M/S Adani Vizhinjam Port Pvt. Ltd. v Aryanadu Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 WP(C) NO. 35965 OF 2022** ## **PETITIONER:** M/S. ADANI VIZHINJAM PORT PVT. LTD. HAVING ITS REGISTERED OFFICE AT ADANI CORPORATE HOUSE, SHANTIGRAM, NR.VAISHNO DEVI CIRCLE, S.G HIGHWAY, AHMEDABAD, GUJARAT - 382 421. AND HAVING ITS BRANCH OFFICE AT CITY OFFICE, 3RD FLOOR, ASPINWALL HOUSE, KURAVANKONAM, THIRUVANANTHAPURAM - 695 003. REPRESENTED BY ITS MD & CEO SRI.RAJESH KUMAR JHA. BY ADVS. ROSHEN.D.ALEXANDER TINA ALEX THOMAS HARIMOHAN ## **RESPONDENTS:** 1 ARYANADU GRAMA PANCHAYAT OFFICE OF THE ARYANADU GRAMA PANCHAYAT, ARYANADU P. O, THIRUVANANTHAPURAM - 695 542. REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY ARYANADU GRAMA PANCHAYAT, OFFICE OF THE ARYANADU GRAMA PANCHAYAT, ARYANADU P.O, THIRUVANANTHAPURAM., PIN – 695 542. 3 THE PRESIDENT, ARYANADU GRAMA PANCHAYAT, OFFICE OF THE ARYANADU GRAMA PANCHAYAT, ARYANADU P.O, THIRUVANANTHAPURAM., PIN – 695 542. 2 W.P.(C) No.35965 of 2022. 4 THE DIRECTOR OF MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, PATTOM P. O., THIRUVANANTHAPURAM., PIN – 695 004. BY ADVS. SRI.K.SHAJ - SC SMT.SURYA BINOY – SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 W.P.(C) No.35965 of 2022. ## **JUDGMENT** **Dated this the 23rd day of December, 2022.** The petitioner, a private limited company which is selected as the Concessionaire for the Design, Build, Finance, Operate and Transfer (DBFOT) of Vizhinjam Seaport Project, submitted Ext.P8 application dated 26.07.2022 before the Aryanadu Grama Panchayat for obtaining D&O/Trade License for conducting quarrying operations in Block No.47, Re-survey Nos.133/2, 133/4, 133/16 and 139/6 of Aryanad Village, Nedumangadu Taluk of Thiruvananthapuram District. The petitioner states that the respondents 1 to 3 did not take any decision on Ext.P8 and when the petitioner made enquiry, it was orally informed by the Secretary of the Panchayat that the petitioner has to produce the certificate issued from the Petroleum and Explosive Safety Organization (PESO), Government of India. Accordingly, the petitioner submitted Ext.P12 PESO 4 W.P.(C) No.35965 of 2022. certificate on 15.09.2022. According to the petitioner, in spite of re-submission of the application after curing all defects on 15.09.2022, the 2[nd ] respondent did not take any action on the application for D&O/Trade License. The petitioner, therefore, contends that the petitioner has secured a deemed license by 15.10.2022 in terms of Section 236 (3) of the Kerala Panchayat Raj Act, 1994, (hereinafter referred to as 'the Act' for short). 2. While so, the Panchayat Committee, by Ext.P13 resolution dated 25.10.2022, took a decision not to grant license to the petitioner for the time being. The petitioner contends that, the rejection of the application for licence after thirty days from re-submission of the application has no consequence when rejection of the application was not communicated to the petitioner within 30 days of re-submission. The petitioner also contends that, by passing Ext.P13, the Panchayat Committee has abdicated the Secretary in exercising his 5 W.P.(C) No.35965 of 2022. powers under Section 232 of the Act in issuing licence to the petitioner. The petitioner states that, though the petitioner has secured a deemed licence, unless this Court declares so, the 4[th] respondent will not consider the application of the petitioner for quarrying lease. Accordingly, the petitioner has approached this Court for direction to quash Ext.P13 and to declare that the petitioner has secured a valid deemed licence as on 15.10.2022 by virtue of the application of Section 236(3) of the Act and for direction to the 4[th] respondent, the Director of Mining and Geology to grant quarrying lease to the petitioner on the basis of the said declaration and on the basis of Exts.P1 to P7 documents. 