IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
WP(C).No.23574 OF 2020(V)
PETITIONERS:
1 RASSALI, AGED 54 YEARS
S/O KUNHUPILLA RAWTHER, MANGASSERIL
(THENAMAKKAL) KANJIRAPPALLY P O, KOTTAYAM
DISTRICT.
2 IJAZKHAN K. R., S/O RASHEED ,
KALLUVARA PARAMBIL, THIDANADUKARA,
ERATTUPETTA PO, KOTTAYAM DISTRICT.
3 ABY S/O RASHEED,
KALLUVARA PARAMBIL, THIDANANDUKAR,
ERATTUPETTA P O, KOTTAYAM DISTRICT.
4 SHANIDA, W/O RASHEED,
KALLUVARA PARAMBIL, THIDANANDUKAR,
ERATTUPETTA P O,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.P.A.MOHAMMED SHAH
SHRI.MUHAMMED JANAISE V.
SHRI.ASWIN KUMAR M J
SHRI.MOHAMED MUSTHAFA A.K.
SMT.HELEN P.A.
RESPONDENTS:
1 DISTRICT COLLECTOR
CIVIL STATION, KOTTAYAM-686002.
2 TAHSILDAR
KANJIRAPPILLY TALUK, TALUK OFFICE,
KANJIRAPPALLY-686507.
W.P.(C). No.23574 of 2020 ..2..
3 VILLAGE OFFICER
VILLAGE OFFICE, KANJIRAPPILLY-686507.
4 THE SENIOR GEOLOGIST
MINING AND GEOLOGIST, DISTRICT OFFICE,
COLLECTORATE, KOTTAYAM-686002.
5 SUB INSPECTOR OF POLICE
KANJIRAPPILLY POLICE STATION, KANJIRAPPALLY,
KOTTAYAM DISTRICT-686507.
6 RAHIYANATH
W/O NIYAS, BUNGALVU PARAMBIL, KANJIRAPPALLY,
KOTTAYAM DISTRICT-686507.
R6 BY ADV. SRI.T.K.RADHAKRISHNAN
R6 BY ADV. SMT.S.SREEDEVI
R6 BY ADV. SRI.T.R.HARIKRISHNAN
SRI. K.J. MANURAJ, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18-12-2020, THE COURT ON 04-01-2021 DELIVERED THE
FOLLOWING:
W.P.(C). No.23574 of 2020 ..3..
P.B.SURESH KUMAR, J.
-------------------------------------
W.P.(C). No.23574 of 2020
--------------------------------------
Dated this the 4th day of January, 2021
JUDGMENT
Petitioners own an item of property measuring 8.4 Ares within the limits of Kanjirappally Village. The sixth respondent owns a property adjoining to the property of the petitioners on its northern side. With a view to construct a commercial building in the property, the petitioners obtained Ext.P5 building permit and Ext.P6 development permit from the Panchayat. As a certain quantity of ordinary earth and granite building stones required to be removed from the property for the purpose of constructing the building proposed by the petitioners, they have obtained permissions for the same from the fourth respondent under the Kerala Minor Mineral Concession Rules, 2015. Exts.P7 and P8 are the permissions obtained by the petitioners from the fourth respondent in this regard. When the petitioners commenced the work of removal of ordinary earth and granite stones from the property, the sixth respondent has lodged a complaint before the District Collector W.P.(C). No.23574 of 2020 ..4..
