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2021 Supreme(Online)(KER) 661
HIGH COURT OF KERALA
N. NAGARESH, J
PHILIP THOMAS – Appellant
Versus
THE GEOLOGIST – Respondent
WP(C)/10036/2021
VARUGHESE M EASO, SRI.VIVEK VARGHESE P.J., SHRI.SIBY CHENAPPADY, SC
A Land Development Permit under the relevant rules is only required for land subdivision, not for soil removal in individual building construction.
Headnote:
Permit - Development Permit - Kerala Panchayat Building Rules, 2019; Kerala Minor Mineral Concession Rules, 2015 - The court clarified that no separate Development Permit is needed for ordinary earth removal for construction unless it involves land subdivision. It emphasized the need for harmonious interpretation of conflicting rules regarding mineral transit passes.
Fact of the Case:
The petitioner sought a Development Permit to remove soil for house construction but was denied by the Panchayat, which claimed a permit was necessary. The petitioner argued that since no subdivision of land was involved, a Development Permit should not be required.
Issues: The main issues were whether a Land Development Permit was required for soil removal when constructing a building not involving land subdivision and whether the Local Self Government is obligated to issue it.
Ratio Decidendi: The court ruled that obtaining a Land Development Permit is unnecessary for building construction that does not involve land subdivision. The issuance of a mineral transit pass is contingent upon having an approved Building Permit and necessary documentation.
Final Decision: The petition was granted, directing issuance of mineral transit passes based on Building Permit and possession certificate, without needing a Land Development Permit.
JUDGMENT
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Dated this the 22nd day of July, 2021
The petitioner wanted to construct a house for his family to live in. The house was proposed to be constructed in Meenadam Village of Kottayam Taluk. To construct the house, the petitioner has to remove the topsoil from the plot, in order to level the ground, for laying the foundation bed. The petitioner's son and his wife, who are the owners of the property, made an online application to the 2nd respondent- Secretary to the Grama Panchayat, seeking to issue Development Permit. The Development Permit is required as the Geologist can issue permission to extract and transport the soil only on the basis of a Land Development Permit issued by the Panchayat.
2. However, the Panchayat authorities informed the petitioner that the Secretary or Grama Panchayat is not authorised to grant Land Development Permit for removal of soil. The petitioner states that the property in question is situated more than 12 feet above the road level and no vehicles including autorickshaws can ascend to the property. The 2nd respondent has granted only Building Permit. Unless the 2nd respondent issues a Development Permit also, the Geologist will not issue necessary transit pass, which would be required for levelling the land of the petitioner. The petitioner therefore seeks to direct the 1st respondent- Geologist to grant 'No Objection Certificate' and permission to remove the red earth from the property where the house is proposed to be constructed.
3. The learned Government Pleader submitted that as per Rule 14(2) of the Kerala Minor Mineral Concession Rules , 2015, it is mandatory that a building permit and a development permit are issued by concerned Local Self Government Institutions, for granting permission for removal of ordinary earth for construction of buildings having a plinth area of 20,000 m² and more. Issuance of 'No Objection Certificate' from the Department is not stipulated by the Rules for construction of buildings having plinth area below 20,000 square metres, contended the learned Government Pleader.
4. The 2nd respondent filed counter affidavit and contested the writ petition. The 2nd respondent stated that the Kerala Panchayat Building Rules , 2019 do not contemplate the issuance of a Development Permit for the purpose of removing ordinary earth for building construction. A perusal of Rules 4, 5 and 10 of the , 2019 makes it clear that a Development Permit is to be issued only in cases where there is development of land by means of sub-division into plots. The said position has been affirmed by the Chief Town Planner by his Ext.P8 communication dated 22.12.2020, wherein it has been clarified that if the activity contemplated is merely removing ordinary earth/filling up of land with ordinary earth for the purpose of construction, no separate permission is contemplated under the Building Rules. It has been further clarified that when Building Permit is issued, the permission for land development necessary for the purpose of effecting such construction, is deemed to be included in the building permit.
5. Heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1, 3 to 7 and the learned Standing Counsel for the 2nd respondent.
6. The question is whether the petitioner is required to obtain a Land Development Permit for getting Transit Passes from the Geologist and if so, whether the Local Self Government Institution is legally bound to issue a Development Permit to the petitioner, even in cases where construction of the building does not involve development of land.
7. A Land Development permit is issued under the Kerala Panchayat Building Rules , 2019. A Land Development permit is required for “development of land”. The term “development of land” is defined in Rule 2(ae) and reads as follows:-
“2(ae) 'development of land' means any material change on the use of land other than for agricultural purpose brought about or intended to b
