IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WP(C).No. 5074 of 2011(H) -------------------------------- PETITIONER(S): ------------------- 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): -------------------- 1. STATE OF KERALA, REP. BY SECRETARY, (REVENUE DEPARTMENT), GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695006. 2. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM-682030. 3. THE MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, KAKKANADU, ERNAKULAM DISTRICT-683020. 4. THE DEPUTY COLLECTOR (LR), KAKKANADU, ERNAKULAM-682030. 5. THE AIYYAMPUZHA GRAMA PANCHAYATH, AIYYAMPUZHA, ERNAKULAM DISTRICT-683581, REP. BY ITS SECRETRY. 6. THE VILLAGE OFFICER, AIYYAMPUZHA, ERNAKULAM DISTRICT-683581. svs. ................2/-... ...2... WPC. NO.5074/2011 7. THE SUB INSPECTOR OF POLICE, AIYYAMPUZHA POLICE STATION, ERNAKULAM DISTRICT-683581. 8. ESTAPPANOS M.D., AGED 65 YEARS, MOOLEN HOUSE, ANGAMALLY (NEAR RAILWAY STATION), OPP. LIC-683572. 9. BIJI STEPHEN, S/O.M.D.ESTAPHANOSE, AGED 28 YEARS, MOOLEN HOUSE, ANGAMLLY (NEAR RAILWAY STATION), OPP. LIC-683572. 10. JOSY STEPHEN, S/O.STEPHEN, S/O.M.D.ESTAPHANOSE, AGED 29 YEARS, MOOLEN HOUSE, ANGAMLLY (NEAR RAILWAY STATION), OPP. LIC-683572. 11. VARGHESE VITHAYATHIL, S/O.ANTONY VITHAYATHIL, KURUMASSERY KARA, AYIROOR VILLAGE, NORTH PARAVOOR-683579. 12. EMILYKUTTY JOSEPH KUNJU, W/O.JOSEPH KUNJU, THOONDIYIL HOUSE, KIDANGARA KARA, KUTTANADU TALUK. R1 TO R4, R6, R7 BY GOVT.PLEADER SRI.T.K.ARAVINDAKUMAR BABU R5 BY SRI.S.SHANAVAS KHAN R8 TO R10 ADV. SRI.WILSON URMESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 5074/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, ERNAKIULAM DATED 03/10/2008. P2: ORDER OF THE DISTRICT COLLECTOR GRANTING PERMISSION TO THE RESPONDENTS NO. 8 TO 12 TO EXCAVATE THE SOIL FROM THE PROPERTY DATED 27/05/2010. P3: COPY OF THE APPEAL PETITION FILED BY THE PETITIONER BEFORE 1ST RESPONDENT DATED 09/03/2011. P4: COPY OF THE STAY PETITION FILED BY THE PETIITONER BEFORE 1ST RESPONDENT DATED 09/03/2011. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE ORDER DATED 27/05/2010 OF THE DISTRICT COLLECTOR, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE. svs P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 5074 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 6th day of April , 2011 JUDGMENT The petitioner approached this Court, initially with the following prayers : (a) Issue a writ of mandamus commanding or other appropriate writ order or direction commanding respondents Nos. 2 to 7 to restrain the respondents No. 8 & 12 and their men from excavation of soil and sand from their properties in Sy. Nos. 61/1/33/6 (Re. Sy. No. 293/2, 293/52) of Ayyampuzha village adjacent to the petitioners property in Sy. No. 293/2 of Ayyampuzha village, Aluva Taluk (b) Issue a writ of mandamus or other appropriate writ or directing commanding the respondents 2 to 6 to take immediate and effective steps against the excavation of soil,s and minerals by the respondents No. 8 and 12 in Sy. No. 293/2, 293/5/2 very adjacent to the petitioner's property in Sy. No. 293/2 of Ayyampuzha village, Aluva Taluk. (c.) Issue a writ of mandamus commanding the respondents 2 to 6 to implement the order of the 4th respondent dated 31/10/2008 and thereby prevent the respondents No. 8 & 12 from the excavation of soil and sand. (d) C (a) Call for the records leading Ext. P2 order and quash the same by issuing writ of certiorari or other appropriate writ order or direction. (e) C (b) Issue a writ of mandamus commanding the 1st respondent to consider Exhibit P3 appeal and P4 stay petition with in a time specified by the Hon'ble Court and in the mean time all further proceedings pursuant to Ext. P2 order may W.P. (C) No. 5074 of 2011 : 2 : kept in abeyance. (f) Issue such other writ order or direction as may be necessary in the facts and circumstances of the case. 2. On receipt of the notice, the respondents 8 , 9 and 10 entered appearance and filed counter affidavit, pointing out that, the petitioner has not approached this Court with clean hands, in so far as the subsequent proceedings, particularly, the order passed by the District Collector on 27.05.2010 has not been brought to the notice of this Court. A copy of the same is produced along with the counter affidavit as Ext. R8(a). 3. With reference to Ext. R8(a), the learned counsel for the respondents 8 to 10 submits that, there is a clear observation in the said order to the effect that the mining operation stated as being pursued by the said respondents is not in any way detrimental to the free flow of water and that the minor mineral/ordinary earth mined is intended for the construction of the Kochi International Airport. It is also pointed out that such activities being pursued in the properties will not cause any adverse result or interest to the adjacent properties. It is in the said circumstances, that the Revenue Divisional Officer, Fort Kochi has reported the factual position to the District Collector, who in turn passed Ext. R8(a), permitting the respondents 8,9 and 10 to pursue the mining operation. W.P. (C) No. 5074 of 2011 : 3 : 4. After filing the above counter affidavit, the petitioner chose to amend the writ petition by filing I.A. No. 4870 of 2011. By way of amended writ petition, the writ petitioner has challenged Ext. R8(a) as well. It is also stated that the petitioner, being aggrieved of Ext. R8(a) has filed Ext. P3 appeal along with Ext. P4 stay petition before the Government, which is pending consideration. 5. Heard the learned Government Pleader as well. 6. After hearing both the sides, the first respondent is directed to consider Ext. P4 I.A. for stay in accordance with law, after giving an opportunity of hearing to both the sides, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. Petitioner shall produce a copy of this judgment along with copy of the amended writ petition with complete set of pleadings and proceedings before the first respondent for further steps. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd