## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN**
**FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934**
## **WP(C).No. 24020 of 2012 (B)**
## **---------------------------**
## **PETITIONER(S): -------------**
**REJI.P.VARGHESE, AGED 46 YEARS**
**AREEKAL PANKOTTU HOUSE, KOMBANADU P.O., (VIA) VENGOOR, ERNAKULAM – 683 546.**
**BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI**
## **RESPONDENT(S):**
**--------------**
**1. VENGOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KUNNATHUNADU TALUK, ERNAKULAM – 683546.**
**2. SECRETARY, VENGOOR GRAMA PANCHAYAT, KUNNATHUNADU TALUK, ERNAKULAM – 683546.**
**3. GEORGE, S/O MATHEW, 60 YEARS OF AGE, MATTAMANA HOUSE, VENGOOR KARA, KOMBANADU VILLAGE, ERNAKULAM – 683546.**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**BKA**
## **WP(C).No. 24020 of 2012 (B)**
||**APPENDIX**|
|---|---|
|**PETITIONER'(S) EXHIBITS:**||
|**EXT.P1**|**COPY OF THE AGREEMENT BETWEEN PETITIONER and SRI.N.A.THOMAS**|
||**DATED 19.11.2010.**|
|**EXT.P2**|**COPY OF THE LICENCE NO.A4-19/12-13 DATED 4.6.2012 ISSUED BY**|
||**THE FIRST RESPONDENT TO THE PETITIONER.**|
|**EXT.P3**|**COPY OF THE CONSENT ISSUED BY KERALA STATE POLLUTION CONTROL**|
||**BOARD BEARS THE NO.PCB/DO-EKM/ECO-QR96/R1/2010 VALIDITY OF**|
||**WHICH IS UP TO 31.12.2012 DATED 29.10.2010.**|
|**EXT.P4**|**COPY OF QARRYING PERMIT NO.152/11-12/MM/GS/CRPS/DOE/3260/E2/11**|
||**DATED 27.10.2011 ISSUED BY DEPARTMENT OF MINING AND GEOLOGY**|
||**DISTRICT OFFICE.**|
|**EXT.P4(a)**|**COPY OF THE CHALAN RECEIPT DATED 27.10.2011 FOR AN AMOUT OF**|
||**RS.1,00,060/-**|
|**EXT.P5**|**COPY OF THE LICENCE ISSUED BY THE JOINT CHIEF CONTROLLER OF**|
||**EXPLOSIVES FOR STORING EXPLOSIVE ARTICLES IN THE MAGAZINE**|
||**DATED 02.05.2005.**|
|**EXT.P6**|**COPY OF THE MINING MATE'S CERTIFICATE OF COMPETENCY DATED**|
||**23.3.1998 ISSUED BY THE CHAIRMAN, BOARD OF MINING**|
||**EXAMINATIONS.**|
|**EXT.P7**|**COPY OF THE SHORTFIRER'S CERTIFICATE ISSUED TO THE PETITIONER**|
||**DATED 30.04.2009 BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES.**|
|**EXT.P8**|**COPY OF THE LETTER NO.L-DIS(C2)/1685/11 DATED 21.03.2011**|
||**ISSUED BY DISTRICT MEDICAL OFFICER, HEALTH, ERNAKULAM.**|
|**EXT.P9**|**COPY OF THE CERTIFICATE NO.C2-9479/2011 DATED (L-DIS) DATED**|
||**31.05.2011 ISSUED BY DISTRICT MEDICAL OFFICER, HEALTH,**|
||**ERNAKULAM.**|
|**EXT.P10**|**COPY OF THE PLAINT IN OS NO.146/2011 ON THE FILE OF THE**|
||**MUNSIFF'S COURT, PERUMBAVOOR.**|
|**EXT.P11**|**COPY OF THE WRITTEN STATEMENT IN OS NO.34/2011 OF MUNSIFF'S**|
||**COURT, KOLENCHERY.**|
|**EXT.P12**|**COPY OF THE COMMISSION REPORT IN IA NO.1051/2011 IN OS**|
||**NO.146/2011 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR.**|
|**EXT.P13**|**COPY OF THE ORDER DATED 11.08.2011 IN IA NO.269/2011 IN OS**|
||**NO.34/2011 ON THE FILE OF THE MUNSIFF'S COURT, KOLENCHERY.**|
|**EXT.P14**|**COPY OF THE ORDER DATED 26.06.2012 IN CMA NO.14/2011 ON THE**|
||**FILE OF THE SUB JUDGE, PERUMBAVOOR.**|
|**EXT.P15**|**COPY OF THE JUDGMENT DATED 19.07.2012 IN OP(C) NO.2278/2012 OF**|
||**THIS HON'BLE COURT.**|
## **WP(C).No. 24020 of 2012 (B)**
**EXT.P16 COPY OF THE COMMISSION REPORT DATED 04.08.2012 FILED BY ADVOCATE COMMISSIONER.**
**EXT.P16(a) COPY OF THE SKETCH PAREPARED BY THE VILLAGE OFFICER, KOMBANAD. EXT.P17 COPY OF THE ORDER DATED 10.08.2012 IN IA NO.269/2011 IN OS NO.34/2011 ON THE FILE OF THE MUNSIFF'S COURT, KOLENCHERY. EXT.P18 COPY OF THE CIVIL MISCELLANEOUS APPEAL NO.15.2012 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.P19 COPY OF THE OBJECTION FILED IN IA NO.1347/2012 IN CMA NO.15/2012 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.P20 COPY OF THE DECISION DATED 18.04.2011 OF VENGOOR GRAMA PANCHAYAT.**
**EXT.P21 COPY OF THE APPEAL NO.764/2012 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P22 COPY OF THE AFFIDAVIT AND PETITION IN IA IN APPEAL NO.764/2012 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P23 COPY OF THE IA TO ACCEPT THE PHOTOSTAT COPY AND GRANT OF TIME IN APPEAL NO.764/2012 DATED 09.09.1992. EXT.P24 COPY OF THE AFFIDAVIT FILED BY MR.GEORGE DATED 09.09.2012 IN IA /2012 IN APPEAL NO.764/2012 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P25 COPY OF THE ORDER DATED 22.09.2012 IN IA NO.1452/12 IN APPEAL NO.764/2012 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P26 COPY OF THE NOTICE D. NO.2007 OF 2012 DATED 22.09.2012 ISSUED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXT.P27 COPY OF THE LICENCE NO.A4-49 OF 2011 DATED 28.05.2011 ISSUED BY SECRETARY, VENGOOR GRAMA PANCHAYAT.**
## **RESPONDENT'(S) EXHIBITS: NIL**
**//TRUE COPY//**
**BKA**
**PA TO JUDGE**
## **K.SURENDRA MOHAN,J.**
## **--------------------------------------------WP(C).No.24020 of 2012**
## **---------------------------------------------Dated this the 12[th] day of October, 2012**
## **J U D G M E N T**
The petitioner has filed this writ petition aggrieved by Ext.P25 interim order passed by the Tribunal for Local Self Government Institutions. The reliefs sought for in this writ petition are the following:-
1. Call for the records pertaining to Exhibit - P21 appeal and all other connected petitions and affidavits Exhibit-P22 and P23 and P24 and P25 interim order in IA 1452/2012 dated 22.09.2012 and issue a writ of certiorari or other appropriate writ, order or direction quashing the same;
2. to stay the operation of Exhibit-P25 order passed in IA No.1452/2012 in Appeal 764/2012 in the court of the tribunal for local self Government institutions, Thiruvananthapuram, pending disposal of the above Original Petition (Civil).
3. to pass such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
4. award costs.
2. According to the petitioner, he is conducting a
W.P.(C)No.24020 of 2012
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granite quarry in his property. The third respondent and his wife had instituted various proceedings with the object of seeing that the work of the petitioner's quarry is stopped. O.S.No.146 of 2011 was first instituted before the Munsiff's Court, Perumbavoor, which was later transferred and renumbered as O.S.No.34 of 2011 of the Munsiff's Court Kolenchery, for a permanent prohibitory injunction. The third respondent and his wife are the owners of 9Acres and 20cents of land which is the property situate adjacent to that of the petitioner. It is the case of the petitioner that he is possessed of all the necessary licences and permissions that are required for the conduct of the quarry, from all the authorities. As per Ext.P17, order passed by the Munsiff's Court Kolencherry in I.A.No.269 of 2011, the petitioner has been permitted to carry on quarrying operations in the balance property that has been shown in Ext.C2(a), a plan submitted to the Court by an Advocate Commissioner who had been deputed to inspect the property. Therefore, according to
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the petitioner, he is entitled to carry on the quarrying operations without any hindrance. The third respondent has challenged Ext.P17 by filing an appeal against the same. But no interim orders have been obtained. The third respondent has therefore filed an appeal challenging the licence that has been granted to the petitioner by the Vengoor Grama Panchayat for conduct of the quarry, before the Tribunal for Local Self Government Institutions. The said appeal, Appeal No.764 of 2012 has been taken on file and as per Ext.P25, interim order dated 22.09.2012, the Tribunal has granted a stay of the decision and the license that are challenged in the appeal. The petitioner is aggrieved by Ext.P25. Senior Counsel Smt. Sumathi Dandapani, who appears for the petitioner, submits that the appeal itself is not maintainable before the Tribunal for the reason that it is highly belated. The licence that is under challenge in the said appeal was issued on 18.04.2011. Since the Tribunal has no power to condone the delay, as held by this Court,
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it is pointed out that the Tribunal has erred in taking the appeal on file. It is also pointed out that no certified copy of the order under challenge was produced. Only a photocopy has been produced. According to the counsel, the appeal has been filed without disclosing the previous civil proceedings that are pending between the parties in the Civil Court. The interim orders passed in relation to the dispute as well as the reliefs declined were suppressed from the Tribunal while filing the appeal. Consequently, the Tribunal has been misled into passing an interim order in the nature of Ext.P25. As a result, the petitioner is not able to carry on his quarrying operations.
3. The counsel places reliance on the decision of this Court in **Tiny @ Antony v. Jacky and others [2012(1) KHC 82]** to contend that it is not necessary for the petitioner to approach the Tribunal since the third respondent has deliberately suppressed material facts and misled the Tribunal into passing an interim order. For the above reason, not merely Ext.P25 interim order
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but the appeal itself is liable to be quashed by this Court in exercise of the Jurisdiction under Article 226 of the Constitution of India, it is contended. For the above reasons, the Senior Counsel seeks the issue of appropriate directions in the matter.
4. I have heard the learned Senior Counsel Smt. Sumathi Dandapani at length and have perused the records produced before me. The appeal filed before the Tribunal for Local Self Government Institutions is produced as Ext.P21. However, the documents that are produced along with the said appeal are not produced. A perusal of Ext.P21 shows that reference has been made therein to some of the pending civil proceedings between the parties. A copy of the Commissioner's report as well as the order of the Munsiff's Court in interlocutory proceedings appear to have been produced. There is nothing to show that Ext.P25 interim order has been passed without perusing the documents produced along with the Interlocutory Application. If as a matter of fact,
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the Tribunal has been misled by the 3[rd] respondent in the issue of Ext.P25, it is for the petitioner to apprise the said authority of the same and to seek appropriate further orders vacating the interim order that has been issued. I notice from Ext.P25 that said order has been issued only on the basis of a prima facie finding entered by the Tribunal. The petitioner has sufficient opportunity to produce necessary documents and to seek for vacating or varying the said order. I am not satisfied that the reliefs sought for in this writ petition are necessary to be granted at this stage.
5. It is true that in the decision reported in **Tiny @ Antony v. Jacky and others [2012(1) KHC 82]** , a learned Single Judge of this Court has held that even a plaint can be quashed in exercise of the jurisdiction of this Court under Articles 226 and 227 of the Constitution. However, the exemplary circumstances that existed in the said case are not available in this case. For the above reasons, I am not persuaded to grant any of the reliefs
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sought for in this writ petition.
For the above reasons, this writ petition fails and is accordingly dismissed. Needless to observe that the dismissal of this writ petition is without prejudice to the rights of the petitioner to approach the Tribunal for vacating the interim order, Ext.P25.
Sd/-
**K.SURENDRA MOHAN, JUDGE**
kkj
