Jayaprakash Dhamodharan vs The State Of Kerala
2021 Latest Caselaw 7200 Ker

WP(C).No.676 OF 2021(H)
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

   TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                       WP(C).No.676 OF 2021(H)


PETITIONER/S:

                JAYAPRAKASH DHAMODHARAN
                AGED 57 YEARS
                SON OF DHAMODHARAN, RESIDING AT AIKKARAKUZHIYIL,
                THELLAKOM P.O. KOTTAYAM DISTRICT 686 630.

                BY ADVS.
                SRI.ABRAHAM GEORGE JACOB
                SRI.C.MURALIKRISHNAN (PAYYANUR)
                SHRI.AKSHAY R

RESPONDENT/S:

      1         THE STATE OF KERALA
                GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001
                REPRESENTED BY THE SECRETARY TO THE GOVERNMENT IN
                THE DEPARTMENT OF REVENUE.

      2         THE DISTRICT COLLECTOR,
                KOTTAYAM DISTRICT, KOTTAYAM 686 022.

      3         THE TAHSILDAR,KOTTAYAM TALUK, MINI CIVIL STATION,
                KOTTAYAM 686 001.

      4         THE VILLAGE OFFICER,
                PEROOR VILLAGE, PEROOR, KOTTAYAM 686 637.

      5         MATHAI JOSEPH,KAZHUNNUKANDATHIL, THELLAKOM P.O.
                KOTTAYAM 686 630.

      6         V.D. JOSEPH ALIAS APPACHAN MUKALAYIL,
                VALLOMTHOTTIYAL, THELLAKOM P.O. KOTTAYAM 686 630

      7         ADDL.R7.THE STATION HOUSE OFFICER,
                ETTUMANOOR POLICE STATION
                IS SUO MOTU IMPLEADED AS ADDL.7TH RESPONDENT AS PER
                ORDER DT.14.01.2021

                R3 BY GOVERNMENT PLEADER
 WP(C).No.676 OF 2021(H)
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             R5-6 BY ADV. SRI.P.K.RAVI SANKAR
             R5-6 BY ADV. SMT.ATHIRA SANKAR P.K.

OTHER PRESENT:

             SMT.VINITHA.B, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.676 OF 2021(H)
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                                      JUDGMENT

Dated this the 2nd day of March 2021

The petitioner approached this Court challenging Ext.P3

stop memo issued by the Village Officer on 29.12.2020 against

the construction of a well in his property and also the seizure

of Hitachi which was being used for digging of the well.

2. The petitioner claims that the well was being

constructed in his property on the basis of Ext.P1 permit issued

by the Ettumanoor Municipality which, included permit for

construction of retaining wall and compound wall also. The Writ

Petition was filed stating that the Village Officer does not

have the authority to issue the stop memo or to seize the

hitatchi and keep it in the custody of respondents 4 and 5 who

are residents of the locality. Petitioner alleged that the

Hitachi which was taken on rent was illegally seized and

entrusted with respondents 5 and 6.

3. On the basis of an interim order passed by this Court on

14.01.2021, the Hitachi was released to its registered owner on

execution of a simple bond.

4. The 3rd respondent has filed a statement. According to

him the petitioner was constructing a pond using Hitachi

machine, much larger in width than in the approved original

plan. It is also stated that the well was being dug just 2

meters away from the municipal road and it would endanger the WP(C).No.676 OF 2021(H)

road or the traffic. It is stated that a complaint signed by 22

persons residing in the locality was received against the

construction stating that the intention of the petitioner is for

commercial distribution of water. The Village Officer stated

that the pond is having a breadth of 7.5 meters and depth of 25

feet as against the specification in the approved plan of 5.6

diameter. It is stated that the Village Officer issued the stop

memo on the basis of complaints of the residents of the

locality. It is stated that in the absence of an automatic

driving system of the Hitachi the same was entrusted to nearby

residents pending completion of the official proceedings, with

intimation to the Station House Officer. It is stated that in

Ext.R3(c) report, the Assistant Engineer of the Municipality

prima facie found that the construction of well was not in

accordance with the plan and it was stated that it can be

regularised only if its circumference is limited to 5.6

diameter. The Village Officer also stated that a report has

already been forwarded on the issue, to the District Collector,

Kottayam as well as the Revenue Divisional Officer (Sub

Collector), Kottayam as per Ext.R3(b) letter.

5. Respondents 5 and 6 have filed a counter affidavit

stating that the petitioner has been constructing a pond without

obtaining permission and causing extensive damages to the

residential buildings in the locality. Pointing out the

photographs showing the cracks occurred on the walls of their WP(C).No.676 OF 2021(H)

residential buildings respondents stated that 40 residents had

submitted Ext.R5(c) complaint before the RDO as against the

construction carried out by the petitioner and pointing out the

possibility of scarcity of water in the locality as well as

possibility of increasing number of accidents.

6. The learned counsel for the petitioner submits that the

construction of well is being carried out in accordance with the

permit and on completion of the construction it would be well

within the permissible sanction covered by Ext.P1.

7. Heard both sides. Ext.R3(c) report of the Engineer would

show that the construction carried out can be regularised only

if it is modified in tune with the specification in the plan.

Regarding the crack on the walls as well as the proximity of the

road no final conclusion is given in the report. In the

circumstances of the case, as it is seen that the matter is

pending before the R.D.O on the basis of Ext.R5(c) complaint, it

is only appropriate that the R.D.O takes a decision in the

matter at the earliest, in accordance with law with opportunity

of hearing to both sides, at any rate, within a period of three

months.

The Writ Petition is disposed of accordingly.

Sd/-

                                                         P.V.ASHA

rkc                                                       JUDGE
 WP(C).No.676 OF 2021(H)




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF PERMIT NO. E2-3139/2020 DATED
                     20/05/2020    ISSUED     BY     ETTUMANOOR
                     MUNICIPALITY.

EXHIBIT P2           TRUE COPY OF THE RETAIL INVOICE OF THE TATA

HITACHI MODEL ZX120-H HYDRAULIC BACKHOE WITH GP BUCKET EXCAVATOR MACHINE DATED 16.12.2020.

EXHIBIT P3 TRUE COPY OF THE STOP MEMO/ORDER SERVED ON THE PETITIONER BY THE 4TH RESPONDENT DATED 29/12/2020.

EXHIBIT P4 TRUE COPY OF THE NOTICE AFFIXED ON THE TATA HITACHI MODEL ZX120-H HYDRAULIC BACKHOE WITH GP BUCKET BY THE 4TH RESPONDENT VILLAGE OFFICER DATED 29/12/2020.

EXHIBIT P5 PHOTOGRAPHS OF THE NOTICE AFFIXED ON THE TATA HITACHI MODEL ZX120-H HYDRAULIC BACKHOE BY THE 4TH RESPONDENT.

EXHIBIT P6 PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER AND THE PRESENT CONDITION OF THE WELL.

EXHIBIT P7 THE TRUE COPY OF THE REPLY DATED 31/12/2020 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE COMPLAINT FILED BEFORE 3RD RESPONDENT TAHSILDAR KOTTAYAM DATED 05/01/2021.

EXHIBIT P9 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DISTRICT COLLECTOR DATED 06/01/2021.

EXHIBIT P10          TRUE COPY OF THE PROCEEDINGS       OF   THE
                     MUNICIPALITY DATED 21.1.2021

EXHIBIT P11          TRUE COPY OF THE LETTER DATED 21.1.2021
                     ISSUED    BY    THE ASSISTANT ENGINEER,

ETTUMANOOR MUNICIPALITY TO THE VILLAGE OFFICER PEROOR.

WP(C).No.676 OF 2021(H)

RESPONDENTS' EXHIBITS

ANNX.R3A TRUE COPY OF THE LETTER ISSUED BY THE VILLAGE OFFICER TO THE STATION HOUSE OFFICER, ETTUMANOOR DT.29.12.2020

ANNX.R3B TRUE COPY OF THE LETTER DT.13.01.2021

ANNX.R3C TRUE COPY OF THE LETTER SUBMITTED BY THE ASST. ENGINEER, ETTUMANOOR MUNICIPALITY DT.21.01.2021