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