IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 WA.No. 1826 of 2011() --------------------- ( AGAINST THE JUDGEMENT IN WPC.28593/2011 Dated 10/11/2011 ) .................... APPELLANT(/ PETITIONER ------------------------ GEORGE KUTTY, S/O.JOSEPH, AGED 51 YEARS, MANGAL MAILPAN HOUSE, VADAKKUMBHAGAM, NORTH MANJAPRA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, (REVENUE DEPARTMENT), GOVT.SECRETARIAT, P.O.THIRUVANANTHAPURAM - 695006. 2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU P.O., ERNAKULAM - 682030. 3. THE MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANADU P.O., ERNAKULAM DISTRICT - 682030. 4. THE DEPUTY COLLECTOR (LR), P.O.KAKKANADU, ERNAKULAM - 682030. 5. THE AIYYAMPUZHA GRAMA PANCHAYATH, AIYYAMPUZHA, P.O., ERNAKULAM DISTRICT - 683581. REPRESENTED BY ITS SECRETARY. 6. THE VILLAGE OFFICER, AIYYAMPUZHA P.O., ERNAKULAM DISTRICT - 683581. WA.No. 1826 of 2011() 7. THE SUB INSPECTOR OF POLICE, AIYYAMPUZHA POLICE STATION P.O., ERNAKULAM DISTRICT - 683581. 8. ESTAPPANOS M.D., AGED 65 YEARS, MOOLEN HOUSE, P.O. ANGAMALY (NEAR RAILWAY STATION), OPP.LIC - 683572. 9. BIJI STEPHEN, S/O.M.D.ESTAPPANOSE, AGED 28 YEARS, MOOLEN HOUSE, P.O.ANGAMALY (NEAR RAILWAY STATION), OPP.LIC - 683572. 10. JOSY STEPHEN, S/O.STEPHEN, S/O.M.D.ESTAPPANOSE, AGED 29 YEARS, MOOLEN HOUSE, ANGAMALY (NEAR RAILWAY STATION), OPP.LIC - 683572. 11. VARGHESE VITHAYATHIL, S/O.ANTONY VITHAYATHIL, KURUMASSERY KARA, AYIROOR VILLAGE P.O, NORTH PARAVOOR - 683579. BY SR. GOVERNMENT PLEADER ADV. SMT. K. MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag. CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No. 1826 OF 2011 ......................................................................... Dated this the 1st December, 2011 J U D G M E N T MANJULA CHELLUR, Ag. CJ. Heard the learned Counsel for the appellant . We have gone through the judgment of the learned Single Judge. 2. According to the appellant, the respondents 8 to 11 who owned the adjacent property of the appellant are illegally excavating soil in huge quantity creating a depth of about 100 feet and this would definitely cause danger to his property including the rubber plantation and a building. It is not in dispute that on earlier occasion, he lodged a complaint to all authorities including the District Collector . However, after filing his representation, Ext.P2 permission of the District Collector came to be issued. According to the appellant, Ext.P2 was issued W.A.No. 1826 OF 2011 2 without giving any opportunity of hearing to the appellant and respondents 8 to 11 have not obtained any permission from the Mining and Geology Department, Panchayat etc for excavation of the soil; therefore, it is nothing but violation of the mandatory provisions in existence. 3. Aggrieved by Ext.P2, the appellant filed an appeal before the appellate authority. When the appellate authority did not respond to the request of the appellant, he approached this Court complaining against the appellate authority. By the judgment under Ext.P3, a direction was given to the appellate authority to consider the grievance raised by the appellant in the appeal and dispose of the matter. Ext. P4 is the outcome of consideration of the matter by the appellate authority. Again, challenging Exts. P2 to P4, he approached the learned Single Judge seeking an order restraining the respondents from excavating soil from their property. 4. We note, several conditions being imposed while granting permission to the respondents 8 to 11 as per Ext.P2. The contents of Ext.P2 also reveals that the reports from various W.A.No. 1826 OF 2011 3 authorities like additional Tahsildar, RDO and Geologist were secured before passing Ext.P2. One of the conditions imposed with respect to the present appellant is, removal of the earth from the property of the respondents 8 to 11 must be carried on without causing any damage to the neighbouring property. While passing orders on the appeal filed by the appellant, the appellate authority also imposed additional conditions. Therefore, the order granting permission to the respondents 8 to 11 is fortified by several other conditions, taking into account the damage that may be caused due to excavation of soil to the adjacent property. 5. Having regard to the conditions imposed at Exts.P2 and P4, the learned Single Judge observed that these conditions were imposed to see that sufficient care and caution are taken by the persons excavating soil and one cannot complain that the District Collector and appellate authority have ignored the complaint by the owner of the adjacent property of the respondents 8 to 11. Aggrieved by the order of the learned single Judge, the appellant is before us. 6. According to the appellant, the Grama Panchayat till W.A.No. 1826 OF 2011 4 date has not granted any permission to the respondents 8 to 11 for removal of the soil . He relies upon the decision reported in 2008(1) KLT 937 ( Gem Granites vs. Dy. Supdt. of Police) to contend that the Panchayat Raj Act envisages obtaining of necessary licence from the Panchayat concerned. The above decision is not applicable to the facts of the present case for the simple reason, this is not a case where permission was granted to do mining operation, i.e. quarrying, in the property of respondents 8 to 11. The sanction given at Ext.P2 is only to remove the earth and not to carry on any quarrying operation. If there was any quarrying operation undertaken by the respondents 8 to 11, necessarily they have to obtain licence to carry on such quarry work. In the absence of any such work, we do not find any support that can be taken by the appellant from this decision. Even otherwise, if any risk or damage is anticipated by the appellant, he is always at liberty to seek for modification of the permission already given as per Ext.P2, by the District Collector and he can also bring it to the notice of the Panchayat, if the procedure contemplates so. W.A.No. 1826 OF 2011 5 By these observations, we find no reason to interfere with the orders of the learned single Judge. The appeal is dismissed. MANJULA CHELLUR, ACTING CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk