Dismissed

K.O.Johney v. District Collector

Kerala HC5 Jan 2022WP(C)/13713/2019

Case brief

AI extract

What is this about?

Petitioner challenged construction of a pilgrim centre in Kerala, claiming it exceeded 20,000 sq. meters requiring environment clearance. Court noted reduced area of 18,720.4 sq. meters via official order, exempting it from clearance. Writ petition was dismissed.

What did the court decide?

Writ petition dismissed as construction area of 18,720.4 sq. meters is under the 20,000 sq. meter threshold requiring environmental clearance.

K.O.Johney Vs District Collector — Environment and Pollution | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 5^TH DAY OF JANUARY 2022 / 15TH POUSHA, 1943 WP(C) NO. 13713 OF 2019

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PETITIONERS:

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K.O.JOHNEY AGED 56 YEARS S/O. PAPPACHAN, KOCHI MEDIA,OPPOSITE ST. ANTONY'S CHURCH, KALOOR, ERNAKULAM - 82017 BY ADVS. SRIBIJU ANTONY ALOOR SRI.K.P.PRASANTH SMT.BHAVNA THAMPI SHRI.ARUNRAJ S. SHRI. PRASANTH N.O. R.G RAGESH CHAND

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RESPONDENTS:

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1 DISTRICT COLLECTOR

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PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA DISTRICT - 689 645.

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2 KERALA STATE ENVIORMENTAL IMPACT ASSESSMENT PALLIMUKKU, PETTAH P.O, THIRUVANANTHAPURM, KERALA - 695 024 REPRESENTED BY ITS CHAIRMAN.

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3 RANNI - PAZHAVANGADI GRAMA PANCHAYATH PANCHAYATH OFFICE, RANNI, PATHANAMTHITTA DISTRICT - 689 673.

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4 SECRETARY

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RANNI- PAZHAVANGADI GRAMA PANCHAYAT OFFICE, RANNI, PATHANAMTHITTA DISTRICT - 689 673.

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5 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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6 PUBLIC WORKS DEPARTMENT BUILDING DIVISION, PATHANAMTHITTA - 691 523, REPRESENTED BY THE EXECUTIVE ENGINEER.

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7 PRINCIPAL SECRETARY FOREST,FOREST AND WILD LIFE

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W.P.(C) No.13713 of 2019

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DEPARTMENT,GOVERNMENT OF KERALA, SECRETARIAT, 1ST FLOOR, MAIN BLOCK, THIRUVANANTHAPURAM.

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8 CHIEF TOWN PLANNING OFFICEER, DEPARTMENT OF TOWN AND COUNTRY PLANNING, GOVERNMENT OF KERALA, SWARAJ BHAVAN, 2ND FLOOR, NANTHANCODE, KOWDIAR. P.O., THIRUVANANTHAPURAM.

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9 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM DIST. - 695001.

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ADDITIONAL RESPONDENTS 7 TO 9 ARE IMPLEADED AS PER ORDER DATED 5/1/2022 IN I.A.NO.2 OF 2021 BY ADVS.

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SRI.M.P.SREEKRISHNAN, STANDING COUNSEL FOR R2 SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1, R5 & R6

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.13713 of 2019

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JUDGMENT

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Dated this the 5^th day of January, 2022

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S. MANIKUMAR, CJ.

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Petitioner has sought for the following reliefs:

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(i) Issue a writ of mandamus or any other appropriate writ directing respondent Nos.1 to 6 to ensure that no building construction more

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than 20,000 square meter is carried out in the Government land by

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any person including the 6^th respondent without obtaining all statutory permission and licenses, including prior environmental clearance.

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(ii) Issue a writ of mandamus or any other appropriate writ directing 1^st respondent to do the needful to take cognizance of the offence under the Environment (Protection) Act, 1986 against the

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persons concerned.

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W.P.(C) No.13713 of 2019

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2. Grounds raised by the petitioner in support of the reliefs are as

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hereunder:

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“A. The constructional activity carried out by the 6^th respondent in the property of the 5^th respondent without obtaining various clearances and permissions under the provisions of the EIA Notification, 2006, Kerala Panchayat Raj Act, 1994 and Kerala Land Utilization Order, 1967 is per se illegal and is liable to be stopped immediately.

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B. The constructional activity carried out by the 6^th respondent by working hand in glove with the respondents herein according to their whims and fancies without any proper supervision by the proper statutory authorities is clear exploitation of the tax payer's money. Since, the construction is being carried out by the 6^th respondent without any clearances or permissions, there is no accountability for the same. Since, the respondents No. 1 to 3 who are the competent authorities curtail the act of the 6^th respondent, is sitting mum over the petitioner's complaint, the petitioner has no other option than to approach this Hon'ble Court for the redressal of his grievance.

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C. The petitioner has no other alternate or efficacious remedy than to approach this Hon'ble Court for the invocation of the extra ordinary jurisdiction under Article 226 of the Constitution of India.

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D. It is evident from Exhibit P1 that the project of the 6th respondent

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W.P.(C) No.13713 of 2019

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exceeds more than 20,000 square metres and hence the same requires prior environmental clearance from the 2^nd respondent before starting any construction. However, it is seen from Exhibit P3 communication that no prior clearance has been granted to the 5^th or 6^th respondent till date for constructing the multi utility complex. This is clear violation of the provision of the EIA Notification, 2006.

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E. The 6th respondent ought to have preferred an application under Section 235 F of the Kerala Panchayat Raj Act, 1994 and obtained a building permit from the 3^rd and 4^th respondents before starting any constructional activities. However, it is seen from Exhibit P5 communication that no permission has been accorded from the office of the Secretary of the 3^rd respondent till date to start the constructions activities of the multi utility complex till date. This is clear cut violation of the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules.

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F. The petitioner has also come to learn from the local residents that the land in question was a 'nilam' till some time back. However, it is learnt reliably that neither the 5th respondent nor the 6th respondent has obtained any permission under the Kerala Conservation of Paddy Land and Wetland Act, 2008 or the Kerala Land Utilization Order, 1967 for use of land for any other purpose. This is per se illegal and is to be curtailed by the 1st respondent.

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G. The inaction on the part of the respondents No. 1 to 3 on the illegality committed by the 5^th and 6^th respondents is clear dereliction of duty

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W.P.(C) No.13713 of 2019

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and clearly indicates that the respondents are working hand in glove to perpetuate the illegality to extort the tax payer's money from the public ex-chequer.

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H. The careless manner in which the construction materials are being dumped in the construction site is posing huge threat to the life of the local residents, pedestrians as well as motorists. This is unacceptable and stringent action has to be taken against the illegality done against the public at large.”

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Refuting the averments, the Executive Engineer, Public Works

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Department, Building Division, Pathanamthitta has filed a counter affidavit dated 1^st August, 2019, wherein it is contended thus:

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“3. It is respectfully submitted that the project in question was proposed by the Member of Legislative Assembly of Ranni Legislative Assembly Constituency as a multi-storied pilgrim centre for Sabarimala Pilgrims within the limits of Ranni-Pazhavangadi Grama Panchayath. The 3^rd respondent acquired necessary land required for construction of the Pilgrim Centre based on the Order of the Government No. GO(RI) No. 3598/08/LSGD /Tvm. dated 07.10.2008. The administrative sanction for the work was obtained vide GO(Rt) No. 1550/13/PWD dated 27.11.2013

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for an amount of Rs. 16.5 Crores. The technical sanction was obtained

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W.P.(C) No.13713 of 2019

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by Order No. CE/L/PTA/2597/11 dated 05.03.2014 of the Chief Engineer, PWD. After obtaining the necessary sanction, the work was tendered and site was handed over to M/s. Rojer Mathew and Company as per Agreement No. 23/SCVSC/14-15 dated 30.09.2014. Pursuant to the handing over of the site to the Contractor for construction, the piling works commenced at the site. It is apposite to mention here that there is no pathway inside the site and trespassers were not allowed to enter the site. No building materials are kept outside the premises where the construction is effected so as to obstruct pedestrian movement. Therefore, the allegation to the effect that the entire area is in a chaotic mess, as a result of building materials being strewn all over obstructing the pathway of pedestrians is made only to suit the Writ Petition.

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It is respectfully submitted that the allegation in the Writ Petition to the effect that the 2^nd respondent has not issued any prior environmental clearance to the 5^th or 6^th respondent till date for construction of the multi-utility complex is unfounded, in as much as the building now under construction is only having a total area of 18,720.4 M², due to non-availability of funds earmarked for the project. The total area has been reduced to 18,720.4 M² from the proposed area of

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W.P.(C) No.13713 of 2019

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22351.90 M². Under the circumstances, there is no necessity for prior environmental clearance for construction of the work as the total area of the building in question is less than 20,000 Sq. M. Further as per Rule 5 of the Kerala Panchayath Building Rules, application for development permit is not necessary as the construction is for a State Government Department. Likewise, 6^th respondent has confirmed with the stipulations necessitated as per Rule 7 of the Kerala Panchayath Building Rules.”

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The said respondent has also filed an additional affidavit dated 28^th October, 2019, wherein it is contended thus:

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“3. It is respectfully submitted that the split up area of the floor in the building in question is given in a tabular form hereunder.

