Land Development Permit Not Required To Extract & Transport Ordinary Earth If Building Construction Does Not Involve Subdivision Into Plots : Kerala High Court

The Kerala High Court has ruled that where a building construction does not involve development of land by subdivision of land into plots, but only extraction and transportation of ordinary earth, the owner need not obtain a Land Development Permit for the purpose of obtaining Mineral Transit Pass.

Justice N. Nagaresh clarified, however, that in such cases, the application for Mineral Transit Pass should be accompanied by a valid Building Permit obtained from the Local Self Government authorities, a Possession Certificate issued by the Village Officer and an approved building plan obtained from the Local Self Government authorities containing the quantity of ordinary earth to be extracted for such construction. 

The order was issued in a plea filed by a man who wanted to construct a house for which he had to remove the topsoil from the plot to level the ground for laying the foundation bed. 

He submitted that the property in question was situated more than 12 feet above the road level and no vehicles including autorickshaws could ascend to the said property.

Therefore, an application was made to the Secretary of the Grama Panchayat, seeking to issue Development Permit, which is a prerequisite for the Geologist to issue permission to extract and transport the soil. 

However, the Panchayat authorities informed the petitioner that the Secretary or Grama Panchayat is not authorised to grant Land Development Permit for removal of soil. 

Advocates Varghese M Easo and Vivek Varghese P.J representing the petitioner argued that unless the Grama Panchayat Secretary issues a Development Permit, the Geologist will not issue the necessary transit pass.

This would hinder the petitioner from levelling the land. Therefore, he moved the Court seeking a directive to the Geologist to grant a 'No Objection Certificate' (NOC) and the permission to remove the red earth from the property where the house is proposed to be constructed.

The respondents made their submissions through Standing Counsel Siby Chenappady and Government Pleader G. Ranjita.

It was submitted that as per Rule 14(2) of the Kerala Minor Mineral Concession Rules, 2015, it is mandatory that a building permit and a development permit are issued by the concerned Local Self Government, for granting permission for removal of ordinary earth for construction of buildings having a plinth area of 20,000 m² and more.

Further, it was argued that the issuance of NOC from the Department is not stipulated by the Rules for construction of buildings having plinth area below 20,000 square metres.

Contesting the petition, Grama Panchayat Secretary stated that the Kerala Panchayat Building Rules, 2019 do not contemplate the issuance of a Development Permit for the purpose of removing ordinary earth for building construction. 

He relied on Rules 4, 5 and 10 of the Kerala Panchayat Building Rules, 2019 to argue that a Development Permit is to be issued only in cases where there is the development of land by means of sub-division into plots.

It was further clarified that when a Building Permit is issued, the permission for land development necessary for the purpose of effecting such construction, is deemed to be included in the building permit.

Key Observations:

The question that arose for consideration was whether the petitioner is required to obtain a Land Development Permit for getting Transit Passes from the Geologist and if so, whether the Local Self Government Institution is legally bound to issue a Development Permit to the petitioner, even in cases where construction of the building does not involve development of land. 

The Court noted that in view of Rules 4 and 5 of the Kerala Panchayat Building Rules, a Development Permit is required only when there is a development of land by dividing land into plots.

However, in the case of the petitioner, he does not intend to subdivide his land into plots. He merely wants to level the land which is situated at a higher level, by removal of ordinary earth to lay the foundation of the residential building.

Similarly, it was observed that the issue of permit under Rule 10 will apply only where land developments involving earthwork excavation to a depth of more than 1.5 metres. The petitioner herein had no case that such excavation is required for levelling land for his construction work.

"Therefore, since the proposed construction does not involve subdivision into plots of the land and since earth cutting to a depth of 1.5 metre is not required, the petitioner is not bound to obtain a Development Permit under Rule 4 nor he is expected to obtain approval of site plan under Section 10." 

However, where the land proposed is uneven and require levelling, that work would necessarily involve removal of ordinary earth. When the quantum of ordinary earth so removed is large, the owner of the land may have to transport the ordinary earth to some other place. 

In view of Rule 26(4), a person transporting ordinary earth without a valid mineral transit pass would be committing an offence of illicit transportation of minerals. Therefore, it becomes necessary for the petitioner to obtain a mineral transit pass under the Kerala Minor Mineral Concession Rules, 2015. 

However, the Court noted that though the KPBR, 2019 does not require the petitioner to obtain a Development Permit for the proposed construction, the first Proviso to Rule 14(2) requires the petitioner to get a Development Permit in order to obtain the Mineral Transit pass to transport ordinary earth.  

Upon finding conflicting statutory provisions, the Court applied the rule of harmonious interpretation:

"The KMBR, 2019 do not provide for issuance of Land Development Permit in cases where the building construction does not involve subdivision of plots. Therefore, the 1st proviso should be understood to mean that the application for mineral transit passes should be accompanied by (1) valid building permit for construction of building obtained from the Local Self Government authorities concerned or/and (2) Land Development Permit obtained from the Local Self Government authorities concerned in cases where the levelling of the land and extraction of ordinary earth is involved, as the case may be."

The Single Bench noted that when the proviso is so construed, in cases where there is no development of land as contemplated by Rule 4 of the KPBR, for obtaining Mineral Transit pass the owner of the land need to produce only Building Permit and Possession and Enjoyment Certificate of the land issued by the Village Officer.

Therefore it was held as such:

"...where a building construction which does not involve the development of land by subdivision of land into plots, but involves extraction and transportation of ordinary earth, the owner need not obtain a Land Development Permit from Local Self Government Institution for the purpose of obtaining Mineral Transit Pass under the KMMC Rules, 2015."

However, the Bench clarified that in such cases, the application for Mineral Transit Pass should be accompanied by a valid Building Permit obtained from the Local Self Government authorities, a Possession Certificate issued by the Village Officer and an approved building plan obtained from the Local Self Government authorities which shall contain the quantity of ordinary earth to be extracted for such construction. 

The petition was thereby disposed of with a direction to the Geologist to provide the NOC if the petitioner was found to be eligible. 

Case Title: Philip Thomas v. The Geologist & Ors.

Click Here To Read The Order