M/S EKK INFRASTRUCTURE LIMITED v. National Highways Authority of India & Pariyaram Grama Panchayat & Station House Officer, Chalakudy Police Station & Geologist, District Office of Department of Mining and Geology

W.P.(C).No.1742 of 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 WP(C) NO. 1742 OF 2023** ## **- PETITIONER:** M/S EKK INFRASTRUCTURE LIMITED SECOND FLOOR, MUNICIPAL BUILDING, A.M.ROAD, PERUMBAVOOR, ERNAKULAM DISTRICT, REPRESENTED BY ITS DIRECTOR, SACHIN MOHAMMED, AGED 32 YEARS, S/O. EKK MOHAMMED, RESIDING AT CHELAMATTOM, OKKAL P.O, PERUMBAVOOR,, PIN - 683550 BY ADVS. K.J.MOHAMMED ANZAR P.K.MINIMOLE A.RADHAKRISHNAN NAIR BAPPU GALIB SALAM MUHAMMED ASHIQUE G.MOTILAL ## **RESPONDENTS:** 1 NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD DIVISION REP. BY PROJECT DIRECTOR, PALAKKAD, PIN - 678007 2 PARIYARAM GRAMA PANCHAYAT PARIYARAM POST, THRISSUR REPRESENTED BY ITS SECRETARY, PIN - 680721 3 STATION HOUSE OFFICER CHALAKKUDY POLICE STATION, THRISSUR, PIN - 680307 W.P.(C).No.1742 of 2023 2 4 GEOLOGIST, DISTRICT OFFICE OF DEPARTMENT OF MINING AND GEOLOGY MINI CIVIL STATION, CHEMBUKKAVU, THRISSUR,, PIN – 680020. BY ADVS. B.G.BIDAN CHANDRAN, SC, NATIONAL HIGHWAYS AUTHORITY OF INDIA E.C.KURIAKOSE LEJO JOSEPH GEORGE(K/357-C/2017) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON 07.02.2023 DELIVERED THE FOLLOWING: W.P.(C).No.1742 of 2023 3 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.1742 of 2023** ## **= = = = = = = = = = = = = = = = Dated this the 7[th] day of February, 2023** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i. call for the entire records leading to the issuance of Ext.P6 order of the 2[nd] respondent Grama Panchayat and to issue a writ of certiorari, any other order, writ or direction to quash the same. ii.Issue a writ of mandamus, any other order, writ or direction, directing the 3[rd] respondent, SHO Chalakudy Police Station to afford necessary aid and assistance to the petitioner, if required, for the extraction and removal of ordinary earth from the area allotted as per Exts.P2, P3 and P4 permits issued by statutory authorities. “ - 2.Heard the learned counsel for the petitioner, the learned standing counsel appearing for the 1[st] respondent, National Highway Authority of India, the learned standing counsel appearing for the 2[nd] respondent and the learned Government Pleader. - 3.It is submitted by the learned counsel for the petitioner that the petitioner is a contractor entrusted with the construction of pending works of Chalakudy underpass by the 1[st] W.P.(C).No.1742 of 2023 4 respondent. The petitioner was issued with Exhibit P2 approved mining plan and Exhibit P3 quarrying permit for extraction of ordinary earth. Exhibit P4 transit passes were also issued. However, the Secretary of the 2[nd] respondent Panchayat has issued Exhibit P6 proceedings dated 12.1.2023 stating that the petitioner cannot operate his heavy vehicles through the Peelarmoozhi Kottamuri Road and that such plying of heavy vehicles is banned on the said road. It is submitted that the 2[nd] respondent has no power or authority to issue an order in the nature of Exhibit P6. It is submitted that the Panchayat has the duty and the responsibility to maintain roads vested in it under Section 170 of the Kerala Panchayat Raj Act, 1994 and the power to restrict the use of vehicle is vested in the State Government under Section 115 of the Motor Vehicles Act ,1988 and there is no power whatsoever in the Panchayat to issue an order in the nature of Exhibit P6. - 4.A counter affidavit has been placed on record by the 2[nd] respondent and it is contended that there is a chance that a culvert on the road in question may collapse due to the plying of heavy vehicles. W.P.(C).No.1742 of 2023 5 5. A reply affidavit has been placed on record by the petitioner specifically pointing out that the order is passed only due to the political and popular pressure exerted and that there is no danger to the road in question. The learned counsel has also made available several decisions of this Court where the specific issue of the power of the Panchyat to pass an interdictory order in the nature of Exhibit P6 have been considered and it was held that there is no such power available with the Panchayat or its committee to restrict operation of heavy vehicles on Panchayat road. 6. Having considered the contentions advanced on either side, I am of the opinion that in the light of the decision of this Court in **Jimmichan Mathew v. State of Kerala and others** [2022 (1) KLT 373] the 2[nd] respondent cannot issue a communication in the nature of Exhibit P6. In the above view of the matter, this writ petition is allowed. Exhibit P6 is set aside. There will be a direction to the respondents to permit the petitioner to ply his vehicles on the public road. However, the petitioner shall take appropriate steps to see that all safety precautions W.P.(C).No.1742 of 2023 6 are duly adhered to by the petitioner and that there is no undue damage caused to the culvert by the operation of the vehicles of the petitioner. Writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.1742 of 2023 7 ## **APPENDIX OF WP(C) 1742/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT DATED 06.09.2022 Exhibit P2 TRUE COPY OF THE APPROVED MINING PLAN ISSUED BY THE 4TH RESPONDENT GEOLOGIST, THRISSUR, OFFICE MINING AND GEOLOGY DEPARTMENT, DATED 08.12.2022 Exhibit P3 TRUE COPY OF THE QUARRYING PERMIT FOR EXTRACT AND REMOVAL OF ORDINARY EARTH, ISSUED BY THE 4TH RESPONDENT DATED 13.12.2020 Exhibit P4 TRUE COPY OF THE MINERAL TRANSIT PASS DATED 14.12.2022 ISSUED BY THE 4TH RESPONDENT Exhibit P5 TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MATHRUBHUMI DAILY DATED 10.01.2023 Exhibit P6 TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE 2ND RESPONDENT GRAMA PANCHAYAT VIDE REF. NO. SC3/282/2023 DATED 12.01.2023 Exhibit P7 TRUE COPY OF THE G.O.(P)NO.14/2022/ID DATED 10.08.2022 ISSUED BY THE INDUSTRIES (A) DEPARTMENT Exhibit P8 TRUE COPY OF THE CIRCULAR ISSUED FROM THE OFFICE OF THE MINING AND GEOLOGY DIRECTORATE, THIRUVANANTHAPURAM DATED 14.09.2022 W.P.(C).No.1742 of 2023 8 RESPONDENT EXHIBITS Exhibit R2(a) True copies of the photographs showing the slab and the basement of the culvert - Annexure R1c True copy of Judgment dated 16.01.2023 in W.P.(C) No. 791 of 2023 of this Hon'ble Court - Annexure R1a True copy of Judgment dated 12.01.2022 in W.P(C) No. 7138/2021 of this Hon'ble Court - Annexure R1(b) True copy of Judgment dated 29.06.2022 in W.P.(C) No. 20351/2022 of this Hon'ble Court PETITIONER EXHIBITS Exhibit P9 True copy of the judgment dated 12.01.2022 in WPC No. 7138/2021 Exhibit P11 True copy of the judgment in WPC No. 791/2023 dated 16.01.2023 Exhibit P10 True copy of the judgment in WPC No. 20351/2022 dated 29.06.2022 True copy PS to Judge