Anu V.Dev vs The State Of Kerala
2021 Latest Caselaw 18489 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                        WP(C) NO. 1668 OF 2020
PETITIONER:

          ANU V.DEV, ANU BHAVAN, KOONAMKARA P.O, RANNI-PERUNAD,
          PATHANAMTHITTA, PIN 689 711.

          BY ADVS.
          GEORGEKUTTY MATHEW
          SRI.JAMES KURIAN
          SHRI.LIJO JAMES


RESPONDENTS:

    1     THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
          REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695 001.

    2     THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY,
          REPRESENTED BY ITS MEMBER SECRETARY, 3RD FLOOR,
          K.S.R.T.C COMPLEX, THAMPANOOR, THIRUVANANTHAPURAM,
          PIN - 695 141.

    3     THE DISTRICT COLLECTOR,
          COLLECTORATE, PATHANAMTHITTA, PIN - 689 645.

    4     THE GEOLOGIST, OFFICE OF MINING AND GEOLOGY,
          ARANMULA P.O, PATHANAMTHITTA, PIN - 689 533.

    5     THE DIVISIONAL FOREST OFFICER,
          RANNI FOREST DIVISION, RANNI, PIN - 689 674.

    6     THE VILLAGE OFFICER,
          PERUNAD VILLAGE, RANNI P.O, PIN - 689 711.

    7     THE RANNI-PRUNAD GRAMA PANCHAYAT,
          REPRESENTED BY ITS SECRETARY, PERUNAD P.O, RANNI,
          PATHANAMTHITTA, PIN -689 711.
 WP(C) Nos. 1668 & 8668 OF 2020
                                -2-



    8       AKHIL DIVAKAR, NIRAPURAKKAL HOUSE, KOONAMKARA
            P.O, RANNI-PERUNAD, PATHANAMTHITTA, PIN -689 711.

            BY ADVS. SRI.S.SAJU
            SRI.A.V.SAJAN
            SMT.NEELANJANA NAIR
            SRI.ASHWIN SETHUMADHAVAN, SR.GP
            SRI.M.P.SREEKRISHNAN, SC


     THIS     WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 08.09.2021, ALONG WITH WP(C).8668/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos. 1668 & 8668 OF 2020
                                     -3-



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
  WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA,
                                    1943
                        WP(C) NO. 8668 OF 2020
PETITIONER:

               AKHIL DIVAKAR, AGED 24 YEARS,
               S/O. D. SAJI, NIRAPPURACKAL HOUSE,
               KOONAMKARA P.O., PATHANAMTHITTA DISTRICT-689711.

               BY ADVS.S.SAJU
               SRI.A.V.SAJAN
               SMT.NEELANJANA NAIR


RESPONDENTS:

    1          THE DISTRICT GEOLOGIST, DISTRICT OFFICE,
               DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL
               STATION, PATHANAMTHITTA, PIN -689533.

    2          RANNI PERUNAD GRAMA PANCHAYATH,
               REPRESENTED BY ITS SECRETARY, RANNI PERUNAD P.O.,
               PATHANAMTHITTA DISTRICT-689711.

    3          THE ENVIRONMENTAL ENGINEER,
               KERALA STATE POLLUTION CONTROL BOARD,
               DISTRICT OFFICE, PATHANAMTHITTA-689 645.

               BY ADVS.SRI.M.P.SREEKRISHNAN, SC
               SRI.ASHWIN SETHUMADHAVAN, SR.GP


        THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 08.09.2021, ALONG WITH WP(C).1668/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos. 1668 & 8668 OF 2020
                                     -4-

                                 JUDGMENT

[WP(C) Nos.1668/2020, 8668/2020]

I am considering these two writ petitions

together on account of the analogous factual

circumstances urged in them and because the

reliefs sought for are opposing each other.

2. W.P.(C)No.1668 of 2020 has been filed by

Sri.Anu V.Dev, alleging that the 8th respondent -

Sri.Akhil Divakar, is illegally developing certain

extents of land enjoying the exemption under

Section 81 of the Kerala Land Reforms Act, 1963,

without obtaining necessary clearances from the

Government.

