Badar vs The State Of Kerla
2021 Latest Caselaw 10941 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                       WP(C).No.25050 OF 2020(E)


PETITIONER/S:

                BADAR,
                AGED 61 YEARS, S/O. YOUSAF(LATE),
                THARAYIL HOUSE, KALLADIPATTA,
                ONGALLUR, PATTAMBI, PALAKKAD DISTRICT.

                BY ADV. SRI.K.RAKESH

RESPONDENT/S:

      1         THE STATE OF KERLA
                REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
                DEPARTMENT OF MINING AND GEOLOGY,
                GOVERNMENT SECRETARIAT,
                TRIVANDRUM, PIN - 695001.

      2         THE DISTRICT GEOLOGIST
                OFFICE OF THE DISTRICT GEOLOGIST,
                PALAKKAD, PIN - 678001.

      3         THE ENVIRONMENTAL ENGINEER,
                KERALA POLLUTION CONTROL BOARD,
                PALAKKAD, PIN - 678001.

      4         THE SECRETARY
                ONGALLUR GRAMA PANCHAYATH,
                KALLADIPATTA PO, ONGALLUR,
                PALAKKAD DISTRICT, PIN - 679313.

      5         YOUSAF, S/O. FAKKEER,
                JENNATH MANZIL, PATTAMBI P O,
                PALAKKAD DISTRICT, PIN - 679303.

      6         RASIYA, W/O. YOUSAF,
                KALARIKKAL HOUSE,
                SANKARAMANGALAM P O,
                PALAKKAD DISTRICT, PIN - 679303.

      7         THE DISTRICT POLICE CHIEF,
                PALAKKAD, PALAKKAD DISTRICT,
                PIN - 678001.
 WP(C).Nos.25050 OF 2020 &
1509 OF 2021
                               2

      8      THE STATION HOUSE OFFICER,
             PATTAMBI POLICE STATION,
             PALAKKAD DISTRICT,
             PIN - 679303.

             R4 BY ADV. SRI.R.SREEHARI
             R5-6 BY ADV. SRI.L.RAJESH NARAYAN
             BY SRI.T.NAVEEN, STANDING COUNSEL
             BY SRI.MANURAJ, K.J., GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.04.2021, ALONG WITH WP(C).1509/2021(K), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.25050 OF 2020 &
1509 OF 2021
                                  3




            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

  WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                       WP(C).No.1509 OF 2021(K)


PETITIONER/S:

      1         YOOSAF A.M.,
                AGED 53 YEARS,
                S/O.FAKKAER,
                JANNATH MANZIL,
                NEAR MES SCHOOL,
                PATTAMBI, PALAKKAD.

      2         RASIYA, W/O. YOOSAF,
                JANNATH MANZIL,
                NEAR MES SCHOOL,
                PATTAMBI, PALAKKAD.

                BY ADV. SRI.L.RAJESH NARAYAN

RESPONDENT/S:

      1         STATE OF KERALA,
                REPRESENTED BY SECRETARY,
                DEPARTMENT OF MINING AND GEOLOGY,
                SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

      2         THE DISTRICT GEOLOGIST,
                O/O. THE DISTRICT GEOLOGIST,
                DEPARTMENT OF MINING AND GEOLOGY,
                TOWN BUS STAND COMPLEX,
                PALAKKAD-678014.

      3         SECRETARY,
                ONGALLUR GRAMA PANCHAYATH,
                KALLADIPATTA P.O.,
                ONGALLUR,
                PALAKKAD-679313.
 WP(C).Nos.25050 OF 2020 &
1509 OF 2021
                               4

      4      BADAR,
             AGED 61 YEARS,
             S/O. LATE YOUSAF,
             THARAYIL HOUSE,
             KALLADIPATTA, ONGALLUR,
             PATTAMBI, PALAKKAD-679303.

             R1-R2 BY SRI.MANURAJ, K.J., GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.04.2021, ALONG WITH WP(C).25050/2020(E), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).Nos.25050 OF 2020 &
1509 OF 2021
                                       5




                         W.P.(C)Nos.25050 of 2020
                                      &
                                1509 of 2021
              ---------------------------------------------------


                                 JUDGMENT

The issues involved in these writ petitions being closely

interlinked, they are disposed of by this common judgment. The

parties and documents are referred to in this judgment, as they appear

in W.P.(C)No.25050 of 2020.

2. Respondents 5 and 6 obtained Ext.R5(d) development

permit and Ext.R5(c) building permit from the Ongallur Grama

Panchayat for the purpose of constructing a building in their property

referred to in the writ petition. It is stated by respondents 5 and 6 that

it is necessary for them to remove 4251.9 metric tones of ordinary

earth from the land for the purpose of putting up the building

proposed by them and they have therefore obtained Ext.R5(e)

permission also for removal of the said quantity of ordinary earth from

their land. While the work pursuant to Exts.R5(d) and R5(c) was

being undertaken by respondents 5 and 6, the Panchayat has issued

Ext.R5(f) stop memo alleging that the removal of ordinary earth from

the land is not in accordance with the conditions stipulated in WP(C).Nos.25050 OF 2020 & 1509 OF 2021

Ext.R5(e) order. Respondents 5 and 6 challenged Ext.R5(f) before the

Tribunal for Local Self Government Institutions in Appeal No.471 of

2020. The said appeal is pending. Respondents 5 and 6 could secure

an interim order also in the said appeal staying Ext.R5(f) stop memo.

