IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 13665 of 2008(B) -------------------------- PETITIONER: ---------------- 1. JYOTHI, W/O.RAJAKRISHNAN, KATTALATH HOUSE, KOTTEKKAD, PALAKKAD DISTRICT. 2. R. VIJAYAN, SON OF RAGHAVAN, AGED 50 YRS RESIDING AT "LAKSHMY", MILMA ROAD, KALLEPPULLY, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI RESPONDENTS: ------------- 1. THE SUPERINTENDENT OF POLICE, PALAKKAD. 2. THE SUB INSPECTOR OF POLICE, MALAMPUZHA, PALAKKAD DISTRICT. 3. MR RAMESH, S/O SELVAKUMAR, THOOPPALLAM VEEDU, MALAMPUZHA, PALAKKAD DISTRICT. 4. MR PRASAD, S/O.MAYANDI, VAKKAD, THOOPPALLAM, MALAMPUZHA, PALAKKAD DISTRICT. 5. MR SANAL KUMAR, S/O. KESAVAN, THOOPPALLAM VEEDU, MALAMPUZHA, PALAKKAD DISTRICT. 6. MR SAJITH, S/O.RAMAKRISHNAN, VAKKAD, THOOPPALLAM, MALAMPUZHA, PALAKKAD DISTRICT. ADDL. 7.GEOLOGIST, DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND GEOLOGY, PALAKKAD. ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 2.5.2006 IN IA.5774/2008. BY ADV. SRI.C.P.PEETHAMBARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO.13665 OF 2008 PETITIONERS' EXHIBITS: EXHIBIT P1: COPY OF PETITION DATED 21.4.2008 SUBMITTED BY THE PETITIONERS BEFORE R2. EXHIBIT P2: COPY OF PERMIT ISSUED TO THE 2ND PETITIONER BY THE DISTRICT GEOLOGIST. EXHIBIT P3: COPY OF PERMIT ISSUED TO THE 2ND PETITIONER BY THE DISTRICT GEOLOGIST. RESPONDENTS' EXHIBITS: EXHIBIT R4(a): PHOTOGRAPHS SHOWING THE EXCAVATION OF UPPER SAND AND THE IMMEDIATE VICINITY. EXHIBIT R4(b): COPY OF REPRESENTATION SUBMITTED BEFORE THE RDO, PALAKKAD DATED 19.4.2008. EXHIBIT R4(c): COPY OF COVERING LETTER AND RESOLUTION OF OTHE MALAMPUZHA GRAMA PANCHAYATH. EXHIBIT R4(d): PHOTOGRAPH SHOWING THE BURIAL GROUND AND THE EXCAVATION OF UPPER SAND. EXHIBIT R4(e): COPY OF NEWS ITEMS PUBLISHED IN KERALA KAUMUDI, MADHYAMAM, MANGALAM AND JANAYUGAM DAILIES DATED 21.4.2008. /TRUE COPY/ PA TO JUDGE K.BALAKRISHNAN NAIR & K.HEMA,JJ. ----------------------------------------- W.P(C).No.13665 OF 2008 ----------------------------------------- Dated this the 23rd day of May, 2008 JUDGMENT Balakrishnan Nair, J. The first petitioner is the owner of a plot of land having an extent of about 80 Ares in Resurvey No.374/1 and 375/3 of Malampuzha II Village. She permitted the second petitioner to remove sand from the said property. She submits that removal of sand is made, so that she can cultivate paddy in the land. She has got all statutory clearances for removing sand. The second petitioner has obtained permit under the Kerala Minor Mineral Concession Rules for the removal of sand as evident from Exhibit P3. But, when the petitioners started removal of sand, respondents 3 to 6 started causing obstruction. They threatened to set fire to the vehicles and cause physical harm. Therefore, the petitioners preferred Exhibit P1 representation before the Sub Inspector of Police, Malampuzha, claiming protection against the illegal actions of respondents 3 to 6. Since, the police did not take any effective steps, this Writ Petition is filed seeking appropriate reliefs. WP(C).NO.13665/08 2 2. The fourth respondent has filed a counter affidavit, in which it submitted that the land in question is a garden land full of coconut trees and arecanut trees and in that land deep excavation is made to remove sand and in support of the submission, the fourth respondent has produced Exhibit R4 series photographs. It is also submitted that the local Poura Samithi has filed a petition before the R.D.O against the quarrying of sand. Exhibit R4(b) is that petition. The plot, from which the sand is removed is on the northern side of Korayar River and western side of a public burial ground belonging to the Malampuzha and Marutha Road Grama Panchayaths, it is submitted. Suppressing these facts the petitioners have obtained the mining permit, it is submitted. They also pointed out that the Panchayat has passed a resolution, a copy of which is produced as Exhibit R4(c), to prohibit quarrying of sand. According to the Panchayat, the excavation of sand is causing environmental problems. The fourth respondent has also produced Exhibit R4(d) photographs of the burial ground, which is in the neighbouring plot. They also relied on Exhibit R4(e) news paper reports concerning the removal of sand from the property in question. WP(C).NO.13665/08 3 3. The learned Government Pleader, on instruction from the police, submitted that the petitioners obtained permission to cultivate paddy in the land from the R.D.O. Further, the river and burial ground are adjacent to the plot where quarrying is being done. If the quarrying is going on, the same will cause danger to the banks of the river which will cause flooding during monsoon. 4. The petitioners dispute the above submissions made by the fourth respondent and the police. For the reason that the petitioners have obtained quarrying permit from the Geologist, they cannot undertake the quarrying affecting the rights of the persons living in the neighbourhood. Whether the quarrying will affect them or not is a disputed question of fact. Further, whether the land where quarrying is undertaken is near to the burial ground and Korayar river is also a disputed question. In view of the above position, we are not inclined to issue any direction to the police in this Writ Petition filed under Article 226 of the Constitution of India. The view taken by us is supported by the decision of this Court reported in Thilakan v. Circle Inspector of Police (2008(1) KLT 141). WP(C).NO.13665/08 4 In the result, the Writ Petition is dismissed, without prejudice to the contentions of the petitioners and their right to move the competent civil court for appropriate reliefs. It is made clear that we have expressed any opinion on the merits of the claim of the petitioners and the respondents. K.BALAKRISHNAN NAIR, JUDGE K.HEMA, JUDGE vgs.