G.K. Granites Ltd. v. Vellavoor Grama Panchayath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **WP(C).No. 6747 of 2013 (P)** **--------------------------------------** ## **PETITIONER(S):** **------------------------** **G.K.GRANITES LTD., HAVING ITS ADMINISTRATIVE OFFICE AT KUREEKKAL KIZHAKKAMBALAM P.O., ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING DIRECTOR SRI.GEORGE ANTONY RESIDING AT KUREEKKAL HOUSE, KIZHAKKAMBALAM P.O. ERNAKULAM DISTRICT.** **BY ADVS.M/S.VARGHESE & JACOB SRI.P.JACOB VARGHESE (SR.) SRI.JOSE ABRAHAM SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO SRI.P.J.VINOD JOSEPH** ## **RESPONDENT(S):** - **----------------------------** **1. VELLAVOOR GRAMA PANCHAYATH , VELLAVOOR P.O., MANIMALA, REPRESENTED BY ITS SECRETARY.** **2. VELLAVOOR GRAMA PANCHAYATH, VELLAVOOR P.O., MANIMALA REPRESENTED BY ITS PRESIDENT.** **3. SHIBULAL, AGED 45 YEARS S/O.MADHAVAN, CONVENER KOTTAMBRA METAL UNIT VIRUDHA ACTION COUNCIL RESIDING AT PARAMBUKATTIL, VELLAVOOR P.O., KOTTAYAM.** **4. T.R.VISWANATHAN NAIR , CHAIRMAN KOTTAMBRA METAL UNIT VIRUDHA ACTION COUNCIL RESIDING AT KANNANTHANM HOUSE THAZHATH VADAKARA P.O., VELLAVOOR P.O. KOTTAYAM DISTRICT.** **tss** ## **W.P.(C) NO.6747/2013** ## **5. GOVERNMENT OF KERALA,** **REPRESENTED BY THE SECRETARY TO THE LOCAL SELF GOVERNMENT DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.D.AJITHKUMAR R2 BY ADV. SRI.CIBI THOMAS R3,R4 BY ADVS. SRI.P.A.SALIM SRI.P.ANTO THOMAS** **R5 BY SENIOR GOVERNMENT PLEADER SRI.P.M.SANEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** **WP(C).No. 6747 of 2013 (P) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1. TRUE COPY OF THE INSTALLATION PERMIT NO.A2 514/03, 515/03 DATED 09.12.2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2. TRUE COPY OF THE CONSENT TO OPERATE NO.PCB/KOT/CE/151/2003 DATED 27.08.2005 ISSUED BY THE KERALA POLLUTION CONTROL BOARD.** **EXHIBIT P3. TRUE COPY OF THE EXPLOSIVE LICENSE NO.E/SC/KL/22/574 9E21409) DATED 26.04.2010 OF THE PETITIONER.** ## **EXHIBIT P4. TRUE COPY OF THE QUARRYING LEASE DATED 22.11.2004.** **EXHIBIT P5. TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MINING AND GEOLOGY.** **EXHIBIT P6. TRUE COPY OF THE MERIT CERTIFICATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO ONE OF THE PETITIONER'S UNIT IN ERNAKULAM DISTRICT.** **EXHIBIT P7. TRUE COPY OF THE STOP MEMO NO.A4-1141-/03 DATED 12.12.2005 ISSUED BY THE 1ST RESPONDENT.** ## **EXHIBIT P8. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT PANCHAYATH BEFORE THE TRIBUNAL IN R.P.NO.1/2006.** **EXHIBIT P9. TRUE COPY OF THE ORDER NO.A2-1141/03 DATED 09.05.2006 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P10. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BEFORE THE THIS HON'BLE COURT IN W.P.(C)NO.5652/2006.** **EXHIBIT P11. TRUE COPY OF THE INTERIM APPLICATION FILED BY 2 LOCAL PEOPLE IN W.P.(C)NO.5652/2006.** **EXHIBIT P12. TRUE COPY OF THE COMMON JUDGMENT DATED 07.04.2006 IN W.P.(C) NOS.15317/2004, 24039/2005 AND 5652/2006 OF THIS HON'BLE COURT.** **EXHIBIT P13. TRUE COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT IN W.A.NO.869/2006.** **EXHIBIT P14. TRUE COPY OF THE COMMON JUGMENT PASSED BY THIS HON'BLE COURT IN W.A.NOS.868, 869 AND 870/2006.** **EXHIBIT P15. TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN S.L.P.21046/2006.** **tss** ## **WP(C) NO.6747/2013** **EXHIBIT P16. TRUE COPY OF THE LICENCE NO.A4-101/06-07 DATED 30.10.2006 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P17. TRUE COPY OF THE LICENCE NO.A4-102/06-07 DATED 30.10.2006 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P18. TRUE COPY OF THE CONSENT TO OPERATE-RENEWAL NO.PCB/ROEKM.KTM/580/12 DATED 15.01.2013 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P19.TRUE COPY OF THE CONSENT TO OPERATE-RENEWAL NO.PCB/KTM/CE/151/2003 DATED 25.07.2009 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P20. TRUE COPY OF THE CONSENT TO OPERATE QUARRY UNIT NO.PCB/KOT/QR/25/2007 DTED 24.09.2012 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P21. TRUE COPY OF THE LICENCE NO.71/08-09 DATED 31.03.2008 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P22. TRUE COPY OF THE LICENCE NO.71/08-09 DATED 31.03.2008 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P23. TRUE COPY OF THE LICENCE NO.70/08-09 DATED 31.03.2008 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P24. TRUE COPY OF THE JUDGMENT DATED 22.02.2011 IN W.P.