Kakkara Crushers Private Ltd v. Alakode Grama Panchayat

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942** ## **WP(C).No.8218 OF 2020(B)** ## **PETITIONER/S:** **KAKKARA CRUSHERS PRIVATE LTD KUTHAMBALAM, KAKKARA P.O, KANNUR 670 306 REPRESENTED BY ITS MANAGING DIRECTOR K.F VARGHESE** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** ## **RESPONDENT/S:** **1 ALAKODE GRAMA PANCHAYAT ALAKODE P.O, KANNUR 670 571 REPRESENTED BY ITS SECRETARY 2 SECRETARY, ALAKODE GRAMA PANCHAYAT, ALAKODE P.O, KANNUR 670 571** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.8218 OF 2020(B)** **2** ## **ALEXANDER THOMAS, J.** ## **----------------------------------------W.P.(C.) No. 8218 of 2020 ----------------------------------------Dated this the 28[th] day of July, 2020** ## **JUDGMENT** The case set up in the above Writ Petition (Civil) is as follows : _To open a granite (building stone) quarry in 2.9130 Hectares of land in Survey No.100/2A of Thimiri Village in Thaliparamba Taluk, the petitioner obtained Ext.P1 approved mining plan from the Geologist, Ext.P2 Environmental Clearance, Ext.P3 consent to operate from the Pollution Control Board, Ext.P5 No Objection Certificate of the Additional District Magistrate and Ext.P6 license of the Deputy Chief Controller of Explosives. The petitioner submitted Ext.P7 application before the 1st respondent Panchayat for establishment permit on 26.04.2019. By Ext.P8, the Panchayat decided to constitute a Sub Committee. Though the Secretary of the Panchyath recommended to issue permit, the Panchayat Committee as per Ext.P9 decided to reject the same on the basis of Sub Committee report. Ext.P9 decision was taken after the time limit stipulated in Section 233(6) of the Panchayat Raj Act. Hence, the petitioner has deemed permission. Ext.P10 is the communication by which the petitioner was informed of Ext.P9 decision. Ext.P12 appeal filed by the_ **WP(C).No.8218 OF 2020(B)** **3** _petitioner before the Tribunal for Local Self Government Institutions was allowed in part as per Ext.P14. The decision of the Panchayat Committee was set aside. But the petitioner was directed to submit fresh application stating that one column in the application was not filled up and documents of title were not produced._ ## 2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : _1. “Call for the records leading to Ext.P14 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram and set aside the same to the extent it declined to direct the respondents to issue establishment permit to the petitioner._ _2. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to issue establishment permit to the petitioner for its quarry in Survey No.100/2A of Thimiri Village in Thaliparamba Taluk of Kannur District._ _3. Declare that the petitioner has deemed permission under Section 233 (6) the Kerala Panchayat Raj Act,1994 and the Rules made there under to operate the quarry in Survey No. 100/2A of Thimiri Village in Thaliparamba Taluk of Kannur District. 4. Pass such other order or direction as this Hon’ble Court may deem fit and proper on the facts and circumstances of the case.”_ 3. Heard Sri.T.B.Hood, learned counsel appearing for the petitioner. Though notice on the respondents have been duly served by email as well as by speed post, the respondents have not entered appearance in this case. Further, as per the order passed by this Court on 27.5.2020, the respondents were also alerted by the Liaison official of the Panchayat Department attached to the office of the Advocate General about the W.P.(C.) and the issuance of notice before admission in this case, so as to ensure the appearance of the respondents through their counsel, if any. However, in spite of all such steps taken by the Court, the respondents have **WP(C).No.8218 OF 2020(B)** **4** not entered appearance in this case. ## 4. In this case, this Court has already passed a detailed order ## dated 27.5.2020, which reads as follows : _“Sri.T.B. Hood, the learned counsel for the petitioner submits that both the respondents (Alakode Grama Panchayat, Kannur) has already been duly served through e-mail process in compliance with the directions issued by this Court on 17.03.2020. The said respondents-Alakode Grama Panchayat, Kannur authorities has also duly acknowledged about the pendency of this writ petition in their subsequent notice dated 21.05.2020, whereby it is stated that in view of the pendency of the present writ petition, petitioner shall not take any preparatory steps for establishment of the proposed quarry._ _2. In view of the above said aspects, it appears that the respondents have been duly served and it is not known as to why the said respondents have not entered appearance, so far._ _3. It is pointed out that the petitioner has already secured all the requisite license, permits, clearance, etc. for running of his quarry, as can be seen from Exhibit P1 