RASSALI Vs. DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM

JUDGEMENT

(1.) Petitioners own an item of property measuring 8.4 Ares within the limits of Kanjirappally Village. The sixth respondent owns a property adjoining to the property of the petitioners on its northern side. With a view to construct a commercial building in the property, the petitioners obtained Ext.P5 building permit and Ext.P6 development permit from the Panchayat. As a certain quantity of ordinary earth and granite building stones required to be removed from the property for the purpose of constructing the building proposed by the petitioners, they have obtained permissions for the same from the fourth respondent under the Kerala Minor Mineral Concession Rules, 2015. Exts.P7 and P8 are the permissions obtained by the petitioners from the fourth respondent in this regard. When the petitioners commenced the work of removal of ordinary earth and granite stones from the property, the sixth respondent has lodged a complaint before the District Collector alleging that the petitioners are removing ordinary earth and granite stones from her property also. The said complaint was forwarded by the District Collector to the fourth respondent, the District Geologist, and on receipt of the same, after affording the sixth respondent an opportunity of hearing, the fourth respondent issued Ext.P9 memo directing the petitioners to stop the activities undertaken by them on the strength of Exts.P7 and P8 permissions. It is seen that the petitioners have pointed out to the fourth respondent that they have not encroached upon the property of the sixth respondent in any manner and consequently, after hearing the petitioners and the sixth respondent, the fourth respondent issued Ext.P12 communication to the petitioners informing them that since the sixth respondent has raised a dispute concerning the boundary of the properties, further action in the matter can be taken only after the boundary dispute is resolved by the concerned officials of the Revenue Department. The materials indicate that the Taluk Surveyor has, thereupon fixed the boundary of the respective properties and the petitioners have approached the fourth respondent thereafter for continuing the activities undertaken by them on the strength of Exts.P7 and P8 permissions. On the said request, Ext.P19 communication was issued by the fourth respondent to the petitioners informing them that a decision in the matter will be taken after considering the report called for from the second respondent as to the state of things as they stand now. Ext.P22 is the report forwarded by the second respondent to the fourth respondent in this regard. In Ext.P22, it is stated among others that the ordinary earth removed from the property of the petitioners is kept in the property itself; that there is a large granite stone in the property of the petitioners; that the property of the sixth respondent is lying at a height of almost 7 meters from the property of the petitioners; that no loss or damage would be caused to the sixth respondent if the petitioners are permitted to remove the ordinary earth kept in the property and if they are permitted to remove the granite stone in the property; that as the petitioners have removed ordinary earth from their property, the property of the sixth respondent needs to be protected by constructing a retaining wall in the property of the petitioners; that a retaining wall can be constructed in the property of the petitioners only if granite stone in the property is removed; that a portion of the granite stone in the property has already been removed by the petitioners using Diamond Wire Saw Cutting Machine; that no damage whatsoever would be caused to the property of the sixth respondent if the petitioners are permitted to remove the remaining granite stone in their property by using the said machine and that permission can therefore be granted to the petitioners to remove the ordinary earth and granite building stone from their property. In the light of Ext.P22 report, the fourth respondent has issued Ext.P23 communication to the petitioners informing them that if the petitioners construct retaining wall to protect the property of the sixth respondent, permission would be granted to them to remove the ordinary earth and granite stone from their property. The case set out by the petitioners in the writ petition is that when they started removing the granite stone that exists in their property pursuant to Ext.P23 communication, using Diamond Wire Saw Cutting Machine for the purpose of constructing the retaining wall, the fifth respondent, the Sub Inspector of Police as also the officials in the office of the fourth respondent interdicted the said work at the instance of the sixth respondent. According to the petitioners, they are carrying out only the work as permitted by the fourth respondent in terms of Ext.23 communication and therefore there is absolutely no justification for interdicting the work. The petitioners, therefore, seek appropriate directions to the respondents to enable them to carry on the works undertaken by the them.

(2.) A counter affidavit has been filed by the sixth respondent. It is stated by the sixth respondent in the counter affidavit that the petitioners have removed ordinary earth and granite stone from their land in such a manner as to endanger her life and property; that the removal of ordinary earth and granite stone by the petitioners is not in accordance with the conditions stipulated in Exts.P7 and P8 permissions; that on account of the activity undertaken by the petitioners, extensive damage has been caused to her property and that the lateral support of her property is completely lost. It is also stated by the sixth respondent in the counter affidavit that the petitioners have not left sufficient space in between the properties to put up an appropriate retaining wall to protect her property which is lying at a height of almost 35 meters.

(3.) Heard the learned counsel for the petitioners, the learned Government Pleader as also the learned counsel for the sixth respondent.