IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WP(C).No. 19986 of 2007(D) --------------------------------------- PETITIONER(S): ----------------------- N.G. ROY, S/O. C.L. GEORGE, AGED 30 YEARS, N.G.R. ROCKS AND GRANITES, ROY VIHAR, KULANGARAKONAM, NARUVAMOODU P.O., THIRUVANANTHAPURAM. BY ADV. MR.G.S.REGHUNATH RESPONDENT(S): ------------------------- 1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. THE SECRETARY, PALLICHAL GRAMA PANCHAYATH, PALLICHAL, VADIVACHANCOIL P.O., THIRUVANANTHAPURAM. 3. SAJIKUMAR, RESHMA BHAVAN, KULANGARAKONAM, PALLICHAL, NARUVAMOODU P.O., THIRUVANANTHAPURAM DISTRICT. 4. RENJINI, RESHMA BHAVAN, KULANGARAKONAM, PALLICHAL, NARUVAMOODU P.O., THIRUVANANTHAPURAM DISTRICT. R1 BY GOVERNMENT PLEADER MR.V. MANU. R3 & R4 BY ADV. MR.J.S.AJITHKUMAR, MR.L.MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19986/2007-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 01/06/2007 PASSED BY HONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN O.P. NO. 861/2006. EXT.P2: COPY OF THE LETTER SENT BY THE GEOLOGIST ON 20/02/2004. EXT.P3: COPY OF THE LICENSE ISSUED FOR 2007-2008. EXT.P4: COPY OF THE LETTER DATED 14/02/2007 SENT BY THE GEOLOGIST. EXT.P5: COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER. EXT.P6: COPY OF THE LOCATION CERTIFICATE ISSUED FROM THE VILLAGE OF PALLICHAL. EXT.P7: COPY OF THE LOCATION MAP. EXT.P8: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE LOCAL PANCHAYATH. EXT.P9: COPY OF THE RESOLUTION PASSED BY THE PANCHAYATH. EXT.P10: COPY OF THE PHOTOGRAPHS OF THE HOUSE CONSTRUCTED BY THE 4TH RESPONDENT. EXT.P11: COPY OF THE OBJECTION FILED BY 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER PALLICHAL VILLAGE DATED 18/03/2006. EXT.R4(b): COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER PALLICHAL VILLAGE DATED 19/05/2007. EXT.R4(c): COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER. EXT.R4(d): COPY OF THE RECEIPT NO.37960 DATED 28/09/2004 FOR THE APPLICATION FOR LICENCE AND BUILDING PERMIT. EXT.R4(e): COPY OF THE ORDER DATED 08/04/2005 IN I.A.1614/2005 IN O.S. NO.247/2005. EXT.R4(f): COPY OF THE COMMISSION REORT IN O.S. NO.247/2005 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA. EXT.R4(g): COPY OF THE ORDER DATED 08/04/2005 OF 2ND RESPONDENT. WP(C) NO. 19986/2007-D EXT.R4(h): COPY OF THE JUDGMENT DATED 15/12/2005, THE MUNSIFF COURT, NEYYATTINKARA DISMISSED O.S. NO.247/2005. EXT.R4(i): COPY OF THE BUILDING PLAN SUBMITTED ON 27/09/2006. EXT.R4(j): COPY OF THE RECEIPT NO.24297 OF PALLICHAL GRAMA PANCHAYATH. EXT.R4(k): COPY OF THE COMPLAINT DATED 21/10/2006 IN O.P. NO. 861/2006. EXT.R4(l): COPY OF THE STATEMENT OF 2ND RESPONDENT DATED 28/03/2007 ON THE FILE OF 1ST RESPONDENT. EXT.R4(m): COPY OF THE ORDER OF LOK AYUKTHA IN COMPLAINT NO.1096/2007. EXT.R4(n): COPY OF THE ORDER DATED 01/06/2007 OF 1ST RESPONDENT. EXT.R4(o): COPY OF THE ORDER OF 2ND RESPONDENT DATED 25/06/2007. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J ....................... W.P.(C).19986/2007 ....................... Dated this the 10th day of February, 2010 JUDGMENT 1. Petitioner challenges Ext.P1 order passed by the Ombudsman for Local Self Government Institutions, interfering with the order passed by the Panchayat refusing to give licence for construction of a building and directing the Panchayat to give permission to the party respondents to construct house and shop rooms. 2. The reason for rejecting the building permit was that the quarry is situated within about 15.65 metres away from the house and therefore permit could not be given. It is this reason which is held to be illegal by the Ombudsman. In Joseph v. State of Kerala (2003 (3) KLT 296), this Court has held that - “when a dangerous and offensive trade is permitted to start functioning, one of the preconditions is that there should not be any residential building within a prescribed distance. But when later on an establishment, house or institution authorized and permissible to be put up W.P.(C).19986/07 2 comes to existence, it may not be possible for the quarry owner to contend that he having been permitted to occupy and exploit his properties, others are automatically subjected to a disability for all time to come.” 3. Therefore, the fact that there is a quarry in existence in the close proximity to the site belonging to the party respondents is no reason for the quarry owner to contend that the party respondents should not construct a residential house. In view of the aforesaid judgment, I cannot find fault with Ext.P1. Therefore the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, Judge mrcs