M/S. J & S Granite Company v. Pramadom Grama Panchayat & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 ``` ## **`WP(C) NO. 25790 OF 2022`** ## **`PETITIONER/S:`** ``` M/S. J & S GRANITES COMPANY MUPPRAMON, V-KOTTAYAM P.O., PATHANAMTHITTA. REPRESENTED BY ITS MANAGING PARTNER, SRI. K. SADANANDAN. , PIN - 689565 BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE CIMIL CHERIAN KOTTALIL ``` ## **`RESPONDENT/S:`** ``` 1PRAMADOM GRAMAPANCHAYAT LAKKOOR, MALLASSERY P.O., PATHANAMTHITTA. , PIN - 689646 2SECRETARY PRAMADOMGRAMA PANCHAYAT, LAKKOOR, MALLASSERY P.O., PATHANAMTHITTA. , PIN - 689646 3ADDL.R3. AJI K. AGED 55 YEARS, PRESIDENT, THUDIYURILIPPARA DEVASWOM, S/O.KUNJU KUNJU A.K., KANJIRAPPARA, VALLIKKODU KOTTAYAM, V-KOTTAYAM P.O., PATHANAMTHITTA - 689656 4ADDL.R4. ROY THOMAS AGED 55 YEARS, S/O.THOMAS JOSHUA, CHAIRMAN, GRAMA REKSHA SAMITHI, V KOTTAYAM P.O., PATHANAMTHITTA - 689 656. [ADDITIONAL R3 & R4 ARE IMPLEADED AS PER ORDER DATED 25.08.2022 IN I.A.1/2022 IN WP(C)25790/2022.] ``` -2- W.P.(C). No. 25790 of 2022 ``` BY ADVS. JACOB P.ALEX BOBY THOMAS JOSEPH P.ALEX MANU SANKAR P. AMAL AMIR ALI RESHMI JACOB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 25790 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 25790 of 2022 ============================================================= Dated this the 29[th ] day of August, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: “i. Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P7 and quash the same. ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue D&O licence to the petitioner for carrying out quarrying activities in the light of the statutory clearances. iii. Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case. iv. Issue such other appropriate order or direction dispensing with the filing of English translation of the vernacular documents produced along with the writ petition.” 2. The petitioner obtained licence for operating a quarry and a consent issued by the Pollution Control Board. -4- W.P.(C). No. 25790 of 2022 The petitioner also obtained Environmental Clearance Certificate from the SEIAA. Now the Panchayat, as per Ext.P7, rejected the application for D&O licence stating that there will be ecological imbalance and environmental degradation. Aggrieved by the same, this writ petition is filed. 3. Heard the counsel for the petitioner and the counsel appearing for the Grama Panchayat. I also heard the counsel appearing for additional respondents 3 and 4. 4. It is an admitted fact that the petitioner is having licence for operating the quarry including a consent issued by the Pollution Control Board, as well as the environmental clearance certificate issued by the SEIAA. Now, as per Ext.P7, the Panchayat rejected the application for D&O licence only for the reason that there is a possibility of ecological imbalance and environmental degradation. A Full Bench of this Court in -5- W.P.(C). No. 25790 of 2022 ## **Tomy Thomas v. State of Kerala [2019 (3) KLT 987]** observed like this: _“24. As mentioned in the foregoing paragraphs, the amendments specified above were introduced through the Kerala Investment Promotion and Facilitation(No.2) (Act 14/2018). The object of introducing such an Act, as specified therein, is intended to give effect to certain proposals of the Government of Kerala to avoid delay in granting various licences/permissions, approvals and clearances required under-various enactments. Therefore the intention of the legislature to bring such drastic amendment is clear and explicit. Hence it is to be observed that, from the date of enforcement of the amendments from 20th October, 2017, it cannot be said that Village Panchayats have got primacy of power to take an independent decision to reject the applications for permission/licence under provisions of the Act and the Licensing Rules, for construction Tomy Thomas v. State of Kerala (C.K.Abdul Rehim, J.) (F.B.) or for establishment of any factory workshop or work place. On the other hand, the Grama Panchayats (Village Panchayats) are obliged to grant permissions in cases where the authorities mentioned under S.233 of the Act - had issued such permissions or consents or no objection certificates. Even if the panchayat is of the opinion that the construction or establishment of the_ -6- W.P.