High Court of KeralaSingle Judge2020-10-21Disposed of; directions to cure defects within ...

Najeeb Hassan v. Muthuthala Grama Panchayath and Secretary, Muthuthala Grama Panchayath

Case / Petition Number:WP(C).No.34623 OF 2019(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.MUHAMED MUSTAQUE
Judgment Date: 2020-10-21
Court Decision / Holding: Writ petition disposed of; the Secretary of the Panchayat is directed to consider the application after curing the defects noted (Sl. No.6) within three weeks, and to pass a reasoned order on the licence application; if the petitioner cures the defects, he will be entitled to the licence for 2019-20. The court also notes that the Full Bench in Tomy Thomas v. State of Kerala holds that the Panchayat cannot reject an application for licence, and thus directs the Panchayat to proceed with the application after hearing.
Final Disposition: Disposed of; directions to cure defects within three weeks and reconsider the licence application; entitlement to licence if defects are cured.

Parties to the Case

Appellants / Petitioners

Najeeb Hassan

Respondents

1 Muthuthala Grama Panchayath, Kozhikottiri P.O., Palakkad-679 303, represented by its Secretary
2 Secretary, Muthuthala Grama Panchayath, Kozhikottiri P.O., Palakkad-679 303

Legal Representation & Advocates

Counsels for Petitioners

• SRI. ENOCH DAVID SIMON JOEL

Counsels for Respondents

• SRI. R. SREEHARI

Case Synopsis & Summary

Najeeb Hassan filed WP(C) No. 34623 of 2019 seeking a deemed licence under Section 236(3) of the Panchayat Raj Act to operate a quarrying unit and a mandamus to issue a formal trade licence for the year 2019-20. The Panchayat rejected the application, prompting the petition. During the proceedings, the court had directed the Panchayat Secretary to file an affidavit within a week stating whether the petitioner had produced all records listed in Ext.P10. The Secretary’s affidavit detailed a list of documents tied to the application, noting several defects (e.g., dependencies on unverified property documents and missing survey number in some certificates). The petitioner contends that Development Permit is not a prerequisite, citing Judish v. St. Judes Shrine, and asserts that he possesses a deemed licence and requisite approvals (pollution control consent, environmental clearance, explosives license, etc.) to operate. The respondents contend that there are unresolved defects and that the licence cannot be issued in the absence of cure and formal permits. The court relied on Judish and the Full Bench decision in Tomy Thomas v. State of Kerala, holding that the Panchayat cannot reject a licence outright and must consider the application after curing defects and affording an opportunity of hearing. The writ petition is disposed of with directions to cure defects within three weeks and for the Secretary to pass a reasoned order; if defects are cured, the petitioner will be entitled to licence.

Provisions of Law Cited

Section 236(3) of Panchayat Raj ActKPBR 2011

Legal Doctrines & Maxims

Panchayats cannot insist on Development Permit (Judish v. St. Judes Shrine, 2012 (4) KLT 995)
Panchayat cannot reject an application for licence (Tomy Thomas v. State of Kerala, 2019 (3) KLT 987 (F.B))

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, under the dicta in Judish v. St. Judes Shrine, there is no requirement to obtain a separate Development Permit for the quarrying licence and that he is entitled to a deemed licence under Section 236(3) of the Panchayat Raj Act and to a formal trade licence for 2019-20; he produced documents (Ext.P1–P10) showing consents, permissions and work-related records. The petitioner argues that the defects cited by the Panchayat should not defeat the licence and that the court should require the Panchayat to issue or at least not deny the licence.

