IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 10274 of 2011(H) --------------------------------------- PETITIONER: ------------------- SAROJINI BALAKRISHNAN, W/O.BALAKRISHNAN, RESIDING AT MADATHIPARMBIL HOUSE, KODASSERY VILLAGE, THRISSUR DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS.SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP, SRI.MATHEWS RAJU. RESPONDENTS: ------------------------ 1. THE PANCHAYATH COMMITTEE, REPRESENTED BY ITS PRESIDENT, KODASSERY GRAMA PANCHAYATH, KODASSERY P.O., CHALAKUDY, THRISSUR – 680 725. 2. THE KODASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KODASSERY P.O., CHALAKUDY, THRISSUR – 680 725. 3. M.G.VINODAN, RESIDING AT MADATHIPARAMBIL HOUSE, MECHIRA, KODASSERY P.O., CHALAKUDY, THRISSUR – 680 725. R1 & R2 BY ADVS. SRI.ASOK M.CHERIAN, SRI.SANTHOSH G. PRABHU, R3 BY ADV. SRI.A.S.RADHAKRISHNAN NAIR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2011, ALONG WITH W.P.(C). NO.12054/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F ***************************** Dated this the 1st day of June, 2011 JUDGMENT BASANT, J. W.P(c) No.12054 of 2011 The petitioner has come to this Court with this petition complaining of harassment by respondents 1 to 4, all police officials. According to the petitioner, the petitioner is running a quarry in his property in accordance with law after obtaining all requisite licences. Exts.P1 to P6 are the licences. Ext.P7 has been produced by the petitioner under the Right to Information Act to show the nature of licences that ought to be secured by a person to enable him to run a quarry validly. Ext.P8 Government Order has been produced by the petitioner to impress upon the Court the fact that Ext.P1 licence could not have been issued by the Panchayat without and before satisfying itself that all other requisite permits/licences – Exts.P1 to P6, have been obtained by the petitioner. It is the case of the petitioner thus that he is in law entitled to run a quarry without any obstruction from anyone. W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 2 2. According to the petitioner, respondent No.5 is an influential person. She was herself running a quarry adjacent to the quarry of the petitioner. She has prevailed upon the police to vex and harass the petitioner. Respondents 1 to 4 allegedly under the influence of the 5th respondent are causing unnecessary harassment to the petitioner. He is being vexed. He is not being permitted to work his quarry peacefully. It is, in these circumstances, that the petitioner has come to this Court seeking police protection. 3. Respondent No.5 has entered appearance. Respondent No.5 contends that the petitioner is not entitled to run the quarry. It is hence that he has raised valid objections. Ext.P1 permit issued by the Panchayat is not valid. The 5th respondent has already filed W.P(c) No.10274 of 2011 challenging the grant of permit. The daughter in law of the 5th respondent has filed O.S.No.273 of 2008 before the Chalakkudy Munsiff's Court and an order of injunction has been passed by the learned Munsiff restraining the petitioner herein from running the quarry “without requisite licence and violating the orders of the District Magistrate and the Additional District W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 3 Magistrate”. The 5th respondent further contends that in W.P(c) No.10274 of 2011, the learned Single Judge of this Court had on 01.04.2011 directed the parties to maintain status quo. According to the 5th respondent, the status quo in respect of the quarry on 01.04.2011 is that the quarry was not functioning. 4. The learned counsel for the petitioner controverts these contentions. It is conceded that there was an order of injunction passed by the Munsiff's Court. But, after securing the requisite lincences, after intimation to the court, ie. Munsiff's Court, Chalakkudy, the petitioner has commenced quarrying activities on 22.03.2011. Status quo as on 01.04.2011 is that the quarry was running. In these circumstances, the objection raised is without any basis, submits the learned counsel for the petitioner. 5. The learned Government Pleader after taking instructions from respondents 1 to 4 submits that a complaint was received from the 5th respondent that the activity of quarrying undertaken by the petitioner is causing damage and threat to the life and property of the 5th respondent. It was, in these circumstances, that the police called both sides to appear W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 4 before the police. Parties were only advised to strictly comply with orders of competent courts and authorities. Police have no intention to obstruct the petitioner from running the quarry. Parties may be directed to abide by the orders of the civil court and the directions issued by the authorities. Appropriate orders may, in these circumstances, be passed, submits the learned Government Pleader. 6. The short question that arises for consideration in W.P (c) No.12054 of 2011 is whether respondents 1 to 4 are justified in allegedly placing fetters on the running of the quarry by the petitioner. W.P(c) No.10274 of 2011 7. This petition is filed by the 5th respondent in W.P(c) No.12054 of 2011. In that, she challenges Ext.P4 licence issued by the 2nd respondent Grama Panchayat to the 3rd respondent to run a quarry. According to the petitioner, the 3rd respondent has not complied with the requirements of law. The 3rd respondent has not observed the relevant stipulations in the permits/licences granted by other authorities. In these circumstances, the 2nd respondent is not justified in issuing Ext.P4 licence to the 3rd W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 5 respondent. The same deserves to be set aside. This is the stand of the petitioner in W.P(c) No.10274 of 2011. 