3. Sri.Anu V.Dev alleges that Sri.Akhil

Divakar is in possession of 1.40 Acres of land and

that he managed to create a new 'Thandaper'

account in his name, though the property was part

of a 'AVT Plantation'. He says that the mischief

in this case is evident from the fact that, in WP(C) Nos. 1668 & 8668 OF 2020

Ext.P1 tax receipt, the nature of the tenor of the

land is not stated and that this has now been

taken illegal advantage by Sri.Akhil Divakar, by

establishing a 'Hot Mix Plant', without obtaining

environmental clearance from the 2nd respondent -

State Environmental Impact Assessment Authority

(SEIAA).

4. Sri.Anu V.Dev contends that actions of

Sri.Akhil Divakar are egregiously improper and

therefore, prays that the competent respondent be

directed to ensure that he does not conduct any

illegal activity in the land in question and to

take necessary action against him for having

established a "Hot Tar Mix Plant", without

obtaining necessary clearances and permissions.

5. While so, it transpires that the District

Geologist of Pathanamthitta, within whose

jurisdiction the area in question situated, issued

a stop memo against Sri.Akhil Divakar on WP(C) Nos. 1668 & 8668 OF 2020

29.01.2020, interdicting continuation of his

activity in the property on the ground that

enquiries have revealed that he has encroached

into excess land than what had been granted to him

under the Development Permit by the Secretary of

the Ranni-Perunnad Grama Panchayat. This stop memo

has been challenged by Sri.Akhil Divakar in W.P.

(C)No.8668 of 2020, asserting that the factual

statements therein are contrary to truth, and that

he has not committed any act in violation of the

Development Permit.

6. I have heard Sri.James Kurian - learned

counsel appearing for Sri.Anu V.Dev (petitioner in

W.P.(C)No.1668 of 2020); Sri.Saju S.Nair - learned

counsel for Sri.Akhil Divakar (petitioner in W.P.

(C)No.8668 of 2020 and the 8th respondent in W.P.

(C)No.1668 of 2020); Sri.M.P.Sreekrishnan -

learned Standing Counsel for the SEIAA and the

learned Senior Government Pleader - Sri.Ashwin WP(C) Nos. 1668 & 8668 OF 2020

Sethumadhavan appearing for the official

respondents.

7. As is clear from the afore narration of

facts, the two broad questions in this case are

whether the petitioner has encroached upon lands

more than what had been permitted to him by the

Secretary of the Grama Panchayat for development;

and whether establishment of a "Hot Mix Plant" by

him in the said property contravenes the

provisions of the Land Reforms Act, on the ground

that it enjoys an exemption under Section 81 of

the said Act.

8. Sri.Saju S.Nair - learned counsel

appearing for Akhil Divakar, submits that his

client has done no wrong; and that the statements

in Ext.P5 stop memo in W.P.(C)No.8662 of 2020, are

all incorrect and without basis. He says that, in

fact, his client has already preferred Ext.P6

explanation to the same and alleges that it has WP(C) Nos. 1668 & 8668 OF 2020

not yet been considered by the Geologist and,

therefore, prays that he be directed to do so.

9. After saying as afore, Sri.Saju S.Nair

then submitted that, with respect to the excess

area where his client is alleged to have caused

developmental activities, same has been

regularized by a fresh order bearing No.A369/2020

dated 15.02.2020, by the Secretary of Ranni -

Perunnad Grama Panchayat and asserts that,

therefore, the edifice of Ext.P5 has now been

obliterated. He, therefore, prays that W.P.

(C)No.8668 of 2020 be allowed and W.P.(C)No.1668

of 2020 be dismissed.

10. Sri.James Kurian - learned counsel

appearing for Sri.Anu V.Dev, on the contrary,

submitted that even the submissions of Sri.Saju

S.Nair as afore would demonstrate lack of respect

of Sri.Akhil Divakar towards law. He submitted

that not only has he now conceded that he is WP(C) Nos. 1668 & 8668 OF 2020

conducting a "Hot Tar Mixing Plant" in the area in

question, but also that he has obtained

regularization for his illegal action, after

having trespassed into excess areas. Sri.James

Kurian, therefore, prayed that Sri.Akhhil Divakar

be restrained from conducting any further

activities in the property in question and that

the competent respondent be directed to take

necessary action against him, both under the

provisions of the Land Reforms Act as also under

the Land Assignment Act and Rules.

11. Sri.M.P.Sreekrishnan - learned Standing

Counsel for the SEIAA, submitted that for anyone

to establish and conduct a "Hot Tar Mix Plant",

necessary permissions under 4b(ii) of the Schedule

to the EIA notification 2006 is necessary; but

added that he is not aware as to the real nature

of Sri.Akhil Divakar's activity. He further

submitted that if there is any violation by WP(C) Nos. 1668 & 8668 OF 2020

Sri.Akhil Divakar with respect to the

Environmental Protection Act, it is the District

Collector who is competent to make an enquiry and

take apposite action under Sections 15 and 19

thereof; and added that his client does not have

any power to make a roving enquiry. He, therefore,

prayed that this Court may not issue any further

orders against his client.

12. The learned Senior Government Pleader -

Sri.Ashwin Sethumadhavan, submitted that, as is

evident from Ext.P5 in W.P.(C)No.8668 of 2020,

very serious allegations have been impelled by the

Geologist against Sri.Akhil Divakar, that he has

trespassed into the areas which were not covered

by the Development Permit issued by the Panchayat.

He submitted that, pending Ext.P5, if the

Secretary of the Grama Panchayat has modified the

Development permit, then it is a matter of great

seriousness; and thus prayed that the Geologist be WP(C) Nos. 1668 & 8668 OF 2020

allowed to take necessary action, after

considering Ext.P6 explanation of Sri.Akhil

Divakar, based on the Stop Memo. He further prayed

that the Geologist be allowed to hear the

petitioner as well as the Secretary of Grama

Panchayat for this purpose.

13. The learned Senior Government Pleader,

thereafter, submitted that since Sri.Anu.V.Dev -

the petitioner in W.P.(C)No.1668 of 2020 - makes

an allegation that establishment of a "Hot Tar Mix

Plant" in the area in question in violation of the

Land Reforms Act, as also of the Environmental

Protection Act, necessary liberty may be reserved

to the District Collector, Pathanamthitta to make

an enquiry into this, if so required, after

causing necessary inspections. He submitted that

if this liberty is granted, then the District

Collector will take necessary action without any

avoidable delay.

WP(C) Nos. 1668 & 8668 OF 2020

14. In reply, Sri.Saju S.Nair submitted that

the afore imputations made against his client by

the various respondents are wholly untenable

because, as is evident from Ext.P11 - produced in

W.P.(C)No.8668 of 2020, the Kerala State Pollution

Control Board has already granted his client's

consent to establish a "Temporary Hot Mix Plant"

in the property in question. He submitted that, in

any event of the matter, establishment of a "Hot

Mix Plant" does not require any permission under

the provisions of Section 233B of the Kerala

Panchayat Raj Act, 1994 and thus asserted that

entire proceedings now initiated against him are

without any basis. He then added that, as is

luculent from the pleadings on record filed by the

District Collector, the area in question is not

covered by any exemption under Section 81 of the

Kerala Land Reforms Act; and, therefore, prayed

that the afore request of the learned Senior WP(C) Nos. 1668 & 8668 OF 2020

Government Pleader be not acceded to. He thus

reiteratingly pleaded that W.P.(C)No.8668 of 2020

be allowed as prayed for.

15. I have evaluated the afore submissions of

the rival parties very carefully.

16. It is indubitable from Ext.P5 in W.P.

(C)No.8668 of 2020, that petitioner is alleged to

have encroached into the areas in excess of what

was permitted under the Development Permit earlier

issued to him; and obviously, therefore, it is now

up to the Geologist to take a decision whether the

steps initiated in Ext.P5 Stop Memo should

continue or whether it should be vacated after

evaluating the petitioner's explanation, namely

Ext.P6 in the said writ petition. While doing so,

the Geologist must certainly hear the petitioner,

as also the Secretary of the Grama Panchayat,

along with Sri.Anu.V.Devi - the petitioner in W.P.

(C)No.1668 of 2020.

WP(C) Nos. 1668 & 8668 OF 2020

17. That said, one aspect having some

importance in this case is the submission of

Sri.Saju S.Nair that even after Ext.P5 Stop Memo

has been issued by the Geologist in W.P.(C)No.8668

of 2020, the Secretary of the Panchayat has

extended the area in the Development Permit. This

is certainly a matter that the Geologist must

consider very carefully, while completing the

afore directed exercise. It is so ordered.

