A.M. Varghese v. Sreekandapuram Municipality

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** ## **WP(C).No.3937 OF 2020(N)** ## **PETITIONER:** **A.M.VARGHESE, AGED 64 YEARS** **S/O. MANI, AYINKATTIL HOUSE, KARAYATHUMCHAL, CHEMPANTHOTTY P.O., NEDIYANGA VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** **THE SREEKANDAPURAM MUNICIPALITY, SREEKANDAPURAM P.O., KANNUR DISTRICT-670631, REPRESENTED BY ITS SECRETARY.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3937 OF 2020** **2** ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 3937 of 2020 -----------------------------------Dated this the 24[th] day of February, 2020 ## **JUDGMENT** The case projected in this Writ Petition (Civil) are as follows:- The petitioner with the intention of setting up a quarry in 0.8782 Hectare of land in Sy.No.25/1A, Nediyenga Village, Sreekandapuram Municipality, Taliparamba Taluk, Kannur District obtained letter of intent from the Geologist, Kannur, Consent to operate Pollution Control Board, Environmental Clearance from DEIAA Kannur and Explosive license from Deputy Chief Controller of Explosives, Ernakulam. An application seeking permission and license to start quarry was placed by the petitioner before the Municipality on 02-12-2019. However, the Sreekandapuram Municipality authorities have rejected the said application vide order dated 01-01-2020 citing complaints from residents in the locality. The complainants before the Municipality had raised similar complaints before the ADM at the time of his inspection and while considering the petitioner's application for explosive license. Therein, the ADM after inspection had rejected the said complaints after hearing the **WP(C).No.3937 OF 2020** **3** complainants. The Municipality has issued the impugned order even without hearing the petitioner, on the basis of political compulsions when its jurisdiction in the matter had already been ousted by amendments made to the Kerala Municipality Act and the judgment of the Full Bench of this Court in Tomy Thomas v. State of Kerala [2019 (3) KLT 987(FB)]. It is in the light of these averments and contentions, the petitioner has filed instant Writ petition with the following prayers: - _i. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P6 and to quash Ext.P6 order._ - _ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to issue permission and licence under Section 447 and Section 448 of the Kerala Municipality Act, 1994, to the quarry of the petitioner, without any further delay._ - _iii. Issue such other writ, order or direction as this Hon'ble Court may deem fit in the facts and circumstances of this case._ 2. Heard Sri.J.Vishnu, learned counsel appearing for the petitioner. Though notice has been duly served on the respondent Sreekandapuram Municipality, there is no appearance for that party. 3. From the pleadings and documents on record, it is seen that the petitioner has obtained Ext.P1 Letter of Intent issued by the **WP(C).No.3937 OF 2020** **4** District Geologist, Kannur and has also obtained Ext.P2 Environmental Clearance issued by the District Environmental Impact Assessment Authority, Kannur. So also the petitioner has been granted Ext.P3 statutory consent to operate the unit as issued by the Kerala State Pollution Control Board on 29-04-2018. The petitioner would also states that he has obtained Ext.P4 Explosive Licence with site plan on 19-11-2019 from the competent authority concerned. The petitioner has filed an application on 02-12-2019 before the respondent Sreekandapuram Municipality for licence and permission to conduct quarrying operations and the said application was received as early as on 02-12-2019 as evident from Ext.P5 receipt. The respondent Sreekandapuram Municipality has now rejected the request of said permission and licence as per Ext.P6 order dated 01-01-2020. 4. According to the petitioner he has obtained all the requisite licence and permission from competent statutory authorities concerned and that the trade licence/D&O licence to be issued by the respondent Municipality is only a formality and unless there are substantial materials with respondent Municipality on the basis of expert opinion, the respondent Municipality does not have any **WP(C).No.3937 OF 2020** **5** competence to reject the permission and licence given to the petitioner, as all other competent statutory authorities granted the same. The petitioner would place reliance on the decision of the Full Bench of this Court in _**Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)],**_ wherein it has been held in Para.14 as follows: _“14. The question to be examined is as to whether there is any contrary view taken in_ _**Ramapuram Grama Panchayat** (supra). The Division Bench in that case, after extracting all the 20 reasons pointed out by the Sub Committee of the Grama Panchayat, found that the reasons 1 to 4 relate to environmental clearance granted by SEIAA, which were apparently not within the jurisdiction of the panchayat. With reference to reasons 5 to 8 noted therein, it was found that