IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 RSA.No. 699 of 2009() ------------------------ AS.153/2004 of ADDL.DISTRICT COURT,KOTTAYAM OS.73/1999 of SUB COURT, PALA .................... APPELLANTS/APPELLANTS/PLAINTIFFS -------------------------------------------- 1. SOMAN, S/O.KOCHUKUNJU AYALATHUPARAMBIL PANACHICKEL HOUSE THALANADU KARA, POONJAR,VADAKKEKARA VILLAGE MEENACHIL TALUK. 2. LEELAMMA,W/O.A.K.THANKACHAN' AYALATHUPARAMBIL PANACHICKEL HOUSE THALANADU KARA, POONJAR,VADAKKEKARA VILLAGE MEENACHIL TALUK. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS: --------------- 1. JOHNSON, S/O. MATHAI PUTHANAPURAKUNNEL HOUSE, THEEKOY PO,THEEKOY VILLAGE, MEENACHIL TALUK. 2. VARGHESE @ GEORGEKUTTY,S/O.MATHAI PUTHANAPURAKUNNEL HOUSE, THEEKOY VILLAGE THEEKOY P.O 3. MATHEWKUTTY, S/O.MATHAI PUTHANAPURAKUNNEL HOUSE, THEEKOY PO, THEEKOY VILLAGE, MEENACHIL TALUK. 4. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM. RSA.No. 699 of 2009() 2 5. ADDL.DISTRICT MAGISTRATE, KOTTAYAM. 6. BIOLOGIST, DEPARTMENT OF MINING & GEOLOGY,KOTTAYAM. 7. DY.CHIEF CONTROLLER OF EXPLOSIVES 43/350, POWER HOUSE EXTENSION ROAD ERNAKULAM NORTH. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.699 of 2009 ---------------------------------------- Dated this the 17th day of July, 2009 JUDGMENT The appellants are the plaintiffs in O.S.No.73/1999 on the file of the Sub Court, Pala. The second appeal is directed against the judgment and decree in A.S.No.153/2004 on the file Additional District Court, Kottayam. The suit was filed for declaration and injunction. The trial court dismissed the suit and confirmed in appeal. Hence the second appeal. 2. The plaintiffs mainly contented that the blasting operation conducted in the defendants property caused danger to the life and property of the plaintiff owned by defendants 2 and 5 and that the licence and permits were given by the statutory authorities without considering their objection and objections of other persons of the locality. It is also contended that the rock blasting is conducted near to the house of the plaintiffs 1 and 2. In spite of the objection from their side the defendants 8 and 9 are siding with the defendants 2 and 3 and are taking steps to renew the licence in favour of the defendants 1 to 3. 3. The defendants 1 to 3 contented that the blasting operations were done only on the permitted portion on the basis R.S.A.No.699 of 2009 2 of the permission granted by the Panchayat. The permission order is appended with the plan and sketch of the rock proposed for blasting. It is further contended that the defendant 1 obtained licence for using explosives from the explosive department and also obtained necessary permission, licence/permit as the case may be from all the statutory authorities and therefore the suit is not maintainable. 4. The plaintiff produced Ext.A1 to A11 and the defendants produced Ext.D1 to D17 (b), court Exts.C1 and C1(a) and 3rd party Ext.X1 and X2 are marked. 4 witnesses were examined on the side of the plaintiff and 2 witnesses on the side of the defendants. The trial court considered the issues raised based on the oral evidence of PW1 to 4 and documentary evidence and also the commissioner’s report and plan. 5. The defendants 8 and 9 who are respectively Grama Panchayat and its President brought to the court notice that the suit itself has become infructuous because the licence already issued is withdrawn and the stop memo is also issued and that at the time of filing of the suit no blasting operation was being conducted in the site. The trial court observed that on going R.S.A.No.699 of 2009 3 through Exts.A1 to A17 that the first defendant obtained licence and permit from statutory authorities. For some time blasting operation was being carried out there. Subsequent to the complaint the Panchayat the licensing authority has withdrawn licence and issued stop memo. No blasting operation was carried out thereafter. The trial court observed that the suit has already become infructuous. There is no material before the court to grant a declaration as prayed for by the plaintiffs that the rocky place is not fit for blasting operation and that the court cannot give permanent prohibitory injunction against the statutory authority from doing it’s statutory duties and execute powers. The court below also observed that the panchayat has issued licence after due enquiry and executive authorities have also issued permits in accordance with the law. The trial court also held that there is nothing to show that there is any irregularity in granting permission or licence to the first defendant for blasting operation and therefore the plaintiffs have not succeeded in proving their case. 6. The defeated plaintiffs appealed before the appellate court and reagitated the contentions raised. At the fag end of R.S.A.No.699 of 2009 4 the hearing the counsel for the appellant submitted before the lower appellate court that appellants would be satisfied in case individual notice is given to both the appellants in case the stop memo is proposed to be withdrawn or lifted so that appellants would be able to pursue other alternative remedies, if any, available. The appellate court disposed of the appeal with a direction to the statutory authorities to issue individual notice to both the appellants/ plaintiffs before withdrawing or lifting Ext.A10 stop memo and before any proposal to issue fresh licence for blasting operations in Item 3, so that the appellants and others would be able to pursue their remedies before the 8th defendant panchayat. This court find that the reasons stated for non-suiting the plaintiff on the basis of the evidence on record cannot be assailed in second appeal, for the reason that the trial court and the appellate court rests its finding on facts and evidence. In my view the grounds raised in the second appeal are not sufficient to invoke the jurisdiction under Section 100 of the C.P.C. The findings are solely based on facts and evidence. No question of law much less any substantial questions of law arises for consideration in this second appeal. Hence this appeal R.S.A.No.699 of 2009 5 fails and accordingly dismissed in limine. 7. The request of the appellants to issue notice before withdrawing or lifting Ext.A10 stop memo and before any proposals to issue fresh licence for blasting operation in Item No.3 was accepted by the appellate court and directions to that effect is issued. It is needless to say that the plaintiff and the public at large are entitled to challenge blasting operations done in violation of the law and rules in force. They have the authority and duty to appraise the statutory authorities that blasting operations are not done in accordance with the licence or permit or in violation of the Rules. It is the duty of the authorities to check and supervise whether the blasting operations in any property have been carried out not in accordance with the law and the Rules. Therefore it is very clear that the public who have the grievance can always approach the authority reminding them their duty and to see that no untoward incidents happen due to the blasting operations done in violation of the permit or rules as the case may be. In this case the concern of the people of the locality is expressed in the plaint. Therefore the statutory authorities shall, before issuing licence R.S.A.No.699 of 2009 6 or permit as the case may be, hear and ascertain the grievances of the plaintiff if any. This court hope that the statutory authorities shall take into consideration the concern and anxiety of the people of the locality before issuing licence or permit for blasting operation and for doing other dangerous activities which may cause danger to the life and property of citizens. HARUN-UL-RASHID, JUDGE skj.