W.P.(C) No.19808/2012 (Sreesastha Blue Metals v. Superintendent of Police, Rural, Thiruvananthapuram & others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934** ## **WP(C).No. 19808 of 2012 (A)** **---------------------------** **PETITIONER(S):** - **-----------------------------** **K.MOHANA KUMAR, MANAGING PARTNER, SREE SASTHA BLUE METALS, KOTTAKKAL P.O., PALIYODE, NEYYATTINKARA- 695 124** **BY ADV. SMT.INDU SUSAN JACOB** **RESPONDENT(S):** - **-----------------------------** **1. SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM- 695 001** **2. DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA, THIRUVANANTHAPURAM- 695 541** **3. CIRCLE INSPECTOR OF POLICE,** - **VELLARADA POLICE STATION, THIRUVANANTHAPURAM- 695 541** **4. SUB INSPECTOR OF POLICE,** - **VELLARADA POLICE STATION, THIRUVANANTHAPURAM- 695 541** **5. PAINKILLI @ BHUVANENDRAN,** - **S/O. VISWAMBARAPANIKKAR, S.N SADANAM,** - **KOZHIKODE, ANNAVOOR, THIRUVANANTHAPURAM- 695 121** **6. SREEJITH, S/O.RAJEENDRAN NAIR,** - **SREEBHAVAN, THOTTATH VEEDU, EZHAKKUDIVILAKAM,** - **MANAVARI, THIRUVANANTHAPURAM -695 121** **7. ROOPAN KRISHNADAS, S/O.KRISH NAIR, KRISHNA NIVAS, MANAVARI, THIRUVANANTHAPURAM -695 121** **8. PATHU @ APPUKUTTAN, S/O.KRISHNAN,** **THOTTATHIL RODARIKATHU VEEDU, IYKOODE, MANAVARI, THIRUVANANTHAPURAM- 695 121** **2/-** **sts** **-2-** ## **WP(C)NO.19808/2012** **9. SUNIL KUMAR,S/O.THANKARAJ, THERIYIL VEEDU, MANAVARI,** **THIRUVANANTHAPURAM DISTRICT- 695 121** **10. SHIBU, S/O.BAHULEYAN, THOTTATHIL VEEDU, KOZHIKODE, ANAVOOR,** **THIRUVANANTHAPURAM DISTRICT- 695 121** **11. SHIJUKUMAR,S/O.SAHADEVA PANICKER, MEKKUMKARA PUTHEN VEEDU, KOZHIKODE,** **THIRUVANANTHAPURAM DISTRICT- 695 121** **12. SURESH BABU, S/O.NADARAJAN, KOZHIKODE, MANAVARI,** **THIRUVANANTHAPURAM DISTRICT- 695 121** **R1 TO R4 BY STATE ATTORNEY SRI.P.VIJAYARAGHAVAN BY SR GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR R5 TO 12 BY ADV. SRI.MANU V. SRI.RAM MOHAN.G. SRI.G.P.SHINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-09-2012, THE COURT ON 08-11-2012 DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.19808/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF THE STATEMENT OF ACCOUNT OF PETITIONER WITH STATE BANK OF INDIA DATED 14-11-2011 EXT.P2 TRUE COPY OF THE STATEMENT OF ACCOUNT WITH INDUSIND BANK PERTAINING TO PURCHASE OF VEHICLE DATED 09-12-2010 EXT.P3 TRUE COPY OF THE STATEMENT OF ACCOUNT WITH INDUSIND BANK PERTAINING TO PURCHASE OF VEHICLE DATED 09-12-2010 EXT.P4 TRUE COPY OF THE PANCHAYATH LICENCE DATED 03-05-2011 ISSUED TO PETITIONER EXT.P5 TRUE COPY OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD ISSUED TO PETITIONER DATED 18-02-2010 EXT.P6 TRUE COPY OF THE EXPLOSIVE LICENSE DATED 13-02-2012 ISSUED TO THE PETITIONER. EXTP7 TRUE COPY OF THE SHOTFIRER'S CERTIFICATE DATED 19-03-2012 ISSUED TO THE PETITIONER EXT.P8 TRUE COPY OF THE CENTRAL SALES TAX CERTIFICATION OF REGISTRATION ISSUED BY COMMERCIAL TAX OFFICER, NEYYATTINKARA EXT.P9 TRUE COPY OF THE PANCHAYATH LICENCE DATED 26-04-2012 ISSUED TO PETITIONER. EXT.P10 TRUE COPY OF THE QUARRYING PERMIT DATED 04-07-2011 ISSUED BY GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY , THIRUVANANTHAPURAM EXT.P11 TRUE COPY OF THE QUARRYING PERMIT DATED 16-11-2011 ISSUED BY GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, THIRUVANANTHAPURAM. EXT.P12 TRUE COPY OF THE LEASE AGREEMENTS ENTERED INTO BY PETITIONER WITH THE OWNERS OF LAND. EXT.P13 TRUE COPY OF THE LEASE AGREEMENTS ENTERED INTO BY PETITIONER WITH THE OWNERS OF LAND. EXT.P14 TRUE COPY OF THE COMPLAINT DATED 11-11-12 FILED BEFORE THE 2ND RESPONDENT. EXT.P15 TRUE COPY OF THE COMPLAINT DATED 16-08-12 FILED BEFORE THE 4TH RESPONDENT. sts 2/-** **-2-** ## **WP(C)NO.19808/2012** ## **RESPONDENTS' EXHIBITS AND ANNEXURES :** **EXT.R5(A) COPY OF THE REPRESENTATION DATED 06/08/2012 SUBMITTED BY THE CONVENOR OF SHASTHAMPARA SAMRAKSHANA SAMITHI TO THE DISTRICT COLLECTOR, THIRUVANANHAPURAM.** **ANNEX R4(A) COPY OF THE STATEMENT SUBMITTED BY THE VILLAGE OFFICER** **ANNEX R4(B) COPY OF THE REPORT DATED 12/9/2012 SUBMITTED BY THE VILLAGE OFFICER** **ANNEX R4(C) COPY OF THE SKETCH DATED 12/9/2012 SUBMITTED BY THE VILLAGE OFFICER.** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K.M. JOSEPH & K. HARILAL JJ. ===================== W.P.(C)No19808 of 2012 ===================== Dated this the 8[th] day of November 2012** ## **JUDGMENT** ## **K.Harilal,J.** The writ petition is filed seeking police protection for the peaceful conduct of the petitioner’s crushing unit and quarrying operation and for the lives of the petitioner, Partner, staff and workers against illegal acts of respondents 5 to 12 and their henchmen. The averments in the writ petition are as follows: 2. The petitioner’s firm by name ‘Sreesastha Blue Metals’ is conducting a metal crushing unit situated in Resurevey No. 260/16, 258/16 in Kunnathukal Panchayath. The unit was started after availing a loan of Rs.1,35,00,000/- from State Bank of India. Thus the WPC 19808/2012 2 petitioner is required to repay huge amounts as instalments on monthly basis and the petitioner cannot afford to stop its business operation even for a short period. Exts.P1 to P3 are the documents pertaining to the loan transactions. The petitioner has already obtained all statutory permits/licences for conducting the unit. Ext.P4 is the licence issued by the Panchayath for conducting crusher unit. Ext.P5 is the true copy of the consent issued by the Pollution Control Board and Ext.P6 is the Explosive Licence issued by the Joint Chief Controller of Explosives. Ext.P7 is the certificate issued by the Controller of Explosives, Ernakulam and Ext.P8 is the certificate of registration issued by the Authority under Central Sales Tax (Registration and Turnover) Rules, 1957. Ext.P9 is the licence for quarrying issued by the Panchayath. Ext.P10 is the quarrying permit issued by Geologist, Department of Mining & Geology, Thiruvananthapuram for quarrying in Survey No.263/3 of Anavoor Village. Ext.P11 is the WPC 19808/2012 3 quarrying permit issued in favour of the petitioner for quarrying in Re-Survey No.260/20, 263/5, 5-1 of Anavoor Village. Exts.P12 and P13 are the agreements entered into by the petitioner with the owners of the land in Survey Numbers mentioned above. 3. The grievance of the petitioner is that respondents 5 to 12 and their henchmen purporting to be members of some committee of a temple started creating obstructions to the functioning of the quarry by threatening and preventing the workers and equipments from entering the establishment. On 11/8/2012, the above said respondents entered petitioner’s premises with deadly weapons and threatened the employees, so as to close down the establishment. Thus respondents 5 to 12 are creating such a situation of terror so that the petitioner is unable to operate his business till date. Such action amounts to interference with the exercise of fundamental right of the petitioner to carry on with his trade. The petitioner has WPC 19808/2012 4 already obtained all statutory permits and licences. Respondents 5 to 12 had absolutely no right whatsoever to prevent the functioning of the petitioner’s unit . 4. Aggrieved by the unlawful obstruction caused by respondents 5 to 12, the petitioner filed Ext.P12 complaint before the second respondent. Again the petitioner has filed Ext.P15 complaint complaining the unlawful act of respondents 5 to 12. Though by Exts.P14 and P15, the petitioner requested respondents 2 to 4 to extent sufficient protection against the illegal act perpetrated by respondents 5 to 12, respondents 1 to 4 have not taken any action on the above said complaints. In the above circumstances, the petitioner filed this writ petition with the aforementioned reliefs. 5. Respondents 5 to 12 have entered appearance and the 5[th] respondent filed a counter affidavit for and on behalf of respondents 5 to 12 also. They contended that in view of the decisions in **M/s. Gem Granites v. Deputy** WPC 19808/2012 5 **Superintendent of Police, Neyyattinkara and others, 2008(1)KLT 937** and **George v. Circle Inspector of Police, 1990(1)KLT 741** and an unreported judgment of this Court in **W.P.