Contentions of Respondents

The Panchayat's counsel contends that the applicant is not entitled to a deemed licence due to unresolved defects and missing or improperly submitted records; it insists on cure of defects and maintains that Development Permit is a relevant requirement, subject to the court's prior direction.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Judish v. St. Judes Shrine	2012 (4) KLT 995	Positive	Relied upon to support the proposition that Development Permit is not a mandatory prerequisite for licensing.
Tomy Thomas v. State of Kerala	2019 (3) KLT 987 (F.B)	Positive	Full Bench held that the Panchayat cannot reject a licence application; cited to justify keeping the process alive and requiring cure of defects.
WP(C) No. 29449 of 2019 (E)	WP(C) No. 29449 of 2019 (E)	Mentioned Only	Cited as a direction argument from a related matter; not a controlling authority for the present ruling.
Judgment in WPC No. 29449/2019	18.11.2019	Mentioned Only	Exhibit P9 cites this judgment; referenced as supportive background rather than controlling precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **WP(C).No.34623 OF 2019(C)** ## **PETITIONER:** **NAJEEB HASSAN, AGED 36 YEARS, S/O KUNJIMARAKKAR HAJI, NAMBRATH HOUSE, VALANCHERRY P.O.MALAPPURAM-676 552.** ## **BY ADV. SRI.ENOCH DAVID SIMON JOEL** ## **RESPONDENTS:** - **1 MUTHUTHALA GRAMA PANCHAYATH, KOZHIKKOTTIRI P.O.PALAKKAD-679 303, REPRESENTED BY ITS SECRETARY.** - **2 SECRETARY, MUTHUTHALA GRAMA PANCHAYAT, KOZHIKKOTTIRI P.O.PALAKKAD-679 303,** **R1-2 BY ADV. SRI.R.SREEHARI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34623 OF 2019(C)** ..2.. ## **JUDGMENT** ## **Dated this the 21st day of October 2020** The petitioner has applied for a licence for operating the quarrying unit before the respondent – Panchayat. The petitioner approached this Court seeking the following reliefs: _**“(i) Issue a writ in the nature of a declaration, declaring that Petitioner has a deemed license under Section 236(3) of Panchayat Raj Act for operating the quarrying unit for the year 2019-20.**_ _**(ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] Respondent to issue formal Trade license to the Petitioner for conducting the quarrying unit for the period 2019-20. (iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the Respondents not to interfere with the functioning of the quarrying unit of the Petitioner.**_ _**(iv) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.”**_ 2. It appears that, pending the writ petition, the Panchayat rejected the application. 3. When the matter was taken up for last hearing on 25.09.2020, this Court passed the following interim order: ## _**The Secretary of Panchayat shall state before this**_ ..3.. ## **WP(C).No.34623 OF 2019(C)** _**Court by way of an affidavit within a week whether the petitioner had produced all the records as referred in Ext.P10 or not.**_ 4. Thereafter, the Secretary of the Panchayat filed an affidavit. Paragraph 2 of the affidavit reads thus: _**I respectfully submit that, on the basis of the contention of the petitioner relaying upon Ext.P10 produced along with the reply affidavit, the Honourable High Court by Order dated 25.09.2020, directed the 2[nd] Respondent to file an affidavit as to the factum whether the petitioner while submitting application for D&O Licence has submitted the document referred (Sl No 01 to 10) in Ext.P10 and the details thereof.**_ _**I respectfully submit the following.**_ |**_Sl._** **_No._**|**_Name of the Document_**|**_Date of Submission_**|**_Whether prim facia in_** **_order_**| |---|---|---|---| |**_1_**|**_Application in prescribed format_**|**_07/09/19_**|**_Yes_**| |**_2_**|**_Certificate from Kerala Pollution_** **_Control Board_**|**_07/09/19_**|**_Yes_**| |**_3_**|**_Proof of Ownership_**|**_07/09/19_**|**_No – Un Certified_** **_copy of original_** **_Owners_** **_Property_** **_Deed_** **_and_** **_Un_** **_Registered License_** **_Deed in the name of_** **_Petitioner_**| |||**_16/11/19_**|**_Yes (Re Submitted)_**| |**_4_**|**_Possession_** **_Certificate_** **_from_** **_Revenue Department in the case of_** **_Private Property, or Permission_** **_from Revenue Department under_** **_KLC Act if Revenue Property_**|**_07/09/19_**|**_No – Without old_** **_survey number which_** **_is mentioned in the_** **_Property Deed_**| |||**_16/11/19_**|**_Yes (Re Submitted)_**| |**_5_**|**_Permission_** **_from_** **_Revenue_** **_Department or Chief Controller of_** **_Explosives_**|**_07/09/19_**|**_Yes_**| ## **WP(C).No.34623 OF 2019(C)** ..4.. |**_6_**|**_Certificate of Qualified Mines_** **_Forman_**|**_01/10/19_**|**_No. - Defaced copy of_** **_the certificate was_** **_submitted with out_** **_supporting_** **_Work_** **_Agreement between_** **_the Petitioner and_** **_Forman_**| |---|---|---|---| |||**_16/11/19_**|**_No. - Certificate of_** **_another_** **_Forman_** **_(without proof of_** **_permissions to change_** **_Forman_** **_from_** **_concerned_** **_Authorities) submitted_** **_with an improper_** **_Agreement