Aniyeri Satyan v. Triprangottor Grama Panchayath & The Secretary, Triprangottor Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **WP(C).No. 18315 of 2018** ## **PETITIONER/S:** **ANIYERI SATYAN, AGED 50 YEARS, ANIYERINTAVIDA HOUSE, CHENDAYAD P.O., KANNUR DISTRICT -670 692.** **BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** ## **RESPONDENT/S:** |**1**|**THE TRIPRANGOTTOOR GRAMA PANCHAYATH,**| |---|---| ||**KALLIKANDI P.O., 670 693.**| ||**REPRESENTED BY ITS SECRTARY,**| ||**KANNUR DISTRICT.**| |**2**|**THE SECRETARY,**| ||**THE TRIPRANGOTTOOR GRAMA PANCHAYATH,**| ||**KALLIKANDI P.O., 670 693,**| ||**KANNUR DISTRICT.**| **BY ADVS.** R1 BY **SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2018, THE COURT ON 19.09.2018 DELIVERED THE FOLLOWING:** W.P.(C) No.18315 of 2018 2 ## **JUDGMENT** The reliefs sought for by the petitioner in this writ petition are to declare that the D & O licence contemplated in Sec.236(3) of the Kerala Panchayat Raj Act, 1994, came into effect with effect from 06.03.2018, allowing the petitioner to conduct quarrying activities, as prayed for in the application covered by Ext.P3, and further to declare that, in the light of the deemed licence, Ext.P5 has no basis and quash the same by issuance of a writ of certiorari. Basic relevant facts for the disposal of the writ petition are as follows: 2. Petitioner who has obtained Ext.P1 environmental clearance for quarrying applied for D & O licence with the 2[nd] respondent on 02.02.2018. According to the petitioner, the application covered by Ext.P3 was not considered for long period. Thereupon, petitioner is entitled to get deemed licence as is contemplated under Sec.236(3) of the Kerala Panchayat Raj Act, 1994 [for short, 'the Act, 1994']. That apart, it is submitted that, after securing deemed licence, the respondent has no authority to dispose of the application covered by Ext.P3. It is stated that, Ext.P1 environmental clearance was secured by the petitioner as early as on W.P.(C) No.18315 of 2018 3 18.11.2017, which is valid up to 17.11.2022. Letter of intent is obtained on 09.05.2017, evident from Ext.P2. After securing Exts.P1 and P2, petitioner approached the 2[nd] respondent for D & O licence by submitting an application on 02.02.2018, which was received as per Ext.P3 dated 02.02.2018. It is further submitted that, some of the elected members of the Committee of the 1[st] respondent and the person in charge of the 2[nd] respondent were demanding illegal gratification and thereby they did not process the application covered by Ext.P3. 3. That apart, it is submitted that, the Panchayat considered the matter in detail in order to find out whether there is any reason to refuse the application with a view to pressurize the petitioner by pointing out the defects. As part of it, the Grama Panchayat committee as per its decision No.69/2018 in the meeting held on 16.04.2018 decided to demand the District Collector to withdraw Ext.P1 environmental clearance. However, according to the petitioner, the District Collector has rejected the request, and in the meanwhile, petitioner approached the District Collector seeking direction to the 2[nd] respondent to issue a certificate recording that due to non-communication of the order of refusal for granting of the application for D & O W.P.(C) No.18315 of 2018 4 licence, petitioner has secured deemed licence. 4. Since there was no consideration of application after Ext.P3 was received on 02.02.2018, petitioner has already secured statutory deemed licence by the elapse of 30 days from the date of Ext.P3. Therefore, according to the petitioner, petitioner is entitled to operate on the basis of the deemed licence secured with effect from 06.03.2018, and the 2[nd] respondent is bound to issue a licence to the petitioner. It is also the contention of the petitioner that, since the petitioner is accrued with a deemed licence, the respondents are not entitled to withdraw the licence without issuing appropriate notice to the petitioner. Petitioner seeks also the benefit of the proposition of law laid down by this Court in its various judgments regarding accural of deemed licence and issuance of the same in paper form. 5. It is also stated that, on the strength of the deemed licence, petitioner has started to secure various machineries and entered into labour contracts. However, the 2[nd] respondent without giving any opportunity to the petitioner of being heard, refused the application pertaining to Ext.P3 receipt, as per its decision dated 31.05.2018, evident from Ext.P5. It is pointed out in Ext.P5 that the Panchayat Committee had decided to refuse W.P.(C) No.18315 of 2018 5 the D & O licence as per its decision dated 30.06.2018. However, in the body of the order, it is recorded that, the committee had convened a meeting on 30.05.2018 and considered the application. Other contentions are also raised by the petitioner in respect of entitlement of the petitioner irrespective of the adverse decision taken by the respondents against the petitioner. 