Adarsh S. Babu v. State of Kerala and Nellanad Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** ## **WP(C).No. 25043 of 2018** ## **PETITIONER/S:** **ADARSH.S. BABU, SAURAV, PUTHENNADA NAGAR, THEKKEVILA P.O., KOLLAM.** **BY ADVS. SRI.M.K.CHANDRA MOHANDAS SRI.SATHYANANDAN PILLAI SRI.B.SASIKUMAR SRI.K.M.VIJAYAKUMARAN SRI.PRATHEEK VISWANATHAN** ## **RESPONDENT/S:** **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 NELLANAD GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY, VENJARAMOOD P.O., THIRUVANANTHAPURAM - 695 607. *ADDL. DIRECTOR OF MINING AND GEOLOGY, R3 DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM-695004.** **(*ADDL.R3 IS IMPLEADED AS PER ORDER DATED 05/10/2018 IN IA.02/2018)** **R1 & R3 BY SRI. MANURAJ K.J., GOVERNMENT PLEADER R2 BY SRI.M.H.HANIL KUMAR, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** W.P.(C) No.25043 of 2018 2 ## **JUDGMENT** This writ petition is filed seeking to quash Ext.P10 communication issued by the Secretary of the Nellanad Grama Panchayat, Thiruvananthapuram District, i.e., the 2[nd] respondent, dated 17.07.2018, informing the petitioner that a demarcation certificate is to be submitted by the petitioner, and also to quash Ext.P11 decision taken by the Grama Panchayat to decline D & O licence sought for by the petitioner, since the petitioner has not secured installation permit under Sec.233 of the Kerala Panchayat Raj Act, 1994. Brief material facts for the disposal of the writ petition are as follows: 2. In order to establish a quarry in Re-survey Nos.114/4, 116/14, 114/16, 113/1/1, 113/1/3, 113/1/1/3/1, 113/2/1, 113/2/2, 113/15 and 113/13, Block No.26 of Nellanad Village, Thiruvananthapuram, petitioner applied for statutory licences, No Objection Certificate, Environmental Clearance, Consent to Operate etc. and obtained permission of all statutory authorities, except that of the Panchayat. The Panchayat objected issuance of D&O licence to the petitioner on the basis of apprehension expressed by the local people and Ward member on unreasonable grounds. W.P.(C) No.25043 of 2018 3 3. It is also pointed out that, in accordance with the proposition of law laid down by this Court in ' _**Nagaroor Grama Panchayat v. Salim**_ ' [2016 (3) KLT 82], a D&O licence application has to be processed independently without depending upon anything which is not statutorily insisted or permitted to be relied on in such proceedings. That apart, it is stated that, the provisions of Sections 232, 233 and 234 of the Act as well as the contents of the D & O Rules shows that the provisions of the Act and the D & O Rules stand by themselves, and those provisions are not dependent on any decision to be rendered on the basis of any other statute. Therefore, the action of the Panchayat in rejecting the application submitted by the petitioner cannot be sustained under law. 4. During the pendency of this writ petition, petitioner has produced Ext.P12 application dated 09.08.2018 submitted by the petitioner purportedly seeking to issue the establishment permit to the petitioner, in accordance with Sec.233 of Act, 1994. Therefore, according to the petitioner, even if an establishment permit is required, the authorities were duty bound to consider the said application within a period of 30 days, failing which, petitioner is entitled W.P.(C) No.25043 of 2018 4 to get deemed establishment permit in accordance with the provisions of law. It is also evident that Ext.P12 was submitted by the petitioner only on 14.08.2018, evident from Ext.P13 acknowledgement receipt issued by the Secretary of the Panchayat in question. 5. A statement is filed by the 2[nd] respondent justifying the stand adopted in Ext.P11, and other communications issued by it, that, without any establishment permit, an application for D&O licence cannot be considered. 6. I have heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for the Panchayat, and perused the pleadings and the documents on record. 