Sajitha vs The District Geologist
2021 Latest Caselaw 20400 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                        WP(C) NO. 9034 OF 2019
PETITIONER:

            SAJITHA,
            AGED 44 YEARS,
            W/O.CLIMIS, MUNDAMPAL HOUSE,
            ALOOR P.O., THRISSUR DISTRICT.

            BY ADV K.RAKESH


RESPONDENTS:

    1       THE DISTRICT GEOLOGIST,
            DEPARTMENT OF MINING AND GEOLOGY,
            CHEMBUKAVU,
            THRISSUR DISTRICT, PIN-680020

    2       THE VILLAGE OFFICER,
            ALOOR VILLAGE,
            THRISSUR DISTRICT, PIN-680602.

  ADDL.3    VIJAYAN,
            S/O.VELAYUDHAN,
            AGE NOT KNOWN, KANIYATHU HOUSE,
            AALOOR VILLAGE, AALOOR P.O.,
            THRISSUR DISTRICT PIN -680683.

            (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 18.07.2019 IN
            IA NO. 3/2019).

            BY ADV SRI.VIPIN NARAYANAN SR. GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9034/2019

                                  2




                           JUDGMENT

Dated this the 1st day of October, 2021

The petitioner, who is a resident of Aloor Village of

Kunnamkulam Taluk in Thrissur District seeks to quash

Ext.P4 Stop Memo issued by the Village Officer and to direct

the 1st respondent to extend the validity of Ext.P3 by one

month to enable the petitioner to complete the activity

permitted therein.

2. The petitioner states that in the flood occurred

during the year 2019-20, the land from the nearby hillock

slided down to the property of the petitioner. And an open

well of the petitioner was filled up, apart from the other areas,

with the red earth. The source of drinking water of the

petitioner was thereby contaminated. The petitioner made an WP(C).No.9034/2019

application to the 1st respondent-District Geologist seeking

permission to remove the earth deposited in the property and

in the well. The District Senior Geologist granted Ext.P3

permission to remove 1125 Cubic metres of red earth, which

fell in the compound and the well of the petitioner. When the

petitioner started to remove the red earth, the Village Officer

issued Ext.P4 Stop Memo. In Ext.P4, it was stated that

removal of red earth by the petitioner will adversely affect the

local residents and the environment. The action of the

petitioner was treated by the Village Officer as violation of

Condition No.4 in Ext.P3. It is challenging Ext.P4 Stop Memo

that the petitioner has approached this Court.

3. The learned counsel for the petitioner submitted

that the only source of drinking water available to the petitioner

is the open well situated in the property. The said well was

filled up with red earth admittedly. Unless, the Stop Memo is

cancelled and the petitioner is permitted to remove the red

earth from open well, the petitioner and his family will be put to WP(C).No.9034/2019

untold hardship.

4. The 2nd respondent filed a statement opposing the

writ petition. The 2nd respondent stated that the petitioner built

her house after removing soil from her property that caused to

form a deep valley between her property and the land of

Ponmala Devaswam. In the recent floods, due to heavy rains

the land from the steep valley slided down in the property of

the petitioner. A portion of the property of the petitioner as well

as the open well were filled with soil. When the petitioner was

removing red earth form his property, complaints were

received from Ponmala Devaswam Committee President

alleging that removing and transporting soil from underneath

Ponmala Devaswam would endanger the nature and it would

create hazards to people in the nearby area. Therefore based

on Annexure R2(a) complaint that a Stop Memo was issued.

The learned Government Pleader asserted that removal of the

red earth from the low lying land of the petitioner would

damage the environment.

WP(C).No.9034/2019

5. In the statement, the 1st respondent pointed out that

on site inspection the 1st respondent was convinced that the

ordinary earth deposited in and around the open well has to be

removed for making the well useful as a source of drinking

water. For the said purpose of making the well useful as

source of drinking water, 240 Cubic metres of ordinary earth

has to be further removed. The petitioner has not conducted

any mining activity.

6. I have heard the learned counsel for the petitioner

and the learned Government Pleader representing the

respondents.

7. From the pleadings and arguments raised in the

case, it is evident that the petitioner was earlier granted Ext.P3

permission to remove 1125 Cubic Metres of red earth from the

open well as well as around the said well. However, the

complaint was that if the red earth is removed from the land it

will affect the environment and may cause further land slide.

But it is the case of the petitioner that his intention is only to WP(C).No.9034/2019

make available drinking water by cleaning the well for which

removal of red earth is necessary. Knowing this position, the

1st respondent has also favoured the petitioner and has stated

that 240 Cubic Metres of ordinary earth has to be removed

from the well.

8. In view of the stand taken by the 1st respondent,

who has initially permitted removal of 1125 Cubic Metres of

earth and has now stated that removal of 240 Cubic Meters of

ordinary earth is sufficient for cleaning the well, this Court is of

the opinion that the petitioner should be permitted to remove

240 Cubic Metres of ordinary earth from within the open well of

the petitioner.

9. In such circumstances, the writ petition is disposed

of with the following directions:

10. The petitioner should file an undertaking before the

1st respondent as well as the 2nd respondent, undertaking that

he will remove red earth only from within the open well, not

exceeding 240 Cubic Metres. After submitting the WP(C).No.9034/2019

undertaking, the petitioner will be at liberty to remove the red

earth from the open well alone. The quantity of the red earth

to be removed from the open well shall not exceed more than

240 Cubic Metres. The respondents 1 and 2 will be at liberty

to make necessary inspection of the activities of the petitioner.

If the petitioner submits an application for extension

of the period of transit passes or for issuance of fresh transit

passes for the aforesaid purpose, the 1 st respondent shall

issue the same in accordance with law.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.9034/2019

APPENDIX OF WP(C) 9034/2019

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT DEED DATED, 6/8/1997 IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE MAHAZAR DATED, 13/2/2019 ALONG WITH A REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE FIRST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 8/3/2019 ISSUED BY THE FIRST RESPONDENT AS NO.

596/18-19/566/OE/C2/TDO/19.

EXHIBIT P4 TRUE COPY OF THE STOP MEMO DATED, 13/3/2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTY, WHERE THE WORK HAS TO BE DONE

RESPONDENTS' EXHIBITS:

ANNEXURE R1(a) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE LAND.

   ANNEXURE R2(a)       TRUE COPY OF THE PETITION RECEIVED ON
                        12.03.2019   FROM    PONMALA    DEVASWAM
                        COMMITTEE PRESIDENT
   ANNEXURE R2(b)       TRUE COPY OF THE MASS PETITION WITH

ENDORSEMENT FROM TAHSILDAR, KUNNAMKULAM DATED 26.03.2019