(C) No.5340/2012** , statutory clearances are not sufficient to get police protection under writ jurisdiction, unless special reasons for the petitioner in invoking the writ jurisdiction of this Court rather than taking recourse to the alternate remedy of civil suit, are pleaded in the writ petition. In the instant case, there is no such pleadings. The writ petition is bad for non-joinder of parties as Kunnathukal Grama Panchayath is not made a party. None among respondents or any persons connected with them have resorted to any illegal action against the petitioner. They are law abiding citizens engaging in different professions. The area wherein the petitioner is carrying quarrying activities is a hill by name Sasthampara. Sasthampara as well as neighbouring hills named Pandavanpara and Aduppukootti Para are places of WPC 19808/2012 6 mythological importance as it is believed that the Pandavas while in exile, resided in these areas along with their mother Kunthi and Draupadi. It is believed that Kunthi had climbed up Sasthampara with essential materials in bundles and women now climb up Sasthampara with ‘Irumudi kettu’ to the Sashtha temple wherein during Makaravilakku to commemorate the same. Subsequently, a Sashtha temple has been put up there and the said temple is popularly known as “Sabarimala of Women”. Further there is a water source above the said Sasthampara which will never go dry. Now the Government is putting up a drinking water project by expending nearly 18.50 crores to supply of drinking water. The quarrying will adversely affect this project. It is also causing heavy pollution resulting in respiratory diseases, soil erosion during rainy season and drying up of various water sources. The people in the locality, therefore, on 6/8/2012 submitted Ext.R5(a) representation to the District Collector, Thiruvananthapuram WPC 19808/2012 7 through the Convener of the Sasthampara Samrakshana Samithi seeking his immediate intervention to stop quarrying activities in the locality. To their knowledge, on the application, the Village Officer Anavoor Village submitted a report stating that quarrying activities were going on in the localities close to the puramboke properties in which temple was situated and to the site wherein the aforementioned drinking water project had been proposed. 6. The proceedings before the District Collector, Thiruvananthapuram in pursuance of Ext.R5(a)) representation have not been finalized. Similar representations are pending before all the statutory authorities. Respondents 5 to 12 are unaware about the loan transactions of the petitioner. The petitioner has not produced licence from Kunnathukal Panchayath to conduct quarrying in Survey No.263/3 of Anavoor Village. Neither Ext.P9 Panchayath licence nor Exts.P10 and P11 quarrying permit enable the petitioner to conduct quarrying activities WPC 19808/2012 8 in Re Survey No.263/6-1 of Anavoor Village. Ext.P13 can only be a sham document executed to perpetrate illegal and unauthorized quarrying. The averments in paragraphs 6 and 7 are denied. The socially active people in the locality have taken up the matter and they are conducting various campaign in the Panchayath to invite public attention into the issue. They have also filed complaints before the Police against unauthorized quarrying in the locality. None of the grounds raised in the writ petition are tenable in law. So, this writ petition is liable to be dismissed. 