M/S Dark Stone Land Developers Pvt. Ltd. v. Secretary, Ottappalam Municipality; Ottappalam Municipality; Director, Directorate of Mining and Geology, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** ## **WP(C).No.19361 OF 2019(U)** ## **PETITIONER:** **M/S.DARK STONE LAND DEVELOPERS PVT.LTD., VARODE P.O., OTTAPPALAM, PALAKKAD, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.G.HARIKRISHNAN (TRIPUNITHURA)** ## **RESPONDENTS:** **1 THE SECRETARY, OTTAPPALAM MUNICIPALITY, OTTAPPALAM, PALAKKAD - 679 101. 2 OTTAPPALAM MUNICIPALITY, OTTAPPALAM, PALAKKAD, REPRESENTED BY ITS SECRETARY - 679 101. 3 THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY, MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM, PATTOM, PALACE P.O., TRIVANDRUM - 695 004. R1-2 BY SRI.P.P.THAJUDEEN, SC, OTTAPALAM MUNICIPALITY SR.GP.K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19361 OF 2019** **2** ## **JUDGMENT** The petitioner is stated to be a company incorporated under the provisions of the Companies Act and have approached this Court seeking a declaration that they have a deemed licence to conduct a granite quarry in their property, within the territorial confines of the Ottappalam Municipality. 2. The petitioner asserts that they have all the necessary licences, consents and permissions, including environmental clearance, which are evident from Exts.P1 to P6 and that they approached the Secretary of the Ottappalam Municipality for a D&O Licence through their application, namely Ext.P7, dated 10.01.2019. They say that it is only after the D&O licence, which is now called the Trade Licence subsequent of the amendment of the Rules, is granted, will the Director of Mining & Geology execute the necessary mining lease. They say that since their application was dated 10.01.2019, the Secretary of the Municipality ought to have granted licence or rejected it within 30 days thereafter, but that instead of doing so, they were favoured with Ext.P9 communication from the Secretary of the Municipality informing them that on **WP(C).No.19361 OF 2019** **3** account of a communication received by them on 08.02.2018 from the Sub Collector, the petitioner's application for Licence can be considered only on obtaining necessary clarification from the said Authority. 3. The petitioner says that on getting Ext.P9, they waited and then finally Ext.P11 communication was issued by the Sub Collector to the Municipality on 12.04.2019 asking them to take necessary steps for issuance of the D&O licence; but that instead of doing so, Ext.P12 communication has been issued to them as late as on 14.10.2019, wherein it is stated that the Municipal Council has decided to reject their application solely on account of the objections certain residents in the locality. The petitioner says that the decision of the Council dated 26.08.2019, which lead to Ext.P12, has been produced on record as Ext.P13; and they pray that both these be set aside and the Secretary of the Municipality be directed to issue them necessary Trade Licence immediately. 4. In response, Sri.P.P.Thajudheen, learned Standing Counsel for the respondent-Municipality, submits that, when the petitioner made Ext.P7 application on 10.01.2019, the Municipality was incapacitated from considering the same because of the **WP(C).No.19361 OF 2019** **4** interdiction ordered by the Sub Collector through his proceedings dated 08.02.2018. Sri.P.P.Thajudheen says that, therefore, the allegation of the petitioner that they were entitled to a deemed licence within 30 days of the application is untenable, particularly because the Municipality had issued Ext.P9 to them within the said period. He says that the Sub Collector thereafter addressed the Municipality, through Ext.P11, only on 12.04.2019 and that Ext.P12 order was thereafter issued on 14.10.2019. He says that this delay occurred because the Municipal Council had to evaluate and assess all the relevant factors, including the obstruction from the residents of the locality. Sri.P.P.Thajudheen, therefore, prays that this writ petition be dismissed. 5. The learned Senior Government Pleader, Smt.K.Ammini Kutty, appearing on the behalf of the official respondents, submits that though she does not have anything specific to comment on the plea for deemed licence now impelled by the petitioner, as is evident from Ext.P8, which is the proceedings of the Director, Mining & Geology, the petitioner's application for quarrying lease can be granted only if they are able to produce all the necessary documents mentioned therein, including the D&O licence from the **WP(C).No.19361 OF 2019** **5** Municipality (which is now called the Trade Licence under the amended Rules). She says that this Court may, therefore, issue no further orders against the Geologist and permit him to consider the application of the petitioner as and when it is made before him based on all the relevant documents, as have been required to be produced in Ext.P8. 6. I have considered the afore submissions and have also examined the materials on record. 7. It is ineluctable that the petitioner asserts that they have all consents and licences except the Trade Licence from the Municipality; but are entitled to the said Licence through the deeming provisions of law. In fact, Sri.P.P.Thajudheen, learned Standing Counsel for the Municipality also does not have a case that the petitioner is lacking in any of the necessary consents and licences, on account of which the Municipality has refused their Trade Licence. The stand of the Municipality, as is evident from Exts.P12 and P13, appears to be that no Trade Licence will be issued on account of the objections from the residents of the locality and also on account of the anticipated chances of land-slips in this area, which had occurred in the past also. However, it is also **WP(C).No.19361 OF 2019** **6** without doubt that all these factors have certainly been considered by the competent experts while issuing the necessary consents and permissions, including the Environmental Clearance and going by the Full Bench judgment of this Court in _**Tomy Thomas v. State of Kerala**_ [2019 (3) KLT 987], after the Kerala Panchayath Raj (Issue of licence to Dangerous and Offensive Trades and Factories) Rules have been amended, and which is now called the Kerala Panchayath Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, the jurisdiction to consider applications for Trade Licences is vested on the Secretary of the Municipality and not on Municipal Council. 8. Obviously, therefore, merely because of Exts.P12 and P13 it would not be possible or prudent for this Court conclude that the Secretary cannot act in terms of the statutory requirements and obligations, particularly, when the declaration of law by this Court in subsequent judgments have also been to the effect that as per Section 447 of the Kerala Municipality Act, the Municipal Council or any other Authority cannot intervene in the legitimate exercise of jurisdiction by the Secretary. 9. That said, going by the materials available, it is ineffable **WP(C).No.19361 OF 2019** **7** as to why the Municipal Council or the Secretary of the Municipality did not take a decision with respect to the application of the petitioner even after Ext.P11 had been issued by the Sub Collector. Therefore, even though I find some force in the submissions of Sri.P.P.Thajudheen that the petitioner cannot be construed to have obtained a deemed licence 30 days of their application on account of Ext.P9 proceedings having been issued to them by the Sub Collector, I cannot find any reason to deny such benefit to the petitioner after 30 days had expired after the subsequent Ext.P11 communication of the Sub Collector. This is because, the Sub Collector clearly allowed the Municipality to issue the Trade Licence but the Municipality kept it pending for another six months, which is much much beyond the statutory limit going by the provisions of the Municipality Act. This, coupled with the ratio of the Full Bench of this Court in _**Tomy Thomas**_ ( _supra_ ), clearly persuades me to grant relief to the petitioner as prayed for. In the afore circumstances, I order this writ petition and direct the Secretary of the Ottappalam Municipality to take up Ext.P7 application of the petitioner and issue necessary orders thereon granting the Trade Licence to them, subject to their producing all **WP(C).No.19361 OF 2019** **8** the relevant and necessary consents and permissions, including the Environmental Clearance, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. The Secretary shall issue the said order after verifying the documents and after ensuring that all necessary conditions imposed therein have been complied with by the petitioner. It goes without saying that once the Trade Licence is issued by the Secretary of the Municipality on the afore lines, the petitioner will be at liberty to produce the same before the 3[rd] respondentDirector of Mining & Geology, who shall thereupon consider their application for grant of mining lease in terms of law and after verifying all relevant documents. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** mpm **WP(C).No.19361 OF 2019** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LETTER OF INTENT ISSUED BY THE DIRECTOR, MINING AND GEOLOGY, VIDE ITS PROCEEDING DATED 19/9/2015.** **EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF ENVIRONMENTAL CLEARANCE ISSUED BY THE SEIAA, KERALA DATED 25/10/2017.** **EXHIBIT P3 TRUE COPY OF CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 24/12/2018, AND VALID UP TO 24/10/2023.** **EXHIBIT P4 TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY THE PESO DATED 7/1/2019, AND VALID UP TO 31/3/2019. EXHIBIT P5 TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY THE PESO DATED 5/3/2019, AND VALID UP TO 31/3/2024. EXHIBIT P6 TRUE COPY OF CERTIFICATE OF COMPETENCY AND AGREEMENT EXECUTED WITH THE MINES MATE APPOINTED BY THE PETITIONER.** **EXHIBIT P7 TRUE COPY OF APPLICATION FOR D & O LICENSE FILED BY THE PETITIONER DT. 10/1/2019 ALONG WITH THE RECEIPT.** **EXHIBIT P8 TRUE COPY OF LETTER OF INTENT ISSUED BY THE DIRECTOR, MINING & GEOLOGY, VIDE ITS PROCEEDING DATED 10/1/2019.** **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 30/1/2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 25/4/2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT AND ITS RECEIPT.** **WP(C).No.19361 OF 2019** **10** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 12/4/2019 ISSUED BY THE SUB COLLECTOR TO THE 1ST RESPONDENT AND ITS RECEIPT SHOWING THE RECEIPT ON 29/4/2019.** **EXHIBIT P12 TRUE COPY OF THE INTIMATION SERVED ON THE PETITIONER. EXHIBIT P13 TRUE COPY OF RESOLUTION OF THE COUNCIL DT.26/8/2019 EXHIBIT P14 TRUE COPY OF CERTIFICATE ISSUED BY THE VILLAGE OFFICER TO THE EFFECT THAT NO MUD SLIP WAS OCCURRED EITHER IN THE PROPOSED SITE OR ANYWHERE NEAR THE SITE.** // TRUE COPY // P.A TO JUDGE