IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 32204 of 2007(H) --------------------------------------- PETITIONER(S): ------------------------- BIJU.K.C, S/O.CHOTHI, AGED 30, KUTTIKATTIL HOUSE, PINARMUNDA KARA, PERINGALA PO, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADVS.MR.S.SUBHASH CHAND MR.ELDHO VARGHESE MR.C.T.SOMAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM, KOCHI. 2. THE VILLAGE OFFICER, KUNNATHUNADU VILLAGE, KUNNATHUNADU, PATTIMATTOM. 3. V.M.MUHAMMED, S/O.MUSTHABHA, AGED ABOUT 60, VATHIYATH HOUSE, PERINGALA NOW RESIDING AT BITHUL HAMDIL HOUSE, ALUVA VILLAGE, ALUVA WEST, ALUVA TALUK. *ADDL. R4 IS IMPLEADED. 4. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM, KOCHI IS IMPLEADED AS ADDITIONAL R4 AS PER ORDER DT. 7.11.07 IN IA. 14884/07. BY GOVT. PLEADER MR.V.TEKCHAND BY ADV. MR.THYLAM KOCHUNNY LATIF FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO.32204/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DT. 13.2.07 IN WPC. 33139/06. P2:- COPY OF THE ORDER DT. 13.12.06 PASSED BY THE 2ND RESPONDENT. P3:- COPY OF THE REPRESENTATION PREFERRED BY THE 3RD RESPONDENT, DT. 23.4.07. P4:- COPY OF THE JUDGMENT DT. 8.5.07 IN WPC. 14183/07. P5:- COPY OF THE ORDER AND PROCEEDINGS OF THE IST RESPONDENT DT. 29.6.07. P6:- COPY OF THE REVIEW PETITION FILED BY THE 3RD RESPONDENT BEFORE THE IST RESPONDENT. P7:- COPY OF THE ORDER AND PROCEEDINGS OF THE IST RESPONDENT DT. 11.10.07. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 32204 Of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 31th day of March, 2009 JUDGMENT The petitioner has approached this Court challenging Ext.P7 order issued by the additional forth respondent whereby the earlier order issued by the second respondent as borne by Ext.P5 prohibiting the third respondent from pursuing any operation in his property for levelling the land and removing the soil (in view of the inconveniences caused to the local public and also in view of the adverse environmental consequences to be resulted) was reviewed and permission was granted, subject to the conditions stipulated therein. 2. The petitioner is a resident of the locality having his home situated near to the property of 3.30 acres of land belonging to the third respondent in the Kunnathunadu village. Against the unlawful activities being pursued by the third respondent for removing the soil without caring the requests and objections of the local public, the petitioner approached this Court by filing WP(C) 33139 of 2006 alleging environmental disgradation, which led to Ext.P1 judgment, directing the District Collector to look into the matter and to take appropriate action in accordance with law. 3. Pursuant to Ext.P1 and the further steps followed, it is stated that the second respondent village officer issued Ext.P2 memo, which WP (C) No. 32204 of 2007 : 2 : was challenged by the third respondent by filing Ext.P3 proceedings before the District Collector and subsequently, by approaching this Court by filing WP(C) No. 14183 of 2007 which culminated in Ext.P4 judgment. 4. As evident from Ext.P4 judgment, the case extracted therein is that the third respondent herein (the petitioner therein) wanted to level a portion of his land for constructing residential houses for himself and children and it was when the levelling started objections arose from various corners. In the said circumstances, the District Collector was directed to consider the matter and to have finalised as per Ext.P4 verdict. Subsequently, the District Collector considered the rival contentions and passed Ext.P5 order observing that the levelling of land and removal of soil will cause inconvenience to the local public, besides environmental threats and accordingly, the application preferred by the third respondent for withdrawing Ext.P2 stop memo and to permit him to pursue the activities was rejected. 5. Subsequently, the third respondent approached the District Collector by filing Ext.P6 review petition, explaining the actual facts and circumstances and also asserting that no excavation was intended even by one inch below the ground level; but for levelling the land for constructing residential houses for himself and for his children before WP (C) No. 32204 of 2007 : 3 : effecting the partition; that he would ensure that no nuisance and inconveniences is caused to the local public pursuant to the above operation; that he will take all such precautionary measures to see that no adverse circumstance is caused to the environmental equilibrium and further that he would also ensure to have the premises properly wet and watered, lest there should arise any dust or environmental pollution. 6. It appears that the District Collector pursuant to Ext.P6 heard both the sides and after considering the entire facts and circumstances, reviewed Ext.P5 order and granted permission to the third respondent for levelling the property and to remove the earth, subject to 3 conditions as stipulated in Ext.P7, which in turn has been subjected to challenge in this writ petition. 