A.N. SADASIVAN NAIR v. THIRUMITTACODE GRAMA PANCHAYATH and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021/3RD AGRAHAYANA, 1943** **WP(C) NO. 16420 OF 2021** ## **PETITIONER:** **A.N.SADASIVAN NAIR AGED 60 YEARS** **MANAGING PARTNER, M/S. POPULAR GRANITES, ALTHARA, PERUMPILAVU P.O, THRISSUR DISTRICT. BY ADV JOBI JOSE KONDODY** ## **RESPONDENT:** - **1 THE THIRUMITTACODE GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, THIRUMITTACODE GRAMA PANCHAYATH OFFICE, CHATHANNUR P.O, PALAKKAD DISTRICT - 679533.** - **2 THE SECRETARY THIRUMITTACODE GRAMA PANCHAYATH, THIRUMITTACODE GRAMA PANCHAYATH OFFICE, CHATHANNUR P.O, PALAKKAD DISTRICT - 679533.** - **3 THE GEOLOGIST MINING AND GEOLOGY DISTRICT OFFICE, TOWN BUS STAND COMPLEX, PALAKKAD - 697514.** - **4 ADDL.R4.SUBRAMANIYAN. K. AGED 56 YEARS S/O GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **5 ADDL.R5.VINOD KUMAR.A.V AGED 45 YEARS** - **S/O.RAGHAVAN, AYYATHU VALAPPIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **6 ADDL.R6.SUBASH.M AGED 35 YEARS S/O SANKARAN, MANGATTIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **7 ADDL.R7.RAJESH.C.V AGED 45 YEARS** - **S/O.SREEDHARAN NAIR, SREELAKSHMI NILAYAM, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** WP(C) No.16420/2021 : 2 : - **8 ADDL.R8.MANIKANDAN.M AGED 52 YEARS S/O.SANKARAN.M, MANGATTILL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **9 ADDL.R9.UNNIKRISHNAN.M AGED 45 YEARS S/O.SIVADASAN, PALATHU VEETTIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **10 ADDL.R10.VIDYADHARAN AGED 45 YEARS S/O.KRISHNAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **11 ADDL.R11.VIJAYAN.K AGED 60 YEARS S/O.GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535** - **12 ADDL.R12.RAJAN.K AGED 54 YEARS S/O.GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535.** **(ADDL R4 TO ADDL R12 ARE IMPLEADED AS PER ORDER DATED 14-09-2021, IN IA 1/2021 IN WP(C)16420/2021)** **BY ADVS. T.A.RAJAGOPALAN, R1 AND R2 P.SANKARAN NAMPOOTHIRI, R4 TO R12 SRI.VIPIN NARAYANAN, SR.GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.16420/2021 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 24[th] day of November, 2021**_ The petitioner, who is Managing Partner of a Crusher Unit, seeks to direct the 1[st] respondent to grant permission to establish a Quarry for mining building stones in the property covered by Ext.P1, under Section 233 of the Kerala Panchayat Raj Act, 1994, based on Exts.P2 to P4 licences issued by the statutory authorities. The petitioner also seeks to declare that he is entitled to Deemed Licence under Section 236(3) of the Kerala Panchayat Raj Act, 1994 for operating the Quarry for the year 2021-'22 and direct the 2[nd] respondent to issue licence in paper form. 2. The petitioner is the Managing Partner of M/s.Popular Granites situated in Perumpilavu Village of Kunnamkulam Taluk. The 3[rd] respondent-Geologist issued Ext.P1 Letter of Intent to the petitioner. The State WP(C) No.16420/2021 : 4 : Environment Impact Assessment Authority (SEIAA) granted Environmental Clearance valid up to 05.03.2026, as per Ext.P2. The Kerala State Pollution Control Board gave Ext.P3 Consent to Operate. The Deputy Chief Controller of Explosives granted Ext.P4 explosive licence. 3. After securing all the requisite licence/permit/consent, the petitioner submitted an application to the 1[st] respondent-Panchayat for issuing trade licence, as per Ext.P5. The 2[nd] respondent-Secretary to the Panchayat acknowledged the receipt of the application. However, the petitioner's application was neither allowed nor rejected. The petitioner states that he is entitled to a deemed licence to operate the Quarry, in view of Section 236(3) of the Kerala Panchayat Raj Act, 1994. 