communication approving the Mining Plan issued by the Geologist, Exhibit P2 Environmental Clearance, Exhibit P3 consent issued by the Kerala State Pollution Control Board, Exhibit P5 No Objection Certificate of the Additional District Magistrate, Kannur and Exhibit P6 license issued by the Deputy Chief Controller of Explosives, Ernakulam. Petitioner has submitted Exhibit P7 application before the 1[st] respondent-Alakode Grama Panchayat for issuance of the formal license for establishment of the unit on 26.04.2019. By Exhibit P8, the Panchayat has ordered to constitute a sub-committee and though the Secretary of the Panchayat recommended for grant of the license, the Panchayat committee, as per Exhibit P9 dated 21.06.2019, has ordered to reject the request of the petitioner for grant of license to establish the unit and communicated as per Ext.P10 letter dated 01.07.2019. It is pointed out that no decision has been duly taken and communicated by the petitioner within the mandatory time limit of 30 days as envisaged in Section 233(6) of the Kerala Panchayath Raj Act and therefore, petitioner has secured the benefit of deemed license as envisaged in the mandatory provisions of Section 233(6). That, aggrieved by Ext.P10 petitioner had approached the Tribunal for Local Self Government Institutions which is substantively allowed the plea of the petitioner as per Ext.P14 Appellate Order but as only taking the hyper technical view that the petitioner will have to submit fresh application on the ground that one column in the application was not filled up and documents of title were not produced, etc. It is further pointed out that these are only minor defects and even if true and could have been ordered to be rectified by the petitioner and that the substantive decision of the Tribunal in Ext.P14 judgment dated 06.03.2020 is in favour of the petitioner._ _4. Since the petitioner has secured all the necessary permits and license from the competent statutory regulatory authorities as above mentioned and as no decision has been communicated by the respondent-panchayath authorities within the mandatory period of 30 days from the date of submission of Ext.P7 application dated 26.04.2019, as envisaged in Section 233(6) of the Kerala Panchayath Raj Act, it is ordered that the petitioner will stand permitted to operate the quarry. However, this is subject to the condition that the petitioner should have secured all such necessary clearance/consents/licenses, as afore said_ **WP(C).No.8218 OF 2020(B)** **5** _from the afore said competent authorities concerned. This order will be in force for a period of two months._ _5. Further it is also ordered that in pursuance to the earlier order passed by this Court on 17.03.2020, Sri.K.J. Manu Raj is requested to once again alert both the respondent-Panchayath authorities through liaison official of the Panchayath department attached to the office of the Advocate General, about the pendency of the writ petition. If the respondents do not enter appearance in the afore said writ petition (civil) within the next two weeks, then there is no necessity to keep the writ petition (civil) pending any longer.”_ 5. From the pleadings and materials on record, it is seen that the petitioner has secured all the necessary licences/permission/consents etc. from the competent statutory regulatory authorities concerned like Ext.P1approved mining plan issued by the District Geologist, Ext.P2Environmental Clearance issued by the Kerala State Environment Impact Assessment Authority, Ext.P3-consent issued by the Kerala State Pollution Control Board, Ext.P5-NOC issued by the Additional District MagistrateKannur, Ext.P6-license issued by the Deputy Chief Controller of Explosives, Ernakulam for the establishment of the quarrying unit. The petitioner has also submitted Ext.P7 application before the 1[st] respondent-Grama Panchayat for licence for establishment of the quarrying unit on 26.4.2019. Further, it appears that by Ext.P8, respondent-Panchayat has ordered to constitute a sub-committee and though the 2[nd] respondent-Secretary of the Panchayat has recommended for the grant of licence in favour of the petitioner, the respondent – Panchayat committee as per Ext.P9 dated 21.6.2019 has ordered to reject the request of the petitioner for grant of licence to establish the unit, which has been communicated to the **WP(C).No.8218 OF 2020(B)** **6** petitioner as per Ext.P10 letter dated 1.7.2019. The petitioner has challenged the said rejection of the licence ordered as per Exts.P9 and P10 by filing Ext.P12 appeal. Further, it has been noted that though the petitioner has filed the abovesaid application for licence as aforesaid, no decision has been duly communicated to the petitioner by the respondentPanchayat within the mandatory outer time limit of 30 days as required in Sec.233(6) of the Kerala Panchayat Raj Act. 6. Therefore, it