alleging that the petitioners are removing ordinary earth and granite stones from her property also. The said complaint was forwarded by the District Collector to the fourth respondent, the District Geologist, and on receipt of the same, after affording the sixth respondent an opportunity of hearing, the fourth respondent issued Ext.P9 memo directing the petitioners to stop the activities undertaken by them on the strength of Exts.P7 and P8 permissions. It is seen that the petitioners have pointed out to the fourth respondent that they have not encroached upon the property of the sixth respondent in any manner and consequently, after hearing the petitioners and the sixth respondent, the fourth respondent issued Ext.P12 communication to the petitioners informing them that since the sixth respondent has raised a dispute concerning the boundary of the properties, further action in the matter can be taken only after the boundary dispute is resolved by the concerned officials of the Revenue Department. The materials indicate that the Taluk Surveyor has, thereupon fixed the boundary of the respective properties and the petitioners have approached the fourth respondent thereafter for continuing the activities undertaken by them on the strength of Exts.P7 and P8 permissions. On the said request, Ext.P19 communication was issued by the fourth respondent to the petitioners informing them that a decision W.P.(C). No.23574 of 2020 ..5..
in the matter will be taken after considering the report called for from the second respondent as to the state of things as they stand now. Ext.P22 is the report forwarded by the second respondent to the fourth respondent in this regard. In Ext.P22, it is stated among others that the ordinary earth removed from the property of the petitioners is kept in the property itself; that there is a large granite stone in the property of the petitioners; that the property of the sixth respondent is lying at a height of almost 7 meters from the property of the petitioners; that no loss or damage would be caused to the sixth respondent if the petitioners are permitted to remove the ordinary earth kept in the property and if they are permitted to remove the granite stone in the property; that as the petitioners have removed ordinary earth from their property, the property of the sixth respondent needs to be protected by constructing a retaining wall in the property of the petitioners; that a retaining wall can be constructed in the property of the petitioners only if granite stone in the property is removed; that a portion of the granite stone in the property has already been removed by the petitioners using Diamond Wire Saw Cutting Machine; that no damage whatsoever would be caused to the property of the sixth respondent if the petitioners are permitted to remove the remaining granite stone in their property by using the W.P.(C). No.23574 of 2020 ..6..
said machine and that permission can therefore be granted to the petitioners to remove the ordinary earth and granite building stone from their property. In the light of Ext.P22 report, the fourth respondent has issued Ext.P23 communication to the petitioners informing them that if the petitioners construct retaining wall to protect the property of the sixth respondent, permission would be granted to them to remove the ordinary earth and granite stone from their property. The case set out by the petitioners in the writ petition is that when they started removing the granite stone that exists in their property pursuant to Ext.P23 communication, using Diamond Wire Saw Cutting Machine for the purpose of constructing the retaining wall, the fifth respondent, the Sub Inspector of Police as also the officials in the office of the fourth respondent interdicted the said work at the instance of the sixth respondent. According to the petitioners, they are carrying out only the work as permitted by the fourth respondent in terms of Ext.23 communication and therefore there is absolutely no justification for interdicting the work. The petitioners, therefore, seek appropriate directions to the respondents to enable them to carry on the works undertaken by the them.
2. A counter affidavit has been filed by the sixth respondent. It is stated by the sixth respondent in the counter W.P.(C). No.23574 of 2020 ..7..
affidavit that the petitioners have removed ordinary earth and granite stone from their land in such a manner as to endanger her life and property; that the removal of ordinary earth and granite stone by the petitioners is not in accordance with the conditions stipulated in Exts.P7 and P8 permissions; that on account of the activity undertaken by the petitioners, extensive damage has been caused to her property and that the lateral support of her property is completely lost. It is also stated by the sixth respondent in the counter affidavit that the petitioners have not left sufficient space in between the properties to put up an appropriate retaining wall to protect her property which is lying at a height of almost 35 meters.
3. Heard the learned counsel for the petitioners, the learned Government Pleader as also the learned counsel for the sixth respondent.
