M/S. THOMSON METALS MECHIRA vs MUTHALAMADA GRAMA PANCHAYAT and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH DAY OF JUNE 2014/16TH JYAISHTA, 1936 WP(C).No. 14312 of 2014 (L) ---------------------------- PETITIONER: -------------- M/S.THOMSON METALS MECHIRA, MUTHALAMADA, KOLLENGODE, PALAKKAD-678 507. REPRESENTED BY ITS MANAGING PARTNER-P.T.DAVIS. BY ADVS.SRI.V.V.ASOKAN (SR.) SRI.ALAN PAPALI RESPONDENTS: ----------------- ## 1. MUTHALAMADA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MUTHALAMADA PALAKKAD DISTRICT-678 507. 2. SECRETARY THE MUTHALAMADA GRAMA PANCHAYAT, MUTHALAMADA PALAKKAD DISTRICT-678 507. ## 3. GEOLOGIST MINING AND GEOLOGY DEPARTMENT TOWN BUS STAND COMPLEX, PALAKKAD-14. 4. KERALA STATE POLLUTION CONTROL BOARD NEAR DISTRICT PANCHAYATH OFFICE, PALAKKAD-678 001. R BY SRI. V. VENUGOPAL, GOVERNMENT PLEADER R BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14312 of 2014 (L) : 2 : ## **APPENDIX** PETITIONER'S EXHIBITS : ----------------------------- EXHIBIT-P1: TRUE COPY OF QUARRYING LEASE DEED DATED 13.5.2011. EXHIBIT-P2: TRUE COPY OF THE DECISION OF THE PANCHAYATH TO ACCORD PERMISSION TO ESTABLISH QUARRY AND CRUSHER UNIT. EXHIBIT-P3: TRUE COPY OF THE EXPLOSIVE LICENSE FROM THE CHIEF CONTROLLER OF EXPLOSIVES ALONG WITH LICENSE IN FORM LE-3 DATED 3.12.2012. EXHIBIT-P4: TRUE COPY OF THE LAY OUT APROVAL DATED 12.10.2012. EXHIBIT-P5: TRUE COPY OF THE BUILDING PERMIT GIVEN BY THE 1ST RESPONDENT-PANCHAYATH DATED 17.11.2012. EXHIBIT-P6: TRUE COPY OF THE NO OBJECTION CERTIFICATE FOR THE SITE OF CRUSHER UNIT ISSUED BY THE FIRE AND RESCUE DEPARTMENT. EXHIBIT-P7: TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 30.3.2013 ISSUED BY THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, CHITTUR. EXHIBIT-P8: TRUE COPY OF THE CONSENT GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 3.6.2013. EXHIBIT-P8(a): TRUE COPY OF THE CONSENT VARIATION ORDER GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 17.3.2014. EXHIBIT-P9: TRUE COPY OF THE INTEGRATED CONSENT GIVEN BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 18.10.2013. EXHIBIT-P10: TRUE COPY OF THE PERMIT GIVEN BY THE SENIOR JOINT DIRECTOR OF FACTORIES AND BOILERS, ERNAKULAM DATED 13.9.2013. EXHIBIT-P11: TRUE COPY OF THE PERMISSION OBTAINED FROM DIRECTORATEGENERAL OF MINES SAFETY FOR DEPLOYMENT OF HEAVY EARTH MOVING MACHINERY. EXHIBIT-P12: TRUE COPY OF THE FINAL FITNESS CERTIFICATE IN RESPECT OF THE CRUSHER UNIT OF THE PETITIONER. EXHIBIT-P13: TRUE COPY OF THE LICENCE FOR QUARRYING ISSUED BY THE 2ND RESPONDENT UNDER THE KERALA PANCHAYATH RAJ (ISSUE OF LICENSE TO DANGEROUS AND OFFENSIVE TRADES AND FACTORIES) RUELES, 1996. EXHIBIT-P14: TRUE COPY OF THE LICENCE ISSUED BY THE 2ND RESPONDENT FOR THE CRUSHER UNIT. WP(C).No. 14312 of 2014 (L) : 3 : EXHIBIT-P15: TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENTPANCHAYATH . EXHIBIT-P15(a): TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENTPANCHAYATH. EXHIBIT-P15(b): TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENTPANCHAYATH. EXHIBIT-P16: TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE FOR QUARRY FOR THE YEAR 2014-2015. EXHIBIT-P16(a): TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE FOR THE CRUSHER UNIT FOR THE YEAR 2014-2015. EXHIBIT-P17: TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT-P18: TRUE COPY OF THE DECISION NO.7 OF MUTHALAMADA PANCHAYATH. EXHIBIT-P19: TRUE COPY OF THE STAY ORDER IN I.A.NO.987/2014 IN APPEAL NO.513/2014. EXHIBIT-P20: TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT ALONG WITH THE REPORT OF THE 2ND RESPONDENT. EXHIBIT-P21: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: NIL ---------------------------- //TRUE COPY// P.A. TO JUDGE rv ## P. N. RAVINDRAN, J. ---------------------------------- W.P.(C.) No. 14312 of 2014 ---------------------------------Dated this the 6[th] day of June, 2014 ## JUDGMENT The petitioner is running a quarry and a crusher unit within the local limits of Muthalamada Grama Panchayath. It possessed licences issued by the Muthalamada Grama Panchayat under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 which were valid till 31.03.2014. The petitioner states that though it possesses a valid and current consent to operate issued by the Kerala State Pollution Control Board and various other licences and permits which are required to operate and run a quarry and a crusher unit, its application for renewal of the licences (Exts.P16 and P16(a)) which were valid till 31.03.2014 were rejected by Ext.P18 resolution taken by the Panchayat at its meeting held on 22.04.2014 and the decision was communicated to the petitioner by Ext.P17 letter dated 24.04.2014. The petitioner thereupon moved the Tribunal for Local Self Government Institutions by filing Appeal No. 513 of 2014. In that appeal, the petitioner filed I.A. No. 987 of 2014 praying for an interim order staying Ext.P18 resolution and Ext.P17 order. The Tribunal for Local Self Government Institutions considered the application for stay and passed Ext.P19 ad interim order dated W.P.