between_** **_Petitioner_** **_and_** **_Forman but not_** **_signed in front of any_** **_Witness_**| |**_7_**|**_Permission/ Letter of Indent from_** **_Mining & Geology Department_**|**_07/09/19_**|**_Yes_**| |**_8_**|**_Survey Sketch and Location Map_** **_of Proposed land for conducting_** **_Mining_**|**_01/10/19_**|**_Yes_**| |**_9_**|**_Permission from State Impact_** **_Assessment Authority (SEIAA)_**|**_07/09/19_**|**_Yes._** **_-_** **_Though_** **_submitted, it is under_** **_re-consideration by_** **_SEIAA as per the_** **_direction_** **_of_** **_Honourable_** **_High_** **_Court of Kerala vide_** **_WP(C)No 29449 of_** **_2019 (E)_**| |**_0_**|**_Application as per KPBR_** **_(Required as per Rule 2 (ac) and_** **_Rule 5 of KPBR 2011)_**|**_Not Submitted_**|**_Refused to produce as_** **_per Petitioner letter_** **_dated 16/11/2019_**| 5. The defects pointed out are referred in serial numbers six and ten. 6. According to the petitioner, he has produced the proper ## **WP(C).No.34623 OF 2019(C)** **==> picture [37 x 9] intentionally omitted <==** copies of the certificates in support of the work agreement between the petitioner and foreman and also submitted that the agreement between the petitioner and the foreman was signed in the presence of witness. 7. The learned counsel for the petitioner submits that in the light of dictum laid down in **Judish v. St. Judes Shrine [2012 (4) KLT 995],** the Panchayat cannot insist for obtaining Development Permit. 8. The learned Standing Counsel for the Panchayat submits that the petitioner is not entitled for deemed licence. The defects still exist. It is submitted that the petitioner was intimated about the defects. 9. In regard to the defects pointed out in Sl.No.10, I am of the view that in the light of judgment of this Court cited supra, the petitioner cannot be insisted to obtain the Development Permit. However, the petitioner is bound to cure the defects as pointed out in Sl.No.6. There are only assertions and denial of existence of facts. This Court cannot now, hold that the defects were cured. It is appropriate that the petitioner appears before the Secretary of Panchayat and cure the defects as noted above. This shall be done within a period of three weeks. Thereafter, the Secretary shall pass a reasoned order on the application. ## **WP(C).No.34623 OF 2019(C)** **==> picture [37 x 9] intentionally omitted <==** 10. It is to be noted that the Full Bench of this Court in **Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (F.B)]** has held that the Panchayat cannot reject an application for licence. In that view of the matter, the order passed by the Panchayat rejecting the application has no legal consequences. Therefore, the Secretary of Panchayat is directed to consider the application, after affording an opportunity of hearing to the petitioner, within a period of three weeks. 11. It is made clear that if the petitioner cures the defects as pointed out, the petitioner will be entitled for licence. This writ petition is disposed of as above. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** **PR** ## **WP(C).No.34623 OF 2019(C)** ..7.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LATTER OF INTENT DATED 26.10.2017 ISSUED TO THE PETITIONER** - **EXHIBIT P1 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 28.2.2023.** - **EXHIBIT P1 B TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 17.3.2018 VALID TILL 16.3.2023 ISSUED BY THE SEIAA.** - **EXHIBIT P1 C TRUE COPY OF THE EXPLOSIVE LICENSE DATE 23.7.2019 VALID TILL 31.3.2024** - **EXHIBIT P2 TRUE COPY OF THE COVERING LETTER DATED 2.9.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 17.9.2019 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 23.9.2019 SUBMITTED BY THE PETITIONER BEFO0RE THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 27.9.2019 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 24.10.2019 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 16.11.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** ..8.. ## **WP(C).No.34623 OF 2019(C)** **EXHIBIT P8** **TRUE COPY OF THE LETTER DATED 28.11.2019 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P9** **TRUE COPY OF THE JUDGMENT DATED 18.11.2019 IN WPC NO 29449/2019 ON THE FILES OF THIS HON'BLE COURT.** **EXHIBIT P10** **A TRUE COPY OF THE CHAPTER DEALING WITH THE D&O APPLICATION FOR A QUARRY ISSUED BY THE KERALA INSTITUTE OF LOCAL ADMINISTRATION.** - **RESPONDENTS EXHIBITS:** **EXHIBIT R1 A PHOTOCOPY OF THE REMINDER LETTER DT.16-01-2020 SENT TO THE PETITIONER.** **EXHIBIT R1 B PHOTOCOPY OF THE LETTER DT.25-01-2020 REJECTING THE APPLICATION OF THE PETITIONER.** - **EXHIBIT R1 C PHOTO COPY OF THE LETTER DT.16-09-2019 OF THE ASSISTANT ENGINEER, KERALA WATER AUTHORITY, PATTAMBI.** **EXHIBIT R1 D PHOTO COPY OF THE REPORT OF THE ASST. ENGINEER LSGD, MUTHUTHALA GRAMA PANCHAYATH DATED 16-12-2019.** **EXHIBIT R1 E PHOTO COPY OF THE LETTER DT.10-08-2019 OF THE VILLAGE OFFICER, MUTHUTHALA.** **EXHIBIT R1 F PHOTO COPY OF THE LETTER DT.21-10-2019 OF THE VILLAGE OFFICER MUTHUTHALA.**