Jacob Philip vs The District Collector, ...
2022 Latest Caselaw 1367 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
         TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                         W.P.(C) NO.10849 OF 2012
PETITIONERS:

     1       JACOB PHILIP,
             AGED 54 YEARS, S/O.PHILIPS,
             ERAPALACKAL HOUSE,
             VETTIPRAM, PATHANAMTHITTA,
             REPRESENTED BY POWER OF ATTORNEY HOLDER AND MOTHER
             KUNJAMMA PHILIP,
             AGED 80 YEARS, W/O.PHILIPS,
             ERAPALACKAL HOUSE,
             VETTIPRAM, PATHANAMTHITTA.

     2       JOHNY PHILIPS,
             AGED 51 YEARS, S/O PHILIPS,
             ERAPALACKAL HOUSE,
             VETTIPRAM, PATHANAMTHITTA.

             BY ADV SRI.S.SHANAVAS KHAN


RESPONDENTS:

     1       THE DISTRICT COLLECTOR,
             PATHANAMTHITTA-689 645.

     2       THE VILLAGE OFFICER,
             PATHANAMTHITTA-689 645.

             SRI. JOBEY JOSEPH, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.10849 of 2012
                                   -2-

                      P.V.KUNHIKRISHNAN, J.
             -----------------------------------------------
                     W.P.(C) No.10849 of 2012
             -----------------------------------------------
             Dated this the 1st day of February, 2022

                              JUDGMENT

The above writ petition is filed with the following prayers:-

I) Call for the records leading to Exts.P3, P4, P7, P9 and P10 and quash the same by issuing a Writ of Certiorari.

ii) Issue a writ of mandamus or any other writ order or direction directing respondent No.2 to consider Ext.P5 objection and to withdraw Exts.P3 and P4 stop memo forthwith.

2. The 2nd respondent issued Ext.P3 prohibitory order in

which it is stated that the petitioners illegally taken ordinary earth

which will affect the environment and there is a direction to

restore the same at the place from where it is taken. Ext.P4 is

also a similar order passed by the 2nd respondent. The petitioners

submitted Ext.P5 explanation to the 2 nd respondent. This Court

directed the 2nd respondent to consider the same as per Ext.P6

judgment. But the 2nd respondent again passed Exts.P7, P9 and

P10 orders. It is the definite case of the petitioners that there is

no transportation of the earth as alleged and the petitioners have W.P.(C) No.10849 of 2012

only levelled their land for making certain constructions. The

petitioners also rely Ext.P11 Government order. Hence this writ

petition.

3. Heard the counsel for the petitioners and the

Government Pleader.

4. The counsel for the petitioners reiterated his

contention. The counsel submits that in the light of Ext.P11, there

is no violation from the side of the petitioners. The counsel for the

petitioners also submitted that now a building is already

constructed in the land and the petitioners removed the original

earth only for the purpose of the above construction.

5. The Government Pleader, on the other hand, submitted

that the petitioners acted in violation of the existing rules and that

is why the orders were passed.

6. I perused Exts.P7 to P10. I also perused Ext.P11 order.

After going through Ext.P11 order passed by the Government, I

think the 2nd respondent has to reconsider the matter especially

when the petitioners have got a definite case that they were

levelling their land only for the purpose of constructing a

residential house. According to me, this matter is to be W.P.(C) No.10849 of 2012

reconsidered in the light of Ext.P11.

Therefore, this writ petition is allowed in the following

manner:-

i) Exts.P3, P4, P7, P9 and P10 are quashed.

ii) The 2nd respondent is directed to reconsider the matter in the light of Ext.P11 Government order.

iii) Before passing final orders, the 2nd respondent will give an opportunity of hearing to the petitioners.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

bpr W.P.(C) No.10849 of 2012

APPENDIX PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 03.12.2009 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE FIRST PETITIONER.

EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 24.02.2012 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE 2ND PETITIONER.

EXHIBIT P3 TRUE COPY OF THE STOP MEMO DATED 28.02.2012 ISSUED BY THE 2ND RESPONDENT TO FIRST PETITIONER.

EXHIBIT P4 TRUE COPY OF THE STOP MEMO DATED 28.02.2012 ISSUED BY THE 2ND RESPONDENT TO 2ND PETITIONER.

EXHIBIT P5 TRUE COPY OF THE OBJECTION DATED 03.03.2012 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 08.03.2012 IN W.P.(C) NO.5738/2012 OF THIS HON'BLE COURT.

EXHIBIT P7 TRUE COPY OF THE PROHIBITORY ORDER DATED 08.03.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE NOTICE NO.220/12 DATED 04.04.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE NOTICE NO.227/12 DATED 13.04.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS.

EXHIBIT P10 TRUE COPY OF THE YET ANOTHER NOTICE NO.232/12 DATED 13.04.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETIITONERS. EXHIBIT P11 TRUE COPY OF THE G.O.NO.85/2010 (IND.) DATED 05.04.2010.