(C) No. 14312/2014 : 2 : 28.04.2014 staying Ext.P18 resolution and Ext.P17 notice insofar as they relate to the petitioner. Relying on that order, the petitioner contends that as Ext.P18 decision and Ext.P17 notice have been stayed by the Tribunal for Local Self Government Institutions, the petitioner is entitled to have the licences renewed since it possesses all the other requisite permits and licences. On this ground, the petitioner has in the instant writ petition prayed for the following reliefs: 1. Call for the records leading to Ext.P17 notice and Ext.P18 decision of respondents 1 and 2 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. 2. Call for the records leading to Ext.P20 order/direction of the 3[rd] respondent and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. 3. Issue a writ of mandamus or other appropriate writ or order directing the 3[rd] respondent to issue Form 'P' as per the application, in view of the fact that the decision of the respondents 1 and 2 stand stayed by the Hon'ble Tribunal for Local Self Government Institutions, vide Ext.P19 order. 4. Declare by means of an appropriate writ or order that the petitioner's application for renewal of licences stand renewed by virtue of the deeming provision contained in Section 263(3) of Kerala Panchayat Raj Act, 1994. 5. Direct the 2[nd] respondent by means of a writ of W.P.(C) No. 14312/2014 : 3 : mandamus or other appropriate writ or order to consider and renew the quarry and crusher unit licence of the petitioner for the year 2014-15 as expeditiously as possible. 2. Shri. V.V. Asokan, learned Senior Advocate appearing for the petitioner submitted that as the petitioner possesses all the other valid licences and permits including a valid and current consent to operate issued by the Kerala State Pollution Control Board, the Panchayath is duty bound to renew the licence in view of the fact that Ext.P18 resolution and Ext.P17 communication have been stayed by the Tribunal for Local Self Government Institutions. Referring to Ext.P18 resolution, the learned Senior Advocate submitted that it is relying on the unverified objection raised by the residents of the Panchayat that renewal of the licences was refused though the petitioner possesses all the requisite licences and permits and no objection had been raised by the Kerala State Pollution Control Board or the Mining and Geology Department to the renewal of the licences. Relying on the decision of a learned Single Judge of this Court in W.P.(C) No. 12339 of 2014, the learned Senior Advocate contended that in identical circumstances, this Court had directed the very same local authority to consider a similar application for renewal of the licence and therefore, a similar direction may be issued in the instant case as well. The W.P.(C) No. 14312/2014 : 4 : learned Senior Advocate also invited my attention to the decision rendered by me in _**Biju K J v. Mundathikkodu Grama Panchayat**_ (2011 (1) KHC 246) and contended that the petitioner is entitled to have its application for renewal of the licences considered afresh. 3. I have considered the submissions made at the Bar by the learned Senior Counsel appearing for the petitioner. I have also gone through the pleadings and materials on record. Ext.P18 discloses that the committee of the Panchayat considered the petitioner's applications for renewal of the D & O licences and decided to reject them. By the very same resolution, the committee also decided to reject the applications for renewal of licence submitted by several other persons. The decision of the committee was communicated to the petitioner by Ex.P17 letter dated 24.04.2014. The petitioner has aggrieved thereby moved the Tribunal for Local Self Government Institutions. The Tribunal has by Ext.P19 order stayed Ext.P18 resolution and also Ext.P17 communication insofar as they relate to the petitioner. It is relying on the order of stay passed by the Tribunal that the instant writ petition is filed seeking the aforesaid reliefs. In my opinion, the petitioner who has chosen to invoke the Tribunal's jurisdiction and challenged Ext.P18 decision and P17 communication, should await the outcome of the appeal before moving this Court for relief. The W.P.