Lissy Thomas vs Ramapuram Grama Panchayat
2023 Latest Caselaw 2682 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
                          WP(C) NO.6168 OF 2023
PETITIONER :-

             LISSY THOMAS, AGED 56 YEARS
             W/O.LATE THOMAS, CHAVARANIKKAL, KOODAPPULAM P.O.,
             KOTTAYAM, PIN - 686 576

             BY ADV CHITHRA CHANDRASEKHARAN


RESPONDENTS :-

      1      RAMAPURAM GRAMA PANCHAYAT
             REPRESENTED BY ITS SECRETARY,
             OFFICE OF THE RAMAPURAM GRAMA PANCHAYAT, RM45+45Q,
             MANIYAMMACKAL, RAMAPURAM, KOTTAYAM, PIN - 686 576

      2      THE SECRETARY RAMAPURAM GRAMA PANCHAYAT,
             OFFICE OF THE RAMAPURAM GRAMA PANCHAYAT, RM45+45Q,
             MANIYAMMACKAL, RAMAPURAM, KOTTAYAM, PIN - 686 576

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

             BY ADV GEORGEKUTTY MATHEW
             BY SMT.PARVATHY.K, GP


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    01.03.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.6168 OF 2023

                                 -: 2 :-


                              JUDGMENT

Dated this the 1st day of March, 2023

This writ petition is filed challenging Ext.P10 order issued by

the 2nd respondent and seeking directions to the 2 nd respondent to

reconsider the application submitted by the petitioner for building

permit and for approved building plan.

2. Heard the learned counsel for the petitioner and the

learned Government Pleader as well as the learned Standing

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 13.65 Ares of land

in Survey No.97/1 in Block No.25 of Vellilappally Village in

Meenachil Taluk of Kottayam District. It is submitted that the

petitioner had submitted an application for construction of a

building in the property. It was found that it is necessary to remove

ordinary earth to a quantity of 667.82 M 3 and rock to a quantity of

706.97 M3 from an area having an extent of 349.88 M 2 in the

property of the petitioner, an application in due form with plan was

submitted as Ext.P9. Ext.P10 order was passed rejecting the

application on the ground that the Panchayat is empowered only to

consider requests for removal of ordinary earth and since removal WP(C) NO.6168 OF 2023

of rock is involved, the application cannot be considered by the

Panchayat.

4. The learned counsel for the petitioner submits that Rule

106 of the Kerala Minor Mineral Concession Rules (for short, the

KMMC Rules') specifically provides for removal of other minor

minerals as well in a case of construction of residential building

where the extraction of minor mineral becomes inevitable. It is

submitted that going by the provisions of Rule 106, no quarrying

permit is required and all that is required is the applicant must

inform the Geologist of his intention to carry out the extraction and

furnish necessary documents as required. It is stated that if the

extracted mineral is to be transported outside the work site, the

competent authority shall issue special mineral transit pass, after

collecting the royalty. The learned counsel for the petitioner places

reliance on a decision of this Court dated 8.2.2023 in W.P.(C)

No.34170/2022 to contend that the building permit application can

be duly considered by the Panchayat even in a case where removal

of granite is involved.

5. The learned counsel appearing for the Panchayat submits

that the Panchayat can consider the application for building permit

and the request for removal of ordinary earth alone and that

nothing further can be considered by the Panchayat. WP(C) NO.6168 OF 2023

6. The learned counsel for the petitioner would immediately

point out that Rule 104 provides for obtaining of transit passes even

in the cases where extraction of minor mineral is inevitable for any

legitimate purpose only if the mineral is being transported outside

the property where it is extracted. Referring to Rule 106 of the

2015 Rules also, it is contended that all that is required under Rule

106 where the extraction of minor mineral is inevitable as a part of

work for the construction of common facilities or for residential

building is an intimation to the competent authority of his intention

to carry out the works to be performed and furnishing of necessary

documents to such competent authority. It is stated that if the

extracted mineral is to be transported outside the work site, the

competent authority is to be approached for issuance of mineral

transit passes. It is submitted by the learned counsel for the

petitioner that the petitioner is only intending to construct a

residential house in her property and that the extraction of minor

mineral is inevitable for the purpose.

7. The learned Government Pleader would submit that the

petitioner has to specifically intimate the Geologist as to the need

for extraction of the minor mineral as also furnish the documents

with regard to the property to show where the extraction is being

carried out. It is stated that if the mineral is being transported WP(C) NO.6168 OF 2023

outside the area of extraction, the petitioner has to pay royalty and

obtain transit passes. It is further submitted that in case any

explosive is being used for the extraction, necessary permissions

are to be secured by the petitioner from the appropriate authority

in accordance with law.

8. Having considered the contentions advanced on either

side, I notice that Rules 104 and 106 of the Kerala Minor Mineral

Concession Rules provide for permissions where extraction of minor

mineral is inevitable for any legitimate purpose and for the

construction of common facilities or residential building

respectively. I am of the clear opinion that a more strenuous

condition cannot be imposed for the extraction of minor mineral

which becomes inevitable as a part of work for the construction of

common facilities or residential building than what is provided in

the Rule.

In the above view of the matter, I am of the opinion that

the request made by the petitioner is liable to be considered in

accordance with law. Ext.P10 is, therefore, set aside. There will be

a direction to the 2nd respondent to reconsider the application

submitted by the petitioner for building permit in the light of the

provisions of Rule 106 of the KMMC Rules. Appropriate orders

shall be passed on the application within a period of three weeks WP(C) NO.6168 OF 2023

from the date of receipt of a copy of this judgment. The petitioner

shall approach the Geologist and inform the Geologist of the

intention to remove the minor mineral with all supporting

documents. In case such an application is moved by the petitioner

before the Geologist, the same shall be appropriately considered

and the request, if any, made by the petitioner for transit pass shall

also be considered after collecting royalty from the petitioner.

Necessary steps shall be completed within a period of two months

from the date on which the petitioner approaches the Geologist.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/2.3.2023 WP(C) NO.6168 OF 2023

APPENDIX OF WP(C) 6168/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE NO.

65232951 ISSUED IN THE NAME OF THE PETITIONER DATED 28-5-2022 ISSUED BY THE VELLILAPPALLY VILLAGE OFFICE.

Exhibit P2 TRUE COPY OF THE RECEIPT NO. KL05042604469/2022 DATED 27-5-2022 SHOWING LAND TAX REMITTED BEFORE THE VILLAGE OFFICER, VELLILAPPALLY VILLAGE OFFICE.

Exhibit P3 TRUE COPY OF THE LOCATION SKETCH NO. 280/2022 ISSUED BYTHE VILLAGE OFFICER, VELLILAPPALLY VILLAGE OFFICE.

Exhibit P4 TRUE COPY OF THE RECEIPT NO. 1220101798/G050407 DATED 19-7-2022 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF THE LETTER NO. SC1-1624/2022 ISSUED BY THE 2ND RESPONDENT DATED 1-8-2022 ALONG WITH THE REPORT OF THE LSGD ENGINEER.

Exhibit P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 25-10-2022 BEFORE THE 2ND RESPONDENT.

Exhibit P7 TRUE COPY OF THE RECEIPT NO.

400486/BAGCO01/GPO/2022/3257 DATED 25-10-2022 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.

Exhibit P8 TRUE COPY OF THE LETTER NO. 400568/BPRL02/GPO/ 2022/1624(1) DATED 17-11-2022 ISSUED BY THE 2ND RESPONDENT.

Exhibit P9 TRUE COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER ON 3-1-2023.

Exhibit P10 TRUE COPY OF THE LETTER NO. 400486/BPRL02/ GPO/2022/1624(2) DATED 18-1-2023 ISSUED BY THE 2ND RESPONDENT.

WP(C) NO.6168 OF 2023

Exhibit P11 TRUE COPY OF THE LETTER NO. 3205/DOY/ML/2021 DATED 2-4-2022 ISSUED BY THE 3RD RESPONDENT TO THE SECRETARY, POONJAR THEKKEKKARA GRAMA PANCHAYAT.

Exhibit P12 TRUE COPY OF THE APPROVED BUILDING PLAN ISSUED BY THE KAROOR GRAMA PANCHAYATH, CONTAINING THE DETAILS OF EXTRACTION OF ORDINARY EARTH AND ROCK IN RE-SY. NO. 400/10-1 IN BLOCK NO.21 OF LALAM VILLAGE, KAROOR GRAMA PANCHAYAT.