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2020 Supreme(Online)(KER) 40172
HIGH COURT OF KERALA
P.S.GOPINATHAN, MANOJ RAMASWAMY, B. Mohanlal, A. Sanil Kumar, JJ
DR. SHEELA MATHEW, – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/11028/2020
Sri. S. Gopinathan, Sr. GP, Sri. Manoj Ramaswamy, SC, Kundara Grama Panchayat, Sri. Manoj Ramaswamy, Addl. CGSC, Sri. B. Mohanlal, Sri. A. Sanil Kumar
Building permits require compliance with development permit laws, and unauthorized excavations cannot justify issuing permits without due process.
Headnote:
Excavation - Property Dispute - Kerala Minor Mineral Concession Rules, 2015 (Rule 14(2)), Kerala Panchayat Building Rules, 2011, 2019 (Rule 4(1), Rule 10) - This case addresses the legality of excavating earth without proper permits, emphasizing the necessity of compliance with development permits and the implications of unauthorized excavation.
Fact of the Case:
The petitioners purchased land affected by unauthorized excavation done by previous owners. The 11th respondent, having received a building permit, initiated excavation, leading to complaints from the petitioners regarding damage risk to their property.
Finding of the Court:
The court found the Panchayat's issuance of a building permit improper due to prior excavation affecting the property. It directed the Secretary of the Panchayat to adhere to the appropriate legal process regarding excavation matters.
Issues: Whether the building permit issued to the 11th respondent was valid given the prior unauthorized excavations impacting neighboring land without the requisite development permit.
Ratio Decidendi: The court held that the failure of the Panchayat to consider prior complaints and excavations before issuing a building permit constituted a serious legal lapse, warranting adherence to statutory procedures for land development.
Final Decision: Writ petition disposed with directions to comply with statutory procedures for future construction.
JUDGMENT
Dated this the 1st day of December 2020 The 1st petitioner purchased 9.75 Ares of property comprised in Sy.No.422/19/3 in Block No.10 of Mulavana Village in Kollam Taluk from the 8th and 9th respondents. The balance land, having an extent of 6.45 Ares, belonging to respondents 8 and 9 was purchased by the 11th respondent on 25.01.2019.
2. The 11th respondent obtained Ext.P12 building permit, dated 29.2.2020, from the Kundara Grama Panchayat.
This was for constructing a residential building.
3. The dispute in this Case revolves around excavation of the ordinary earth from the land now purchased by the 11th respondent. The excavation appears to have started much before the purchase made by the 11th respondent. The petitioners raised a complaint on 21.01.2019 before the Revenue Divisional Officer (RDO), Kollam stating removal of earth illegally using JCB, lorry etc. during night time. The petitioners also moved the Police with similar complaints.
4. The petitioners also had instituted O.S.No. 46 of 2019 before the Munsiff's Court, Kollam against the respondents 8 and 9. Subsequently, the 11th respondent was impleaded in the suit. The Munsiff's Court, granted Ext.P5 injunction order dated 29.01.2019, by restraining the respondents from removing soil from their property in a manner affecting the lateral support to the structures therein or for leveling the already excavated area. That was later modified permitting the 11th respondent to undertake construction based on the building permit without affecting the lateral support to the petitioners' land.
5. This writ petition was originally filed challenging the vires of Rule 14(2) of the Kerala Minor Mineral Concession Rules , 2015 (for short ' the Rules). By virtue of this Rule, any holder of building permit is entitled to excavate the earth without obtaining permit from the Geologist. The Rules underwent an amendment at two intervals in the years 2017 and 2020. Rule 14 (2) of the Rules enables a land owner to extract ordinary earth in connection with the construction and digging for foundation of a building without environmental clearance. However, this shall be based on a valid permit for construction of such building issued by the Local Self Government Authorities concerned. As the matter stands now, the challenge to the vires of Rule 14 (2) has become more academic in as much as that Rule 14(2) has undergone amendments.
6. The main grievance of the petitioners as revealed from the writ petition and various complaints made by the petitioners clearly indicates that the excavation of earth would affect the property in possession of the petitioners. It is to be noted that the Panchayat, without application of mind, issued a building permit. The Panchayat ought to have verified whether the construction is possible without excavating the land or not. As seen from the pleadings and other materials produced before this Court, it appears that the respondents 8 and 9, before alienating the property, excavated the earth. As seen from Ext.R11(h) report of the Village Officer, dated 04.06.2020, the land was excavated up to the depth exceeding 1.5 Mtrs. Subsequently, it also seems that the 11th respondent also removed the earth and paid royalty for the same. By the time illegality has already been committed in respect of the land.
7. The petitioners, in fact, raised a complaint before the Secretary of the Panchayat as early as on 15.02.2019 and on 30.08.2019. Ignoring all these complaints made by the petitioners, the Panchayat had granted the building permit to the 11th respondent on 29.02.2020.
8. The Kerala Panchayat Building Rules , 2011 (for short '
KPBR , 2011') as well as the newly formulated Kerala Panchayat Building Rules , 2019 (for short ' , 2019') clearly delineate the procedure as to the grant or issue of development permit and building permit. Rule 4(1) of the , 2019 states that no person shall develop or re-develop any parcel of land without first obtaining a development p