4. The learned counsel for the petitioner argued that the 2[nd] respondent has no case that Ext.P5 application is not supported by requisite documents. The 2[nd] respondent has no case that Ext.P5 application is defective. The petitioner is therefore entitled to the benefit of deemed licence, under WP(C) No.16420/2021 : 5 : Section 236(3) of the Act, 1994 and therefore respondents 1 and 2 are compellable to issue the licence applied for in paper form. 5. The 2[nd] respondent resisted the writ petition filing counter affidavit. The 2[nd] respondent stated that in the locality where the petitioner proposes to operate Quarry, some quarries were functioning years before. Due to the functioning of those quarries, wells and houses were damaged and the local residents submitted complaints. The petitioner is proposing to start the Quarry on the top of a hill at a height of 600 to 700 feet. There are about 250 dwelling houses at the foot of the hill. Quarrying operations will be dangerous. 6. The 2[nd] respondent further submitted that there is a pond near the Quarry. There is a public road within 50 to 100 metres of the Quarry. The Special Grama Sabha meeting held on 18.08.2019 passed a unanimous resolution against the establishment of Quarry. It is doubtful whether the petitioner is the owner of the land. In the circumstances, the writ petition is liable to be dismissed. WP(C) No.16420/2021 : 6 : 7. The additional 4[th] respondent, who was impleaded in the writ petition, also filed a counter affidavit. The additional 4[th] respondent stated that the earlier quarries which functioned in that area have caused damage to the houses and wells of the residents of the locality. Their houses used to shiver during blasting operations. Large amount of granite dust and smoke, polluted the area. Blasting operation is likely to result in landslide. 8. The District Collector, on receipt of complaints, interfered in the matter and forwarded the complaints to the Geologist. The 4[th] respondent further urged that blasting in granite mines are prohibited within one kilometre of water shed area as per the Kerala Water Conservation Act. Chazhiyattil Water Shed area is hardly 200 metres far from the proposed Quarry. Therefore, the petitioner's proposed Quarry should not be licensed. 9. In the rejoinder filed by the 2[nd] respondent, the 2[nd] respondent alleged that industrial occupancies should have width of 6 metres for the road and the street. Similarly, the EC WP(C) No.16420/2021 : 7 : issued to the petitioner mandates that 7 metres private road must be maintained in good motorable condition. Access roads to the Quarry shall be blacktopped to contain dust emissions that may arise during transportation of materials. In the present case, the Panchayat road is only about 4.5 metres wide. Therefore, no licence can be granted to the petitioner. 10. In the rejoinder filed by the 4[th] respondent also, it has been alleged that the entrance of the private mud road is only 4 metre wide. The Panchayat road is only 4.5 metre wide. Unless the road is 7 metre wide, no licence for hazardous activities can be permitted. 11. I have heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, the learned Government Pleader representing the 3[rd] respondent and the learned counsel for respondents 4 to 12. 12. The petitioner has filed the writ petition seeking to grant permission to establish the quarry under Section 233 of the Kerala Panchayat Raj Act, 1994 based on Exts.P1 to P4 licences issued by the statutory authorities. The contention of WP(C) No.16420/2021 : 8 : the petitioner is that he is entitled to a Deemed Licence under Section 232 of the Kerala Panchayat Raj Act, 1994. The petitioner seeks to issue licence in paper form. It is not disputed that the petitioner has obtained necessary licence/permit from the Geologist, SEIAA, the Kerala State Pollution Control Board and the Deputy Chief Controller of Explosives. 13. There is no dispute on the fact that the petitioner has made a composite application under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994 for licences. The application was made on 19.04.2021. Ext.P5 is the copy of application and Ext.P6 is the copy of the acknowledgment issued by the Panchayat authorities on 20.04.2021. The argument of the petitioner is that in view of Section 236(3) of the Kerala Panchayat Raj Act, 1994, if orders on application for licence or permission are not communicated to the applicant within 30 days, the licence shall be deemed to have been issued for the period for which it would have been ordinarily allowed. No orders have been passed on Ext.P5 WP(C) No.16420/2021 : 9 : within the stipulated 30 days. Therefore, the petitioner should be deemed to hold a licence and the respondents are compellable to issue licence in paper form. 14. The defence of the Panchayat is that there were quarries functioning in the area earlier, which caused damage to nearby residential buildings, consequent to which the local residents filed complaints. The proposed quarry is situated on top of a hillock and buildings and wells will be damaged/polluted due to the explosions in the quarry. A road is situated within 50-100 metres distance, which is used by the general public. There is a pond adjacent to the locality, which will be polluted. The area is inhabited by animals and birds within 100 metres from the locality. The Panchayat road leading to the quarry has a width of 3 metres only. The Special Grama Sabha has passed a resolution against establishment of the Quarry in the area. 15. The State Environmental Impact Assessment Authority, which is a statutory expert body competent to examine adverse environmental impact due to the WP(C) No.16420/2021 : 10 : establishment of the quarry, has granted Environmental Clearance to the Quarry as per Ext.P2. The Environmental Clearance given is not under challenge from any quarters. Therefore, the objection as regards pollution that may be resultant of establishment of the quarry and its adverse impact on animals and birds, cannot be considered by this Court. 16. The further argument that nearby buildings will be damaged due to explosions in the quarry. The Deputy Chief Controller of Explosives, who is the competent authority in this regard, has granted permission. Ext.P4 Licence granted to the petitioner by the Deputy Controller of Explosives is also not subjected to challenge from any quarters. The argument of the 2[nd] respondent in this regard cannot be accepted for the said reason. 17. The further defence is that the Special Grama Sabha has unanimously passed a resolution against the quarry. This Court has held in the judgment in _**Abdulla v. Trippangottur Grama Panchayat** [2021 (5) KLT 200]_ that any decision of the Grama Sabha cannot affect the powers and WP(C) No.16420/2021 : 11 : functions of the licensing authorities under the Kerala Panchayat Raj Act, 1994 including the power to issue licence under Section 233. Therefore, Panchayat licensing authorities, without the support of any expert advice/report by a competent body, cannot be heard to contend that the industry will cause environmental damage and that the Grama Sabha has passed a resolution against the industry. 18. The 2[nd] respondent as well as the 4[th] respondent vehemently urged that the access width of the road leading to the quarry is less than the prescription. The Panchayat Road in question namely Akilanam-Thekkekara Road is 5 metre wide as per the Panchayat records, according to the petitioner. Ext.P9 Survey Map prepared by the Village Officer would show that the road leading to the quarry is 7.5 metres wide. The Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996 do not stipulate any minimum width for the road leading to a quarry. WP(C) No.16420/2021 : 12 : 19. The petitioner has submitted Ext.P5 application for licence under Sections 233 and 234 of the Act, 1994 on 19.04.2021. The receipt of which has been acknowledged by the Panchayat authorities on 20.04.2021, as per Ext.P6. Section 236(3) of the Act provides that if orders or permission are not communicated to the applicant within 30 days, the application should be deemed to have been allowed for that period. The respondents have no case that the application for licence is not supported by requisite documents. The respondents have no case that the Panchayat authorities have communicated any order of rejection to the petitioner within the period stipulated as per Section 236(3). Therefore, the petitioner is entitled to hold Deemed Licence. 