no expert opinion of any competent authority was relied upon by the panchayat and they themselves have formed such an opinion. It was found that, the sub committee had not consulted any expert body nor they had taken assistance of any experts in the field. With reference to the reasons stated in 9 to 17 and 20 it was observed that they also relate to environmental issues. Therefore it was observed that, whether the reasons 5 to 8, 18 & 19 will come within the area of consideration of the panchayat, in terms of Section 233 has to be considered. Referring to sub-section (3) of Section 233, it was observed that, the secretary has to enquire and report as to whether the establishment of the factory, workshop or workplace is objectionable by reason of the density of population in the neighbourhood and possibility to cause nuisance or pollution. The village panchayat has to consider the report of the Secretary and such other authorities under subsection (4). Finding is that, the very fact that the village panchayat has to call for a report of the Secretary and also the opinion of the experts specified in subsection (4), is to enable the village panchayat to arrive at a proper decision. Therefore the question is as to whether any other materials were available with the panchayat to reject a valid application. The Division Bench found that, in the case at hand, there was no material available to indicate that the rejection was on account of the fact that it is objectionable by reason of the density of population in the neighbourhood and possibility of causing nuisance or pollution, as envisaged under Section 233 of the Act. Specific conclusion in the decision in_ _**Ramapuram**_ **WP(C).No.3937 OF 2020** **6** _**Grama Panchayat** (supra) is that, the panchayat cannot take a view that it has a right to prevent any activity in the property for public purposes. It was found that, a permission/licence can be rejected only if there is possibility of pollution and if it affects the neighbourhood in any manner due to the density of population. The said observation can only be considered as one upholding sub-section (3) of section 233. Sub-section (3) (b) provides about the specific power of the panchayat to refuse the permission for reasons to be recorded. Finding is that the reason for rejection should be the reasons contained in sub-section (3), that it is objectionable by reason of the density of population in the neighbourhood and possibility to cause nuisance or pollution.”_ 5. Taking note of the facts and circumstances it is ordered that, the matter requires serious reconsideration and at the hands of the respondent Sreekandapuram Municipality and it would warrant remission and for effecting such a remit, it is ordered the impugned Ext.P6 rejection memo dated 01-01-2020 issued by the respondent Municipality stands set aside and the application dated 02-12-2019 submitted by the petitioner will stand remitted to the respondent Municipality for consideration of decision afresh. In case the respondent Municipality has any substantial materials from expert bodies, which would justify denial of trade licence and permission by the Municipality, then copies of such materials should be given to the petitioner in advance. Thereafter the competent authority respondent Municipality will grant reasonable opportunity of being heard to the petitioner and then take a decision on the **WP(C).No.3937 OF 2020** **7** application of the petitioner for licence and permission, taking note of the facts that all the competent statutory authorities concerned have granted necessary permission and licence to the petitioner as can be seen from Ext.P1 Letter of Intent, Ext.P2 Environmental Clearance, Ext.P3 Consent to operate by the Pollution Control Board, Ext.P4 Explosive Licence etc,. Unless the respondent Municipality have substantive materials to justify the denial of the licence given to the petitioner, the said respondent shall not deny the said licence and considered decision in this regard should be duly taken by the respondent within three weeks from the date of production of a certified copy of the judgment. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS **WP(C).No.3937 OF 2020** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE LETTER OF INTENT ISSUED BY THE DISTRICT GEOLOGIST, KANNUR, ALONG WITH SURVEY PLAN DATED 15/01/2018.** **EXHIBIT P2** **TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED TO THE PETITIONER BY THE DIEAA, KANNUR DATED 24/03/2018.** **EXHIBIT P3** **TRUE COPY OF THE CONSENT TO OPERATIVE FROM THE KERALA STATE POLLUTION CONTROL BOARD, DATED 29/04/2018.** **EXHIBIT P4** **TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED TO THE PETITIONER WITH SITE PLAN DATED 19/11/2019.** **EXHIBIT P5** - **TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT OF THE APPLICATION FOR ESTABLISHMENT AND STARTING OF QUARRY, DATED 02/12/2019.** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE SECRETARY, SREEKANDAPURAM MUNICIPALITY, DATED 01/01/2020.** ## **RESPONDENT'S/S EXHIBITS: NIL**