7. The discussion made above would make it clear that, the predominant contention advanced by learned counsel for the petitioner is that, in order to secure a D & O licence as per Sec.232 of Act, 1994, and the Rules thereto, no establishment permit is required under Sec.233 of Act, 1994, as amended by Act 14 of 2018. Section 233 deals with permission for the construction of factories and the installation of machinery. Sub-section (1) therein stipulates that: “no person shall, without the permission of the Village Panchayat and except in W.P.(C) No.25043 of 2018 5 accordance with the conditions specified in such permission,- (a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power; or (b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the provisions of this Act or the rules made thereunder”. 8. The procedure under which the application is to be submitted is prescribed under sub-section (2) onwards. The case of the petitioner is that, petitioner is using only certain portable machineries for the purpose of quarrying, like Tractor Mounted Compressor Drilling Machine and Excavator Loader-cum-Rock Breaker, and since there is no construction carried out by the petitioner, to secure any establishment permit, no establishment permit is required at all, under the provisions of Sec.233 of Act, 1994. 9. However, on a reading of the provisions of Sec.233 of Act, 1994, quoted above, it is clear that, Sec.233 takes care of not only any factory/workshop, but it takes care of a workplace also. The Chambers Concise Dictionary defines 'factory' to mean; 'a place where W.P.(C) No.25043 of 2018 6 goods are manufactured' and the term 'workshop' is defined to mean; 'a room or shop where work is done; a group of people working on a creative or experimental project'. Therefore, the contention advanced by learned counsel for the petitioner that since there are no constructions carried out by the petitioner, establishment permit is not required, cannot be sustained under law. In that regard, Sec.233B of Act, 1994, dealing with Exemptions, is relevant to the context, which read thus: _“233B. Exemptions.--Notwithstanding anything contained in Section 233, no permission of Village Panchayat shall be required for the installation of establishment of the following machinery or manufacturing plants or industrial units, as the case may be, namely:--_ _(a) Electrical and non-electrical appliances and machinery intended to be used for domestic purposes or personal comfort;_ _(b) Electrical and non-electrical installation installed for agricultural purposes;_ _(c) Normally unattended static transformer stations, co-denser stations and rectifier stations;_ _(d) portable drilling machines and portable engines used for constructions purpose such as concrete mixers;_ _(e) Machinery installed at a workshop or workplace attached to an educational institution or for scientific purposes;_ _(f) installations of the Kerala State Electricity Board for generation or transmission of electricity;_ W.P.(C) No.25043 of 2018 7 _(g) installations of the Kerala Water Authority for supply of drinking water and sewerage;_ _(h) Industrial units with machinery having capacity of less than 5 H.P., which is certified by the Industries Department of the Government or the Kerala State Pollution Control Board to be nonpolluting industry;_ _(i) Industrial units, industrial estate, industrial development area, industrial development plot; industrial growth centre, export processing zone, or industrial park declared as such by the Government controlled agency;_ _Provided that the owner of any industrial unit specified under item (h) and (I) shall register the unit with the Village Panchayat concerned on remission of the fee prescribed.”_ 10. Therefore, on a reading of the said provisions, it is categoric and clear, except the exempted categories prescribed thereunder, all other establishments using any machinery other than the ones exempted under Sec.233B of Act, 1994, are liable to secure establishment permit from the Panchayat in accordance with Sec.233 of Act, 1994. It is true, if a proper application is submitted and the same is not processed within 30 days, the applicant is entitled to get a deemed establishment permit in accordance with sub-section (6) of Sec.233 of Act, 1994. 11. Now the case projected by the petitioner in that regard, is on account of Ext.P12, submitted by the petitioner allegedly for the purpose of establishment permit. In my considered view, Ext.P12 can never be W.P.(C) No.25043 of 2018 8 termed as an application for establishment permit at all, since it is quite clear and evident that none of the documents to be accompanied along with an establishment permit application is submitted by the petitioner before the Panchayat, and that too, in white paper without enumerating any details. Moreover, in Ext.P12, petitioner is actually making a request to the Secretary of the Panchayat that, if an establishment permit is required under law, petitioner may be issued with one. Be it noted, such a request made by the petitioner cannot by itself be converted as an application submitted by the petitioner seeking establishment permit in accordance with the requirements contained under Sec.233 of Act, 1994 read along with the rules in vogue for the purpose. 12. So also, in my considered view, the proposition of law laid down by this Court in ' _**Nagaroor Grama Panchayat**_ ' ( _supra_ ), cited by the petitioner, is in respect of D & O licence application submitted by an applicant without production of environmental clearance, and in that context, this Court has held that, Sec.232 of Act, 1994, is independent of the provisions of any other statute and directed the authority to take an independent decision. The proposition so laid down by this Court is clearly distinguishable since such an issue is not W.P.(C) No.25043 of 2018 9 arising in this case. So much so, without there being an established work place in contemplation of law, there can be a trade, for which a licence is required and issued. 13. Taking into account all these aspects, and the legal circumstances pointed out, I am of the considered opinion that, petitioner has not made out any case of arbitrariness, illegality or unfairness, justifying interference of this Court under Article 226 of the Constitution of India and grant any relief as is sought for. However, I make it clear that, if the petitioner makes a proper application in accordance with the provisions of Sec.233 of Act, 1994, and the rules thereto, it shall be evaluated and considered by the Secretary and the Panchayat in accordance with law. The writ petition is disposed of, with the above observations. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.25043 of 2018 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1:A COPY OF THE EXPLOSIVE LICENSE EXHIBIT P2:THE AGREEMENT SIGNED BY THE LICENSEE. EXHIBIT P3:A COPY OF THE DEMARCATION CERTIFICATE DATED 09-10-2017 EXHIBIT P4:A COPY OF THE REPORT DATED 16-11-2017 EXHIBIT P5:A COPY OF THE ENVIRONMENTAL CLEARANCE DATED 19-05-2018. EXHIBIT P6:TRUE COPY OF FILE NO. P.C. B/T V M- DO/ICO/NDD/7806778/2018 DATED 11.6.2018 EXHIBIT P7:COPY OF LICENSE NO. E-SE/KL/22/172(T 112073) DATED 18-06-2018. EXHIBIT P8:COPY OF THE APPLICATION FOR LICENSE DATED 16-06-2018. EXHIBIT P8(A) COPY OF ACKNOWLEDGMENT DATED 19-06-2018 EXHIBIT P9: COPY OF THE LETTER DATED 15-02-2018. EXHIBIT P9(A) COPY OF RESOLUTION DATED 14-02-2018 OF THE RESPONDENT PANCHAYAT EXHIBIT P10:COPY OF THE LETTER NO. A4 4665/18 DATED 17-07-2018 EXHIBIT P11 COPY OF THE LETTER NO 8949/M3/2017 DATED 9.10.2017 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY, DEPARTMENT (I.A NO.4/2018 IN WPC NO.25043/2018,EXHIBIT P11-TRUE COPY OF THE DECISION OF THE 2ND RESPONDENT DATED 29.10.2018) EXHIBIT P12 COPY OF THE CERTIFICATE DATED 21.3.2018( IA NO.5/2018 IN WPC NO.25043/2018 EXHIBIT P12-A COPY OF THE APPLICATION DATED 9.8.2018 SUBMITTED BY THE PETITIONER) EXHIBIT P13 A COPY OF THE RECEIPT NO 6523 DATED 14.8.2018** W.P.(C) No.25043 of 2018 11 ## **RESPONDENT'S/S EXHIBITS:** ## **EXHIBIT R2(A)** A TRUE COPY OF THE DECISION OF THE NELLANAD GRAMA PANCHAYAT DATED 29.10.2018 //TRUE COPY// P.S. TO JUDGE St/-