Sheela P. Baby vs Sajimon E.S
2022 Latest Caselaw 6446 Ker

Citation : 2022 Latest Caselaw 6446 Ker
Judgement Date : 8 June, 2022

Kerala High Court

Sheela P. Baby vs Sajimon E.S on 8 June, 2022

WP(C) NO. 10578 OF 2022            1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
                          WP(C) NO. 10578 OF 2022
PETITIONER/S:

               SHEELA P. BABY
               AGED 41 YEARS
               W/O. BINOY, PANDALIL HOUSE, KOOTHATTUKULAM P.O,
               ERNAKULAM

               BY ADV G.CHITRA



RESPONDENT/S:

      1        SAJIMON E.S.
               ILLIKAKUDIYIL HOUSE, KOOTHATTUKULAM P.O,
               MANGALATHUTHAZHAM, ERNAKULAM 686 662

      2        KOOTHATTUKULAM MUNICIPALITY
               KOOTHATTUKULAM P.O, MANGALATHUTHAZHAM, ERNAKULAM 686
               662 REPRESENTED BY SECRETARY

      3        GEOLOGY AND MINOR MINING INSPECTOR
               DEPARTMENT OF MINING AND GEOLOGY, ERNAKULAM 682 030

      4        DISTRICT COLLECTOR
               CIVIL STATION, KAKKANAD, ERNAKULAM 682 030

      5        STATION HOUSE OFFICER
               KOOTHATTUKULAM POLICE STATION, MUVATTUPUZHA,
               ETTUMANOOR ROAD, KOOTHATTUKULAM P.O, ERNAKULAM 686
               662

               BY ADVS.
               ALIAS M.CHERIAN,R1
               SHRI.K.S.ARUN KUMAR, SC, KOOTHATTUKULAM MUNICIPALITY
               ADVOCATE GENERAL OFFICE KERALA
               K.M.RAPHY
               NEENU ANNA BABU
 WP(C) NO. 10578 OF 2022                 2


               BRISTO S PARIYARAM
               AJAI ALIAS CHALAPPURAM
               SMT.VINEETHA B., SENIOR G.P.()



OTHER PRESENT:

               SMT.DEEPA NARAYANAN, SR.GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   08.06.2022,          THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 10578 OF 2022                    3


                           P.V.KUNHIKRISHNAN, J
                     --------------------------------------------
                         W.P.(C.) No. 10578 of 2022
                        --------------------------------------
                    Dated this the 8th day of June, 2022


                                     JUDGMENT

The above writ petition is filed with following prayers :

"i) To issue a writ of prohibition prohibiting the 1st respondent from carrying out any construction including blasting of rocks by using heavy explosives.

ii) To issue a writ of mandamus or any other appropriate writ, direction or order directing the official respondents take appropriate actions against the illegal quarrying conducting by the1st respondent in his plot adjoining the petitioner's plot and thereby safeguarding the house of the petitioner after considering Ext P3 to Ext P6, expeditiously, in the interest of justice.

iii) To issue any other appropriate writ, direction or order which this Hon'ble Court deem fit in the circumstances of the case." [SIC]

2. The petitioner is claims to be tailor by profession

and she had constructed a house under the scheme of PMAY

with plan and permit from the local authorities in the year

2008. The 1st respondent obtained building permit to construct

a house in his plot. It is the case of the petitioner that on

16.3.2022 in the guise of leveling of land and without

obtaining any permission from the geology and Mining

Department, he has started blasting of rocks with explosives.

It is the case of the petitioner that it causes much hardship to

the petitioner and also creating big cracks and damages to the

petitioner's house.

3. Heard the learned counsel for the petitioner and the

counsel appearing for the 1st respondent. I also heard the

counsel appearing for the 2nd respondent - Municipality. The

Government Pleader appeared for respondent Nos.3 to 5.

4. The learned counsel for the petitioner reiterated his

contentions in the writ petition. On the other hand, the learned

counsel appearing for the 1st respondent submitted that the

allegations in the writ petition are not correct and he was only

trying to level his land for the construction of his house. The

counsel submitted that if necessary he will get permission

from the Geology Department also and he will do the work

only after getting permission and license from all statutory

authorities. The Government Pleader takes me through the

report submitted by the Geology Department and submitted

that there is no permission from the Geology Department to

remove the ordinary earth.

5. This Court considered the contentions of the

petitioner and the respondent. When this writ petition came up

for consideration on 25.3.2022, this Court passed the following

order :

"Heard the learned counsel for the petitioner. In case illegal blasting is being carried out by the first respondent, without obtaining due permits, appropriate action shall be taken by the respondents, in accordance with law. Post on 28.3.2022"

6. Today, when the matter came up for consideration,

the counsel for the petitioner reiterated his contentions in the

writ petition. On the other hand, the counsel appearing for the

1st respondent submitted that he was only trying to level his

land and if necessary, permission will be obtained from the

statutory authorities. The Government Pleader takes me

through the report submitted by the 3 rd respondent. It will be

better to extract the relevant portion of the report.

"On removal of ordinary earth to a depth of 3 metre, the underlying rocks became exposed and the first respondent

started to extract them to facilitate the construction of his residence. He has used chemicals to extract the rocks. He has not used any explosives and hence the allegation of the petitioner that first respondent is using high power explosive for rock quarrying is false. Around 400MT of granite is seen extracted using chemical and have been broken into pieces and heaped in the property. The first respondent has not transported granite outside his property. The first respondent has excavated earth to a depth of 3 metre and hence he should construct retaining structures to protect the property of the petitioner.

It is humbly submitted that the first respondent ought to have obtained the permission of this respondent before extracting ordinary earth and granite from his property for construction purpose. He has thus violated Rules 14(2) and 106(1) of Kerala Minor Mineral Concession Rules, 2015 and Rules 25(1) and 26(1) of Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015."

7. In the light of the above report, without getting

permission from the authority concerned, the 1 st respondent

cannot remove ordinary earth and blasted rocks. In such

circumstances, the 1st respondent can do any activities in the

property to level his property only after getting sufficient

permission/license from the 3rd respondent. Hence, the interim

order can be retained and the writ petition can be closed.

Therefore, this writ petition is disposed of with the

following directions:

1) The interim order dated 25.3.2022 is retained and made

absolute.

2) The 1st respondent is free to approach the statutory

authorities for getting permission to level his land and if

any such application is received by the statutory

authority, the statutory authority will consider the same

and pass appropriate orders in accordance to law, after

giving an opportunity of hearing to the petitioner and the

1st respondent.

3) All the contentions of the petitioner and the 1st

respondent are left open.

4) Once an order is passed by the statutory authority, it is

made clear that the 1st respondent is free to do the

leveling works, in accordance to the permit/license

obtained from the statutory authority.