appears that going by the prescriptions, the petitioner has secured the benefit of deemed licence as envisaged in the said mandatory provisions as per Sec.233(6) of the Act. Further, being aggrieved by Ext.P10, the petitioner has also approached the Tribunal for Local Self Government Institutions, which has substantively allowed the plea of the petitioner as per Ext.P14 appellate order. However, a minor discrepancy has been noted by the Tribunal and as one of the relevant columns in the application was not filled up and documents of title have not produced etc. and it is only on account of this, the petitioner was directed by the Tribunal to file a fresh application. In a case like this, the Tribunal could have permitted the petitioner to cure the existing minor defects and the petitioner should have been given an opportunity to rectify such defects in the application, so that the substantive benefit of the appellate decision making process could have been given to the **WP(C).No.8218 OF 2020(B)** **7** petitioner. 7. The matter in issue is no longer _res integra_ and is fully covered in favour of the petitioner and against the respondent-Panchayat authorities by the legal principles laid down by the Full Bench of this Court in cases as in _**Tomy Thomas v. State of Kerala**_ [2019 (3) KLT 867 (FB)] and it will be profitable to refer para Nos. 22 to 25 of the judgment of the Full Bench of this Court in _**Tomy Thomas's case**_ (supra) [2019 (3) KLT 867 (FB)], which reads as follows : _“22. Under the amended provisions of Sub-section (3) of Section 233 of the Act, the Secretary or the officer authorised by him should conduct an enquiry and submit report to the Village Panchayat as to whether the establishment of the factory, workshop, workplace or other installation of machinery or manufacturing plant, for which the permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The Village Panchayat on consideration of the application and the report of the Secretary and of such other authorities as specified in subsection (4) may as expeditiously as possible, at any rate within thirty days grant the permission either absolutely or subject to such conditions as it thinks fit to impose. Sub-clause (a) and (b) of Sub-section (3) contained in the unamended provisions were omitted through the amendment. Sub clause (b) of sub-section (3) which enabled the Village Panchayat to refuse the permission for reason to be recorded, was omitted from the statute book. It gives a clear indication that the power of the Village Panchayat to refuse the permission has been taken away by the legislature._ _23. Consequent to the above noted amendments to Section 233 of the Act, the Licensing Rules were also amended. From the chart given as above it is evident that Rule 12 had undergone drastic changes. Under the unamended provision of Sub-rule (3) of Rule 12 the Village Panchayats were obliged to consider the application for permission within 45 days in case of obtaining no objection certificates from other establishments and within 30 days in other cases either to grant permission applied for, absolutely or subject to conditions or to refuse permission if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood or that it is likely to cause nuisance. The power vested on the Village Panchayat to refuse the permission as mentioned above contained under sub-clause (b) of Subrule (3) of Rule 12, was amended drastically. Under the amended sub-clause (b) it is provided that, if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, the Secretary shall as soon as may be after receipt of the application obtain an expert opinion of the department concerned with regard to determination of nuisance or its_ **WP(C).No.8218 OF 2020(B)** **8** _abatement, at the cost of the owner or person in-charge of the factory, workshop, workplace or machinery concerned and such report shall be furnished to the Village Panchayat as soon as possible not later than 30 days of reporting such nuisance. Further it is provided that, on furnishing of such report of the concerned department, the Village Panchayat shall issue permission subject to such conditions as may be required for abatement of the nuisance if any, as recommended in the expert opinion of the concerned department. From the amendment incorporated under Rule 12 (3) it is clear and evident that the power vested on the Village Panchayat to refuse the permission based on the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood or that itself likely to cause nuisance, has been taken away by the legislature. Through the amendment it is clarified that if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, then the Secretary shall obtain an expert opinion of the department concerned and shall place such report for consideration of the Village Panchayat. There also the Village Panchayat is only authorised to issue