Kerala High Court
Rassali vs District Collector on 4 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
WP(C).No.23574 OF 2020(V)
PETITIONERS:
1 RASSALI, AGED 54 YEARS
S/O KUNHUPILLA RAWTHER, MANGASSERIL
(THENAMAKKAL) KANJIRAPPALLY P O, KOTTAYAM
DISTRICT.
2 IJAZKHAN K. R., S/O RASHEED ,
KALLUVARA PARAMBIL, THIDANADUKARA,
ERATTUPETTA PO, KOTTAYAM DISTRICT.
3 ABY S/O RASHEED,
KALLUVARA PARAMBIL, THIDANANDUKAR,
ERATTUPETTA P O, KOTTAYAM DISTRICT.
4 SHANIDA, W/O RASHEED,
KALLUVARA PARAMBIL, THIDANANDUKAR,
ERATTUPETTA P O,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.P.A.MOHAMMED SHAH
SHRI.MUHAMMED JANAISE V.
SHRI.ASWIN KUMAR M J
SHRI.MOHAMED MUSTHAFA A.K.
SMT.HELEN P.A.
RESPONDENTS:
1 DISTRICT COLLECTOR
CIVIL STATION, KOTTAYAM-686002.
2 TAHSILDAR
KANJIRAPPILLY TALUK, TALUK OFFICE,
KANJIRAPPALLY-686507.
W.P.(C). No.23574 of 2020 ..2..
3 VILLAGE OFFICER
VILLAGE OFFICE, KANJIRAPPILLY-686507.
4 THE SENIOR GEOLOGIST
MINING AND GEOLOGIST, DISTRICT OFFICE,
COLLECTORATE, KOTTAYAM-686002.
5 SUB INSPECTOR OF POLICE
KANJIRAPPILLY POLICE STATION, KANJIRAPPALLY,
KOTTAYAM DISTRICT-686507.
6 RAHIYANATH
W/O NIYAS, BUNGALVU PARAMBIL, KANJIRAPPALLY,
KOTTAYAM DISTRICT-686507.
R6 BY ADV. SRI.T.K.RADHAKRISHNAN
R6 BY ADV. SMT.S.SREEDEVI
R6 BY ADV. SRI.T.R.HARIKRISHNAN
SRI. K.J. MANURAJ, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18-12-2020, THE COURT ON 04-01-2021 DELIVERED THE
FOLLOWING:
W.P.(C). No.23574 of 2020 ..3..
P.B.SURESH KUMAR, J.
-------------------------------------
W.P.(C). No.23574 of 2020
--------------------------------------
Dated this the 4th day of January, 2021
JUDGMENT
Petitioners own an item of property measuring 8.4 Ares
within the limits of Kanjirappally Village. The sixth respondent owns
a property adjoining to the property of the petitioners on its
northern side. With a view to construct a commercial building in the
property, the petitioners obtained Ext.P5 building permit and Ext.P6
development permit from the Panchayat. As a certain quantity of
ordinary earth and granite building stones required to be removed
from the property for the purpose of constructing the building
proposed by the petitioners, they have obtained permissions for the
same from the fourth respondent under the Kerala Minor Mineral
Concession Rules, 2015. Exts.P7 and P8 are the permissions
obtained by the petitioners from the fourth respondent in this
regard. When the petitioners commenced the work of removal of
ordinary earth and granite stones from the property, the sixth
respondent has lodged a complaint before the District Collector
W.P.(C). No.23574 of 2020 ..4..
alleging that the petitioners are removing ordinary earth and
granite stones from her property also. The said complaint was
forwarded by the District Collector to the fourth respondent, the
District Geologist, and on receipt of the same, after affording the
sixth respondent an opportunity of hearing, the fourth respondent
issued Ext.P9 memo directing the petitioners to stop the activities
undertaken by them on the strength of Exts.P7 and P8 permissions.
