A.P. Baby v. District Collector, Angamaly Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021/15TH ASWINA, 1943** ## **WP(C) NO. 8910 OF 2021** ## **PETITIONER:** **A.P.BABY,S/O. LATE PAULOSE, AGED 59 YEARS, PYNADATH AYYAMPILLY, PULIYANAM P.O., PEECHANICKADU, ANGAMALY, ERNAKULAM 683 572.** **BY ADVS. SUNIL V.MOHAMMED SMT.M.S.NEETHUMOL** ## **RESPONDENTS:** **1 THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, KOCHI 682 030. 2 THE ANGAMALY MUNICIPALITY, ANGAMALY, ERNAKULAM DISTRICT 683 572, REPRESENTED BY ITS SECRETARY. 3 A.P. KURIAKOSE, PYNADATH AYYAMPILLY, PULIYANAM P.O., PEECHANICKADU, ANGAMALY, ERNAKULAM 683 572. ADDL.4 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, CIVIL STATION, KAKKANAD.P.O., KOCHI-680 020. (ADDL.R4 IMPLEADED AS PER ORDER DATED 27-04-2021 IN IA 1/2021). BY ADVS. R1&R4 SRI.VIPIN NARAYANAN SR.G.P. R2 SRI.ANIL K.MOHAMMED, SC R3 K.G.BALASUBRAMANIAN R3 AMBILY PREMKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.8910/2021 2 ## **JUDGMENT** Dated this the 7[th ] day of October, 2021 The petitioner is aggrieved by the inaction on the part of the 1[st] and 2[nd] respondents in preventing large scale and indiscriminate excavation of ordinary/red earth by the 3[rd] respondent. The petitioner seeks to direct respondents 1 and 2 to forthwith prevent the illegal and unauthorised large scale and indiscriminate excavation of ordinary/red earth by the 3[rd] respondent carried out in the property in Sy.No.5/2 of Angamaly Village under the guise of some permissions and exemptions. 2. The petitioner states that he owns property and cultivating paddy field in Sy.No.4/9 to 17 of Angamaly Village. Adjacent to the paddy land, the 3[rd] respondent has property. The 3[rd] respondent is excavating ordinary/red earth from the property on a large scale. According to the WP(C)No.8910/2021 3 petitioner, the 3[rd] respondent has violated Rule 10 of the Kerala Muncipal Building Rules, 2019 by causing excavation to a depth of more than 15 ft. Exts.P2 and P10 photographs would show the serious damage caused to the environment, by such illegal excavation. 3. The petitioner further states that the 3[rd] respondent has cut at the ridge of the pathway used by the petitioner. The 3[rd] respondent claims that he is developing the land for starting or shifting a factory. Though the 3[rd] respondent has obtained Ext.R3(a) acknowledgement certificate under the Kerala Micro Small Medium Enterprises Facilitation Act, 2019, the said R3(a) does not state whether the factory is going to be constructed newly or existing factory is being shifted. Therefore it is evident that the 3[rd] respondent has obtained Ext.R3(a) acknowledgement certificate suppressing material facts. 4. The 3[rd] respondent has excavated and WP(C)No.8910/2021 4 transported more than the permitted quantity of ordinary/red earth. Any further excavation would not only affect the paddy cultivation of the petitioner, it would also invite ecological disaster. In such circumstances, the respondents are compellable to restrain the 3[rd] respondent from proceeding further with the excavation. An enquiry by the District Geologist is warranted to ascertain whether more than the permitted quantity of ordinary/red earth is removed by the 3[rd] respondent. However, the authorities are hand in glow with the 3[rd] respondent in the matter and they are not taking effective steps to protect the right of the petitioner. 5. The 3[rd] respondent entered appearance and filed a counter affidavit. The 3[rd] respondent stated that he has obtained an Acknowledgement Certificate under the provisions of the Kerala Micro Small Medium Enterprises Facilitation Act. Therefore the 3[rd] respondent need not obtain any further licence under said clause for a period of WP(C)No.8910/2021 5 three years. The 3[rd] respondent had approached the Geologist for permits to remove the ordinary/red earth for the purpose of establishing a factory. After a proper assessment, the Geologist found as per Ext.R3(c) that ordinary/red earth of 17638 Metric Tonnes have to be removed for the development of the land, to enable setting up of the factory. 6. As per Ext.R3(d), the Geologist has found that the petitioner is yet to remove 15107 Metric Tonnes of ordinary/red earth from the permitted quantity. In such circumstances, the writ petition filed by the petitioner is unsustainable. The 3[rd] respondent would submit that the permit issued by the Geologist has lapsed and the petitioner has to renew the permit for which the Municipal authorities should issue NOC. When the 3[rd] respondent approached the Municipal Authorities seeking NOC, Ext.R3(f) letter has been issued to the 3[rd] respondent stating that his application WP(C)No.8910/2021 6 can be processed only after disposal of the pending writ petition. The sole intention of the petitioner is to harass the 3[rd] respondent. In the circumstances, the writ petition is liable to be dismissed, contended the 3[rd] respondent. 7. The learned Standing Counsel for the 2[nd] respondent stated that the 3[rd] respondent has violated the permit conditions in as much as the permit mandates that the 3[rd] respondent has to leave a set back of 2.5 meters from the adjoining land for excavation. The 3[rd] respondent has only left 1 m. margin as against requisite 2.5 meters. 8. The learned Government Pleader submitted that the Geologist has issued Ext.R3(d) finding that the 3[rd] respondent is eligible to lift 15107 more Metric Tonnes of ordinary/red earth. However, exact quantity of ordinary/red earth already lifted and the permissible quantity yet to be lifted can be determined only after the Municipal Authorities conduct an inspection with reference to the approved plan. WP(C)No.8910/2021 7 9. The learned counsel for the petitioner further urged that even if it is assumed that the 3[rd] respondent has all the licences to carry out the activities, such activities though after obtaining licences, cannot be in a manner damaging the environment, for the purpose of sheer commercial exploitation. The learned counsel for the petitioner relied on the judgment of this Court in **Annamma Poulose v. District Collector, Kollam** [2017 (1) KLT 143]. The learned counsel for the 3[rd] respondent submitted that legality of the said judgment is challenged in an appeal which is pending consideration before the Division Bench of this Court. 10. I have heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and the additional 4[th] respondent, the learned Standing Counsel for the 2[nd] respondent and the WP(C)No.8910/2021 8 learned counsel appearing for the contesting 3[rd] respondent. 11. The 3[rd] respondent for carrying out the development of the land, has obtained Ext.R3(b) Development Permit from the Municipality which discloses that quantity of ordinary/red earth to be removed is 8818.860 m[3] . The 3[rd] respondent has obtained Ext.R3(a) Acknowledgement Certificate under Section 5(3) of the Kerala Micro Small Medium Enterprises Facilitation Act, 2019. The 2[nd] respondent Municipality has also granted site approval and Building Permit for the activities being carried on by the 3[rd] respondent as is evident from Ext.R3(b). 12. Ext.R3(c) order of the District Geologist would show that permission has been granted to the 3[rd] respondent to lift 17638 metric tonnes of ordinary/red earth for the purpose of development of land and issued 1763 transit passes to the 3[rd] respondent. Ext.R3(c) was issued on 12.03.2021. It is the case of the 3[rd] respondent that on WP(C)No.8910/2021 9 initial excavation of the land it was found that the land is rocky and lacking the quantity of ordinary earth as expected. There was no occasion to remove the quantity of earth permitted by the authorities because of the rocky nature of the land. The Contractor also could not operate his machineries due to rocky nature of the land. The 3[rd] respondent had to stop the work after removal of top surface due to rock formations. In such circumstances, the 3[rd] respondent could not lift the quantity permitted by the Geologist. 13. Ext.R3(d) order issued by the District Geologist would show that the 3[rd] respondent can lift 15107 metric tonnes of ordinary/red earth in view of Ext.R3(c) order already issued. 14. The learned Government Pleader pointed out that due to the rocky nature of the land, the District Geologist will be able to assess the exact quantity of ordinary/red earth to WP(C)No.8910/2021 10 be removed only after perusing a plan to be prepared by the Municipal Authorities. 15. From the pleadings and arguments raised at the Bar, it is evident that the removal of ordinary/red earth could not be completed due to the rocky nature of the land. It is not possible to exactly assess the depth to which excavation will have to be made to remove the ordinary/red earth and also the quantity of ordinary/red earth that may be required to be removed. In such circumstances, this Court is of the opinion that the District Geologist shall cause site inspection again based on the plan to be provided by the Municipal Authorities to assess the quantity. In such circumstances, the Municipal Authorities are directed to provide a fresh plan showing the depth to which the ordinary/red earth has to be removed. 16. The 3[rd] respondent has a specific case that due to the nature of the land, the rock materials will have to be WP(C)No.8910/2021 11 mounted for levelling the ground and permission can be given by the Geologist for the same in accordance with law. Accordingly, the writ petition is disposed of directing the Geologist to make a site inspection assessing ground situation and pass appropriate orders on the request of the 3[rd] respondent for grant of permits. The 2[nd] respondent is directed to process the application of the 3[rd] respondent for the NOC. The Municipal Authorities shall also ensure that safety measures are taken by the 3[rd] respondent as laid down in the permit conditions. The petitioner has raised a dispute regarding the obstruction and destruction of pathway that existed and used by the petitioner. It will be open to the petitioner to approach the competent Forum for resolution of the said dispute. **Sd/N. NAGARESH JUDGE** ncd/08.10.2021 WP(C)No.8910/2021 12 ## **APPENDIX OF WP(C) 8910/2021** ## **PETITIONER'S EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE LOCATION SKETCH PREPARED BY THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS OF THE SITE AND ILLEGAL ACTIVITY CARRIED ON BY THE 3RD RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 1ST RESPONDENT ON 20-032021** - **EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 20-032021 ISSUED BY THE 2ND RESPONDENT.** - **Exhibit P5 TRUE COPY OF THE PARTITION DEED NO.247/2001 OF SRO, ANGAMALY DATED 18-01-2001 ALONG WITH THE SURVEY MAP OF THE PETITIONER'S PROPERTY ATTACHED TO IT.** - **Exhibit P6 TRUE COPY OF ELECTION ID AND AADHAR CARD EVIDENCING THE RESIDENTIAL ADDRESS OF THE PETITIONER.** - **Exhibit P7 TRUE COPY OF THE PHOTOGRAPHS AS TO THE PRESENT NATURE AND LIE OF THE PETITIONERS'S PADDY LAND.** - **Exhibit P8 TRUE COPY OF THE CERTIFICATES ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, ANGAMALI.** - **Exhibit P9 TRUE COPY OF THE TAX RECEIPTS EVIDENCING THE PAYMENT OF LAND TAX FOR THE YEAR 2018-2019 AND 2021-2022.** - **Exhibit P10 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE SITE.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R3(a) TRUE COPY OF ACKNOWLEDGEMENT CERTIFICATE NO.KLMSME-89/2021 DATED 04.01.2021 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTER,** WP(C)No.8910/2021 13 ## **ERNAKULAM TO PETITIONER** **EXHIBIT R3(b) TRUE COPY OF DEVELOPMENT PERMIT NO.BA.280/21-21 DATED 11.02.2021 ALONG WITH SITE APPROVAL AND BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT EXHIBIT R3(c) TRUE COPY OF ORDER NO.377/2021/DOE/397/E2/21 DATED 12.03.2021 ISSUED BY THE DISTRICT GEOLOGIST, ERNAKULAM** **EXHIBIT R3(d) TRUE COPY OF ORDER NO.17/2122/DOE/397/E2/21 DATED 12.04.2021 ISSUED BY THE DISTRICT GEOLOGIST, ERNAKULAM** **EXHIBIT R3(e) TRUE COPY OF NOTICE NO.PW3-3032/2021 DATED 28.05.2021 ISSUED BY THE MUNICIPAL ENGINEER.** **EXHIBIT R3(f) TRUE COPY OF INTIMATION NO.PW33032/2021 DATED 13.07.2021 ISSUED BY MUNICIPAL ENGINEER EXHIBIT R3(g) TRUE SKETCH OF THE PROPERTY PREPARED BY 3RD RESPONDENT EXHIBIT R3(h) TRUE COPY OF CONSENT AS PER FILE NO.PCB.DO1-EKM/ICE/G21ERRCTE224456/21 DATED 29.08.2021 ISSUED BY POLLUTION CONTROL BOARD.**