Kerala High Court
Baby Alexander vs District Geologist on 11 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
WP(C) NO. 28643 OF 2020
PETITIONER:
ALWYN JOSE
NADUVATHETTU HOUSE, THADIYAMPADU, VAZHATHOPPU,
IDUKKI, PIN - 685602.
BY ADVS.
SHAJI THOMAS
SRI.BINU PAUL
SRI.JEN JAISON
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, LOCAL SELF-
GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2 THE PRINCIPAL DIRECTOR
LSGD - PRINCIPAL DIRECTORATE,SWARAJ BHAVAN,
NANTHANCODE, FIFTH FLOOR, KOWDIAR (P.O),
THIRUVANANTHAPURAM - 695003.
3 DIRECTOR
LOCAL SELF GOVERNMENT DEPARTMENT, PUBLIC OFFICE
BUILDING, MUSEUM (P.O), THIRUVANANTHAPURAM -
695003.
4 SECRETARY
KAVALANGAD GRAMA PANCHAYATH, NELLIMATTOM P.O,
ERNAKULAM DISTRICT, PIN - 686693.
W.P.(C) Nos.28643 of 2020
& 724 of 2021 2
5 KAVALANGAD GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, KAVALANGAD,
NELLIMATTOM P.O, ERNAKULAM DISTRICT, PIN - 686693.
BY ADV SRI.PEEYUS A.KOTTAM
SRI.T.NAVEEN, STANDING COUNSEL
SRI.K.J.MANURAJ, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.06.2021, ALONG WITH WP(C).724/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.28643 of 2020
& 724 of 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
WP(C) NO. 724 OF 2021
PETITIONERS:
1 BABY ALEXANDER,
AGED 68 YEARS
S/O. CHANDY, RESIDING AT KANIYANPALAKKAL HOUSE,
OONNUKAL P.O., ERNAKULAM DISTRICT-686 693.
2 SAHADEVAN,
AGED 75 YEARS
S/O. KESAVAN, RESIDING AT SHYAM NIVAS, OONNUKAL
P.O. ERNAKULAM DISTRICT, PIN - 686 693.
3 FRANICS VARGHESE,
AGED 61 YEARS
S/O. VARGHESE, RESIDING AT MANCHIMALAYIL HOUSE,
OONNUKAL P.O., ERNAKULAM DISTRICT, PIN - 686 693.
4 SHERRY ABRHAM,
AGED 35 YEARS
S/O. ABRAHAM, RESIDING AT OTTAKUDASSERIL HOUSE,
OONNUKAL P.O. ERNAKULAM DISTRICT, PIN - 686 693.
5 CICILY THOMAS,
AGED 60 YEARS
W/O. THOMAS, RESIDING AT PUTHENPURACKAL HOUSE,
OONNUKAL P.O. ERNAKULAM DISTRICT, PIN - 686 693.
BY ADV: C.DILIP
W.P.(C) Nos.28643 of 2020
& 724 of 2021 4
RESPONDENTS:
1 DISTRICT GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,
ERNAKULAM, PIN - 682 030.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682 030.
3 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, MANNALIKUDY
ARCADE, M.C ROAD, PERUMABVOOR, ERNAKULAM DISTRICT,
PIN - 683 101.
4 KAVALANGAD GRAMA PANCHAYATH,
KAVALANGAD, NELLIMATTOM P.O., ERNAKULAM DISTRICT,
PIN - 686 693, REPRESENTED BY ITS SECRETARY.
5 THE SECRETARY,
KAVALANGAD GRAMA PANCHAYATH KAVALANGAD, NELLIMATTOM
P.O. ERNAKULAM DISTRICT, PIN -686 693.
6 INSPECTOR OF POLICE,
OONNUKAL POLICE, OONNUKAL P.O., KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN - 686 693.
7 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
8 STATE OF KERALA
PREDESTINED BY PRINCIPAL SECRETARY, INDUSTRIES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
9 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY, REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
W.P.(C) Nos.28643 of 2020
& 724 of 2021 5
10 MR. ALWYN JOSE,
AGED 36 YEARS
S/O. JOSE, NADUVATHETTU HOUSE, THADIYAMPADU,
VAZHATHOPPU, IDUKKI DISTRICT, PIN - 685 602.
BY ADVS.
SRI.PEEYUS A.KOTTAM
SRI.SHAJI THOMAS
SRI.JEN JAISON
SRI.BINU PAUL
SRI.T.NAVEEN, STANDING COUNSEL
SRI.K.J.MANURAJ, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.06.2021, ALONG WITH WP(C).28643/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.28643 of 2020
& 724 of 2021 6
P.B.SURESH KUMAR, J.
-----------------------------------------------
W.P.(C) Nos.28643 of 2020
& 724 of 2021
-----------------------------------------------
Dated this the 11th day of June 2021
JUDGMENT
The issues arising for consideration in these matters are
closely interlinked and they are, therefore, disposed of by this
common judgment. Parties and documents are referred to in this
judgment, as they appear in W.P.(C) No.28643 of 2020.
2. The petitioner is a contractor undertaking works of
the Public Works Department. The petitioner took a land on lease
for erecting a hot mix plant for executing a road work. Thereupon,
he obtained permission from the concerned Panchayat in terms of
Rule 68 of the Kerala Panchayat Building Rules, 2019 (the Rules)
W.P.(C) Nos.28643 of 2020
and Ext.P2 consent to establish the hot mix plant from the Pollution
Control Board in terms of the Water (Prevention and Control of
Pollution Act), 1974 and Air (Prevention and Control of Pollution
Act), 1981. It is stated by the petitioner that later, when he was
carrying on the levelling work of the leasehold for the purpose of
erecting the hot mix plant, police intervened alleging that the
petitioner ought to have obtained permission of the Geologist for
carrying out the levelling work. The petitioner, therefore,
approached this court by filing W.P.(C) No.25457 of 2020 and
obtained Ext.P3 judgment interdicting the Geologist from
interfering with the erection and operation of the hot mix plant in
the land so long as the petitioner does not remove any mineral from
the land. It is stated by the petitioner that later, when he
attempted to erect the hot mix plant, the Secretary of the
Panchayat issued Ext.P5 stop memo stating that the activities
carried on by the petitioner is unauthorised. It is alleged by the
W.P.(C) Nos.28643 of 2020
petitioner that later, the petitioner was issued Ext.P8 stop memo by
the Secretary of the Panchayat stating that in so far as the term of
the permit issued to him under Rule 68 of the Rules for erecting the
hot mix plant has expired, the petitioner is not entitled to undertake
any work in the land until the permit is renewed. Exts.P5 and P8
stop memos are under challenge in the writ petition. The petitioner
also seeks a direction to the Secretary of the Panchayat to refrain
from obstructing him from erecting the hot mix plant. He also seeks
a declaration that the activity proposed to be undertaken by the
petitioner making use of the hot mix plant does not come within the
scope of Section 233 of the Kerala Panchayat Raj Act, 1994 and the
petitioner is therefore, not required to obtain licence under the said
provision from the Panchayat for the said purpose.
3. W.P.(C) No.724 of 2021 is instituted by a few persons
residing in the neighbourhood of the land where the petitioner
proposes to erect the hot mix plant. They seek, among others, a
W.P.(C) Nos.28643 of 2020
direction to the Secretary of the Panchayat to refrain from issuing
any permit to the petitioner under Rule 68 of the Rules for erecting
the hot mix plant.
4. Heard the learned counsel for the petitioners in the
writ petitions as also the learned counsel for the Secretary of the
Panchayat.
5. The materials on record indicate that the petitioner is
contemplating to erect a hot mix plant temporarily for the purpose
of executing a road work assigned to him. As admitted by the
petitioner, he is required to obtain a permit for the said purpose
from the Panchayat as provided for under Rule 68 of the Rules. It is
admitted by the petitioner that the term of the permit issued to the
petitioner under Rule 68 of the Rules expired on 13.12.2020 and the
application preferred by the petitioner for renewal is pending. The
learned counsel for the Panchayat submitted that no orders have
been passed on the application preferred by the petitioner for
W.P.(C) Nos.28643 of 2020
renewal of the permit. In other words, the petitioner does not
possess as on the date of institution of the writ petition viz,
21.12.2020 a permit under Rule 68 of the Rules for the purpose of
erecting the hot mix plant. In the aforesaid circumstances,
according to me, it is unnecessary to consider the entitlement of the
petitioner for the various reliefs sought for in the writ petition. As
noted, the petitioners in W.P.(C) No.724 of 2021 seeks directions to
the Panchayat to refrain from granting permit to the petitioner
under Rule 68 of the Rules. In the circumstances, I am of the view
that the writ petitions can be disposed of directing the fourth
respondent to consider and pass orders on the application preferred
by the petitioner for renewal of the permit issued under Rule 68 of
the Rules, after affording the petitioner as also the petitioners in
W.P.(C) No.724 of 2021 an opportunity of hearing. Ordered
accordingly. This shall be done as expeditiously as possible, at any
rate, within one month from the date of receipt of a copy of the
W.P.(C) Nos.28643 of 2020
judgment. The hearing ordered can certainly be through video
conferencing. All other issues are left open.
Sd/-
P.B.SURESH KUMAR, JUDGE
tgs
W.P.(C) Nos.28643 of 2020
APPENDIX OF WP(C) 28643/2020
PETITIONER'S EXHIBITS :
EXHIBIT P1 A TRUE PHOTOCOPY OF THE LETTER DATED
23.10.2019 ISSUED BY THE SUPERINTENDING
ENGINEER, PWD ROADS, CENTRAL CIRCLE,
ALUVA.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE CONSENT TO
ESTABLISH ISSUED BY THE ENVIRONMENTAL
ENGINEER, KERALA STATE POLLUTION CONTROL
BOARD, ERNAKULAM - II DATED 08.05.2020.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE JUDGMENT OF THIS
HON'BLE COURT DATED 26.11.2020 IN WP(C)
NO.25457/2020.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE INTERIM ORDER
DATED 03.12.2020 IN WPC NO.26771/2020.
EXHIBIT P5 THE TRUE COPY OF THE STOP MEMO DATED
12.12.2020 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE LOCATION SKETCH
PREPARED BY THE TALUK SURVEYOR,
KOTHAMANGALAM TALUK DATED NIL.
EXHIBIT P7 A TRUE COPY OF THE REPLY DATED 17.12.2020
SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT.
EXHIBIT P8 THE TRUE COPY OF THE STOP MEMO DATED
18.12.2020 ISSUED BY THE 4TH RESPONDENT
TO THE PETITIONER.
EXHIBIT P9 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WA NO.274/2016 DATED
06.04.2016.
EXHIBIT P10 TRUE PHOTOCOPY OF THE ORDER NO.K2-
2321/2020 DATED 13.10.2020 ISSUED BY THE
4TH RESPONDENT
W.P.(C) Nos.28643 of 2020
EXHIBIT P11 TRUE PHOTOCOPY OF THE RENT DEED DATED
12.3.2020 EXECUTED BETWEEN THE PETITIONER
AND THE OWNER OF THE LAND
RESPONDENT'S EXHIBITS :
EXHIBIT R4(a) THE TRUE COPY OF INSPECTION REPORT OF THE
ASSISTANT ENGINEER, LSGD SECTION,
KAVALANGAD
W.P.(C) Nos.28643 of 2020
APPENDIX OF WP(C) 724/2021
PETITIONER'S EXHIBITS :
EXHIBIT P1 TRUE PHOTO COPY OF TREATMENT CERTIFICATE
OF 5TH PETITIONER DATED NIL ISSUED FROM
AMALA INSTITUTE OF MEDICAL SCIENCE,
THRISSUR.
EXHIBIT P2 TRUE PHOTO COPY OF CONSTITUTION
PERMISSION DATED 13.10.2020 ISSUED BY THE
5TH RESPONDENT.
EXHIBIT P3 TRUE PHOTO COPY OF COMPLAINT DATED
27.11.2020 LODGED BY THE RESIDENTS BEFORE
THE 6TH RESPONDENT.
EXHIBIT P4 TRUE PHOTO COPY OF REPRESENTATION DATED
08.12.2020 SUBMITTED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P5 TRUE PHOTO COPY OF CONSENT TO ESTABLISH
DATED 08.05.2020 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P6 TRUE PHOTO COPY OF REPRESENTATION DATED
08.12.2020 SUBMITTED BY THE PETITIONER 1
TO 4 BEFORE THE 3RD RESPONDENT.
EXHIBIT P7 TRUE PHOTO COPY OF REPRESENTATION DATED
08.12.2020 SUBMITTED BY THE PETITIONER 1
TO 4 BEFORE THE SECOND RESPONDENT.
EXHIBIT P8 TRUE PHOTO GRAPH SHOWING NATURE OF
EXCAVATION OF LAND CARRIED OUT BY THE
10TH RESPONDENT.
W.P.(C) Nos.28643 of 2020
RESPONDENT'S EXHIBITS :
EXHIBIT R10(a) TRUE PHOTO COPY OF THE LETTER DATED
23.10.2019 ISSUED BY THE SUPERINTENDING
ENGINEER, PWD RAODS, CENTRAL CIRCLE.
ALUVA.
EXHIBIT R10(b) TRUE PHOTO COPY OF THE CONSENT TO
ESTABLISH DATED 8.5.2020 ISSUED BY THE
THIRD RESPONDENT.
