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HIGH COURT OF KERALA
N. NAGARESH, J
RADHAKRISHNA KURUP P.V – Appellant
Versus
SENIOR GEOLOGIST – Respondent
WP(C)/15341/2022
Permit - Building Construction - Local Self Government Act, Building Permit Provisions - The court emphasized that construction activities requiring removal of ordinary earth do not necessitate a Development Permit, influencing its directive for municipal authorities to proceed based on existing building plans.
Fact of the Case:
Petitioners sought permits to construct buildings requiring the transportation of ordinary earth but were denied Transit Passes by Geologist without a Development Permit, which they argued was unnecessary for their construction plans.
Finding of the Court:
The court found that the Geologists could not insist on Development Permits when the construction did not involve land development, thereby directing the Panchayat to consider the submitted building plans for approval.
Issues: Whether a Development Permit is required for construction activities that only involve the removal of ordinary earth.
Ratio Decidendi: The necessity for a Development Permit in situations where construction does not constitute substantial land development was established as not applicable, enabling the issuance of Transit Passes based on building plans.
Final Decision: The Panchayat must consider and approve the submitted building plans within two weeks.
J U D G M E N T
Dated this the 30th day of June, 2022 (W.P.(C) Nos.15341 and 15466 of 2022)
The petitioners in these writ petitions propose to construct buildings in their repective lands. The construction requires removal of ordinary earth and transportation thereof.
2. The petitioners therefore approached the Panchayat authorities for issuance of Building Permit. The petitioners also submitted applications for Transit Passes for transportation of ordinary earth.
3. The petitioners state that the Geologist is insisting on production of Development Permit from the Local Self Government Institution for the purpose of grant of Transit Passes. The petitioners have been aspiring to construct building for long. They are not bound to produce any Development Permit since the construction of the building does not involve any development of land. This Court has held in a number of judgments that the Geologists cannot insist on Development Permit for grant of Transit Passes, when construction of building does not involve development of land.
4. The Standing Counsel for the Panchayat submitted that if the petitioners submit applications indicating the quantum of ordinary earth to be removed for the purpose of construction of building, the Panchayat can consider the same and take appropriate decision on approval of such plan.
5. The counsel for the petitioners submitted that the petitioners have already submitted building plans indicating quantum of ordinary earth to be removed. In W.P(C) No.15466/2022, Ext.P3 is the plan and in W.P(C) No.15341 of 2022, Ext.P3 is the plan.
6. The Government Pleader submitted that the Geologist can issue Transit Pass only based on the assessment of the quantum of ordinary earth to be removed. For a proper assessment in the matter, the petitioners have to produce a building plan from the Local Self Government Institution indicating the quantum of earth to be removed. As and when the petitioners produce such approved Building Plans, the Geologist shall consider the same, in accordance with law.
In view of the statements made as above, the writ petitions are disposed of directing the 2nd respondent- Panchayat to consider the Building Plans submitted by the petitioners and take decision on its approval, within a period of two weeks. Once the petitioners obtain the approved Building Plan, the petitioners may submit the same to the Geolgoist, who shall consider and take appropriate decision on issuing Transit Pass, within a further period of two months.
Sd/-
N. NAGARESH, JUDGE smm/04.07.2022 APPENDIX OF WP(C) 15341/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 2.10.2021 ISSUED BY THE VILLAGE OFFICER, MULAKKUZHA VILLAGE IN THE NAME OF THE PETITIONER.
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT NO.A3-1986/2016 DATED 30.3.2016 ALONG WITH RENEWAL ENDORSEMENT DATED
14.10.2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE APPLICATION DATED
26.3.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR ISSUANCE OF DEVELOPMENT PERMIT.
Exhibit P4 TRUE COPY OF THE ACKNOWLEDGMENT DATED
31.3.2021 ISSUED BY THE 2ND RESPONDENT'S OFFICE EVIDENCING RECEIPT EXHIBIT P3 APPLICATION FOR DEVELOPMENT PERMIT.
Exhibit P5 TRUE COPY OF THE APPLICATION DATED
13.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE PROCEEDINGS DATED
27.12.2021 ISSUED BY THE 1ST RESPONDENT IN THE NAME OF ANOTHER PERSON NAMED SMT.SARAMMA JOSEPH.
Exhibit P7 TRUE COPY OF THE JUDGMENT MADE IN WP(C) NO.3080/2022 DATED 1.4.2022.
Exhibit P8 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(P) 1795/2021 LSGD DATED
18.9.2021 ISSUED BY THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA ON BEHALF OF THE LOCAL SELF GOVERNMENT DEPARTMENT.
Exhibit P9 TRUE COPY OF THE PERMIT APPLICATION FOR LAND DEVELOPMENT FILED BEFORE THE
2ND RESPONDENT PANCHAYATH ALONG WITH EXHIBIT-P3 ON 26/03/2021 BY THE PETITIONER APPENDIX OF WP(C) 15466/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CONSENT LETTER DATED
10.12.2021 EXECUTED
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