IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 16344 of 2008(U) -------------------------- PETITIONER: ------------ ANU T.GEORGE, PROPRIETOR, VADAKKEMURIYIL GRANITES, KOLABHAGAM P.O., THADIYOOR. BY ADV. SRI.SIBY MATHEW RESPONDENTS: ------------- 1. ROY MATHEW, S/O.MATHEW, VALIPLAKKAL HOUSE, CHUKAPPARA P.O. 2. NOUSHAD, AMBATTUKUNNEL HOUSE, CHUNKAPPARA P.O. 3. SALIM P.A., VANCHIKAPPARA HOUSE, CHUNKAPPARA P.O. 4. SAKHEER, PEON, FEDERAL BANK, CHUNKAPPARA BRANCH,CHUNKAPPARA P.O. 5. THE SUB INSPECTOR OF POLICE, PERUMPETTI. 6. THE CIRCLE INSPECTOR OF POLICE, MALLAPPALLI. 7. THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA. BY ADV.SMT.DAISY A.PHILIPOSE FOR R1 & R2 ADV. SRI.V.SANTHARAM FOR R4 GOVT.PLEADER SHRI BENJAMIN PAUL FOR R5 TO R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No. 16344/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ROUGH SKETCH OF PROPERTY OWNED BY THE PETITIONER IN SY.NOS.443/1, 1-2 & 1-3. EXT.P2: TRUE COPY OF PROVISIONAL REGISTRATION ISSUED BY THE ASST.DISTRICT INDUSTRIES OFFICER, THIRUVALLA TO THE PETITIONER. EXT.P3: TRUE COPY OF PROCEEDINGS NO.PCB/CE/PT/146/2004 DATED 5.8.2004 OF THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P4: TRUE COPY OF LICENSE NO.E/SC/KL/22.575 (E.23624) ISSUED BY THE DEPUTY CONTROLLER OF EXPLOSIVES. EXT.P5: TRUE COPY OF LETTER NO.C1-9136/01, DATED.20.9.04 ISSUED BY THE DISTRICT MEDICAL OFFICER, PATHANAMTHITTA. EXT.P6: TRUE COPY OF LETTER NO.A.E/13/01 DATED 9.9.04 ISSUED BY THE INSPECTOR OF FACTORIES & BOILERS. EXT.P7: TRUE COPY OR ORDER NO.323/2001-05/5079/M3/04 DATED 18.8.04 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY. EXT.P7(a): TRUE COPY OF ROUGH SKETCH OF THE ROAD AND QUARRY OF THE PETITIONER. EXT.P8: TRUE COPY OF LETTER NO.A3-362/01, DATED 21.12.2001 ISSUED BY THE KOTTUNGAL PANCHAYAT. EXT.P9: TRUE COPY OF LETTER DATED 25.1.2005 ISSUED BY THE KOTTUNGAL PANCHAYAT. EXT.P10: TRUE COPY OF JUDGMENT DATED 21.2.2005 IN W.P.(C)No.3698/05 PASSED BY THIS COURT. EXT.P11: TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE KOTTUNGAL PANCHAYAT IN W.P.(C)No. 3698/05. EXT.P12: TRUE COPY OF JUDGMENT DATED 7.3.05 IN W.P.(C)No. 7606/05 PASSED BY THIS COURT. EXT.P13: TRUE COPY OF ORDER NO.GO(RT)67/05/ID, DATED 20.7.05 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P14: TRUE COPY OF ORDER DATED 9.5.05 PASSED BY THE KOTTUNGAL PANCHAYAT. EXT.P15: TRUE COPY OF DECISION DATED 3.3.2005 AS PER DIRECTION IN W.P. (C)No.3698/05 PASSED BY THIS COURT. WP(C).No. 16344 of 2008 2 EXT.P16: TRUE COPY OF ORDER DATED 17.1.2007 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.P17: TRUE COPY OF APPLICATION DATED 18.1.2007 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P18: TRUE COPY OF LETTER DATED 28.2.2007 ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTUNGAL TO THE PANCHAYAT. EXT.P19: TRUE COPY OF LETTER NO.TA(4)1729/07 DATED 11.4.07 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER, PATHANAMTHITTA TO THE PANCHAYAT. EXT.P20: TRUE COPY OF LICENSE ISSUED BY THE PANCHAYAT TO THE PETITIONER. EXT.P21: TRUE COPY OF REPRESENTATION DATED 7.5.08 SUBMITTED BY THE PETITOINER BEFORE THE 7TH RESPONDENT. EXT.P22: TRUE COPY OF REPRESENTATION DATED 15.5.08 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT. RESPONDENTS' EXTS: EXT.R1(a): TRUE COPY OF CONSENT GRANTED BY THE POLLUTION CONTROL BOARD DATED 17.1.07. EXT.R1(b): TRUE COPY OF COMPLAINT AND THE RECEIPT DATED 15.4.08. EXT.R1(c): TRUE COPY OF LETTER DATED 1.2.05. EXT.R1(d): TRUE COPY OF LETTER DATED 25.2.05. EXT.R1(e): TRUE COPY OF LETTER DATED 22.12.2007. EXT.R1(f): TRUE COPY OF REPRESENTATION DATED 31.7.07. EXT.R1(g): TRUE COPY OF LETTER DATED 26.12.2007. EXT.R1(h): TRUE COPY OF REPRESENTATION DATED 11.1.2008. EXT.R1(i): TRUE COPY OF LETTER DATED 13.3.08. EXT.R4(a): TRUE COPY OF THE COMPLAINT FILED BY THE LAND OWNERS BEFORE THE KOTTANGAL GRAMA PANCHAYAT COMMITTEE. EXT.R4(b): TRUE COPY OF THE COMPLAINT DATED 9.1.05 BEFORE THE MALLAPPALLY TALUK SABHA. EXT.R4(c): TRUE COPY OF COMPLAINT DATED 28.2.07 BEFORE THE PATHANAMTHITTA PRINCIPAL AGRICULTURAL