WP(C) NO. 10578 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
WP(C) NO. 10578 OF 2022
PETITIONER/S:
SHEELA P. BABY
AGED 41 YEARS
W/O. BINOY, PANDALIL HOUSE, KOOTHATTUKULAM P.O,
ERNAKULAM
BY ADV G.CHITRA
RESPONDENT/S:
1 SAJIMON E.S.
ILLIKAKUDIYIL HOUSE, KOOTHATTUKULAM P.O,
MANGALATHUTHAZHAM, ERNAKULAM 686 662
2 KOOTHATTUKULAM MUNICIPALITY
KOOTHATTUKULAM P.O, MANGALATHUTHAZHAM, ERNAKULAM 686
662 REPRESENTED BY SECRETARY
3 GEOLOGY AND MINOR MINING INSPECTOR
DEPARTMENT OF MINING AND GEOLOGY, ERNAKULAM 682 030
4 DISTRICT COLLECTOR
CIVIL STATION, KAKKANAD, ERNAKULAM 682 030
5 STATION HOUSE OFFICER
KOOTHATTUKULAM POLICE STATION, MUVATTUPUZHA,
ETTUMANOOR ROAD, KOOTHATTUKULAM P.O, ERNAKULAM 686
662
BY ADVS.
ALIAS M.CHERIAN,R1
SHRI.K.S.ARUN KUMAR, SC, KOOTHATTUKULAM MUNICIPALITY
ADVOCATE GENERAL OFFICE KERALA
K.M.RAPHY
NEENU ANNA BABU
WP(C) NO. 10578 OF 2022 2
BRISTO S PARIYARAM
AJAI ALIAS CHALAPPURAM
SMT.VINEETHA B., SENIOR G.P.()
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 10578 OF 2022 3
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No. 10578 of 2022
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Dated this the 8th day of June, 2022
JUDGMENT
The above writ petition is filed with following prayers :
"i) To issue a writ of prohibition prohibiting the 1st respondent from carrying out any construction including blasting of rocks by using heavy explosives.
ii) To issue a writ of mandamus or any other appropriate writ, direction or order directing the official respondents take appropriate actions against the illegal quarrying conducting by the1st respondent in his plot adjoining the petitioner's plot and thereby safeguarding the house of the petitioner after considering Ext P3 to Ext P6, expeditiously, in the interest of justice.
iii) To issue any other appropriate writ, direction or order which this Hon'ble Court deem fit in the circumstances of the case." [SIC]
2. The petitioner is claims to be tailor by profession and she had constructed a house under the scheme of PMAY with plan and permit from the local authorities in the year 2008. The 1st respondent obtained building permit to construct WP(C) NO. 10578 OF 2022 4 a house in his plot. It is the case of the petitioner that on 16.3.2022 in the guise of leveling of land and without obtaining any permission from the geology and Mining Department, he has started blasting of rocks with explosives. It is the case of the petitioner that it causes much hardship to the petitioner and also creating big cracks and damages to the petitioner's house.
3. Heard the learned counsel for the petitioner and the counsel appearing for the 1st respondent. I also heard the counsel appearing for the 2nd respondent - Municipality. The Government Pleader appeared for respondent Nos.3 to 5.
4. The learned counsel for the petitioner reiterated his contentions in the writ petition. On the other hand, the learned counsel appearing for the 1st respondent submitted that the allegations in the writ petition are not correct and he was only trying to level his land for the construction of his house. The counsel submitted that if necessary he will get permission from the Geology Department also and he will do the work only after getting permission and license from all statutory authorities. The Government Pleader takes me through the WP(C) NO. 10578 OF 2022 5 report submitted by the Geology Department and submitted that there is no permission from the Geology Department to remove the ordinary earth.
5. This Court considered the contentions of the petitioner and the respondent. When this writ petition came up for consideration on 25.3.2022, this Court passed the following order :
"Heard the learned counsel for the petitioner. In case illegal blasting is being carried out by the first respondent, without obtaining due permits, appropriate action shall be taken by the respondents, in accordance with law. Post on 28.3.2022"
6. Today, when the matter came up for consideration, the counsel for the petitioner reiterated his contentions in the writ petition. On the other hand, the counsel appearing for the 1st respondent submitted that he was only trying to level his land and if necessary, permission will be obtained from the statutory authorities. The Government Pleader takes me through the report submitted by the 3 rd respondent. It will be better to extract the relevant portion of the report.
"On removal of ordinary earth to a depth of 3 metre, the underlying rocks became exposed and the first respondent WP(C) NO. 10578 OF 2022 6 started to extract them to facilitate the construction of his residence. He has used chemicals to extract the rocks. He has not used any explosives and hence the allegation of the petitioner that first respondent is using high power explosive for rock quarrying is false. Around 400MT of granite is seen extracted using chemical and have been broken into pieces and heaped in the property. The first respondent has not transported granite outside his property. The first respondent has excavated earth to a depth of 3 metre and hence he should construct retaining structures to protect the property of the petitioner.
It is humbly submitted that the first respondent ought to have obtained the permission of this respondent before extracting ordinary earth and granite from his property for construction purpose. He has thus violated Rules 14(2) and 106(1) of Kerala Minor Mineral Concession Rules, 2015 and Rules 25(1) and 26(1) of Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015."
7. In the light of the above report, without getting permission from the authority concerned, the 1 st respondent cannot remove ordinary earth and blasted rocks. In such circumstances, the 1st respondent can do any activities in the property to level his property only after getting sufficient permission/license from the 3rd respondent. Hence, the interim order can be retained and the writ petition can be closed. WP(C) NO. 10578 OF 2022 7
Therefore, this writ petition is disposed of with the following directions:
1) The interim order dated 25.3.2022 is retained and made absolute.
2) The 1st respondent is free to approach the statutory authorities for getting permission to level his land and if any such application is received by the statutory authority, the statutory authority will consider the same and pass appropriate orders in accordance to law, after giving an opportunity of hearing to the petitioner and the 1st respondent.
3) All the contentions of the petitioner and the 1st respondent are left open.
4) Once an order is passed by the statutory authority, it is made clear that the 1st respondent is free to do the leveling works, in accordance to the permit/license obtained from the statutory authority.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 10578 OF 2022 8 APPENDIX OF WP(C) 10578/2022 PETITIONER EXHIBITS Exhibit P1 PHOTOGRAPHS EVIDENCING THE BLASTING OF ROCKS Exhibit P2 PHOTOGRAPHS EVIDENCING THE DEMAGE AND CRACKS MADE TO THE PETITIONER'S HOUSE Exhibit P3 TRUE COPY OF THE RECEIPT REGARDING THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE COMPLAINT FIELD BEFORE 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF THE RECEIPT REGARDING THE COMPLAINT FILED BEFORE THE 4TH RESPONDENT Exhibit P6 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT ON 23-3-2022 AND THE RECEIPT.
RESPONDENT EXHIBITS Exhibit R1A TRUE COPY OF POSSESSION CERTIFICATE NO.63377856 DATED 17/02/2022 ISSUED FROM KOOTHATTUKULAM VILLAGE OFFICE Exhibit R1B TRUE COPY OF BUILDING PERMIT NO.BA(18288)/2018VDATED 20/04/2018 ISSUED FROM KOOTHATTUKULAM MUNICIPALITY