permission subject to such conditions as may be required for abatement of the nuisance, as recommended in the expert opinion of the concerned department. Therefore it is clear and evident that the power vested on the Village Panchayat to refuse the permission has been taken away by virtue of the amendments._ _24. As mentioned in the foregoing paragraphs, the amendments specified above were introduced through the Kerala Investment Promotion and Facilitation(No.2) (Act 14/2018). The object of introducing such an Act, as specified therein, is intended to give effect to certain proposals of the Government of Kerala to avoid delay in granting various licences, permissions, approvals and clearances required under various enactments. Therefore the intention of the legislature to bring such drastic amendment is clear and explicit. Hence it is to be observed that, from the date of enforcement of the amendments from 20th October, 2017, it cannot be said that Village Panchayats have got primacy of power to take an independent decision to reject the applications for permission/licence under provisions of the Act and the Licensing Rules, for construction or for establishment of any factory, workshop or work place. On the other hand, the Grama Panchayats (Village Panchayats) are obliged to grant permissions in cases where the authorities mentioned under Section 233 of the Act had issued such permissions or consents or no-objection certificates. Even if the panchayat is of the opinion that the construction or establishment of the factory, workshop or workplace is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance, then also the panchayat can only obtain expert opinion from the department concerned and it is obliged to issue permission for such construction or establishment subject to such conditions as may be required for abatement of the nuisance, if any, as may be recommended in the expert opinion of the concerned department._ 25. _Under the above mentioned circumstances the reference is answered by upholding the view taken in Ramapuram Grama Panchayat (supra) as the correct law. But we make it clear that the legal position has been changed by virtue of the amendments as mentioned above and the Village Panchayats do not enjoy any primacy of their power to refuse the applications seeking permission for construction or establishment of any factory, workshop or workplace, under Section 233 of the Kerala Panchayat Raj Act, on and from the date of enforcement of the amendments. ”_ **WP(C).No.8218 OF 2020(B)** **9** 8. Going by the abovesaid well settled legal principles laid down by the Full Bench of this Court in _**Tomy Thomas's case**_ (supra) [2019 (3) KLT 867 (FB)], in a case where the party has secured all the necessary permissions/consents/licences etc. from the competent statutory regulatory authorities like the District Geologist, State Pollution Control Board, State Environment Impact Assessment Authority, Deputy Chief Controller of Explosives, Additional District Magistrate etc. then it is well settled that the Panchayat authorities have no significant discretion to reject the plea for licence and it has to be allowed. However, in case, there are any complaints against the functioning of the unit, then certainly, the Panchayat authorities can refer those complaints to the statutory regulatory authorities concerned for their consideration and determination, in accordance with law. Moreover, there is no serious dispute that no adverse decision has been communicated to the petitioner within 30 days from the date of submission of Ext.P7 application and therefore, petitioner is even otherwise entitled to succeed by securing the benefit of deemed licence. 9. A reading of Ext.P14 order of the appellate Tribunal would clearly indicate that the Tribunal has made substantive findings in favour of the petitioner and has taken a hyper-technical view that the petitioner should cure certain defects in his application as can be seen from the last **WP(C).No.8218 OF 2020(B)** **10** ## paragraph of Ext.P14 order, which reads as follows : “ _In the result, the annexure P-8 decision of the Panchayat committee dated 21.06.2019 and the annexure P-8(a) letter dated 01.07.2019 are hereby set aside. The rights of the appellant to apply for an Establishment permit by complying all the procedural formalities along with sufficient documents of title, prior deed and documents for identification of the property is left open. In the event the appellant complying the procedural formalities and satisfying the 2[nd] respondent regarding the title, identification of its property proposed for quarrying operations and as free from ban, the 2[nd] respondent shall consider the application on merits as per Rule 12 of the Panchayat Raj (Issuance of licence to Factories, Trades, Entrepreneurship activities and Other Services) Rules, among other provisions of law applicable thereto, independently. This appeal is allowed in part, accordingly.”