(C) NO.3154/2011 OF THIS HON'BLE COURT.** **EXHIBIT 25. TRUE COPY OF THE ORDER NO.N-1053/11 DATED 10.03.2011 ISSUED BY THE R.D.O., KOTTAYAM.** **EXHIBIT P26. TRUE COPY OF THE NOTICE NO.A4-35/2010-11 DATED 10.03.2011 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P27. TRUE COPY OF THE MEMORANDUM OF APPEAL IN APPEAL 193/2011 FILED BY THE PETITIONER BEFORE THE TRIBUNAL.** **EXHIBIT P28. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE LAND 2ND RESPONDENT IN APPEAL 193/2011.** **EXHIBIT P29. TRUE COPY OF THE IMPLEADING PETITION FILED BY THE RESPONDENT NOS. 3 AND 4 IN APPEAL NO.193/2011.** **EXHIBIT P30. TRUE COPY OF THE CONSENT TO OPERATE QUARRY UNIT NO.PCB/KTM/QR/25/2007 DATED 29.10.2007 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P31. TRUE COPY OF THE CONSENT TO OPERATE QUARRY UNIT NO.PCB/KOT/QR/25/2007 DATED 08.07.2009 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **tss** ## **W.P.(C) NO.6747/2013** **EXHIBIT P32. TRUE COPY OF THE ORDER DATED 06.03.2013 IN APPEAL NO.193/2011 PASSED BY THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** **EXHIBIT P33. EXTENSION OF CONSENT TO OPERATE INDUSTRIAL PLANT ON TRIAL BASIS NO.PCB/KOT/CE/151/2003 DATED 06.02.2008.** **EXHIBIT P34:- COPY OFM THE APPLICATION FOR RENEWAL AS ACKNOWEDGED BY THE PANCHAYATH DTD. 5.2.2013.** **P35:- COPY OF REPLY GIVEN BY THE PANCHAYAT.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **R3(a):- COPY OF THE INFORMATION OBTAINED UNDER RIGHT OT INFORMATION ACT BEARING NO.A4 -586/11, DTD. 21.3.2011.** **R3(b):- COPY OF THE SUB COMMITTEE REPORT DTD 7.3.2011.** **R3(c):- COPY OF THE COMMUNICATION DTD 23.2.2013 BEARING 9170/M4/2012.** **R3(d):- COPY OF THE DAMAGED HOUSE OF VIJAYAN NAIR.** **R3(d)2:- COPY OF THE DAMAGED HOUSE OF O.G.RAJAMMA.** **R3(d)3:- COPY OF THE DAMAGED HOUSE OF THANKAPPAN NAIR.** **R3(d)4:- COPY OF THE DAMAGED HOUSE OF OMANA PANICKER.** **R3(d)5:- COPY OF THE DAMAGED HOUSE OF P.N.APPUKUTTAN** **R3(e):- COPY OF THE WATER TEST REPORT OF THE VELLAVOOR THODU BY RESEARCH OFFICER DISTRICT FOOD TESTING LABORATORY, PATHANAMTHITTA DTD.7.7.2011 BEARING NO.WA. 141/11-12.** **R3(f):- COPY OF THE WATER TEST REPORT OF THE PANCHAYATH WELL WATER AND WELL WATER OF JANARDHANA PILLAI BY RESEARCH OFFICER DISTRICT FOOD TESTING LABORATORY, PATHANAMTHITTA, DTD. 7.7.2011, BEARING NO.WA.141/11-12.** **R3(g):- COPY OF THE WATER TEST REPORT OF THE WELL WATER OF OMANA PANICKER BY RESEARCH OFFICER DISTRICT FOOD TESTING LABORATORY , PATHANAMTHITTA, BEARING NO.W.A.141/11-12.** **R3(h):- COPY OF THE COMMUNICATION OF THE DISTRICT MEDICAL OFFICER BEARING NO.C25639/11. DT D. 5.8.2011.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No. 6747 of 2013 ---------------------------------------Dated this the 18[th] day of July 2013 ## **J U D G M E N T** The petitioner challenges Ext. P32 order passed by the Tribunal for Local Government Institutions in an appeal filed by the petitioner against the stop memo issued by the panchayat restraining the petitioner from operating a quarry and crushing unit situated within the panchayat area. 2. The facts as disclosed from the writ petition would reveal that the petitioner was operating a quarry and crushing unit in the panchayat area since 2004 with valid license issued by the panchayat. They were faced with a stop memo dated 12/12/2005 which ultimately resulted in continued litigation over a period of time and ultimately on the basis of a judgment of the Division Bench of this court at Ext.P14 the petitioners were issued with Ext.P16 and P17 licenses. W.P.C..No.6747/2013 2 3. According to the petitioner on expiry of Ext. P16 and P17 licenses they applied for renewal of the said licenses which were renewed as per Exts.P21 to P 23 on 31/03/2008 for a period from 01/04/2008 to 31/04/2013. 