(C) No. 14312/2014 : 5 : petitioner's entitlement to get the licences renewed depend on the outcome of the appeal filed by it before the Tribunal for Local Self Government Institutions. The petitioner cannot, in my opinion, prosecute parallel remedies, namely, an appeal before the Tribunal challenging Exts.P18 resolution and P17 communication and a writ petition in this Court challenging the very same resolution and communication. The petitioner who has opted to move the Tribunal for Local Self Government Institutions should in my opinion, wait till the appeal filed by it is heard and disposed of by the Tribunal before seeking the intervention of this Court. That apart, the order of stay passed by the Tribunal for Local Self Government Institutions cannot, in my opinion, lead to a situation where the petitioner becomes entitled to have the licences renewed. The petitioner's applications for renewal of the licences were rejected. Even assuming for the sake of arguments that the rejection is illegal, an order staying the decision rejecting the applications for renewal and the communication sent thereafter to the applicant would not result in a licence being issued or the applicant becoming entitled to a deemed licence. An order passed by the appellate court staying the operation of a decree passed by the trial court dismissing a suit cannot result in a decree being passed in favour of the unsuccessful party who has moved the appellate court. I am W.P.(C) No. 14312/2014 : 6 : therefore not persuaded to agree with the submission of the learned counsel for the petitioner that in view of the order of stay, the petitioner is entitled to have its applications for renewal of the licences considered and granted as it satisfies the other requirements. I am therefore not persuaded to agree with the view taken by the learned single Judge in W.P.(C) No. 12339 of 2014. 4. I shall next consider whether the petitioner is entitled to any relief in view of the principles laid down by this Court in _**Byju**_ ## _**K.J. V. Mundathikkodu Grama Panchayat and others**_ (2011 (1) KHC 246). That was a case where an application for permission to establish a quarry which was submitted after the Kerala State Pollution Control Board had issued a consent to establish the quarry, the District Geologist had issued a quarrying permit and the Controller of Explosives had granted licence to store and use explosives, was rejected on the ground that if the licence is issued, it will lead to a law and order situation. After considering the rival contentions, I held that the procedure prescribed in section 233 of the Kerala Panchayat Raj Act, 1994 or in rule 12 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 was not followed before the petitioner's application was rejected. It was held that the aforesaid provisions contemplate an enquiry into the suitability of the site for the W.P.(C) No. 14312/2014 : 7 : establishment of a quarry and consultation with the District Medical Officer and that it was without considering the suitability of the site that the application was rejected on the ground that if the licence is granted, it will lead to a law and order situation. The facts in _**Byju K.J. V. Mundathikkodu Grama Panchayat and others**_ (2011 (1) KHC 246) are entirely different and the dispute therein related to the application filed by a person for permission to establish a quarry. In the instant case, the issue is one of renewal of the licences. The question whether the rejection of the application for renewal of the licences is valid or proper is pending consideration before the Tribunal for Local Self Government Institutions. As stated earlier, the petitioner will have to succeed in the appeal to have the licences renewed. I accordingly hold that no relief can be granted in the instant writ petition. The petitioner should in my opinion take steps to have the appeal heard and disposed of expeditiously and thereafter pursue the matter further in this Court, if it is aggrieved by the decision of the Tribunal. 5. Though ordinarily this should have resulted in a dismissal of the writ petition, having regard to the submission made by the learned Senior Counsel appearing for the petitioner, I deem it appropriate to direct the Tribunal for Local Self Government Institutions where Appeal No. 513 of 2014 is pending, to hear and W.P.(C) No. 14312/2014 : 8 : dispose of the appeal with notice to both sides at the earliest and at any rate within six weeks from the date on which the petitioner produces a certified copy of this judgment. I accordingly dispose of the writ petition with a direction to the Tribunal for Local Self Government Institutions, Thiruvananthapuram where Appeal No. 513 of 2014 is pending, to hear and dispose of the appeal expeditiously and in any event within six weeks from the date on which the petitioner produces a certified copy of this judgment, after affording both sides an opportunity of being heard. ## sd/- P. N. RAVINDRAN, JUDGE. rv