_ 10. In view of the abovesaid aspects, the Tribunal should not have taken such a technical stand and could have substantively allowed the plea of the petitioner and any minor technical defects in the application would have been directed to be cured by the petitioner. One of the defects pointed out is that in item No.4 of Ext.P7 application, the petitioner has not given the details of the machinery proposed to be used in the quarrying unit and that the petitioner has not produced the title deeds. As regards the title deed, it is pointed out by the petitioner that petitioner has already produced the prior title deed etc. before the District Geologist concerned and it is only after the meticulous examination of those aspects that the District Geologist has issued Ext.P1 approved mining plan. As regards item No.4 of Ext.P7, the petitioner may give the details of the machinery to be used in the quarrying unit to the 2[nd] respondent-Secretary of the Grama Panchayat. 11. Subject to these aspects, this Court is of the considered view **WP(C).No.8218 OF 2020(B)** **11** that there are no valid grounds available for the respondents to reject the application for licence of the petitioner and the rejection order as per Ext.P10 is said to be illegal, unreasonable and improper. Accordingly, the impugned decision of the respondents to reject Ext.P7 application of the petitioner as per Exts. P9 and P10 will stand set aside and quashed. 12. However, the petitioner produce attested photocopies as well as the originals of the title deed and prior deed and should also furnish the details of the machinery proposed to be used by him for running of the quarrying unit in terms of item No.4 of Ext.P7 application. The petitioner may produce these documents before the 2[nd] respondent-Secretary of the Grama Panchayat after verification of the original deeds, the 2[nd] respondent-Secretary of the Grama Panchayat will return back the originals of the deeds after retaining the attested copies thereof. On the petitioner complying these requirements, the competent authority of the respondents will pass formal orders granting licence to the petitioner, as sought for in Ext.P7 application and this shall be done within 2 weeks from the date of production of the abovesaid documents and the requisite details, along with the certified copy of this judgment. In the meanwhile, it is ordered that the petitioner will stand permitted to operate the unit as already directed in the order dated 27.5.2020, subject to the condition that the petitioner should comply with all the terms and conditions of the **WP(C).No.8218 OF 2020(B)** **12** requisite clearances/consents/licences as aforesaid issued by the competent regulatory authorities concerned as well as the terms and conditions in the Panchayat licence. 13. The impugned Ext.P14 order of the appellate Tribunal will stand modified as directed hereinabove. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS **WP(C).No.8218 OF 2020(B)** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE COMMUNICATIOND ATED 06-112017 ISSUED TO PETITIONER BY THE GEOLOGIST, KANNUR** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE ENVIRONMENTAL CLEARANCE NO. 83/2017 DATED 05-01-2018 ISSUED TO THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE CONSENT TO OPERATE DATED 16-01-2018 ISSUED TO THE PETITIONER BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 01-022019 OF THE ADDITIONAL DISTRICT MAGISTRATE, KANNUR.** - **EXHIBIT P5 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED TO THE PETITIOENR BY THE ADDITIONAL DISTRICT MAGISTRATE, KANNUR** - **EXHIBIT P6 TRUE COPY OF THE LICENSE DATED 11-04-2019 ISSUED TO THE PETITIONER BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM.** - **EXHIBIT P7 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 2604-2019** - **EXHIBIT P8 TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE PANCHAYAT COMMITTEE MEETING OF THE 1ST RESPONDENT HELD ON 18-05-2019.** - **EXHIBIT P9 TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE PANCHAYAT COMMITTEE MEETING OF THE 1ST RESPONDENT HELD ON 21-06-2019.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 01-072019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE CADASTRAL PLAN OF SURVEY NO. 100/2A OF THIMIRI VILLAGE OF THALIPARAMBA TALUK.** **EXHIBIT P12 TRUE COPY OF THE AMENDED MEMORANDUM IN APPEAL NO. 499/2019 OF THE TRIBUNAL FOR** **WP(C).No.8218 OF 2020(B)** **14** ||**LOCAL SELF GOVERNMENT INSTITUTIONS,**| |---|---| ||**THIRUVANANTHAPURAM DT 17-7-19**| |**EXHIBIT P13**|**TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY**| ||**THE 2ND RESPONDENT WITH EXHIBITS.**| |**EXHIBIT P14**|**TRUE COPY OF THE ORDER DATED 06-03-2020 IN**| ||**APPEAL NO. 499/2019 OF THE TRIBUNAL FOR**| ||**LOCAL SELF GOVERNMENT INSTITUTIONS,**| ||**THIRUVANANTHAPURAM.**|