M/S. MALAYORAM ROCK PRODUCTS PVT. LTD. v. VANIMEL GRAMA PANCHAYAT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943 WP(C) NO. 10498 OF 2021** ## **PETITIONER:** **M/S. MALAYORAM ROCK PRODUCTS PVT. LTD., 7/444A, PADIKKAL HOUSE, PERAMANGALAM P.O., THRISSUR DISTRICT - 680 545, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.ARUN THOMAS SRI.SANTHOSH MATHEW SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SRI.ANIL SEBASTIAN PULICKEL SMT.JAISY ELZA JOE** ## **RESPONDENTS:** **1 VANIMEL GRAMA PANCHAYAT, KODIYURA P.O., KALLACHI VIA, KOZHIKODE DISTRICT 673 506, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, VANIMEL GRAMA PANCHAYAT, KODIYURA P.O., KALLACHI VIA, KOZHIKODE DISTRICT, PIN - 673 506** **BY ADVS. SRI. VINOD SINGH CHERIYAN SRI. T.M.KHALID SRI. K.P.SUSMITHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.10498/2021 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 22[nd] day of July, 2021**_ The petitioner, a Company in the business of quarrying minerals, has approached this Court challenging Ext.P8 and seeking to direct the respondents to consider and pass orders on Ext.P7 application submitted for conducting quarrying operations under the provisions of the Kerala Panchayat Raj Act, 1994, in the light of the Full Bench judgment of this Court in _**Tomy Thomas v. State of Kerala and others** [2019 (4) KHC 553]_ and other licences, permits and consents issued to the petitioner by statutory authorities. 2. The petitioner applied to the Director of Mining and Geology seeking quarrying lease for extracting granite building stone from land in Re-survey No.242 of Valayam Village of Vadakara Taluk in Kozhikode District. The Director issued Ext.P1 Letter of Intent. The Ministry of Environment, Forest WP(C) No.10498/2021 : 3 : and Climate Change granted Ext.P2 Environmental Clearance. The Kerala State Pollution Control Board issued Ext.P3 Consent to Operate. The Additional District Magistrate gave Ext.P4 NOC under Rules 102 and 103 of the Explosive Rules, 2008. The Petroleum and Explosives Safety Organisation (PESO) issued Ext.P5 Explosives Licence in Form LE-3. By Ext.P6 communication, the District Geologist approved the Mining Plan. 3. The petitioner, as per Ext.P7 dated 20.02.2021, applied to the 2[nd] respondent-Secretary to Grama Panchayat, for issuance of Trade Licence to conduct quarrying operation. The 2[nd] respondent sent Ext.P8 communication dated 05.03.2021 to the petitioner stating that the petitioner needs to obtain an approval from the District Disaster Management Authority (DDMA). The petitioner states that Ext.P8 is highly arbitrary and illegal and goes against the Full Bench judgment of this Court in _**Tomy Thomas**_ (supra). There is no legal justification for the 2[nd] respondent to delay or deny Trade Licence to the petitioner. WP(C) No.10498/2021 : 4 : 4. Respondents 1 and 2 filed a counter affidavit contesting the claims of the petitioner. Respondents 1 and 2 submitted that the order impugned is appealable under Section 276 of the Kerala Panchayat Raj Act and hence this writ petition is premature. Licence has yet not been denied to the petitioner. The respondents have only required the petitioner to obtain concurrence of the DDMA to rule out any possibility of disaster apprehended. The direction contained in Ext.P8 is strictly in accordance with the judgment of this Court in _**Tomy Thomas**_ (supra) and the writ petition is liable to be dismissed, contended the respondents. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 6. The petitioner has obtained requisite licences/ clearances/permissions/NOCs from the Ministry of Environment, Forest and Climate Change, Kerala State Pollution Control Board, the Petroleum and Explosives Safety Organisation, the District Geologist and the Director of Mining and Geology. However, the application submitted by the WP(C) No.10498/2021 : 5 : petitioner to the respondents-Panchayat Authorities for issuance of Trade Licence has not been granted insisting that for grant of Trade Licence, the petitioner shall produce approval of the District Disaster Management Authority. 7. A Full Bench of this Court has held in the judgment in _**Tomy Thomas**_ (supra) that under the amended provisions of sub-section 3 of Section 233 of the Kerala Panchayat Raj Act, 1994 (as amended by Act 14 of 2018), 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 the provisions of the Act and the licensing rules, for construction or for establishment of any factory, workshop or workplace. On the other hand, the Grama Panchayats are obliged to grant omissions in cases where the authorities mentioned under Section 233 of the Act had issued such permissions or concerns or 'No Objection Certificate'. 