T.U. Chacko vs State of Kerala and Others

Justice T.R. Ramachandran Nair, J.—The petitioner is a Contractor engaged in supply of earth for various infrastructure projects in the public sector in Ernakulam District including the Vallarpadam Container Terminal Road. The challenge herein is against the communication issued by the Panchayat as per Ext.P5. Heard the learned Senior Counsel for the petitioner, lthe earned counsel appearing for the Panchayat and the learned Government Pleader.

The 10th and 11th respondents have been issued with the permit for removal of earth, namely, Ext.P1 issued by the third respondent-Revenue Divisional Officer. It is submitted by the learned Senior Counsel for the petitioner that the permit will show that certain conditions have been imposed therein with regard to the way in which excavations have to be made and, regarding the removal of the earth. But when the petitioner was about to start the work as per Ext.P1, the Panchayat issued a stop memo which led to the filing of the writ petition.

Learned Senior Counsel for the petitioner submitted that no file:////altifileserver/formatnew/For%20convert/21.06.2012/1709-2012/KE120538.txt (6 of 12)6/21/2012 9:15:24 AM file:////altifileserver/formatnew/For%20convert/21.06.2012/1709-2012/KE120538.txt worthwhile reasons are discernible from the stop memo issued by the Panchayat. There is only a generalised allegation that if the earth is W.P.(C). No. 11596/2012 -:2:-removed, it will affect the drinking water facility in Thiruvaniyoor Grama Panchayat area.

Exts.P4 and P5 are the stop memos issued by the Panchayat to respondent Nos. 10 and 11. On receipt of the same, they sent a lawyer notice as per Ext.P6.

The sixth respondent-Panchayat have placed their objections by filing an affidavit. What is averred in para.5 is that the Thiruvaniyoor Grama Panchayat is facing acute water shortage due to indiscriminate mining and the Panchayat is distributing drinking water to public with the help of Revenue Officials in and around the Panchayat area.

Learned counsel for the Panchayat submitted that in the light of the problems faced by the general public with regard to the non availability of drinking water, the Panchayat was compelled to issue the stop memos. The property belongs to respondent Nos. 10 and 11 and there is nothing to show that there is any source of water in this area, which is used for supplying drinking water in the Panchayat area. There is no plea that there is a public well also. Therefore, how the removal of earth will affect the drinking water facility or depletion in drinking water is not discernible either from the stop memos issued by the Panchayat or from the affidavit. If the removal of earth will reflect in depletion of drinking water file:////altifileserver/formatnew/For%20convert/21.06.2012/1709-2012/KE120538.txt (8 of 12)6/21/2012 9:15:24 AM in that area, it ought to have been referred to any expert agency and that was also not done. Therefore, merely on the assertion by the Panchayat W.P.(C). No. 11596/2012 -:3:that the removal of earth will cause depletion of drinking water, the stop memos ought not have been issued. Even though the learned counsel for the Panchayat submitted that there was no valid permit, I cannot accept the arguments since Ext.P1 has not been varied by the Revenue Divisional Officer till this day.

Learned Government Pleader submitted that the Revenue Divisional Officer has decided to convene a meeting on 11/06/2012.

Learned Senior Counsel for the Petitioner submitted that the earth sought to be removed, is only from the area shown in the location sketch. Regarding the actual area involved in the matter, there is no clear evidence before this Court and, therefore, it is upto the Revenue Divisional Officer to conduct a personal inspection of the area after informing the concerned authorities of the Panchayat also to find out whether there is any actual basis for the objections of the Panchayat. It is open to him to provide further conditions, if any, in the matter also. Therefore, in that view of the matter, the writ petition is allowed. Exts.P4 and P5 are quashed. Appropriate orders will be passed by the Revenue Divisional Officer within a period of two weeks from the date of receipt of a copy of this Judgment. No costs.