Monday, July 13, 2015

Read Full Judgment - Aided School Construction Not Public Work, Says HC

Read Full Judgment - Aided School Construction Not Public Work, Says HC


The ruling was given by justice K Vinod Chandran after considering a petition filed by the manager of St Joseph LP School at Mattom in Thrissur.
When the school building, which was claimed to be over 100 years old, became dilapidated, the management filed an application for reconstructing it. The demand was allowed by the state government in April this year.
After obtaining approval for the building plan from the local self government department, the management applied for mineral transit passes from mining and geology department. The passes were not issued as the government contended that the exemption granted for public work, that no quarrying permit is needed to obtain transit passes for moving minor minerals, is not applicable in this case.
In the petition filed by the school management to the high court, they argued that the proposed construction is a public work and that they should be issued with transit passes without insisting for a quarrying permit.
Opposing this demand, senior government pleader Biju Meenattoor informed the court that the school building proposed to be constructed does not come within the purview of public work as per Rule 106 of Kerala Minor and Mineral Concession Rules, 2015.

Ruling against the demand of the aided school management, the court held, "The 'constructions' contemplated in the said Rule are specifically constructions undertaken by the departments/authority, meaning a Government department or authority under the Government. Merely for the reason that, the petitioner's school is granted aid for running the school, the construction of school building cannot be said to be one which is in pursuance of a public duty, nor can it be said to be a 'public work' as indicated in Rule 106(3) of the Rules."

     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                      PRESENT:
    THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

MONDAY, THE 25TH DAY OF MAY 2015/4TH JYAISHTA, 1937

            WP(C).No. 14666 of 2015 (G)
            ----------------------------
PETITIONER(S):
---------------
      MANAGER
      ST.JOSEPH L.P SCHOOL,
     ALOOR DESOM, P.O MATTOM
      THRISSUR DISTRICT(FR.VICAR ST.SEBASTIAN
     CHURCH ALOOR, P.OMATTOM
      THRISSUR DISTRICT).
      BY ADV. SRI.SHOBY K.FRANCIS

RESPONDENT(S):
----------------------------
  1. THE DISTRICT GEOLOGIST
      OFFICE OF THE GEOLOGIST
      DEPARTMENT OF MINING AND GEOLOGY,
      AYYANTHOLE P.O
      THRISSUR DISTRICT. 68003.

  2. THE DIRECTOR OF MINING AND GEOLOGY
      KESAVADASAPURAM, PATTOM,
     THIRUVANANTHAPURAM 695 001.

  3. THE VILLAGE OFFICER,
      ALOOR VILLAGE, MATTOM P.O,
     THRISSUR DISTRICT. 680 602.

                                         (P.T.O)
WP(C).No. 14666 of 2015 (G)

  4. DISTRICT EDUCATIONAL OFFICER
      OFFICE OF THE DEO, CHAVAKKAD EDUCATIONAL
     DISTRICT,CHAVAKKAD P.O,
     THRISSUR DISTRICT. 680 506.

     R BY SR.GOVERNMENT PLEADER SRI.BIJU MEENATTOOR

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION  ON  25-05-2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 14666 of 2015 (G)
----------------------------

                      APPENDIX

PETITIONER(S)' EXHIBITS
-------------------------
EXHIBIT P1. COPY OF THE BASIC TAX RECEIPT DATED
            11.5.15 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P2. COPY OF THE ORDER DATED 28.4.15 ISSUED
           BY THE 4TH RESPONDENT TO THE PETITIONER.

EXHIBIT P3. COPY OF THE BUILDING PERMIT ISSUED BY
           THE LOCAL GRAMA PANCHAYATH DATED 6.3.15
           TO THE PETITIONER.

EXHIBIT P4. COPY OF THE POSSESSION CERTIFICATE DATED
           17.12.14 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5. COPY OF THE JUDGMENT IN WPC 12079/15
           DATED 10.4.15.

RESPONDENT(S)' EXHIBITS              NIL
-----------------------




                                     //TRUE COPY//



vk                                    PA TO JUDGE


                  K.VINOD CHANDRAN, J.
              ---------------------------------------
                W.P.(C).No.14666 of 2015
              ----------------------------------------
          Dated this the 25th day of May, 2015

                          JUDGMENT


          The petitioner is the Manager of an aided school,

who seek consideration of Ext.P3 application purportedly

filed under the Kerala Minor and Mineral Concession Rules,

2015 (for brevity 'the Rules) . The school building of the

petitioner was in a dilapidated stage, being of more than

100 years of age, and hence, the petitioner had applied for

permission to re-construct the building, which was allowed

as per Ext.P2.     Subsequently, on the plan of the new

building also being approved by the Local Self Government

Department, by Ext.P3, the petitioner applied for Mineral

Transit Passes, as per the Rules. The petitioner's contention

is that, the same has not been accepted, since, according

to the Government, there is no exemption for the school

building proposed to be constructed by the petitioner. The

petitioner claims that the construction is a public work and
W.P.(C).No.14666 of 2015            2

hence is exempted under Rule 106(3) of the Rules.

             2. The learned Government Pleader points out

that the plinth area of the building, as is evident from

Ext.P3, is 382.44 square meters and the exemption

applicable under Rule 14 of the Rules is only with respect to

both commercial and residential buildings having a plinth

area of 300 square meters.            The petitioner intending to

construct a building, above the limit prescribed under Rule

14(2) of the Rules of 2015, has to apply for quarrying

permit as per Rule 14 of the Rules, is the contention.

             3. With respect to the exemption claimed under

Rule 106(3) of the Rules, the learned Government Pleader

would contend that, the school building proposed to be

constructed by the Manager of an aided school would not

come within the purview of "public work" as indicated in

the Rule which is extracted here under.

         Rule 106(3):    Where in the construction of public

         works     like roads,   canals,   irrigation  projects,

         railways, as a part of the work, if extraction of minor

         mineral is inevitable, the department/authority may

         do so without obtaining quarrying permit under
W.P.(C).No.14666 of 2015           3

         these rules.    If the extracted mineral is to be

         transported out of the work site, competent

         authority shall issue mineral transit passes on an

         application made by the authority concerned, after

         collecting the royalty.

             4. The "constructions"contemplated in the said

Rule are specifically constructions undertaken by the

departments/authority, meaning a Government department

or authority under the Government. Merely for the reason

that, the petitioner's school is granted aid for running the

school; the construction of school building cannot be said

to be one which is in pursuance of a public duty, nor can it

be said to be a "public work" as indicated in Rule 106(3) of

the Rules.

             5. In such circumstances, this court is not inclined

to accept the contention of the petitioner that the school

building proposed to be constructed by the petitioner is

one, which permits exemption under Rule 106(3)of the

Rules. The petitioner, hence, would have to approach the

competent authority under the Rules of 2015 for a permit

under Rule 14.
W.P.(C).No.14666 of 2015       4

             The writ petition would stand closed with the

above liberty. It is also made clear that even if excavation

is already carried on, the Competent Authority shall

conduct an inspection and on verification as against the

approved building plan, if found to be excavated only for

the purpose of the construction, grant permit in accordance

with the Rules. The above direction is only on account of

the peculiar facts of the case and the bonafide contention

raised.




                                K.VINOD CHANDRAN
                                       JUDGE

AD