Later, on 10.11.2020, the Panchayat has recalled Ext.R5(d)

development permit issued to respondents 5 and 6 also. Ext.P1 is the

order issued by the Secretary of the Panchayat in this regard.

Respondents 5 and 6 challenged Ext.P1 order also before the Tribunal

for Local Self Government Institutions in Appeal No.123 of 2021 and

they could secure an interim order staying the operation of Ext.P1

order in the said appeal also.

3. In the meanwhile, the writ petition is filed alleging

that despite Ext.P1 order, respondents 5 and 6 are continuing the work

interdicted by the Pachayat. The relief sought for in the writ petition is

for a direction to the Panchayat to stop the mining and construction

activity undertaken by respondents 5 and 6. In the writ petition, this

Court passed an interim order on 16.12.2020 directing the second

respondent to take measures forthwith to prohibit the mining and

construction activities undertaken by respondents 5 and 6.

4. It is seen that in the meanwhile, the term fixed for

removal of the ordinary earth in terms of Ext.R5(e) permission WP(C).Nos.25050 OF 2020 & 1509 OF 2021

expired. Respondents 5 and 6, therefore, preferred an application for

fresh permission for removal of ordinary earth from the land. W.P.(C)

No.1509 of 2021 was filed by respondents 5 and 6 to grant the

permission sought by them.

5. Heard the learned counsel for the petitioners.

6. Having regard to the facts and circumstances of the

case, this court felt that the grievance of the petitioners would be

redressed substantially, if Appeal Nos.123 of 2021 and 471 of 2020

pending before the Tribunal for Local Self Government Institutions are

disposed of finally. Having taken the said view, this Court ascertained

the views of the Tribunal, and the Tribunal informed that the appeals

can be disposed of within fifteen days.

In the circumstances, these writ petitions are disposed of

directing the Tribunal for Local Self Government Institutions,

Thiruvananthapuram to dispose of Appeal Nos.123 of 2021 and 471 of

2020 within three weeks. The contentions raised by the parties are left

open.

Sd/-

P.B.SURESH KUMAR JUDGE rkj WP(C).Nos.25050 OF 2020 & 1509 OF 2021

APPENDIX OF WP(C) 25050/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMMUNICATION SO ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED, 10.11.2020.

EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE EXTENT OF MINING ACTIVITY CARRIED OUT BY THE PARTY RESPONDENT WITHOUT ANY PERMITS.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT EARLIER MADE BY THE PETITIONER TO THE SECRETARY, ONGALLUR GRAMA PANCHAYATH DATED 28/10/2020

EXHIBIT P3(a) TRUE COPIES OF THE POSTAL RECEIPTS OF THE COMPLAINANT MADE BY THE PETITIONER DATED 28/10/2020.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5(a) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 7.10.20.

EXHIBIT R5(b) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30.10.20

EXHIBIT R5(c) TRUE COPY OF THE BUILDING PERMIT NO.A4/970 DATED 28.2.2020.

EXHIBIT R5(d) TRUE COPY OF THE DEVELOPMENT PERMIT NO.

A5-7915/19 DATED 18.3.2020.

EXHIBIT R5(e) TRUE COPY OF THE ORDER DATED 19.10.20.

EXHIBIT R5(f) TRUE COPY OF THE STOP MEMO DATED 28.10.2020 NO.A5 7915/19.

EXHIBIT R5(g) TRUE COPY OF THE ORDER IN I.A.NO.927/2020 DATED 3.11.2020.

EXHIBIT R5(h) TRUE COPY OF THE REQUEST DATED 5.11.20.

EXHIBIT R5(i) TRUE COPY OF THE RELEVANT PAGES OF THE AMENDMENT.

WP(C).Nos.25050 OF 2020 & 1509 OF 2021

APPENDIX OF WP(C) 1509/2021 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF SALE DEED NO.835/19 DATED 29/03/2019 OF PATTAMBI SRO.

EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07/10/2020.

EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30/10/20.

EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT NO.A4-970 DATED 28/02/2020.

EXHIBIT P5 TRUE COPY OF THE DEVELOPMENT PERMIT NO. A5-

7915/19 DATED 18/03/2020.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 19/10/2020.

EXHIBIT P7 TRUE COPY OF THE LETTER NO. A-6651/19 DATED 25/04/2020.

EXHIBIT P8 TRUE COPY OF THE STOP MEMO DATED 28/10/2020.

EXHIBIT P9 TRUE COPY OF THE ORDER IN IA NO.927/2020 DATED 03/11/2020.

EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 05/11/2020.

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION NO.D.O.P/2152/2020/A2 DATED 21/12/2020.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 16/12/2020 IN WPC NO.25050/2020.

EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGES OF THE AMENDMENT.

RESPONDENT'S/S EXHIBITS:

ANNEXURE I TRUE COPY OF THE LETTER NO.B2-6314/20 DATED

03.11.2020.