Gopinathan v. Nellaya Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **WP(C).No.11905 OF 2020(K)** ## **PETITIONER** **GOPINATHAN** **S/O.VELAYUDHAN, PAPPANKATTIL HOUSE, VALLAPUZHA P.O., PATTAMBI, PALAKKAD-679336, THROUGH HIS POWER OF ATTORNEY HOLDER NAJEEB HASSAN, S/O.KUNHI MARAKKAR HAJI, AGED 36 YEARS, NAMBRATH HOUSE, VALANCHERRY P.O., MALAPPURAM-676552.** **BY ADVS.** **SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE** ## **RESPONDENTS:** **1 NELLAYA GRAMA PANCHAYAT NELLAYA P.O., PALAKKAD-679335, REPRESENTED BY ITS SECRETARY.** **2 SECRETARY, NELLAYA GRAMA PANCHAYAT, NELLAYA P.O., PALAKKAD-679335.** - **3 DISTRICT GEOLOGIST,** **DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, TOWN BUS STAND COMPLEX, PALAKKAD-679314.** **R1-2 BY ADV. SRI.T.C.SURESH MENON R3 BY ADV. SAIGI JACOB PALATTI. SR. GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C).No.11905 OF 2020(K) **ALEXANDER THOMAS, J. =============================== W.P.(C) No.11905 of 2020 =============================== Dated this the 6[th] day of July, 2020** ## **JUDGMENT** The case set up in this writ petition (c) is as follows:- _Petitioner has obtained a letter of intent, EC, explosive license and the consent from the PCB to start a quarry. Petitioner submitted an application for a trade license before the 2[nd] respondent on 02.05.2018. By Ext.P4 letter dated 31.08.2018, petitioner was informed that the Panchayat Committee of the 1[st] respondent had taken a decision on 14.08.2018 to reject the application on account of public protests. In appeal, Ext.P4 was set aside by the Tribunal for Local Self Government Institutions. By Ext.P5 order dated 17.01.2019, the Tribunal directed the Secretary of the Panchayat to conduct a site inspection to verify whether the machinery used by the petitioner is a portable one or not and to issue D&O license if the machineries are portable. On the basis of Ext.P5 order of the Tribunal, petitioner submitted Ext.P6 application on 11.032.19. Thereafter, till date, no orders have been passed by the 2[nd]_ 3 ## WP(C).No.11905 OF 2020(K) _respondent. Section 236(3) of the Kerala Panchayat Raj Act prescribes an outer limit of 30 days for the Secretary of the Panchayat to consider an application for a trade license. If orders are not passed within the period of 30 days, the applicant is entitled to claim a deemed trade license. The Ext.P5 order, the Tribunal had directed the 2[nd] respondent to issue D&O license to the petitioner if the machineries used by him in his quarry are portable. No inspection to verify the same has been carried out by the 2[nd] respondent till date. In Ext.P6 application submitted pursuant to the order of the Tribunal, petitioner has pointed out that he intends to use only portable machinery in the quarry. Petitioner also undertakes that he shall employ only portable machinery in the quarry, which are exempt from obtaining an establishment permit under Section 233B(d) of the Kerala Panchayat Raj Act. In that view of the matter, 2[nd] respondent is duty bound to issue the trade license to the petitioner in compliance of Ext.P5 order of the Tribunal. By virtue of the declaration of law by this Hon'ble Court in Tomy Thomas v. State of kerala, 2019(3)KLT 987, the Panchayat cannot delay or refuse grant of a trade license when the petitioner has already secured an Environment Clearance and consent from the Pollution Control Board. Without a declaration of the deemed trade license, the 3[rd] respondent District Geologist is hesitant to consider_ 4 ## WP(C).No.11905 OF 2020(K) _Ext.P1 application for quarrying permit submitted by the petitioner._ It is in the light of these averments and contentions, that the petitioners have filed this Writ Petition (c) seeking the following prayers: - _i) Issue a writ in the nature of a declaration, declaring that petitioner has a deemed trade licence under Section 236(3) of Panchayat Raj Act for operating the quarrying unit with effect from 11.04.2019_ - _ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue formal trade license to the petitioner for conducting the quarrying unit fortwith._ - _iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 3[rd] respondent to consider Ext.P1 application for quarrying permit submitted by the petitioner on the basis of the deemed trade license that accrued to the petitioner with effect from 11.04.2019._ - _iv) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case._ 2. Heard Sri. Enoch David Simon Joel, learned Standing Counsel appearing for the petitioner, Sri. T.C.Suresh Menon,learned counsel appearing for R1 and R2, Nellaya Grama Panchayat and Sri. Saigi Jacob Palatti, learned Senior Government Pleader appearing for the 3[rd] respondent, District Geologist. 3. Learned counsel for the petitioner has relied submissions including the pleadings in W.P.(C). Per contra Sri. T.C.Suresh Menon, learned Standing Counsel appearing for R1 and R2 submits on the 5 WP(C).No.11905 OF 2020(K) basis of the instructions that, the 2[nd] respondent Secretary of the Grama Panchayat has taken charge only few days back and that after examining the files, she has issued notice to the petitioner for conducting inspection and the petitioner has refused to accept the notice. It is pointed out by Sri. T.C.Suresh Menon on the basis of instructions from R1 and R2 that all what the 2[nd] respondent now proposes is to ascertain by conducting inspection as to whether the machinery installed by the petitioner is portable or not, so as to comply with the requirements in paragraph No.7 of Ext.P5 judgment of the Appellate Tribunal and that if it is found that the machineries are only portable, then Certainly, the requisite trade/ D&O license will be issued in terms of Section 232 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the Act, 1994). If the machineries are not portable, then the petitioner may have submit separate application for grant of establishment license as required in terms of Section 233 of the Act, 1994, it is urged. 4. Sri. Enoch David Simon Joel, learned counsel appearing for the petitioner would submit on the basis of the instruction that, the case of the petitioner is only at this stage of issuance of letter of intent by the 3[rd] respondent District Geologist as can be seen from Ext.P2 6 ## WP(C).No.11905 OF 2020(K) and petitioner can finally secure the quarrying lease from the 3[rd] respondent only after petitioner produces the requisite trade/ D& O licence from the 3[rd] respondent and that as of now even if the inspection is conducted now, it would be revealed that the petitioner has not actually installed any machineries and so the inspection is an empty formality. 5. After hearing both sides it is ordered that, 2[nd] respondent Secretary of the Grama Panchayat may ensure that inspection of the petitioner's unit is conducted without any further delay and petitioner should co-operate with the said inspection process and should be ascertained as to whether the petitioner has installed any machineries in his unit and if so whether is portable or not and if it is found that it is portable, then the requisite trade/ D &O licence in terms of Section 232 of the Kerala Panchayat Raj Act, 1994 and the Rules framed thereunder, it should be issued to the petitioner without any further delay, at any rate, within two weeks from the date of conduct of such inspection. On the other hand if it is found that the petitioner has not installed any machineries at this stage as now pointed out by the petitioner, then also the requisite trade/ D& O licence should be issued to the petitioner in terms of Section 232 of the Act, 1994. But if as a 7 ## WP(C).No.11905 OF 2020(K) matter of fact, it is found that, the machineries installed by the petitioner are not portable but would come within the ambit of machinery as envisaged in Section 233 of the Act, then the 3[rd] respondent will be at liberty to insist that petitioner should also file requisite application for grant of establishment licence in terms of Section 233 of the Act, 1994. 8. Petitioner will produce certified copy of this judgment along with the copy of the memorandum of this W.P(C) with all the Exhibits before the 2[nd] respondent, Secretary of the Nellaya Grama Panchayat for necessary information and for further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **hmh** 8 WP(C).No.11905 OF 2020(K) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 01.12.2017 FOR QUARRYING PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE LETTER OF INTENT DATED 22.12.2017 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CONSENT TO OPERATE DATED 04.5.2018 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.3.2023.** **EXHIBIT P3(A) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 28.4.2018 VALID TILL 28.4.2013 ISSUED BY THE DEIAA, PALAKKAD. EXHIBIT P3(B) TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.3.2022.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 31.8.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 17.1.2019 IN APPEAL NO.575/2018 ON THE FILES OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 08.3.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6(A) TRUE COPY OF THE RECEIPT DATED 11.3.2019 ISSUED BY THE 2ND RESPONDENT.**