Kerala High Court
Dhanya Rensoy vs State Of Kerala on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
WP(C) NO. 6117 OF 2023
PETITIONER/S:
DHANYA RENSOY,
AGED 39 YEARS,
W/O.RENSOY, MALIYAKKAL HOUSE, VELLACHAL, ASARIKKADU.P.O,
THRISSUR, PIN - 680 306.
BY ADVS.
LINDONS C.DAVIS
E.U.DHANYA
SWATHY A.P.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
2 DISTRICT COLLECTOR
COLLECTORATE, AYYANTHOLE, THRISSUR, PIN - 680 003.
3 REVENUE DIVISIONAL OFFICER
CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680 003.
4 TAHSILDAR (LAND RECORDS),
TALUK OFFICE, CHEMBUKKAVU, THRISSUR, PIN - 680 020.
5 VILLAGE OFFICER
VILLAGE OFFICE, MANNAMANGALAM, THRISSUR DISTRICT,
PIN - 680 751.
6 ALPHONSA
W/O.JOHNY, PURATHUR HOUSE, THRISSUR MAIN ROAD, NEAR NH
BYPASS MANNUTHY, THRISSUR, PIN - 680 651.
7 ADDL. R7 IMPLEADED:
THE GEOLOGIST
THRISSUR.
(ADDL. R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 09-
03-2023 IN WP(C) 6117/2023)
R6 BY ADV K.I.TOGI
R1 TO 5 & R7 - SMT.DEEPA NARAYANAN,SENIOR GOVERNMENT
PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 6117/2023 :2:
SHAJI P. CHALY, J.
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W.P.(C). No. 6117 of 2023
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Dated this the 29th day of March, 2023.
JUDGMENT
This writ petition is filed seeking a direction to quash Exhibit P2
communication dated 23.12.2022 issued by the District Collector,
Thrissur, directing the Tahsildar, Thrissur, to take steps to ensure
construction of a protective embankment by the petitioner, consequent
to the loss of lateral support due to the removal of the ordinary soil by
the petitioner and Exhibit P3 order dated 18.01.2023 issued by the
Village Officer directing the petitioner to construct a retaining
wall/protective embankment, consequent to the directions issued by
the District Collector.
2. The petitioner and the 6th respondent are neighbouring
property owners. The petitioner is living in the property situated in
survey No. 112 of the Mannamangalam Village in Thrissur District.
According to the petitioner, the 6 th respondent i.e., Alphonsa, is
residing 15 Kms. away from the petitioner's property and she
occasionally visit her property at Mannamangalam and makes
unwanted quarrel with the neighbours.
3. Apparently, the 6th respondent has filed M.C. No. 51 of 2015
before the Revenue Divisional Officer, Thrissur, invoking Section 138
of the Code of Criminal Procedure, alleging that the petitioner's
husband Sri. Rensoy has removed ordinary sand from his property and
consequent to which, the lateral support is lost. However, the said
complaint was dismissed by the Revenue Divisional Officer holding that
the subject issue raised by the 6th respondent is a property dispute by
and between two parties and the provisions of Section 133 Cr.P.C
would not be attracted. According to the petitioner, the District
Collector has no power or authority to direct the Tahsildar to ensure
construction of a retaining wall by the petitioner or her husband. It is
also submitted that the consequential direction issued by the Village
Officer is also without any power.
4. When the matter came up for admission before this Court on
09.03.2023, taking into account the submission of the learned
Government Pleader, the Goelogist, Thrissur is suo motu impleaded as
additional 7th respondent and the learned Government Pleader was
directed to take instructions as to whether the ordinary sand is
removed by the petitioner or her husband without securing permit
from the authority under the Kerala Minor Mineral Concessions Rules,
2015 ('Rules, 2015' for short).
5. The learned Government Pleader, on instructions, submitted
that the ordinary soil was removed to a depth of 10 feet, without
securing any permit and consequent to which the lateral support is lost
to the property of the 6th respondent. It is further submitted that it
was considering the said aspect that the District Collector directed the
Tahsildar to ensure construction of a retaining wall by the petitioner or
her husband.
6. The learned Government Pleader has filed a memo dated
13.03.2023 producing the communications issued by the District
Collector, Geologist and the Tahsildar. From the communication issued
by the District Collector, it is clear that appropriate action is being
initiated against the petitioner or her husband under the provisions of
the Rules, 2015.
7. The 6th respondent has filed a counter affidavit basically
contending that due to the illegal action of the petitioner and her
husband, innumerable difficulties are faced by the 6 th respondent. It is
also pointed out that the 6 th respondent has approached the District
Collector alleging that illegal mining of soil was done by the petitioner
and thereby, causing destruction of two jandas on the boarder of the
6th respondent's land in full and therefore, the 6 th respondent incurred
a huge loss due to the destruction of lateral support.
8. I have head the learned counsel for the petitioner Sri.
Lindons C. Davis, the learned Senior Government Pleader Smt. Deepa
Narayanan and Sri. K.I. Togi for the 6th respondent, and perused the
pleadings and materials on record.
9. The main case projected by the petitioner is that the District
Collector is not having any power to direct the Tahsildar to ensure that
a retaining wall is constructed by the petitioner on the boundary
shared with the 6th respondent. No doubt, if the lateral support is lost
to the property of the 6th respondent, it is a private dispute by and
between the petitioner or her husband and the 6 th respondent
respectively.
10. But, fact remains, from the report submitted by the District
Collector, the ordinary soil was removed by the petitioner or her
husband upto the depth of 10 feet, without securing any permit under
the provisions of the Rules, 2015. It is also evident that action is
being initiated against the petitioner or her husband as per the
provisions of the Rules, 2015. It was in the above said background
that the District Collector has issued Exhibit P2 communication to the
Tahsildar and consequently, the Village Officer, Mannamangalam, has
issued Exhibit P3. The District Collector/Tahsildar/Village Officer are
not vested with powers to interfere in a civil matter by and between
the petitioner and the 6th respondent.
11. Therefore, the directions contained in Exhibits P2 and P3 for
the construction of the retaining wall/protective embankment cannot
be sustained and therefore, the said directions contained in Exhibits
P2 and P3 are vacated. However, I make it clear that this will not
stand in the way of the District Collector/Geologist taking appropriate
action against the petitioner or her husband for taking mining
operation without securing permit from the authority under the Rules,
2015.
This writ petition is disposed of as above.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 6117/2023
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE ORDER IN M.C.NO.51/2015 OF THE
3RD RESPONDENT, DATED 19.04.2017.
Exhibit P2 A COPY OF THE LETTER NO.10584/2021 DATED
23.12.2022 OF DISTRICT COLLECTOR, 2ND
RESPONDENT TO THE TAHSILDAR, THRISSUR
Exhibit P2(a) A TYPED COPY OF EXHIBITT.P2.
Exhibit P3 A COPY OF THE LETTER NO.VOMM/5/2023 DATED
18.01.2023 OF VILLAGE OFFICER; MANANMANGALAM.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
