High Court Kerala High Court

K.E. Sahadevan vs Aravindakshan on 28 January, 2009

Kerala High Court
K.E. Sahadevan vs Aravindakshan on 28 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 595 of 2009(U)


1. K.E. SAHADEVAN, S/O. KANARAN,
                      ...  Petitioner
2. M.C. JITHESH KUMAR, S/O. BHASKARAN,
3. K.P. BABU, S/O. BAPPUKUTTY,

                        Vs



1. ARAVINDAKSHAN, S/O. RAMAN KUTTY,
                       ...       Respondent

2. O.M. INDIRA, W/O. MADHAVAN NAIR,

                For Petitioner  :SRI.V.V.SURENDRAN

                For Respondent  :SRI.MILLU DANDAPANI

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :28/01/2009

 O R D E R
               K.P. Balachandran, J.
            --------------------------
              W.P.(C)No.595 of 2009 U
            --------------------------

                     JUDGMENT

Heard arguments of counsel on both sides.

2. Petitioners are the plaintiffs in a suit for

temporary injunction restraining the respondents/

defendants from conducting blasting and excavation

of granite stones from the quarry in the scheduled

property. It is contended that they are doing so

illegally and unscientifically and also destroying

the public pathway in the plaint schedule property.

The trial court granted an interim injunction after

hearing the parties, vide Exhibit P1 order. Even

in the said order, it was made clear that the said

injunction order will not prevent the respondents/

defendants from excavating the granite stones after

demarcating 2.12 acres of property covered by

Exhibit B7 permit.

3. Respondents/defendants filed I.A.No.649/08

seeking permission to excavate granite stones from

2.12 acres of property covered by Exhibit B7

WPC 595/09 2

permit. I do not understand the purpose of moving

such a petition, as that had been allowed by

Exhibit P1 order itself. Vide Exhibit P2 order

passed on I.A.No.649/08, the court below observed

that Exhibit P1 order on I.A.No.513/08 also permits

the petitioners therein (defendants in the suit),

who are the respondents herein, to excavate granite

stones from the said property. It was clarified

further that they are permitted to blast and

excavate the rocks in accordance with Exhibit B7

permit. Petitioners have no case that if the

blasting is done in accordance with Exhibit B7,

there is any grievance for them. In Exhibit P2

order itself, it is further stated that the

petitioners/defendants shall do so after

demarcating the area as per law and further that if

the respondents are in any way aggrieved as to the

proper demarcation and marking, they are at liberty

to take out a commission and approach that court.

WPC 595/09 3

4. It is the grievance of the petitioners that

respondents/defendants have not done demarcation as

directed in Exhibit P2 order, whereas, according to

the counsel for the respondents, they have

demarcated the area with the assistance of the

Village Officer and it is only thereafter that they

are doing blasting in compliance with Exhibits P1

and P2 orders. Exhibit P2 order is dated 9.4.2008.

On 18.9.2008, petitioners filed Exhibit P3

application for getting down a report and plan

through the very same Commissioner, who submitted a

report and plan earlier, asking for several matters

to be ascertained. I do not see any averment in

the affidavit accompanying Exhibit P3 that the

demarcation of 2.12 acres of property covered by

Exhibit B7 had not been done or that the

respondents are doing blasting in the quarry not

within the area covered by Exhibit B7. The only

question that deserved consideration was as to

whether quarrying was being done within 2.12 acres

WPC 595/09 4

of property covered by Exhibit B7 permit. I do not

see such a request made in Exhibit P3 application.

On the same day on which Exhibit P3 application was

filed, petitioners filed Exhibit P4 application as

well for a prohibitory injunction restraining the

respondents from doing quarrying, blasting the

rocks and again on the same day, Exhibit P6

application also was filed for prosecuting the

respondents. As per Exhibit P7 order passed on I.A.

No.1282/08, the injunction application filed by the

petitioners, was dismissed. The C.M.Appeal filed

assailing the said order was dismissed vide Exhibit

P9 judgment by the first appellate court. It is

assailing the said judgment, confirming the

dismissal of the injunction petition vide Exhibit

P7 order, that this writ petition has been filed.

5. I do not find any reason to interfere with

the concurrent orders so passed by the courts below

for the reason that there is no specific case for

the petitioners that, as directed in Exhibit P2

WPC 595/09 5

order, the respondents herein have not properly got

demarcated 2.12 acres of property as per Exhibit B7

permit and have also not applied for proper

demarcation and marking of the said 2.12 acres of

property covered by Exhibit B7 permit, though they

have asked for several other matters to be got

ascertained as per Exhibit P3 application, which is

seen to be with intention to create and develop new

contentions, which were obviously not there while

the court passed Exhibits P1 and P2 orders. Prima

facie, I am of the view that it is only the eyesore

of the petitioners to see that the respondents do

not do any work in the quarry that has prompted

them to take up the matters to several courts

raising one contention or the other, although

inconsistent. If at all their grievance is that the

property covered by Exhibit B7 permit is not the

property within which quarrying is done, the

petitioners may file an application to remit back

the commission report to the same Commissioner to

WPC 595/09 6

verify that aspect, viz., as to whether quarrying

is being done in any portion of the quarry, which

is stated to be extending to about 10-15 acres

other than in the portion of 2.12 acres covered by

Exhibit B7 permit or the permit thereafter renewed,

which is stated to be the one now in force and

thereafter to seek for appropriate directions.

This writ petition is disposed of with the

above observations.

28th January, 2009 (K.P.Balachandran, Judge)
tkv