3. A counter affidavit is filed on behalf of respondents 1 to 3 wherein it is stated that the application submitted by the petitioner was found to be defective as the petitioner did not submit PESO certificate and the petitioner was asked to cure the 6 W.P.(C) No.35965 of 2022. defect and the petitioner cured the defect only on 15.09.2022 and the petitioner is not entitled for deemed licence. It is further contended that Ext.P13 is not an order rejecting the application of the petitioner for quarrying license, but it is only an intimation regarding the unanimous decision taken by the Panchayat Committee on 25.10.2022. 4. Heard Sri.Roshen D.Alexander, the learned Counsel for the petitioner, Sri.K.Shaj, the learned counsel for the respondents 1 to 3 and Smt.Soorya Binoy, the learned Senior Government Pleader for the 4[th] respondent. 5. Sri.Roshen would contend that the application for D&O/Trade License was re-submitted by the petitioner after curing all defects on 15.09.2022. However, the 2[nd ] respondent did not take any action on the application and no order was communicated to the petitioner within 30 days of re-submission of the 7 W.P.(C) No.35965 of 2022. application and the petitioner has therefore secured a deemed license by 15.10.2022 in terms of Section 236(3) of the Act. Sri.Roshen relies on the Full Bench decision of this Court in **Abdul Kharim and Another** _**v**_ **. Pazhayakunummel Grama Panchayat and Another** **[2018 (5) KHC 643]** , and contends that, the deemed fiction as per Section 236 (3) of the Act would come into operation as and when the application is re-submitted, after curing defect. Relying on the decision of this Court in **Aniyeri Satyan** _**v.**_ **Triprangottoor Grama Panchayat and another** [2018 (5) KHC 580], Sri.Roshen contends that the rejection of the petitioner's application for licence by Ext.P13 after thirty days from re-submission of the application has no consequence when rejection of the application was not communicated to the petitioner within 30 days of re-submission. The Division Bench decision of this Court in **Sudhakaran** _**v**_ **. Pallichal Grama Panchayat [2016 (2) KLT 175]** was 8 W.P.(C) No.35965 of 2022. also cited to contend that if the application for licence is not considered during the period prescribed for the same and no orders are communicated within that period, either granting or rejecting the licence, the Panchayat cannot exercise jurisdiction to reject the same at a later occasion. Sri.Roshen would also contend that by passing Ext.P13, the Panchayat Committee has abdicated the Secretary in exercising his powers under Section 232 of the Act in issuing licence. Sri.Roshen relies on the decision in **Sreedharan** _**v**_ **. Kalluvathukkal Panchayat [2015 (1) KLT 778]** , in support of this contention. Sri.Roshen also brought to my notice Ext.P14 judgment passed by this Court in similar circumstances on petitioner's application for D&O licence for quarrying in respect of another panchayat. 6. The counsel for the respondents 1 to 3 argued in line with the averments in the counter affidavit. 7. The petitioner has submitted Ext.P8 application 9 W.P.(C) No.35965 of 2022. on 26.07.2022 and resubmitted the same on 15.09.2022 after curing the defect. The 2[nd] respondent has not communicated any orders on the said application till the expiry of 30 days from the date of re-submission. Accordingly, the petitioner has secured a valid deemed license with effect from 15.10.2022 in terms of Section 236(3) of the Act. Though it is stated in the counter affidavit of respondents 1 to 3 that the defect has been communicated to the petitioner immediately on submission of Ext.P8 application, the mode of communication of the defect is not stated in the counter affidavit. There is no averment as to why no orders were passed on Ext.P8 application within 30 days after its resubmission on 15.09.2022. Since no orders were passed on the application of the petitioner within the prescribed period of 30 days, the Panchayat cannot exercise jurisdiction to reject the application after the said period and therefore, Ext.P13 is without jurisdiction and is set 10 W.P.(C) No.35965 of 2022. aside. Accordingly, this writ petition is allowed declaring that the petitioner has secured a valid deemed D&O/ Trade License on 15.10.2022 under Section 236 (3) of the Act. There will be a direction to the 2[nd] respondent to issue D&O/Trade License in paper form to the petitioner within a period of 10 days from the date of receipt of a copy of this judgment. There will also be a direction to the 4[th] respondent to consider the application of the petitioner for quarrying lease on the basis of the above declaration, within a period of six weeks from the date of production of the D&O/ Trade License in paper form. Sd/- **MURALI PURUSHOTHAMAN JUDGE** Raj. 22.12.2022. 11 W.P.(C) No.35965 of 2022. ## **APPENDIX OF WP(C) 35965/2022** ## **' - PETITIONER S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE MINUTES OF THE MEETING DTD. 03.07.2018 WHICH WAS COMMUNICATED TO THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM VIDE COMMUNICATION DTD. 05.07.2018.** - **EXHIBIT P2 TRUE COPY OF NOC BEARING NO.B7-14936/18 DTD. 13.07.2018.** - **EXHIBIT P3 TRUE COPY OF ORDER BEARING NO. B714936/18 DTD. 06.01.2022 EXTENDING VALIDITY OF EXT.P2.** - **EXHIBIT P4 TRUE COPY OF LOI BEARING NO.5350/M3/2019 DTD. 07.06.2019 ISSUED BY THE DIRECTORATE OF MINING AND GEOLOGY.** - **EXHIBIT P5 TRUE COPY OF THE MINING PLAN APPROVAL ORDER BEARING NO. 360/DOT7/ML/2019 DTD. 19.12.2019, THE DEPARTMENT OF MINING AND GEOLOGY.** - **EXHIBIT P6 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE NO.80/Q/2022 ISSUED BY SEIAA BY ITS PROPOSAL NO.SIA/KL/MIN/136067/2020 DTD. 23.07.2022.** - **EXHIBIT P7 TRUE COPY OF THE CONSENT NO. KSPCB/TVDO/ICO/10005098/2022 DTD. 25.07.2022.** - **EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT BEARING NO. AVPPL/GOK/2021-22/2036 DTD. 26.07.2022.** - **EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT BEARING FILE NO.400228/RPTL19/GPO/2022/1925 DTD. 27.07.2022.** 12 W.P.(C) No.35965 of 2022. **EXHIBIT P10 TRUE COPY OF THE LETTER BEARING NO. AVPPL/GOK/2021-22/2112 DTD. 15.09.2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P11 TRUE COPY OF ACKNOWLEDGMENT RECEIPT ISSUED BY THE 1ST RESPONDENT BEARING FILE NO. 400228/RPTL19/GPO/2022/2568 DTD. 15.09.2022. EXHIBIT P12 TRUE COPY OF THE CERTIFICATE BEARING NO.E/SE/KL/22/129 (E95316) DTD. 13.09.2022 ISSUED BY PESO.** - **EXHIBIT P13 TRUE COPY OF THE LETTER NO. A3/501/2022 DTD. 04.11.2022 ALONG WITH DECISION DTD. 25.10.2022 WITH AGENDA NO. 7(1) OF THE COMMITTEE OF THE 1ST RESPONDENT PANCHAYAT ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF ORDER DTD. 13.01.2021 IN W.P.(C) NO. 274/2021.** - **EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN ABDUL KHARIM AND ANOTHER V. PAZHAYAKUNUMMEL GRAMA PANCHAYAT AND ANOTHER, 2018 (4) KLT 1086 (FB): 2018 (5) KHC 643.** - **EXHIBIT P16 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN ANIYERI SATYAN V. THRIPRANGOTTOOR GRAMA PANCHAYAT AND ANOTHER, 2018 (5) KHC 580.** - **EXHIBIT P17 TRUE COPY OF THE DECISION IN SREEDHARAN V. KALLUVATHUKKAL PANCHAYAT, 2015 (1) KLT 778: 2015 (1) KHC 540.**