It is seen that the petitioners have pointed out to the fourth
respondent that they have not encroached upon the property of the
sixth respondent in any manner and consequently, after hearing
the petitioners and the sixth respondent, the fourth respondent
issued Ext.P12 communication to the petitioners informing them
that since the sixth respondent has raised a dispute concerning the
boundary of the properties, further action in the matter can be
taken only after the boundary dispute is resolved by the concerned
officials of the Revenue Department. The materials indicate that
the Taluk Surveyor has, thereupon fixed the boundary of the
respective properties and the petitioners have approached the
fourth respondent thereafter for continuing the activities
undertaken by them on the strength of Exts.P7 and P8 permissions.
On the said request, Ext.P19 communication was issued by the
fourth respondent to the petitioners informing them that a decision
W.P.(C). No.23574 of 2020 ..5..
in the matter will be taken after considering the report called for
from the second respondent as to the state of things as they stand
now. Ext.P22 is the report forwarded by the second respondent to
the fourth respondent in this regard. In Ext.P22, it is stated among
others that the ordinary earth removed from the property of the
petitioners is kept in the property itself; that there is a large granite
stone in the property of the petitioners; that the property of the
sixth respondent is lying at a height of almost 7 meters from the
property of the petitioners; that no loss or damage would be
caused to the sixth respondent if the petitioners are permitted to
remove the ordinary earth kept in the property and if they are
permitted to remove the granite stone in the property; that as the
petitioners have removed ordinary earth from their property, the
property of the sixth respondent needs to be protected by
constructing a retaining wall in the property of the petitioners; that
a retaining wall can be constructed in the property of the
petitioners only if granite stone in the property is removed; that a
portion of the granite stone in the property has already been
removed by the petitioners using Diamond Wire Saw Cutting
Machine; that no damage whatsoever would be caused to the
property of the sixth respondent if the petitioners are permitted to
remove the remaining granite stone in their property by using the
W.P.(C). No.23574 of 2020 ..6..
said machine and that permission can therefore be granted to the
petitioners to remove the ordinary earth and granite building stone
from their property. In the light of Ext.P22 report, the fourth
respondent has issued Ext.P23 communication to the petitioners
informing them that if the petitioners construct retaining wall to
protect the property of the sixth respondent, permission would be
granted to them to remove the ordinary earth and granite stone
from their property. The case set out by the petitioners in the writ
petition is that when they started removing the granite stone that
exists in their property pursuant to Ext.P23 communication, using
Diamond Wire Saw Cutting Machine for the purpose of constructing
the retaining wall, the fifth respondent, the Sub Inspector of Police
as also the officials in the office of the fourth respondent interdicted
the said work at the instance of the sixth respondent. According to
the petitioners, they are carrying out only the work as permitted by
the fourth respondent in terms of Ext.23 communication and
therefore there is absolutely no justification for interdicting the
work. The petitioners, therefore, seek appropriate directions to the
respondents to enable them to carry on the works undertaken by
the them.
2. A counter affidavit has been filed by the sixth
respondent. It is stated by the sixth respondent in the counter
W.P.(C). No.23574 of 2020 ..7..
affidavit that the petitioners have removed ordinary earth and
granite stone from their land in such a manner as to endanger her
life and property; that the removal of ordinary earth and granite
stone by the petitioners is not in accordance with the conditions
stipulated in Exts.P7 and P8 permissions; that on account of the
activity undertaken by the petitioners, extensive damage has been
caused to her property and that the lateral support of her property
is completely lost. It is also stated by the sixth respondent in the
counter affidavit that the petitioners have not left sufficient space
in between the properties to put up an appropriate retaining wall to
protect her property which is lying at a height of almost 35 meters.
3. Heard the learned counsel for the petitioners, the
learned Government Pleader as also the learned counsel for the
sixth respondent.
