Disposed

Thomas Cheriyan Education Trust v. Vallachira Grama Panchayath

Kerala HC2 Aug 2023WP(C)/11865/2023

Case brief

AI extract

What is this about?

The High Court of Kerala held that a Panchayat cannot indefinitely delay a Development Permit while seeking expert opinions. The court directed the Secretary to decide within two months, allowing the petitioner to remove earth only after obtaining Mineral Transit Passes.

What did the court decide?

Directed the Secretary to consider the application and take a final decision within two months; petitioner to obtain Mineral Transit Passes before removing earth.

Thomas Cheriyan Education Trust Vs Vallachira Grama… — Landlord and Tenant | Kerala HC (2023)

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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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WEDNESDAY, THE 2^ND DAY OF AUGUST 2023/11TH SRAVANA, 1945

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WP(C) NO. 11865 OF 2023

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PETITIONER:

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THOMAS CHERIYAN EDUCATION TRUST, AGED 78 YEARS, VALLACHIRA, 11, THRISSUR-680562, REPRESENTED BY MANAGING TRUSTEE MOLLY THAYYIL

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BY ADVS. R.PARTHASARATHY SEEMA

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RESPONDENTS:

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1 VALLACHIRA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VALLACHIRA, THRISSUR, PIN - 680562

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2 THE SECRETARY, VALLACHIRA GRAMA PANCHAYATH, VALLACHIRA, THRISSUR, PIN - 680562

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*3 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, THRISSUR, PIN - 680020 4 SUDHEESH C., AGED 51 YEARS, S/O. GOPINATHAN, APPOZHATH HOUSE, VALLACHIRA P.O, THRISSUR DISTRICT-680562 [ADDL.R4 IS IMPLEADED AS PER ORDER DATED 02.08.2023 IN I.A NO.1 OF 2023]

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BY ADVS. SHRI.C.HARIKUMAR, SC, VALLACHIRA GRAMA PANCHAYAT SMT.DEEPA N., SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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Dated this the 2^nd day of August, 2023

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The petitioner, Thomas Cherian Education Trust, running a CBSE School, is before this Court aggrieved by Ext.P4 communication of the Secretary to the Grama Panchayat.

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The petitioner wanted to develop a play ground in the land possessed by the school. An application for Development Permit was submitted, since the development of the school ground required leveling of land and removal of ordinary earth. By Ext.P4, the Secretary to the Grama Panchayat informed the petitioner that the land of the school is standing on the top of a hillock and there are objections from the local residents that removal of land will cause inconvenience and difficulties to the local people. So in order to remove the concerns of the local persons, the

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Geology Department was approached. The Panchayat is awaiting advice from the Geology Department. As and when the petitioner cures the shortcoming, the application for Development Permit can be processed. In Ext.P4, it has also been stated that there is an attachment order over the property of the school.

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The petitioner states that the petitioner wanted to develop land for the purpose of constructing a sports ground for the school children. The petitioner has submitted an application for Development Permit under the Kerala Panchayat Building Rules. The competent licensing authority has a duty to consider and take a decision and issue licence to the petitioner in accordance with law. The licensing power of the Panchayat authorities cannot be postponed on the premise that the Panchayat authorities have sought for reports from Government Department. The delay in processing and granting the Development Permit would adversely affect the petitioner and the students studying in the school, contended the petitioner.

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Standing Counsel entered appearance on behalf

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of respondents 1 and 2 and resisted the writ petition. On behalf of respondents 1 and 2, it is submitted that the petitioner's school and the school ground is situated on the top of a hillock. Earlier there were instances of illegal and unauthorised excavation of ordinary earth from the premises of the petitioner. The Officers of the Mining and Geology Department had taken proceedings against the petitioner.

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Any further removal of ordinary earth from the hill top will not be in the interest of general public and it will destroy the environment in the area. It is likely to result in landslide also. Availability of drinking water will also be diminished. In such circumstances, the Panchayat authorities decided to approach the Mining and Geology Department for advice.

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The Mining and Geology Department advised the Panchayat to approach the Ground Water Department, Department of Environment and the Pollution Control Board Authorities. The Panchayat has addressed letters to all

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these authorities. None of these authorities have responded so far. Without the opinion of experts in the field, it will be improper for the Grama Panchayat to issue a Land Development Permit, in the facts of the case.

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The additional 4^th respondent who is impleaded in the writ petition also resisted the writ petition. The additional 4^th respondent submitted that the writ petition has been filed without any bona fide. The sole intention of the school authorities is to illegally excavate the hillock for monetary gains. There were instances earlier also when the petitioner had resorted to illegal mining of the hillock. The Geology Department has initiated proceedings against the petitioner.

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The additional 4^th respondent further submitted that there is no necessity to carry out excavation to a depth of 1.5 Metres for the purpose of making a play ground. That itself shows that the intention of the petitioner is to exploit the land illegally.

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The removal of land at a depth of 1.5 Metres as suggested in the application for Development Permit of the

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petitioner would prejudicially affect the local population. The ground water availability will be reduced. Environment will be polluted. There is a strong likelihood of landslides also in future as the excavation is done from the top of a hillock.

