C.A. Sharafudhin v. Naduvil Grama Panchayat and Secretary, Naduvil Grama Panchayat, Naduvil, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 ``` ## **`WP(C) NO. 1809 OF 2022`** ## **`PETITIONER:`** ``` C.A.SHARAFUDHIN, AGED 43 YEARS S/O.C.K.ABU, SAIFOOL SAFA, PINARAYI, KANNUR-670 741. BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ``` ## **`RESPONDENTS:`** ``` 1NADUVIL GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY, NADUVIL P.O., KANNUR-670 582. 2THE SECRETARY, NADUVIL GRAMA PANCHAYAT, NADUVIL P.O., KANNUR-670 582. BY ADVS.T.R.HARIKUMAR T.P.RAMACHANDRAN ARJUN RAGHAVAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.1809/2022** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.1809 of 2022 ---------------------------------------------Dated this the 02[nd] day of March, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of certiorari calling for the records leading to Exhibits P4, Exhibit-P5, Exhibit-P7 and Exhibit-P9 to quash the same. - ii. Issue a writ declaring that the respondents have acted in malafide and without jurisdiction in interfering with the operations conducted in the petitioner's property. - iii. Issue a writ of Mandamus directing the respondents not to prevent the petitioner from carrying out mining operations including clearing of the property. - iv. Grant such other reliefs as this Court deems fit in the facts and circumstances of the case. (SIC) 2. Petitioner owns 2 hectares 12 Are 55 sq. meters of land in Re-Survey No.292, Re-Survey Sub Division No.1A (ReSy.No.292/1A) in Vellad Village, Naduvil Panchayat, Kannur **3** ## **W.P.(C).No.1809/2022** District. It is the case of the petitioner that his attempt to start a quarry in the said land had been illegally thwarted by the Panchayat from 2012 onwards. It is the further case of the petitioner that he approached this Court on several occasions and that also from 2013 onwards and even now the Panchayat is passing orders detrimental to the petitioner and he is not able to start quarrying work even now. It is the case of the petitioner that the petitioner obtained licence and permission from all statutory authorities and even then the Panchayat is passing orders restraining the petitioner from starting the quarry works. It is the case of the petitioner that the Panchayat is taking action in violation of the direction of this Court in Ext.P2 judgment. Hence this writ petition. 3. Heard the learned Senior Counsel Sri.George Poonthottam instructed by Smt.Nisha George. I also heard Sri.T.R. Harikumar, appearing for respondents 1 and 2. 4. The learned Senior Counsel takes me through Exts.P1 and P2 judgments. The learned Senior Counsel submitted that in the light of Ext.P2 judgment, the Panchayat has no right, as of now, to cancel the licence obtained by the petitioner but can only take steps to abate nuisance and avert **4** ## **W.P.