M/S.K.P.GRANITES INDUSTRIES v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943** **WP(C) NO.21760 OF 2021** ## **- PETITIONER :** M/S.K.P.GRANITES INDUSTRIES A REGISTERED PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER R.J.KARUNANIDHI, AGED 62, S/O.JAYARAMAN ACHARI, RESIDING IN THE ADDRESS, T.R.SUKUMARAN NAIR ROAD, PERUMTHANNI, THIRUVANANTHAPURAM DISTRICT-695 008. BY ADV G.SREEKUMAR (CHELUR) ## **- RESPONDENTS :** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695 001. 2 THE KARAVARAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KARAVARAM P.O., THIRUVANANTHAPURAM DISTRICT-695 605. 3 THE SECRETARY, KARAVARAM GRAMA PANCHAYATH, KARAVARAM.P.O., THIRUVANANTHAPURAM DISTRICT-695 605. 4 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM DISTRICT-695 004. BY ADVS. BIJU BALAKRISHNAN K.J.GISHA AJMAL P. SRI.RIYAL DEVASSY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21760 OF 2021 -: 2 :- ## **JUDGMENT** ## **Dated this the 7th day of December, 2021** This writ petition is filed seeking the following reliefs :- - “(i) Call for the records leading to Ext.P13 and may be pleased to issue a writ of certiorari to quash the same. - (ii) Issue a writ of Mandamus or any other appropriate writ order or direction commanding the 3[rd] respondent to take into consideration Ext.P7 as evidenced by Ext.P8 and to grant the Dangerous and Offensive Trade Licence for the unit of the petitioner in accordance to the statutory provisions and complying with all statutory requirements as insisted in law in a time bound manner to be fixed by this Hon'ble Court, in the interest of justice.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned Standing Counsel appearing for respondents 2 and 3. 3. The learned counsel for the petitioner submits that the petitioner had been issued with Ext.P1 quarrying permit by the Director of Mining and Geology on 16.1.2012. It is submitted that this Court in the judgment reported in **All Kerala River Protection Council** v. **State of Kerala** [2015 (2) KLT 78] has specifically considered the issue of requirement of Environmental Clearance for quarries having an extent of less than 5 hectares and has held that where WP(C) NO.21760 OF 2021 -: 3 :- mining permits/leases have been issued prior to 18.5.2021, no Environmental Clearance is required. 4. However, it is submitted that by Ext.P13 proceedings, the application submitted by the petitioner before the Panchayat was not favourably considered and the matter was sent for clarification to the Director of Mining and Geology. The learned counsel for the petitioner submits that Ext.P1 being dated 16.1.2012, there is no requirement for a clarification as sought for by the Panchayat. It is further submitted that Ext.P16 communication had been issued by the Director of Mining and Geology to the Secretary of the Grama Panchayat specifically stating that since the quarrying lease was granted on 16.1.2012 prior to the judgment of the Apex Court in **Deepak Kumar and others** v. **State of Haryana and others** [(2012) 4 SCC 629], the requirement of Environmental Clearance will arise only at the time of renewal of the lease and that the Panchayat can take a decision on the application for D & O licence without insisting Environmental Clearance. It is submitted that since Ext.P16 had been issued by the Director of Mining and Geology to the respondent Panchayat, a decision is liable to be taken on the application WP(C) NO.21760 OF 2021 -: 4 :- for D & O licence by the Panchayat taking note of the said clarification. 