6. The respondents have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the expression “application” means “valid application” duly submitted in terms of the rules. There is no such application at all submitted by the petitioner in order to avail the benefit of a deemed licence. It is mandatory, there should be a valid application submitted under the prescribed statutory rules. As per the Kerala Panchayat Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 [hereinafter called, 'the Rules, 1996'], an application has to be submitted either by the owner or occupier of every place used for the purposes specified in Schedule-I. There was no application received by the Panchayat either from the owner or occupier of the place indicated in the application. W.P.(C) No.18315 of 2018 6 Admittedly, the application is submitted by the petitioner, and he is not the owner of the property nor he is the occupier as he has not been granted any permit to occupy any premises. All that is stated in the application is that, he has been permitted by the owner to conduct quarrying operation, and such a statement is not sufficient to enable the petitioner to apply for a licence under Rule 5 of the D & O Rules. Since there is no proper application, the deeming provision as per Sec.236 of Act, 1994 will not apply. Admittedly, the application submitted by the petitioner does not specify that it is under the Act or the Rules framed thereunder. 7. It is also stated that, after enquiry, the Secretary made a detailed note that there is noting in the application evidencing possession of the property with the applicant, and therefore, in the event, the Panchayat is to consider, it may insist on the production of such a certificate. Accordingly, a letter dated 09.03.2018 was issued to the petitioner, seeking additional details and documents. In answer to that, petitioner submitted documents including possession certificate, sketch etc. evident from Ext.R1(a). The possession certificate is in the name of one Rajeevan dated 11.04.2018, evident from Ext.R1(b). The sketch W.P.(C) No.18315 of 2018 7 prepared by the Village Officer was also produced along with the additional documents. On receipt of the same, a meeting of the Panchayat was proposed to be held on 05.05.2018, but the same could not take place, and therefore, petitioner was decided to be heard on 26.05.2018. Petitioner was heard on that day and the matter was placed before the Panchayat committee to meet on 30[th] of May, 2018, and accordingly, the Panchayat committee decided to reject the request of the petitioner, evident from Ext.P5 order. 8. Therefore, according to the respondents, petitioner is not entitled to get any deemed licence. It is also pointed out that, by virtue of the decision rendered by this Court in ' _**Kadaplamattom Grama Panchayat,**_ _**Kottayam** v_ _**. Johny Roy**_ ' [2013 (3) KHC 857 (DB)] that, in order to establish a quarry, mechanical power or electrical power is used, and therefore, permission from the Panchayat is required. However, petitioner has not made proper application in order to secure the licence, and since there is no valid application submitted by the petitioner, there is no scope for the petitioner to secure a deemed licence. 9. A reply affidavit is filed by the petitioner and along with the same, various documents are produced by W.P.(C) No.18315 of 2018 8 the petitioner including postal covers to contend and canvass the proposition that the letter dated 09.03.2018 was despatched only on 12.04.2018, and therefore, it is clear from the action of the respondents itself that petitioner is accrued with a deemed licence in contemplation of law. Other documents are also produced in order to point out that the Panchayat was always acting hostile to the petitioner without any rhyme or reason, and therefore, it is clear that the Panchayat has purposefully delayed the application submitted by the petitioner, and therefore, petitioner is entitled as of right for the issuance of licence in the paper form. 10. I have heard Sri. Alex M. Scaria, learned counsel for the petitioner and Sri. K. Ramakumar, learned Senior Counsel appearing for the respondents, assisted by Sri. Ramaprasad Unni. Perused the documents on record and the pleadings put forth by the respective parties. 11. The subject issue revolves around Sec.232 of Act, 1994, and the Rules, 1996. Section 232 deals with the purpose for which places may not be used without a licence, and Rules, 1996 deals with the procedure under which the application submitted is to be considered and finalized. Rule 5 of the Rules, 1996 stipulates that, the owner or occupier of every place used for the W.P.(C) No.18315 of 2018 9 purposes specified in Schedule-I shall, within thirty days of the publication of the notification, submit to the Secretary, application for licence for the use of such place for such purpose. The Rules, 1996 is amended as per G.O.