Cherupuzha Grama Panchayat v. Single Window Clearance Board, District Industries Centre, Thavakkara, Kannur; Geologist, Department of Mining and Geology; JAISAL M.P.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** ## **WP(C).No.11275 OF 2019(H)** ## **PETITIONER/S:** **CHERUPUZHA GRAMA PANCHAYATH CHERUPUZHA, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY IN CHARGE, KOUSALYA S.M., AGED 53 YEARS, W/O. BIJU, KANNIVAYAL POST, KASARGODE DIST.** **BY ADVS. SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT** ## **RESPONDENTS:** **1 SINGLE WINDOW CLEARANCE BOARD DISTRICT INDUSTRIES CENTRE, THAVAKKARA, KANNUR-670 002, REPRESENTED BY ITS CONVENER. 2 THE CONVENER, SINGLE WINDOW CLEARANCE BOARD, DISTRICT INDUSTRIES CENTRE, THAVAKKARA, KANNUR-670 002 3 GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, CIVIL STATION, E-BLOCK, KANNUR-670 002** **4 JAISAL M.P., AGED 36 YEARS, S/O. HAMSA M.P., MANAGING PARTNER, RAJAGIRI GRANITES, KAMMALI, KANAMVAYAL P.O, CHERUPUZHA VIA, KANNUR - 670511.** **R2 BY ADV.JUSTIN MATHEW, GOVERNMENT PLEADER R3 BY SRI.K.V.SOHAN, STATE ATTORNEY R4 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R4 BY ADV. SMT.NISHA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.11275 OF 2019(H) 2 ## **JUDGMENT** Cherupuzha Grama Panchayat, the petitioner herein, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P16 order dated 02.03.2019 of the 1[st] respondent Single Window Clearance Board, Kannur and Ext.P17 certificate dated 02.03.2019 issued by the Convener of the said Board, which is one issued pursuant to Ext.P16 order. 2. Going by the averments in the writ petition, the 4[th] respondent was granted licence by the Grama Panchayat for conducting quarrying operation in Resurvey No.127/1 in Taliparamba Taluk in Kannur District, till the year 2016. Alleging indiscriminate mining, in violation of the statutory norms and disrupting the normal life of the local residents, the Grama Panchayat issued Ext.P1 show cause notice dated 28.11.2015, requiring the 4[th] respondent to show cause why the licence granted for conducting quarrying operation shall not be cancelled. Ext.P1 notice was followed by Ext.P2 notice dated 01.01.2016, pointing out that the quarrying operation by the 4[th] respondent is causing air and water pollution and also damage to the houses situated nearby. The 4[th] respondent submitted an application for WP(C)No.11275 OF 2019(H) 3 renewal of licence, which was rejected by the Secretary of the Grama Panchayat by Ext.P3 order dated 29.02.2016. The said order was under challenge before the Panchayat Committee, by filing a statutory appeal. The 4[th] respondent had approached this Court in W.P.(C) No.12553 of 2017. The said writ petition was disposed of by directing the Panchayat Committee to consider Ext.P4 appeal, vide Ext.P5 judgment dated 07.04.2017. Pursuant to the direction contained in Ext.P5 judgment, the Panchayat Committee considered that appeal and passed Ext.P6 order, confirming Ext.P3 order of the Secretary. After Ext.P6 order, the 4[th] respondent approached the 1[st] respondent Single Window Clearance Board, invoking the provisions under the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (Act 5 of 2000). On 03.05.2018, the 1[st] respondent Board decided to direct the Grama Panchayat to reconsider the request made by the 4[th] respondent for D&O licence and the same was forwarded to the Secretary of the Grama Panchayat, along with Ext.P8 covering letter dated 26.05.2018. 3. On receipt of Ext.P8 communication of the 1[st] respondent Board, the Secretary of the Grama Panchayat issued WP(C)No.11275 OF 2019(H) 4 Ext.P9 communication dated 19.06.2018, requiring the 4[th] respondent to appear before the Panchayat Committee on 26.06.2018. The 4[th] respondent send Ext.P10 request dated 26.06.2018 seeking adjournment on account of personal inconvenience. The Grama Panchayat issued Ext.P11 notice dated 26.06.2018 requiring the 4[th] respondent to appear for the personal hearing scheduled on 30.06.2018. The 4[th] respondent appeared before the Panchayat Committee and submitted Ext.P12 argument notes dated 30.06.2019. Thereafter, the Secretary of the Grama Panchayat issued Ext.P13 order dated 30.06.2018, rejecting the application for licence made by the 4[th] respondent. The said fact was also communicated to the 2[nd] respondent, the Convener of the 1[st] respondent Board, vide Ext.P14 communication dated 23.07.2018. 