Manjusha Nair v. District Geologist, Office of Mining and Geology Department, Mini Civil Station, Aranmula, Pathanamthitta; Village Officer, Cherukole Village, Ranni; Cherukole Grama Panchayat, Kattoor P.O.; The Secretary, Cherukole Grama Panchayat; Vargheese (and Rajan Pillai) — WP(C) Nos. 27610 of 2020 & 4836 of 2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 27610 OF 2020`** ## **`PETITIONER:`** ``` MANJUSHA NAIR, AGED 26 YEARS W/O. RAJESH KUMAR, OTHERETHU HOUSE, KATTOOR P.O., CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. ``` ``` BY ADVS.S.SHANAVAS KHAN SMT.S.INDU ``` ## **`RESPONDENTS:`** - `1 THE DISTRICT GEOLOGIST OFFICE OF MINING AND GEOLOGY DEPARTMENT, MINI CIVIL STATION, ARANMULA, PATHANAMTHITTA-689533.` - `2 THE VILLAGE OFFICER, CHERUKOLE VILLAGE, RANNI, PATHANAMTHITTA-689650.` - `3 THE CHERUKOLE GRAMA PANCHAYAT, KATTOOR P.O., CHERUKOLE, KOZHENCHERRY, PATHANAMTHITTA-689650, REPRESENTED BY ITS SECRETARY.` - `4 THE SECRETARY, CHERUKOLE GRAMA PANCHAYAT, KATTOOR P.O., CHERUKOLE, KOZHENCHERRY, PATHANAMTHITTA-689650.` - `5 VARGHESE, AGED 55 YEARS S/O.KUNJAPPAN, KAKKANATTU HOUSE, KATTOOR P.O., CHERUKOLE, PATHANAMTHITTA-689650.` **2** ## **W.P.(C).No.27610/2020 & 4836/2021** ``` 6KUNJUMON, S/O. KUNJAPPAN, KAKKANATTU HOUSE, KATTOOR P.O., CHERUKOLE, PATHANAMTHITTA-689650. ``` ``` BY ADVS. SMT.DEEPA NARAYANAN, SR.GP SRI.C.S.MANILAL SRI.R.PRASANTH KUMAR SRI.S.NIDHEESH SRI.M.SANJEEVAN SHRI. AYYAPPADAS V SHRI.NITISH SATHESH SHENOY SHRI.AMITH K.S ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2022, ALONG WITH WP(C).4836/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.27610/2020 & 4836/2021** **3** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 4836 OF 2021`** ## **`PETITIONER:`** ``` RAJAN PILLAI AGED 55 YEARS S/O.KUTTAPPAN PILLAI, OTHERETHU HOUSE, KATTOOR P.O., CHERUKOLE VILLAGE, PATHANAMTHITTA DISTRICT. BY ADVS. S.SHANAVAS KHAN SMT.S.INDU ``` ## **`RESPONDENTS:`** ``` 1THE DISTRICT GEOLOGIST OFFICE OF MINING AND GEOLOGY DEPARTMENT, MINI CIVIL STATION, ARANMULA, PATHANAMTHITTA-689533. 2THE DEPUTY TAHSILDAR, TALUK OFFICE, RANNI, PATHANAMTHITTA-689650. 3THE VILLAGE OFFICER, CHERUKOLE VILLAGE, RANNI, PATHANAMTHITTA-689650. BY ADVS.SMT.DEEPA NARAYANAN, SR.GP ADVOCATE GENERAL OFFICE KERALA RAJEEV JYOTHISH GEORGE(K/1298/2009) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2022, ALONG WITH WP(C).27610/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.27610/2020 & 4836/2021** **4** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).Nos.27610 of 2020 & 4836 of 2021 ---------------------------------------------Dated this the 06[th] day of June, 2022** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment. 2. I will narrate the facts in W.P.(C). No.27610 of 2020. According to the petitioner, he want to construct a commercial cum residential building in her property for which certain rocky formations are to be removed. The petitioner had earlier approached this Court against Ext.P6 stop memo issued by the 2[nd] respondent against the said activity and consequently Ext.P7 judgment was passed, directing the 1[st] respondent to conduct inspection if required in the property and serve copy of inspection report on the petitioner. Thereafter the 1[st] respondent was asked to hear the parties and to decide as to the mode of non explosive to be used for removing the rocky formation, within one month from the date of receipt of a copy of the judgment. Thereafter the 2[nd] **W.P.(C).No.27610/2020 & 4836/2021** **5** respondent conducted an inspection in the property and reported to the 1[st] respondent that the petitioner and her husband have already conducted mining operation in 4.27 Ares of property for carrying out construction. It was further reported that the petitioner’s father-in-law namely Rajan Pillai was in ownership of 5.26 Ares situated in Block No.4 in Resurvey No.381/73 of Cherukole Village and both items of properties are lying contiguously without any demarcation. It was also reported that out of 5.26 Ares above mentioned, 3.64 Ares mining operations were done. It is stated that based on Ext.P8, the 1[st] respondent issued Ext.P9 demand notice finding that they have removed 40 metric tonnes of granite having a length of 4.3 metres. Accordingly it was directed to pay Rs.2,53,200/- within 15 days from the date of receipt of the notice. Similar notice was issued to the father-in-law of the petitioner Rajan Pillai,which was challenged in W.P.(C). No.4836 of 2021. 3. Heard the learned counsel for the petitioners, learned Government Pleader and the learned counsel for the 6[th] respondent in W.P.(C). No.27610 of 2020. 4. The learned counsel for the petitioner reiterated his **W.P.(C).No.27610/2020 & 4836/2021** **6** contentions in these writ petitions. The learned counsel submitted that Exts.P8 and P9 are against the directions in Ext.P7 judgment. The learned counsel also submitted that no inspection is conducted in accordance to law. The learned counsel relied on the judgment of this Court in **Biju K. Varghese v. Geologist, Mining and Geologist Department, District Office, Cherthala [2020 (6) KHC 450]** in which it is stated that as far as unauthorised removal of ordinary earth is concerned, notice is to be issued about the proposed action to be taken. It is also stated that notice should refer to mahazar prepared after inspection of property and should state quantity of earth removed, nature of action proposed, particulars of dues to be recovered and also power invoked for the same. The learned counsel further submitted that Exts.P8 and P9 are issued flouting the directions of this Court in **Biju K.Varghese’s case** (supra). The learned counsel submitted that similar notices are issued to the father-in-law of the petitioner in W.P.(C). No.27610 of 2020, as evident by Exts.P4 to P6 produced in W.P.(C). No.4836 of 2021. The learned counsel further submitted that the principle laid down by this Court in **Biju K.Varghese’s case** is not followed while issuing that **W.P.(C).No.27610/2020 & 4836/2021** **7** notices also. the learned counsel submitted that the petitioner in W.P.(C). No.4836 of 2021 was not even heard before passing Exts.P4 to P6. The learned counsel for the 6[th] respondent seriously opposed the contentions of the petitioner. The learned counsel takes me through paragraph 5 of the counter affidavit filed by the 6[th] respondent. He submitted that, the 6[th] respondent is a senior citizen and his residential house is damaged because of the activities of the petitioner. The learned Government Pleader, on the other hand, submitted that there is nothing to interfere with Exts.P8 and P9 in W.P.(C). No.27610 of 2020 and the impugned orders in W.P.(C). No.4836 of 2021. The learned Government Pleader also submitted that Ext.P7 judgment in W.P.(C). No.27610 of 2020 is complied with in letter and spirit. The learned Government Pleader further submitted that statutory authority inspected the properties and thereafter Exts.P8 and P9 in W.P.(C).No.27610 of 2020 are issued. 5. This Court considered the contentions of the petitioner and the respondents. It will be better to extract the relevant portion of Ext.P7 judgment for a proper understanding of the case : “6. The petitioner will immediately inform the 1[st] respondent District Geologist in writing as to the **8** ## **W.P.(C).No.27610/2020 & 4836/2021** precise nature of non explosive methods that is proposed to be adopted by her for removal of rocks, and copy of the said letter so given by the petitioner to the 1[st] respondent should also be forwarded by him to respondents 3, 4 & 5. Thereafter, the 1[st] respondent District Geologist, will conduct an inspection if so required, and said inspection should be with due prior notice to the petitioner, as well as to the 4[th] respondent and the 6[th] respondent, and copy of inspection report should also be given to the petitioner in advance. The 1[st] respondent District Geologist will afford reasonable opportunity of being heard to the petitioner, the 3[rd] respondent and/or the 4[th] respondent, as well as the Secretary of 6[th] respondent Grama Panchayath, and respondents 7 & 8, and may ascertain as to whether the said non explosive method could be safely carried out, and then may pass orders as to the precise non explosive method to be adopted by the petitioner for carrying out the removal of rocks as envisaged in Ext.P-5, and subject to any terms and conditions that be may imposed by the 1[st] respondent in that regard. Orders in that regard shall be duly passed by the 1[st] respondent after completing the process without much delay preferably within a period of one month from the date of production of a certified copy of this judgment. 7. The petitioner will produce certified copies of this judgment as well copies of memorandum of this WP(C) with all exhibits to respondents 1, 4 & 6 **9** ## **W.P.(C).No.27610/2020 & 4836/2021** for necessary information and further action. The Registry will forward certified copy of this judgment to respondents 7 & 8 at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.” 6. Thereafter the impugned orders in these two writ petitions are passed. The specific case of the petitioners is that the inspection was conducted without giving notice to the petitioners. If is also the contention of the petitioners that no mahazar is prepared before issuing these orders as laid down by this Court in **Biju K.Varghese’s case** (supra). It is an admitted fact that the impugned orders in W.P.(C). No.4836 of 2021 were issued without giving notice to the father-in-law of the petitioner in W.P.(C). No.27610 of 2020. Exts.P7and P8 are the objections submitted by the petitioner in W.P.(C). No.4836 of 2021 against Exts.P4 to P6. Similarly Ext.P10 is the objection submitted by the petitioner against Ext.P8 and P9 in W.P.(C). No.27610 of 2020. In such circumstances, I think these writ petitions can be disposed of directing the authority concerned to consider these writ petitions, after giving an opportunity of hearing. Before passing final orders, an **10** ## **W.P.(C).No.27610/2020 & 4836/2021** inspection should be conducted with notice to the petitioners and other affected parties. 7. When in W.P.(C). No.27610 of 2020 came up for consideration on 11.12.2020, this Court passed the following order: “Admit. Urgent notice to respondents 3 to 6 by speed post. The learned Government Pleader takes notice for other respondents. There shall be an interim order on condition that the petitioner will deposit Rs.50,000/- (Rupees fifty thousand only) within four weeks.” 8. The learned counsel for the petitioner submitted that the interim order is complied after the extended period as directed by this Court on 09.04.2021. As far as W.P.(C). No.4836 of 2021 is concerned, it was an absolute stay and there was no condition imposed by this Court while granting stay. Therefore, till the objections are considered by the authority concerned, the interim orders already passed by this Court can be directed to continue. Therefore, these writ petitions are disposed of in the following manner: 1. The 1[st] respondent in these writ petitions is **11** ## **W.P.(C).No.27610/2020 & 4836/2021** directed to consider Ext.P10 in W.P.(C). No.27610 of 2020 and Exts.P7 and P8 in W.P. (C). No.4836 of 2021, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 2. Before passing final orders, the 1[st] respondent will insect the premises of the petitioners with notice to the petitioners and the 6[th] respondent in W.P.