IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 595 of 2009(U) ----------------------------------------- CMA.6/2008 of SUB COURT, QUILANDY IA.1282/08 IN OS.78/2008 of MUNSIFF COURT, QUILANDY .................... PETITIONERS: 1. K.E. SAHADEVAN, S/O. KANARAN, RESIDING AT KUNNUMELIDATHIL HOUSE, P.O. IYYAR, UNNIKULAM, KOZHIKODE. 2. M.C. JITHESH KUMAR, S/O. BHASKARAN, RESIDING AT MANIKKAM CHALIL HOUSE, P.O. IYYAR, UNNIKULAM, KOZHIKODE. 3. K.P. BABU, S/O. BAPPUKUTTY, RESIDING AT MOOLAYIL VALAPPIL HOUSE, P.O. IYYAR, UNNIKULAM, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: 1. ARAVINDAKSHAN, S/O. RAMAN KUTTY, RESIDING AT KARUVARUKUNDIYIL HOUSE, P.O. IYYAR, UNNIKULAM, KOZHIKODE. 2. O.M. INDIRA, W/O. MADHAVAN NAIR, RESIDING AT ERADIYIL HOUSE, P.O. IYYAR, UNNIKULAM, KOZHIKODE. ADV. SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.595 of 2009 U -------------------------- JUDGMENT Heard arguments of counsel on both sides. 2. Petitioners are the plaintiffs in a suit for temporary injunction restraining the respondents/ defendants from conducting blasting and excavation of granite stones from the quarry in the scheduled property. It is contended that they are doing so illegally and unscientifically and also destroying the public pathway in the plaint schedule property. The trial court granted an interim injunction after hearing the parties, vide Exhibit P1 order. Even in the said order, it was made clear that the said injunction order will not prevent the respondents/ defendants from excavating the granite stones after demarcating 2.12 acres of property covered by Exhibit B7 permit. 3. Respondents/defendants filed I.A.No.649/08 seeking permission to excavate granite stones from 2.12 acres of property covered by Exhibit B7 WPC 595/09 2 permit. I do not understand the purpose of moving such a petition, as that had been allowed by Exhibit P1 order itself. Vide Exhibit P2 order passed on I.A.No.649/08, the court below observed that Exhibit P1 order on I.A.No.513/08 also permits the petitioners therein (defendants in the suit), who are the respondents herein, to excavate granite stones from the said property. It was clarified further that they are permitted to blast and excavate the rocks in accordance with Exhibit B7 permit. Petitioners have no case that if the blasting is done in accordance with Exhibit B7, there is any grievance for them. In Exhibit P2 order itself, it is further stated that the petitioners/defendants shall do so after demarcating the area as per law and further that if the respondents are in any way aggrieved as to the proper demarcation and marking, they are at liberty to take out a commission and approach that court. WPC 595/09 3 4. It is the grievance of the petitioners that respondents/defendants have not done demarcation as directed in Exhibit P2 order, whereas, according to the counsel for the respondents, they have demarcated the area with the assistance of the Village Officer and it is only thereafter that they are doing blasting in compliance with Exhibits P1 and P2 orders. Exhibit P2 order is dated 9.4.2008. On 18.9.2008, petitioners filed Exhibit P3 application for getting down a report and plan through the very same Commissioner, who submitted a report and plan earlier, asking for several matters to be ascertained. I do not see any averment in the affidavit accompanying Exhibit P3 that the demarcation of 2.12 acres of property covered by Exhibit B7 had not been done or that the respondents are doing blasting in the quarry not within the area covered by Exhibit B7. The only question that deserved consideration was as to whether quarrying was being done within 2.12 acres WPC 595/09 4 of property covered by Exhibit B7 permit. I do not see such a request made in Exhibit P3 application. On the same day on which Exhibit P3 application was filed, petitioners filed Exhibit P4 application as well for a prohibitory injunction restraining the respondents from doing quarrying, blasting the rocks and again on the same day, Exhibit P6 application also was filed for prosecuting the respondents. As per Exhibit P7 order passed on I.A. No.1282/08, the injunction application filed by the petitioners, was dismissed. The C.M.Appeal filed assailing the said order was dismissed vide Exhibit P9 judgment by the first appellate court. It is assailing the said judgment, confirming the dismissal of the injunction petition vide Exhibit P7 order, that this writ petition has been filed. 5. I do not find any reason to interfere with the concurrent orders so passed by the courts below for the reason that there is no specific case for the petitioners that, as directed in Exhibit P2 WPC 595/09 5 order, the respondents herein have not properly got demarcated 2.12 acres of property as per Exhibit B7 permit and have also not applied for proper demarcation and marking of the said 2.12 acres of property covered by Exhibit B7 permit, though they have asked for several other matters to be got ascertained as per Exhibit P3 application, which is seen to be with intention to create and develop new contentions, which were obviously not there while the court passed Exhibits P1 and P2 orders. Prima facie, I am of the view that it is only the eyesore of the petitioners to see that the respondents do not do any work in the quarry that has prompted them to take up the matters to several courts raising one contention or the other, although inconsistent. If at all their grievance is that the property covered by Exhibit B7 permit is not the property within which quarrying is done, the petitioners may file an application to remit back the commission report to the same Commissioner to WPC 595/09 6 verify that aspect, viz., as to whether quarrying is being done in any portion of the quarry, which is stated to be extending to about 10-15 acres other than in the portion of 2.12 acres covered by Exhibit B7 permit or the permit thereafter renewed, which is stated to be the one now in force and thereafter to seek for appropriate directions. This writ petition is disposed of with the above observations. 28th January, 2009 (K.P.Balachandran, Judge) tkv