IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 OP(C).No. 1747 of 2011(O) -------------------------------- CMA.1/2011 of SUB COURT, QUILANDY OS.355/2010 of MUNSIFF COURT, QUILANDY .................... PETITIONERS/APPELLANTS/PETITIONERS/PLAINTIFFS: ------------------------------------------------------------------- 1. SUDHA, D/O.RAMAN, AGED 40 YEARS, SWASTHAM, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. SATHEESAN, S/O.MALATHI, AGED 38 YEARS, COOLIE, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. CHANDRAN, S/O.ERAYI, COOLIE,MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 4. BHARATHAN, S/O.KONADI, AGED 40 YEARS, COOLIE, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 5. DAMODARAN, S/O.KADUNGON, AGED 50 YEARS, COOLIE, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 6. GANGADHARAN, S/O. RAMAN, AGED 55 YEARS, COOLIE, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 7. SREEDHARAN, S/O. KADUNGAN, AGED 45 YEARS, COOLIE, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 8. LAKSHMIKUTTY ALIAS MALU, W/O.MOOTHORAN, AGED50 YRS., SWASTHAM, MALURMMAL HOUSE, IYYAD AMSOM DESOM, UNNIKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.SANTHARAM.P svs ..............2/-..... ..2.. OPC.NO.1747/2011 RESPONDENT(S): RESPONDENT/RESPONDENT/DEFENDANT ---------------------------------------------------------------------- HARIDASAN, S/O. DAMODARAN NAIR, AGED 44 YEARS, BUSINESS, THAROL HOUSE, UNNIKULAM AMSOM, VALLIYOTH DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. PIN - 673 001. BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 1747/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT, O.S.NO.355/2010, FILED BEFORE THE MUNSIFF'S COURT, KOYILANDY. P2: COPY OF THE I.A.NO.1357/2010 IN O.S.355/2010 BEFORE THE MUNSIFF'S COURT, KOYILANDY. P4: COPY OF THE ORDER IN I.A.NO.1357/2010 IN O.S.355/2010. P5: COPY OF THE JUDGEMENT DATED 08/03/2011 IN C.M.A.NO.1/2011. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST FOR THE YEAR 2008. R1(b):COPY OF THE PERMIT ISSUED BY THE GEOLOGIST FOR THE YEAR 2009. R1(c):COPY OF THE PERMIT ISSUED BY THE GEOLOGIST FOR THE YEAR 2010. R1(d):COPY OF THE PERMIT ISSUED BY THE GEOLOGIST FOR THE YEAR 2010. R1(e):COPY OF THE CONSENT GIVEN BY THE POLLUTION CONTROL BOARD. R1(f):COPY OF THE JUDGMENT IN O.S.306/2008 PASSED BY THE MUNSIFF COURT, KOYILANDY. R1(g):COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT. R1(h):COPY OF THE OBJECTION TO THE COMMISSIONER'S REPORT. R1(i):COPY OF THE COUNTER TO THE INJUNCTION PETITION. R1(j):COPY OF THE AGREEMENT DATED 01/04/2011 BETWEEN THE 2ND PETITIONER AND K. MOHAMMED. R1(k):COPY OF THE AGREEMENT BETWEEN THE RESPONDENT AND K.OHAMMED DATED 06/07/2011. /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1747 of 2011 --------------------------------------- Dated this 25th day of July, 2011 JUDGMENT Plaintiffs in O.S.No.355 of 2010 of the Court of learned Munsiff, Koyilandy are the petitioners before me, aggrieved by the dismissal of I.A.No.1357 of 2010 as confirmed by the learned Sub Judge, Koyiliandy in C.M.A.No.1 of 2011. O.S.No.355 of 2010 is a suit filed by the petitioners for a decree for prohibitory injunction to restrain respondent/defendant from making quarrying operations in the area beyond 12cents (said to be covered by the permits in favour of respondent). In Ext.P1, plaint petitioners alleged that quarrying operations are being carried on using dynamite and other explosives within 100meters of their respective houses which resulted in damage to the residential buildings and the electric line drawn along the road to the colony where petitioners are residing. It is also alleged that on account of the blasting the local authority has stopped work of development of the road. There are allegations in the plaint concerning nuisance caused to the petitioners on account of blasting operations. Petitioners say that they learned that permission was granted to the respondent to blast rock only in an O.P(C).No.1747 of 2011 -: 2 :- area of 12 cents but, he has already blasted rock in more than 50cents. Hence the suit. Along with the suit petitioners filed I.A.No.1357 of 2010 for an order of temporary injunction. Respondent filed counter contending that he is granted permission for blasting operations in 12cents as per permits and that the quarry is situated beyond 100meters from the houses of petitioners. He is doing quarrying operations strictly in accordance with the permits granted to him and there is no occasion to cause nuisance to the petitioners on account of the quarry. 2. The Advocate Commissioner inspected the suit property and submitted Ext.P2, report. Learned Munsiff found no prima facie case in favour of petitioners and dismissed I.A.No.1357 of 2010. That order was confirmed by the learned Sub Judge on C.M.A.No.1 of 2011. 3. It is contended by learned counsel for petitioners that two reasons which learned Sub Judge found to confirm the order on I.A.No.1357 of 2010 are that petitioners have an equally efficacious remedy under the provisions of the Kerala Minor Minerals Concession Rules, 1967 as permit is given for blasting by that authority under the said Rules, they have the power to cancel the license and secondly, that petitioners have no prima facie case and they have suppressed Ext.R1(f), decree passed O.P(C).No.1747 of 2011 -: 3 :- against some of them and in favour of the respondent against causing obstruction to the quarrying operations of respondent. It is contended by learned counsel that the above findings are not correct and Ext.P3, report of the Advocate Commissioner presents a prima facie case in favour of petitioners. In the circumstance, courts below should have granted an order of injunction as prayed for, it is argued. 4. Learned counsel for respondent contended that there are two decrees in favour of the respondent, one restraining petitioners from causing obstruction to his blasting operations and other where it has been found that the disputed road, claimed by the petitioners as a public road leading to the colony is actually a part of the private property where quarrying operations are carried on. It is submitted that there is no proper identification of the disputed road. Learned counsel supported the finding entered by the courts below. 5. The question whether equally efficacious remedy which learned Sub Judge has found would disentitle petitioners to claim the relief is a matter which the trial court has to decide ultimately having regard to the power of the Civil Court to abate nuisance notwithstanding the statutory provisions contained in the Rules. Since the trial court has yet to decide that matter I do not consider it appropriate to express any opinion regarding the O.P(C).No.1747 of 2011 -: 4 :- said contention but, merely for the reason that equally efficacious remedy if any as learned Sub Judge pointed out is available, I am not inclined to think that if blasting of rock cause danger to the life and property of petitioners and nuisance to them, at the interim stage the Court should refuse to exercise its power. Again, I say that the above observations are made only for the limited purpose of disposal of this original petition. 6. So far as the alleged suppression of material facts is concerned, even as per the submission of learned counsel for respondent, the decree is only to restrain some of the petitioners from causing obstruction to the quarrying operations. Here they came to the Court seeking its assistance. At the same time, unless there is a violation of the law or the act results in nuisance or danger, a lawful business or trade cannot be prevented. Back to Ext.P2,report of the Advocate Commissioner and the sketch produced along with it, Commissioner has shown the respective position of the houses of petitioners and the distance from those houses to the site of quarry. The Commissioner has shown plot ABCD in the sketch as the site of quarrying which according to the petitioners is about 1.10acres. In DE portion, rock is being blasted using explosives. Commissioner noticed recent blasting in BC area. On the west of the quarry is the colony road which according to the Advocate Commissioner lies north-south and the O.P(C).No.1747 of 2011 -: 5 :- nearest distance to the said road from the quarry is 16 and 21 meters. Commissioner found a three phase electric line along the eastern side of the road and the house of the sixth petitioner 77 meters south west of quarry. Commissioner found that roof of that house is thatched and on the roof of the shed nearby he found some granite stones alleged to have fallen there due to the blasting. The well in the said property has a diameter of 3meters and the parapet of the well was seen slid down recently. Commissioner noticed cracks on the wall of the kitchen, office room and veranda of the house of sixth petitioner. The house of the fifth petitioner was found 75 meters away from the quarry. But, its construction was not complete. Houses of petitioners 7 and 8 are situated towards north of quarry and the distance from the quarry to the house of 7th petitioner is 61 meters. Commissioner found that its walls are not cement plastered and that corner portion of the laterite stone of the walls had fallen down. Petitioners 2 and 3 own house towards east of quarry and the respective distance from the quarry is 65 and 110 meters. The walls of the house of second petitioner also was not cement plastered and corner portion of laterite stones was seen fallen down. Commissioner found some granite stones on the roof of the shed near the house of second petitioner. Two employees were seen engaged in pushing down boulders which resulted in O.P(C).No.1747 of 2011 -: 6 :- dust at large scale emanating from the quarry to the house of the sixth petitioner. Commissioner also found four tipper lorries waiting to carry boulders. 7. The question whether cracks were caused due to blasting operations is a matter which the trial court has to decide. Prima facie, (for the disposal of this original petition) it appears that the Advocate Commissioner has noticed cracks on the wall of the house of some of petitioners. 8. May be, respondent is permitted to conduct quarrying operations in 12 cents as per the permits issued to him and as per Rule 29(i) of the Rules the distance from the nearest house to the site of the quarry need be 50 meters. But if nuisance is prima facie revealted, the above are no defence. Petitioners have produced some material to substantiate their case. Hence some arrangement has to be made until disposal of the suit so that apprehension of petitioners is allayed. Having regard to the circumstances brought before me I am inclined to give some directions to remain in force until the suit is disposed of. Resultantly this original petition is disposed of in the following lines: (i) It is directed that quarrying operations shall strictly be confined to the area permitted as per the permits granted in favour O.P(C).No.1747 of 2011 -: 7 :- of respondent. (ii) Such quarrying operations shall be carried on only beyond a distance of 50 meters from the eastern side of the colony road shown by the Advocate Commissioner in the sketch accompanying his report. (iii) Respondent shall not cause any damage to the road on account of any blasting operations or, in any other manner. It is directed that the above directions will remain in force until disposal of the suit. Trial court is directed to decide the suit untrammelled by any observation or finding contained in the impugned order/judgment or any observation/direction that this Court has made in this judgment. (THOMAS P JOSEPH, JUDGE) Sbna/-