OFFICER. WP(C).No. 16344 of 2008 3 EXT.R4(d): TRUE COPY OF THE COMPLAINT DATED 27.1.2007 BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA. EXT.R4(e): TRUE COPY OF THE COMPLAINT DATED 3.10.07 BEFORE THE KOTTANGAL GRAMA PANCHAYAT COMMITTEE. EXT.R4(f): TRUE COPY OF THE COMPLAINT DATED 21.12.2006 BEFORE THE CIRCLE INSPECTOR OF POLICE, MALLAPPILLY. EXT.R4(g): TRUE COPY OF COMPLAINT DATED 11.1.2008 BEFORE THE SUB INSEPCTOR OF POLICE, PERUMPETTY. EXT.R4(h): TRUE COPY OF THE PAPER REPORT DATED 13.4.07. EXT.R4(i): TRUE COPY OF THE ORDER DATED 17.4.07 PASSED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. EXT.R4(j): TRUE COPY OF THE PROCEEDINGS DATED 5.6.07 PASSED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. EXT.R4(k): TRUE COPY OF LETTER DATED 9.2.05 ISSUED BY THE DIVISIONAL FOREST OFFICER, KOTTAYAM. EXT.R4(l): TRUE COPY OF LETTER DATED 25.2.2005 ISSUED BY THE DIVISIONAL FOREST OFFICER, RANNI. EXT.R4(m) & (m-1): TRUE COPY OF THE PHOTOGRAPHS. EXT.R4(n): TRUE COPY OF THE SALE DEED NO.872/02 DATED 21.6.02. EXT.R4(o) & (o-1): TRUE COPY OF THE PHOTOGRAPHS. EXT.R4(p) & (p-1): TRUE COPY OF THE SKETCH. EXT.R4(q): TRUE COPY OF THE NOTICE DATED 21.12.07 ISSUED BY THE KOTTANGAL GRAMA PANCHAYAT COMMITTEE. EXT.R4(r): TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, PERUMPETTY. EXT.R4(s): TRUE COPY OF COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, PERUMPETTY. EXT.R4(t): TRUE COPY OF THE PHOTOGRAPH. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.16344 OF 2008 ----------------------------------------------------- DATED THIS THE 11th DAY OF JUNE, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner is proposing to start a crusher unit in the property owned by him, having an extent of 18 acres. He submits, the adjoining property having an extent of 10 acres is owned by his father-in-law. A granite quarry is already functioning in that property for the last five years. He submits, he has got all the statutory clearances for running the quarry as well as the crusher unit. In support of that submission, he placed reliance on Exhibits P2 to P7 and P16 to P20. The products from the petitioner's unit in the form of granite metal, boulders, etc. are being transported to other places through a road having a length of about 1.2 Kms. Substantial portion of the said road lies in his property. The remaining portion is a Panchayat road. But, respondents 1 to 4 and others are causing obstruction to the plying of the vehicles of the petitioner through that road. They are unnecessarily causing obstruction. Therefore, the petitioner preferred Exhibit P21 petition before the Sub Inspector of Police on 7.5.2008, to remove the W.P.(C)No.16344/08 -2- obstruction. It was followed by Exhibit P22, claiming adequate police protection for the plying of his vehicles from his industrial unit to the nearby PWD road, through the said Panchayat road. Alleging that the police did not take any effective steps, this writ petition is filed. 2. The 4th respondent has filed a detailed counter affidavit, resisting the prayers in the writ petition. According to him, the petitioner does not have the necessary clearances/licences for running the quarry or the crusher unit. His attempt is to get police protection for plying of the vehicles and on the strength of that protection to illegally run the quarry and the crusher unit. It is also submitted that the road leading to the petitioner's unit is a small road having a width of only 10 feet and when heavy vehicles like tipper lorries are plied, there is no space even for a pedestrian to use the road simultaneously. The 4th respondent, in support of that submission, produced Exhibit R4(o) series photographs. Those photographs would show a cluster of vehicles plying with great difficulty through the narrow road. The vehicles are occupying almost the entire space in the road without leaving any space even for a pedestrian. The rash and negligent driving of the tipper lorries and other vehicles is a perpetual threat to the life of the persons in the locality, it is pointed out. Therefore, the 4th respondent submits, no police protection may be ordered for the plying of the vehicles W.P.