Disposed

Surendra Kurup v. District Geologist

Kerala HC13 Nov 2018WP(C)/17580/2018

Case brief

AI extract

What is this about?

The petitioner neighbors challenged the quashing of a permit allowing a relative to extract sand. The High Court found the permit suspension violated natural justice by denying a hearing, directing the Geologist to hold joint hearings with petitioners before a final decision.

What did the court decide?

Petitioner in connected W.P. given liberty to object to suspension of permit; neighboring petitioners directed to submit representation; district authority to hold joint hearing and take final decisio

Surendra Kurup Vs District Geologist — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY ,THE 13TH DAY OF NOVEMBER 2018 / 22ND KARTHIKA, 1940

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WP(C).No. 17580 of 2018

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PETITIONER/S:

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1 SURENDRA KURUP, AGED 58 YEARS,

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KANJICKAL PUTHEN VEEDU, THOTTUVA,

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ANAYADI-P.O.,PALLICKAL VILLAGE, ADOOR, PATHANAMTHITTA.

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2 RADHAMANI, W/O.SURENDRA KURUP, KANJICKAL PUTHEN VEEDU, THOTTUVA, ANAYADI-P.O., PALLICKAL VILLAGE, ADOOR,PATHANAMTHITTA.

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BY ADV. SMT.D.P.RENU

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RESPONDENT/S:

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1 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, ARANMULA, PATHANAMTHITTA-680 533.

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2 PALLICKAL GRAMA PANCHAYAT,

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PAZHAKULAM P.O., ADOOR, PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY, PIN: 691 554.

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3 ANITHA G.KURUP, W/O.GOPINATHA KURUP, ARUN VIHAR, MUNDAPPALLY,NELLIKUKAL, ADOOR - 691 523.

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4 GOPINATHA KURUP, ARUN VIHAR, MUNDAPPALLY, NELLIKUKAL, ADOOR-691 523.

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R1 BY SRI. MANURAJ K.J., GOVERNMENT PLEADER R2 BY SRI. K. SHAJ, SC R3 & R4 BY ADV. SRI.D.KISHORE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2018, ALONG WITH WP(C).25841/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.17580 & 25841 of 2018

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JUDGMENT

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The captioned writ petitions are materially

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connected in respect of ordinary earth removed by the petitioner in W.P.(C) No.25841 of 2018 from the property situate in Survey No.589/5-1 of Pallickal Village, Pathanamthitta District within the limits of the

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Pallickal Grama Panchayat. Petitioners in W.P.(C) No.17580 of 2018 seek to quash the order passed by the Geologist, Mining and Geology Department, Pathanamthitta dated 14.05.2018, whereby petitioner in the other writ petition is permitted to remove 2000 MT of ordinary sand from her property. Therefore, I heard them together and propose to deliver this common judgment.

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The case of the petitioners in W.P.(C) No.17580 of 2018 is that, they are the neighbouring property owners of respondents 3 and 4 in the said writ petition

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and the 3^rd respondent is the petitioner in the other writ petition. Their case is that, the District Geologist as per Ext.P1 order dated 14.05.2018 granted permission for the removal of earth from the property without following the procedural formalities to prevent erosion of soil from the neighbouring property belonging to the petitioners, and also causing obstruction to the free

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W.P.(C) Nos.17580 & 25841 of 2018

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ingress and egress to the property. It is also pointed out that, 1^st respondent has passed the order pursuant to the judgment rendered by this Court viz., Ext.P3 in W.P. (C) No.10923 of 2018 dated 11.04.2018, in which the petitioners were not made parties. It is further pointed out that, petitioners have already filed O.S.No.279/2016 before the Munsiff's Court, Adoor against the petitioner in the other writ petition and secured an order of injunction, restraining removal of earth and the said injunction order is even now in force. Therefore, Ext.P1 cannot be implemented without hearing the petitioners, is the contention.

