High Court of KeralaSingle Judge2020-09-16Writ petition disposed of; directions issued fo...

CEEYEN STONE CRUSHER v. STATE OF KERALA & ORS.

Case / Petition Number:WP(C).No.3811 OF 2020(B)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.MUHAMED MUSTAQUE
Judgment Date: 2020-09-16
Court Decision / Holding: This writ petition is disposed of as above. The Secretary shall consider a fresh application for license in light of the judgment in Tomy Thomas v. State of Kerala and Ramapuram Grama Panchayat v. St. Basil Industries, take a decision within four weeks from receipt of the application, after hearing the 6th respondent, and in light of Tomy Thomas and Ramapuram decisions. The petitioner's application for license for 2019-2020 period is not to be granted; the petitioner's fresh application should be submitted and processed.
Final Disposition: Writ petition disposed of; directions issued for fresh application and decision within four weeks with hearing of 6th respondent; Panchayat's Ext.P10 quashed as unsustainable in light of amended law and Tomy Thomas judgment.

Parties to the Case

Appellants / Petitioners

CEEYEN STONE CRUSHER

Respondents

State of Kerala, represented by Secretary, Industrial Department, Government Secretariat, Thiruvananthapuram-695 001
Kinannoor Karinathalam Grama Panchayath, represented by its Secretary, Karindalam P.O., Kasaragod-671 314
The Secretary, Kinannoor Karinathalam Grama Panchayath, Karindalam P.O., Kasaragod-671314
The Senior Geologist, Department of Mining and Geology, Civil Station, Kasaragod-671123
The Environmental Engineer, Kerala State Pollution Control Board, District Office, Kanhangad, Kasaragod-671315
Kolamkulam Melepoiyil Omanganam Kudivell aa Shuchithwa Padhathi Gunabhokthru Samithi, Reg. No. KSR/CA/459/2015, Kilimanoor Karinthalam Grama Panchayath, Kasaragod District-671533, represented by its Secretary Somasundaran V.P.
Kinannoor Grama Panchayath Committee, represented by its President, Karindalam P.O., Kasaragod-671314

Legal Representation & Advocates

Counsels for Petitioners

• Sri. C.P. Peethambaran
• Sri. S. Sreekumar (Sr.)

Counsels for Respondents

• Sri. T. Madhu
• Sri. M. Gangadhar an Nair
• Sri. Jose J. Mathaikal

Case Synopsis & Summary

The writ petition challenges Ext.P10, a decision of the Kinannoor Karinathalam Grama Panchayath denying a licence to operate a quarry for the 2019-2020 period. The petitioner asserts it had environmental clearance and other statutory permissions necessary for operation. The Panchayath committee, however, rejected the permit on 27.01.2020. The court notes that amendments to Section 233 of the Kerala Panchayath Raj Act, 1994 and Rule 12 of the Kerala Panchayat Raj Rules, 1996 have shifted the power to grant or refuse permission from the Village Panchayat to the Secretary or an officer authorised by him, replacing the earlier provision which permitted a village body to refuse. The Full Bench in Tomy Thomas v. State of Kerala (2019) 3 KLT 987 held that the Secretary must conduct an enquiry, report to the Village Panchayat, and that the Village Panchayat should grant permission expeditiously, and that the sub-clauses enabling refusal were omitted; this indicates that the power to refuse by the Panchayat has been taken away. Consequently, the extant Panchayath decision is unsustainable. The court directs the petitioner to submit a fresh application and directs the Secretary to consider it within four weeks, after hearing the 6th respondent, and in light of Tomy Thomas and Ramapuram Grama Panchayat v. St. Basil Industries (P) Ltd.

