False Statement; Kunjalavi Chellamma Vs. District Geologist, Department of Mining & Geology, Kollam District [Kerala High Court, 17-08-2016]

Rules of the High Court of Kerala, 1971 – Rule 154 – Criminal Contempt – Writ Petition – Suppressed Material Facts – Instead of producing the original building permit, a colour photocopy of the same has been produced – not supported by an affidavit sworn to by the petitioner – made a false statement in the Writ Petition that her application is pending consideration before the district Geologist – Conduct of the petitioner in this regard has to be deprecated in strongest terms – Though this is a fit case for initiating criminal contempt against the petitioner, considering the facts and circumstances of the case as borne out from the pleadings and materials on record and also the fact that the petitioner is a lady aged 72 years, instead of initiating such proceedings, deem it appropriate to dismiss this Writ Petition imposing cost on the petitioner.

Building Permit


IN THE HIGH COURT OF KERALAAT ERNAKULAM

ANIL K. NARENDRAN, J.

W.P.(C).No.17078 of 2016

DATED THIS THE 17th DAY OF AUGUST, 2016

PETITIONER

KUNJALAVI CHELLAMMA, KOTTARAKARA.

BY ADV. SRI.ALEXANDER GEORGE

RESPONDENT(S)

1. THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING & GEOLOGY, KOLLAM DISTRICT, KOLLAM-691001.

2. THE DISTRICT COLLECTOR KOLLAM, PIN-691501.

3. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

4. THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695004.

5. THE DIRECTOR OF PANCHAYAT, DIRECTORATE OF PANCHAYAT, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM-695033.

6. THE SECRETARY, PAVITHRESHWARAM GRAMA PANCHAYAT, KARIMPINPUZHA P.O., KOLLAM DISTRICT-691518.

R1-R5 BY GOVERNMENT PLEADER SRI MOHAMMAD SAVAD ADDL. R6 BY ADV. SRI.S.SUDHEESHKAR

JUDGMENT

The petitioner, who is stated to be the owner in possession of 15.20 Ares of property in Sy.No.366/28 of Pavithreshwaram Village in Kottarakkara Taluk has filed this Writ Petition mainly seeking for a writ of mandamus commanding the District Geologist, Kollam, the 1 st respondent herein, to issue Mineral Transit Pass in Form O(A) under

Rule 25 read with Rule 26 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015

for transportation of ordinary earth from the said property in connection with the construction of a residential building for which she has obtained Ext.P1 building permit dated 7.4.2015 from Pavithreshwaram Grama Panchayat.

2. Going by the averments in the Writ Petition, the petitioner wants to develop 10.20 Ares out of 15.20 Ares in Sy.No.366/28 of Pavithreshwaram Village as a plot fit for construction of residential building, after extracting ordinary earth from the said property, which lies at an elevation of few meters above the road level. In order to construct a residential building, the petitioner has obtained Ext.P1 building permit bearing No.A3-2304/15 dated 7.4.2015 from Pavithreshwaram Grama Panchayat. Thereafter, she submitted an application before the Revenue Divisional Officer, Kollam along with Ext.P1 building permit and connected records. The RDO forwarded the said application to the 1 st respondent, for consideration as per rules. However, the said application was neither considered nor rejected by the 1 st respondent. Therefore, the petitioner has approached this Court in this Writ Petition seeking various reliefs. The petitioner has also relied on Ext.P2 judgment of this Court dated 17.3.2016 in W.P.(C).No.10347 of 2016, a decision rendered by a learned Judge of this Court on similar set of facts.

3. On 10.5.2016, when this Writ Petition came up for admission, the learned Counsel for the petitioner sought for disposal of the same in terms of Ext.P2 judgment. Therefore, after hearing the learned Government Pleader, the Writ Petition was disposed of, by directing the 1 st respondent to issue sufficient Mineral Transit Pass in Form O(A) to the petitioner without restricting the number of vehicles to be deployed by her and subject to the other conditions as contained in Ext.P2 judgment.

