Kerala High Court
Johny Sebastian vs The Manjalloor Grama Panchayath on 3 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 17111 OF 2022
PETITIONER:
JOHNY SEBASTIAN,
AGED 60 YEARS,
KAPPALUMAKKAL HOUSE, VADAKODE P.O., VAZHAKKULAM,
MUVATTUPUZHA, PIN-686 670.
BY ADV GEORGEKUTTY MATHEW
RESPONDENTS:
1 THE MANJALLOOR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, VAZHAKKULAM P.O.,
ERNAKULAM DISTRICT, PIN-686 670.
2 THE SECRETARY, THE MANJALLOOR GRAMA PANCHAYATH,
VAZHAKKULAM P.O., ERNAKULAM DISTRICT,
PIN-686 670.
3 THE KERALA WATER AUTHORITY,
REPRESENTED BY ITS EXECUTIVE ENGINEER, P H
DIVISION, MUVATTUPUZHA, ERNAKULAM DISTRICT,
PIN-686 661.
4 T.L.GEORGE,
THOTTUMANIKKAL HOUSE, VAZHAKKULAM P.O.,
ERNAKULAM DISTRICT, PIN-686 670.
SRI.G.BHAGAVATH SINGH
SMT.SURYA BINOY B, SR.GOVERNMENT PLEADER
SRI.V.V.JOSHI, SC, KWA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 17111 OF 2022 2
JUDGMENT
Dated this the 3rd day of June, 2022
The petitioner is before this Court challenging Ext.P9 order of
the Tribunal for Local Self Government Institutions,
Thiruvananthapuram, passed in I.A. No.763 of 2022 in Revision
Petition No.46 of 2022. The petitioner states that the 4 th respondent
is conducting quarrying operations in Manjalloor Panchayat. There
is a water tank and pump house at a distance less than 500 Metres.
from the quarry of the 4th respondent. The functioning of the quarry
is likely to cause damage to the water reservoirs on account of the
blasting in the quarry. If the huge reservoirs happened to collapse,
the source of drinking water to the petitioner and a large number of
people residing in the nearby area will be lost. It would cause
damage to the nearby residential houses also.
2. Taking into consideration these aspects, Manjalloor Grama
Panchayat took Ext.P6 decision to stop the functioning of the
quarry. Aggrieved by Ext.P6, the 4 th respondent approached the
Tribunal for Local Self Government Institutions,
Thiruvananthapuram, filing Revision Petition No.46 of 2022. The
Tribunal, there upon, passed Ext.P9 order. The Tribunal found that
the 4th respondent, who approached the Tribunal, has succeeded in
establishing a prima facie case and is entailed to get a stay order
as prayed for. The Tribunal, there upon, stayed the order of the
Grama Panchayat until further orders, on 16.05.2022.
3. The learned counsel for the petitioner urged that the
Tribunal has passed Ext.P9 order based on Ext.P8 communication
of the Executive Engineer of the Kerala Water Authority addressed
to the Chairman of the DEAC. Ext.P8 communication and the
contents therein are incorrect and unsustainable. According to the
petitioner, Ext.P8 adverted to an old tank, which was already in
existence. The Tribunal has not taken into account the existence of
Ext.P1 tank, which is under threat. The learned counsel for the
petitioner further argued that for operating a quarry in a place near
any water sources, an NOC under Section 40(2) of the Kerala
Irrigation and Water Conservation Act, 2003 is required. Admittedly,
neither the Irrigation Department nor the Kerala Water Authority has
issued any NOC to the petitioner for the functioning of the quarry. In
the circumstances, unless the 4th respondent is restrained from
functioning the quarry by appropriate interim/final orders of this
Court, the petitioner as well as the public at large will be put to
untold hardship and damage.
4. The learned counsel for the 4th respondent submitted that
the new water tank has been constructed in the same area and the
same plot, where there was a water tank in existence. Before
granting permission, the Ministry of Environment and Forests call for
reports from various authorities. The Executive Engineer of the
Kerala Water Authority submitted a report that a tank is existing
there and even though the quarry is functioning, no damage has
been caused to the water sources so far. The Executive Engineer
further submitted that the measurement of areal distance from the
quarry to the water tank is a difficult process and at any rate, at
least there is a distance of 500 Metres. The learned counsel for the
4th respondent further pointed out that though the Kerala Irrigation
and Water Conservation Act contemplates a sanction, Rules are not
framed under the Act and there is no statutory format for making an
application. In the circumstances, if this Court mandates that a
sanction is required, then the petitioner will not be able to run a
quarry, for which all other statutory authorities have given permit.
5. The learned Standing Counsel for the 2 nd respondent-
Panchayat contested the writ petition. The 2 nd respondent
submitted that the functioning of the quarry is dangerous to the
newly constructed water tank and the quarry will result in
environmental pollution also. Therefore, the Committee has
decided to require the 4th respondent to stop the functioning of the
quarry for the time being.
6. I have heard the learned counsel for the petitioner, the
learned Standing Counsel for respondents 1 and 2, the learned
Standing Counsel for the 3rd respondent-Kerala Water Authority and
the learned counsel for the 4th respondent.
7. The fact remains that against the decision taken by the
Manjalloor Grama Panchayat, the 4th respondent has approached
the Tribunal for Local Self Government Institutions,
Thiruvananthapuram. The 4th respondent moved I.A. No.763 of
2022 for staying the operation of the impugned order. The Tribunal
considered the Revision Petition and found it fit to grant an interim
stay.
8. The contention of the petitioner is that the petitioner and
the 1st respondent-Panchayat were not heard and they had no
opportunity to bring true and correct facts before the notice of the
Tribunal. Had the Tribunal aware of the correct facts, the Tribunal
would not have passed Ext.P9 order. Ext.P9 order is a threat to the
life of the residents in the area. It affects the fundamental rights of
the petitioner. Therefore, according to the petitioner, this is a fit
case for interference under Article 226 of the Constitution of India.
9. This Court cannot agree with such proposition. The
Tribunal has passed Ext.P9 interim order. Ext.P9 interim order was
passed ex parte the petitioner and the Panchayat. If the petitioner
has a grievance against the interim order, remedy available to the
petitioner is to approach the Tribunal itself, filing an application to
vacate the interim order. The action of the petitioner in rushing to
this Court when an alternate remedy is available, cannot be
justified. In the circumstances, the relief sought for by the petitioner
cannot be entertained.
The writ petition is, however, disposed of permitting the
petitioner to move the Tribunal by filing appropriate application for
vacating Ext.P9 order. If the petitioner makes such an application,
this Court is sure that the Tribunal will consider the application and
pass expeditious orders thereon in accordance with law, taking into
consideration the urgency pointed out by the petitioner.
Sd/-
N. NAGARESH, JUDGE
DSV/04.06.2022
APPENDIX OF WP(C) 17111/2022
PETITIONER'S EXHIBITS :
Exhibit P1 TRUE PHOTOGRAPH OF WATER TANK.
Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED
24.05.2022 ISSUED BY THE PRESIDENT OF
THE RESPONDENT PANCHAYATH.
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
02.05.2022 FILED BY THE PETITIONER AND
OTHERS BEFORE THE RESPONDENT
PANCHAYATH.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
25.04.2022 FILED BY THE PETITIONER AND
OTHERS BEFORE THE RESPONDENT
PANCHAYATH.
Exhibit P5 TRUE COPY OF THE APPEAL DATED
04.05.2022 FILED UNDER SECTION 276(1)
OF THE KERALA PANCHAYATH RAJ ACT.
Exhibit P6 TRUE COPY OF THE DECISION DATED
05.05.2022 TAKEN BY THE COMMITTEE OF
THE RESPONDENT PANCHAYATH.
Exhibit P7 TRUE COPY OF THE REVISION NO.46/2022
DATED 16.05.2022 IN THE FILE OF
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS WITHOUT EXHIBITS.
Exhibit P8 TRUE COPY OF THE LETTER DATED
08.01.2018 OF 3RD RESPONDENT TO THE
CHAIRMAN OF DISTRICT ENVIRONMENTAL
IMPACT AUTHORITY.
Exhibit P9 TRUE COPY OF THE ORDER IN
I.A.NO.763/2022 IN REVISION PETITION
NO.46/2022 DATED 16.05.2022 PASSED BY
THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS.
RESPONDENTS' EXHIBITS: NIL
