Important points:
If any complaint is received as per Rule 10(5), then the Secretary shall refer the matter to the technical expert committee constituted as per sub rule (12) of Rule 10 and further proceedings in that regard are also dealt with therein. Rule 10(12) of the KMBR, 2019 stipulates that Government may constitute municipal level technical expert committee comprising of the Secretary of the Municipality as the convener, Municipal Engineer/town planning officer and two experts.

JUDGMENT :

ALEXANDER THOMAS, J.

1. The case set up in this Writ Petition (Civil) is as follows:

That the petitioner obtained Ext.P-1 building permit, Ext.P-2 development permit, Exts.P3 and P4 environment clearances and all other licences and permits from authorities concerned to construct a multi storied building under the name and style of “Prestige Forum” consisting of residential apartments and retail shopping malls having plinth area of 154679.35 M2. That there are commercial and residential buildings in the proposed plan of the petitioner and measurement of area of the said separate buildings has been separately mentioned in the building permit. The petitioner almost completed the structural work of the commercial building in Ext.P-1 building permit and the remaining is only two separate residential towers having total plinth area of 57552 M2. That the petitioner can construct the residential towers as aforesaid only after extraction and removal of ordinary clay and ordinary earth from the foundation of the building. Hence the petitioner approached the 1st respondent and submitted Ext.P-10 application and thereby requested to issue permit for excavation along with sufficient passes. Then the 1st respondent informed that for removing earth from the foundation of the building, a separate environment clearance is required for the said purpose. Even though no separate environmental clearance is required to extract and transport minor minerals from the foundation of the building, as an abundant caution the petitioner again approached the SEIAA and again obtained Ext.P-2 environment clearance certificate dated 21.10.2019 for extraction of minor minerals from the foundation of building. Thereafter, a site inspection was conducted from the office of 1st respondent and issued Ext.P-13 order dated 6.3.2020 and thereby directed the petitioner to produce consent letter from owners of neighboring property and road authorities situated within 50 meters radius from the proposed site. It is urged that Ext.P-13 communication issued by the 1st respondent is illegal and beyond his jurisdiction. That the petitioner is proposing to construct the residential building only after extraction and removal of clay and earth from the foundation of the building. It is stated that the said activity of petitioner is not a quarrying or mining activity, but it is only for the purpose of construction of building. Moreover the activity of the petitioner would come only under Rules 104 and 106 of the Kerala Minor Mineral concession Rules, in which quarrying permit or mining permit is not required. Hence the petitioner submitted Ext.P-14 application dated 10.3.2020 before the 1st respondent and thereby, requested to issue special transit passes to the petitioner to transport ordinary earth without quarrying permit as provided under Rules 104 and 106 of the Kerala Minor Mineral Concession Rules. But even after receipt of Ext.P-14 also the 1st respondent took an adamant stand that he would issue transit permits to the petitioner only after complying with the conditions for quarrying permit by the petitioner, as stated in Ext.P-13. During the pendency of the application of the petitioner, the validity of Ext.P-12 environment clearance has expired and the petitioner submitted Ext.P-15 application dated 03.06.2020 before SEIAA for renewal of Ext.P-12 P12 environment clearance. That the activity of the petitioner is not a quarrying activity as provided under Rule 9 of the Kerala Minor mineral concession Rules, but it is only for the purpose of removal of clay and earth from the foundation of building for the purpose of construction of residential building. Hence consent from the owners of adjacent properties and road authorities has not been required in the case of petitioner for granting transit permit and transit passes. The petitioner secured a building permit after complying with the strict conditions of the building rules framed under the provisions of the Keral