(C). No.27610 of 2020 and will prepare a mahazar as laid down by this Court in **Biju K. Varghese v. Geologist, Mining and Geologist Department, District Office, Cherthala [2020 (6) KHC 450]** . 3. Till final orders are passed by the 1[st] respondent as directed above, coercive steps against the petitioners are deferred. 4. Based on the decision taken by the 1[st] respondent as directed above, the petitioner is free to submit application for leveling using non explosive method and when such an application is received, the 1[st] respondent will **12** ## **W.P.(C).No.27610/2020 & 4836/2021** consider the same and pass final orders in accordance to law. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **W.P.(C).No.27610/2020 & 4836/2021** **13** ## **`APPENDIX OF WP(C) 27610/2020`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.342/2019 DATED 29.4.2019 OF KOZHENCHERRY SUB REGISTRY OFFICE.` - `EXHIBIT P2 TRUE COPY OF THE LAND DEVELOPMENT DRAWING SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT.` - `EXHIBIT P3 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 17.3.2020 ISSUED BY THE 4TH RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER.` - `EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 29.5.2020 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.` - `EXHIBIT P6 TRUE COPY OF THE PROVISIONAL STOP MEMO DATED 5.2.2020 ISSUED BY THE 2ND RESPONDENT.` ``` EXHIBIT P7TRUE COPY OF THE JUDGMENT DATED 11.6.2020 IN W.P.(C) NO.11388 OF 2020 OF THE HON'BLE COURT. ``` - `EXHIBIT P8 TRUE COPY OF THE REPORT DATED 8.9.2020 OF THE 2ND RESPONDENT OBTAINED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P9 TRUE COPY OF THE DEMAND NOTICE DATED 28.9.2020 OF THE 1ST RESPONDENT.` - `EXHIBIT P10 TRUE COPY OF THE OBJECTION DATED 20.10.2020 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT.` - `EXHIBIT P11 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE NATURE AND LIE OF PETITIONER'S PROPERTY AND NEIGHBOURING PROPERTY.` - `EXHIBIT P11(A) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE NATURE AND LIE OF PETITIONER'S PROPERTY AND NEIGHBOURING PROPERTY.` - `EXHIBIT P11(B) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE NATURE AND LIE OF PETITIONER'S PROPERTY AND NEIGHBOURING PROPERTY.` - `EXHIBIT P11(C) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE NATURE AND LIE OF PETITIONER'S PROPERTY AND NEIGHBOURING PROPERTY.` **14** ## **W.P.(C).No.27610/2020 & 4836/2021** ``` RESPONDENTS’ EXHIBITS ANNEXURE R1(A)TRUE COPY OF HTE HEARING NOTICE DATED 21.07.2020 IN FILE NO.1371/DOPTA/M/2020 ANNEXURE R1(B)COPY OF THE REQUEST TO THE SECOND RESPONDENT NO.1371/DOPTA/M/2020 DATED 25.08.2020 ``` **W.P.(C).No.27610/2020 & 4836/2021** **15** ## **`APPENDIX OF WP(C) 4836/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE LAND TAX RECEIPT DATED 03.06.2019 ISSUED FROM CHERUKOLE VILLAGE. EXHIBIT P2TRUE COPY OF THE JUDGMENT DATED 11.06.2020 OF THIS HON'BLE COURT. EXHIBIT P3TRUE COPY OF THE DEMAND NOTICE DATED 28.09.2020 ISSUED TO PETITIONER'S SON, NO.1371/DOPTA/M/2020. EXHIBIT P4TRUE COPY OF THE DEMAND NOTICE DATED 28.09.2020 ISSUED TO THE PETITIONER, NO.1371/DOPTA/M/2020. EXHIBIT P5TRUE COPY OF THE NOTICE DATED 15.01.2021 ISSUED TO THE PETITIONER UNDER SECTION 34 OF REVENUE RECOVERY ACT, RRC NO.2020/2924/03. EXHIBIT P6TRUE COPY OF THE NOTICE DATED 15.01.2021 ISSUED TO THE PETITIONER UNDER SECTION 7 OF THE REVENUE RECOVERY ACT, RRC NO.2020/243/03. EXHIBIT P7TRUE COPY OF THE OBJECTION DATED 28.01.2021 TO EXT.P5. EXHIBIT P8TRUE COPY OF THE OBJECTION DATED 28.01.2021 TO EXT.P6. RESPONDENTS’ EXHIBITS ANNEXURE R1(A)TRUE COPY OF HTE HEARING NOTICE DATED 21.07.2020 IN FILE NO.1371/DOPTA/M/2020 ANNEXURE R1(B)COPY OF THE REQUEST TO THE SECOND RESPONDENT NO.1371/DOPTA/M/2020 DATED 25.08.2020 ```