(C)No.16344/08 -3- through the narrow road. 3. The respondents 1 and 2 have filed a detailed counter affidavit, resisting the prayers in the writ petition. The said respondents submit that the portion of the road from the petitioner's property to the public road is not a Panchayat road. In support of that submission, they relied on the communication issued by the Panchayat, Exhibit R1(I). In fact, it is a private road formed by the local people by surrendering a portion of their land. Even now, the title of the land which forms the road is vested with the adjoining land owners. So, the petitioner has no right to use the road, it is submitted. They also submit that this being a very small road, the use of large number of vehicles through the said road is a serious threat to the life of the people of the locality. About 50 families are residing in that locality, who are using this road. They also pointed out that a child was killed by the hitting of a stone thrown up from the petitioner's quarry, while blasting granite. Because of the said incident, the quarrying was stopped for some time. The party respondents also complain about the atmospheric pollution caused in the locality by the dust, blowing as a result of the plying of the vehicles for transporting 150 loads of granite products every day. 4. The learned Government Pleader, upon instructions, submitted that several complaints have been received from the local W.P.(C)No.16344/08 -4- people against the plying of the vehicles by the petitioner in a rash and negligent manner. They have obstructed the plying of the vehicles also. The parties were summoned to the police station and the petitioner was advised to ply the vehicles carefully. 5. The petitioner has filed a reply affidavit, denying the allegations of the party respondents. 6. Heard the learned counsel on both sides. 7. In this case, we are called upon to adjudicate only on the failure of duty, if any, from the part of the police to give protection to the petitioner's vehicles, so that he can ply them through the road connecting his property and the main road. The facts disclosed by the materials on record would show that it is a very narrow road. When a heavy goods vehicle is plied, there is hardly any space for anyone else, even for a pedestrian to use the road. This is evident from Exhibit R4(o) series photographs. The rash and negligent driving of tipper lorries is a notorious fact which this Court can take judicial notice of. The driver or the owner of a tipper lorry would like to take the maximum possible trips every day and for that he will drive the vehicle recklessly, which frequently causes road accidents. Having regard to the nature of the road and the special facts of the case, we feel that it is not safe to direct the police to stand guard for the petitioner to ply his vehicles. The life W.P.(C)No.16344/08 -5- of the local people will be in danger, if his prayer is allowed. So, we feel that this is not a fit case to invoke the discretionary jurisdiction of this Court under article 226 of the Constitution of India and come to the help of the petitioner. If the petitioner has got a right to ply his vehicles, he can enforce the same by moving the competent civil court. If the party respondents indulge in any action which discloses criminal offences, the petitioner can move the competent criminal court. Accordingly, the writ petition is dismissed, without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. If the petitioner approaches the civil court, the said court will be free to decide the suit based on the evidence on record, uninfluenced by the observations made by us in this judgment. The observations made by us are only prima facie findings made to decide whether the discretionary jurisdiction of this Court should be exercised in this case or not. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn