Sidheek v. District Collector, Malappuram, The Geologist, Department of Mining and Geology, Malappuram District, and Valanchery Municipality

W.P.(C).No.4709 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 WP(C) NO. 4709 OF 2023** ## **PETITIONER:** SIDHEEK AGED 51 YEARS S/O. MOYIN, VADAKKAN HOUSE, INDIANOOR P.O, TIRUR TALUK, MALAPPURAM DISTRICT., PIN - 676503 BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB DIVYA R. NAIR ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR, MALAPPURAM CIVIL STATION, COLLECTORATE ROAD, UP HILL, MALAPPURAM DISTRICT., PIN - 676505 2 THE GEOLOGIST DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, MALAPPURAM DISTRICT., PIN - 676505 3 THE VALANCHERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, VALANCHERY P.O, MALAPPURAM DISTRICT., PIN - 676552 BY ADV Millu Dandapani 2 W.P.(C).No.4709 of 2023 ## **OTHER PRESENT:** SRI.APPU.P.S-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON 01.03.2023 DELIVERED THE FOLLOWING: W.P.(C).No.4709 of 2023 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.4709 of 2023** **= = = = = = = = = = = = = = = = Dated this the 1[st] day of March, 2023** ## **JUDGMENT** - 1.The prayers in this writ petition are as follows:- “i.Quash Ext.P4 issuing a writ in the nature of certiorari., ii.Declare that Ext.P1 building permit enables the petitioner to construct a football turf in his plot covered by his title deed;” 2.Heard the learned counsel for the petitioner, learned standing counsel appearing for the Municipality and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the 3[rd] respondent Municipality had issued Exhibit P1 building permit to the petitioner and the co-owner of the property for construction of a football turf along with appurtenant structures. Ordinary earth has to be removed for the said purpose. The 2[nd] respondent had permitted removal of ordinary earth. However, there were obstructions from nearby residents and police protection was also granted to the W.P.(C).No.4709 of 2023 4 petitioner. The Secretary of the Municipality has now issued Exhibit P4 stop memo to the petitioner. It is contended by the learned counsel for the petitioner that the petitioner had commenced the construction and earth removal activities on the basis of the building permit granted to the petitioner and that Exhibit P4 is completely unjustified. 4. A counter affidavit has been placed on record by the 3[rd] respondent contending that the permission granted to the petitioner was for removing ordinary earth for a total area of 1528.83 sq.m to a depth of 1.5m and the quantity of earth to be removed was 2293.25 cubic metres. It is submitted that the petitioner had carried out the extraction completely in violation of the permit. It is stated that a complaint was received from the nearby residents stating that widespread illegal land mining and earth removal is being carried out in violation of Exhibit P2 and an inspection was conducted in the property on 7.2.2023. It is stated that during the time of the inspection, some workmen of the petitioner were available in the spot. It is stated that on the basis of the report, since it W.P.(C).No.4709 of 2023 5 was clear that illegal extraction being carried out by the petitioner, Exhibit P4 stop memo under Section 406(1) of the Kerala Municipality Act was prepared requiring the petitioner to make available necessary documents before the Municipality. However, when an attempt was made to serve Exhibit P4 stop memo to the petitioner, the petitioner was not available on the site and there were no structures existing on the site by which service by affixture could be carried out. It is stated that in the said circumstances, the petitioner was thereafter contacted over his mobile phone on 7.2.2023 by the Secretary and the information regarding the stop memo was orally intimated to him. Thereafter, the Councillor of the ward in which the construction is carried out, who is also the Chairman of the Municipality, informed the petitioner regarding Exhibit P4 stop memo. It is stated that on the basis of the inspection, it appears that 4394.80 cubic metres of ordinary earth has already been extracted by the petitioner in the guise of Exhibit P1 permit and Exhibit P2 permission letter which permits only the extraction of 2293.25 cubic metre. A sketch prepared is also produced in support of the W.P.(C).No.4709 of 2023 6 contentions and it is contended that the ordinary earth is being removed in total violation of the permissions. 5.An affidavit has been filed by the petitioner in reply stating that the petitioner has not violated the building permit and plan and that Section 406 is completely inapplicable, since the building work was not commenced. It is further stated as follows:- “3. The averments in paragraphs 7 to 13 of the counter affidavit of the 3[rd] respondent are not fully correct and denied. No hazardous or illegal activity has been done in the plot. Ext.R3(a) produced along with the counter affidavit is not prepared on the basis of any measurements conducted at the site. Ext.R3(a) is totally misleading and the height difference between the tabletop referred to in paragraph 9 and the adjoining land is actually the pathway leading to the construction site (shown in Ext.R3 (a) as illegal cutting). The pathway was in existence even prior to the application for building permit. The topography of the land was like that only even when the Petitioner applied for the building permit. Petitioner is producing here with the approved plan for Earth cutting issued by the local authority. It may be marked as Exhibit-P5. The level difference between the tabletop and the adjoining land is there in Ext.P5 as well. The 3[rd] Respondent is now trying to establish that this has been done in violation of the building permit. This is factually incorrect.” W.P.(C).No.4709 of 2023 7 6. The learned counsel for the petitioner also relies on a decision of this Court in **Kulakkada Grama Panchayath and another v. Sabu Thomas and others** [2021 (6) KHC 663]. 7. I have considered the contentions advanced. The petitioner has obtained permissions for the removal of ordinary earth from his property specifically in accordance with a building permit and approved plan issued by the Municipality. The quantity of the earth to be removed and the specific area from which the earth is to be removed are provided in Exhibit P1. It is the case of the Municipality that an inspection conducted in the premises showed extraction from areas outside the specific area provided for extraction in Exhibit P1. Though the petitioner raises contentions with regard to the mode of service of notice, I am of the opinion that since the activity carried out by the petitioner was one admittedly on the basis of Exhibit P1, the question whether there is any violation of Exhibit P1 is a question of fact which is liable to be considered. If the petitioner has any objections to Exhibit P4, it is for him raise the same before Secretary by submitting a W.P.(C).No.4709 of 2023 8 reply, which will be considered in accordance with law. In view of the fact that the petitioner has admittedly received the stop memo, the contentions with regard to the service of the same on the petitioner are no longer relevant. In case a reply is submitted by the petitioner to Exhibit P4, the same will be considered and appropriate action taken thereon, in accordance with law by the respondent within a period of two weeks from the date of receipt of the reply. The writ petition is ordered accordingly. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.4709 of 2023 9 ## **APPENDIX OF WP(C) 4709/2023** PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE BUILDING PERMIT DATED 18.11.2021 ISSUED IN THE NAME OF THE PETITIONER AND HIS CO-OWNER. Exhibit-P2 A TRUE COPY OF THE ORDER DATED 23.01.2023 ISSUED BY THE 2ND RESPONDENT. Exhibit-P3 A TRUE COPY OF THE INTERIM ORDER DATED 06.02.2023 IN W.P.(C) NO.4043/2023 OF THIS HONOURABLE COURT. Exhibit-P4 A TRUE COPY OF THE STOP MEMO DATED 07.02.2023 ISSUED BY THE 3RD RESPONDENT. Exhibit-P5 A true copy of the approved plan for earth cutting issued by the local authority. RESPONDENT EXHIBITS Exhibit R3(a) True copy of the sketch after conducting inspection on 8.02.2023