Ajikumar N v. Malayalapuzha Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944** ## **WP(C) NO.1521 OF 2023** ## **- PETITIONER :** AJIKUMAR N, AGED 57 YEARS S/O. SUKUMARAN, NIRANILATHU HOUSE, MALAYALAPUZHA P.O, PATHANAMTHITTA, PIN – 689 664 BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI ## **- RESPONDENTS :** 1 MALAYALAPUZHA GRAMA PANCHAYAT MALAYALAPUZHA THAZHAM P.O., PATHANAMTHITTA – 689 666 REPRESENTED BY ITS SECRETARY. 2 SECRETARY MALAYALAPUZHA GRAMA PANCHAYAT, MALAYALAPUZHA THAZHAM P.O., PATHANAMTHITTA – 689 666 ADDL.3 JOSEPH K.S., AGED 70 YEARS S/O.MATHAN SAMUEL, KAYYALAKAL, MALAYALAPUZHA (PART), KIZHAKKUPURAM, PATHANAMTHITTA, PIN – 689 664. ADDL.4 MATHEW.K.S, AGED 61 YEARS, S/O.MATHEW SAMUEL, KAYYALACKAL, KIZHAKKUMPURAM P.O., KUMBAZHA, PATHANAMTHITTA, PIN – 689 664. ADDL.5 M.S.JOHN, AGED 58 YEARS, S/O.SKARIYA, MADATHILETHU, VADAKKUMPURAM P.O., MALAYALAPUZHA (PART), PATHANAMTHITTA – 689 664. ADDL.6 JOHNSON MATHEW, AGED 57 YEARS, S/O.MATHEW K J, KAYYALACKAL, VADAKKUMPURAM P.O., MALAYALAPUZHA (PART), PATHANAMTHITTA – 689 664 ADDL.7 A.D. MATHEW, AGED 74 YEARS, S/O.DANIEL A M, AYYANATHU VEEDU, KIZHAKKUMPURAM P.O, MALAYALAPUZHA (PART), WP(C) NO.1521 OF 2023 -: 2 :- PATHANAMTHITTA – 689 664. ADDITIONAL RESPONDENTS 3 TO 7 ARE IMPLEADED AS PER ORDER DATED 16.2.2023 IN I.A.No.1/2023. BY ADVS. JACOB CHACKO P.SUJITH KUMAR B.V.JOY SANKAR SRI.K.SHAJ, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1521 OF 2023 -: 3 :- ## JUDGMENT ## Dated this the 16th day of February, 2023 This writ petition is filed seeking the following reliefs :- - “(i) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P4 and quash the same. - (ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue trade licence to the petitioner on the strength of the statutory licenses and permissions already issued to him.” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Panchayat. 3. It is submitted by the learned counsel for the petitioner that the petitioner had submitted an application for trade licence before the Secretary of the Panchayat. However, the application of the petitioner has been rejected on the basis of a decision taken by the Committee of the Panchayat. The learned counsel for the petitioner submits that since the application was filed before the Secretary, it could not have been considered by the Panchayat and the rejection is, therefore, completely improper. Further, it is contended that the reasons stated for rejection of the request for licence submitted by the petitioner are extraneous to the grounds WP(C) NO.1521 OF 2023 -: 4 :- that the Panchayat can consider and that the petitioner had obtained all other permissions including an Environmental Clearance and consolidated consent from the Pollution Control Board. It is submitted that it was after considering all relevant factors that the consents had been issued to the petitioner and the rejection by the Committee on reasons which are not specifically within the ambit of the Kerala Panchayat Raj Act and the provisions of the Rules is completely unsustainable in law. The learned counsel would also contend that the application should have been independently considered by the Secretary. 4. A counter affidavit has been placed on record by respondents 1 and 2, wherein, it is contended that the petitioner had specifically submitted an application for licence under Section 233 of the Kerala Panchayat Raj Act for installation of machineries having a Horse Power of 499. It is, therefore, contended that since the Ext.R1(A) application was specifically one submitted under Rule 12(2)(ii) of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996, the petitioner cannot now contend that his application ought to have been considered by the Secretary. It is further submitted that there is a public road which is included in the Asset Register of WP(C) NO.1521 OF 2023 -: 5 :- the Panchayat which is being maintained by the Panchayat habitually and that the explosive magazine of the quarry is situated within 20 metres from the said road which was not revealed to the appropriate authorities while obtaining licenses. It is submitted that the rejection of the application for trade licence was on valid considerations and that the petitioner should have availed the alternate remedy of appeal which was not done by him. 5. A reply affidavit has been placed on record by the petitioner contending that the respondent, in the earlier round of litigation, had suffered an order directing the Secretary to consider the application for licence, treating the application of the petitioner as one for licence under Section 232 of the Act and that the respondents cannot now turn around and say that the application of the petitioner was under Section 233. The learned counsel also relies on a decision of this Court in Ajantha M. v. Nagaroor Grama Panchayat and Another [2018 (3) KLT 22] to contend that no licence under Section 233 is required for the operation. It is further contended that Section 220(d) prohibits only working of a quarry from a place within 20 metres of a Panchayat road. It is stated that the proposed quarrying site is situated at a much farther distance from the Panchayat road and the objection is only on account of an WP(C) NO.1521 OF 2023 -: 6 :- explosive magazine within 20 metres. It is submitted that Section 220(d) does not prohibit the citing of an explosive magazine within 20 metres from a public road and that all that is prohibited is the working of a quarry to remove stone, earth, rubble or other material from any place within 20 metres of a Panchayat road. It is contended that in the above circumstances, the rejection of the request made by the petitioner is completely untenable. The learned counsel also places reliance on a decision of a Full Bench of this Court in Tomy Thomas v. State of Kerala and others [2019 (3) KLT 987] and contends that the respondents could not have rejected the request of the petitioner on extraneous considerations since the petitioner had obtained all other necessary permissions from statutory bodies including an Environmental Clearance from the SEIAA. 