M/S QUALITY ROCKS v. THE VANIYAMKULAM GRAMA PANCHAYAT

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 ``` ``` WP(C) NO. 16306 OF 2023 ``` ## **`PETITIONER:`** ``` M/S QUALITY ROCKS, KULAPPULLY KOONATHARA P.O., VANIYAMKULAM-2, PALAKKAD, PIN - 679523 REPRESENTED BY ITS MANAGING PARTNER SRI. DEEPAK N.D. ``` ``` BY ADVS. SANTHOSH MATHEW ARUN THOMAS ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW MANASA BENNY GEORGE ``` ## **`RESPONDENTS:`** ``` 1THE VANIYAMKULAM GRAMA PANCHAYAT PONNANI ROAD, VANIYAMKULAM P.O., PALAKKAD DISTRICT, PIN - 679522 REPRESENTED BY ITS SECRETARY. ``` - **`2 THE SECRETARY`** ``` THE VANIYAMKULAM GRAMA PANCHAYAT, PONNANI ROAD, VANIYAMKULAM P.O., PIN - 679522 PALAKKAD DISTRICT ``` ``` WP(C) No.16306 of 2023 ``` ``` 2 ``` ``` 3THE PRESIDENT, THE VANIYAMKULAM GRAMA PANCHAYAT, PONNANI ROAD, VANIYAMKULAM P.O., PIN - 679522 PALAKKAD DISTRICT. ``` ``` BY ADVS. V.A.VINOD SHAKTHI PRAKASH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.16306 of 2023 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 19[th] day of June, 2023 The petitioner is intending to start a Quarry within the territorial limits of the 1[st] respondent-Grama Panchayat. Letter of Intent was issued by the Geologist to the petitioner on 13.08.2018. The petitioner obtained Environmental Clearance from the State Environmental Impact Assessment Authority, Consent from the Kerala State Pollution Control Board and No Objection Certificate from the Additional District Magistrate. 2. Thereafter, the petitioner submitted Ext.P5 application for D&O Licence to respondents 1 and 2. The application of the petitioner was rejected by the 2[nd] respondent. The petitioner hence approached this Court filing W.P.(C) No.11793 of 2023. The said writ petition was disposed of directing respondents 1 and 2 to hear the petitioner and pass orders on the application filed by the petitioner within three weeks. ``` WP(C) No.16306 of 2023 ``` ``` 4 ``` 3. The petitioner states that though the petitioner holds all requisite permits and licences including Environmental Clearance, the 1[st] respondent has rejected the application for D&O Licence on untenable grounds. 4. Counsel for the petitioner argued that a Full Bench of this Court has categorically held that once Environmental Clearance is obtained by persons like the petitioner from the statutory authorities, the Panchayat cannot take an independent decision to reject an application for D&O Licence. Once the Consent to Operate is granted by the Pollution Control Board, the Panchayat Committees cannot pass resolution which would go beyond their statutory jurisdictional field. 5. In view of the law laid down by this Court in _**Tomy Thomas v. State of Kerala and others** [2019 (4) KHC 553] and_ _**Thrippangottur Grama Panchayat and another v. M.K. Chandran and others** [2022 KHC 2559]_ , respondents 1 and 2 are compellable to issue D&O Licence to the petitioner, contends the petitioner. ``` WP(C) No.16306 of 2023 ``` ``` 5 ``` 6. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. The Standing Counsel submitted that the petitioner is intending to start a Quarry in a densely populated area. Starting of Quarry would destroy the environment and result in scarcity of water availability. Taking into consideration the larger interest of the general public, the Panchayat Council has taken a decision not to sanction Quarry in the area. 7. The Standing Counsel further submitted that against the decision of the Panchayat Council, the petitioner has a remedy to file an appeal before the Government. The writ petition is liable to be dismissed for availability of alternate remedy also. 8. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 9. From the pleadings in the writ petition, it is discernible that the petitioner has obtained Ext.P1 Letter of Intent from the Geologist, Palakkad as part of starting the ``` 6 ``` ``` WP(C) No.16306 of 2023 ``` Quarrying Unit. The State Environment Impact Assessment Authority (SEIAA) has issued Ext.P2 Environmental Clearance on 20.07.2022. The petitioner approached the Kerala State Pollution Control Board and the Kerala State Pollution Control Board has issued Ext.P3 Consent to Operate the Quarry. 10. The petitioner thereafter approached the Additional District Magistrate, Palakkad seeking No Objection Certificate under Rules 102 and 103 of the Explosives Rules, 2008. The Additional District Magistrate granted NOC as can be seen from Ext.P4. It is thereafter that the petitioner has approached the respondents for issuance of D&O Licence. The Panchayat authorities refused to issue D&O Licence holding that there are complaints from the general public and starting of a Quarry in a densely populated area is against the public interest. 11. This Court has considered the issue of competency of the Panchayat Committees to interfere in the licencing powers of the Secretary to the Panchayat. In _**Tomy Thomas**_ ``` WP(C) No.16306 of 2023 ``` ``` 7 ``` _**v. State of Kerala and others**_ (supra), a Full Bench of this Court held that after the amendment to the Kerala Panchayat Raj Act, 1994, Panchayats have lost the primacy of their power to refuse application seeking permission/licence under the Kerala Panchayat Raj (Issue of Licence to Factories, Traders, Entrepreneurship Activities and Other Services) Rules, 1996. 