(C).No.1809/2022** danger if any, as is permitted by the provisions of the Kerala Panchayat Raj Act. It is the definite case of the Senior Counsel that the Panchayat has no power to restrain the activities of the quarry and they can only avert and abate nuisance, if any. Subsequently the Panchayat issued Ext.P3(e) licence. Thereafter the Panchayat issued Ext.P4 with Ext.P5 notice. Ext.P4 is an order directing the petitioner to stop further activities. Ext.P6 is the reply to Ext.P5. Thereafter Ext.P7 show cause notice was issued in which 24 defects were alleged. The petitioner submitted Ext.P8 reply in which he responded to all the 24 defects alleged in Ext.P7. Thereafter Ext.P9 order was passed, without considering the reply submitted by the petitioner, is the grievance. According to the petitioner, the Panchayat has no authority to stop the functioning of the quarry when all statutory authorities granted permission for quarrying. According to the petitioner, the Panchayat can only abate nuisance and avert danger if any, as is permitted by the provisions of the Kerala Panchayat Raj Act. 5. The learned counsel for the Panchayat takes me through the counter affidavit and Ext.R1(b) injunction order **W.P.(C).No.1809/2022** **5** passed by the Vacation Court of Thalassery. The learned counsel appearing for the Panchayat submitted that in the light of Ext.R1(b), the petitioner cannot continue quarrying in this area. The learned counsel also submitted that the Panchayat only acted in accordance to law and there is nothing to interfere with Ext.P9 order. 6. This Court considered the contentions of the petitioner and the respondents. I perused Ext.P7 show cause notice and also the alleged defects noted in Ext.P7 as Items 1 to 24. Thereafter I perused Ext.P8 reply in which the petitioner gave definite answers to the alleged defects mentioned in Ext.P7. Thereafter the Panchayat passed Ext.P9 order. It will be better to extract the relevant portion: “തുടർനന താങ്കൾകക സൂചന 8 പ്രകാരം ഒരു കാരണം കാണിക്കൽ ന ോട്ടീസ് നൽകിയതിൽ താങ്കൾ സൂചന 9 പ്രകാരം . മറുപടി നൽകിയിട്ടുള്ളതാണല്ലോ പ്രസ് മറുപടി തൃപ്തികരമല്ലാത് ിനാൽ പാരസ്ഥിതിക അനുമതി പത്രത്തിലെ വ്യവസ്ഥകൾ ലംഘിച്ചുകകൊള്ള പ്രവൃത്തികൾ തുടരുന്നതിനാലുംപ പൊതുജനങ്ങൾക്കും പ്രദേശത്തിനും ഹാനികരമായിട്ടുള്ളതും ആവാസ വ്യവസ്ഥയക്ക ദോഷകരമായിട്ടുള്ളതും ആയ പ്രവൃത്തികൾ . തുടർന്നുവരികയാണ് പപൊതുജനങ്ങൾക്കും പരിസ്ഥിതിക്കും പ്രദേശത്തിനും ആവാസ വ്യവസ്ഥയ്ക്കും ഒരു പ പോലെ **W.P.(C).No.1809/2022** **6** ശല്യമായിവർത്തിക്കുന്ന നിയമലംഘനം തടയുക എന്നത് . പഞ്ചായത്തിന്റെ പ്രഥമ കർത്തവ്യമാണ് അതുകകൊണട താങ്കൾ മാവുഞ്ചാൽ എന്ന സ്ഥലതതറീസ് 292/1 എയിൽ 1.1028 ഹെ ക്ടർ സ്ഥലത്തു നിന്നും കരിങ്കൽ ഖനനം നടത്തുന്നതുമായി ബന്ധപ്പെട്ട പ്രവർത്തികൾ നിർത്തി വെ ക്കേണ്ട സാഹചര്യം ഉണ്ടായിരിക്കുന്നു.” 7. On a perusal of the above order, I am of the firm view that it is not an order in accordance to law and that also after adverting to the reply submitted by the petitioner in Ext.P8. The Panchayat simply says that the reply submitted by the petitioner is not acceptable. When the Panchayat in the show cause notice narrated certain defects and the petitioner again gave a reply to those alleged defects by separate heading in Ext.P8, it is the bounden duty of the Panchayat to consider those explanation and thereafter proceed in accordance with law. Moreover I perused Ext.P2 judgment. It will be better to extract paragraphs 4 and 5 of the Ext.P2: “4. When I consider the afore submissions, it is clear that the entire action taken by the Panchayat, as explained by them in their statement dated 20.02.2019, was without adverting to the impact of the judgment of the Full Bench of this Court in Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)]. 5. Going by the said judgment, the Panchayat has no **7** ## **W.P.