(P) No.80/2017/LSGD dated 31.10.2017, whereby among other amendments, Rule 5A is brought into the statute book, which read thus: _“5A. The Secretary or the officer authorized by him shall issue an acknowledgement to the applicant on the receipt of application along with the supporting documents in Form No.I appended to these rules. The Secretary or the officer authorized by him, shall, immediately on receipt of the application, verify the application and all the supporting documents on the support and if any supporting document required is not attached with the application, the Secretary or the officer authorized by him shall immediately inform the applicant regarding the details of the missing document, if any, and allow the applicant to submit the missing document at the earliest but not later than three days from the date of receipt or application”._ 12. To the existing Rule 6, a proviso is added, which stipulates that “if the application is submitted along with the requisite clearance from other Departments stipulated under these rules for grant of licence along with the fee specified in the Schedule-II, the President shall issue the licence applied for within seven days from the date of receipt of the application along with the requisite clearances”. That apart, Rule (6) W.P.(C) No.18315 of 2018 10 stipulates that, the President may by order in writing and subject to such restrictions and regulations as he thinks fit, issue such licence or in public interest refuse to issue the same. In the case of refusal of licence the reasons for such refusal shall be mentioned in such order. 13. Therefore, on a reading of Rule 5A, it is evident that, the Secretary or the officer authorized by him shall immediately on receipt of the application, verify the application and all the supporting documents on the support, and if any supporting document required is not attached with the application, the Secretary or the officer authorized by him shall immediately inform the applicant regarding the details of the missing document, if any, and allow the applicant to submit the missing document at the earliest but not later than three days from the date of receipt of application. The proviso to Rule (6) makes it clear that, if the application is in order accompanied by requisite clearance from other Departments, the President is duty bound to issue the licence applied for within seven days. However, it gives a significant indication that the President is not bound to issue the licence, if the application is not accompanied with requisite documents, W.P.(C) No.18315 of 2018 11 and that power has its source under Rule 6 of the Rules, 1996, since the said power is not taken away on adding the proviso thereto. 14. Therefore, the legal position is clear that once an application is received by the Secretary, the Secretary will have to process the application then and there itself, and notify the defects of the application to the applicant immediately thereafter, and also permit to produce the missing documents at the earliest and not later than three days from the date of receipt of the application. There is no case for the Secretary of the Panchayat that any such exercise was undertaken by the Secretary in accordance with the stipulations contained under Rule 5A. 15. Therefore, it can only be legally presumed that the Secretary was convinced of the genuineness of the application submitted along with requisite documents required for processing the same, and has handed over the same to the President for appropriate action in accordance with Rule 6. If the President was satisfied that documents, as are contemplated for the purpose of adjudicating the licence application, were not produced by the applicant, the President was vested with every power under Rule 6 to decline the same. Therefore, on a W.P.(C) No.18315 of 2018 12 harmonious reading of Rule 6 along with the proviso thereto, it is clear that the President had every power to decline the licence, if the application was not in order and was not accompanied with requisite documents. There is no case for the President of the Panchayat that such an exercise was undertaken by the President within the time frame fixed under the proviso to Rule 6. 16. Even though a notice dated 09.03.2018 is sent to the petitioner, from the counter affidavit filed by the respondents, it is evident that the notice was only prepared on 09.03.2018, however, it is not stated when it was forwarded to the petitioner. Petitioner has produced Ext.P15 postal cover, from which, it is evident that, the same was forwarded only on 12.04.2018. The said circumstances are not under much dispute. The case of the respondents is that, the application submitted by the petitioner was not a valid one, since the ownership or possession of the property was not proved by the petitioner by producing sufficient documents for the same. Petitioner has produced Ext.P23 along with I.A.No.5 of 2018 dated 03.09.2018, that is after the filing of the writ petition, which is apparently a consent letter issued by the owner of the property dated 13.03.2017. From the recitals of the documents, it is 13 ## W.P.