4. While reading the draft judgment of the writ Petitions disposed of on 10.5.2016, it was noticed that the building permit produced as Ext.P1 in W.P.(C)No.17078 of 2016 and that produced as Ext.P1 in W.P.(C)No.17080 of 2016 (filed by another resident of Pavithreswaram Grama Panchayat seeking identical reliefs in respect of 03.03 Ares of property in Sy.No.362/17-4-2 of Pavithreswaram Village) bear the same number and date, i.e., ‘No.A3-2034/15 dated 7.4.2015’. In both the building permits, the total plinth area of the proposed building is shown as 217.11 sq.meters (Ground Floor – 126.16 sq.meter + First Floor – 90.95 sq.meter).

5. Prima facie, it appeared that Ext.P1 building permit produced along with both the Writ Petitions are photocopy of the very same document, except the changes in the name of the permit holder and survey number of the property. In both the Writ Petitions, the petitioners have not chosen to produce the building plan/site plan, which forms an integral part of the building permit. In view of serious doubts as to the genuineness of Ext.P1 building permits, the Registry was directed to list the Writ Petitions as ‘to be spoken to’ on 11.5.2016, with notice to Shri.Alexander George, the learned counsel for the petitioner in both the Writ Petitions and also the learned Government Pleader for the respondents.

6. After hearing learned counsel for the petitioner and also the learned Government Pleader, this Court by order dated 11.5.2016 directed the petitioners in both the Writ Petitions to produce, along with an interlocutory application for accepting additional documents, the original of Ext.P1 building permit along the building plan and site plan. The Director of Mining and Geology, who was suo motu impleaded as Addl. 4 th respondent was directed to conduct an inspection of the properties referred to in Ext.P1 building permit in both the Writ Petitions, through the 1 st respondent or any other competent officer, and to submit a detailed report as to the nature of the land, and state as to whether there are instances of the permit holders not constructing the building after extracting and removing ordinary earth from their property on the strength of Mineral Transit Passes issued in Form O(A). The Secretary of Pavithreshwaram Grama Panchayat, who was suo motu impleaded as Addl. 6 th respondent was directed to produce before the Registrar General of this Court, the original files relating to building permits bearing No.A3-2034/15 dated 7.4.2015 produced as Ext.P1 along with both the Writ Petitions.

7. Pursuant to the order dated 11.5.2016, the additional 6 th respondent has produced before the Registrar (General) of this Court the original files relating to building permit bearing No.A3-2034/15 dated 7.4.2015 and also the original Building Permit Application Register maintained by Pavithreshwaram Grama Panchayat for the relevant period. As evident from the said documents, on 27.3.2015 the petitioner in W.P.(C)No.17078 of 2016 submitted an application before the Panchayat, based on which the Panchayat issued a building permit bearing No.A3-2304/15 dated 7.4.2015. The Building Permit Application Register would also show that, the petitioner in the other Writ Petition, i.e., W.P.(C)No.17080 of 2016 has not even submitted an application for building permit. The learned Standing Counsel for the Panchayat has submitted that, the Panchayat has not issued any building permit to the petitioner in W.P.(C)No.17080 of 2016.

8. The Addl. 4 th respondent has filed a report dated 21.5.2016, pointing out that, on the strength of Ext.P1 building permit the petitioner had earlier obtained permission from the 1 st respondent for extracting and removing 750 metric tonnes of ordinary earth from the property in question, vide proceedings No.45/15-16/DOQ/S2/904/15 dated 29.4.2015, which was followed by proceedings No.212/15-16/DOQ/S2/ 904/15 dated 11.6.2015 for extracting and removing 400 metric tonnes of ordinary earth and that, the property in question is partially developed. The photographs of the property has also been produced along with the said report. The Addl. 4 th respondent has also stated that, in view of the provisions under