IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WP(C).No. 29406 of 2009(U) -------------------------------------- PETITIONER: ------------------- MALATHI CHAMI, AGED 56, W/O. CHAMI, CHINGERI TRIBEL COLONY, AMBALAVAYAL P.O., SULTHAN BATHERI TALUK, WAYANAD. BY ADVS. MR.K.S.MADHUSOODANAN, MR.T.V.JAYAKUMAR NAMBOODIRI, MR.THUSHAR NIRMAL SARATHY, MR.M.M.VINOD KUMAR, SMT.K.M.RAMYA. RESPONDENTS: ------------------------ 1. DISTRICT COLLECTOR, WAYANAD. 2. GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, MEENANGADI, WAYANAD. 3. VILLAGE OFFICER, AMBALAVAYAL VILLAGE, WAYANAD. 4. BOSE SEBASTIAN, S/O. AUGUSTINE, ALAMUTTU PUTHAN BANGALOW, AMBALAVAYAL P.O., SULTHAN BATHERI TALUK, WAYANAD. 5. BABY, MANIMALATHAZHATH, AMBALAVAYAL, WAYANAD. R1 TO R3 BY GOVT. PLEADER MR. K. RAMESH, R4 BY ADV. MR.P.CHANDRASEKHAR, R5 BY ADV. MR.C.S.MANU, MR.S.K.PREMRAJ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29406/2009-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE OWNERSHIP CERTIFICATE DURING THE PERIOD 1997-98 TO 2006-07 DTD. 17/11/06. EXT.P.1.A: COPY OF THE OWNERSHIP CERTIFICATE FOR THE PERIOD 2007-08 DTD. 20/05/09. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.30227/08 DTD. 15/10/08. EXT.P.3: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE R.1. TO THE R.4. DTD. 17/12/08. EXT.P.4: COPY OF THE PERMIT BEARING NO.11/09-10/MM/GS/DOW/M-1692/08 DTD. 15/06/09 ISSUED TO R.4. BY R.2. EXT.P.5: COPY OF THE NOC ISSUED BY THE R.1. TO THE R.5. ALONG WITH SKETCH. EXT.P.6: COPY OF THE PERMIT BEARING NO. 40/2009-10 ISSUED TO THE R.5. BY THE R.2. DTD 29/09/09. EXT.P.7: COPY OF THE ORDER IN I.A. 373/09 IN O.S. 70/09 OF MUNSIFF COURT, SULTHAN BATHERY DTD. 04/04/09. EXT.P.8: COPY OF THE ADVOCATE COMMISSIONER'S REPORT IN I.A. 374/09 IN O.S. 70/09 DTD. 08/06/09. EXT.P.9: COPY OF THE REPRESENTATION TO THE R.1. DTD. 17/09/09 BY THE PETITIONER. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE JUDGMENT DTD. 18/08/2008 IN O.S. NO. 118/2005 OF SUB COURT, SULTHAN BATHERY. EXT.R1.B: COPY OF THE JUDGMENT IN O.S. NO. 196/2005 OF MUNSIFF COURT, SULTHAN BATHERY. EXT.R5.A: COPY OF THE REPORT NO.L4/14807/08 DT. 14/08/2008 SUBMITTED BY THE R.2. TO THE R.1. EXT.R5.B: COPY OF THE REPORT NO. CR-304/08 DT. 13/08/2008 SUBMITTED BY THE R.3. TO THE R.2. EXT.R5.C: COPY OF THE NO-OBJECTION CERTIFICATE DT. L2/22542/08 DT. 20/02/2009 ISSUED BY THE R.1. EXT.R5.D: COPY OF THE LOCATION SKETCH ISSUED BY THE R.3. EXT.R5.E: COPY OF THE LOCATION PLAN OF THE 5TH RESPONDENT'S QUARRY. W.P.(C). NO.29406/2009-U: EXT.R5.F: COPY OF THE QUARRYING PERMIT NO. 59/2009-10 DT. 09/11/2009 ISSUED BY THE R.2. EXT.R5.G: COPY OF THE AGREEMENT BY AND BETWEEN THE R.5. AND MR. P.C. KANARAN NAIR. EXT.R5.H: COPY OF THE AGREEMENT BY AND BETWEEN THE R5. AND MR. MAJEED. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.29406 of 2009-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2010. JUDGMENT The petitioner is aggrieved by the quarrying operations conducted by respondents 4 and 5 as per Ext.P3 NOC issued by the first respondent to the 4th respondent, Ext.P4 permit issued by the second respondent, Ext.P5 NOC issued by the first respondent to the 5th respondent and Ext.P6 permit issued to the 5th respondent by the second respondent. 2. Mainly it is contended that the petitioner is in possession of 25 cents of land in Sy. No.298/1A1A1A and the quarrying permits have been issued overlooking her possession and claim over the property, in favour of respondents 4 and 5. Reliance is placed on Ext.P2 judgment of this Court in W.P.(C) No.30227/2008, wherein this Court had directed the first respondent to consider the claim of the petitioner before taking any final decision on the proposal to lease the property to conduct a quarry. 3. The respondents have field separate counter affidavits. The NOC issued as per Ext.P3 shows that the same is issued for quarrying granite from 40 cents of revenue puramboke land in R.S. No..298/1A1A1A (New Sy. No.659/Part). In Ext.P5 NOC also what is mentioned is that the same wpc 29406/2009 2 applies to 0.2520 hectare Government puramboke in Sy. No.298/1A1A1A. In the counter affidavit filed by the 4th respondent, it is averred that the petitioner is a rival quarry permit holder who is conducting quarry in the adjacent quarry of the 4th respondent and Exts.P3 to P5 are perfectly legal and valid. Reliance is placed on Ext.R1(a) judgment in O.S. No.196/2005 on the file of the Sub Court, Sulthan Bathery as well as Ext.R1(b) judgment in O.S. No.196/2005 and it is contended that the petitioner has been restrained from obstructing the quarrying operations conducted by the 4th respondent. It is also submitted that W.P.(C) No.152572009 filed before this Court seeking police protection against the petitioner and her son is pending. 4. In the counter affidavit filed on behalf of the fifth respondent, it is averred that the property in respect of which Ext.P5 NOC has been issued, admeasuring 0.2520 hectares comprised in Sy. No. 298/1A1A1A in Ambalavayal Village of Sulthan Bathery Taluk, in Wayanad District is a puramboke land. Ext.R5(a) report of the second respondent and Ext.R5(b) report of the third respondent are relied upon. It is submitted that quarrying is being conducted with all permits and the allegation that the 5th respondent has attempted to trespass the petitioner's property, is denied. 5. The petitioner has filed a reply affidavit, wherein it is pointed out wpc 29406/2009 3 that O.S. No.195/2005 is with respect to the property in R.S. No.215/1A1A1 and not in respect of the property in R.S.298/1A1A1A. 6. It is clear that the petitioner was not issued with any notice before Exts.P3 and P5 were issued by the District Collector. The judgment Ext.P2 is dated 15.10.2008 wherein the petitioner is the writ petitioner and the 4th respondent is the second respondent. Therein, a direction was issued to the District Collector to consider and pass orders on Exts.P2 and P3 before any decision is taken or proposed to be taken in that behalf, for leasing out the property in the possession of the petitioner, to the second respondent therein or any other person. Evidently, while issuing Exts.P3 and P5, the objection raised by the petitioner has not been considered. 7. In the above view of the matter, the writ petition is disposed of directing the first respondent to take a fresh decision after hearing the petitioner and respondents 4 and 5, within a period of six weeks from the date of receipt of a copy of this judgment. Till orders are passed, Exts.P3 and P5 will be treated as provisional. No costs. (T.R. Ramachandran Nair, Judge.) kav/