7. The 4[th] respondent filed a statement along with Annexures R4(a) to R4(c). In the statement it is stated that the respondent did not receive any petition as contended by the petitioner. On enquiry, it is revealed that as of now there is no law and order issue in the functioning of the quarry unit referred to in the writ petition. It is stopped due to lack of renewed licence. It is stated that in WPC 19808/2012 9 compliance with the directions of this Court, the 4[th] respondent again visited the quarry and surrounding land along with the Village Officer, Anavoor. The Village Officer has submitted Annexure R4(a) statement. Annexure R4(b) is the report and Annexure R4(c) is the sketch. It is further stated that the Village Officer has reported that an extent of 199 cents in Re Survey No.263/1 is Government land and that nobody including the petitioner has encroached in the said land. However, Sastha temple is seen situated on the Government land. 8. The petitioner filed a reply affidavit contending that the decisions in **2008(1)KLT 937 (supra) and 1991(1) KLT 741(supra)** are not applicable to the petitioner’s case as the facts are entirely different. The averments in paragraph 5 of the counter affidavit are put to strict proof. The averments in paragraphs 6 and 7 are not applicable in the petitioner’s case. The places mentioned are kilometers away from petitioner’s establishment. Ext.R5(a) WPC 19808/2012 10 representation dated 6/8/2012 relates to some land in Re Survey No. 263/2 and the petitioner is not conducting quarrying operation in that property. It is pertinent to note that respondents had admitted that the alleged temple is situated in Puramboke property and hence all their claims are unlawful. Subsequently, the petitioner has filed I.A.No.13029/2012 to accept Exts.P16 to P19 documents. Ext.P16 is the copy of decision No. V(1) Dated 5/9/2012 of Kunnathukal Panchayath, which directed the petitioner not to operate the crusher unit till the renewal of licence. Ext.P17 is the order issued by the Secretary pursuant to Ext.P16 resolution. The petitioner has filed an appeal before the Tribunal for Local Self Government Institutions and obtained Ext.P18 stay order, which stayed the operation of Exts.P16 and P17. The petitioner again filed a complaint dated 25/9/2012 before the Sub Inspector of Police, Vellarada Police Station and the receipt is marked as Ext.P19. WPC 19808/2012 11 9. We heard Smt. Indu Susan Jacob, learned counsel for the petitioner, Shri C.R.Syam Kumar, the learned Government Pleader for respondents 1 to 4 and Shri V. Manu, learned counsel appearing for respondents 5 to 12. 10. The learned counsel for the petitioner submits that the petitioner has a fundamental right to carry on trade or business under Article 19(1)(g) of the Constitution of India and he has obtained all statutory permits required under law. Therefore, the petitioner is entitled to get police protection. Mythological belief raised by respondents 5 to 12 has no basis at all and that is a place far away from the place where the petitioner is conducting the unit. When Ext.R5(a) is pending before the District Collector, respondents 5 to 12 have no right to take law in their own hands and to object the operation of the quarry. Though the Panchayath has taken a decision not to renew the licence, the above said decision is stayed by Ext.P18 order passed by the Tribunal for Local Self Government. WPC 19808/2012 12 11. Learned counsel for respondents 5 to 12 placed reliance on the decisions mentioned in the counter affidavit and submitted that unless special reasons are specifically mentioned in the writ petition, the writ petition is not maintainable in view of the above said decisions. The learned counsel drew our attention to the mythological belief of the people in that locality about Sasthampara. The counsel submitted that the quarrying operation will cause hurt to the belief of the people which they are keeping in their mind from time immemorial. 12. The learned Government Pleader submitted that in view of the report of the Village Officer, there is no encroachment on the Government land and the place where Sastha temple situated is far away from the place where quarrying operation is carrying on. 13. We have given our anxious consideration to the rival submissions made by the learned counsel for contesting parties. WPC 19808/2012 13 14. The question to be considered is whether the petitioner is entitled to get police protection as prayed for in this writ petition? According to the petitioner, his firm is operating a quarrying and crushing unit for the last several years, after obtaining all statutory permits and