12. This Court again considered the issue in _**Thrippangottur Grama Panchayat and another**_ (supra). In the said judgment, this Court held that :- 13. We have discussed the relevant provisions of the Act, 1994, and the Rules, 1996 in detail, to emphasise that the Panchayat, the Secretary and the President are endowed with requisite powers to consider any applications received under S.232 and S.233, independent of other clearances to be issued by other statutory authorities under various other enactments, only if such clearances are not produced along with the application in contemplation of the afore proviso. This we also say because a report of an RQP is never a subject matter of consideration for the Panchayat in the matter of grant of licence to an entrepreneur. True, it may enable the Panchayat to identify certain situations while processing the application, however, it cannot be said to be absolutely binding on the Panchayat and its officers, or to put it straight the Panchayat and its officers are guided by clear statutory provisions which alone they are bound to follow. But, at the same time, the decision taken by the Grama ``` WP(C) No.16306 of 2023 ``` ``` 8 ``` Panchayat in general not to grant licence for new quarries, cannot be sustained under law, because the provisions of S.232 and S.233 and the rules would make it clear that each and every application submitted by an entrepreneur is to be considered by the concerned statutory authority in accordance with the provisions of law. In fact, the said question was considered by a Division Bench of this Court in **Kadaplamattom Grama Panchayat v. Johny Roy** [2013 (3) KLT 1053], and held that, even though the Village Panchayat is vested with powers to pass resolutions as permitted by the provisions of the Act, 1994, and the rules framed thereunder, the mandatory and other functions enumerated in the 3rd Schedule does not empower the Panchayat to take a general decision not to grant permit / license to establish a factory, workplace or other establishments, and that an application cannot be summarily rejected by stating that the Panchayat has taken a policy decision not to permit any such establishments in the Panchayat area. It was also held that such an authority is not vested with the Panchayat under the provisions of S.232, S.233 or the Rules, 1996. 13. It is evident that the Panchayat Council, while taking a decision to refuse quarrying licence, has not obtained any expert opinion in the matter. The competent authority namely, the State Environment Impact Assessment Authority (SEIAA), has considered the environmental impact of the industry and has granted Environmental Clearance. The Pollution Control Board also after examining the issue of pollution, has granted Consent to Operate to the petitioner. ``` WP(C) No.16306 of 2023 ``` ``` 9 ``` 14. In view of the law laid down by this Court, the refusal of D&O Licence to the petitioner solely based on the resolution/decision taken by the Committee of the 1[st] respondent-Grama Panchayat cannot stand the scrutiny of law. The writ petition is therefore allowed. Exts.P8 and P9 are set aside. The 2[nd] respondent-Secretary to the Grama Panchayat is directed to reconsider the D&O Licence application submitted by the petitioner and take appropriate decision thereon without regard to the resolution/decision of the Panchayat. Order in this regard shall be passed, within a period of one month. **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.16306 of 2023 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 16306/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE LETTER OF INTENT NUMBERED AS DOP/1645/2018/A1 ISSUED TO THE PETITIONER BY THE GEOLOGIST, PALAKKAD ON 13-08-2018 ``` ``` Exhibit P2TRUE COPY OF THE ENVIRONMENTAL CLEARANCENO.47/Q/2022HAVING IDENTIFICATION NO. EC22B001KL131388 DT.20-07-2022ISSUEDTOTHE PETITIONER BY STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KERALA ``` - **`Exhibit P3 TRUE COPY OF THE CONSENT TO OPERATE NUMBERED AS CONSENT NO. KSPCB/PL/ICO/10003555/2022 DATED 2610-2022 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER`** - **`Exhibit P4 A COPY OF THE NO OBJECTION CERTIFICATE HAVING FILE NO. DCPKD/5055/2018-D3 DATED 07-03-2023 GRANTED TO THE PETITIONER BY THE ADDITIONAL DISTRICT MAGISTRATE, PALAKKAD`** ``` Exhibit P5TRUE COPY OF THE APPLICATION AND THE ACKNOWLEDGEMENTOFRECEIPTOF APPLICATION FOR D&O LICENSE DATED 13- 03-2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ``` ``` Exhibit P6TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 27-03-2023 CONTAINING THE DECISION OF THE 1ST RESPONDENT PANCHAYAT PASSED ON 24-03- 2023 REJECTING THE PETITIONER'S EXT. P5 APPLICATION . ``` ``` Exhibit P7TRUE COPY OF THE JUDGMENT DATED 18-04- 2023 IN W.P. (C) 11793 OF 2023 ``` - **`Exhibit P8`** ``` TRUE COPY OF THE ORDER DATED 09-05- 2023 BY THE 1ST RESPONDENT REJECTING THE PETITIONER'S EXT.P5 APPLICATION ``` ``` WP(C) No.16306 of 2023 ``` ``` 11 ``` ``` Exhibit P9 ``` ``` TRUE COPY OF THE LETTER NO. 2549/2023 DATED 10-05-2023 ISSUED BY THE 2ND RESPONDENT COMMUNICATING THE EXT.P8 REJECTION ORDER ```