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.
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W.P.(C)No.595 of 2009 U
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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