Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 29TH DAY OF JULY 2021/7TH SRAVANA, 1943 WP(C) NO. 3507 OF 2021 PETITIONER: SIJO DEVASSY, MUNDANKURIYAN HOUSE, THIROOR, MULAMKUNNTHUKAVU POST, THRISSUR 680 581. BY ADVS. P.K.VIJAYAMOHANAN SRI.M.B.SOORI SMT. AISWARYA V.S. RESPONDENTS:
1 THE SENIOR GEOLOGIST, MINING & GEOLOGY DEPARTMENT, DISTRICT OFFICE, CHEMBUKKAVU, THRISSUR 680 020. 2 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, THRISSUR 680 003. 3 THE STATION HOUSE OFFICER, VIYYUR POLICE STATION, VIYYUR P.O., THRISSUR 680 010. 4 SALOMI JOHNY, MEKKATTUKULAM VEEDU, MAITHRI NAGAR, KOLAZHY, THRISSUR 680 010. BY ADVS. R1-R3 BY GOVT.PLEADER SRI.MANU RAJ R4 SMT.S.KARTHIKA R4 SMT.ANJANA M VADHYAR R4 SMT.K.MEERA R4 SMT.PREETHY KARUNAKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2 :
N. NAGARESH, J.
````````````````````````````````````````````````````````````` W.P.(C) No.3507 of 2021 ````````````````````````````````````````````````````````````` Dated this the 29th day of July, 2021
JUDGMENT
The petitioner, who is a resident of Thiroor,
Mulamkunnathukavu, has filed this writ petition with the prayers to set aside Ext.P3 order of the Senior Geologist and to direct respondents 1 and 3 not to interfere with the blasting of rocks for deepening the well in the property of the petitioner in Re-Survey No.318/8 of Kolazhy Village, Thrissur Taluk, by using permitted explosives by the licensed blaster having Ext.P6 licence.
2. The petitioner states that in his property, there is an
open well of 8.5 metres depth. However, the source of water is very limited. All his neighbours, including the 4 th respondent did deepen their well by blasting the rock at the bottom of their :3 : wells. When the petitioner also sought to deepen his well, the 4th respondent raised objections. The 4 th respondent filed complaints before various authorities. The 4 th respondent alleged that blasting will cause damage to her building situated nearby.
3. On the basis of the complaint made by the 4 th respondent, the 2nd respondent-RDO issued a Stop Memo
through the Village Officer. The 2nd respondent heard the petitioner and the 4th respondent. The petitioner submitted an indemnity bond before the 4th respondent undertaking to make good any loss caused to the property of the 4 th respondent. On that basis, the 2nd respondent passed Ext.P1 order on 19.11.2020 directing to cancel the Stop Memo issued against the petitioner. The Village Officer thereupon lifted the Stop Memo, as per Ext.P2.
4. The 4th respondent thereupon approached the 1 st respondent-Senior Geologist. The Senior Geologist
conducted a site inspection and issued Ext.P3 order
prohibiting the blasting of the rock by stocking and using :4 :
explosives illegally. The petitioner submitted Ext.P4 request to the 1st respondent seeking to withdraw Ext.P3 order, permitting blasting by Blasters having license to possess and use explosives. The petitioner has entered into an agreement with a licensed Blaster. The petitioner therefore seeks to set aside Ext.P3 and to direct the respondents not to interfere with the blasting of rocks for deepening his well using permitted explosives by a licensed Blaster.
5. The 4th respondent entered appearance and filed a
counter affidavit opposing the writ petition. The 4 th respondent stated that her house is very close to the well and it is already damaged due to the unauthorised blasting of rocks by the petitioner. The 4th respondent and her husband are elderly
couple and the husband is a cancer patient. The 4 th respondent has been residing in the property since 1994. The petitioner purchased the adjacent plot only in the year 2015. When the petitioner started blasting for deepening his well, cracks developed on the house of the 4 th respondent. The compound wall collapsed. The property of the petitioner was
:5 : damaged. It was in such circumstances that the petitioner made complaints to the 1st respondent. Ext. P3 notice of the 1st respondent is therefore perfectly justified, urges the 4 th respondent.
6. Heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 3 and the learned counsel for the 4th respondent.
7. The petitioner seeks to deepen the well in his
property for drawing drinking water. Due to the nature of the land, the petitioner has to remove rock from the bottom of the well, which is sought to be done using explosives. When the petitioner started blasting, the 4th respondent made complaints and a Stop Memo was issued by the Revenue authorities. Later, the 2nd respondent-RDO considered the issue and ordered as per Ext.P1, to cancel the Stop Memo, permitting the petitioner to remove rock. The permission was granted based on an undertaking given by the petitioner that he will make good any damage that may happen to the building of the 4th respondent, due to his act.
:6 :
8. The 4th respondent did not challenge Ext.P2 order
of the RDO. Instead, the 4 th respondent approached the 1 st respondent-Senior Geologist complaining about blasting operations. The complaint was to the effect that the petitioner is blasting explosives for removing rock, which is damaging the building of the 4th respondent. The petitioner has, however, produced Exts.P6 and P9 licences issued by the authorities under the Explosives Act to show that the blasting is done with requisite permission.
9. It is not discernible from Ext.P3 notice of the 1 st respondent as to under what authority the 1 st respondent has
issued Ext.P3. The 4 th respondent's case is that Ext.P9 licence will permit the Blaster to use explosives only above the ground level and not inside the well, which would be underground blasting. Even if it is true, only the authorities under the Explosives Act are competent to intervene in the matter. The petitioner, on the other hand, would point out that even the 4th respondent had dug her well using explosives to draw drinking water.
:7 : In view of the facts as stated above, Ext.P3 notice of the 1st respondent cannot be sustained. Ext.P3 is therefore set aside. The writ petition is disposed of accordingly. Sd/- N. NAGARESH, JUDGE aks/27.07.2021 :8 : APPENDIX OF WP(C) 3507/2021 PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ORDER NO. EI 12332/2020 DATED 19.11.2020 ISSUED BY THE 2ND RESPONDENT TO THE VILLAGE OFFICER, WITH COPIES MARKED TO THE PETITIONER AS WELL AS THE 4TH RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE ORDER V. O NO. 210/2020 DATED 20.11.2020 ISSUED BY THE VILLAGE OFFICER TO THE PETITIONER EXHIBIT P3 THETRUE COPY OF THE ORDER NO. 3086/C2/TDO/2020 DATED 19.11.2020 OF THE 1ST RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 05.01.2021 OF THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE AGREEMENT DATED 01.02.2021 BETWEEN THE PETITIONER AND K.M. RAMACHANDRAN, THE LICENSED BLASTER. EXHIBIT P6 THE TRUE COPY OF THE LICENCE NO.
E/SC/KL/22/1523 (E69697) TO POSSESS FOR US OF EXPLOSIVES, ISSUED TO K.M. RAMACHANDRAN VALID UP TO 31.03.2022. EXHIBIT P7 THE TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING OF THE 4TH RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING OF THE 4TH RESPONDENT EXHIBIT P9 THE TRUE COPY OF THE SHORT FIRER'S CERTIFICATE DATED 15.01.2015, REVALIDATED UPTO 15.01.2025 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM TO MR.LAXMANAN V.R., VADAKKETHALA HOUSE, URAKAM P.O., THRISSUR. ncd