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 WP(C) No.10498/2021 : 6 : application seeking permission for construction or establishment of any factory, workshop for workplace, under Section 233 of the Kerala Panchayat Raj Act, on and from the date of enforcement of the amendments. 8. The Full Bench of this Court further held that if the Village Panchayat is of the opinion that the construction or establishment is objectionable by reason of high density of population in the neighbourhood and it is likely to cause nuisance, the Secretary shall as soon as may be after the receipt of the application, obtain an expert opinion of the department concerned with regard to determination of reasons for its abatement, at the cost of the owner or person in charge of the factory, workshop, workplace or machinery concerned and such a report shall be furnished to the Village Panchayat. The Village Panchayat shall issue permission subject to such conditions as may be required. 9. In the case of the petitioner herein, the 2[nd] respondent has not obtained any expert opinion to arrive at a conclusion that the area where the petitioner proposes to WP(C) No.10498/2021 : 7 : establish their unit is disaster prone or that the activities of the petitioner will result in disaster. There is otherwise no requirement in the Kerala Panchayat Raj Act or under in any rules made thereunder to insist that the petitioner is legally bound to produce consent from the DDMA, in order to get Trade Licence. In the circumstances, Ext.P8 communication of the 2[nd] respondent is not legally sustainable. 10. In the present case, it has to be noted that the petitioner submitted Ext.P7 application for trade licence on 20.02.2021 and submission of the said application on 20.02.2021 is evidenced by the acknowledgment produced along with Ext.P7. The respondents have not rejected the application of the petitioner for a period of 15 days. Ext.P8 communication dated 05.03.2021, was admittedly dispatched by the Panchayat only on 10.03.2021 and received by the petitioner on 15.03.2021. Since the respondents have not acted upon the application of the petitioner for a period of 15 days, the petitioner should be treated as having been deemed licence, in the light of Rule 12(3)(c) of the Kerala Panchayat WP(C) No.10498/2021 : 8 : Raj (Issue of Licences to Factories, Trades, Entrepreneurship Activities and other Services) Rules, 1996. 11. For all the afore reasons, the petitioner is entitled to succeed in this writ petition. Ext.P8 order issued by the 2[nd] respondent is therefore set aside. The respondents are directed to consider and pass orders on Ext.P7 application submitted by the petitioner for Trade Licence, in the light of the Full Bench judgment of this Court in _**Tomy Thomas**_ (supra) and Exts.P1 to P5, within a period of one month. The writ petition is disposed as above. Sd/- **N. NAGARESH, JUDGE** aks/30.07.2021 WP(C) No.10498/2021 : 9 : ## **APPENDIX OF WP(C) 10498/2021** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE LETTER OF INTENT**| |---|---| ||**ISSUED TO THE PETITIONER BY THE**| ||**DIRECTOR OF MINING AND GEOLOGY ON**| ||**18.08.2017.**| |**EXHIBIT P2**|**TRUE COPY OF THE ENVIRONMENTAL**| ||**CLEARANCE DATED 14.08.2018 ISSUED BY**| ||**THE MINISTRY OF ENVIRONMENTAL FOREST**| ||**AND CLIMATE CHANGE TO THE PETITIONER.**| |**EXHIBIT P3**|**TRUE COPY OF THE CONSENT TO OPERATE**| ||**ISSUED BY THE KERALA STATE POLLUTION**| ||**CONTROL BOARD TO THE PETITIONER ON**| ||**12.03.2020.**| |**EXHIBIT P4**|**TRUE COPY OF THE NO OBJECTION**| ||**CERTIFICATE ISSUED BY THE ADDITIONAL**| ||**DISTRICT MAGISTRATE, KOZHIKODE DATED**| ||**27.01.2021.**| |**EXHIBIT P5**|**TRUE COPY OF THE EXPLOSIVE LICENCE**| ||**ISSUED BY THE PETROLEUM & EXPLOSIVES**| ||**SAFETY ORGANIZATION (PESO), TO THE**| ||**PETITIONER.**| |**EXHIBIT P6**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**23.08.2017 ISSUED BY THE DISTRICT**| ||**GEOLOGIST TO THE PETITIONER.**| |**EXHIBIT P7**|**TRUE COPY OF THE APPLICATION DATED**| ||**20.02.201 SUBMITTED BY THE PETITIONER**| ||**FOR TRADE LICENCE TO THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE REPLY DATED 05.03.2021**| ||**ISSUED BY THE 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P9**|**TRUE COPY OF THE FULL BENCH JUDGMENT**| ||**REPORTED IN 2019 (4) KHC 553.**| |**EXHIBIT P10**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**02.11.2020 IN WPC NO. 35742/2019 OF**| ||**THIS HON'BLE COURT.**| |**EXHIBIT P11**|**TRUE COPY OF THE JUDGMENT IN DATED**| ||**8.4.2021 IN WPC NO. 1060/2021 AND**| ||**CONNECTED CASE OF THIS HONBLE COURT.**| **SR**