4. While so, according to the petitioner, a new committee came into the administration of the panchayat and in order to stop the operations of the quarry, they issued Ext.P26 notice dated 10/03/2011 alleging that the licenses for the period from 01/04/2008 to 31/03/2013 were issued by the President and hence unauthorized. In Ext.P26 the Secretary has also directed the petitioner to stop the operations of the quarry. 5. Ext.P26 was challenged by the petitioner before the Tribunal and on a consideration of the factual aspects involved in the matter it formed an opinion that the renewal of license from 01/04/2008 to 31/03/2013 was obtained by the petitioner by wicked and crooked methods and influencing the then president. It is also found that by virtue W.P.C..No.6747/2013 3 of Section 232 of the Kerala Panchayat Raj Act (hereinafter referred to as 'the Act') the authority to issue D&O license is on the Secretary of the panchayat and therefore the rule which prescribes the authority with the President of the panchayat being illegal, the President had no authority to issue such licenses. The Tribunal also found that the petitioner has not applied for renewal of license with an increased capacity. If such an application was filed, it was for the Secretary to verify whether the license can be issued with the increased capacity. In so far as no such attempt was made by the petitioner to apply for permission with the increased capacity, the panchayat had no occasion to consider the application of the petitioner in accordance with the procedure prescribed under Section 233 of the Kerala Panchayat Raj Act. Such being the position the Tribunal found that the license being issued without authority is illegal, the issuance of Ext. P26 was justified. The appeal was therefore dismissed confirming the decision of the W.P.C..No.6747/2013 4 panchayat. Direction was also issued restraining the petitioner from operating the quarry until a license was obtained from the Secretary complying with the statutory formalities. 6. The main contention raised by the petitioner is that when a license is issued by the President of the panchayat exercising his power under the rules namely the Kerala Panchayat Raj (Issuance of License to Dangerous and Offensive Trade), Rules, (hereinafter referred to as 'D & O Rules') it is not open for the Tribunal to have found that the said license was illegal. According to the petitioner the license at Exts.P21, P22 and P23 has not been cancelled by the Panchayat. When the license is not canceled by the panchayat exercising its powers, they do not have the authority to stop the functioning of the quarry. Further it is contended that the Tribunal did not consider the matter properly. It is not a case where the petitioner had committed an illegality. The petitioner had filed an application for W.P.C..No.6747/2013 5 renewal of license in accordance with the Rules in the year 2008. After having considered the application, if a license duly signed by the President of the panchayat is issued, unless the said license is canceled by the panchayat in accordance with the rules prescribed by law, the license remains in force. In an appeal filed by the petitioner it was not open for the Tribunal to have decided that the license was wrongly issued or it is illegal. 7. Counter affidavit is filed by respondents 1 and 2 supporting the stand taken by the Tribunal. Respondents 3 and 4 are persons residing in the vicinity of the quarry. They have filed a counter affidavit supporting the stand of the panchayat. They have also contended that the quarry is causing severe pollution in the nearby locality and therefore the action taken by the panchayat in issuing a stop memo to restrain the petitioner from operating the quarry is justifiable. It is further argued that the documents would reveal that the petitioner had a license only for operating W.P.C..No.6747/2013 6 the quarry with machinery having lesser horse power motor, whereas they have or rather they are using motors of very high horse power which is also against the provisions of the Act and they have not obtained any permission under the statute for operating such a quarry or crushing unit. 8. Having regard to the aforesaid conditions the short question to be considered in the writ petition is a validity of Ext.P32 order. 9. The file in this connection has been produced by the learned counsel appearing for panchayat. It only contains the details in respect of the decision taken by the Panchayat for issuing the stop memo. It is argued by the learned senior counsel appearing for the petitioner that as matters stand now the validity of license which is the subject matter of the appeal before the tribunal had expired and the petitioner had submitted a renewal application on 05/02/2013. The said application is not considered within the time stipulated by the D & O Rules and therefore the W.P.C..No.6747/2013 7 petitioner has the right to get a deemed license under the Rules. 10. The first question to be considered in the writ petition is the finding of the tribunal regarding the validity of Exts.P21 to P23 license. Apparently the licenses are signed by the President of the panchayat. It is not in dispute that as per Rule 6 of the Rules, the President has the power to issue a license. It is also true that the Secretary is the authority empowered to issue license in terms of Section 232 of the Act but as long as the license is in force one cannot contend that the license is wrongly issued. If the panchayat had any doubt regarding the validity of the license or the power of their President to issue such license they should have taken steps to cancel the license in accordance with the procedure prescribed after giving notice to the petitioner. Such an eventuality was not happened in the matter, whereas the panchayat proceeded to issue a stop memo on the allegation that the license was illegally issued. For that W.P.C..No.6747/2013 8 reason alone, I am of the view that the impugned order at Ext.P26 should have been set aside by the Tribunal. The Tribunal had considered the validity of the license issued in the light of the statutory provision under Section 232 and 233 of the Act read with D & O Rules and had come to the conclusion that the license was wrongly issued. I do not think that such a consideration of the matter was not warranted under the circumstances and especially in a case where the Panchayat did not cancel the licence. 11. It is argued by the learned counsel appearing for additional respondents 3 and 4 on the basis of the available records that the petitioner was only given a license to operate quarry with 50 HP motor whereas they have installed machinery having larger capacity of 495 HP motor in Ext.P22 and a further 150 HP motor in Ext.P23. This, according to the learned counsel, has increased the capacity by several fold which was not contemplated at the time of issuing the earlier license. The request for a higher capacity W.P.C..No.6747/2013 9 motor to be installed in the premises ought to have been considered by the panchayat in the light of the provisions contained in Section 233 read with Section 232 of the Act. Having not done so, the operation of the quarry is highly illegal. Another argument is based on the consent to operate issued by the Kerala State Pollution Control Board which is valid till 30/06/2015. The learned counsel referred to the other conditions, especially clause 4.8 in Ext. P20 which reads as under: _“The applicant shall obtain necessary environmental clearance as directed by Hon'ble Supreme Court in I.A No.12-13 of 2011 in S.L.P(C) No.19628-19629 of 2009.”_ It is the contention of respondents 3 and 4 that no such clearance had been obtained by the petitioner and therefore he is not entitled to operate the quarry. 12. In regard to the deployment of machinery it is relevant to note that when the license permits use of machinery having a higher horsepower it has to be W.P.C..No.6747/2013 10 presumed that the license is validly issued. As I have already held that in view of the provisions under the statute as well as under the D & O Rules the panchayat authorities may have some doubt regarding the authority who is to issue the license. If, as a matter of course, the President was signing the documents exercising his power under rule 6 of the D & O Rules, for the mere reason that Section 232 empowered the Secretary to issue the D & O licence does not make the license invalid. It is only an irregularity which could be corrected. As I have already held, the license is not canceled by due process of law. The Tribunal assumed that there was some foul play in the matter. That finding was unwarranted, as the allegations are not supported by any evidence. In a summary procedure, and that too in an appeal, the appellate authority cannot come to conclusions based on mere allegations or surmises. That apart as the period of license had already expired as matters stand now the issue is only academic which does not require W.P.C..No.6747/2013 11 ## further deliberations. 13. In regard to the compliance of conditions in Ext.P20, the respondents relied upon the judgment reported in **Deepak Kumar and others v. State of Haryana and Others** _[(2012) 4 SCC 629]_ . In the said judgment it is clearly indicated that the State Governments should take immediate steps to frame necessary rules under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 taking into consideration the recommendations of MoEF in its Report of March 2010 and model guidelines framed by the Ministry of Mines. It is not in dispute that no such guidelines have been framed so far and therefore it is too early in the day to contend that such a regulation has to be complied with. 14. It could therefore be seen that this is an instance where the issue relating to the validity of licence between 2008 to 2013 has become academic on account of the period being over. Needless to state that the petitioner had W.P.C..No.6747/2013 12 applied for renewal of the permit on 05/02/2013 on the basis of other licences issued in his favour by other statutory authorities and it was open for the panchayat to consider his application in accordance with the procedure prescribed. If the panchayat has not considered the said application in accordance with law, definitely the petitioner will be entitled to get the protection of the deeming provision under the statute and proceed with the activities as if the license is available in his favour. 15. The learned counsel for respondents 3 and 4 had also argued that the District Medical Officer had reported that the functioning of the quarry is causing pollution in the area. It is not in dispute that if there is any pollution and if sufficient materials are available with the panchayat, they can request the petitioner to abate the said nuisance or pollution as the case may be. However any such steps could be taken by the Panchayat only after notice to the petitioner. W.P.C..No.6747/2013 13 16. Having regard to the aforesaid facts and circumstances, I am of the view that the writ petition is only to be allowed. Accordingly the writ petition is allowed, Ext.P26 is quashed and Ext.P32 is set aside. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C..No.6747/2013 14 W.P.C..No.6747/2013 15