licences in accordance with law. The firm’s right to conduct quarrying unit is established by Exts.P9 to P13. Similarly, the right to conduct crushing unit is established by Exts.P4 to P8. These units were started after availing a loan of Rs.1,35,00,000/from State Bank of India. The firm is required to pay huge amount as monthly instalments. Neither the party respondents nor any body in that locality have challenged Exts.P4 to P13 permits/licences so far. But the Panchayath by Ext.P16 resolution denied the renewal of licence and by Ext.P17 directed the petitioner to stop the operation of the unit till the granting of license but by Ext.P18 order, the Tribunal for Local Self Government stayed Ext.P16 and Ext.P17 till the disposal of the appeal. Thus Exts.P4 to P13 WPC 19808/2012 14 are in currency. The right to conduct the above said business or trade is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. In short, the petitioner is seeking police protection to exercise a fundamental right guaranteed under the constitution. 15. Per contra, the party respondents have not raised any kind of right or title over the properties in which either the quarrying operation are going on or crushing unit is functioning. But their interest is that the hills where the quarrying operations are going on are places of mythological importance and it is believed that Pandavas while in exile resided in these hills with their mother Kunthi and Draupadi. In view of these theological importance, a Sastha temple has been put up there. The said temple is popularly known as the Sabarimala of women. In addition to this, according to the party respondents, there is a water source and now the Government is planning a drinking water project to supply water for two panchayaths. Further, the unit is WPC 19808/2012 15 causing heavy pollution resulting in respiratory diseases, soil erosion etc. These are the grievance projected in Ext.R5(a). We have considered the mass grievance projected in Ext.R5(a) and remedy open to them. According to the petitioner firm, they have been conducting the unit since the last so many years, and it has not been specifically challenged in the counter affidavit. Ext.R5(a) is a representation submitted on 6/8/2012 only and according to the respondents, the proceedings before the District Collector in pursuance of Ext.R5(a) representation have not been finalized. The historical and mythological importance of Sasthampara is a matter within the knowledge of everybody in that locality and it is a matter which could have been brought up before the concerned authorities before the commencement of the unit. However, the matter is pending before the concerned authority. We find that during the pendency of Ext.R5(a), the party respondents have no right to take law in their own hands WPC 19808/2012 16 and to cause physical obstruction to the smooth functioning of the petitioner’s unit, more particularly when they have all statutory permits and licences to run the unit. The people in the locality ought to have resorted remedies under law. We feel that the police ought to have granted protection to the unit ,which is being run in accordance with law. 16. Secondly, the statement filed by the 4[th] respondent states that pursuant to the directions of this Court, the 4[th] respondent along with Village Officer, Anavoor Village visited the quarry and surroundings. The Village Officer submitted a statement along with report and sketch. True copy of the same is produced along with the statement and marked as Annexures R4(a), R4(b) and R4(c) respectively. We notice the statement of the Village officer that to an extent of 199 cents in Re Survey No. 263/1 is Government land and nobody including the petitioner has encroached into the said land and Sastha temple is seen situated on the WPC 19808/2012 17 Government land. Nothing on record available before this court to establish the mythological belief except the averments in the counter affidavit. 17. Another point raised by the counsel for the respondents is that the petitioner has not made out either specifically or by implication any special reasons for the petitioner in invoking writ jurisdiction rather than taking recourse to the alternate remedy of a civil suit. The learned counsel placed reliance on **1990(1)KLT 741 and 2008(1) KLT 937 (supra)** and the decision of this Court in Writ petition (Civil) No.5340/2012. Going by the pleadings, the averments in paragraph 6 implies that the cause of action arose from the obstruction caused by a temple committee and its believers at large. Exts.P14 and P15 are filed against 15 unidentified persons also. This aspect can be treated as a special reason to invoke writ jurisdiction rather than resorting to civil remedies. It could be understood from the counter affidavit and Ext.R4(a), that a protest WPC 19808/2012 18 arose from mythological belief of Hindus is brewing in the locality against functioning of the petitioner's quarrying unit. Unlike the facts involved in the decisions cited above, in the instant case the cause of action which gives rise to the writ petition is neither connected with any kind of title dispute nor labour or employment issues. An issue arose from religious sentiments of large number of persons may give rise to law and order problem for which relief lies within the domain of police. Such a situation is to be viewed in the light of the decision reported in **Essar Telecom Infrastructure (P) Ltd. v. C.I. Of Police [2010 (2) KLT 762].** In the said decision, the Full Bench of this Court held that “it is pertinent to note that the 'Civil Dispute' forming the subject matter of a case before the Civil Court and granting of injunction can only be in respect of a 'known person' in the party array and the rights, liberties and enforcement are confined between such parties. Unlike this, in the case of forceful obstruction by a group of people in the WPC 19808/2012 19 locality, whose identity may not be known to the persons like the petitioners, such persons cannot be effectively brought before the Civil Court. That apart, interim order of injunction, if at all obtained, will have to be served to such persons and if only any violation is established, further action can be taken against such person who is a party before the Civil Court, which may not be possible in a case as herein, where obstruction is being made by a group of people. For this reason itself, the civil remedy may not be effective at all”. 18. Further it was held that nobody has right to cause physical obstruction to the vested rights and interests of other citizens, preventing construction/operation using muscle power. Exts.P14 and P15 complaints are filed against 15 unidentifiable persons. Thus facts involved in this writ petition can be distinguished from the facts of the cases in **1990(1)KLT 741 and 2008(1)KLT 937(supra).** Thus the petitioner can be justified in invoking writ jurisdiction of this Court, instead of resorting to civil remedy. WPC 19808/2012 20 19. In the light of the above discussion, we are inclined to grant police protection for the smooth functioning of the petitioner’s unit subject to certain conditions. 20. In the result, Respondents 1 to 3 are directed to afford adequate and effective police protection to the lives of the petitioner, his partner, staff and workers and for the smooth functioning of the petitioner’s unit including ingress and egress of all workers and vehicles against all or any of the obstructions of respondents 5 to 12 and anybody acting under them. We make it clear that : 1)Ext.R5(a) representation will be disposed of untrammeled by this order and police protection will be subject to decision which will be taken on Ext.R5(a). 2)This order will not stand in the way of respondents 5 to 12 seeking statutory remedies against Exts.P4 to P11. WPC 19808/2012 21 3) Police protection will be subject to final decision to be taken in Appeal No. 775/2012 by the Tribunal for Local Self Government Institutions. The writ petition is allowed as above. **Sd/K.M. JOSEPH, JUDGE** **Sd/K. HARILAL, JUDGE** **Ks.** True copy P.S.to Judge WPC 19808/2012 22