(C).No.1809/2022** right, as of now, to reject the licence of the petitioner but can only take steps to abate nuisance and to avert danger, as is permitted by the provisions of the Kerala Panchayat Raj Act. ” 8. This Court clearly stated in Ext.P2 judgment that the Panchayat can only abate nuisance and to avert danger, as is permitted by the provisions of the Kerala Panchayat Raj Act. In the light of Ext.P2 judgment, the Panchayat can act only in accordance to the directions of this Court. Therefore, according to me, Exts.P4 and P9 are to be set aside and the Panchayat has to reconsider the matter strictly in accordance to the directions in Ext.P2 judgment. Therefore, this writ petition is allowed in the following manner: 1. Exts.P4 and P9 are set aside. 2. The 2[nd] respondent is directed to reconsider the matter if required, after adverting to the reply in Ext.P8 to the alleged defects mentioned in Ext.P7 and that also strictly in accordance with the directions in paragraphs 4 and 5 of Ext.P2 judgment. 3. The orders if any passed by the 2[nd] respondent **8** ## **W.P.(C).No.1809/2022** will be subject to the further orders from the civil court in Ext.R1(b) suit. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **9** ## **W.P.(C).No.1809/2022** ## **`APPENDIX OF WP(C) 1809/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.17837/2013 DATED 02.09.2013. Exhibit P2TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.25092/2018 DATED 16.10.2019. Exhibit P3TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN RP NO.1085 OF 2019 IN WPC NO.25092/2018 DATED 12.11.2019. Exhibit P3 ATRUE COPY OF THE ENVIRONMENTAL CLEARANCE NO.10/2018 DATED 08.03.2018 ISSUED TO THE PETITIONER BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KANNUR. Exhibit P3 BTRUE COPY OF THE RENEWED CONSENT TO OPERATE ISSUED ON 04.04.2018 BY THE KERALA POLLUTION CONTROL BOARD. Exhibit P3 CTRUE COPY OF THE EXPLOSIVE LICENSE ISSUED TO THE PETITIONER DATED 17.06.2020 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES. Exhibit P3DTRUE COPY OF THE QUARRYING LEASE ISSUED TO THE PETITIONER DATED 10.02.2021 ALONG WITH SURVEY MAP. Exhibit P3 ETRUE COPY OF THE LICENSE NO.A2- 1841/2021-22-82 ISSUED TO THE PETITIONER DATED 17.04.2021. Exhibit P4TRUE COPY OF THE ORDER NO.A2-639/19 DATED 22.10.2021 ISSUED BY THE SECRETARY NADUVIL GRAMA PANCHAYAT. Exhibit P5COPY OF THE NOTICE NO.A2-639/19 ISSUED BY THE RESPONDENT PANCHAYAT DATED 23.10.2021. Exhibit P6COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 01.112021 TO THE RESPONDENT PANCHAYAT. Exhibit P7COPY OF THE ORDER NO.A2-639/19 DATED 16.11.2021 ISSUED BY THE 2ND RESPONDENT. ``` **10** ## **W.P.(C).No.1809/2022** ``` Exhibit P8COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYAT DATED 25.11.2021 ALONG WITH RECEIPT. ``` ``` Exhibit P9COPY OF THE ORDER NO.A2.6482/21 DATED 06.01.2022 ISSUED BY THE RESPONDENT PANCHAYAT. ``` ``` Exhibit P10COPY OF THEMEDICAL TREATMENT CERTIFICATE OF THE PETITIONER’S WIFE AT THE MALABAR CANCER CENTRE DATED 18.02.2022. ``` ``` RESPONDENTS’ EXHIBITS ``` ``` Exhibit-R1(a)COPY OF THE PHOTOGRAPH WITH RESPECT TO THE QUARRYING SITE OF THE PETITIONER Exhibit-R1(b)COPY OF THE INJUNCTION ORDER DATED 06- 05-2021 IN I.A NO.2 OF 2021 IN O.S NO.212 OF 2021, OF VACATION COURT, THALASSERY. ``` ``` Exhibit-R1(c)COPY OF THE COMPLAINT DATED 25-10-2021 FILED BY THE RESIDENTS BEFORE THE 1ST RESPOPNDENT PANCHAYAT. ``` ``` Exhibit-R1(d)COPY OF THE COMPLAINT DATED 06-10-2021 FILED BY THE WARD MEMBER BEFORE THE 2ND RESPONDENT. ```