8. Respondents 1 and 2 are the panchayat committee and the grama panchayat. A counsel appears for the panchayat. According to the counsel, the panchayat had granted the licence after observing all requisite formalities. However, the petitioner has preferred an appeal before the 1st respondent challenging the grant of Ext.P4 licence. Panchayat committee is seized of the matter. Appropriate decision shall be taken expeditiously. If the Court is so pleased, time bound direction may be issued to the panchayat to consider the appeal preferred by the Writ Petitioner. The same shall be done. It is the case of respondents 1 and 2 that in pursuance of the order of status quo issued on 01.04.2011, the quarry is not working now. 9. The 3rd respondent, ie. the petitioner in W.P(c) No.12054 has opposed the prayer in W.P(c) No.10274 of 2011. According to him, there is no necessity for this Court invoking the jurisdiction under Article 226 of the Constitution of India to interfere with the licences issued by the panchayat. The counsel asserts that the civil court is already seized of the matter. The W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 6 civil court was specifically informed of the fact that in due compliance with the order of injunction, the quarry is being run from 22.03.2011. The civil court has not passed any further orders. The parties to the civil court had not sought any further directions from the civil court. In these circumstances, this Writ Petition only deserves to be dismissed. The petitioner must either get relief in the appeal filed by her before the panchayat committee or the plaintiff in the suit pending before the Munsiff's Court, Chalakkudy, must seek appropriate further relief from that court. The prayer in this Writ Petition is without any merits. The same deserves to be dismissed. 10. The question that arises for consideration in W.P(c) No.10274 of 2011 is only whether this Court should invoke its jurisdiction under Article 226 of the Constitution to set aside Ext.P1 licence. 11. As the disputes in these two petitions are integrally connected, we have taken up these two petitions together for disposal. We are satisfied that the petitioner in W.P(c) No.12054 of 2011 has all the requisite licences/permits for running the quarry. It is true that issue of licence by the panchayat is W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 7 challenged in W.P(c) No.10274 of 2011 and there is an order to maintain status quo. Parties are not in agreement as to what the status quo as on 01.04.2011 was. Ext.P9 produced in W.P(c) No.12054 of 2011 clearly shows that after intimation to the Chalakkudy Munsiff's Court in terms of the order of injunction, the petitioner in W.P(c) No.12054 of 2011 had commenced the quarrying activities. The learned Munsiff has not passed any further orders. No further orders appear to have been sought by the plaintiff in that suit from the Munsiff's Court. 12. Under the relevant statute, an appeal lies before the 1st respondent panchayat committee and the 5th respondent in W.P(c) No.12054 of 2011, ie. the petitioner in the other Writ Petition, has already approached the panchayat committee with an appeal. Before the panchayat committee considers the statutory appeal, we find no reason for this Court exercising jurisdiction under Article 226 of the Constitution to consider the validity of the licence issued. We accept the undertaking of the learned counsel for the 1st respondent that the panchayat committee shall be considering the appeal at the earliest. We direct the panchayat to consider such appeal in accordance with W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 8 law expeditiously - at any rate, within a period of 3 weeks from this date. 13. We are, in these circumstances satisfied that the challenge raised against the licence issued by the panchayat in W.P © No.10274 of 2011 cannot be entertained. We agree with the learned counsel for the petitioner in W.P(c) No.12054 of 2011 that the 5th respondent must seek appropriate further directions from the Munsiff's Court or wait for the disposal of the appeal preferred by her before the panchayat committee. 14. Coming to the prayer in W.P(c) No.12054 of 2011, we are satisfied that respondents 1 to 4 should not be permitted to place any fetter on the running of the quarry by the petitioner. Needless to say, if there is any violation of the terms of any permits/licences (Exts.P1 to P6), it shall be open to the 5th respondent to complain to the appropriate authorities. At any rate, respondents 1 to 4 cannot be permitted to fetter the running of the quarry by the petitioner. We accept the submission of the learned Government Pleader that respondents 1 to 4 shall not indulge in any such conduct. Needless to say that if any crime is committed while running the quarry, W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 9 respondents 1 to 4 shall have jurisdiction to take appropriate action in accordance with law. 15. A contention has been raised before us that the petitioner in W.P(c) No.12054 of 2011 has not complied with the conditions and stipulations in the consent to operate issued by the Kerala State Pollution Control Board. Specifically it is contended that the insistence on the minimum distance stipulated in 3.1 of Ext.P1 in W.P(c) No.10274 of 2011 has not been complied with. We need only mention that we are not going into that dispute in detail here, for absence of satisfactory data. That objection can certainly be raised before the Munsiff's Court or before the panchayat committee considering the statutory appeal or even before the authorities which issued Exts.P1 to P6 licences. 16. We are, in these circumstances, satisfied that the prayer in W.P(c) No.10274 of 2011 does not deserve to be allowed and the prayer in W.P(c) No.12054 of 2011 deserves to be allowed. 17. In the result: A) W.P(c) No.10274 of 2011 is dismissed with direction W.P(c) No.10274 of 2011-H and W.P(c) No.12054 of 2011-F 10 to the 1st respondent panchayat to dispose of the appeal preferred by the petitioner as expeditiously as possible – at any rate, within a period of 3 weeks from this date; B) i) W.P(c) No.12054 of 2011 is allowed; ii) The submission/undertaking of the learned Government Pleader on behalf of respondents 1 to 4 that they shall not cause any obstructions to the running of the quarry by the petitioner is accepted; C) We may hasten to observe that we have not chosen to go in detail to the various objections raised by the 5th respondent in W.P(c) No.12054 of 2011 and we close the matter with the observation that the 5th respondent in WP(c) No.12054 of 2011 shall be entitled to raise all the relevant contentions before the Munsiff's Court, Chalakkudy, before the panchayat committee, ie. the 1st respondent in W.P(c) No.10274 of 2011 as also before various authorities who have issued Exts.P1 to P6. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/