Varghese, Paulose and Reji vs George and Jolly

V. Chitambaresh, J.

APPENDIX

PETITIONER''S EXHIBITS:

EXHIBIT P1.

Copy of the agreement entered into between one n.athomas and the 3rd petitioner dated 19.11.2010

EXHIBIT P2.

Copy of the plaint in osno.146/2011 of munsiffs court, perumbavoor, dated 9.6.2011.

EXHIBIT P2 (a).

Copy ofthe petition for temporary injunction ia No. 269/2011 (which was formerly numbered as iano.1050/2011) dated 9.6.2011 .

EXHIBIT P3.

Copy of the written statement dated 27.10.2011 in osno.34/2011 filed by the petitioners before the munsiffs court, kolenchery

EXHIBIT P3(a)

Copy of the objection to exhibit p2, ia 269/2011 dated15.6.2011 (wrongly shown as 15.6.2010).

EXHIBIT P4.

Copy of the license dated 4.6.2012 issued by the vengoor panchayat to the petitioners.

EXHIBIT P5.

Copy of the consent dated 29.10.2010 issued by kerala state pollution control board bearing No. pcb/ ekm/ico-qr 96/r1/2010.

EXHIBIT P5(a).

Copy of the receipt dated 21.10.2011 for the payment ofpermit fee by the 3rd petitioner.

EXHIBIT P6.

Copy of the permit granted by the department of mining and geology, district office, ernakulam dated 26.10.2010.

EXHIBIT P7

Copy of the licence issued by the joint chiefcontroller of explosives dated 2.5.2005.

EXHIBIT P8.

Copy of the certificate of competency issued to sri. n. a. thomas dated 23.3.1998.

EXHIBIT P9.

Copy of the permit issued to the 3rd petitioner dated30.4.2009.

EXHIBIT P10.

Copy of the approval of district medical officer issued on 21.3.2011.

EXHIBIT P11.

Copy of the certificate issued from the office of district medical officer dated 31.5.2011.

EXHIBIT P12.

Copy of the commission report dated 20.6.2011 in os No. 164/2011 before the sub court, perumbavoor.

EXHIBIT P12(a).

Copy of the sketch attached along with exhibit p12report

EXHIBIT P13.

Copy of the order in iano.269/2011 in osno.34/2011 dated 11.8.2011 of munsiffs court, kolenchery.

EXHIBIT P14.

Copy of the cmano.14 of 2011 filed by the respondentsbefore the sub court, perumbavoor .

EXHIBIT P15

Copy of the order in cmano.14 of 2011 of the sub court,perumbavoor dated 26.6.2012.

EXHIBIT P16.

Copy of the letter dated 23.9.2010 issued by the district collector, ernakulam.

RESPONDENTS'' EXHIBITS :-

NIL

The lower appellate court has in reversal of the order of the trial court allowed an application for injunction against quarrying operations in the Plaint B schedule property. The lower appellate court has relied on rule 8 (1) (a) of the Kerala Mining and Mineral Rules, 1967 (the Rules for short) for this purpose. Rule 8 (1) (a) of the Rules stipulates that the quarrying permit shall be subject to a condition that the depth of the pit shall not exceed 20 feet. Rule 8 (1) (a) of the Rules was deleted by SRO 270/2008 which has however been stayed by G.O(P) No. 590/08/10 dated 17.06.2008. Clauses 7 and 10 of Ext.P6 quarrying permit issued to the petitioners inter alia state that the condition prescribed in the Rules would be applicable to the permit holder and shall be binding on him. this Court in Ambika Pappu and others vs. District Collector, Ernakulam (2010 (3)KHC 253) has also directed all the geologist of the state to issue permit containing a condition restricting the depth of the pit for quarrying below the surface to 20 feet.

Ext.P5 consent to operate granted by the Kerala State Pollution Control Board also makes it clear that the depth of excavation below the highest point should not exceed 6 meters (see Clause 39). It is therefore beyond doubt that the petitioners have an unfettered right to carry on the quarrying operations up to a depth of 20 feet below the surface in the area covered by Ext.P6 quarrying permit. The trial court found in I.A No. 269/2011 that the plaintiffs/ respondents are not put to any hardship by the quarrying operations being carried out. An Advocate Commissioner deputed in the suit also did not find any damages being caused to the property of the respondents by the quarrying operations. But both the courts below have not considered as to whether the petitioners have excavated up to 20 feet over the entire area covered by Ext.P6 quarrying permit. The report of the Advocate Commissioner is also not helpful to arrive at a safe conclusion.

I have therefore no option but to set aside the impugned order of the courts below on the application for prohibitory injunction. The trial court shall rehear I.A No. 269/2011 after getting a revised report from the Advocate Commissioner as to the availability of area covered by quarrying permit to excavate up to a depth of 20 feet. The court of the Munsiff of Kolenchery shall dispose of the application within a period of two weeks from the date of receipt of a copy of the judgment. The parities have to maintain status quo till such time. The original petition is disposed of as above.