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Respondents 3 and 4 have filed a counter

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affidavit in the said writ petition, refuting the allegations and claims and demands raised by the petitioners therein. The contention put forth by the petitioners therein that, if ordinary earth is removed from the property of the said respondent, lateral support will be lost are all denied. It is also pointed out

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that, the interim order passed by the Munsiff's Court in O.S.No.279/2016 was modified, permitting the respondents

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to remove soil after leaving a minimum distance of 15 feet towards lateral support and after securing valid permit from the concerned authorities. Other contentions

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W.P.(C) Nos.17580 & 25841 of 2018

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are also raised, justifying the action of the District Geologist in granting the permit.

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quash Ext.P7, whereby the permit granted to the

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petitioner therein was temporarily cancelled and directed the petitioner to return the transit passes issued to

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her. The thrust of the contention advanced by the

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petitioner is that, Ext.P7 order is passed without providing an opportunity of hearing to the petitioner and the same is violative of the principles of natural justice.

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I have heard respective counsel across the Bar and perused the pleadings and the documents on record.

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It is an admitted fact that, before passing

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Ext.P7 order dated 21.05.2018 in W.P.(C) No.25841 of 2018, the permit holder was not provided with an opportunity of hearing. It is trite, when the petitioner

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has acquired a right by virtue of the permit granted, before cancellation of the same, petitioner ought to have

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been provided with an opportunity. That is not done by the District Geologist. There is no much dispute with respect to the said fact. In that view of the matter,

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and since I find that, as per Ext.P7, the permit is only temporarily suspended, an opportunity can be provided to

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W.P.(C) Nos.17580 & 25841 of 2018

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the petitioner therein as well as the petitioners in the other writ petition to participate in the proceedings and then finalize the issue.

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Therefore, the petitioner in W.P.(C) No.25841 of 2018 is given the liberty to file suitable objection to Ext.P7 communication dated 21.05.2018, within three weeks from the date of receipt of a copy of this judgment.

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Petitioners in the other writ petition will also be at liberty to file suitable representation in respect of the permit granted to the petitioner in W.P.(C) No.25841 of 2018, within the aforesaid time frame, and both the

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objection and representation shall be taken into consideration by the District Geologist, provide opportunity of hearing to both the parties and then take a final decision within a month thereafter.

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The writ petitions are disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

W.P.(C) Nos.17580 & 25841 of 2018

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APPENDIX OF WP(C) 17580/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT-P1: TRUE COPY OF ORDER DT.14.5.2018 ISSUED BY 1ST RESPONDENT.

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EXHIBIT-P2: TRUE COPY OF ROUGH SKETCH SHOWING THE LOCATION.

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EXHIBIT-P3: TRUE COPY OF THE JUDGMENT IN W.P(C) 10923 OF 2018 DT.11.4.2018 OF THIS HON'BLE COURT. EXHIBIT-P4: TRUE COPY OF INJUNCTION ORDER IN I.A.956/2016 IN O.S.279/2016 DT.26.6.2016 OF THE MUNSIFF COURT, ADOOR.

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EXHIBIT-P5: TRUE COPY OF PAPER REPORT DT.22.5.2018 PUBLISHED BY MATHRUBHUMI.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R3(A) THE COPY OF THE BUILDING PERMIT NO.A3 4906/16 DATED 7.7.2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT R3(B) THE COPY OF THE DEVELOPMENT PERMIT NO.A3 4906/16 DATED 7.7.2016 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT R3(C) THE COPY OF THE JUDGMENT DATED 11.4.2018 IN WPC 10923/2018 OF THIS HONOURABLE COURT. EXHIBIT R3(D) THE COPY OF THE CHALAN RECEIPT DATED 25.1.2018. EXHIBIT R3(E) THE COPY OF THE ORDER DATED 27.6.2018 IN I.A.956/2016 IN O.S.279/2016 OF MUNSIFFS COURT, ADOOR.

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EXHIBIT R3(F) THE COPY OF THE PROCEEDINGS NO.1005/DOPTA/M/17 DATED 21.5.2018 OF THE IST RESPONDENT.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Surendra Kurup v. District Geologist

Case brief

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Surendra Kurup v. District Geologist

Case brief

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