Kerala High Court
Binoy Vijayan vs State Of Kerala on 27 May, 2017
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939
WP(C).No. 34851 of 2017 (T)
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PETITIONER(S):
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BINOY VIJAYAN,
SHANTHALAYALAM HOUSE, MELOOD P.O.,
PERINGANADU, ADOOR, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. THE SENIOR GEOLOGIST, MINING AND GEOLOGY,
MINI CIVIL STATION, ARANMULA,
PATHANAMTHITTA-689547.
3. DISTRICT POLICE CHIEF, PATHANAMTHITTA-689645.
4. SUB-INSPECTOR OF POLICE, ADOOR POLICE STATION,
PATHANAMTHITTA DISTRICT-689645.
5. ANIL KUMAR,
S/O.GOPALAKRISHNAN, ANILBHAVAN, MELOOD P.O.,
ADOOR, PATHANAMTHITTA DISTRICT-689645.
6. BINU K.,
S/O.KUNJUMON, THANNIKOTTU PADINJATTAKARA,
MELOOD P.O.,ADOOR, PATHANAMTHITTA DISTRICT-689645.
7. RADHAKRISHNAN P.,
S/O.PODIYAN, REMYA BHAVAN, PAZHAKULAM P.O.,
ADOOR, PATHANAMTHITTA DISTRICT-689645.
8. RAJESH KUMAR,
S/O.KRISHNAN KUTTY NAIR, KADUVANGAL HOUSE,
PAZHAKULAM P.O., ADOOR, PATHANAMTHITTA-689645.
BY SENIOR GOVERNMENT PLEADER SRI. P.P. THAJUDHEEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-
11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 34851 of 2017 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE
OFFICER.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE
PANCHAYATH.
EXHIBIT P3 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 27.05.2017
ISSUED BY THE PANCHAYATH.
EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 16.9.2017 WITH RECEIPT
ISSUED BY THE 4TH RESPONDENT.
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.A TO JUDGE
P.R. RAMACHANDRA MENON & SHIRCY V., JJ
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W.P.(C) No. 34851 of 2017
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Dated, this the 23rd day of November, 2017
JUDGMENT
Ramachandra Menon , J.
The petitioner has approached this Court with the following prayers :
"a) Issue a writ of mandamus or other appropriate writ, direction or order commanding the 3rd and 4th respondents to remove the obstruction caused by the respondent No. 5 to 8 and their henchmen and direct to provide adequate protection to the petitioner from the respondent No. 5 to 8 and their henchmen, to commence the construction of house by levelling the plot.
b) Issue a writ of mandamus directing the 3rd and 4th respondent to provide adequate protection to the petitioner and his workmen from the respondent No. 5 to 8 and their henchmen to level the pilot using JCB and commence the construction of residential house as per Ext. P2 and P3.
c) To declare that the respondent No. 5 to 8 or men under them has no authority to interfere and obstruct commencement of construction of residential house by levelling the plot as per Ext. P2 and P3.
d) Such other reliefs that may deem fit and necessary for this Hon'ble Court in the facts and circumstances of the case.
W.P.(C) No. 34851 of 2017 : 2 :
2. The learned counsel for the petitioner submits that the petitioner and his wife are joint owners of the property comprised in Survey No.248/18 of the Peringanadu village, which is being enjoyed by them also satisfying the basic tax as evident from Ext. P1. With intent to construct a residential building in the property, the petitioner approached the local authority for issuance of building permit. Since the property is situated in different levels, some levelling has necessarily to be carried out for effecting the construction. So as to facilitate such an exercise, petitioner submitted an application before the Local Authority, when development permit as borne by Ext. P3 was issued to the petitioner. When the petitioner pursued further steps, the respondents 5 to 8 forcefully obstructed the same. The learned counsel for the petitioner submits that the said respondents do not have any right to cause obstruction to the enjoyment of the property, more so, when no activity is being pursued by the petitioner contrary to the relevant provisions of law. It is also pointed out that, no earth is being taken outside the property and as such, there cannot be any objection from any corner with regard to the construction sought to be made.
3. In spite of ordering notice and completion of service, the party respondents have not turned up.
W.P.(C) No. 34851 of 2017 : 3 :
4. We heard the learned counsel for the petitioner and the learned Government Pleader.
5. Considering the facts and circumstances, as disclosed from the materials on record, this Court finds that the petitioner is having necessary permit/sanction to effect mining operation in the property and also to effect construction of the residential building based on Ext.P2 permit. In the said circumstances, if there is any threat to the law and order situation or if there any forceful obstruction from the part of the respondents 5 to 8, or anybody under them, it shall be for the 4th respondent to extend adequate and effective protection, once such situation is brought to his notice by the petitioner. If any earth is taken outside the property, it shall only be on the basis of necessary/sanction/permit issued by the competent authority in accordance with law; failing which, it will be open for the authorities concerned to intervene by taking necessary steps in accordance with law.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
SHIRCY V.,
JUDGE
kmd /True copy/
P.A. to Judge