5. A statement has been filed on behalf of respondents 2 and 3. It is submitted that the petitioner had submitted an application before the Panchayat producing a quarrying lease deed dated 19.10.2013 executed between the District Geologist and the petitioner. The Panchayat had, thereafter, requested the Director of Panchayats for a clarification. By Ext.R3(a) communication dated 6.9.2021, the Director of Panchayats had required the Panchayat to seek a clarification from the Director of Mining and Geology which was also done by the Panchayat. It is submitted that though the petitioner contends that the permits had been issued by order dated 16.1.2012 and that a lease deed had been entered into on 11.4.2012, the said documents have not been produced before the Panchayat and the only document produced before the Panchayat is the lease deed dated 19.10.2013. It is, therefore, contended that the Panchayat could act only on the application submitted by the petitioner and the documents produced by the petitioner which is the reason why a clarification was insisted upon. WP(C) NO.21760 OF 2021 -: 5 :- 6. The learned Government Pleader submits that the instructions of the 4[th] respondent are to the effect that the petitioner had been granted permits by Ext.P1 proceedings dated 16.1.2012 and that therefore, the Environmental Clearance is not required. This appears to be supported by Ext.P16 communication which is issued to the petitioner on an application under the Right to Information Act. 7. Having considered the contentions advanced, I am of the opinion that since the Panchayat had requested for a clarification from the Director of Panchayats, who had required the Panchayat to approach the Director of Mining and Geology for a clarification and since Ext.P16 clarification appears to have been issued by the Director of Mining and Geology, the Panchayat is liable to take a decision on the application for D & O licence, taking note of the clarification issued by the Director of Mining and Geology, which is produced as Ext.P16. There will, accordingly, be a direction to the Panchayat to take up the application for D & O licence submitted by the petitioner and to consider and pass orders WP(C) NO.21760 OF 2021 -: 6 :- on the same, taking note of Ext.P16 clarification. The petitioner shall make available a copy of Ext.P1 as well as the earlier lease deed entered into by the petitioner with the District Geologist on 11.4.2012 before the Panchayat for consideration. The application shall be considered and appropriate orders passed within a period of three weeks from the date on which the petitioner produces the documents as directed above before the Panchayat. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/10.12.2021 WP(C) NO.21760 OF 2021 -: 7 :- ## **APPENDIX OF WP(C) 21760/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MINING AND GEOLOGY ISSUED DATED 16.1.12. Exhibit P2 A TRUE COPY OF THE JUDGMENT DELIVERED BY THE HON'BLE SUPREME COURT OF INDIA IN IA NO.12-13 OF 2011 IN SPECIAL LEAVE PETITION NOL19628 AND 19629 OF 09 DATED 27.2.12 Exhibit P3 A TRUE COPY OF THE LICENSE ISSUED TO THE PETITIONER FIRM BY THE THIRD RESPONDENT DATED 28.11.01 Exhibit P4 A TRUE COPY OF THE LICENSE ISSUED BY THE THIRD RESPONDENT DATED 27.8.02 Exhibit P5 A TRUE COPY OF THE LICENSE ISSUED BY THE THIRD RESPONDENT DATED 31.3.06 Exhibit P6 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD, DISTRICT OFFICE, THIRUVANANTHAPURAM 12.3.21 Exhibit P7 A TRUE COPY OF THE APPLICATION OF LICENSE SUBMITTED BY THE PETITIONER DATED 25.1.21 Exhibit P8 A TRUE COPY OF THE RECEIPT ISSUED BY THE THIRD RESPONDENT DATED 24.2.21 Exhibit P9 A TRUE COPY OF THE COMMUNICATION FROM THE OFFICE OF THE MINING AND GEOLOGY, DISTRICT OFFICE, THIRUVANANTHAPURAM DATED 17.8.21 Exhibit P10 A TRUE COPY OF THE COMMUNICATION BY THE DIRECTOR OF MINING AND GEOLOGY TO ALL DISTRICT GEOLOGIST OF THE STATE ISSUED DATED 11.5.21 Exhibit P11 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER TO THE THIRD RESPONDENT DATED 28.7.21 Exhibit P12 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER BEFORE THE HON'BLE MINISTER FOR WP(C) NO.21760 OF 2021 -: 8 :- INDUSTRIES, GOVERNMENT OF KERALA DATED 30.7.21 Exhibit P13 A TRUE COPY OF THE COMMUNICATION BY THE THIRD RESPONDENT DATED 13.9.21 Exhibit P14 A TRUE COPY OF THE DOCUMENT EXECUTED BY THE PETITIONER WHICH IS FORM H-DATED 11.4.2012 Exhibit P15 A TRUE COPY OF THE ORDER OF THE DIRECTOR, MINING AND GEOLOGY, THRIUVANANTHAPURAM DATED 11.10.2013 Exhibit P16 A TRUE COPY OF THE REQUEST AND THE REPLY GIVEN BY THE DIRECTORATE OF MINING AND GEOLOGY, DATED 26.10.2021 WITH THE LETTER OF THE DIRECTORATE OF MINING AND GEOLOGY, DATED 25.96.2021 THIRUVANANTHAPURAM.