4. The 4[th] respondent filed W.P.(C) No.18691 of 2018 before this Court by contending that he is entitled for deemed licence. On 15.01.2019, the 1[st] respondent Board took Ext.P15 decision to grant licence to the 4[th] respondent, after obtaining a letter from the Licensing Authority under the Explosives Act on the no-objection certificate that has to be issued by that Authority. Based on Ext.P15 decision, the 2[nd] respondent, who is WP(C)No.11275 OF 2019(H) **==> picture [7 x 7] intentionally omitted <==** the Convener of the 1[st] respondent Board, issued Ext.P16 proceedings granting deemed licence to the 4[th] respondent till 01.03.2020, subject to the conditions stipulated therein. The document marked as Ext.P17 is the certificate issued by the 1[st] respondent Board in terms of Ext.P15 decision, evidencing the grant of deemed licence to the 4[th] respondent, with validity till 01.03.2020. Exts.P15 to P17 are issued in the proceedings initiated by the 1[st] respondent Board, on Ext.P18 application dated 05.03.2018 made by the petitioner. The document marked as Ext.P19 is a copy of W.P.(C) No.18691 of 2018 filed by the 4[th] respondent, seeking a writ of mandamus commanding the 1[st] respondent Board and the 2[nd] respondent Convener to issue licence in the physical form, for enabling him to commence the quarrying operations in pursuance to Ext.P18 application dated 05.03.2018. The Grama Panchayat was not made a party to that writ petition. The Secretary of the Grama Panchayat was later impleaded as additional 3[rd] respondent, who filed Ext.P20 counter affidavit, opposing the reliefs sought for in that writ petition. Challenging Exts.P16 and P17, the petitioner Grama Panchayat is before this Court in this writ petition. 5. On 12.06.2019, when this writ petition came up for WP(C)No.11275 OF 2019(H) 6 consideration, learned counsel for the 4[th] respondent sought time to file counter affidavit. This Court granted an interim stay of the operation and all further proceedings pursuant to Exts.P16 and P17 for a period of one month. The said interim order was extended until further orders on 18.10.2019. 6. The 4[th] respondent has filed a counter affidavit opposing the reliefs sought for in this writ petition, which was accompanied by I.A.No.1 of 2019 seeking an order to modify/ vacate the interim order dated 12.06.2019. Along with the counter affidavit, the 4[th] respondent has produced the minutes of the meeting of the 1[st] respondent Board held on 03.05.019 and 25.09.2019, as Exts.R4(g) and R4(h) respectively, in which it is recorded that the Grama Panchayat was represented by its Secretary. In the counter affidavit, the 4[th] respondent has absolutely no case that, the meeting of the 1[st] respondent Board held on 15.01.2019 was attended by the President of the Grama Panchayat, who is one among the members of that Board. 7. The petitioner has filed reply affidavit, reiterating the contentions raised in the writ petition. 8. Respondents 1 and 2 have also filed counter affidavit, through the learned State Attorney, justifying the action of the 1[st] WP(C)No.11275 OF 2019(H) 7 respondent Board in taking Ext.P15 decision in a meeting which was not attended by the President of the Grama Panchayath. The said respondents would contend that an intimation regarding the meeting scheduled on 15.01.2019 was forwarded to the Grama Panchayat, in due course. Respondents 1 and 2 would also place reliance on the judgment of this Court in **Boby Uthup and another v. State of Kerala and others** (judgment dated 22.07.2013 in W.P.(C).No.16074 of 2012). The document placed on record as Ext.R1(f) is the relevant portion of the minutes of the meeting of the 1[st] respondent Board held on 15.01.2019. 