Provisions of Law Cited

Section 233 of the Kerala Panchayat Raj Act, 1994Rule 12 of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the amended sub-section (3) of Section 233 of the Kerala Panchayath Raj Act, 1994 and Rule 12 of the 1996 Rules have removed the power of the Village Panchayat to refuse permission; The Secretary or an officer authorised by him should conduct enquiry and submit a report to the Village Panchayat; The Village Panchayat may grant permission expeditiously; With the license period having expired for 2019-2020, the petitioner should be allowed to file a fresh application; The judgment in Tomy Thomas v State of Kerala (Full Bench) is relied upon to support that the Secretary is the competent authority; The Ramapuram Grama Panchayat decision is also to be considered; The court should set aside Ext.P10 and direct fresh application.

Contentions of Respondents

The respondents contend that the Panchayat's decision to refuse license is a matter of local governance and should be sustained; they emphasize pre-amendment rules and that the Panchayat's decision is binding unless contrary; the case must be decided as per law; the need to provide for checks and eventually consider a fresh application; They assert that the period of license has lapsed and the matter must be addressed with new permit process.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Tomy Thomas v. State of Kerala	2019 (3) KLT 987	Positive	Full Bench held amended Sec. 233(3) removes power to refuse from Village Panchayat; supports Secretary's competence to decide.
Ramapuram Grama Panchayat v. St. Basil Industries (P) Ltd	2016 (2) KLT 219	Mentioned Only	Cited as guidance; used to support considerations for fresh application but not explicitly applied as binding holding in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** # **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **WP(C).No.3811 OF 2020(B)** ## **PETITIONER:** **CEEYEN STONE CRUSHER, 40/1, MUNDATHADAM, PARAPPA, KASARAGOD-671 533, REPRESENTED BY ITS MANAGING PARTNER, C. NARAYANAN, AGED 60 YEARS, S/O. KUMARAN, SINEESH NIVAS, CHAYYOTH P.O., NEELESWARAM KASARAGOD.** **BY ADVS. SRI.C.P.PEETHAMBARAN SRI.S.SREEKUMAR (SR.)** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY, INDUSTRIAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 KINANNOOR KARINTHALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KARINDALAM P.O., KASARAGOD-671 314.** - **3 THE SECRETARY, KINANNOOR KARINTHALAM GRAMA PANCHAYATH, KARINDALAM P.O., KASARAGOD-671314.** - **4 THE SENIOR GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, CIVIL STATION, KASARAGOD-671123.** - **5 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KANHANGAD, KASARAGOD-671315.** **WP(C).No.3811 OF 2020(B)** ..2.. **6 KOLAMKULAM MELEPOYIL OMANGANAM KUDIVELLA SHUCHITHWA PADHATHI GUNABHOKTHRU SAMITHI, REG. NO. KSR/CA/459/2015, KILIMANOOR KARINTHALAM GRAMA PANCHAYATH, KASARAGOD DISTRICT-671533, REPRESENTED BY ITS SECRETARY SOMASUNDARAN V.P.** - **7 KINANNOOR GRAMA PANCHAYATH COMMITTEE, REPRESENTED BY ITS PRESIDENT, KARINDALAM P.O., KASARAGOD-671 314.** **R2-3 BY ADV. SRI.T.MADHU R2-3 BY ADV. M.GANGADHARAN NAIR R6 BY ADV. SRI.JOSE J.MATHAIKAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.3811 OF 2020(B)** ..3.. ## **JUDGMENT** ## **Dated this the 16th day of September 2020** This writ petition was filed challenging Ext.P10 decision of Kinannoor Karinathalam Grama Panchayath on an application to grant a licence to run the quarry. The application was pertaining to the period 2019-2020. This period is over. 2. The petitioner obtained environmental clearance and other necessary permits under law for the operation of the quarrying unit. The Panchayath committee took a decision to reject the permit. The purport of the application appears to be under Sec. 233 of the Kerala Panchayat Raj Act, 1994 read with Rule 12 of Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996. 3. The decision of the committee was on 27.01.2020. 