M.Ajanta Proprietrix; M/S Sivamurugan Granites; Thushara v. Nagaaroor Grama Panchayat & Secretary, Nagaaroor Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 4TH DAY OF JUNE 2018 / 14TH JYAISHTA, 1940** **WP(C).No. 11623 of 2018** ## **PETITIONER(S)** **M.AJANTHA PROPRIETRIX, M/S. SIVAMURUGAN GRANITES, THUSHARA, KP-V/745-A, NELLIKUNNU, NEDUMPARAMBU P.O, THIRUVANANTHAPURAM.** **BY ADVS.SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL** ## **RESPONDENT(S):** **1. NAGAROOR GRAMA PANCHAYAT NAGAROOR P.O THIRUVANANTHAPURAM-695605. REPRESENTED BY THE SECRETARY.** ## **2. SECRETARY** **NAGAROOR GRAMA PANCHAYAT, NAGAROOR PO, THIRUVANANTHAPURAM-695 605.** **R1-R2 BY ADV. SRI.K.SIJU R1-R2 BY ADV. SMT.RENY ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11623 of 2018 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE QUARRYING LEASE DATED 21/11/2011 VALID TILL 20/11/2031 ISSUED TO THE PETITIONER FOR CARRYING OUT QUARRYING OPERATIONS.** **EXHIBIT P2 A TRUE COPY OF THE CONSENT TO OPERATE DTD.21/01/2016 VALID TILL 31/5/2018 ISSUED BY THE POLLUTION CONTROL BOARD.** **EXHIBIT P3 TRUE COPY OF THE LETTER DTD.4/11/2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18/9/2017 IN WP(C) NO.24031/2017 ON THE FILES OF THIS HON'BLE COURT.** **EXHIBIT P4(A) TRUE COPY OF THE CERTIFICATE DATED 28/9/2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 24/2/2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 9/3/2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE 1ST PAGE OF THE PANCHAYAT RAJ ACT 1994 AND SECTION 233B AS ENACTED IN MALAYALAM LANGUAGE.** **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 20/3/2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P8(A) TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENTS EXHIBITS;NIL** ## **//TRUE COPY//** **P.ATO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. ................................................................... W.P.(C).No.11623 Of 2018 ..................................................................... Dated this the 4[th] day of June, 2018** ## **J U D G M E N T** The petitioner, who is carrying on quarrying operations had applied for a renewal of the Dangerous and Offensive (D & O) license that was granted to him by the respondent Panchayat. The said application was rejected by Ext.P6 order stating that the renewal application could not be considered on merits since the petitioner had not obtained a permission in terms of Section 233 of the Kerala Panchayat Raj Act. In the writ petition, it is the specific case of the petitioner that in the quarrying unit, he uses only a portable drilling machine for the purposes of the quarrying activities and, inasmuch as the said machine is exempted in terms of Section 233B (d) of the Act, the requirement of taking a permit in terms of Section 233 does not arise in his case. The prayer in the writ petition therefore is for quashing Ext.P6 order and directing the respondents to consider and pass orders on the application for renewal of D & O license, afresh, taking note of the statutory provision governing issuance of a permit under Section 233. 2 **W.P.(C).No.11623 Of 2018** 2. A statement has been filed on behalf of the respondent Panchayat, wherein reference is made to a decision of this Court in **Mathai John v. District Collector [2015 (3) KLT 195],** where considering a similar issue and interpreting the very same provision a learned Single Judge found that the word portable drilling machine used in Section 233B (d) would refer only to such machines as are used for construction purposes alone, and not other purposes. It is contended placing reliance on the said decision that inasmuch as the petitioner cannot aspire for the exemption under Section 233B (d), he would be obliged to get the permit in terms of Section 233 as a precondition for carrying on quarrying activities under cover of the D & O license. Ext.P6 order rejecting the application for renewal of D & O license is sought to be justified on the said ground. 3. I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the respondent Panchayat. 4. The learned counsel for the petitioner places reliance on 3 **W.P.(C).No.11623 Of 2018** the Malayalam version of the Kerala Panchayat Raj Act, 1994 and submits that the Act was originally enacted in Malayalam and received the assent of the Governor on 23.04.1994 and was published in the Kerala Gazette Extraordinary No.365 dated 23.04.1994. It was thereafter that an authorised translation in English was published in the Kerala Gazette Extra Ordinary No.675 dated 10.07.1995. In the Malayalam version, the provisions of Section 233B (d) read as follows: “233 ബ�. ഒഴ�വ�കൽ.- 233- വകപ�ൽ എനതന� അടങ�യ�ര��ല�, അതത സ�ഗത�പ��ന� ത�നഴ �റയ� യനങപ!� ഉൽപ�ദന യണ�റകന!� വ)വസയ യണ�റകന!� സ���ക�ത�ന, ഗ�മ�ഞ�യത�ന1 അനവ�ദ� ആവശ)മളതല, അത�യത, - (എ) …....... (ബ�) ........... (സ�) ........... (ഡ�) നക�ണനടക�വ� തര� ഡ�ല��ഗ, യനങള�; പക�ൺക@റ, മ�കറകൾപ��ന� ന�ർമ�ണ�വശ)ത�ന�പയ�ഗ�ക�വ� നക�ണനടക�വ� തര� യനങള�;” The English translation of the same provision reads as follows: **“233B.Exemption** .-Notwithstanding anything contained in Section 233, no permission of Village Panchayat shall be required for the installation of establishment of the following machinery or manufacturing plants or industrial 4 **W.P.(C).No.11623 Of 2018** units, as the case may be, namely:-- (a) ….... (b) ….... (c) ….... (d) portable drilling machines and portable engines used for constructions purpose such as concrete mixers;” It can be seen from a comparison of the two provisions that there is a patent error that was occasioned in the translation of the original enactment. The meaning attributable to Clause (d) of Section Section 233B, as discernible from the Malayalam version of the enactment, is clear in that the exemption applies to portable drilling machines as also to portable engines used for construction purposes such as concrete mixers. It is also significant to note that if the legislative intention was to confine the exemption to portable machines and engines used for construction purposes, then there was no necessity for using the word “Portable” twice, to qualify both the drilling machines and engines separately, in the English translation of Section 233B (d). The provision would, in that event, have read as “portable drilling machines and engines used for construction purposes such as concrete mixers. At any rate, going by the express provisions in the originally enacted Malayalam 5 **W.P.(C).No.11623 Of 2018** version of the Act, the intention is clear that the exemption was contemplated for portable drilling machines, irrespective of the industrial sector in which they were used. I therefore find that the decision in **Mathai John v. District Collector [2015 (3) KLT 195],** inasmuch as it does not refer to the provisions of the original enactment in Malayalam, and proceeds only on an interpretation of the english translation of the statutory provision, is per incuriam, and therefore, cannot be treated as a valid precedent for deciding the issue in question. I therefore, dispose the writ petition by declaring that, in the event of the petitioner using only a portable drilling machine in the quarry operated by him, he would not require an establishment permit under Section 233 of the Kerala Panchayat Raj Act for the said activities. The respondent Panchayat shall consider the application for renewal of D & O license submitted by the petitioner for the year 2018-2019, afresh, in the light of the observations in this judgment, within two weeks from the date of receipt of a copy of this judgment and to enable the Panchayat to do so, I quash Ext.P6 order. It is made clear that nothing in this judgment shall stand in the way of the Panchayat insisting on a permit under Section 233, if it finds that the petitioner is using other machinery in his quarry, which would **W.P.(C).No.11623 Of 2018** 6 necessitate the taking of a permit in terms of Section 233 of the Panchayat Raj Act. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/05.06.18