Devaki vs The Geologist
2021 Latest Caselaw 17213 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
  FRIDAY, THE 13TH DAY OF AUGUST 2021/22ND SRAVANA, 1943
                    WP(C) NO. 27202 OF 2020


PETITIONER:

         DEVAKI, AGED 65 YEARS,
         W/O. KANDAMUTHAN, VADUKANTHODI HOUSE,
         KARUVAPADAM, VADAKKANCHERRY,
         ANJUMOORTHYMANGALAM, ALATHUR, PALAKKAD.

         BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENTS:

    1    THE GEOLOGIST, DISTRICT OFFICE OF THE
         DEPARTMENT OF MINING AND GEOLOGY,
         TOWN BUS STAND COMPLEX,
         PALAKKAD DISTRICT-678014.

    2    MANIMEKHALA, AGED 71 YEARS, S/O. MANI,
         KAREKKAT HOUSE, ANJUMOORTHY MANGALAM P.O.,
         ALATHUR, PALAKKAD-678682.

    3    THE SECRETARY, VADAKKANCHERRY GRAMA PANCHAYAT,
         VADAKKANCHERRY, PALAKKAD-678683.

    4    THE STATION HOUSE OFFICER,
         VADAKKANCHERRY POLICE STATION,
         VADAKKANCHERRY, PALAKKAD-678683.

         BY ADVS.
         SR. GOVERNMENT PLEADER SMT.SURYA BINOY
         SRI.SHIJU VARGHESE
         SRI.N.KRISHNA PRASAD
         SMT.GAYATHRI POTTI

     THIS WRIT PETITION       (CIVIL) HAVING COME UP      FOR
ADMISSION ON 13.08.2021,      THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 WP(C) No.27202/2020
                                :2 :



                        JUDGMENT

~~~~~~~~~

Dated this the 13th day of August, 2021

This writ petition has been filed by the petitioner

seeking to direct the 1st respondent to issue necessary

permissions for removing the ordinary earth from her property

comprised in Re-survey No.282/43 of Vadakkencherry-II

Village in Palakkad in tune with Ext.P3 receipt.

2. In the writ petition, the 1st respondent took a stand

that the petitioner has to leave a set back of 10 metres for

excavation of ordinary earth required for the construction of

the building. Otherwise, it will affect the building of the 2 nd

respondent.

3. When this writ petition was taken up today, it was

noted that the Government Pleader has filed a memo to the

effect that the 1st respondent is of the view that ordinary earth

can be removed from a distance of 5 metres from the

complainant's (2nd respondent) property and a retaining wall WP(C) No.27202/2020

has to be constructed immediately after the removal of

ordinary earth under the supervision of LSGD Engineer.

4. The learned counsel for the 2nd respondent submits

that if earth is removed at a distance of 5 metres and if the

petitioner is willing to construct a retaining wall under the

supervision of LSGD Engineer, the 2nd respondent has no

objection in permitting the petitioner to proceed with the work.

In view of the said statement made by the 1 st

respondent and accepted by the 2 nd respondent, this writ

petition is disposed of permitting the petitioner to proceed with

the construction on condition that earth can be removed only

from a distance of 5 metres from the property of the 2 nd

respondent and a retaining wall shall be constructed

immediately after the removal of ordinary earth under the

supervision of the LSGD Engineer. The 1 st respondent will be

at liberty to supervise and give such instructions for removal of

earth and construction of the retaining wall.

Sd/-

N. NAGARESH, JUDGE

aks/14.08.2021 WP(C) No.27202/2020

APPENDIX OF WP(C) 27202/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SITE APPROVAL AND BUILDING PERMIT NO.A3/6729/2019 DATED 06/03/2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 06/03/2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 12/11/2020. EXHIBIT P4 TRUE COPY OF THE COMPLAINT OF THE PETITIONER SUBMITTED BEFORE THE 4TH RESPONDENT ALONG WITH ITS RECEIPT DATED 18/11/2020.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 21.12.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

RESPONDENTS' EXHIBITS

EXHIBIT R2(a) TRUE COPY OF COMPLAINT DATED 03.12.2014. EXHIBIT R2(b) TRUE COPY OF REPORT SUBMITTED BY THE VILLAGE OFFICER DATED 04.12.2014.

EXHIBIT R2(c) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE 4TH RESPONDENT DATED 06.11.2020. EXHIBIT R2(d) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE VILLAGE OFFICER DATED 06.11.2020. EXHIBIT R2(e) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE TAHASILDAR, ALATHUR, DATED 06.11.2020. EXHIBIT R2(f) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE 1ST RESPONDENT EXHIBIT R2(g) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE 3RD RESPONDENT DATED 22.10.2020. EXHIBIT R2(h) TRUE COPY OF COMPLAINT SUBMITTED BEFORE THE VILLAGE OFFICER DATED 29.12.2020. EXHIBIT R2(i) PHOTOGRAPHS OF THE BUILDING

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