Disposed

Jossy Daniel v. the Secretary, Kodumon Grama Panchayath, Pathanamthitta

Kerala HC13 Dec 2022WP(C)/29533/2022

Case brief

AI extract

What is this about?

Writ petition challenging refusal of Building Permit due to missing earth removal quantum. Court directed Grama Panchayat to permit petitioner to submit a Building Plan specifying earth removal. Pending that, the application for Building Permit must be reconsidered.

What did the court decide?

Petitioner permitted to submit Building Plan indicating ordinary earth removal; 1st respondent to reconsider Building Permit application and issue permit certifying quantum within two weeks.

Jossy Daniel Vs the Secretary, Kodumon Grama Panchayath… — Property and Title | 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 MR.JUSTICE N.NAGARESH

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TUESDAY, THE 13TH DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944

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WP(C) NO. 29533 OF 2022

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PETITIONER:

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JOSSY DANIEL
AGED 48 YEARS
S/O DANIEL, VALLUVELIL KAROTTU VEEDU,
KODUMON, PATHANAMTHITTA -691525.

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BY ADVS.
R.SUNIL KUMAR
A.SALINI LAL

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RESPONDENTS:

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1 THE SECRETARY, KODUMON GRAMA PANCHAYATH, PATHANAMTHITTA PATHANAMTHITTA-691525.

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2 KODUMON GRAMA PANCHAYAT, REP BY ITS SECRETARY, KODUMON, PATHANAMTHITTA-691525.

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3 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, AARANMULA PATHANAMTHITTA-689532.

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SRI.MANU RAMACHANDRAN -R1 AND R2
SMT.VIDYA KURIAKOSE GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) No.29533 of 2022

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JUDGMENT

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Dated this the 13^th day of December, 2022

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The petitioner is owner of 6.08 Ares of property in Re-Survey No.288/4-2 of Kodumon Village. The petitioner intended to construct a residential building of 161.32 Square Metres. According to the petitioner, the property is on a slanting position and is on a higher terrain than the road level.

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Therefore, the petitioner submitted an application

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for Building Permit as also an application for Development Permit. The applications submitted by the petitioner were not positively considered by the 1^st respondent. The petitioner hence approached this Court filing this writ petition seeking to direct the 1^st respondent to quantify the ordinary earth to be excavated for construction of the petitioner’s house or to approve the Development Plan submitted by the petitioner.

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WP(C) No.29533 of 2022

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According to the petitioner, the respondents were insisting that the petitioner can construct the building without removing any ordinary earth from the property as the land is plain. The petitioner would submit that the land is at a height of 1.5 Metres above the road level and that too in a slanting position. Therefore, unless ordinary earth is removed and retaining walls are constructed, it will not be safe to construct a building in the land. The stand taken by the Panchayat Authorities is therefore illegal and unsustainable, contended the petitioner.

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4. Standing Counsel entered appearance on behalf of

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respondents 1 and 2 and resisted the writ petition filing a Statement. It is pointed out that the petitioner unnecessarily submitted an application for Development Permit when the construction did not require any development of land as contemplated under the Kerala Panchayat Building Rules. A Development Permit would be required only when the land is

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WP(C) No.29533 of 2022

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to be subdivided into plots. In the case of the petitioner, the petitioner only wanted to construct a house in a small extent of property having 6.08 Ares. Therefore, application for Development Permit submitted by the petitioner was rejected and a Building Permit was issued to the petitioner.

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The petitioner states that though a Building Permit was issued, the Permit did not indicate the quantum of ordinary earth to be removed for the purpose of construction. Unless the quantum is certified in the approved Building Plan, the Geologist will not permit the petitioner to excavate or transport ordinary earth from the property. The petitioner had submitted a Building Plan indicating removal of ordinary earth to the extent of 1008.96 M³ . When a proper Plan is submitted by the petitioner indicating the quantum of ordinary earth to be removed, the Panchayat Authorities ought to have issued a Building Permit certifying the quantum of earth as required for building construction, contended the petitioner.

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WP(C) No.29533 of 2022

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Standing Counsel for the Panchayat, on the other hand, submits that the Building Plan submitted by the petitioner along with the Building Permit application did not contain the particulars relating to the quantum of ordinary earth to be removed. The petitioner submitted such a Plan along with a Development Permit. As the application for Development Permit is rejected, the same cannot be taken into account for issuance of Building Permit.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 1 and 2 and the learned Government Pleader representing the 3^rd respondent.

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The petitioner wants to construct a building in his property. Admittedly, the property is about 1.5 Metres above the road level. The petitioner would submit that towards the rear side of the petitioner’s property, the height difference from the road will be as much as 8 Metres. Therefore, the land

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WP(C) No.29533 of 2022

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has to be levelled for the purpose of construction of a building. Retaining walls will also have to be constructed, which would require removal of substantial quantity of ordinary earth.

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Be that as it may, when the petitioner submits an application for Building Permit indicating the requirement of removal of ordinary earth for the purpose of building construction and also for the construction of retaining wall, the Panchayat Authorities are bound to consider it and issue Building Permit and Approved Building Plan accordingly. In this case, the stand of the Panchayat is that the Building Permit application was not accompanied by a Building Plan indicating the quantum of ordinary earth to be removed.

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In view of the facts emerging from the pleadings and arguments in the writ petition, I am of the view that the 1^st respondent-Secretary to the Grama Panchayat can reconsider the Building Permit application submitted by the petitioner, if the petitioner supports the Building Permit

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WP(C) No.29533 of 2022

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application with a Building Plan indicating the quantum of ordinary earth to be removed.

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The writ petition is accordingly disposed of permitting the petitioner to submit a Building Plan indicating the ordinary earth to be removed for the purpose of construction. If the petitioner submits such a Plan, the 1^st respondent-Secretary to the Grama Panchayat shall reconsider the Building Permit application and issue Building Permit indicating the quantum of ordinary earth to be removed, within a period of two weeks.

Sd/-

N.NAGARESH

JUDGE

spk

WP(C) No.29533 of 2022

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APPENDIX OF WP(C) 29533/2022

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PETITIONER EXHIBITS

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Exhibit P1COPY OF THE BUILDING PERMIT ALONG WITH
BUILDING PLAN DATED 2.11.2021.
Exhibit P2COPY OF THE DEVELOPMENT PLAN ALONG
WITH RECEIPT.
RESPONDENT EXHIBITS
EXHIBIT R1(A)THE TRUE COPY OF THE LETTER NO.C3-
4556/2021 DATED 06.09.2021 ISSUED BY
THE 1ST RESPONDENT TO THE WRIT
PETITIONER

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EXHIBIT R1(B)THE TRUE COPY OF THE LETTER NO.C3-
4556/21 DATED 07.01.2022 ISSUED BY THE
1ST RESPONDENT TO THE WRIT PETITIONER
EXHIBIT R1(C)THE TRUE COPY OF THE G.O(RT)
NO1795/21/LSGD DATED 18.09.2021
EXHIBIT R1(D)THE TRUE COPY OF THE DECISION VIDE
NO.S.C3-4553/22DATED06.12.2022
ISSUED BY THE 1ST RESPONDENT TO THE
WRIT PETITIONER

Jossy Daniel v. the Secretary, Kodumon Grama Panchayath, Pathanamthitta

Case brief

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Jossy Daniel v. the Secretary, Kodumon Grama Panchayath, Pathanamthitta

Case brief

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