Kerala High Court
M.Sivan vs Fathima Kareem M.H on 27 January, 2023
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
WP(C) No.2544/2023 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Friday, the 27th day of January 2023 / 7th Magha, 1944
WP(C) NO. 2544 OF 2023(S)
PETITIONERS:
1. M. SIVAN, AGED 58, S/O MAKKOTHA, ILLATHUPPADY HOUSE, METHALA P.O,
ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN -
683 545.
2. P.K. RAJESH, AGED 46, S/O KUNJU, PARAYILPUTHANPURA, METHALA P.O.,
ASAMANNOOR VILLAGE, KUNATHUNDAU TALUK, ERNAKULAM DISTRICT, PIN - 683
545.
3. P.K. JAMAL, AGED 52, S/O KOYAN, PARAKKADUPUTHANPURA, METHALA P.O.,
ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN -
683 545.
RESPONDENTS:
1. FATHIMA KAREEM M.H., W/O.KAREEM. M.H., AGED 44 YEARS, MAIKANAYATH
HOUSE, KUTTILANJI, IRAMALLOOR P.O., KOTHAMANGALAM, ERNAKULAM
DISTRICT, PIN - 686 691.
2. THE DISTRICT GEOLOGIST, OFFICE OF THE DISTRICT GEOLOGIST, MINING AND
GEOLOGY DEPARTMENT, ERNAKULAM - 682 030.
3. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD,
PIN - 682 030.
4.*THE STATE OF KERALA, (DELETED)
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM - 695 001.
RESPONDENT NO.4 IS DELETED FROM THE ARRAY OF PARTIES
AS PER ORDER DATED 27/01/2023 IN WPC.
5. THE STATION HOUSE OFFICER, KOTHAMANGALAM POLICE STATION,
KOTHAMANGALAM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,
KERALA, PIN - 686 691.
6. THE EXECUTIVE ENGINEER, THE PERIYAR VALLEY IRRIGATION PROJECT,
IRINGOLE, PERUMBAVOOR, PIN - 683 542.
P.T.O.
WP(C) No.2544/2023 2/9
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the respondents no.2 to 5 to take action to stop the
illegal removing of ordinary earth by the 1st respondent.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S. SHIBU VARGHESE & BASIL JOY, Advocates for the petitioners and of
SRI.V. TEKCHAND, SENIOR GOVERNMENT PLEADER for R2, R3, R5 & R6, the court
passed the following:
P.T.O.
WP(C) No.2544/2023 3/9
S. MANIKUMAR, CJ
&
MURALI PURUSHOTHAMAN, J
-----------------------------------------------
W.P(C). No. 2544 of 2023 (S)
----------------------------------------------
Dated this the 27th day of January, 2023
ORDER
S. Manikumar, CJ.
Instant public interest litigation is filed for the following reliefs:
"1. Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2 to 5 to take action to stop the illegal removing of ordinary earth by the 1st respondent.
2. Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2 to 4 to assess the quantity of and the area from which ordinary earth has been removed on the strength of Ext P1, and proceed against the 1st respondent in accordance with law for the illegal activity.
3. Issue a writ of mandamus or any other appropriate writ, order or directing the respondents 2, 3 and 5 to action on Ext P7, Ext.P8 and Ext.P9."
2. Short facts leading to filing of the writ petition are as under:
2.1 The 1st respondent, who is the owner of an extent of 110 Cents in Sy.No.226/1A-9-7, obtained a permit for removing WP(C) No.2544/2023 4/9 W.P(C).2544/2023 2 ordinary earth from 23 cents of the said land, and on 20.12.2022 and 21.12.2022, removed and is still removing ordinary earth from an extent of area and in excess of the quantity allowed by the permit issued by the 2nd respondent and from the area not covered by the permit. The 1st respondent has removed ordinary earth from an extent of at least two acres. The land from which the ordinary earth is excavated is just adjacent to the Kottachira SC Colony. This act of the 1 st respondent is causing heavy environmental problems to the residents of the Kottachira SC Colony. The 1st respondent is taking away huge quantities of ordinary earth from the land for commercial purpose under the cover of a building permit, which building is not going to be constructed since there is no proper road access to the land from where mud is excavated. The application by the 1 st respondent and the permit do not specify the level to which ordinary earth can be excavated. From the plan, it cannot be seen whether a dimensioned plan and sectional drawing showing the abutting road level, the levels and depths of the cutting at all places in respect of excavations for building construction and land development works has been submitted. The 6 th respondent has WP(C) No.2544/2023 5/9 W.P(C).2544/2023 3 assisted the 1st respondent by constructing a temporary bridge over the PVIP Irrigation Canal for the 1 st respondent to transport the ordinary earth without any valid permission. Though the residents of the locality and the petitioners had made complaints before the respondents 2 to 6, no action was taken against the 1 st respondent so far, and the illegal ordinary earth removing is going on. The petitioners are aggrieved by the inaction from the respondents. Hence this Writ Petition.
3. Main contention of the writ petitioner is that contrary to the extent of permission granted for removal of ordinary earth, respondent No.1 has extracted and illegally removed ordinary earth and despite Exhibits P7, P8 and P9 representations, no action has been taken.
4. Material on record discloses that when petitioners 1 and 2 herein and another person obstructed removal of ordinary earth, W.P(C).No.38939 of 2022 has been filed by respondent No.1 herein and another, for a mandamus directing the Station House Officer, Kothamangalam Police Station, Ernakulam District, to afford Police protection to the petitioners therein, his workers, machineries and vehicles used, for removal of ordinary WP(C) No.2544/2023 6/9 W.P(C).2544/2023 4 earth and construction activities in 092 Acres of land comprised in Survey No.226/1A/9/7/2 of Iramalloor Village in Kothamangalam Taluk. The said writ petition has been disposed of on 9.12.2022, by a learned Single Judge of this Court as under:
"3. The learned Government Pleader would submit that pursuant to the complaint submitted by the petitioners, a conciliation was attempted between the parties and, at present, there is no law and order situation.
4. It is submitted by the learned counsel appearing for respondents 3 to 5 that, at present, the petitioners do not have any authorization or pass to transport the ordinary earth out of the property.
5. Having considered the contentions advanced and in view of the contentions raised by the petitioners that the petitioners have been granted Building Permit, Development Permit as well as due permissions from the Geologist for removal of the ordinary earth as evidenced by Ext.P4, I am of the opinion that the party respondents cannot illegally obstruct such removal. In case they have any objections with regard to removal of earth by the petitioners, it is for them to raise it before the appropriate authorities.
6. In the above view of the matter, in case transit passes are issued to the petitioners and there is any further illegal obstructions for carrying out of the activities specifically in terms of Exts.P1, P2 and on the strength of transit passes duly issued to the petitioners which are in force, the petitioners may inform the Station WP(C) No.2544/2023 7/9 W.P(C).2544/2023 5 House Officer who shall afford adequate protection for the legally permitted activities.
This writ petition is ordered accordingly.
5. When the instant public interest litigation came up for admission, Mr. V. Tekchand, learned Senior Government Pleader submitted that permit has been granted by Nellikuzhi Grama Panchayat, Ernakulam District, which has not been impleaded as party respondent.
6. State of Kerala represented by the Chief Secretary, Government Secretariat, Thirivananthapuram-respondent No.4, is not a necessary and proper party for effective adjudication of the lis, which is the alleged excess removal of ordinary earth. In the above said circumstances, Registry is directed to delete respondent No.4 from the array of parties.
7. The District Geologist, Ernakulam-respondent No.2, is directed to cause inspection of the subject site and ascertain as to whether there is any excess removal of ordinary earth, as averred.
8. Learned Senior Government Pleader is directed to take notice on behalf of respondents 2, 3, 5 and 6. Issue notice to respondent No.1 by speed post, returnable in two weeks. WP(C) No.2544/2023 8/9
W.P(C).2544/2023 6
9. Learned Senior Government Pleader is directed to get instructions on the averments and grounds raised and file a statement or counter affidavit, as the case may be, with supporting documents.
Post after two weeks.
Sd/-
S. Manikumar, Chief Justice Sd/-
Murali Purushothaman, Judge sou.
27-01-2023 /True Copy/ Assistant Registrar WP(C) No.2544/2023 9/9 APPENDIX OF WP(C) 2544/2023 Exhibit P7 THE TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONERS TO R2 DATED 28.11.2022 ALONG WITH ENGLISH TRANSLATION. Exhibit P8 THE TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONERS TO R3 DATED NIL ALONG WITH ENGLISH TRANSLATION. Exhibit P9 THE TRUE COPY OF THE COMPLAINT MADE BY THE PETITIONERS TO R5 DATED NIL ALONG WITH ENGLISH TRANSLATION. 27-01-2023 /True Copy/ Assistant Registrar