7. Subsequently, the petitioner sought to amend the writ petition, also incorporating a specific ground that the additional fourth respondent/District Collector did not have any power to review Ext.P5 order and on allowing the same, necessary amendments have been carried out by producing the amended writ petition. With regard to the challenge as to the maintainability of Ext.P7 order including the power of review, it is relevant to note that the additional fourth respondent has not considered all the specific points raised by the third respondent in WP (C) No. 32204 of 2007 : 4 : Ext.P3 application, which was directed to be considered and disposed of vide Ext.P2 judgment. But after taking note of the objections made by the other side, referring to the inconvenience being caused to the local public as to the pollution aspect, and the scarcity of drinking water, it was accordingly held and a cryptic order was passed in just one sentence (as revealed from Ext.P5) that the proposed action on the part of the third respondent is liable to cause inconvenience/hardship to the local people, also causing adverse environmental consequences – which however has not been specifically adverted to or discussed. The District Collector did not consider whether the alleged hardships of the local public could have been remedied in any manner by imposing any conditions in this regard. It was in the said circumstances that the additional fourth respondent/District Collector thought it fit to consider and entertain Ext.P6 review petition preferred by the third respondent and it was after hearing both the sides that a detailed order was passed as borne by Ext.P7, after recording the satisfaction that the alleged threat could be remedied by imposing the conditions stipulated therein as extracted below: i. The neighbouring properties will not be affected in any way while removing red earth from the petitioner's property. WP (C) No. 32204 of 2007 : 5 : ii. No excavation is done below the road level or neighbouring property level. iii. Ecological balance will not be affected while removing and transporting the soil. 8. From the above, it is very much clear that the District Collector has passed Ext.P7 order with proper application of mind and of course intending to provide maximum consideration to both the sides with regard to their rights and liberties. The learned counsel for the petitioner, referring to the decision rendered by this Court in Thilakan Vs. C.I. Of Police and others [2007 (4) ILR Kerala 454 ] submits that it was beyond competence and jurisdiction of the District Collector to have exercised the power of review and as such, Ext.P7 is liable to be intercepted on this score alone. This Court finds it difficult to accept the above proposition, particularly in view of the very nature and jurisdiction that was being exercised by the District Collector; that too, pursuant to the direction given by this Court to consider the matter and pass appropriate orders in accordance with law. It is also a settled position by virtue of the binding precedents that the power of review is always corollary to the power to pass the original order and such power can be exercised unless it is specifically prohibited. WP (C) No. 32204 of 2007 : 6 : 9. The request of the 3rd respondent was only for permission to level his land and to remove soil for enabling him to construct residential houses therein for himself and his children. The District Collector was perfectly justified in considering the matter taking note of the specific points raised by the 3rd respondent in Ext.P6 and also considering whether the adverse circumstances likely to be resulted as pointed out by the petitioner could have been remedied by imposing appropriate condition in this regard; which stands properly dealt with. As such, Ext.P7 order passed by the District Collector imposing necessary conditions while granting consent to the third respondent is perfectly within the four walls of the law. 10. Petitioner has got a further grievance that the third respondent, despite the imposition of the specific condition in Ext.P7 has violated the same and is excavating the soil causing much adverse circumstances, ignoring the mandatory provisions of the Kerala Land Utilisation Order, besides causing serious air pollution. It is relevant to note that the petitioner has not approached the additional 4th respondent/District Collector who passed Ext.P7 order pointing out the non-compliance with the direction/conditions imposed and to cancel/revoke Ext.P7. Similarly, the petitioner has not approached the appropriate/competent authorities like Pollution Control Board to deal WP (C) No. 32204 of 2007 : 7 : with the instance of pollution. However, this will not give any 'green card' to third respondent to go beyond the terms of Ext.P7 or to pursue any act causing the lives of general public miserable in any manner. It is pointed out by the learned counsel for the petitioner that there is an interim order passed by this Court on 29.11.07 and that, it is for the 4th respondent to ensure that the conditions imposed in Ext.P7 are complied with, holding that appropriate action shall be pursued against the person concerned in case any violation is noted. The said interim order is made absolute and the additional fourth respondent is hereby directed to consider such instances, if any, pointed out from the part of the petitioner and to pass appropriate orders in accordance with law. The writ petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd