Kalodi Muhammed v. Anakkayam Grama Panchayath, Malappuram District, The Secretary, Anakkayam Grama Panchayath, Malappuram District, and Directorate of Mining and Geology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** ## **WP(C).No. 40892 of 2018** ## **PETITIONER/S:** **KALODI MUHAMMED, AGED 60 YEARS, S/O. HYDRU, KALODI HOUSE, P.O. KALLARMANGALAM, MALAPPURAM DISTRICT - 673 553.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S. THAMPI** ## **RESPONDENT/S:** **1 ANAKKAYAM GRAMA PANCHAYATH, ANAKKAYAM P.O., MALAPPURAM DISTRICT - 676 509, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, ANAKKAYAM GRAMA PANCHAYATH, ANAKKAYAM P.O., MALAPPURAM DISTRICT - 676 509. 3 THE DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM - 695 004. R1 & R2 - BY ADV. SRI.K.T.SIDHIQ R3 - SMT.RAJI.T.BHASKAR,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.40892 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the 2[nd] respondent, i.e., the Secretary of the Anakkayam Grama Panchayat, Malappuram District, whereby the D&O licence sought for by the petitioner was declined on the ground that there is wide public protest against the quarry. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is issued with Exts.P1 to P4 licences and permissions by the State Environment Impact Assessment Authority, Kerala, Deputy Chief Controller of Explosives, Ernakulam, Kerala State Pollution Control Board and as per the provisions of the Kerala Minor Mineral Concession Rules, 2015, which are current and in force. Petitioner when sought for renewal of D&O licence from the respondent Panchayat, it was rejected relying upon the decision of the Panchayat Committee. When the licence was declined earlier, petitioner has approached the Tribunal for Local Self Government Institutions and the Tribunal has passed Ext.P5 order, directing the 2[nd] respondent to consider the application for D&O licence independently. But, by the time Ext.P5 order was issued, the period of W.P.(C) No.40892 of 2018 3 application for D&O licence was over, and thereupon, petitioner submitted Ext.P6 application. The said application was rejected assigning the very same reason, which was rejected by the Tribunal as per Ext.P5 order. Thus, petitioner again approached the Tribunal by filing Appeal No.401/2018, which was allowed as per Ext.P10 order, whereby the 2[nd] respondent was directed to consider Ext.P6 application independently. Thereupon, now Ext.P11 impugned order is passed, rejecting the application. Therefore, according to the petitioner, since the petitioner is having all necessary licence/clearances from the respective statutory authorities, the Secretary of the Grama Panchayat is duty bound to issue the D&O licence to the petitioner. 3. A detailed counter affidavit is filed by respondents 1 and 2, refuting the allegations and claims and demands raised by the petitioner. The sum and substance of the contention advanced by the said respondents is that, consequent to the quarrying operations conducted by the petitioner earlier, substantial damages are caused to residential buildings which are situated 400 metres away from the quarry operated by the petitioner. It is also pointed out W.P.(C) No.40892 of 2018 4 that, on inspection, it was found that damages are caused to residential buildings which was pointed out by the residents of the locality and since the quarry is situated on the upper portion of a hill, likelihood of damages are more, and it was taking into account the said aspects and other _pros and cons_ , the decision was taken by the Secretary as per Ext.P11 to decline D&O licence to the petitioner. It is also pointed out that, even though the other authorities have issued clearances to the petitioner, the Secretary of the Grama Panchayat is entitled to take a decision in accordance with law, irrespective of the clearances granted by other statutory authorities. 4. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition, and also pointing out the proposition of law laid down by this Court in ' _**Ramapuram Grama Panchayat v. St. Basil Industries India Pvt. Ltd. and Others**_ ' [2016 (3) KHC 118 (DB)], laying down the proposition that, once clearances are issued by other authorities, then the Panchayat is duty bound to issue licence to the applicant. Petitioner has also produced Ext.P13 Survey Map, showing that there are no nearby residential buildings so as to create any legal inhibition for the 5 W.P.(C) No.40892 of 2018 petitioner to carry out the quarrying operations. 5. I have heard the rival submissions made across the Bar and perused the pleadings and the documents on record. 6. The subject issue revolves around Ext.P11 order passed by the Secretary of the Grama Panchayat. In the order passed by the Secretary, it is only stated that the Secretary has visited the quarry site and nearby premises, and the Secretary could understand that the complaints made by various persons are genuine. However, nothing is spelt out with respect to the nature of complaints submitted by the residents of the locality and the truth and veracity of the same, arrived at by the Secretary of the Grama Panchayat. But, in the counter affidavit filed by respondents 1 and 2, various issues are put forth including damages caused to the buildings, threat remaining consequent to the peculiar situation of the quarry in the top of a hill etc. etc. In my considered view, when the Secretary was directed to take a decision by the Tribunal, the Secretary ought to have considered the application submitted by the petitioner and the complaints submitted by other persons, after providing sufficient opportunity to both parties, including W.P.(C) No.40892 of 2018 6 serving of copies of documents relied upon by the Secretary of the Grama Panchayat. 7. It is true, if there are complaints made by residents of the locality, the Secretary of the Panchayat is at liberty to consider such issues in accordance with law. But, there is no doubt in my mind to say that, in that process, the Secretary ought to have served copies of the complaints received from the residents and provided sufficient opportunity to the petitioner to participate in the proceedings. On a reading of Ext.P11, it is quite clear and evident that such a process is not undertaken by the Secretary before passing Ext.P11 order. Moreover, no reasons are assigned other than stating that the Secretary is satisfied with the complaints made by the residents of the locality. Therefore, Ext.P11 order passed by the Secretary suffers from the vice of arbitrariness and illegality, liable to be interfered with by this Court under Article 226 of the Constitution of India. 8. Therefore, I quash Ext.P11 and direct the Secretary of the Grama Panchayat to re-consider the issue after providing sufficient opportunity of hearing and participation to the petitioner as well as the complainants. There will be a direction to the W.P.(C) No.40892 of 2018 7 Secretary to serve copy of the complaints to the petitioner and any other documents relied upon by the Secretary to arrive at a just and fair conclusion to the subject issue. A finality shall be attained, at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.40892 of 2018 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PROCEEDINGS**| |---|---| ||**NO.1160/EC/SEIAA/KL/2017 OF THE STATE**| ||**ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,**| ||**KERALA DATED 17/3/2018.**| |**EXHIBIT P2**|**TRUE COPY OF THE PERMISSION**| ||**NO.E/SC/KL/22/1013 (E48821) OF THE DEPUTY**| ||**CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM**| ||**DATED 7/10/2009.**| |**EXHIBIT P3**|**TRUE COPY OF THE INTEGRATED CONSENT TO**| ||**OPERATE-RENEWAL NO.7464432 OF THE KERALA**| ||**STATE POLLUTION CONTROL BOARD DATED**| ||**20/4/2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE COMMUNICATION**| ||**NO.6827/M3/2017 DATED 26/7/2017 ISSUED BY**| ||**THE THIRD RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER IN APPEAL NO.972 AND**| ||**973 OF 2016 OF THE TRIBUNAL FOR LOCAL SELF**| ||**GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM**| ||**DATED 9/4/2018.**| |**EXHIBIT P6**|**TRUE COPY OF THE APPLICATION SUBMITTED BY**| ||**THE PETITIONER BEFORE RESPONDENTS 1 AND 2**| ||**DATED 23/4/2018.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER NO.A4-2623/18 OF THE**| ||**2ND RESPONDENT DATED 6/6/2018.**| |**EXHIBIT P8**|**TRUE COPY OF THE DECISION NO.9/1 OF THE 1ST**| ||**RESPONDENT DATED 24/5/2018.**| |**EXHIBIT P9**|**TRUE COPY JUDGMENT IN W.P.(C) NO.23805 OF**| ||**2018 DATED 8/8/2018.**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR**| ||**LOCAL SELF GOVERNMENT INSTITUTIONS**| ||**THIRUVANANTHAPURAM IN APPEAL NO.401 OF 2018**| ||**DATED 9/11/2018.**| |**EXHIBIT P11**|**TRUE COPY OF THE ORDER NO.A4-2623/2018 OF**| ||**THE SECOND RESPONDENT DATED 7/12/2018.**| |**EXHIBIT P12**|**TRUE COPY OF THE RELEVANT PAGES OF KERALA**| ||**INVESTMENT PROMOTION AND FACILITATION**| ||**(NO.2) ACT 2018.**| 9 W.P.(C) No.40892 of 2018 **EXHIBIT P13** - **TRUE COPY OF THE CERTIFICATE NO.DOM/M3171/2017 DATED 23/10/2017 ISSUED BY THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, MALAPPURAM TO THE PETITIONER.** **TRUE COPY OF THE SURVEY MAP ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P14** - **TRUE COPY OF THE LICENSE NO.A4-1028/18(4) DATED 31/03/2018 ISSUED BY THE ANAKKAYAM GRAMA PANCHAYATH IN FAVOUR OF THE MANAGING PARTNER, PULLANCHERI GRANITE INDUSTRIES, MANJERI.** - **EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 05/09/2018 IN W.P.(C) NO.20965/2018 OF THIS HON'BLE COURT.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A)** MAHAZAR PREPARED BY THE 2ND RESPONDENT. //TRUE COPY// P.S. TO JUDGE St/-