M/S. SAFA STONE CRUSHER v. Secretary, Mukkom Municipality; Mukkom Municipality; Director of Mining & Geology

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **WP(C).No. 4112 of 2018** ## **PETITIONER(S)** **M/S.SAFA STONE CRUSHER, AGASTIAMOOZHI, MUKKOM P.O., KOZHIKODE-673 602, REPRESENTED BY ITS MANAGING PARTNER, SHAHUL HAMEED K.T., S/O. MUHAMMED HAJI.** **BY ADVS.SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE** ## **RESPONDENT(S):** **1. THE SECRETARY, MUKKOM MUNICIPALITY, MUKKOM P.O., KOZHIKODE-673 602.** **2. THE MUKKOM MUNICIPALITY, MUKKOM P.O., KOZHIKODE, PIN-673 602, REPRESENTED BY ITS SECRETARY.** **3. THE DIRECTOR OF MINING & GEOLOGY, MINING & GEOLOGY DIRECTORATE, KESAVADASAPURAM, PATTOM PALACE P.O., TRIVANDRUM-695 004.** **R1 & R2 BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU R3 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2018, ALONG WITH W.P.(C)NO. 13134 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **16.07.2018** **WP(C).No. 4112 of 2018 (L)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2012-2013. EXHIBIT P2 TRUE COPY OF COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2013-2014. EXHIBIT P3 TRUE COPY OF COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2015-2016. EXHIBIT P4 TRUE COPY OF LETTER OF INTENT DATED 07-12-2016 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF APPLICATION DATED 14-12-2017 SUBMITTED BY THE PETITIONER ON 22-12-2017. EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF MINUTES OF THE 2ND RESPONDENT DATED 16-01-2018 DECIDING TO DISMISS THE APPLICATION OF THE PETITIONER. EXHIBIT P7 TRUE COPY OF REQUEST DATED 01-02-2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ALONG WITH ITS RECEIPT.** **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): TRUE COPY OF LETTER DATED 20.01.2018 ISSUED BY HEALTH INSPECTOR, TO THE PETITIONER.** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 16.07.2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.4112 & 13134 of 2018 ----------------------------------------------Dated this the 12[th] day of July, 2018** ## **JUDGMENT** The captioned writ petitions are materially connected and the petitioner in the writ petitions is also one and the same person. The subject matter relates to declining licence to the petitioner by the Municipality for the years 2017-18 and from 2018 for a period of five years. Therefore, I heard them together and propose to deliver a common judgment. Separate narration of facts are not required. Material facts for the disposal of the writ petition are as follows: 2. Petitioner has been conducting quarrying operations since the year 2010 in the area comprised in Survey Nos.147/2A2 and 149/2B1 of Thazhekkad Village of Kozhikode Taluk, with all statutory licences including the licence issued by the erstwhile Mukkom Grama Panchayat, which was later constituted as a Municipality with effect from November, 2016. According to the petitioner, the quarry was originally established in the year 2003 by one Basheer, and was in operation till then with the composite licence issued from time to time by the erstwhile Mukkom Grama Panchayat. ## **W.P.(C) Nos.4112 & 13134 of 2018** 2 3. However, in view of the declaration of law in ' _**Nature Lovers Forum v. State of Kerala**_ ' [2016 (1) KLT 75], regarding the necessity of Environmental Clearance, the Geologist has directed the petitioner to stop quarrying operation for want of Environmental Clearance. Petitioner has thereafter taken Environmental Clearance and also obtained Letter of Intent from the Geologist in respect of the same area which has been under quarrying operations. As per the terms of the Letter of Intent, petitioner has to obtain all statutory licences/consents and produce it before the Geologist, who is the authority to ascertain whether the applicant is in possession of all necessary licence/consents etc. for granting the licence. 4. It is under the said circumstances, petitioner filed application before the 1[st] respondent for trade licence under Sec.447 of the Kerala Municipality Act, 1994 (for short, 'the Act, 1994'). However, the petitioner was not intimated with any communication either granting/rejecting/returning the same by the 1[st] respondent either within 30 days of submission of such application or till date, and thus, according to the petitioner, the application has been crystallized into a deemed ## **W.P.(C) Nos.4112 & 13134 of 2018** 3 licence. However, the 2[nd] respondent Municipality has disposed of the application submitted by the petitioner by rejecting the same, which, according to the petitioner, on unreasonable grounds, evident from Ext.P6 in W.P.(C) No.4112 of 2018 and Ext.P10 in W.P.(C) No.13134 of 2018 dated 16.01.2018 and 08.03.2018 respectively. The case put forth by the petitioner is that, the 2[nd] respondent has no jurisdiction either to entertain or to dispose of an application under Sec.447 of Act, 1994, and therefore, it is _void ab initio_ . 5. Counter affidavits are filed by respondents 1 and 2 in the writ petitions separately, however, typical in nature, disputing the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the application for trade licence submitted by the petitioner was referred to the Municipal Council for its decision, as the sanction for establishment of quarry involves public interest, and in that view, the application was placed for consideration by the Council under sub-section (3) of Sec.447 of the Kerala Municipality Act. The application was received on 22.12.2017 and the Council as per its decision taken in the meeting held on 16.01.2018 rejected the application as per Ext.P6 in W.P. ## **W.P.