9. Heard the learned counsel for the petitioner Grama Panchayat, the learned Government Pleader for respondents 1 and 2, the learned State Attorney for the 3[rd] respondent and also the learned Senior Counsel for the 4[th] respondent. 10. Act 5 of 2000 was enacted by the State Government to provide special provision for speedy issue of various licences, clearances and certificates required for setting up of industrial undertakings in the State of Kerala and for the constitution of Industrial Township Area Development Authorities and for matters connected therewith. Clause (c) of Section 2 of the Act defines 'District Board' as the District Single Window Clearance Board WP(C)No.11275 OF 2019(H) 8 constituted under sub-section (1) of Section 4. As per subsection (1) of Section 4, for the purpose of speedy issue of various licences, clearances or certificates required under the various State enactments for setting up of small scale industrial undertakings having capital investment of more than two lakhs rupees in each district of the State, the Government may, by notification, constitute a District Single Window Clearance Board for each district in the State. As per sub-section (2) of Section 4, every District Single Window Clearance Board shall be a body corporate by the name of the District for which it is constituted, having perpetual succession and a common seal. 11. As per sub-section (3) of Section 4 of Act 5 of 2000, every District Single Window Clearance Board shall consist of the members enumerated in clauses (a) to (r) of that sub-section. As per clause (c) of sub-section (3), the President of the Grama Panchayat concerned or Chairperson of the Municipality concerned shall be the member of the District Board, in cases where licence is required from the local bodies. 12. As per sub-section (4) of Section 4 of Act 5 of 2000, the Collector of the District shall be the Chairman and the General Manager, District Industries Centre shall be the Convener of the WP(C)No.11275 OF 2019(H) 9 District Board. As per sub-section (5) of Section 4, the District Board shall meet at such time and place to be fixed by the Chairman of the District Board and shall observe such procedure in regard to its transaction of business as may be made by the bye-laws. Section 8 of Act deals with powers and functions of the District Board. 13. By the Kerala Investment Promotion and Facilitation (No.2) Act, 2018 (Act 14 of 2018), certain amendments were made to Act 5 of 2000. After the amendment, Act 5 of 2000 provides special provisions for speedy issue of various licences, clearances and certificates required for setting up of industrial undertakings, including renewal thereof required for setting up and for expansion, diversification and modernisation of enterprises in the State of Kerala and for the constitution of Industrial Township Area Development Authority and the matters connected therewith. Corresponding amendments are made in various provisions of Act 5 of 2000, by Act 14 of 2018. 14. Ext.P18 application made by the 4[th] respondent is one dated 05.03.2018, i.e., one made after the amendment of Act 5 of 2000 by Act 14 of 2018, which came into force on 20.10.2017. Ext.P16 proceedings of the 2[nd] respondent is one issued based on WP(C)No.11275 OF 2019(H) 10 Ext.P15 decision of the 1[st] respondent Board in its meeting held on 15.01.2019. As evident from Ext.P15 minutes, that meeting was not attended by the President of the Grama Panchayat. In the counter affidavit filed by respondents 1 and 2, it is contended that though the President of the Grama Panchayat was absent in that meeting, the objection raised by the Grama Panchayat has also been considered by the 1[st] respondent Board, while taking Ext.P15 decision. 