IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).NO. 20544 OF 2010(O) ----------------------------------------- OS.114/2009 OF SUB COURT,KATTAPPANA .................... PETITIONER(S): ------------------------- 1. T.R.RAVIPRASAD,AGED 50 YEARS, PRANAVAM HOUSE, SOOLAPPARA KARA, VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. SHEELA,W/O.SIVAPRASAD, PRANAVAM HOUSE, SOOLAPPARA KARA, VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENT(S): -------------------------- ASWATHI MAHILA SAMAJAM,SOOLAPPARA KARA, VANDANMEDU VILLAGE, REPRESENTED BY ITS PRESENT PRESIDENT SNEHA K.THANKAPPAN, D/O.THANKAPPAN,"LAKSHMI VILASOM" HOUSE, SOOLAPPARA KARA, VANDANMEDU VILLAGE, IDUKKI DISTRICT. ADV. SRI.GEORGEKUTTY MATHEW FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20544 of 2010 ==================================== Dated this the 20th day of July, 2010 J U D G M E N T This Writ Petition is in challenge of judgment in C.M.A. No.16 of 2010 of the court of learned Sub Judge, Kattappana confirming order of temporary injunction passed by learned Munsiff, Kattappana on I.A No.361 of 2009 in O.S. No.114 of 1991. That is a suit filed by respondent, claimed to be a Mahila Samajam registered under the law in force and which claimed to be conducting apart from its own activities, Anganwadi and Day Care Unit in the building in plaint A schedule (three cents in extent) over which respondent claimed title and possession as per document No.3097 of 1998. According to the respondent, petitioners are conducting quarrying operations in large scale in plaint B and C schedule properties and a stone crushing unit in plaint C schedule in violation of statutory provisions and without keeping necessary safeguards which pauses danger to the children and others occupying the building in plaint A schedule and nuisance due to dust emanating from the quarries and metal crusher unit which W.P(C) No.20544 of 2010 -: 2 :- pollute the drinking water in the well in plaint A schedule. Respondent sought a decree for prohibitory injunction to restrain petitioners from conducting quarrying operations in plaint B and C schedules and the metal crusher unit in plaint C schedule. Vide I.A. No.361 of 2009 respondent prayed for temporary injunction in the same line. Petitioners opposed the application contending that quarrying operations and metal crusher unit are conducted in accordance with statutory provisions with permission and that it does not create any danger or nuisance to the respondent or anybody else. It is also their case that plaint A schedule is situated more than 200 metres away from plaint C schedule. Petitioners have a further contention that when some people of the locality attempted to trespass into the property belonging to petitioner No.2, she filed a suit against one Vasudevan and others and obtained relief. Defendants in that suit have instigated respondent to file the present suit. Petitioners denied that there is Anganwadi or Day Care Unit functioning in plaint A schedule. Learned Munsiff passed an order of temporary injunction as prayed for. Appellate court while confirming the order of injunction regarding quarrying in plaint B and C schedules vacated the order of injunction against running metal crusher unit. That judgment to the extent it went against petitioners is under challenge in this Writ Petition. Learned counsel for petitioners W.P(C) No.20544 of 2010 -: 3 :- contended that the findings of the courts below are unsustainable. According to the learned counsel a perusal of Ext.P3, report of Advocate Commissioner would show that no danger or nuisance is caused to the occupants if any in plaint A schedule. It is contended that immediately before Advocate Commissioner inspected the properties certain granite stone pieces were deposited in plaint A schedule to make it appear that those stones fell from the quarry in plaint B and C schedules. Learned counsel contended that from the query made with the local Panchayat under the Right to Information Act it is revealed that no Anganwadi or Day Care Unit is functioning in plaint A schedule and that the Mahila Samajam was not functioning in plaint A schedule during the relevant time in that after 2006-07 that Samajam had not even preferred any report (of its activities) to the appropriate authority. Learned counsel has referred me to the various documents produced in the Writ Petition to support his contentions. In response it is contended by learned counsel for respondent that courts below have entered a finding of fact as to the existence of circumstances justifying the grant of temporary injunction which is not required to be interfered under Article 227 of the Constitution so far as it is not shown that findings are perverse or illegal. Disputed questions of facts are to be decided after a full-fledged trial which this Court is not W.P(C) No.20544 of 2010 -: 4 :- required to decide in exercise of its supervisory jurisdiction. It is also contended that there are sufficient materials on record based on which courts below have rightly granted temporary injunction. Learned counsel states that about 14 children are being looked after in the Anganwadi and Day Care Unit, all in the age group of 2-5 years and that distance from plaint B schedule to the plaint A schedule is only 50 metres. Though distance from plaint A schedule to C schedule is 200 metres as per provisions of the Indian Mines Act, the area within a radius of 300 metres from the quarry is a danger zone. It is also the contention of learned counsel that documents now pressed into service by petitioners did not confer any right on them to conduct quarrying operations since all those documents relate to possession and use of explosives but those documents have no reference to the quarry which comes under the purview of Indian Mines Act as held by this Court in Sumathykutty Amma v. Sumangala Devi and Others (2009 [3] KHC 651). Hence none of the documents relied on by petitioners would help them to show that they have valid authority to conduct blasting operation in plaint B and C schedules. Learned counsel points out from Ext.P9, produced in the Writ Petition that even the short fire permit given to the petitioners from the Department of W.P(C) No.20544 of 2010 -: 5 :- Explosives to conduct blasting operations relates to areas other than mines and hence that permit cannot be made use of for carrying operations in the mines in the light of the decision in Sumathykutty Amma v. Sumangala Devi and Others (supra). Learned counsel also referred my attention to Ext.R1(a) produced in the Writ Petition which is certified copy of counter affidavit filed by Controller of Explosives, Chennai (in another case) where it is stated that blasting operation in quarries come under the purview of the Indian Mines Act while use of explosives not coming under the purview of Sec.52 of that Act is regulated by the Explosive Rules . 