(C). No. 25790 of 2022 _factory, workshop or workplace is objectionable by reason in the of high density of population neighbourhood and is likely to cause nuisance, then also the panchayat can only obtain expert opinion from the department concerned and it is obliged to issue permission for such construction or establishment subject to such conditions as may be required for abatement of the nuisance, if any, as may be recommended in the expert opinion of the concerned department._ _25. Under the above mentioned circumstances the reference is answered by upholding the view taken in Ramapuram Grama Panchayat (supra) as the correct law. But we make it clear that the legal position has been changed by virtue of the amendments as mentioned above and the Village Panchayats do not enjoy any primacy of their power to refuse the applications seeking permission for construction or establishment of any factory workshop or workplace, under S.233 of the Kerala Panchayat Raj Act, on and from the date of enforcement of the amendments.”_ _(underline supplied)_ In the light of the above dictum laid down by the Full Bench of this Court, according to me, Ext.P7 will not stand. A perusal of Ext.P7 would show that the Panchayat rejected D&O -7- W.P.(C). No. 25790 of 2022 licence mainly for the reason that there is ecological imbalance and environmental degradation. It is also stated that there is a temple and water tank near the vicinity. The statutory authorities already granted permission to the petitioner. If the Panchayat or the affected parties are aggrieved by the same, they are free to approach the statutory authority. For that reason the Panchayat has no authority to reject the D&O application, in the light of the Full Bench decision in **Tomy Thomas case (** supra). Therefore, Ext.P7 is to be set aside. Therefore, this writ petition is allowed in the following manner: ## 1. Ext.P7 is set aside. 2. The 2[nd] respondent is directed to renew the application submitted by the petitioner by imposing appropriate conditions, in accordance to law, if the application is otherwise in order. -8- W.P.(C). No. 25790 of 2022 3. The Panchayat and other affected parties are free to approach the statutory authority, if they are aggrieved by the licence and permit issued to the petitioner. 4. The 2[nd] respondent will complete the above exercise, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. _sd/-_ ## **P.V.KUNHIKRISHNAN** ## **JUDGE** das -9- W.P.(C). No. 25790 of 2022 ## **`APPENDIX OF WP(C) 25790/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE LETTER OF INTENT DTD. 24.06.2019 ISSUED TO THE PETITIONER BY THE DIRECTOR OF MINING AND GEOLOGY. ``` - `Exhibit P1(a) TRUE COPY OF THE LETTER DATED 26.02.2022ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY` - `Exhibit P2 TRUE COPY OF THE CONSENT VALID TILL 09.08.2025 ISSUED BY THE POLLUTION CONTROL BOARD.` - `Exhibit P2(a) TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED TO THE PETITIONER.` - `Exhibit P2(b) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DTD. 10.08.2015 ISSUED BY THE SEIAA.` - `Exhibit P2(c) TRUE COPY OF THE ORDER DTD. 26.07.2022 ISSUED BY THE SEIAA` - `Exhibit P3 TRUE COPY OF THE TRADE LICENSE DATED 04.04.2022 ISSUED BY THE 2ND RESPONDENT .` - `Exhibit P4 TRUE COPY OF THE ORDER DATED 16.05.2022 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 06.07.2022 IN WP(C) NO. 20898/2022 ON THE FILES OF THIS HON'BLE COURT .` - `Exhibit P6 TRUE COPY OF THE APPLICATION DATED 06.08.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` ``` Exhibit P7TRUE COPY OF THE ORDER DATED 08.08.2022 BEARING NO. 400373/RPPR05/GPO/2022/1687(7) ISSUED BY THE 2ND RESPONDENT . ``` ``` Exhibit P8TRUE COPY OF THE CERTIFICATE DATED 17.08.2020 ISSUED BY THE VILLAGE OFFICER, V. KOTTAYAM VILLAGE. ```