Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 1ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 WP(C) NO. 8065 OF 2024 PETITIONER: BIJO THOMAS AGED 44 YEARS SON OF C.T.THOMAS, CHEMPARATHICKAL HOUSE, KUNINJI P.O., PORAPPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ SUMITHA SIV MUHAMMED RASHID RESPONDENTS:
1 THE DISTRICT DISASTER MANAGEMENT AUTHORITY IDUKKI DISTRICT, COLLECTORATE, IDUKKI- REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR, IDUKKI., PIN - 685603 2 THE DISTRICT COLLECTOR COLLECTORATE, IDUKKI DISTRICT, PIN - 685603 3 THE DISTRICT GEOLOGIST MINI CIVIL STATION, THODUPUZHA, IDUKKI DISTRICT, PIN - 685584 4 THAHASILDAR THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584 5 THE VILLAGE OFFICER PURAPUZHA VILLAGE, IDUKKI DISTRICT, PIN - 685583 6 THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT(BUILDINGS) IDUKKI DISTRICT, PIN - 685603 7 DISTRICT SOIL CONSERVATION OFFICER IDUKKI DISTRICT, PIN - 685589 8 DISTRICT SOIL CONSERVATOR PEERUMEDU, IDUKKI DISTRICT, PIN - 685531
OTHER PRESENT: SR.GP - DEEPA NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No.8065 of 2024 :2:
VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- -- W.P.(C) No.8065 of 2024 -- -- -- -- -- -- -- -- -- -- -- -- -- Dated this the 1st day of March, 2024
JUDGMENT
The petitioner has approached this Court challenging Ext.P17 communication issued by the 3rd respondent.
2. The petitioner claims to be the owner in possession of the
property having an extent of 1 hectare 79 ares 46 Sq.M. in Sy.No.222/1 and 7 ares in Sy.No.222/3 of Purapuzha village, Thodupuzha Taluk, as is evident from Ext.P1 tax receipt. A residential building is also situated in the said property and petitioner and his family is residing in the said house. It is contended that behind the residential building of the petitioner, very close to the residential building, ordinary earth and rubbles about 30 meters height is situated in a dangerous condition. The petitioner apprehends that there is every chance for a land sliding on the residential property. The petitioner submits that unless the residential house is protected from the eminent danger of land sliding, the entire residential building of the petitioner will be damaged and it will cause danger to the life of petitioner and his family members. Thereupon the petitioner submitted applications W.P.(C). No.8065 of 2024 :3: before concerned authorities requesting to permit him to remove the ordinary earth situated in dangerous condition near his residential house. On receipt of the application of petitioner, as directed by the 1st respondent, respondents 3 and 5 conducted inspection and submitted reports before the 1 st respondent, informing that there is every chance for land sliding in the property of petitioner. On receipt of reports of respondents 3 and 5, the 1 st respondent issued Ext.P4 communication to the 3 rd respondent and thereby directed him to report how much earth has to be removed from the site and to report whether it is feasible to deposit the removed earth in the property of petitioner itself. On receipt of said communication, the 3rd respondent issued Ext.P5 communication directing the petitioner to produce a plan and section prepared by an authorized civil engineer. Thereupon the petitioner has submitted Ext.P6 plan and section before the 3 rd respondent. After receipt of plan and section from the petitioner, the 3 rd respondent submitted Ext.P7 report before 2nd respondent wherein the 3rd respondent raised an apprehension that the attempting of the petitioner is to remove soil under the guise of removing the soil to avert danger to his residential house and thereupon Ext.P8 communication was issued by the 1st respondent by which it was W.P.(C). No.8065 of 2024 :4: intimated that permission cannot be granted on the basis of the plan and section submitted by the petitioner. Thereafter by Ext.P9, a new application was submitted by the petitioner along with a fresh plan and section before the Grievance Redressal Cell of the Honourable Chief Minister of Kerala. Thereafter the 3 rd respondent issued Ext.P11 communication to the 2 nd respondent informing that action will be taken in the subject matter only after getting a report from the 7th respondent - Soil Conservation Department and 6 th respondent - Public Works Department(building) regarding the subject matter. The petitioner again submitted Ext.P12 application, in view of the eminent danger. Thereafter respondents 6 and 8 along with respondents 3 to 5 conducted a joint inspection and respondents 6 and 7 submitted Ext.P13 report in this regard. It is contended that after conducting several inspections and obtaining report from the concerned authorities, Ext.P14 order was issued permitting the petitioner to remove soil from the property to the extent that is required for construction of a retaining wall, so as to protect the residential house of the petitioner and the Tahsildar was directed to make sure that only the extent of soil required for the construction of a retaining wall is removed from the property. Even after the issuance of Ext.P14, transit permit and passes were W.P.