2. Both sides have their respective contentions as to whether petitioners are having valid authority to conduct blasting and quarrying operations in plaint B and C schedules. But for the purpose of this Writ Petition I do not consider it necessary to refer to those contentions and the documents produced for the first time by either side in the Writ Petition. Those documents were not produced in the courts below which had no occasion to refer to the documents and enter a finding. Nor have the courts below entered a finding that quarrying operations in plaint B and C schedules is carried on by petitioners without authority. Hence I do not think it just or proper to decide that issue in this Writ Petition. That question, trial court has to decide after trial. I W.P(C) No.20544 of 2010 -: 6 :- leave that matter for decision of the trial court without expressing any opinion either way whether petitioners have valid authority to conduct quarrying/blasting operations in plaint B and C schedules. 3. Grant of temporary injunction is based on existence of a prima facie case, balance of convenience and irreparable loss and injury. It is not disputed that in plaint B and C schedules petitioners are engaged in large scale quarrying/blasting operations. As the Advocate Commissioner states in Ext.P3, extent of plaint A schedule is only three cents and plaint B schedule is situated 70 metres away from plaint A schedule. The quarry in plaint B schedule has a width of 28 metres and depth of 27 metres. Plaint C schedule is 202 metres away from plaint A schedule. A similar quarry and metal crusher unit are functioning in plaint C schedule. Report of the Advocate Commissioner shows that sufficient precautionary measures are taken to prevent emanation of dust from the metal crusher unit. The Commissioner found 24 employees and 7 lorries engaged in the process of removal of granite stones from the quarries. 4. Then the question is whether finding of the courts below regarding prima facie case is based on any materials. In Ext.P3, report Advocate Commissioner has stated that there is a building made of hollow-bricks in plaint A schedule and bearing W.P(C) No.20544 of 2010 -: 7 :- door No.VP/III/437 where he found name boards of Soolappara Community Hall and Aswathy Mahila Samajam in the wall with registration No.1/256/97. The Commissioner found children in the main hall of the building. Commissioner found some stones lying on the asbestos roof. He also found a small crack of 2 cms on the wall of the building in A schedule. A few stones were found in the courtyard. Petitioners asked the Commissioner to report whether it was possible to put those granite pieces on the roof and courtyard and he answered in the affirmative. True, petitioners have a contention that quarrying/blasting operations in plaint B and C schedules are being carried from 1997 onwards but the complaint is that on 31.3.2009 due to blasting/quarrying operations in plaint B schedules some granite stone pieces fell in the courtyard and on 22.6.2009 two stone pieces fell on the asbestos roof of the building. According to the learned counsel there is no case of any such falling of stones before those two days or after filing of the suit. But I do not think that a critical analysis of the averments in the plaint is necessary in this Writ Petition where this Court is called upon to exercise supervisory power under Article 227 of the Constitution. Now as it stands some granite stone pieces were found in the courtyard and on the asbestos roof of the building in plaint A schedule and some damage was also noted on the wall of that building. W.P(C) No.20544 of 2010 -: 8 :- Whether it was due to quarrying/blasting operations or deposited as petitioners contend is a matter which the trial court has to decide. 5. Learned counsel for respondent has referred me to Regulation 164 of the Metalliferous Mines Regulations where it is stated that precautionary steps are to be taken while engaging in blasting operations within a radius of 300 metres of the area of blasting operation. Concededly plaint A schedule comes within that distance from plaint B and C schedules. There is reason to think prima facie that the area within a radius of 300 metres is fixed by the authorities to be dangerous zone. That also is to be taken into account while deciding whether prima facie case exists in favour of respondent. 6. Attempt is made by petitioners to show that the Anganwadi and Day Care Unit were not functioning in the building in plaint A schedule but it was functioning in building bearing door No.3/213 of the same Panchayat. Exhibit P19 produced in the Writ Petition is the information collected from the local authority under provisions of Right to Information Act. It is stated in Ext.P19 that permit was granted to the Anganwadi keeping distance rule of 200 metres from the quarry. But Ext.P19 only refers to Anganwadi and there is no reference to Aswathy Mahila Samajam or the Day Care Unit allegedly W.P(C) No.20544 of 2010 -: 9 :- functioning in plaint A schedule and reported by the Advocate Commissioner in Ext.P3, report. True, there appears to be some discrepancy in the door number of Anganwadi in Ext.P3 and Ext.P19. But those are matters which are to be decided by the trial court. I have gone through the order under challenge and I do not find reason to interfere with finding of the courts below that a prima facie case is made in favour of respondent. Issue regarding irreparable injury is also in favour of respondent since children in the age group of 2-5 are brought up in the Anganwadi. So far as balance of convenience is concerned, petitioners contended that they have invested huge funds and are engaged in quarrying operations from 1997 onwards and if that is prevented, they will be put to heavy loss. One cannot forget the safety of children attending in the Anganwadi and Day Care Unit. Having regard to that fact I am unable to find that balance of convenience is in favour of petitioners. But these observations, I make it clear are only for the purpose of grant of temporary injunction and the question whether respondent is entitled to get a decree in the suit would depend on the issues raised in the suit. Having regard to the facts and circumstances of the case I am not satisfied that this is a case where interference under Article 227 of the Constitution is required. I direct the learned Munsiff to dispose of the suit expeditiously untrammelled by any finding or W.P(C) No.20544 of 2010 -: 10 :- observation contained in the impugned order/judgment or the judgment in this Writ Petition. Writ Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv