High Court of KeralaSingle Judge2023-07-10Disposed of

K.K. Premkumar v. Maloor Grama Panchayat and Secretary, Maloor Grama Panchayat

Case / Petition Number:WP(C) No.39182 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-07-10
Court Decision / Holding: Ext. P12 cannot stand. The court directs the respondents to process the petitioner’s application for licence under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994, on the petitioner executing an undertaking that quarrying will be confined to 1.4621 hectares in Re-survey No. 1/100, 1 and 9 as described in the Environmental Clearance. If the undertaking is given, the Panchayat authorities shall decide and grant permission or licence, if otherwise eligible, within two months of receipt of the undertaking. The writ petition is disposed of accordingly.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

K.K. Premkumar

Respondents

Maloor Grama Panchayat
The Secretary, Maloor Grama Panchayat

Legal Representation & Advocates

Counsels for Petitioners

• Elvin Peter P.J.
• K.R. Ganesh Gouri Balagopal
• Abhi jith K. Anirudhan
• Sreelekshmi A.S.
• Anu Joseph

Counsels for Respondents

• K.P. Harish
• V. Harish Rajan
• VishnuraJ

Case Synopsis & Summary

Petitioner K.K. Premkumar seeks a licence under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994, to establish a quarrying unit in Maloor Grama Panchayat. He has obtained Environmental Clearance from the State Environmental Impact Assessment Authority, a Letter of Intent from the Mining and Geology Department, a Consent to Operate from the Kerala State Pollution Control Board, and an Explosives Licence. The Panchayat rejected the licence via Ext. P12. The petitioner contends Ext. P12 is illegal and relies on Sinoj Thomas v. Balal Grama Panchayat (W.P.(C) No.11840/2023) to argue that regulatory authorities’ sanctions must not be negated by a Panchayat’s decision. Standing Counsel submitted that documents show anomalies: survey numbers and land extent vary across papers; the NGT is considering a petition/appeal on the quarry; the area is landslide-prone and environmentally sensitive; Therefore, the Panchayat’s decision not to issue a licence is argued to be prudent. The Court notes that Environmental Clearance specifies 1.4621 hectares (Re-survey No. 1/100, 1 and 9); LoI shows 1.1129 hectares. The discrepancy can be reconciled by the petitioner undertaking to quarry only within the 1.4621 ha area as described in the clearance. The Court holds Ext. P12 cannot stand and directs processing the licence on the undertaking, within two months, if otherwise eligible. It also clarifies that pendency before the NGT cannot stall the statutory licensing process, citing the Sinoj Thomas principle that expert opinions govern environmental concerns over Panchayat deliberations.

Provisions of Law Cited

Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994

Legal Doctrines & Maxims

When competent and specialized statutory authorities have considered environmental pollution, disaster, etc., Panchayat authorities are bound to follow their decision unless there are contrary opinions supported by expert opinion.
Pendency before the National Green Tribunal cannot stall the licensing process.
Threat of landslide and environmental issues are not issues which can be decided by majority opinion in Panchayat Committees; expert opinion controls.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that after obtaining Environmental Clearance from the State Level Environmental Impact Assessment Authority, a Letter of Intent from the Mining and Geology Department, a Consent to Operate from the Kerala State Pollution Control Board, and an Explosives Licence, he is entitled to a licence under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994. Ext. P12 (the Panchayat’s order) rejecting the licence cannot stand. It is argued that the discrepancy in survey numbers and land extent across Exts. P1–P8 can be corrected; the land area for quarrying is 1.4621 hectares per Environmental Clearance (Re-survey No. 1/100, 1 and 9). The LoI shows 1.1129 hectares; the omission of survey numbers in LoI was a clerical error corrected by updated clearance. Pendency before the NGT does not bar licensing, as per Sinoj Thomas. The petitioner offers to undertake to quarry within the specified area and to submit an undertaking limiting quarrying to 1.4621 hectares; licensing should be processed within two months if otherwise eligible.

Contentions of Respondents

Respondents submitted that the petitioner’s documents show anomalies—survey numbers and land extents vary across documents; until land particulars are validated, issuing a D&O licence would be improper. There is a pending petition before the National Green Tribunal on the quarry; the proposed site is landslide-prone and environmentally sensitive; while Sinoj Thomas is cited, the matter requires conformity with expert environmental opinions and statutory approvals. Hence Ext. P12 should not be set aside without addressing these concerns.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sinoj Thomas v. Balal Grama Panchayat and another	W.P.(C) No.11840/2023	Positive	Court relies on Sinoj Thomas to hold that regulatory environmental decisions by competent authorities bind Panchayats, unless opposed by expert opinion.
W.A No.962 of 2022	W.A No.962 of 2022	Mentioned Only	Judgment is cited as an exhibit but not discussed in the present decision.
WP(C) No.20583 of 2021	WP(C) No.20583 of 2021	Mentioned Only	Judgment is referenced in exhibits; not analyzed in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945** ## **WP(C) NO. 39182 OF 2022** ## **PETITIONER:** K.K.PREMKUMAR AGED 60 YEARS, S/O. KUNHIRAMAN, KOLANTHARA HOUSE, MELMURINGODI P.O., MANATHANA, KANNUR-670 673. BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S. ANU JOSEPH ## **RESPONDENTS:** 1 THE MALOOR GRAMA PANCHAYATH MALOOR.P.O., KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, MALOOR GRAMA PANCHAYAT, MALOOR.P.O., KANNUR DISTRICT. BY ADVS. K.P.HARISH V.HARISH RAJAN VISHNURAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) No.39182 of 2022 ..2.. ## **J U D G M E N T Dated this the 10th day of July, 2023** The petitioner's application for licence under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994, (hereinafter referred to as 'the Act, 1994') for establishing a quarrying unit in Maloor Grama Panchayat is not being positively considered by the Panchayat authorities, contends the petitioner. 2. The petitioner has obtained Environmental Clearance from the State Environmental Impact Assessment Authority, a Letter of Indent (LoI) from the Mining and Geology Department and Consent to Operate from the Pollution Control Board (PCB). The petitioner has also obtained Explosives Licence from the competent authority. Inspite of obtaining all these licences/permits/consents, the petitioner's application for licence under Sections 232 and 233 of the Act, 1994 has been rejected by the Grama W.P(C) No.39182 of 2022 ..3.. Panchayat as per Ext.12 order. The petitioner submits that Ext.P12 order cannot stand the scrutiny of law, especially in view of the law laid down by this Court in Sinoj Thomas v. Balal Grama Panchayat and another (W.P.(C) No.11840/2023). 3. Standing Counsel entered appearance and resisted the writ petition. The Standing Counsel pointed out that the documents produced by the petitioner are anomalous inasmuch as the survey numbers and extent of property are described variedly in different documents. The petitioner was informed of this anomaly. Unless the petitioner gets licences showing the very same survey numbers and extent, it will not be proper for the Grama Panchayat authorities to issue a licence under Sections 232 and 233 of the Act, 1994. 4. The Standing Counsel further submitted that there is a petition/appeal pending in the National Green Tribunal (NGT) in respect of the quarry proposed by the petitioner. Therefore, when the matter is under consideration of the W.P(C) No.39182 of 2022 ..4.. NGT, it will not be proper for the Panchayat authorities to grant D&O licence. It is further submitted that the area where the petitioner proposes to establish quarry is an area prone to land slide and environmental disasters. For that reason also, the Panchayat Committee has decided not to issue licence to the petitioner. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 6. The first objection pointed out by the Panchayat authorities is that the extent and survey numbers of land are differently mentioned in distinct documents. I find that the land extent is stated as 1.4621 hectares in Re-survey No.1/100, 1 and 9 in the Environmental Clearance issued by the State Level Environmental Impact Assessment Authority. The very same survey numbers are given in Ext.P8 Consent of the Pollution Control Board also. But, the PCB Consent does not give the extent of property. In the LoI, the extent is shown as 1.1129 hectares and survey numbers are recorded W.P(C) No.39182 of 2022 ..5.. as 1 and 9 only. The counsel for the petitioner would submit that the omission of survey numbers was a mistake and the petitioner has obtained LoI with the correct survey numbers. 7. Be that as it may, since the State Environmental Impact Assessment Authority has granted Environmental Clearance for 1.4621 hectares of land specifying the resurvey numbers, the petitioner cannot carry out quarrying activities anywhere else than the land and area mentioned in the Environmental Clearance. Therefore, the issue of discrepancy can be solved, if the petitioner submits an undertaking before the Panchayat authorities that he will carry out quarrying operations only in the 1.4621 hectares of land in Re-survey No. 1/100, 1 and 9 as described in the Environmental Clearance. 8. As regards the objection of the Panchayat relating to pendency of a case before the NGT, I am of the view that as long as the NGT has not passed any adverse order against the petitioner or directing the Panchayat authorities to W.P(C) No.39182 of 2022 ..6.. desist from processing licences of the petitioner, the pendency of an appeal before the NGT by itself cannot stall the statutory process of licensing. 9. As regards the concern expressed by the Panchayat authorities with regard to the possible landslide and environmental disaster, the issue has been considered by this Court in the judgment in Sinoj Thomas (Supra) and in the said case, this Court held that when the competent and specialized statutory authorities have considered the aspects of environmental pollution, disaster, etc., the Panchayat authorities are bound to follow their decision unless there are contrary opinions supported by expert opinion. The threat of landslide and environmental issues are not issues which can be decided by majority opinion in Panchayat Committees. 10. In view of the above, I find that Ext.P12 cannot stand the scrutiny of law. Ext.P12 is therefore set aside. There will be a direction to respondents 1 and 2 to process the application of the petitioner for licence under Sections W.P(C) No.39182 of 2022 ..7.. 232 and 233 of the Act, 1994, on the petitioner executing an undertaking before the Panchayat authorities relating to the survey numbers and quarrying area, as indicated hereinabove. On the petitioner submitting such an undertaking, the Panchayat authorities shall consider and grant permission or licence to the petitioner under Sections 232 and 233 of the Act, 1994, if the petitioner is otherwise eligible. The respondents shall take a decision in the matter within a period of two months from the date of receipt of the undertaking given by the petitioner. The writ petition is disposed of as above. **Sd/N. NAGARESH JUDGE** TR W.P(C) No.39182 of 2022 ..8.. ## **APPENDIX OF WP(C) 39182/2022** ## PETITIONER EXHIBITS |Exhibit P1|TRUE PHOTOCOPY OF THE QUARRYING LEASE| |---|---| ||DATED 26.2.1998 ENTERED INTO BETWEEN| ||THE PETITIONER AND THE STATE.| |Exhibit P2|TRUE PHOTOCOPY OF THE QUARRYING LEASE| ||DEED ENTERED INTO BETWEEN THE| ||PETITIONER AND THE STATE FOR A PERIOD| ||OF 10 YEARS COMMENCING FROM 1.3.2010| ||TO 29.2.2020| |Exhibit P3|TRUE PHOTOCOPY OF THE D & O LICENSE| ||DATED 23.6.2012 ISSUED BY THE 1ST| ||RESPONDENT PANCHAYATH FOR CONDUCTING| ||MINING OPERATIONS IN EXT.P2 LEASED| ||LAND FOR THE YEAR 2012-2013.| |Exhibit P4|TRUE PHOTOCOPY OF THE D & O LICENSE| ||DATED 22.4.2013 ISSUED BY THE 1ST| ||RESPONDENT PANCHAYATH FOR THE PERIOD| ||2013 TILL 31.3.2014.| |Exhibit P5|TRUE PHOTOCOPY OF THE D & O LICENSE| ||DATED 8.10.2018 ISSUED BY THE 1ST| ||RESPONDENT PANCHAYAT FOR THE YEAR| ||2018-2019| |Exhibit P6|TRUE PHOTOCOPY OF LETTER OF INTENT| ||DATED 25.5.2007 ISSUED BY THE DIRECTOR| ||OF MINING AND GEOLOGY TO THE| ||PETITIONER| |Exhibit P7|TRUE PHOTOCOPY OF THE PROCEEDINGS OF| ||THE STATE ENVIRONMENT IMPACT| ||ASSESSMENT AUTHORITY WITH| ||ENVIRONMENTAL CLEARANCE NO 36/Q/2022| ||DATED 11.7.2022| |Exhibit P8|TRUE PHOTOCOPY OF THE CONSENT ISSUED| ||BY THE KERALA STATE POLLUTION CONTROL| ||BOARD DATED 17.9.2022| |Exhibit P9|TRUE PHOTOCOPY OF THE EXPLOSIVE| ||LICENSE DATED 26.3.2019 ISSUED BY THE| ||DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,| ||ERNAKULAM| |Exhibit P10|TRUE PHOTOCOPY OF THE APPLICATION| ||DATED 19.10.2022 SUBMITTED BY THE| ||PETITIONER BEFORE THE 1ST RESPONDENT| W.P(C) No.39182 of 2022 ..9.. ## PANCHAYAT. Exhibit P11 Exhibit P12 Exhibit P13 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 29.10.2022 ISSUED BY THE 1DST RESPONDENT PANCHAYAT TRUE PHOTOCOPY OF THE ORDER DATED 15.11.2022 ISSUED BY THE RESPONDENTS TO THE PETITIONER TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 21.2.2022 IN WPC NO 28202/2021. RESPONDENT EXHIBITS Exhibit R3(a) Exhibit R3(b) Exhibit R3(C) Exhibit R3(d) Exhibit R3(e) Exhibit R3(f) Exhibit R3(g) Exhibit R3(h) A TRUE COPY OF THE NOTIFICATION DATED 15.01.2016 ISSUED BY MOEF & CC. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE GEOLOGIST, KANNUR DATED 17.07.2019 TO THE PETITIONER. A TRUE PHOTOCOPY OF THE JUDGMENT IN W.A NO.962 OF 2022 DATED 20.09.2022. A TRUE COPY OF THE G.O(MS) NO.4/2014/ENVT DATED 19.03.2014. A TRUE COPY OF THE JUDGMENT IN WP(C) NO.20583 OF 2021 DATED 04.01.2022. A TRUE COPY OF THE RELEVANT PAGES OF THE DISASTER MANAGEMENT PLAN, 2016. A TRUE COPY OF THE G.O(RT) NO.3667/2006/DMO DATED 09.09.2016 ISSUED BY THE DISASTER MANAGEMENT DEPARTMENT. A TRUE PHOTOCOPY OF THE DAILY ORDER DATED 22.11.2022 IN APPEAL NO.43 OF 2022(SZ) BEFORE THE NATIONAL GREEN TRIBUNAL (SZ) CHENNAI.