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«1. This Writ Petition is filed by the petitioner, claiming the following reliefs, under Article 226 of the Constitution of India : i. To issue an ...»

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High Court of Kerala

Case No : WP(C).No. 23837 of 2012 (D)

Judges: THE HONOURABLE MR. JUSTICE K.M. JOSEPH & THE HONOURABLE MR. JUSTICE

K. RAMAKRISHNAN

Parties : Kunjumuhammed Versus The State of Kerala, rep. by The Secretary To The Government,

Revenue Department & Others

Appearing Advocates : For the Petitioner: G. Sreekumar (Chelur), K. Ravi (Pariyarath), Advocates.

For the Respondents: R1, P. Vijayaraghavan, State Attorney, R1 to R5, C.R. Syamkumar, Sr.

Government Pleader, R6 to R10, M. Sasindran, R11 to R14, R. Sreehari, R15 to R17, M.B. Prajith, Advocates, P.B. Sahasranaman, Amicus Curiae.

Date of Judgment : 17-07-2013 REPORTED IN : 2013 (3) Kerala Law Times Page 472.

Judgment :-

Ramakrishnan, J.

1. This Writ Petition is filed by the petitioner, claiming the following reliefs, under Article 226 of the

Constitution of India :

"i. To issue an appropriate writ, order or direction, commanding the third respondent to provide adequate, substantial and sufficient police protection to the life and property of the petitioner, against the illegal activities of the respondents 6 to 10 and their men, which is in detail described in Ext.P4 by removing the same, in the interest of justice."

2. The petitioner is aggrieved since respondents 6 to 10 are causing obstruction in the petitioner removing the red earth from his property on the basis of the permission granted by respondents 4 and 5 and in spite of the petitioner filing complaint to the police officials, seeking police protection, no effective steps have been taken in the matter. Respondents 6 to 10 are members of a local body manned by the Communist Party of India. The petitioner has got 6.5 acres of land in Survey Nos.75/1, 75/2 and 73/2 of Nellaya Village in Palakkad District. The western side of the property is a sloppy area and therefore, the petitioner wanted to construct a retaining wall and for that purpose, the red earth from the eastern side has to be taken and the same has to be put on the western side. He applied for necessary permit in this regard. In fact, after levelling the land, the intention of the petitioner is to construct a house therein. Ext.P1 Government Order dated 5.4.2010 permitted this. The petitioner applied for permission for levelling the land, to the 4th respondent and the same was granted as per Ext.P2 order dated 27.08.2012. The said permission was in force for a period of 2 months. Ext.P2 permission was granted on the basis of Ext.P3 report of the 5th respondent. Respondents 6 to 10 raised objections, stating that such soil cannot be removed.

They trespassed into the property and caused damage to the machines and the structures situated therein. The name board placed therein was destroyed by them. Many other illegal activities were also perpetrated by them. Though the petitioner filed Ext.P4 complaint before the third respondent on 14.09.2012, no steps were taken by the said respondent. Respondents 6 to 10 are making illegal demand in so far as they say that for removing red earth, amount has to be paid to them.

They are using muscle power and they have destroyed the machines and demolished the structures in the property. The petitioner has obtained necessary permits for the purpose of construction of a residential building in the property. The permission so obtained, would expire on 27.10.2012. So, the petitioner prayed for adequate police protection for the life and property of the petitioner against the illegal activities of respondents 6 to 10 and their men. Hence the Writ Petition.

3. After the filing of the Writ Petition, additional respondents 11 to 14 were impleaded as per the order of this Court dated 16.11.2012 in IA No.15343/12 on their application and supplemental respondents 15 to 17 were impleaded as per order dated 4.3.2013 in IA No.16486/12 at the instance of the petitioner.

4. The 8th respondent has filed a counter affidavit on behalf of respondents 6, 7, 9 and 10 as well,

contending as follows :

The petitioner is not entitled to get any of the reliefs claimed in the petition and the petition itself is filed to give police protection for carrying out the illegal activities in the property of the petitioner.