15. In the counter affidavit, respondents 1 and 2 have no specific case that the notice of the meeting held on 15.01.2019 was sent to the President of the Grama Panchayat. They would contend that the Secretary of the Grama Panchayat or the Junior Superintendent had attended all the meetings of the 1[st] respondent Board. It is the President of the Grama Panchayat who is a member of the 1[st] respondent Board, in terms of clause (c) of sub-section (3) of Section 4 of Act 5 of 2000, and any decision taken by the 1[st] respondent Board in cases where licence is required from the Grama Panchayat shall be made in a meeting convened with due notice to the President of the Grama Panchayat, who shall attend the meeting in-person, and not through an authorised representative. WP(C)No.11275 OF 2019(H) 11 16. Relying on the judgment of this Court in **Boby Uthup and another v. State of Kerala and others** (judgment dated 22.07.2013 in W.P.(C)No.16074 of 2012), it is contended by respondents 1 and 2 that the presence of a representative of the Grama Panchayat in the meeting of the District Board is sufficient in order to meet the requirement of clause (c) of sub-section (3) of Section 4 of Act 5 of 2000. 17. In **Boby Uthup** , this Court was dealing with a case in which a decision was taken in the meeting of the District Board held on 27.03.2012 directing the Grama Panchayat to grant permission to the hollow brick manufacturing unit of the party respondent, within 15 days. When no action was taken by the Grama Panchayat, the party respondent submitted another application before the District Board, which was considered in the meeting held on 11.05.2012. This Court found that the representative of the Panchayat was present in that meeting, which means that the Panchayat was aware of the holding of such meeting. That apart, a direction was issued in the meeting held on 27.03.2012, even before the impugned order dated 11.05.2012 was passed. 18. In the instant case, Ext.P15 decision to grant licence to WP(C)No.11275 OF 2019(H) 12 the 4[th] respondent was taken in the meeting of the 1[st] respondent Board, which was not attended by the President of the Grama Panchayat. As already noticed, respondents 1 and 2 have no specific case that the notice of the meeting held on 15.01.2019 was sent to the President of the Grama Panchayat. It is the President of the Grama Panchayat who is a member of the 1[st] respondent Board, in terms of clause (c) of sub-section (3) of Section 4 of Act 5 of 2000 and any decision taken by the 1[st] respondent Board in cases where licence is required from the Grama Panchayat shall be made in a meeting convened with due notice to the President of the Grama Panchayat, who shall attend the meeting in-person, and not through an authorised representative. In such circumstances, Ext.P15 decision taken by the 1[st] respondent Board and Exts.P16 and 17 consequential proceedings issued by the 2[nd] respondent, who is the Convenor of the 1[st] respondent Board, cannot be sustained in law. It is for the 1[st] respondent Board to reconsider the matter with notice to the President of the petitioner Grama Panchayat and also to the 4[th] respondent. In such circumstances, this writ petition is disposed of, by setting aside Exts.P15, P16 and P17 and by directing the 1[st] WP(C)No.11275 OF 2019(H) **==> picture [13 x 7] intentionally omitted <==** respondent Board to reconsider Ext.P18 application made by the 4[th] respondent, with notice to the President of the petitioner Grama Panchayat and also the 4[th] respondent and take an appropriate decision, strictly in accordance with law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K.NARENDRAN** JV **JUDGE** WP(C)No.11275 OF 2019(H) 14 ## **APPENDIX OF WP(C) 11275/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE NOTICE DATED 28.11.2015 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.** **EXHIBIT P2 THE TRUE COPY OF THE NOTICE DATED 01.01.2016 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT. EXHIBIT P3 THE TRUE COPY OF THE DECISION DATED 29.02.2016 OF THE PETITIONER. EXHIBIT P4 THE TRUE COPY OF THE APPEAL DATED 13.04.2016 S SUBMITTED BY THE 4TH RESPONDENT BEFORE THE PANCHAYATH BOARD, CHERUPUZHA GRAMA PANCHAYATH. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 07.04.2017 IN WPC NO. 12553 /2017 OF THIS HON'BLE COURT. EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 20.5.2017 IN APPEAL NO. A1-1116/2016 OF THE CHERUPUZHA GRAMA PANCHAYATH, KANNUR. EXHIBIT P7 THE TRUE COPY OF THE COMMUNICATION DATED 12.04.2018 ISSUED BY THE PETITIONER TO THE DISTRICT COLLECTOR, KANNUR. EXHIBIT P8 THE TRUE COPY OF THE DECISION ATTACHED ALONG WITH THE COMMUNICATION ISSUED TO THE PETITIONER BY THE GENERAL MANAGER OF THE DISTRICT INDUSTRIAL CENTRE DATED 04.06.2018. EXHIBIT P9 THE TRUE COPY OF THE NOTICE DATED 19.06.2018 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE COMMUNICATION DATED 26.06.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P11 THE TRUE COPY OF THE NOTICE DATED 26.06.2018 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.** WP(C)No.11275 OF 2019(H) 15 - **EXHIBIT P12** **THE TRUE COPY OF ARGUMENT NOTES SUBMITTED BY THE 4TH RESPONDENT DATED 30.06.2018** **EXHIBIT P13** - **THE TRUE COPY OF THE ORDER DATED 30.06.2018 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT.** **EXHIBIT P14** - **THE TRUE COPY OF THE COMMUNICATION DATED 23.07.2O18 ISSUED BY THE PRESIDENT OF THE PETITIONER TO THE GENERAL MANAGER SINGLE WINDOW CLEARANCE BOARD.** - **EXHIBIT P15 THE TRUE COPY OF THE REPORT OF THE SINGLE WINDOW CLEARANCE BOARD DATED 16.01.2019.** - **EXHIBIT P16 THE TRUE COPY OF THE ORDER DATED 02.03.2019 IN B4 883/2018 OF THE PROCEEDINGS OF THE GENERAL MANAGER, KANNUR DISTRICT INDUSTRIAL CENTRE.** - **EXHIBIT P17 THE TRUE COPY OF THE CERTIFICATE NO. B4/883/2018 ISSUED BY THE SINGLE WINDOW CLEARANCE BOARD IN FAVOUR OF THE 4TH RESPONDENT.** - **EXHIBIT P18 THE TRUE COPY OF THE APPLICATION DATED 05.03.2018 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P19** - **THE TRUE COPY OF THE WRIT PETITION DATED 06.06.2018 IN WPC 18691/2018 OF THIS HON'BLE COURT WITHOUT EXHIBITS.** - **EXHIBIT P20** - **THE TRUE COPY OF THE COUNTER AFFIDAVIT IN WPC NO. 18691/2018 OF THIS HON'BLE COURT FILED BY THE PETITIONER DATED 25.03.2019 WITHOUT EXHIBIT.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) TRUE COPY OF THE INTENT DATED 22.12.2017 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT R4(B) TRUE COPY OF THE CONSENT VARIATION ORDER BEARING CONSENT NO.PCB/KNR/IOCR/444/2016 DATED 1.3.2018 ISSUED BY THE** WP(C)No.11275 OF 2019(H) 16 ## **ENVIRONMENTAL ENGINEER.** ## **EXHIBIT R4(C)** **TRUE COPY OF THE RELEVANT PAGE OF EXPLOSIVE LICENCE DATED 14.3.2018 VALID UP TO 31.3.2019, ISSUED ON BEHALF OF THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM.** - **EXHIBIT R4(D) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE (EC) NO.7/2018 DATED 23.2.2018 ISSUED BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KANNUR.** - **EXHIBIT R4(E) TRUE COPY OF THE RECEIPT DATED 7.3.2018 ISSUED TO THE 4TH RESPONDENT UPON REMITTING RS.250/- BEFORE THE 1ST RESPONDENT.** - **EXHIBIT R4(F) TRUE COPY OF THE REPRESENTATION DATED 21.5.2018 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT R4(G) TRUE COPY OF THE RELEVANT PAGE OF THE NAMES OF PERSONS PARTICIPATED IN THE MEETING OF THE 1ST RESPONDENT HELD ON 3.5.2018.** - **EXHIBIT R4(H) TRUE COPY OF THE RELEVANT PAGE OF THE NAMES OF PERSONS PARTICIPATED IN THE MEETING OF THE 1ST RESPONDENT HELD ON 25.9.2018.** - **EXHIBIT R4(I) TRUE PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT, REPORTED IN 1994 SUPP (3) SCC 220.** - **EXHIBIT R4(J) TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2017 (4) KLT 918.** - **EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 26.03.2018 FROM THE SECRETARY OF CHERUPUZHA GRAMA PANCHAYAT TO RESPONDENT NO.1** - **EXHIBIT R1(B) TRUE COPY OF THE DECISION NO.212/2017 TAKEN BY THE PRESIDENT OF CHERUPUZHA GRAMA PANCHAYATH** WP(C)No.11275 OF 2019(H) 17 **EXHIBIT R1(C)** **TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 03.05.2018 ISSUED TO THE 4TH RESPONDENT UPON REMITTING RS.250/- BEFORE THE 1ST RESPONDENT.** **EXHIBIT R1(D) TRUE COPY OF THE ORDER DATED 30.06.2018 ALONG WITH COVERING LETTER DATED 23.07.2018** **EXHIBIT R1(E) TRUE COPY OF THE APPLICATION DATED 21.05.2018 FROM RESPONDENT NO.4 TO RESPONDENT NO.1** **EXHIBIT R1(F) TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 15.01.2019**