(C) Nos.4112 & 13134 of 2018** 4 (C) No.4112 of 2018 and as per Ext.P10 order dated 08.03.2018 in the other writ petition. The Council as per its decision, has rejected the applications on the ground that the crusher is situate within a prohibited distance of 500 metres from highway/road. The unit is at a distance of 124 metres from Mukkom-Thamarassery PWD road, and Rule 18 of the Kerala Municipality (Dangerous and Offensive) Trade Licence Rules, 2011 (for short, 'the Rules, 2011), stipulates that, for grant of licence for stone crushers, 500 metres distance shall be provided from the centre of Crusher to the National Highway/State road. It is also submitted that, the power to issue licence for crusher is vested in the Council. It is thereupon, the Council has considered the application submitted by the petitioner, and since it is found to be within the prohibited distance, the applications were rejected. 6. It is further submitted that, consequent to the introduction of Ordinance No.22 of 2017, although the Council is divested of its power in terms of sub-rule (3) and Secretary is competent to deal with applications for licence under Sec.447, it is doubtful whether the power referred to in Rule 18 of the Rules, 2011, empowering the Council would be ## **W.P.(C) Nos.4112 & 13134 of 2018** 5 inoperative by the aforesaid provisions. It is further submitted that the Municipality has to consider the application with all its rigour and gravity in order to protect the interest of the public. Other contentions are also raised justifying the action of the Municipality. 7. I have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the Municipality and perused the documents on record and the pleadings put forth by the respective parties. 8. It is evident from the rejection orders that the application was rejected on the ground that, from the centre point of the unit of the establishment, there is no distance of 500 metres, and the distance that could be maintained is only 124 metres, and therefore, it violates the provisions of Rules, 2011. 9. Learned counsel for the petitioner submitted that, those decisions are taken by the Municipal Council, and in accordance with the amendment made to Sec.447 of Act, 1994, by virtue of Act 14 of 2018, the Secretary alone is vested with the power to consider the licence application submitted by the petitioner. It is also submitted that, Rule 18 ## **W.P.(C) Nos.4112 & 13134 of 2018** 6 of Rules, 2011 deals only with the crusher units and the petitioner's unit is not a crusher unit, but a quarry unit and therefore, Rule 18 will not apply to the licence application submitted by the petitioner. 10. I have considered the rival submissions and evaluated the pros and cons and the provisions of Act 14 of 2018, which brought-forth amendment to Sec.447 of Act, 1994. It is true, amendments are made by introducing Sec. (2A), wherein the Secretary or the officer authorized by him, shall issue an acknowledgement to the applicant on receipt of application along with supporting documents in such form, as may be prescribed, and shall verify the application and all supporting documents immediately on receipt, and if any supporting document required is not attached with the application, the Secretary or the officer authorized by him shall immediately bring to the notice of the applicant the missing document, if any, and allow the applicant to submit the missing document at the earliest, but not later than five days from the date of receipt of application. So also, by virtue of sub-section (3), the Secretary or the officer authorized by him shall, within five days from the date of receipt of all supporting ## **W.P.(C) Nos.4112 & 13134 of 2018** 7 documents along with prescribed clearances from other departments or authorities, by order and subject to such terms and conditions as he deems fit grant the licence for use of the place for conducting any industries, factories, trades, entrepreneurship activities or other services, as the case may be. Further, as per sub-section (5A) introduced, the licence once granted under the said section shall remain in force for a period of five years and shall be renewed without any application on payment of prescribed fee, within thirty days before the end of validity of the licence for a further period of five years. 11. Learned Standing Counsel for the Municipality submitted that, true, Rule 18 of Rules, 2011 deals with only crusher units. However, the Municipality is vested with ample powers to take into account other aspects including public interest, while granting licence for a quarry. It is also submitted that, if a distance of 500 metres is prescribed under the Rules, 2011, the quarrying operations which is more dangerous to the public, is also liable to follow the said rule and the Municipality is vested with ample powers to incorporate such conditions. ## **W.P.(C) Nos.4112 & 13134 of 2018** 8 12. However, on a reading of Exts.P6 and P10 orders in the respective writ petitions, I am of the considered opinion that, they are passed by the Council, whereas as per the amended Rules, the Secretary alone is vested with powers to consider such licence applications. The amendment was introduced as per Ordinance No.22 dated 20.10.2017, which was later once extended, and thereafter transformed into the Act. Therefore, on and with effect from the date of the Ordinance, the amended provisions came into force and looking at that angle, it is quite clear that the Council did not have power to consider the application submitted by the petitioner. 13. In that view of the matter, Exts.P6 and P10 orders passed by the Secretary on the basis of the decision of the Municipal Council cannot be sustained under law, since as per the amended provisions, the Secretary or the officer authorized by the Secretary alone is vested with powers to consider such applications. Therefore, I quash Exts.P6 and P10 orders in the writ petitions, and direct the Secretary of the Municipality to re-consider the application submitted by the petitioner, taking into account the amendment brought-forth to ## **W.P.(C) Nos.4112 & 13134 of 2018** 9 Sec.447 of Act, 1994, and all other aspects that are to be looked into in accordance with the Kerala Municipality Act and the Rules, 2011, at the earliest possible, and at any rate, within a month from the date of receipt of a copy of this judgment. The writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/12.07.2018