(C) No.18315 of 2018 evident that, one Rajeevan M. has expressed his willingness to provide an extent of 2.1492 hectares of land in order to conduct a quarry, and on the petitioner securing necessary licences and clearances from the respective statutory authorities, the consent will be valid for a period of 12 years. Therefore, according to the petitioner, the said document was produced by the petitioner along with the application in order to establish before the authority that the petitioner has secured the consent to use the property to operate a quarry in the property specified. 17. Therefore, now the question to be considered is, whether the petitioner has secured a deemed licence in accordance with the provisions of the Act and the Rules. Having evaluated the situation, I am of the considered opinion that, since the application was received on 02.02.2018 and having not communicated the order within thirty days from the date of receipt of the application declining the licence, petitioner is entitled, as of right, in accordance with Sec.236(3) of Act, 1994 to secure a deemed licence, from the fact scenario available on record. It is also a very well-settled legal position. However, at a later point of time, if the Secretary of the Panchayat or the President is of the 14 W.P.(C) No.18315 of 2018 opinion that there are illegalities and legal infirmities in the licence provided to the petitioner, they are at liberty to issue a show cause notice to the applicant and adjudicate the issue. Even though the notice dated 09.03.2018 is seen issued by the 2[nd] respondent, it is issued after a period of 30 days, for the reasons enumerated above. There is no case for the respondents that any show cause notice is issued to the petitioner, calling upon the petitioner to show cause why the licence accrued to the petitioner shall not be cancelled. 18. In that view of the matter, I am of the considered opinion that, petitioner is entitled to get a deemed licence as is provided under law. Therefore, there will be a direction to issue licence to the petitioner in paper form. However, the same will not stand in the way of the 2[nd] respondent taking any action in accordance with law, as discussed above. The licence shall be issued to the petitioner at the earliest, and at any rate, within two weeks from the date of receipt of a copy of this judgment. The writ petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.18315 of 2018 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE CERTIFICATE BEARING NO.**| |---|---| ||**53/KNR/2017/DEIAA DATED 18/11/2017,KANNUR**| |**EXHIBIT P2**|**TRUE COPY OF THE LETTER OF INTENT DATED**| ||**09/05/2017 BEARING NO 4520/M3/2017 FROM THE**| ||**DIRECTOR OF MINING AND GEOLOGY.**| |**EXHIBIT P3**|**TRUE COPY OF THE RECEIPT DATED 02/02/2018**| ||**ISSUED TO THE PETITIONER FROM THE OFFICE OF**| ||**THE RESPONDENTS.**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT IN SIYAD HASSAN V.**| ||**MARADY GRAMA PANCHAYATH (2015(1) KHC 794).**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER DATED 31/05/2018**| ||**BEARING ORDER NO. B4 312/2018**| |**EXHIBIT P6**|**TRUE COPY OF THE JUDGMENT IN SHANTI JOSEPH**| ||**V. POYYA GRAMA PANCHAYATH (1999 KHC 161)**| |**EXHIBIT P7**|**TRUE COPY OF THE JUDGMENT IN WP(C) NO.**| ||**733/2018.**| |**EXHIBIT P8**|**THE COVERING LETTER (NOTARIZED) DATED**| ||**02/04/2018 BEARING NO. E/SC/KL/22/1695**| ||**(E 71609)**| |**EXHIBIT P9**|**NOTARIZED COPY OF THE EXPLOSIVE LICENCE**| ||**DATED 18/07/2014.**| |**EXHIBIT P10**|**NOTARIZED COPY OF THE CONSENT TO OPERATE**| ||**ISSUED BY THE POLLUTION CONTROL BOARD IN**| ||**RESPECT OF THE PROPOSED QUARRY.**| |**EXHIBIT P11**|**TRUE COPY OF THE PROOF OF THE APPOINTMENT OF**| ||**THE MINES MANAGER.**| |**EXHIBIT P12**|**TRUE COPY OF THE PROOF OF THE QUALIFICATION**| ||**OF THE MINES MANAGER.**| |**EXHIBIT P13**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE**| ||**CERTIFICATE OF APPROVAL OF MINING PLAN IN**| ||**RESPECT OF THE PROPOSED QUARRY.**| |**EXHIBIT P14**|**TRUE COPY OF THE COMPLAINT PREFERRED BY THE**| ||**PETITIONER DATED 08/04/2018.**| W.P.(C) No.18315 of 2018 16 **EXHIBIT P15 ORIGINAL OF THE COVER IN WHICH EXHIBIT R1(A) WAS SENT ON 12/04/2018 EXHIBIT P16 TRUE COPY OF THE STATEMENT DATED NIL SUBMITTED ON 23/04/2018.** **EXHIBIT P17 TRUE COPY OF THE LETTER DATED 21/04/2018 BEARING NO. A1-1431/2018 SENT TO ME BY THE 2ND RESPONDENT. EXHIBIT P18 TRUE COPY OF THE LETTER DATED 19/04/2018 BEARING NO. B1-2706/18 ISSUED BY THE DEPUTY DIRECTOR OF PANCHAYATH.** **EXHIBIT P19 TRUE COPY OF THE LETTER DATED 17/04/2018 BEARING NO. B4-312/17 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P20 THE ORIGINAL OF THE COVER IN WHICH EXHIBIT P19 WAS SENT.** **EXHIBIT P21 TRUE COPY OF THE DECISION NO. 69/2018 OF THE COMMITTEE OF THE 1ST RESPONDENT.** **EXHIBIT P22 TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE DISTRICT COLLECTOR.** **EXHIBIT P23 TRUE COPY OF THE CONSENT ISSUED BY THE LAND OWNER IN FAVOUR OF THE PETITIONER.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF LETTER NO. B4-312/17 DT. 09.03.2017 SENT BY R2 TO THE PETITIONER. EXHIBIT R1(B) TRUE COPY OF POSSESSION CERTIFICATE DT. 11.04.2018 ISSUED BY THE VILLAGE OFFICER, TRIPPANGOTTUR VILLAGE OFFICE.** //TRUE COPY// P.S. TO JUDGE St/-