W.P.(C).No.15434/2022: Naveen Pillai and others v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 15434 OF 2022`** ## **`PETITIONERS:`** - `1 DR.NAVEEN PILLAI, AGED 53 YEARS S/O PARAMESWARAN PILLAI, RESIDING AT KAILASAM, EDAYANMULA, PATHANAMTHITTA DISTRICT. PIN- 689 533.` - `2 M.E.PARAMESWARAN, AGED 68 YEARS` - `S/O AYYAPPAN ITHIYATHY, RESIDING AT RAMANIKA, KEEZHCHERIMELMURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. PIN-689121.` - `3 BOZEN JOHN, AGED 38 YEARS S/O P.V. JOHN, RESIDING AT SILVER NEST, KEEZHCHERIMEL MURI, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. PIN- 689121. BY ADVS.` - `K.N.RADHAKRISHNAN(THIRUVALLA) R.KISHORE (KALLUMTHAZHAM)` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM - 695001.` - `2 DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM -695 004.` - `3 THE GEOLOGIST, DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY MINI CIVIL STATION, IST FLOOR, CHERTHALA P.O., ALAPPUZHA. PIN-688524.` - `4 DISTRICT COLLETOR, COLLECTRATE, CIVIL STATION, ALAPPUZHA DISTRICT PIN-` - `5 TAHASILDAR, CHENGANNUR TALUK, CHENGANNUR P.O., ALAPPUZHA PIN-689121.` - `6 CHENGANNUR MUNICIPALITY, CHENGANNUR P.O., ALAPPUZHA DISTRICT. PIN- 689121,` **2** ## **W.P.(C).No.15434/2022** ``` REPRESENTED BY SECRETARY. 7FR. JIJU VARGHESE, AGED 43 YEARS RESIDING AT THUNDIYIL CARMEL VILLA, ANGADICAL SOUTH P.O., CHENGANNUR, ALAPPUZHA DISTRICT. PIN 691555. BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.15434/2022** **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.15434 of 2022** **---------------------------------------------Dated this the 17[th] day of June, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: i. Call for the records relating to Exhibit P1 transits permit of the third respondent and quash the same by issuing a writ of certiorari or such other orders, appropriate writ, direction or orders. ii. Call for the records relating to the building permit and development plan No.BA- 256/2020-21 dated 23.04.2021 issued by the 6[th] Respondent Municipality and quash the same by issuing a writ of certiorari or such other orders, appropriate writ, direction or orders. iii. Issue a writ of mandamus or other writ or direction directing the second respondent to consider and conduct an enquiry about the extraneous facts relating to the issuance of Exhibit P1 as alleged in Exhibit P2 complaint. iv. v. Direct the fourth respondent to supervise and ensure excavation is in terms of building permit and development plan issued by the Municipality. Direct the second respondent to measure out the **4** ## **W.P.(C).No.15434/2022** total quantity of earth removed from property and assess the loyalty and fine for violation of Exhibit P1 and take departmental action against the third respondent, who failed to perform his official capacity. vi. To mould and Issue such other orders and directions as this Hon'ble Court may deem fit in the circumstances. **==> picture [36 x 12] intentionally omitted <==** 2. The main challenge in this writ petition is against Ext.P1 order passed by the 3[rd] respondent. The petitioners were allowed by the Geologist to excavate and remove red earth from the property covered by Ext.R7(d) sketch as per Ext.P1 order. According to the petitioners, this is a blanket order which does not specify or identify the area, the length and width of excavation, depth etc. It is also stated that the petitioners were not heard before passing any order because they already filed a complaint against this before the Geologist. 3. Heard the learned counsel for the petitioners, learned Government Pleader, learned Standing Counsel for the 6[th] respondent and the learned counsel for the 7[th] respondent. **5** ## **W.P.