(C). No.8065 of 2024 :5: not issued to the petitioner. Ultimately Ext.P17 order has been issued by the 3rd respondent, wherein the petitioner was intimated that permission cannot be granted as the quantity of soil to be transported outside the property has not been clearly shown in the report by the Public Works Department and the District Soil Conservation Department.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader. By Ext.P14, the District Collector, as the Chairman of the District Disaster Management Authority, has permitted the petitioner to remove the soil to the extent it is required for the construction of a protection wall in the property and with a consequential direction to the Tahsildar to see that the soil to the extent it is required for the construction of the retaining wall alone is removed from the property. Now the request made by the petitioner for issuance of transit pass has been declined by Ext.P17 solely for the reason that the Public Works Department and the Soil Conservation Department have not submitted a report regarding the exact quantity of soil to be removed for the purpose of construction of a protection wall. The petitioner submits that after filing of this writ petition, a communication dated 20.02.2024 has W.P.(C). No.8065 of 2024 :6: been issued by the 3rd respondent Geologist to respondents 6 and 7 calling for a report regarding the exact extent of soil to be removed from the property of the petitioner. In view of the above , the writ petition is disposed of as follows: Respondents 6 and 7 shall issue necessary report and plan as requested by the 3rd respondent Geologist in his communication No.DOIDU-DMG/604/2023-M dated 20.02.2024 within a period of two weeks from the date of receipt of a copy of this judgment. On receipt of the said report, the 3rd respondent Geologist shall take a decision on Ext.P15 application submitted by the petitioner, in accordance with law, within a period of two weeks thereafter. It is made clear that, if necessary permission is granted, the petitioner shall undertake activities only as permitted by Ext.P14 and respondents 3 and 4 shall ensure the due compliance of the conditions in Ext.P14. Sd/- VIJU ABRAHAM JUDGE sm/ W.P.(C). No.8065 of 2024 :7: APPENDIX OF WP(C) 8065/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED 4.5.2023 ISSUED BY THE FIFTH RESPONDENT Exhibit P2 TRUE PHOTOGRAPHS OF THE PROPERTY OF PETITIONER ALONG WITH RESIDENTIAL BUILDING Exhibit P3 TRUE COPY OF THE REPORT SUBMITTED BY THE THIRD RESPONDENT BEFORE THE FOURTH RESPONDENT DATED 14.6.2021 Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 31.8.2021 ISSUED BY THE FIRST RESPONDENT TO THE THIRD RESPONDENT Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER DATED 23.9.2021 Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE
PLAN AND SECTION OF PROPOSED EARTH CUTTING FROM THE PROPERTY OF PETITIONER TO AVOID DISASTER SUBMITTED BEFORE THE THIRD RESPONDENT BY THE PETITIONER Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 18.5.2022 SUBMITTED BY THE THIRD RESPONDENT BEFORE THE SECOND RESPONDENT Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED 4.6.2022 ISSUED BY THE FIRST RESPONDENT Exhibit P9 TRUE COPY OF THE RELEVANT PAGES OF APPLICATION DATED 16.9.2022 SUBMITTED BY THE PETITIONER BEFORE THE GRIEVANCE REDRESSAL CELL OF THE HONOURABLE CHIEF MINISTER OF KERALA
Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED 27.10.2022 ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 17.12.2022 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT Exhibit P12 TRUE COPY OF THE APPLICATION DATED 28.11.2022 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT W.P.(C). No.8065 of 2024 :8: Exhibit P13 TRUE COPY OF THE REPORT DATED 10.4.2023 SUBMITTED BY THE SIXTH RESPONDENT BEFORE THE SECOND RESPONDENT WITHOUT COVERING LETTER Exhibit P14 TRUE COPY OF THE ORDER DATED 15.12.2023 NO.DCIDK/3432/2023-DM3 ISSUED BY THE FIRST RESPONDENT Exhibit P15 TRUE COPY OF THE APPLICATION DATED 16.1.2024 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT WITHOUT PLAN
AND ORDER
Exhibit P16 TRUE COPY OF THE APPLICATION DATED 16.1.2024 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT ALONG WITH REPLY OF 6TH RESPONDENT ON THE BOTTOM OF THE APPLICATION Exhibit P17 TRUE COPY OF THE ORDER DATED 17.1.2024 ISSUED BY THE THIRD RESPONDENT