Kerala High Court
Dr.Mathew M. Mandoli vs State Of Kerala on 8 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942
WP(C).No.25523 OF 2020(M)
PETITIONER:
DR.MATHEW M. MANDOLI
AGED 45 YEARS
S/O. V.O. MATHAI, MANDOLI HOUSE,
WEST KATTAKARA ROAD, KALOOR P.O,
ERNAKULAM DISTRICT, PIN-682 017
BY ADVS.
SRI.C.S.MANU
SHRI.S.K.PREMRAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA,
DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001
2 COMMISSIONER OF POLICE,
KOCHI CITY, KOCHI, ERNAKULAM, PIN-682 018
3 ASSISTANT COMMISSIONER OF POLICE,
THRIKKAKARA, ERNAKULAM, PIN-682 021.
4 CIRCLE INSPECTOR OF POLICE,
PUTHENCRUZ, ERNAKULAM DISTRICT, PIN-682 308
5 BIJU T.K,
S/O. KUNJUKUNJU, THANNIKUZHY HOUSE, PANCODE P.O,
VADAVUKODE, PUTHENCRUZ, ERNAKULAM DISTRICT,
PIN-682 310
6 JISHA AJI,
PARAPURATH HOUSE, PANCODE P.O, VADAVUKODE,
PUTHENCRUZ, ERNAKULAM DISTRCT, PIN-682 310
*ADDL AIKKARANAD GRAMA PANCHAYAT
R7 AIKKARANAD, ERNAKULAM DISTRICT, PIN 682311
REPRESENTED BY IT'S SECRETARY
WP(C).No.25523 OF 2020 2
*ADDL DISTRICT GEOLOGIST
R8 DISTRICT MINING AND GEOLOGY
OFFICE, ERNAKULAM.
ADDITIONAL R7 AND R8 IMPLEADED AS PER ORDER DATED
02.12.2020 IN I.A.1/2020 IN WPC 25523/2020.
R5 BY ADVS. SRI.B.DEEPAK
SRI.KARTHIK BHAVADASAN
R6 BY ADVS. SRI.VINUCHAND
SRI.C.R.VINOD KUMAR
R7 BY ADVS. SRI.K.S.ARUN KUMAR
SRI.JUSTINE JACOB
SRI PP THAJUDEEN, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25523 OF 2020 3
JUDGMENT
The petitioner is an orthodontist. He states that he is also engaged in
the pharmaceutical distribution business at Panangad and runs a unit in the
name and style as 'Mandoli Associates'.
2. The petitioner contends that he wanted to expand his business
for which purpose, he purchased property having an extent of 1.23 acres in
Sy.No.186/9, 413/1 of Aikkara North Village, Kunnathunadu Taluk. This was
for the purpose of establishing a modern godown for storage of medicines.
He approached the local authority for a building permit and after considering
all aspects, Ext.P1 permit was issued permitting him to put up a building
falling in the category 'new construction storage' and having an area of
5726sq.mt. The building permit is valid till 16.06.2025.
3. The petitioner states that when he started construction
activities, the party respondents raised objections raising untenable
contentions. Left with no alternative, the petitioner approached the 4th
respondent and lodged Ext.P2 complaint. According to the petitioner, no
assistance was rendered by the police. Instead of upholding the rule of law,
the police took a passive approach and encouraged the party respondents to
continue with their illegal acts. It is in the aforesaid circumstances that the
petitioner is before this Court seeking a direction to the respondents 1 to 4
to afford effective protection to the petitioner for carrying out construction
of storage building in terms of Ext.P1 in his land.
4. A counter affidavit has been filed by the 5th respondent. It is
stated that the area where the petitioner is intending to put up construction
is rocky and mountainous and in order to level the ground, the petitioner
indulged in quarrying activities. This resulted in grave inconvenience being
caused to the nearby residents. The residents raised protest and approached
the panchayat and filed an application under the Right to Information Act.
On 28.3.2019, the Panchayat issued Ext.R5(c) reply stating that the
petitioner was not granted any permit to carry out construction activities
within the Panchayat limits. It is stated that thereafter, when the petitioner
started construction the residents lodged Ext.R5(d) complaint before the
Panchayat and the same is pending. According to the respondents, the
petitioner is not entitled to carry on with the construction activities as no
decision has been taken by the Panchayat on the complaint lodged by them.
5. This Court by order dated 27.11.2020, had directed the Station
House Officer to visit the spot and to submit a report. In the report
submitted by the Station House Officer, it is stated that the petitioner is
constructing a compound wall around his property and has been levelling
the area with laterite sand available there. It is further stated that the
construction is being carried out on the strength of a permit issued by the
Panchayat.
6. The Geologist has also inspected the spot and has submitted a
report. In the said statement it is stated that as per Kerala Minor Mineral
Concession Rules, 2015, no quarrying permit is required for excavation of
ordinary earth as a part of construction and digging of foundation for the
building with plinth area under 20,000 sq.m. It is further stated that the
petitioner has obtained a valid permit from the Local Self Government
Institution and all that he is carrying on is the levelling of land. It is further
stated that the inspection did not reveal that any quarrying activities were
undertaken at the site.
7. Sri.K.S.Arun Kumar, the learned Standing Counsel appearing for
the Panchayat was ordered to get instructions as to whether a development
permit is required for levelling the land. The learned standing counsel
submitted that the petitioner is carrying out construction on the strength of
a valid permit. He states that no development permit is required in the facts
and circumstances.
8. I have heard Sri.C.S.Manu, the learned counsel appearing for
the petitioner, Sri.P.P.Thajudheen, the learned Government Pleader,
Sri.Karthik Bhavadasan, the learned counsel appearing for the 5th
respondent, and Sri.K.S.Arun Kumar, the learned Standing Counsel
appearing for the Grama Panchayath.
9. After hearing the submissions advanced, it appears that the
petitioner has commenced the construction of a building having an area of
about 5726 sq.mts. after obtaining requisite permits from the local authority.
The contention of the party respondents is that the petitioner is carrying out
quarrying activities by using explosives. The report from the Station House
Officer as well as the Geologist reveals that all that the petitioner is doing is
the levelling of the land for commencing the construction activities. He has
also commenced the construction of a boundary wall. The party respondents
are opposing the construction activities based on Ext.R5(c) reply issued to
them by the Panchayat on an earlier occasion. However, Ext.P1 permit
issued by LSGI dated 17.6.2020 reveals that the petitioner is entitled to
carry out construction activities. The learned counsel appearing for the
Panchayat has also stated that no development permit is required for the
construction activities. In that view of the matter, there cannot be any
justification on the part of the party respondents in obstructing the
construction carried out by the petitioner on the strength of Ext.P1 permit
on the mistaken premise that the construction is illegal.
In the result, this writ petition is disposed of directing the petitioner to
approach the 4th respondent if any obstruction is caused by the party
respondents to the construction activities carried out by the petitioner on the
strength of Ext.P1. If any such complaint is received, necessary protection
shall be granted by the 4th respondent to enable the petitioner to carry out
the construction activities in tune with Ext.P1 permit.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
sru
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT BEARING
NO. BA(11242) 2020 DATED 20.09.2019
ISSUED BY THE SECRETARY, AIKKARA GRAMA
PANCHAYAT.
EXHIBIT P1 A TRUE COPY OF THE BUILDING PLAN FORTHE
PROPOSED STORAGE BUILDING APPROVED BY
THE AIKKARA NADU GRAMA PANCHAYAT.
EXHIBIT P2 TRUE COPY OF THE PETITION DATED
8.11.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE RECEIPT DATED
13.11.2020 OBTAINED FROM THE PUTHENCRUZ
POLICE STATION FOR HAVING RECEIVED
EXHIBIT P2.
RESPONDENTS EXHIBITS:
EXHIBIT R5 A THE TRUE COPY OF THE COMPLAINT DATED
9.10.2018 FILED BY THE 5TH RESPONDENT
AND 83 OTHER PEOPLE FROM THE LOCALITY
BEFORE THE PANCHAYATH.
EXHIBIT R5 B THE TRUE COPY OF THE APPLICATION DATED
5.3.2019 FILED UNDER THE RIGHT TO
INFORMATION ACT 2005.
EXHIBIT R5 C THE RESPONSE DATED 28.3.2019 TO EXHIBIT
R5(B).
EXHIBIT R5 D THE TRUE COPY OF THE COMPLAINT DATED
9.11.2020 FILED BY THE 5TH RESPONDENT
AND 151 OTHER PEOPLE FROM THE LOCALITY
BEFORE THE AIKKARANADU GRAMA PANCHAYATH.