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FLOOR	AREA IN SQ.M
Ground Floor	1406.9
Parking	1888.1
First Floor	1228.2
Second Floor	1741.5
Typical Floor	1741.5 X 7 =12190.5
(3,4,5,6,7,8 & 9th Floors)
Terrace Floor
Total Area	18720.4

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W.P.(C) No.13713 of 2019

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The Plan of ground floor, 1^st floor, 2^nd floor and the floors from 3 to 9 are produced herewith and marked as Exhibit R6(a). The above would show that the total area of the building is 18,720 M² excluding 10^th & 11^th floor. Under the circumstances, this Honourable Court may be pleased to find that no Environmental Clearance is required as a total area of the building is less than 20000 M² and the contention to the contrary is devoid of merit.

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In view of the above, this Honourable Court may be pleased to dismiss the Writ Petition and permit the respondents to proceed with the construction of the pilgrimage centre at Ranni, in the interest of justice.”

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Going through the material on record, we found that the

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respondents have taken a stand that the construction proposed is for Sabarimala pilgrims and that the total area of construction has been reduced to 18720.4 M² from the proposed area of 22351.90 M².

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As there was no supporting materials for the said contention, we directed proof to be filed. Accordingly, a memo dated 8^th June, 2020 has been filed by the Senior Government Pleader substantiating the contention that construction has been reduced to 18720.4 M² and not beyond 20000

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M², as provided under the Environment Impact Assessment Notification, 2006.

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W.P.(C) No.13713 of 2019

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Proceedings of the Chief Engineer, Public Works Department

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(Buildings), Thiruvananthapuram dated 3^rd January, 2020, restricting the

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total area of construction to 18720.4 M², is reproduced hereunder:

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“PROCEEDINGS OF THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDINGS), THIRUVANANTHAPURAM

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(Present:Er. Huygheen Albert)

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Sub:- PWD -Sanctioning of Environmental Clearance for the Construction of Pilgrim Centre at Ranni Ittiyappara- Order issued - reg:

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Read: 1) Letter No. 18/PWD(B)SCTVPM/3299/2013 dated 08/11/2019 of the Superintending Engineer of PWD Buildings South Circle, Thiruvananthapuram Read:

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1. Writ Petition No. 13713/2019 filed by Mr. K.O. Johnny

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1. Letter received from Sri. Raju Abraham, M.L.A. of Ranni Constituency dated 23.01.2014

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ORDER NO: CE/BL/PTA/A1/5266/2018 DATED 03/01/2020

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The Superintending Engineer of PWD Buildings South Circle, Thiruvananthapuram has reported vide ref. cited 1^st that due to inadequacy of funds for construction of the Pilgrim Centre at Ittiayappara and based on the request of the Hon'ble M.L.A. of Ranni Constituency, by excluding the construction of the 10^th and 11^th floors, the area of the building would be only 18720/M2 and prior Environmental Clearance is not

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required. And also, the Hon'ble MLA of Ranni Constituency requested vide letter cited 3^rd to rearrange the work by excluding construction of the 10^th and 11^th floors of the proposed building.

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Hence sanction is hereby accorded to fix the total area of the building as 18720/M2 by excluding the construction of the 10^th and 11^th floors of the proposed building.

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Sd/-

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CHIEF ENGINEER ”

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In respect of the grounds that permission has not been required from the 3^rd and 4^th respondents viz., Ranni – Pazhavangadi Grama Panchayath, Pathanamthitta District and its Secretary, we are satisfied with the reasons assigned in the counter and additional affidavits filed by Public Works Department, Building Division, Pathanamthitta, represented by the Executive Engineer – the 6^th respondent. We do not find there is any illegality or dereliction of duty, as alleged.

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Thus, when respondents have filed the proof of restricting the construction of the proposed building to 18720.4 M², there is no need to obtain clearance from the Authorities under the EIA Notification – 2006.

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Placing on record the above, we are of the view that there is no

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need to issue any mandamus, as sought for.

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Writ petition is dismissed accordingly.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

smv

JUDGE

W.P.(C) No.13713 of 2019

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APPENDIX OF WP(C) 13713/2019

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE PHOTOCOPY OF THE REPLY DATED 16.04.2019 ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT TO THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION.

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EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 30.07.2018 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT TO THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION. EXHIBIT P3 A TRUE PHOTOCOPY OF THE DETAILED REPRESENTATION THROUGH EMAIL DATED 14.08.2018 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION EXHIBIT P4 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 14.11.2018 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT TO THE PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION. EXHIBIT P5 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 20.12.2018 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT TO THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION. EXHIBIT P6: TRUE COPY OF THE PHOTOGRAPHS

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RESPONDENT EXHIBITS EXHIBIT R6(a) TRUE COPY OF THE PLAN OF GROUND FLOOR 1ST FLOOR, 2ND FLOOR AND THE FLOORS FROM 3 TO 9.

K.O.Johney v. District Collector

Case brief

What is this about?

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K.O.Johney v. District Collector

Case brief

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