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Though the additional 4^th respondent filed complaints before the District Collector, Geology Department and Panchayat authorities, the authorities have not taken any steps to make necessary enquiries in this regard. Any direction given by this Court to the Panchayat authorities for issuing Development Permit will cause undue hardship to the local citizens.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 1 and 2, the learned Government Pleader representing the 3^rd respondent and the learned counsel appearing for the additional 4^th respondent.

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The petitioner is a School having land in Vallachira Grama Panchayat. The school is affiliated to CBSE as is evident from Exts.P1 and P2. The petitioner want a Land

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Development Permit in order to construct a play ground in their property.

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It is discernible from the pleadings and arguments

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that the petitioner's land is on a hill and the play ground is being constructed in the hillock. The Panchayat authorities have refused to issue a Development Permit, firstly approaching the Geologist for advice and then to the Ground Water Department and the Pollution Control Board Authorities for their opinion.

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I find that issuance of Development Permit is a statutory licensing power conferred on the Secretary to the Grama Panchayat. When a citizen makes an application for issuance of Development Permit, the Secretary is bound to process the application and take a final decision on the issuance of Building Permit / Development Permit within a reasonable time. The Secretary cannot shoot letters to other Departments of the Government and the Pollution Control Board and sit over the file idle without processing the application.

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The Panchayat authorities have a right to obtain expert opinion in the matter, before issuing any Building Permit / Development Permit. But that opinion should be obtained from the competent Expert Bodies and it is the duty and liability of the Panchayat authorities to obtain such expert opinion within a reasonable time. On that score, issuance of Building Permit / Development Permit cannot be delayed indefinitely.

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In the facts and circumstances of the case, the writ petition is disposed of directing the 2^nd respondent-Secretary to consider the application for Development Permit submitted by the petitioner and take a final decision in the matter within a period of two months. It is made clear that the Panchayat authorities will be at liberty to obtain expert opinion if the authorities find it necessary under the Building Rules, within the stipulated time. If the additional 4^th respondent has a grievance, the additional 4^th respondent will be at liberty to approach the District Disaster Management Authority or any other statutory body and prosecute his grievances in

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accordance with law. In the event of grant of Development Permit, the petitioner shall remove ordinary earth only after obtaining Mineral Transit Passes from the District Geologist.

Sd/-

N. NAGARESH

JUDGE

sss

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APPENDIX OF WP(C) 11865/2023

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PETITIONER'S EXHIBITS

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EXHIBIT-P1 TRUE COPY OF THE NO-OBJECTION CERTIFICATE NO.54545/N3/86/GE DATED 5- 11-1986 ISSUED BY THE GOVERNMENT OF KERALA, EDUCATION DEPARTMENT EXHIBIT-P2 TRUE COPY OF THE CERTIFICATE NO.CBSE/RO/AFFLN./B/89 OF AFFILIATION ISSUED BY THE CBSE DATED 12.07.1989 EXHIBIT-P3 TRUE COPY OF THE APPLICATION SUBMITTED ONLINE ON 26-12-2022 FOR THE LAND DEVELOPMENT PERMIT AND THE PLAN ATTACHED. EXHIBIT-P4 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 15-02-2023 EXHIBIT-P5 TRUE COPY OF THE LETTER ENTRUSTING THE DEMOLITION OF DILAPIDATED STRUCTURES TO SRI. MITHUN DATED 22.01.2022 EXHIBIT-P6 TRUE COPY OF THE REQUEST SUBMITTED TO THE GEOLOGIST ON 21.05.2022 EXHIBIT-P7 TRUE COPY OF THE ACKNOWLEDGMENT FOR RECEIPT OF EXT.P6 REQUEST DATED 21.05.2022 EXHIBIT-P8 TRUE COPY OF THE NOTICE ISSUED FROM THE OFFICE OF GEOLOGIST DATED 25.05.2022 EXHIBIT-P9 TRUE COPY OF THE STATEMENT SUBMITTED BEFORE THE KERALA MINERAL SQUAD CENTRAL REGION, THRISSUR, DATED 27.05.2022

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RESPONDENT EXHIBITS EXHIBIT R4 (A) A TRUE COPY OF THE STOP MEMO ISSUED BY THE VILLAGE OFFICER, VALLACHIRA VILLAGE DATED 23.03.2022 TO THE PETITIONER EXHIBIT R4 (B) A TRUE COPY OF STOP MEMO DATED 25.03.2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT

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EXHIBIT R4(C) A TRUE COPY OF REPORT DATED 13.04.2022 SUBMITTED BY THE VILLAGE OFFICER, VALLACHIRA VILLAGE TO THE TAHASILDAR, THRISSUR EXHIBIT R4 (D) A TRUE COPY OF REPORT DATED 26/05/2022 SUBMITTED BY THE GEOLOGIST, KERALA MINERAL SQUAD (CENTRAL REGION) TO THE 3RD RESPONDENT HEREIN OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT

Thomas Cheriyan Education Trust v. Vallachira Grama Panchayath

Case brief

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Thomas Cheriyan Education Trust v. Vallachira Grama Panchayath

Case brief

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