Delta M Sand Pvt. Ltd. v. Kunnathukal Grama Panchayat and its Secretary

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940** **WP(C).No. 10481 of 2018** ## **PETITIONER(S)** **DELTA M SAND PVT. LTD. VATTAKULAMALA, ANAVOOR P.O., NEYATTINKARA, THIRUVANANTHAPURAM - 695 124, REPRESENTED BY ITS MANAGING DIRECTOR, THOMAS PHILIP.** **BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.RONY JOSE** ## **RESPONDENT(S):** **1. KUNNATHUKAL GRAMA PANCHAYAT KARAKONAM P.O., THIRUVANANTHAPURAM - 695 504, REPRESENTED BY ITS SECRETARY.** **2. SECRETARY KUNNATHUKAL GRAMA PANCHAYAT, KARAKONAM P.O., THIRUVANANTHAPURAM - 695 504.** **R1&2 BY ADV. SRI.C.E.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10481 of 2018 (I)** ## ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. A TRUE COPY OF THE CONSENT DATED 26.10.2016 ISSUED BY THE POLLUTION CONTROL BOARD FOR CONDUCTING CRUSHER OPERATIONS AND WHICH IS VALID TILL 30.10.2019.** **EXHIBIT P2. A TRUE COPY OF THE D&O LICENSE DATED 31.03.2016 VALID TILL 31.03.2017 ISSUED BY THE 2ND RESPONDENT FOR CARRYING OUT CRUSHER UNIT.** **EXHIBIT P3. A TRUE COPY OF THE DECISION NO:B4-3270/2017 DATED 29.03.2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P4. A TRUE COPY OF THE ORDER DATED 05.04.2017 IN I.A 557/2017 IN APPEAL NO:307/2017 ISSUED BY THE TRIBUNAL FOR LSGI.** **EXHIBIT P5. TRUE COPY OF THE APPLICATION DATED 07.02.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5(A). TRUE COPY OF THE RECEIPT DATED 12.02.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P6. A TRUE COPY OF THE LETTER NUMBERED AS NO:B5/1171/18 DATED 16.02.2018.** **EXHIBIT P7. TRUE COPY OF THE LETTER DATED 22.02.2018 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P7(A). A TRUE COPY OF THE RECEIPT DATED 22.02.2018 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R2(A). A TRUE COPY OF THE APPLICATION DATED 26/3/2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS** **EXHIBIT R2(B). A TRUE COPY OF THE CONSENT TO OPERATE DATED 4/3/2014 OBTAINED BY THE PETITIONER FROM THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT R2(C).A TRUE COPY OF THE LETTER NO.PCB/TVM-DO/ICE/16100/2011 DATED 1/3/2018 FROM THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT R2(D ).A TRUE COPY OF THE LICENCE GRANTED BY THE DEPARTMENT OF FACTORIES DATED26/10/2016.** **EXHIBIT R2(E).A TRUE COPY OF THE NOC ISSUED BY THE ASSISTANT DIVISIONAL OFFICE FIRE & RESCUE DATED 12/3/2018.** **EXHIBIT R2(F). A TRUE COPY OF THE REGISTRATION CERTIFICATE NO.95/2017-18/RMCU/TVM/3177/M3/2017 DATED 28/3/2017.** **EXHIBIT R2(G).A TRUE COPY OF THE LETTER DATED 6/3/2018 SUBMITTED BY THE GENERAL MANAGER OF THE PETITIONER** **EXHIBIT R2(H) .A TRUE COPY OF THE DECISION OF THE PANCHAYATH VIDE NO.12(1) DATED 23/3/2008.** **EXHIBIT R2(A). A TRUE COPY OF THE COMMUNICATION NO.B5-1171/2018 DATED 26/3/2018 ISSUED BY THE 2ND RESPONDENT RESPONDENTS EXHIBITS:NIL** **//TRUE COPY//** **P.A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **................................................................... W.P.(C).No.10481 Of 2018 ..................................................................... Dated this the 4[th] day of April, 2018** ## **J U D G M E N T** The petitioner, who is stated to have been conducting a crusher unit in Kunnathukal village in Thiruvananthapuram district, states that he possesses all the necessary permissions and consents from the relevant statutory authorities for the purposes of conducting crushing operations. It is stated that he was initially granted a licence from the Panchayat to operate the crusher unit and the licence was valid till 31.03.2017. On the expiry of the said licence, the petitioner sought for a renewal of the licence but the application for renewal was rejected, inter alia, on the contention that there were objections from persons in the locality. The proceedings initiated by the petitioner against the said order of the Panchayat are pending before the Tribunal for Local Self Government Institution, where a stay was granted by the Tribunal against the order of the rejection by the respondent Panchayat. While so, the petitioner approached the 1[st] respondent Panchayat with an application for renewal of Dangerous and Offensive (D & O) licence for the year 2018-2019. Ext.P5 is the said application. 2 **W.P.(C).No.10481 Of 2018** While Ext.P5 application is dated 12.02.2018, the 2[nd] respondent by the communication dated 16.02.2018 (Ext.P6) required the petitioner to cure certain defects in the said application by producing various documents. The petitioner responded to the said communication by Ext.P7 letter dated 22.02.2018, whereby certain documents were produced by the petitioner in purported compliance with the defect notice issued to him by the respondent Panchayat. Thereafter, nothing was heard from the Panchayat till 26.03.2018, when by a communication of the same date, the petitioner was informed by the respondent Panchayat that a decision had been taken to reject his application for renewal of the D & O licence. It is the case of the petitioner in the writ petition that inasmuch as the Panchayat had not taken a decision on his application for renewal of licence within the statutory period contemplated under the Kerala Panchayat Raj Act and Rules, he was entitled to a deemed licence going by the decision of this Court in **Rajesh Ramachandran v. Corporation of Trivandrum [2008 (3) KLT 419]** was affirmed in **Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175]** . 2. A counter affidavit has been filed on behalf of the 3 **W.P.(C).No.10481 Of 2018** respondent Panchayat, wherein documents are produced to show that the petitioner was informed of the defects in his application for renewal of D & O licence and after considering the documents subsequently produced by the petitioner in support of his application for renewal of licence and considering then that a decision was taken by the respondent Panchayat not to renew the licence issued in favour of the petitioner. 3. I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the respondent Panchayat. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in view of the decision of the Panchayat having been communicated to the petitioner only by Ext.R2(i) communication dated 26.03.2018, which is admittedly beyond the period of 30 days from the last communication sent by the petitioner to the respondent Panchayat in support of his D & O licence renewal application, the petitioner would be entitled to the benefit of the deeming provision under Section 236 (3) the Kerala Panchayat Raj Act. The decisions of this 4 **W.P.(C).No.10481 Of 2018** Court in **Rajesh Ramachandran v. Corporation of Trivandrum [2008 (3) KLT 419]** was affirmed in **Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175]** would come to the aid of the petitioner on the said issue. Accordingly, I allow the writ petition by declaring that the petitioner is to be treated as having obtained a deemed licence in terms of Section 236 (3) of the Kerala Panchayat Raj Act for the period from 01.04.2018 to 31.03.2019. The respondent Panchayat shall issue the petitioner with a certificate to that effect within 10 days from the date of receipt of a copy of the judgment. I make it clear that nothing in this judgment shall stand in the way of the respondent Panchayat taking steps to cancel the deemed licence obtained by the petitioner, pursuant to this judgment, in the event of the Panchayat noticing any violation of the conditions of the D & O licence by the petitioner. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/04.04.18 **W.P.(C).No.10481 Of 2018** 5