Respondents 6 and 7 are social workers. The allegation in paragraph 2 of the Writ Petition that the petitioner applied for permission for construction of a retaining wall and for removing the red earth from the eastern side, to be put on the western side, before the 4th respondent and that Ext.P2 permission has been granted by the 4th respondent, is not correct. In fact, Ext.P2 permission was given for levelling the land to the extent of about 70 cents and it has been clearly stipulated in the said order that such removal of sand should not create any problem to the neighbours and the public. Apart from that, no permission has been granted for taking the sand out of the area. The petitioner, in total violation of the conditions imposed in Ext.P2 order, levelled almost 2.5 acres of land and granite stones were extracted by using JCB. The sand so removed after levelling the land has been taken out to other Districts. He has taken more than thousands of lorry loads of sand from the property to Malappuram District. He had almost levelled more than 2 acres of land, which is contrary to the conditions stated in Ext.P2 order. The Village Officer, Nellaya had submitted a report before the Tahsildar, Ottappalam, stating that upon inspection, it is found that about 2 acres of land has been levelled by the petitioner. The said report is produced as Ext.R8(a) along with the counter affidavit. There are a large number of people, residing in the area, down the property, where the petitioner sought for levelling the land. If a large amount of earth is removed, it will adversely affect the ecological conditions and land slide will occur due to the removal of earth.





Under the pretext of Ext.P2 order, the petitioner has levelled more than 2 acres of land. He has also removed granite stones from the property using JCB. All these activities will lead to ecological imbalance and it will affect a large number of people residing in the locality. Laksham Veedu Colony is situated near the property and the people residing in the colony will also be severely affected by the activities carried out by the petitioner. There is a Panchayat play ground, a PWD Road and a mosque nearby, which are being seriously affected by the illegal activities of the petitioner and there is no mechanism to check such illegal activities. The local people including respondents 6 to 10, who are social workers, made hue and cry and they protested peacefully against the illegal activities of the petitioner. The allegation that respondents 6 to 10 have trespassed into the property and caused damage to the machines and the structures situated therein, is not correct. They also denied the allegation that they are making illegal demand for money for removing the red earth and they are using muscle power. According to these respondents, the petitioner has no authority to remove sand from the property under the guise of Ext.P2 order. Ext.R8(b) stop memo has been issued by the Secretary, Nellaya Grama Panchayat, under the provisions of the Kerala Panchayat Building Rules 2011 (Rules 5 and 12). The attempt of the petitioner is to do illegal activities in the property under the guise of police protection, which he is not entitled to. On the above grounds, they prayed for dismissal of the petition.

5. The petitioner has filed a reply affidavit, contending as follows :

It is worthwhile to note that the 8th respondent is a panchayat member and this fact has been very consciously concealed which will assume importance on the facts which are stated in the reply affidavit. The allegations that he is doing illegal activities in his property and that respondents 6 and 7 are social workers, are not correct. They are not residing anywhere near the property in question and they are political workers, residing at distant places and not connected or affected by the activities carried out by the petitioner in his property. Ext.P5 application dated 17.04.2012 was filed in respect of the entire property, stating that for effecting agricultural operations or for putting up constructions, levelling of the land was required and side retaining walls are to be constructed.