4. The petitioners being the owners of the property referred to in the writ petition, they have every right to enjoy the said property including putting up of buildings therein. Of course, the enjoyment of the property including construction of buildings in the property shall be in accordance with law and without offending the rights of others. As noted, the petitioners have obtained development permit and building permit from the Panchayat for the purpose of constructing the building proposed by them in the W.P.(C). No.23574 of 2020 ..8..
property. As the construction proposed by them cannot be carried on without removing ordinary earth and granite stone from the property, they have also obtained permission for the same from the competent authority, namely the fourth respondent. The case of the sixth respondent is that the activity undertaken by the petitioners is offending her rights over the adjoining property. It is seen that the grievance initially voiced by the sixth respondent was that the petitioners have encroached upon her property and the said grievance now stands redressed on account of the fixation of the boundary between the properties by the Taluk Surveyor. The grievance now raised by the sixth respondent in essence is that the removal of the ordinary earth and granite stone by the petitioners from their property is not in accordance with the terms of Exts.P7 and P8 Permissions; that extensive damage has been caused to her property on account of the activities undertaken by the petitioners and that there is no sufficient space in between the properties for the petitioners to put up appropriate retaining wall to protect her property.
5. In the various communications issued by the fourth respondent, he does not endorse the case set out by the sixth respondent that the removal of ordinary earth and granite stone so far made by the petitioners is not in accordance with W.P.(C). No.23574 of 2020 ..9..
Exts.P7 and P8 communications. The relevant portion of Ext.P22 report of the second respondent reads thus:
"സല പരശ ധനയൽ സഥലതമണകടകടകനത യ വലയയ ര പ റകല ഭമ യലവലൽ നനഉയർനനൽകനത യ ക ണന. അശപകകയ) സഥലത നന ഉശ* 7 മ+റശറ ള ഉയരതല ണ പര തകരയ യ റഹയ നതയ) പരയടവ വ+ട സതയ4യനത. പര തകരയയട പരയടതൽ ഉശ* 50"
വണമള ശതക, മഹഗണ എന+ മരങൾ നൽപളത ഏത സമയത നല
പതകവന ര+തയലമ ണ. കട യത ടയ ളയട പരയടതയല മണ ഇടഞ
അശപകകയ) ഭമയൽ പതകന ഇടയ ക . അശപകകയ) സഥലത
ശക ൺക+റ ഭത യകടയയങൽ മ തശമ ഈഅപകട വസമ റകയള. നലവൽ കടയടരകന മണ കല ന+ക യ4യനത യക ണ പര തകരക യ യത ര നഷവ ഉണക ൻ സധSതയല. ഭമ യലവലൽഉയർനനൽകനകലകൾ ന+ക യ4യ ശക ൺക+റ ഭത യകടയയങൽ മ തശമ പര തകരയയട പരയടതയ) അപകട വസ മ റകയള. അശപകകന ട സഥലത ശക ൺക+റ ഭത നർമകണയമങൽ നലവൽഭമയലവലൽ ഉയർനനൽകനപ റകലകള മണ സഥലത നന ന+ശകണത യ ക ണന. ട സല എൻ എ4 183 ശയ ട ശ4ർന സത യ4യനതന ൽ മഴകലശതടകട ട മണ ഒഴക ഹഹശവയൽ എതന അപകടങൾ ഉണക ന സധSതയണ. സലപരശ ധനയൽ ഭമയലയവലൽ ഉയർന നൽകന വലയ കരങല 'ഡയമണ വയർ ശസ കട ഗ' ഉപശയ ഗ4 40 % ശതള ക+റയടണ . ട കല ന+ക യ4യനതയക ണ ആർക തയന ശ] ഷ ഇല തത ഡയമണ വയർ ശസ കട ഗ ആയതന ൽ ഏയതങല തരതലള കലകങശള ശ_ടനങശള ഉണവ ൻ സധSതയല തതമ ണ. നലവൽ കടയടരകന മണ കല ക ല വസകട മൻനർത അടയനരമ യ മ ശറണത യ ക ണന എന വ ഒ റശa ർട യ4യടളത ണ.
മണ കല ന+ക യ4യനതയക ണപര തകരകയ യത ര കഷനഷവ ഉണക ൻ സധSതയയലന ഉയർന നൽകന കലകൾ ന+ക യ4യ ഭത യകടയ ൽ അപകട വസ ഒഴവ കവനത യ ക ണനയവന 4 ർശcഫ+സർ സ4ന(3) പക ര റശa ർട യ4യടളതമ ണ.
W.P.(C). No.23574 of 2020 ..10..
ശമൽ സഹ4രSതൽ ട സഥലത ഖനന യ4യ കടയടരകന മണ പ റയ ന+ക യ4യനതനളഅനമത നൽക വനത ണഎനളവവര റശa ർട യ4യയക ളന."
The report aforesaid does not indicate that any damage has been caused to the property of the sixth respondent on account of the activity hitherto undertaken by the petitioners. The report aforesaid however indicate beyond doubt that if the petitioners do not construct a retaining wall in their property, damage would be caused to the property of the sixth respondent. The report also indicates that retaining wall to protect the property of the sixth respondent cannot be constructed without removing the granite stone that exists in the property of the petitioners. The report further indicates that if the granite stone that exists in the property is removed using Diamond Wire Saw Cutting Machine, no damage whatsoever would be caused to the property of the sixth respondent.
6. From Ext.P23, it is revealed that the petitioners have not been granted permission to remove ordinary earth and granite stone from their property. Instead, what is informed to the petitioners by the fourth respondent as per the said communication is that if the petitioners construct a retaining wall to protect the W.P.(C). No.23574 of 2020 ..11..
property of the sixth respondent, their request for permission to remove ordinary earth and granite stone would be considered. The sixth respondent has not challenged the building permit and development permit obtained by the petitioners. In other words, the sixth respondent cannot raise any objection against the construction proposed by the petitioners. As regards the right of the sixth respondent to have lateral support to her property, the sixth respondent is yet to approach a competent civil court for appropriate relief. As revealed from Ext.P22 report of the second respondent, the petitioners cannot put up the construction without removing the ordinary earth and granite stone from the property. In the matter of removing the ordinary earth and granite stone from the property, the fourth respondent has now imposed a condition that the petitioners shall construct a retaining wall in their property for the purpose of protecting the property of the sixth respondent. In other words, the position now is that the petitioners cannot put up the building proposed by them in the property without constructing retaining wall in their property to protect the property of the sixth respondent. It is doubtful as to whether the fourth respondent can impose such a condition on the petitioners when they seek permission to remove ordinary earth and granite stone from their property, for the purpose of constructing a building W.P.(C). No.23574 of 2020 ..12..
proposed them in their property. Be that as it may. The petitioners assert that they propose to construct a retaining wall in their property as directed by the fourth respondent. The grievance voiced by them in the writ petition is that the retaining wall cannot be constructed without removing the granite stone, and the respondents are not permitting them to remove the granite stone despite Ext.P23 communication. In the absence of any challenge against the building permit and development permit obtained by the petitioners to put up a building in their property and in the absence of any interdiction by any court in the matter of removing ordinary earth and granite stone from the property, according to me, there is no justification for the respondents to interdict the activity undertaken by the petitioners to remove the granite stone from their property.
7. Coming to the grievance voiced by the sixth respondent that there is no space in between the properties to put up the retaining wall, I must state that the sixth respondent has certainly a right to have lateral support to her property and if the petitioners do not provide the lateral support to her property, the sixth respondent is certainly entitled to approach a competent civil court for appropriate relief. Needless to say that the said remedy is available to the sixth respondent, even if the grievance of the sixth W.P.(C). No.23574 of 2020 ..13..
respondent is concerning the insufficiency of the retaining wall proposed by the petitioners.
In the circumstances, the writ petition is disposed of restraining the respondents from interdicting the activity undertaken by the petitioners to remove the granite stone from their property and to put up retaining wall to protect the property of the sixth respondent. It is, however, made clear that if the sixth respondent has any grievance concerning the insufficiency of the retaining wall proposed by the petitioners, she is free to approach a competent civil court for appropriate relief in that regard. Needless to say that once the retaining wall is constructed by the petitioners to protect the property of the sixth respondent, there shall not be any obstruction by the respondents to the construction of the building by the petitioners in terms of the building permit obtained by them.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 31.12.2020
W.P.(C). No.23574 of 2020 ..14..
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF TAX RECEIPT DATED
23.09.2020 ISSUED IN FAVOUR OF 1ST
PETITIONER.
EXHIBIT P2 THE TRUE COPY OF TAX RECEIPT DATED
03.03.2020 ISSUED IN FAVOUR OF
PETITIONER 2 TO 4.
EXHIBIT P3 THE TRUE COPY OF POSSESSION
CERTIFICATE DATED 06.10.2020 ISSUED IN
FAVOUR OF 1ST PETITIONER.
EXHIBIT P4 THE TRUE COPY OF POSSESSION
CERTIFICATE DATED 27.10.2020 ISSUED IN
FAVOUR OF PETITIONER 2 TO 4.
EXHIBIT P5 THE TRUE COPY OF THE BUILDING PERMIT
DATED 22.03.2018.
EXHIBIT P6 THE TRUE COPY OF DEVELOPMENT PERMIT
DATED 10.04.2018.
EXHIBIT P7 THE TRUE COPY OF THE PROCEEDINGS
ISSUED REGARDING THE ISSUANCE OF
SPECIAL TRANSIT PASSES FOR ORDINARY
EARTH BY THE 4TH RESPONDENT DATED
15.09.2018.
EXHIBIT P8 HE TRUE COPY OF THE PROCEEDINGS ISSUED
REGARDING THE ISSUANCE OF SPECIAL
TRANSIT PASSES FOR GRANITE DATED
09.11.2018.
EXHIBIT P9 THE TRUE COPY OF STOP MEMO ISSUED BY
THE 4TH RESPONDENT DATED 12.12.2018.
EXHIBIT P10 THE TRUE COPY OF REPLY SUBMITTED BY
THE 2ND PETITIONER DATED 24.12.2018
EXHIBIT P11 THE TRUE COPY OF JUDGMENT OF THIS
HON'BLE COURT IN NO.42283/2018 DATED
21.12.2018.
W.P.(C). No.23574 of 2020 ..15..
EXHIBIT P12 THE TRUE COPY OF ORDER ISSUED BY THE
4TH RESPONDENT DATED 21.01.2019.
EXHIBIT P13 THE TRUE COPY OF NOTICE ISSUED TO THE
2ND PETITIONER FOR MEASUREMENT ON
28/02/2019.
EXHIBIT P14 THE TRUE COPY OF NOTICE ISSUED TO 2ND
PETITIONER FOR MEASUREMENT ON
05.03.2019.
EXHIBIT P15 THE TRUE COPY OF LETTER ISSUED BY THE
2ND RESPONDENT TO THE `1ST PETITIONER
DATED 14.03.2019.
EXHIBIT P16 THE TRUE COPY OF INFORMATION ALONG
WITH THE REPORT DATED 08/05/2019.
EXHIBIT P17 THE TRUE COPY OF THE NOTICE ISSUED BY
THE 4TH RESPONDENT DATED 24.04.2019.
EXHIBIT P18 THE TRUE COPY OF PETITION FILED BEFORE
THE 1ST RESPONDENT AND RECEIPT DATED
13.05.2019.
EXHIBIT P19 THE TRUE COPY OF ORDER DATED
28.05.2019.
EXHIBIT P20 THE TRUE COPY OF THE REPORT DATED
27.06.2019 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P21 THE TRUE COPY OF THE REPORT SUBMITTED
BY THE 3RD RESPONDENT DATED
08/07/2019.
EXHIBIT P22 THE TRUE COPY OF THE LETTER ISSUED BY
THE 2ND RESPONDENT DATED 17.07.2019.
EXHIBIT P23 THE TRUE COPY OF LETTER ISSUED BY THE
4TH RESPONDENT DATED 24.08.2020.