
earth for the construction of building before the department of geology ,the
officers of the department of geology demand building permit and land
development permit as per Rule 14 of the Kerala Minor Mineral Concession
(KMMC) Rules 2015, but which are not received at the same time as per the
above two references, and hence, the said directions are against the Building
Rules, and Minor Mineral Concession Rules .
(2) The proviso 1 of rule 14(2) of Kerala Minor Mineral Concession
Rules stipulates that transit pass is required for transporting the earth removed
from a plot and in cases where land levelling work is involved by removing
the earth, building permit is to be produced along with development permit
to obtain the mineral transit pass. But vide Rule 4(1) of KMBR AND KPBR
no direction can be issued to issue development permit from panchayat and
municipalities as the removing of earth to make the land suitable for building
construction is not an act which requires development permit .
(3)In Proviso 2 of Rule 14 (2) of Kerala Minor Mineral Concession Rules it
has been stipulated that in the matter involving levelling of land and removal
of earth, building permit shall be accompanied with building plan specifying
the area of land to be developed and the quantity of ordinary earth to be
extracted for such construction.
(4) In the above circumstances following clarifications are made in allowing
land development permit by cancelling the directions in the reference (2)
letter dated 15/04/2021.
(i) Once a building permit is sanctioned for construction of a building
that permit will be sufficient to enable the removal of requisite earth and
levelling required for the construction of the building. As per rule 6(7) of
KPBR /KMBR 2019 in case mineral transit pass is required the applicants for
building permit from panchayat/ municipality shall mention in the building
plan ( in the plan itself or in additional sheet) the extent of the area of land to
be developed and the quantity of earth to be extracted for such construction
and plan of the same (dimensional plan and sectional drawing showing the
abutting road level , the levels and cutting at all places in respect of
excavations for building construction and land development works ) are to be
included and attested by the applicant and the registered licensee as prescribed
by the KPBR /KMBR .
(II) The official of the technical section who examines the plan and site
on behalf of the Officer issuing permit shall precisely examine the area of land
to be developed, quantity of earth to be extracted for such construction and
dimensional plan and sectional drawing showing the abutting road level , the
levels and depths of cutting at all places in respect of excavations for building
construction and land development works to decide whether the building plan
can be approved and if cannot be approved, the reasons are to be entered in
to the building plan and enquiry report and if earth is to be removed the area
to be levelled shall be demarcated in terms of the extent of the site to be
levelled . It shall be ensured that only the requisite area is included in the
plan for open space,security reasons in and around the building as per the
rule .
(iii) The officials shall enter their signature ,name .PEN, and
designation in the all reports and approvals .
(iv) The conditions applicable as per rule 10 of KPBR /KMBR shall be
ensured where ever so applicable .
( v) Since rule 4(1) of KPBR/KMBR 2019 specifies that development
permit is required only for effecting plot subdivision where plot subdivision
does not exist, and as for extraction of earth no development permit is required
and as " Development of Land ' does not exist as per building construction
rules , the building plan ,issued along with building permit, which endorses
the extent and quantity measurement of earth excavated , as it incorporates
the details for allowing " Mineral transit pass ' it shall be considered as
substitute for the Development Permit prescribed as per proviso 1 of rule
14(2) of KMMC rules .
( vi) But Development permit as per rule 4 (1) of KPBR/KMBR is
required in matters that involve plot sub division. Hence in matters where land
levelling and earth extraction is required Development permit is also to be
issued along with building plan and building permit that endorse the extent of
the site of earth extraction and the quantity of earth.
(vii) In cases where building permit incorporating details for allowing
Mineral transit pass is issued a copy of the building permit and building plan
shall be sent to the District Geologist by e mail with in 3 days of issuing of
permit and print copy of the same shall be added to the file .
(viii) In cases where for the purpose of Mineral transit pass, the area of
land to be levelled and the quantity of earth to be extracted have been
endorsed, the applicant and the registered licensee have to submit a signed
certificate/report that the extent and quantity of sand more than that is endorsed
in the plan attached to the permit to extract earth along with the appendix P
form issued as per 2019 KPBR/KMBR Rule 19 E to conduct plinth level
inspection and the intimation issued for obtaining Concurrence as per
KPBR/KMBR Rule 10 (6). The responsible officer during plinth level
inspection and also while conducting inspection as per Rule 10(7) for allowing
concurrence shall examine the site demarcated for removal of earth and in
case the earth removed is in excess of the area and quantity as endorsed in
the building plan, the same shall be intimated to the secretary along with the
report and the said details /information shall be intimated by the secretary to
the applicant and to the district geologist and a print copy of the said
intimation sent to the district geologist by e mail shall be added to the file .
(ix) In the matter of issuing building permit including the details for
issuing mineral transit pass, the details including the area of land to be
developed and the quantity of ordinary earth to be extracted for such
construction have to be entered in the remarks colum of the building permit
application register.
( By order of the Governor)
Saradamuraleedharan I.A.S.
Additional Chief Secretary)"
14. The decision in Ramachandran (supra) and the
Government Order dated 18.09.2021 extracted above would make it
clear that in cases where the building permit is issued, it is sufficient
for the purpose of removing the earth for the purpose of construction
of foundation and also for levelling.
15. In the light of the above, we are of the view that the
Geologist/respondent No.2 cannot insist for the issuance of the
development permit from the Panchayat, insofar as the transit of the
earth is concerned.
16. Even though Mr. R. Gireesh, the learned counsel for the
appellants, submitted that as per the instructions contained in the
above said Government Order, building plan has to be produced, it is
the contention of the learned counsel for the first respondent that
while seeking building permit, plan has already been submitted.
17. Be that as it may, it is for the Panchayat as well as the
District Geologist, Department of Mining and Geology, Alappuzha,
respondent No.2, to strictly follow the decision of this Court in
Ramachandran (supra) as well as the Government Order dated
18.09.2021 and pass orders permitting the first respondent/writ
petitioner to remove sand depending upon the extent required, which
shall be quantified by the Panchayat and transit permit shall also be
issued by the Geologist, the 2 nd respondent, in accordance with law, as
discussed above.
18. In the light of the above discussion, direction of the writ
court to the appellants to issue development permit is set aside.
However, the directions for issuance of transit pass by the Geologist
shall remain in tact.
This appeal is allowed as above.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX
APPELLANTS' ANNEXURES:
ANNEXURE 1: TRUE COPY OF THE GOVERNMENT ORDER NO.LSGD (RD)
DEPARTMENT NO.1795/2021/LSGD DATED 18.09.2021.
ANNEXURE II: ENGLISH TRANSLATION OF THE GOVERNMENT ORDER NO.LSGD(R.D)
DEPARTMENT NO.1795/2021/LSGD DATED 18.09.2021.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS to Judge.
rv