4. It is to be noted that the statutory provisions under Sec. 233 of the Kerala Panchayt Raj Act, 1994 and Rule 12 of Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities **WP(C).No.3811 OF 2020(B)** ..4.. and Other Services) Rules, 1996 have undergone amendment. The power of the Village Panchayath to refuse the permission has been taken away and has been given to the secretary. It is the Secretary, is the competent authority to take such a decision. In such circumstances, the decision of the Panchayath committee is legally unsustainable and it has to be set aside. 5. The Full Bench of this Court in **Tomy Thomas v. State of Kerala [ 2019 (3) KLT 987]** held in paragraph 22 as follows: _**“Under the amended provisions of sub-section (3) of S.233 of the Act, the Secretary or the officer authorised by him should conduct an enquiry and submit report to the Village Panchayat as to whether the establishment of the factory, workshop, workplace or other installation of machinery or manufacturing plant, for which the permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The Village Panchayat on consideration of the application and the report of the Secretary and of such other authorities as specified in sub-section (4) may as expeditiously as possible, at any rate within thirty days grant the permission either absolutely or subject to such conditions as it thinks fit to impose. Sub-clause (a) and (b) of sub-section (3) contained in the unamended provisions were omitted through the amendment. Sub-clause (b) of sub-section (3) which enabled the Village Panchayat to refuse the permission for reason to be recorded, was omitted from the statute book. It gives a clear indication that the power of the**_ ..5.. ## **WP(C).No.3811 OF 2020(B)** ## _**Village Panchayat to refuse the permission has been taken away by the legislature. “**_ 6. In the light of the Full Bench decision, the Secretary of the Panchayath cannot decline the application for licence. 7. In the light of the fact that the period of licence applied is over, the petitioner shall submit afresh application for licence. If such application is filed, the Secretary shall consider the application after adverting to the judgment of this Court in **Tomy Thomas v. State of Kerala [ 2019 (3) KLT 987]** as well as in **Ramapuram Grama Panchayat v. St. Basil Industries (P) Ltd [2016 (2) KLT 219]** and take a fresh decision. Such a decision shall be taken within 4 weeks from the date of receipt of such application from the petitioner. 6[th] respondent in the writ petition also be heard before considering the application. This writ petition is disposed of as above. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** ## **JUDGE** **PR** ## **WP(C).No.3811 OF 2020(B)** ..6.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEED OF PARTNERSHIP ALONG WITH THE REGISTRATION OF THE PETITIONER FIRM.** **EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 25/05/2018 ISSUED BY THE DISTRICT ENVIRONMENTAL IMPACT ASSESSING AUTHORITY, KASARAGOD.** - **EXHIBIT P3 TRUE COPY OF THE LETTER OF INTENT ISSUED BY THE 5TH RESPONDENT DATED 15/01/2018.** - **EXHIBIT P4 TRUE COPY OF CONSENT TO OPERATIVE DATED 17/07/2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P5 TRUE COPY OF THE EXPLOSIVES LICENSE ISSUED BY THE MINISTRY OF COMMERCE AND INDUSTRY DATED 24/01/2018.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 14/02/2019 IN WPC NO.33940/2018 OF THIS HON'BLE COURT.** **EXHIBIT P7 TRUE COPY OF THE D & O LICENSE DATED 13/03/2019 ISSUED BY THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.** **EXHIBIT P8 TRUE COPY OF THE RESOLUTION NO. 19/1 DATED 15/07/2019 OF THE PANCHAYAT COMMITTEE ALONG WITH ITS ENGLISH TRANSLATION.** ## **WP(C).No.3811 OF 2020(B)** ..7.. **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DTED 18/11/2019 IN WPC NO.29772/2019 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE ORDER NO.2683/19/S.C2 DATED 28/01/2020 OF THE 3RD RESPONDENT ALONGWITH IS ENGLISH TRANSLATION. EXHIBIT P11 TRUE COPY OF THE RESOLUTION NO.6/1 DATED 1/10/2019 OF THE 2ND RESPONDENT PANCHAYATH.**