IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 Crl.MC.No. 610 of 2008() ------------------------ PETITIONER: ------------ 1. SUNIL KUMAR P.G., SANTHI NIVAS MANGANAM P.O., KOTTAYAM. 2. MONCY M.VARKEY, MANIYAMKERIL KILIROOR NORTH P.O., KOTTAYAM. 3. K.A.PETER, KALAMPUKATTU, T.B.ROAD KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS: ------------- THE SUB-DIVISIONAL MAGISTRATE OFFICE OF THE REVENUE DIVISIONAL OFFICER COLLECTORATE CAMPUS, KOTTAYAM.686002. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl..C. No. 610 of 2008 * * * * * * * * * * * * * * * * * * Dated: 12-02-2008 ORDER Petitioners who claim to be owners of Medium Goods Vehicles and Goods Carriage Lorries hired for removing ordinary earth challenge Annexure A2 ex parte order dated 4-2-2008 passed by the Sub Divisional Magistrate, Kottayam under Sec. 144 (2) Cr.P.C. prohibiting the general public within the limits of the Kottayam , Changanassery and Kanjirappally Taluks from reducing to the ground, mounts and other elevated areas and from removing soil therefrom and filling up the valleys and low laying areas for mercinery gains. 2. The learned counsel for the petitioner placing reliance on the decisions in Alexander v. Ida Mathew - 1983 KLT 839, Parathodu Panchayat v. Kanhirappally Panchayath and others - 1984 KLT 204 would submit that such a blanket order without fixing any duration or time limit for the same and issued against the general public and not against any specified individual is per se illegal and such an order cannot be allowed to be sustained. He further submitted that in the light of the notification dated 23-12-1977 issued by the Government of Kerala deleting ordinary earth from the Kerala Minor Mineral Concession Rules no permit for transportation of ordinary earth can be insisted and the impugned order so far as it prohibits the petitioners and other like-minded persons from removing earth is contrary to law as interpreted by this Court in the judgment dated 9-3-2006 in W.P. (C) No. 5722 of 2006 and the Judgment dated 16-10-2007 in W.P(C). 23389 of 2006. 3. Annexure - II impugned order refers to reports received by the Sub Divisional Magistrate to the effect that in various areas within the aforesaid taluks mechanised contrivances are being used -:2:- for reducing to the ground the mounts and other places of altitude and the earth so removed are being transported using tipper lorries to low lying areas for filling up those areas with an avaracious motive. 3. In view of the proposed disposal of this M.C., I do not intend to consider the merits of the contentions. The petitioners have got an alternative remedy of moving the Magistrate under sub Section 5 of Section 144 Cr.P.C. for rescinding or altering the order the duration of which itself is only for two months in view of sub section 4 of Section 144 of Cr.P.C. Hence without prejudice to the right of the petitioners to move the Magistrate under Sec. 144 (5) Cr.P.C., this Crl. M.C. is dismissed. It is made clear that in the light of the judgments referred to above there cannot be any permit insisted by the State or its authorities for the transportation of ordinary earth. V. RAMKUMAR, (JUDGE) ani.