18. That said, since, Sri.Anu V.Dev, the

petitioner in W.P.(C)No.1668 of 2020, has a

specific case that the area in question on which

the "Hot Mix Plant" has been established by

Sri.Akhil Divakar, is covered by the exemption

under Section 81 of the Kerala land Reforms Act, I

am certain that he must be given an opportunity to

approach the District collector with his

objections; in which event, said Authority will

consider the same, after affording an opportunity WP(C) Nos. 1668 & 8668 OF 2020

of being heard to both sides and after obtaining

necessary inputs from all relevant Authorities.

19. Resultantly, I leave liberty to the

petitioner in W.P.(C)No.1668 of 2020 to approach

the District Collector with a proper

representation within a period of one week from

the date of receipt of a copy of this judgment;

and if this is done, said Authority will

immediately conduct an enquiry, after making

necessary inspections into the property in

question and thus issue appropriate orders

thereon, as expeditiously as is possible.

20. Needless to say, until such time as Ext.P5

Stop Memo is vacated or modified through a process

of law, Sri.Akhil Divakar will abide by the same

and will not conduct any activity in the property

in question in contravention of same.

21. The District Collector shall also

certainly consider the representation of Sri.Anu WP(C) Nos. 1668 & 8668 OF 2020

V.Dev, if it is made in terms of the afore liberty

reserved to him, from the angle of the

Environmental Protection Act, as also the

Environmental Impact Assessment notification,

2006, after carefully examining the nature of the

activity being carried out by Sri.Akhil Divakar in

the property in question.

These writ petitions are thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) Nos. 1668 & 8668 OF 2020

APPENDIX OF WP(C) 1668/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT OF THE LAND OF THE 8TH RESPONDENT DATED 22-04-

EXHIBIT P2 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 06-11-2019 ISSUED BY THE SECRETARY OF THE 7TH RESPONDENT PANCHAYAT FOR ESTABLISHING A HOT MIX PLANT

EXHIBIT P3 TRUE COPY OF THE PETITION DATED 16-01-

2020 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DISTRICT COLLECTOR WITH COPY TO THE VILLAGE OFFICER.

EXHIBIT P4 TRUE COPY OF THE PETITION DATED 16-01-

2020 FILED BEFORE THE 4TH RESPONDENT.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE WP(C) Nos. 1668 & 8668 OF 2020

APPENDIX OF WP(C) 8668/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 22/04/2019 WITH REGARD TO THE PETITIONER'S PROPERTY IN SURVEY NO.922/1B IF PERUNAD VILLAGE.

EXHIBIT P2 TRUE COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE RANNI PERUNNAD GRAMA PANCHAYATH REF. NO.A3-BA(309415)/2019 DATED 05/10/2019 TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 2ND RESPONDENT PANCHAYATH AFTER RECEIVING THE APPLICATION OF THE PETITIONER DATED 04/01/2020.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT DATED 27/01/2020.

EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE CUM STOP MEMO ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 29/01/2020.

EXHIBIT P6 TRUE COPY OF THE WRITTEN REPRESENTATION OF THE PETITIONER DATED 03/02/2020 SUBMITTED TO THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT ALONG WITH REVISED PLAN DATED 15/02/2020.

EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.PCB/HO/CIRCULAR/2015(4) OF THE POLLUTION CONTROL BOARD DATED 01/10/2015.

EXHIBIT P9 TRUE COPY OF THE DRAFT MINUTES OF THE MEETING HELD BY THE CHIEF SECRETARY TO WP(C) Nos. 1668 & 8668 OF 2020

DISCUSS THE ISSUES IN RESPECT OF INSTALLING OF HOT MIX PLANT DATED 15/04/2016.

EXHIBIT P10 TRUE COPY OF THE CIRCULAR NUMBERED PCB/NORMS/28/2012 ISSUED BY THE POLLUTION CONTROL BOARD DATED 07/07/2016.

EXHIBIT P11 TRUE COPY OF THE PERMIT CONSENT TO ESTABLISH ISSUED FORM KERALA STATE POLLUTION CONTROL BOARD DATED 03/01/2020 TO THE PETITIONER.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE