JMC GRANITES v. VANIYAMKULAM GRAMA PANCHAYAT and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** ## **WP(C).No. 20965 of 2018** ## **PETITIONER/S:** |||**JMC GRANITES,**| |---|---|---| |||**CHEROTTUR (PO), VANIYAMKULAM,**| |||**OTTAPPALAM, PALAKKAD-679 521.**| |||**REPRESENTED BY ITS MANAGING PARTNER,**| |||**V.K.JANARDHANAN NAIR, AGED 49 YEARS,**| |||**S/O.KESAVAN NAIR.**| |||**BY ADV. SRI.JOBI JOSE KONDODY**| |**RESPONDENT/S**<br>**:**||| |**1**||**VANIYAMKULAM GRAMA PANCHAYAT,**| |||**REPRESENTED BY ITS SECRETARY,**| |||**VANIYAMKULAM GRAMA PANCHAYAT OFFICE,**| |||**VANIYAMKULAM(PO), PALAKKAD DISTRICT-679 522.**| |**2**||**THE SECRETARY,**| |||**VANIYAMKULAM GRAMA PANCHAYAT,**| |||**VANIYAMKULAM GRAMA PANCHAYAT OFFICE,**| |||**VANIYAMKULAM(PO), PALAKKAD DISTRICT-679 522.**| |**3**||**THE GEOLOGIST,**| |||**MINING AND GEOLOGY DISTRICT OFFICE,**| |||**TOWN BUS STAND COMPLEX,**| |||**PALAKKAD-678 014.**| |||**R1 & R2 BY ADV. SRI.V.A.VINOD**| |||**R3 BY SRI. PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER.**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.20965 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: _“i) Call for the records leading to Exhibits P8 and P9 and issue a writ of certiorari and quash the same;_ _ii) Issue a writ of mandamus directing respondents 2 and 3 to grant D&O licence to the petitioner in the light of Act 14 of 2018;_ _iii) Declare that the petitioner is entitled for a deemed D & O licence under Section 233(5A) of the Kerala Panchayat Raj Act, 1994; and_ _iv) Issue such other reliefs which this Honourable Court may deems fit and appropriate in the facts and circumstances of the case.”_ 2. Material facts for the disposal of the writ petition are as follows: 3. Petitioner's firm, in order to start a quarry in Survey No.2/3 of Vaniyamkulam-II Village, Ottappalam Taluk, Palakkad District, having an extent of 0.9915 hectares, obtained Ext.P1 environmental clearance from the District Environment Impact Assessment Authority, for obtaining permit from the 3[rd] respondent, under the Kerala Minor Mineral Concession Rules, 2015, Ext.P2 consent from the Kerala State Pollution Control Board and Ext.P3 Form LE-3 Licence from the Explosives Department. However, when applied for D&O licence before the 2[nd] respondent W.P.(C) No.20965 of 2018 3 _vide_ Ext.P4, he placed the application before the 1[st] respondent for obtaining an installation permit under Sec.233 of the Kerala Panchayat Raj Act, 1994. The 1[st] respondent rejected the same _vide_ Ext.P8 and based on which, the 2[nd] respondent rejected Ext.P4 application _vide_ Ext.P9. According to the petitioner, after the amendment brought out to the Kerala Panchayat Raj Act, 1994 through Act No.14 of 2018, produced as Ext.P7, the Panchayat is not entitled to reject the application for D&O licence and licence should be granted in accordance with the stipulations contained thereunder. It is thus aggrieved by Exts.P8 and P9, this writ petition is filed. 4. The 2[nd] respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the Panchayat has issued Ext.P8 not only on the basis of environmental impact and health issues which will be caused by the proposed quarrying operations, but there is an ITI institution functioning just 400 metres away from the proposed quarrying site, wherein more than 400 students are studying. So also, within 300 metres from the proposed quarrying site, there is also a primary health sub centre functioning. Further in the surrounding area, there are W.P.(C) No.20965 of 2018 4 three drinking water projects commissioned by the Panchayat and as per these projects, the Panchayat has built two water tanks, and there is one water tank constructed by the Water Authority also, and all these projects come within 400 metres to 1 K.m. away from the proposed quarrying site. Therefore, according to the 2[nd] respondent, if the quarrying is allowed to be conducted, it will affect the drinking water project which is being depended by around 150 families. 5. It is also submitted that, the proposed site for quarrying is within 500 metres from the railway line and 'Bharatha Puzha'. The Bio Diversity Management Committee formed under the Panchayat has looked into all these aspects and took up the matter for discussion, and opined not to grant licence to the petitioner's quarrying activity, as the same will have an adverse impact on the bio diversity and the health and welfare of the general public, and it will also affect the agricultural operations. That apart, it is submitted that, the general public of that area has formed an Action Council and has given a complaint to the Panchayat against the proposed quarrying venture. Thereupon, the Panchayat Committee has discussed the same and forwarded the complaint to the Panchayat Deputy Director for further W.P.(C) No.20965 of 2018 5 action, and the same is still pending consideration, evident from Ext.R2(a). Further, it is submitted that, the Panchayat was not consulted by any of the authorities before granting the permit for starting the quarrying operations within the Panchayat limits. In the present fact scenario, the Panchayat as well as the Secretary was justified in taking Exts.P8 and P9 decisions. 6. I have heard learned counsel for the petitioner, learned Standing Counsel appearing for respondents 1 and 2 and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 7. The fact discussion made above would make it clear that, the paramount contention advanced by learned counsel for the petitioner is on the basis of the amendment brought to Sec.233 of the Kerala Panchayat Raj Act, 1994. Sub-section (2A) is brought into the statute book, whereby the Secretary is duty bound to receive the application, issue an acknowledgement and the application shall be verified in order to identify whether all supporting documents are produced by the applicant, and if not, it shall be informed to the applicant to submit the same not later than five days from the date of receipt of application. Sub-section (3) thereunder is W.P.(C) No.20965 of 2018 6 substituted with the following: _“(3) the Secretary or the officer authorized by him shall, as soon as may be, after the receipt of the application enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution and the Village Panchayat, after having considered the application and the reports of the Secretary and of such other authorities as specified in sub-section (4) may, as expeditiously as possible, within thirty days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose”._ 8. Therefore, the contention advanced by learned counsel for the petitioner is that, the Secretary, after scrutinizing the application submitted and if satisfied that the application is accompanied by the relevant documents required for the purpose of issuing the licence, and conducting the enquiry specified under subsection (3) and is satisfied accordingly, has to issue the licence, and there is no power vested with the Secretary to reject the application submitted. 9. However, learned counsel appearing for respondents 1 and 2 submitted that, the Secretary as well as the Panchayat has taken into account various circumstances pointed out in the counter affidavit and has arrived at the decision as per Exts.P8 and P9 to reject the application submitted by the petitioner for W.P.(C) No.20965 of 2018 7 establishing the quarry. In my considered view, in accordance with the amendment to Section 233 of the Act, 1994, the Secretary is duty bound to grant the licence, if the application is in order. So also, there is no case for the Secretary that the application of the petitioner has any such defects, and moreover, it is significant to note that the consequences referred to in sub-section (3) of the Act are not at all found out in the orders impugned. Therefore, in my considered view, Exts.P8 and P9 suffers from the vice of arbitrariness and illegality liable to be interfered with under the discretionary power conferred on this Court under Article 226 of the Constitution of India. 10. Learned counsel for the petitioner has also invited my attention to a Division Bench judgment of this Court in ' _**Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd.**_ ' [2016 (2) KLT 219], wherein the issue with respect to consideration of an application for licence by the Panchayat was considered taking into account the clearances given by other statutory authorities, and held that, once the clearances are issued by other statutory authorities, there was no reason for interfering with the discretion exercised by the said authorities by rejecting the application. So W.P.(C) No.20965 of 2018 8 also, the judgment of this Court in W.P.(C) No.17733 of 2018 dated 31.07.2018 is also pointed out, wherein the judgment in ' _**Ramapuram Grama Panchayat'**_ ( _supra_ ) was followed. 11. Taking into account all these aspects, I quash Exts.P8 and P9 and direct the 2[nd] respondent to issue the licence in accordance with the provisions contained under Sec.233(3), at the earliest, and at any rate, within one month from the date of receipt of a copy of this judgment. However, I make it clear that, the respondents as well as all other statutory authorities are duty bound and entitled to conduct periodical inspection and verify whether the clearances/licences/permits secured by the petitioner and the conditions thereto are followed scrupulously. It is left open to the authorities to identify whether the petitioner has secured the necessary licence under the Explosives Rules in order to go ahead with the quarrying activities. The writ petition is allowed to the above extent, however, leaving open the liberty of the statutory authorities to take appropriate action, if the conditions W.P.(C) No.20965 of 2018 9 contained under the clearances, and under the provisions of the statutes are violated by the petitioner. **Sd/-** **SHAJI P.CHALY** **JUDGE** W.P.(C) No.20965 of 2018 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 07.05.2018 ISSUED BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, PALAKKAD TO THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE CONSENT TO OPERATE DATED 10.05.2018 VALID UPTO 09.05.2023 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER. EXHIBIT P3 A TRUE COPY OF THE FORM LE-3 LICENSE DATED 18.06.2018 VALID UPTO 31.03.2023. EXHIBIT P4 A TRUE COPY OF THE APPLICATION DATED 14.05.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 18.05.2018 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER ACKNOWLEDGING RECEIPT OF EXHIBIT P4. EXHIBIT P6 A TRUE COPY OF THE ENDORSEMENT MADE BY THE SECOND RESPONDENT ON THE BACK SIDE OF EXHIBIT P5 WITHOUT DATE. EXHIBIT P7 A TRUE COPY OF THE KERALA INVESTMENT PROMOTION AND FACILITATION ACT, 2018 (ACT 14 OF 2018) PUBLISHED IN THE KERALA GAZETTE DATED 07.04.2018. EXHIBIT P8 A TRUE COPY OF THE DECISION NO.4 OF THE MEETING OF THE FIRST RESPONDENT HELD ON 14.06.2018. EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 14.06.2018 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.** ## RESPONDENTS' EXHIBITS : EXHIBIT R2(A) TRUE COPY OF THE RELEVANT PAGES IN THE MASS PETITION DATED NIL. St/-