Roy George vs State Of Kerala
2021 Latest Caselaw 17334 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                        WP(C) NO. 10839 OF 2021
PETITIONER:

          ROY GEORGE,
          AGED 56 YEARS
          S/O. GEORGE, POIKAYIL PUTHAN VEEDU, KIZHAKKEKARA MURI,
          PULAMON P.O. KOTTARAKKARA.

          BY ADV ALEXANDER GEORGE


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY DIRECTOR OF PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM 682 031.

    2     THE DIRECTOR COLLECTOR,
          COLLECTORATE , CIVIL STATION ROAD, KOLLAM 691 013.

    3     THE REVENUE DIVISIONAL OFFICER (RDO),
          PUNALUR, KOLLAM DISTRICT 691 305.

    4     THE GEOLOGIST,
          MINING AND GEOLOGY DEPARTMENT, ASRAMOM,
          KOLLAM 691 002.

    5     SAJITHA,
          AGED 47 YEARS
          W/O. SASI, NANUSSERY VEEDU,
          PULAMON KIZHAKEKARA MURI, IYAMKUNNU, KOTTARAKARA
          PULAMON P.O. KOTTARAKKARA 691 531.

          SRI.P.S.APPU, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 10839 OF 2021

                                          2




                                  JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) Writ of Certiorari or other appropriate writ, direction or order calling for the records leading to Exhibit P10 and P11 and set aside the same.

(ii) To issue a writ of mandamus or any other appropriate writ or orders or directions directing the fourth respondent to issue transit pass for removing the balance soil from the petitioner's property as per quarrying permit.

(iii) To issue a writ of mandamus or any other appropriate writ or orders or directions to set aside Ext.P11 order passed by the second respondent and P10 report submitted by the third respondent and direct the second respondent to dispose Ext.P9 complaint filed by the 5th respondent and others afresh after affording an opportunity to the petitioner for adducing evidence within a period fix by this Hon'ble Court."

2. Heard the learned counsel for the petitioner and the learned

Government Pleader. Though notice was duly taken out to the 5 th

respondent and served, there is no appearance for the 5th respondent.

3. The learned counsel for the petitioner submits that the petitioner

is the owner in possession of 23.49 Ares of property situated in Re-

Survey No.291/13-4 in Block No.22 of Kottarakkara Village. It is

submitted that the petitioner had submitted an application for WP(C) NO. 10839 OF 2021

Development permit and Building permit to the Municipality which had

been granted by Ext.P4. It is submitted that pursuant thereto, Ext.P5

permit was issued by the 4th respondent permitting him to extract and

remove ordinary earth from his property for the purpose of construction

of the building. It is submitted that 106 transit passes were also issued to

the petitioner. However, due to obstruction by the 5 th respondent, only

65 transit passes could be utilized by the petitioner and the work had to

be stopped.

4. It is submitted that an injunction suit has been filed before the

Munsiff Court, Kottarakkara and Ext.P6 order has been obtained.

Thereafter, the petitioner has also approached this Court for Police

protection. It is submitted by the learned counsel for the petitioner that

thereafter, Ext.P10 report was submitted by the Revenue Divisional

officer and Ext.P11 proceedings have been issued cancelling the

permission already granted to the petitioner to remove ordinary earth.

It is submitted that the reason stated in Exts.P10 and P11 are absolutely

unsustainable and unsupported by any material and that permission had

been granted after considering all relevant aspects of the matter. It is

submitted that it is only due to the personal animosity of the 5 th WP(C) NO. 10839 OF 2021

respondent that a complaint had been submitted, which resulted in

Exts.P10 and P11.

5. A memo has been filed by the learned Government Pleader on

08.06.2021 producing a report of the 4 th respondent Geologist dated

08.06.2021 along with annexures. It is stated therein that an inspection

in the site was conducted by the Geologist on 03.06.2021 in the presence

of the petitioner. It is stated that some amount of ordinary earth had

been removed from the area which is within the permitted quantity and

within the development area as per the permit and plan. It is further

submitted that permission, as per Ext.P5, had been granted by the 4 th

respondent for removal of ordinary earth stipulating conditions in the

approved development plan with instructions to excavate ordinary earth

leaving a distance of 3 meters from the eastern side of the petitioner's

property where a pathway exists. It is stated that the report of the 3 rd

respondent had not been received in the 4 th respondent's office and the

2nd respondent had issued instructions to cancel the permission given to

the petitioner only based on the report of the 3 rd respondent. It is further

stated that the extraction of the earth is not beyond the development

permit quantity and not outside the development area. WP(C) NO. 10839 OF 2021

6. Having considered the contentions advanced, I notice that Ext.P5

permit had been issued by the 4 th respondent to remove ordinary earth

with validity from 18.08.2020 to 21.08.2020. It is further stated that 106

mineral transit passes were also issued to the petitioner which could not

be fully utilized by the petitioner. Annexure 2 statement has also been

produced along with the report of the 4 th respondent wherein the 5th

respondent has specifically stated that she has no objection to the earth

being removed in terms of the development permit and it is only because

the earth was removed all at once and not step by step that she had

raised an objection.

7. It is further submitted by the learned counsel for the petitioner

that the removal of the earth will be done strictly in accordance with the

permissions granted and that it will be ensured that all safety

precautions are taken and that no inconvenience will be caused to the 5 th

respondent or any other residents of the locality due to the removal of

the earth. It is contented that the finding that the removal of ordinary

earth will cause soil erosion or dearth of drinking water in the locality is

completely unsupported by any material.

8. Having regard to the report submitted by the Geologist and WP(C) NO. 10839 OF 2021

annexures produced along with the same, I am of the opinion that the

petitioner is liable to be permitted to remove the ordinary earth as per

the permit already granted to him, strictly complying with all safety

precautions and in strict compliance with the conditions specified in

Ext.P5.

9. In the above view of the matter, Exts.P10 and P11 are set aside.

There will be a direction to the respondents to permit the petitioner to

remove ordinary earth in strict conformity with Exts.P2 and P5 and

complying with all safety precautions without causing any

inconvenience or hindrance to the 5th respondent or any other residents

of the locality.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 10839 OF 2021

APPENDIX OF WP(C) 10839/2021

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE COPY OF THE TAX RECEIPT ISSUED BY THE KOTTARAKARA VILLAGE IN THE NAME OF THE PETITIONER DATED 4/9/2020.

EXHIBIT P2 THE COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE KOTTARAKARA MUNICIPALITY ON 6.4.2019.

EXHIBIT P3 THE THE COPY OF THE DEVELOPMENT PLAN APPROVED BY THE ENGINEER KOTTARAKARA MUNICIPALITY DATED 12.6.2019.

EXHIBIT P4 THE COPY OF THE BUILDING PERMIT ISSUED BY THE KOTTARAKARA MUNICIPALITY DATED 10/12/2019.

EXHIBIT P5 THE COPY OF THE EXCAVATION AND TRANSIT PERMIT ISSUED BY THE KOLLAM GEOLOGIST DATED 14.8.2020.

EXHIBIT P6 THE THE COPY OF THE ORDER PASSED IN I.A.

1/2020 IN O.S. NO. 394/2020 DATED 25/8/2020 BY THE HONBLE MUNSIFF COURT, KOTTARAKARA.

EXHIBIT P7 THE THE COPY OF THE AGREEMENT DATED 7.6.2007 EXECUTED BETWEEN THE PARTY RESPONDENT AND THE PETITIONER.

EXHIBIT P8 THE THE COPY OF THE ORDER PASSED IN WPC N.

20464/2020 PASSED BY THE HONBLE HIGH COURT DATED.

EXHIBIT P9 THE COPY OF THE COMPLAINT FIELD BY THE FIFTH RESPONDENT AND OTHERS BEFORE THE DISTRICT COLLECTOR ON 21.8.2020.

EXHIBIT P10 THE THE COPY OF THE REPORT DATED 27.8.2020 SUBMITTED BY THE RDO BEFORE THE DISTRICT COLLECTOR.

EXHIBIT P11 THE THE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT COLLECTOR DIRECTED THE THIRD RESPONDENT DATED 10.11.2020.

RESPONDENT'S/S EXHIBITS: NIL