(C).No.15434/2022** 4. The learned counsel for the petitioners takes me through Ext.P1 order and submitted that it is a blanket order which does not specify or identify the area, the length and width of excavation, depth etc. The learned counsel also submitted that from Ext.P1, it is clear that the 7[th] respondent is having 19.66 Ares of land. If the excavation is done in the entire area, that will create lot of problems to the local residents. The learned counsel further submitted that as per Ext.P4, the Geologist already cancelled the permit and therefore, this Court may kindly take note of the same. 5. The learned counsel for the 7[th] respondent submitted that he will excavate the ordinary earth strictly in accordance to Ext.R7(d) plan. In Ext.R7(d) the proposed earth cutting portion is clearly mentioned. The Geologist considered Ext.R7(d) also and inspected the property before passing Ext.P1 order. It is submitted by the learned counsel that the same is demarcated by the Geologist and thereafter Ext.P1 order is passed. The learned Government Pleader submitted that Ext.P4 order is passed based on the interim order passed by this Court. 6. This Court considered the contentions of the **6** ## **W.P.(C).No.15434/2022** petitioner and the respondents. The only challenge against Ext.P1 is that it is a blanket order which does not specify or identify the area, the length and width of excavation, depth etc. I perused Ext.R7(d) sketch which was available before the Geologist at the time of issuing Ext.P1. In Ext.R7(d), the proposed earth cutting portion is clearly mentioned. The 7[th] respondent can remove the earth only in accordance to Ext.R7(d) and Ext.P1. In such circumstances it cannot be said that it is a blanket order which does not specify or identify the area, the length and width of excavation, depth etc. The petitioners are neighbours of the 7[th] respondent. The 7[th] respondent want to level his land for constructing a building. Hence he applied before the Geologist for permission. The learned counsel for the petitioners submitted that the building permit is challenged before the Tribunal for Local Self Government Institutions. The learned counsel appearing for the Municipality submitted that there is no interim order passed by the Tribunal so far to the knowledge of the Municipality. In such circumstances, according to me, there is nothing wrong and there is nothing to interfere with Ext.P1 order. I **7** ## **W.P.(C).No.15434/2022** make it clear that the 7[th] respondent will remove the earth strictly in accordance to Ext.R7(d) sketch. The 3[rd] respondent will supervise the same. The 3[rd] respondent will also pass consequential orders in tune with Ext.P1 in the light of this judgment. With the above observation, this writ petition is closed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **W.P.(C).No.15434/2022** **8** ## **`APPENDIX OF WP(C) 15434/2022`** ``` PETITIONER EXHIBITS Exhibit P1THE COPY OF ORDER/TRANSITS PASS DATED 27.04.2022 ISSUED BY THE THIRD RESPONDENT TO THE 7TH RESPONDENT. Exhibit P2THE COPY OF COMPLAINT SENT TO THE SECOND RESPONDENT DATED 03. 05.2022. Exhibit P3THE COPY OF COMPLAINT SENT TO THE DISTRICT COLLECTOR, ALAPPUZHA DATED 03.05.2022. ``` ``` RESPONDENT EXHIBITS Exhibit R7(A)TRUE COPY OF THE LAND TAX RECEIPT DATED 11/04/2022 ISSUED BY THE VILLAGE OFFICE, CHENGANNUR Exhibit R7(B)TRUE COPY OF THE BUILDING PERMIT BEARING NO. BA-256/20-21 DATED 23/04/2021 ISSUED BY SECRETARY, CHENGANNUR MUNICIPALITY Exhibit R7(C)TRUE COPY OF THE DEVELOPMENT PERMIT BEARING NO. BA-256/20-21 DATED 23/04/2021 ISSUED BY SECRETARY, CHENGANNUR MUNICIPALITY Exhibit R7(D)TRUE COPY OF THE SKETCH APPROVED BY CHENGANNUR MUNICIPALITY IN PERMIT BEARING NO. BA-256/20-21 DATED 23/04/2021 Exhibit R7(E)TRUE COPY OF THE ORDER BEARING NO. 12/2022-23/MM/OE/DOA/672/2021 DATED 27/04/2022 ISSUED BY THE 3RD RESPONDENT PETITIONER EXHIBITS Exhibit P4TRUE COPY OF THE COMMUNICATION DATED 08/06/202 ISSUED BY THE 3RD RESPONDENT ```