6. Having considered the contentions advanced, I am of the opinion that the issue whether the petitioner requires a licence under Section 233 of the Kerala Panchayat Raj Act cannot be considered in this writ petition in view of the fact that what has been applied for by the petitioner is specifically a licence under Section 233 of the Act. The learned counsel for the petitioner would then contend that the reason stated in the impugned WP(C) NO.1521 OF 2023 -: 7 :- proceedings for rejection of the licence is completely extraneous and in view of the fact that the petitioner has obtained all other necessary clearances, the contention that a magazine is located close to the public road cannot be a reason for the respondents to reject the application for licence submitted by the petitioner. It is contended that there is absolutely no working of a quarry, removal of stone, earth or other mineral within 20 metres from a public road and there is no such contention also in the impugned order. It is, therefore, contended that the issue requires a reconsideration. 7. The learned counsel appearing for respondents 3 to 7 would contend that they had raised objections with regard to the grant of the licence to the petitioner and they are also to be heard while the issue is being considered. 8. Having considered the contentions advanced on either side and in view of the judgment of the Full Bench of this Court in Tomy Thomas's case, I am of the opinion that the issue requires a reconsideration at the hands of the Panchayat. In the above view of the matter, the impugned decision is set aside. There will be a direction to the Panchayat to reconsider the request made by the petitioner for licence under Section 233 of the Kerala Panchayat Raj Act, specifically in accordance with the WP(C) NO.1521 OF 2023 -: 8 :- provisions of the Act. The contention of the petitioner that the Panchayat cannot reject the application on extraneous reasons since the petitioner possesses all other requisite licenses shall also be considered by the Panchayat while passing orders as directed above. The further contention that there is no violation of the provisions of Section 220(d) of the Panchayat Raj Act since there is no quarrying activity proposed within a distance of 20 metres from the public road shall also be considered while passing orders. The petitioner as well as the party respondents shall be heard by the Secretary before orders are passed as directed above. The Secretary shall place the notes of the hearing before the Committee of the Panchayat for consideration. Appropriate orders shall be passed by the Panchayat Committee within a period of one month from the date of receipt of a copy of this judgment. Sd/ANU SIVARAMAN JUDGE Jvt/21.2.2023 WP(C) NO.1521 OF 2023 -: 9 :- ## **APPENDIX OF WP(C) 1521/2023** PETITIONER EXHIBITS - Exhibit P1 A TRUE COPY OF THE LETTER OF INTENT DTD. 29.06.2018 ISSUED BY THE GEOLOGIST, PATHANAMTHITTA. - Exhibit P1(a) TRUE COPY OF THE CONSENT TO OPERATE DTD. 13.07.2022 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.05.2026 . - Exhibit P1(b) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE ISSUED BY THE SEIAA. - Exhibit P1(c) TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2026 - Exhibit P1(d) TRUE COPY OF THE NOC ISSUED BY THE DISTRICT FIRE OFFICER. - Exhibit P2 TRUE COPY OF THE RECEIPT DATED 24.06.2022 ISSUED BY THE 2ND RESPONDENT - Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 28.10.2022 INWP(C) NO. 27037/2022 ON THE FILES OF THIS HON'BLE COURT. - Exhibit P4 TRUE COPY OF THE ORDER DATED 30.11.2022 ISSUED BY THE 2ND RESPONDENT - Exhibit P5 TRUE COPY OF THE LETTER DATED 02.09.2022 ISSUED BY THE VILLAGE OFFICER, MALAYALAPUZHA TO THE 2ND RESPONDENT - Exhibit P6 TRUE COPY OF THE LETTER DATED 28.05.2020 ISSUED BY THE REVENUE DIVISIONAL OFFICER, ADOOR TO THE DISTRICT COLLECTOR, PATHANAMTHITTA. RESPONDENT EXHIBITS Exhibit R1(A) The true copy of application dated 24/06/2022 filed by the petitioner under WP(C) NO.1521 OF 2023 -: 10 :- Rule 12(2)(ii) of Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996 Exhibit R1(B) The true copy of extract of the Panchayat Asset Register in respect of Malethupadi - Randuthenginaal Padi Road Exhibit R1(C) The true copy of sketch of the Malethupadi - RanduthenginaalPadi Road and the proposed quarry of the petitioner Exhibit R1(D) The true copy ofProject No.S0026/23 of the Malayalapuzha Panchayat for renovation (spillover works - carry forward) work of Malethupadi - Randuthenginaal Padi Road Exhibit R1(E) The true copy of Project No. S0215/23 of the Malayalapuzha Panchayat for renovation of Malethupadi - Randuthenginaal Padi Road Exhibit R1(F) The true copy of notice No.400377/RPP101/GPO/2022/1042/(6) dated 27/08/2022 by the Secretary of Malayalapuzha Panchayat to the petitioner