20. A Division Bench of this Court has held in the judgment in _**V. Sudhakaran v. Pallichal Grama Panchayat and others** [2016 (2) KLT 175]_ that even in the absence of a licence in the prescribed format, on the request of the applicants, the Secretary of the Panchayat may have to issue appropriate certificate to enable the applicants to utilise the WP(C) No.16420/2021 : 13 : same for other statutory permissions/licences. In the afore facts and circumstances of the case, the writ petition is allowed and the competent among respondents 1 and 2 are directed to issue Deemed Licence to the petitioner in paper form for the period applied for in Ext.P5 application, within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/22.11.2021 WP(C) No.16420/2021 : 14 : ## **APPENDIX OF WP(C) 16420/2021** ## **PETITIONER'S EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE LETTER OF INTENT DATED 12.07.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **Exhibit P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 06.03.2021 VALID UP TO 05.03.2026 FOR THE PROJECT OF THE PETITIONER ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY - KERALA.** - **Exhibit P3 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 26.05.2021 VALID UP TO 28.02.2026 FOR OPERATING THE QUARRY FOR MINING BUILDING STONES.** - **Exhibit P4 A TRUE COPY OF THE FORM L3-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 24.06.2009 VALID UPTO 31.03.2023.** - **Exhibit P5 A TRUE COPY OF THE APPLICATION DATED 19.04.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE TRADE LICENSE UNDER SEC.232 OF THE KERALA PANCHAYAT RAJ ACT, 1994 AND ESTABLISHING THE BUILDING STONES QUARRY UNDER SEC. 233 OF THE KERALA PANCHAYATH RAJ ACT, 1994.** - **Exhibit P6 A TRUE COPY OF THE RECEIPT DATED 20.04.2021 ACKNOWLEDGING RECEIPT OF EXHIBIT P5 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **Exhibit P7 A TRUE COPY OF THE G.O(K) NO.156/2021 LSGD (RD) DATED 29.07.2021 ISSUED BY THE STATE GOVERNMENT.** - **Exhibit P8 COPY OF ASSET REGISTER MAINTAINED BY THE 1ST RESPONDENT.** - **Exhibit P9 COPY OF SURVEY MP PEPARED BY VILLAGE OFFICER, THIRUMITTACODE-2 VILLAGE.** WP(C) No.16420/2021 : 15 : **Exhibit P10** **Exhibit P10 COPY OF NO OBJECTION CERTIFICATE ISSUED BY MRS.RAJANI ELDHO FOR AND ON BEHALF OF THE PETITIONER FIRM DT 4.3.2019. Exhibit P11 COPY OF NOC ISSUED BY MR.HARIKRISHNAN FOR AND ON BEHALF OF THE PETITIONER DT 4.3.2019** **Exhibit P12 COPY OF DEED OF PARTNERSHIP DT 25.5.2015 OF M/S.POPULAR GRANITES.** ## **RESPONDENT'S EXTS:** **R2(a) LETTER DT 13.8.2021 TO DIRECTOR OF MINING AND GEOLOGY.** **R2(b) LETTER DT 13.8.2021 TO MEMBER SECRETARY AND REVENUE DIVISIONAL OFFICER** **R2(c) MEMORANDUM SUBMITTED TO THE THIRUMITTACODE GRAMA PANCHAYATH.** **R2(d) MEMORANDUM DT 20.7.2021.** **R2(e) REPORT DT 16.7.2021.** **R2(f) JUDGMENT IN (2002) 9 SCC 493.** **R2(g) COPY OF RELEVANT PAGES OF ENVIRONMENT CLERANCE.** **R2(h) COPY OF RELEVANT PAGES OF GENERAL CONDITIONS FOR GRANITES STONE MINING PROJECTS.** **R2(i) COPY OF URACHANOOR WATER BED.** **R2(j) COPY OF RELEVANT PAGE WITH RESPECT TO LICENSE TO QUARRY.** **R2(k) COPY OF LETTER DT 10.8.2021** **R2(l) COPY OF ENVIRONMENT PLN OF POPULAR GRANTIES.** **R4(a) LETTER DT 28.5.2018 FROM COLELCTORATE, PALAKKADR4(b) LETTER DT 2.6.2018 TO PATTAMBI THAHSILDAR.** **R4(c) LETTER DT 23.5.2018.** **R4(d) MEMORANDUM TO THE THIRUMITTACODE GRAMA PANCHAYATH.** **R4(e) RESOLUTION OF SPECIL GRAMA SABHA DT 18.8.2019.** **R4(f) MEMORANDUM DT 20.7.2021 TO THIRUMITTACODE GRAMA PANCHAYATH.**