Since the validity of Ext.P2 permission expired, the petitioner filed Ext.P6 application for extension on 25.10.2012, for extending the period mentioned in Ext.P2. The Village Officer as per Ext.P7, reported that the entire property requires to be levelled. It is also mentioned in Ext.P7 report that the property lies in a sloppy area and a retaining wall has to be constructed. The inspection report submitted by the Village Officer is Ext.P8. Even prior to this, in the communication of the Tahsildar, Ottappalam, to the District Collector, Palakkad, it is stated that no complaints have been received from the local people, regarding the leveling of the land and that consent has been granted by the neighbouring property owners. The report so given by the Tahsildar, Ottappalam is produced as Ext.P9. Even in the report submitted by the Village Officer to the Panchayat Secretary, it is stated that no illegality is stated to have been taken place. The said report is produced as Ext.P10. The issue sought to be projected as ecological problem is nothing but a tainted cheap politics, projected by the party respondents, who are members of a political party. They submitted Ext.P11 complaint to the Panchayat, which is ruled by the left front and a stop memo has been issued. The District Collector addressed the Geologist to give a precise report and it is on the basis of the said report that Ext.P2 permission was granted. The order so passed by the District Collector is produced as Ext.P13. Ext.P14 report has been given by the Geologist, Palakkad. He has also explained that as per the relevant Government Order, it was specified that no permission was required and later, as per the orders of this Court, the order was withdrawn and accordingly, permission was sought. The explanation offered by the petitioner is marked as Ext.P15. It is after conducting enquiry that Ext.P2 order has been issued. The allegation that he has removed not less than 1000 lorry loads of mud from the property in question to Malappuram District etc., is not correct. There is no ecological imbalance caused in the area, on account of the activities carried out by the petitioner in his property. The Panchayat Secretary has no right to issue Ext.R8(b) order since no permission for construction of building was sought. The Rules do not apply in the instant case. At any rate, the Panchayat cannot sit in appeal over Ext.P2. No valid grounds are made out by the respondents to deny reliefs to the petitioner. On the basis of the above contentions, the petitioner prayed for allowing the Writ Petition.

6. Additional respondents 11 to 14 have filed a counter affidavit through the 11th respondent, on behalf of the other respondents as well. They more or less supported the case of the petitioner.

They submitted that respondents 6 to 10 have no right in the property and they are only causing hardship to the petitioner and these respondents are the neighbours of the petitioner and they have given no objection for the levelling of the property, as evidenced by Ext.R11(a). The 10th respondent, in his capacity as Secretary of the Communist Party of India (Marxist), Nellaya local committee, filed Ext.R11(b) complaint and that will go to show that it is nothing but a political outcry of respondents 6 to 10 and nothing more. They are residing 5 kms away from the petitioner's property and no difficulty will be caused to the nearby properties, on account of activities carried out by the petitioner in his property. So, they prayed for allowing the Writ Petition.

7. As directed by this Court, the 5th respondent Geologist has filed a report, wherein, it is stated as

follows :

"On 21.12.2012, I inspected the area of 6.58 acres of land comprised in Sy. No.75/1, 75/2, 75/3 Nellaya Village, Ottappalam Taluk, Palakkad District which was already inspected on 07.08.2012 and a report has been submitted before the District Collector, Palakkad. On the basis of the report, the District Collector issued proceeding Order NO.LRG 10/2012/42141/9 dated 27.08.2012 permitting the petitioner to extract and levelling ordinary earth in the said area. During the inspection conducted on 21.12.2012, it is found that 30 loads (approximately 90 MT) of ordinary earth has already been heaped therein and extraction of more red earth from the same area is needed for levelling the above said area."

8. The petitioner has produced Ext.P16 along with IA No.2928/13, whereby he had obtained development permit from the Panchayat as required under Rule 4 of the Kerala Panchayat Building Rules, 2011 and that application was allowed and the documents were received.

9. Adv.P.B.Sahasranaman was appointed as Amicus Curiae, to help the Court regarding the matter as to whether the act claimed by the petitioner to be carried out in his property will amount to mining operation and it will amount to a development, so as to entitle him to get permit under Rule 4 of the Kerala Panchayat Building Rules, 2011 and the learned counsel has submitted his argument, in this regard, which was of great help to this Court in deciding the issue.

10. The petitioner has filed IA No.16699/12, requesting to grant the reliefs sought for in the Writ Petition, without insisting for extension of time limit as mentioned in Ext.P2 and objection was filed to the same, by the party respondents, stating that the court cannot usurp the powers of the statutory authorities while deciding police protection cases and only if the petitioner is having all the necessary permits to carry out the work, the court can come to the aid of the petitioner in enforcing his legal rights. The said interlocutory application is also being considered along with this Writ Petition.



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