4. The petitioners being the owners of the property
referred to in the writ petition, they have every right to enjoy the
said property including putting up of buildings therein. Of course,
the enjoyment of the property including construction of buildings in
the property shall be in accordance with law and without offending
the rights of others. As noted, the petitioners have obtained
development permit and building permit from the Panchayat for the
purpose of constructing the building proposed by them in the
W.P.(C). No.23574 of 2020 ..8..
property. As the construction proposed by them cannot be carried
on without removing ordinary earth and granite stone from the
property, they have also obtained permission for the same from the
competent authority, namely the fourth respondent. The case of
the sixth respondent is that the activity undertaken by the
petitioners is offending her rights over the adjoining property. It is
seen that the grievance initially voiced by the sixth respondent was
that the petitioners have encroached upon her property and the
said grievance now stands redressed on account of the fixation of
the boundary between the properties by the Taluk Surveyor. The
grievance now raised by the sixth respondent in essence is that the
removal of the ordinary earth and granite stone by the petitioners
from their property is not in accordance with the terms of Exts.P7
and P8 Permissions; that extensive damage has been caused to her
property on account of the activities undertaken by the petitioners
and that there is no sufficient space in between the properties for
the petitioners to put up appropriate retaining wall to protect her
property.
5. In the various communications issued by the
fourth respondent, he does not endorse the case set out by the
sixth respondent that the removal of ordinary earth and granite
stone so far made by the petitioners is not in accordance with
W.P.(C). No.23574 of 2020 ..9..
Exts.P7 and P8 communications. The relevant portion of Ext.P22
report of the second respondent reads thus:
"സല പരശ ധനയൽ സഥലതമണകടകടകനത യ വലയയ ര പ റകല
ഭമ യലവലൽ നനഉയർനനൽകനത യ ക ണന. അശപകകയ) സഥലത
നന ഉശ* 7 മ+റശറ ള ഉയരതല ണ പര തകരയ യ റഹയ നതയ)
പരയടവ വ+ട സതയ4യനത. പര തകരയയട പരയടതൽ ഉശ* 50"
വണമള ശതക, മഹഗണ എന+ മരങൾ നൽപളത ഏത സമയത നല
പതകവന ര+തയലമ ണ. കട യത ടയ ളയട പരയടതയല മണ ഇടഞ
അശപകകയ) ഭമയൽ പതകന ഇടയ ക . അശപകകയ) സഥലത
ശക ൺക+റ ഭത യകടയയങൽ മ തശമ ഈഅപകട വസമ റകയള. നലവൽ
കടയടരകന മണ കല ന+ക യ4യനത യക ണ പര തകരക യ യത ര
നഷവ ഉണക ൻ സധSതയല. ഭമ യലവലൽഉയർനനൽകനകലകൾ ന+ക
യ4യ ശക ൺക+റ ഭത യകടയയങൽ മ തശമ പര തകരയയട പരയടതയ)
അപകട വസ മ റകയള. അശപകകന ട സഥലത ശക ൺക+റ ഭത
നർമകണയമങൽ നലവൽഭമയലവലൽ ഉയർനനൽകനപ റകലകള മണ
സഥലത നന ന+ശകണത യ ക ണന. ട സല എൻ എ4 183 ശയ ട
ശ4ർന സത യ4യനതന ൽ മഴകലശതടകട ട മണ ഒഴക ഹഹശവയൽ
എതന അപകടങൾ ഉണക ന സധSതയണ. സലപരശ ധനയൽ
ഭമയലയവലൽ ഉയർന നൽകന വലയ കരങല 'ഡയമണ വയർ ശസ കട ഗ'
ഉപശയ ഗ4 40 % ശതള ക+റയടണ . ട കല ന+ക യ4യനതയക ണ
ആർക തയന ശ] ഷ ഇല തത ഡയമണ വയർ ശസ കട ഗ ആയതന ൽ
ഏയതങല തരതലള കലകങശള ശ_ടനങശള ഉണവ ൻ
സധSതയല തതമ ണ. നലവൽ കടയടരകന മണ കല ക ല വസകട
മൻനർത അടയനരമ യ മ ശറണത യ ക ണന എന വ ഒ റശa ർട
യ4യടളത ണ.
മണ കല ന+ക യ4യനതയക ണപര തകരകയ യത ര കഷനഷവ
ഉണക ൻ സധSതയയലന ഉയർന നൽകന കലകൾ ന+ക യ4യ ഭത
യകടയ ൽ അപകട വസ ഒഴവ കവനത യ ക ണനയവന 4 ർശcഫ+സർ
സ4ന(3) പക ര റശa ർട യ4യടളതമ ണ.
W.P.(C). No.23574 of 2020 ..10..
ശമൽ സഹ4രSതൽ ട സഥലത ഖനന യ4യ കടയടരകന മണ
പ റയ ന+ക യ4യനതനളഅനമത നൽക വനത ണഎനളവവര റശa ർട
യ4യയക ളന."
The report aforesaid does not indicate that any damage has been
caused to the property of the sixth respondent on account of the
activity hitherto undertaken by the petitioners. The report aforesaid
however indicate beyond doubt that if the petitioners do not
construct a retaining wall in their property, damage would be
caused to the property of the sixth respondent. The report also
indicates that retaining wall to protect the property of the sixth
respondent cannot be constructed without removing the granite
stone that exists in the property of the petitioners. The report
further indicates that if the granite stone that exists in the property
is removed using Diamond Wire Saw Cutting Machine, no damage
whatsoever would be caused to the property of the sixth
respondent.
6. From Ext.P23, it is revealed that the petitioners
have not been granted permission to remove ordinary earth and
granite stone from their property. Instead, what is informed to the
petitioners by the fourth respondent as per the said communication
is that if the petitioners construct a retaining wall to protect the
W.P.(C). No.23574 of 2020 ..11..
property of the sixth respondent, their request for permission to
remove ordinary earth and granite stone would be considered. The
sixth respondent has not challenged the building permit and
development permit obtained by the petitioners. In other words,
the sixth respondent cannot raise any objection against the
construction proposed by the petitioners. As regards the right of
the sixth respondent to have lateral support to her property, the
sixth respondent is yet to approach a competent civil court for
appropriate relief. As revealed from Ext.P22 report of the second
respondent, the petitioners cannot put up the construction without
removing the ordinary earth and granite stone from the property.
In the matter of removing the ordinary earth and granite stone
from the property, the fourth respondent has now imposed a
condition that the petitioners shall construct a retaining wall in their
property for the purpose of protecting the property of the sixth
respondent. In other words, the position now is that the petitioners
cannot put up the building proposed by them in the property
without constructing retaining wall in their property to protect the
property of the sixth respondent. It is doubtful as to whether the
fourth respondent can impose such a condition on the petitioners
when they seek permission to remove ordinary earth and granite
stone from their property, for the purpose of constructing a building
W.P.(C). No.23574 of 2020 ..12..
proposed them in their property. Be that as it may. The petitioners
assert that they propose to construct a retaining wall in their
property as directed by the fourth respondent. The grievance
voiced by them in the writ petition is that the retaining wall cannot
be constructed without removing the granite stone, and the
respondents are not permitting them to remove the granite stone
despite Ext.P23 communication. In the absence of any challenge
against the building permit and development permit obtained by
the petitioners to put up a building in their property and in the
absence of any interdiction by any court in the matter of removing
ordinary earth and granite stone from the property, according to
me, there is no justification for the respondents to interdict the
activity undertaken by the petitioners to remove the granite stone
from their property.
7. Coming to the grievance voiced by the sixth
respondent that there is no space in between the properties to put
up the retaining wall, I must state that the sixth respondent has
certainly a right to have lateral support to her property and if the
petitioners do not provide the lateral support to her property, the
sixth respondent is certainly entitled to approach a competent civil
court for appropriate relief. Needless to say that the said remedy is
available to the sixth respondent, even if the grievance of the sixth
W.P.(C). No.23574 of 2020 ..13..
respondent is concerning the insufficiency of the retaining wall
proposed by the petitioners.
In the circumstances, the writ petition is disposed of
restraining the respondents from interdicting the activity
undertaken by the petitioners to remove the granite stone from
their property and to put up retaining wall to protect the property of
the sixth respondent. It is, however, made clear that if the sixth
respondent has any grievance concerning the insufficiency of the
retaining wall proposed by the petitioners, she is free to approach a
competent civil court for appropriate relief in that regard. Needless
to say that once the retaining wall is constructed by the petitioners
to protect the property of the sixth respondent, there shall not be
any obstruction by the respondents to the construction of the
building by the petitioners in terms of the building permit obtained
by them.
Sd/-
P.B.SURESH KUMAR
JUDGE
ds 31.12.2020
W.P.(C). No.23574 of 2020 ..14..
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF TAX RECEIPT DATED
23.09.2020 ISSUED IN FAVOUR OF 1ST
PETITIONER.
EXHIBIT P2 THE TRUE COPY OF TAX RECEIPT DATED
03.03.2020 ISSUED IN FAVOUR OF
PETITIONER 2 TO 4.
EXHIBIT P3 THE TRUE COPY OF POSSESSION
CERTIFICATE DATED 06.10.2020 ISSUED IN
FAVOUR OF 1ST PETITIONER.
EXHIBIT P4 THE TRUE COPY OF POSSESSION
CERTIFICATE DATED 27.10.2020 ISSUED IN
FAVOUR OF PETITIONER 2 TO 4.
EXHIBIT P5 THE TRUE COPY OF THE BUILDING PERMIT
DATED 22.03.2018.
EXHIBIT P6 THE TRUE COPY OF DEVELOPMENT PERMIT
DATED 10.04.2018.
EXHIBIT P7 THE TRUE COPY OF THE PROCEEDINGS
ISSUED REGARDING THE ISSUANCE OF
SPECIAL TRANSIT PASSES FOR ORDINARY
EARTH BY THE 4TH RESPONDENT DATED
15.09.2018.
EXHIBIT P8 HE TRUE COPY OF THE PROCEEDINGS ISSUED
REGARDING THE ISSUANCE OF SPECIAL
TRANSIT PASSES FOR GRANITE DATED
09.11.2018.
EXHIBIT P9 THE TRUE COPY OF STOP MEMO ISSUED BY
THE 4TH RESPONDENT DATED 12.12.2018.
EXHIBIT P10 THE TRUE COPY OF REPLY SUBMITTED BY
THE 2ND PETITIONER DATED 24.12.2018
EXHIBIT P11 THE TRUE COPY OF JUDGMENT OF THIS
HON'BLE COURT IN NO.42283/2018 DATED
21.12.2018.
W.P.(C). No.23574 of 2020 ..15..
EXHIBIT P12 THE TRUE COPY OF ORDER ISSUED BY THE
4TH RESPONDENT DATED 21.01.2019.
EXHIBIT P13 THE TRUE COPY OF NOTICE ISSUED TO THE
2ND PETITIONER FOR MEASUREMENT ON
28/02/2019.
EXHIBIT P14 THE TRUE COPY OF NOTICE ISSUED TO 2ND
PETITIONER FOR MEASUREMENT ON
05.03.2019.
EXHIBIT P15 THE TRUE COPY OF LETTER ISSUED BY THE
2ND RESPONDENT TO THE `1ST PETITIONER
DATED 14.03.2019.
EXHIBIT P16 THE TRUE COPY OF INFORMATION ALONG
WITH THE REPORT DATED 08/05/2019.
EXHIBIT P17 THE TRUE COPY OF THE NOTICE ISSUED BY
THE 4TH RESPONDENT DATED 24.04.2019.
EXHIBIT P18 THE TRUE COPY OF PETITION FILED BEFORE
THE 1ST RESPONDENT AND RECEIPT DATED
13.05.2019.
EXHIBIT P19 THE TRUE COPY OF ORDER DATED
28.05.2019.
EXHIBIT P20 THE TRUE COPY OF THE REPORT DATED
27.06.2019 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P21 THE TRUE COPY OF THE REPORT SUBMITTED
BY THE 3RD RESPONDENT DATED
08/07/2019.
EXHIBIT P22 THE TRUE COPY OF THE LETTER ISSUED BY
THE 2ND RESPONDENT DATED 17.07.2019.
EXHIBIT P23 THE TRUE COPY OF LETTER ISSUED BY THE
4TH RESPONDENT DATED 24.08.2020.
