Nilamboor Sand and Metals Pvt. Ltd. v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 24[TH] DAY OF AUGUST 2023 / 2ND BHADRA, 1945 WP(C) NO. 14852 OF 2023** **PETITIONER:** **NILAMBOOR SAND AND METALS PVT. LTD. EDIVANNA P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, BENNY JOSEPH, AGED 54 YEARS, S/O.JOSEPH, PARAPPURATH HOUSE, EDIVANNA P.O.,MALAPPURAM – 679329.** **BY ADVS. BABU S. NAIR SMITHA BABU** **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN – 695001.** - **2 CHALIYAR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, ERANHIMANGAD P.O., MALAPPURAM DISTRICT – 679329.** - **3 THE SECRETARY CHALIYAR GRAMA PANCHAYATH, ERANHIMANGAD P.O., MALAPPURAM DISTRICT – 679329.** - **4 THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, MINI CIVIL STATION, MANJERI, MALAPPURAM DISTRICT, PIN – 676121.** W.P.(C) No.14852/2023 : 2 : **BY ADVS. AMMINIKUTTY, SENIOR GOVERNMENT PLEADER K.M SATHYANATHA MENON K.M C.M.MOHAMMED IQUABAL P.ABDUL NISHAD RAIHANATH T.H. ISTINAF ABDULLAH KEERTHI JAYAKUMAR MUHAMMED AMEEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.14852/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.14852 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 24[th] day of August, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, a Company conducting quarrying operations of granite building stones, is aggrieved by Exts.P6 and P7 orders of the President of the Chaliyar Grama Panchayat. The petitioner seeks to command respondents 2 and 3 to issue licence to the petitioner as applied for forthwith. 2. The petitioner states that for the purpose of conducting quarrying operations in a property in Pullippadam Village of Nilambur Taluk having an extent of 2.4109 Hectares, the petitioner has been issued with Ext.P2 Environmental Clearance. The petitioner has been issued with Ext.P3 Explosive Licence also. The Kerala State W.P.(C) No.14852/2023 : 4 : Pollution Control Board has given to the petitioner, Ext.P4 Consent to Operate. The Director of Mining and Geology has also issued Ext.P5 Letter of Intent to the petitioner. 3. The petitioner required a licence from the 3[rd] respondent-Secretary to the Panchayat. An application was therefore submitted on 16.01.2023. When the petitioner made enquiries, the petitioner came to know that the Panchayat Committee has taken resolutions on 27.01.2023 and 20.02.2023 not to issue licence to the petitioner. It is based on the said resolution that licence has not been issued to the petitioner. 4. The petitioner has also learnt that the Secretary to the Panchayat has addressed Ext.P8 letter dated 22.02.2023 to the Principal Secretary, LSG Department leaving it to the Government to take a decision in this regard. It is challenging Exts.P6 and P7 resolutions that the writ petition has been filed. 5. The counsel for the petitioner argued that as per Section 233(3) of the Kerala Panchayat Raj Act, the W.P.(C) No.14852/2023 : 5 : Secretary, on receipt of application for licence, need to enquire and report to the Village Panchayat as to whether establishment of the factory or work place is objectionable by reason of density of population in the neighbourhood and if any such apprehension is there, the Panchayat has to obtain reports of the Secretary and other statutory authorities. 6. In the case of the petitioner, the Secretary had submitted a report stating that all statutory authorities have given clearance to the petitioner. In such circumstanes, when all the statutory clearances have been obtained, the Panchayat cannot refuse grant of licence. The counsel for the petitioner relied on the judgment of this Court in _**Tomy Thomas v. State of Kerala and others** [2019 (4) KHC 553]_ . 7. The petitioner further contended that as the petitioner had submitted application for licence on 16.01.2023 and since no communication was issued to the petitioner so far on the application made by him, the petitioner is entitled for a Deemed Licence as per Section 236(3) of the Kerala Panchayat Raj Act. W.P.(C) No.14852/2023 : 6 : 8. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. On behalf of the respondents, it is submitted that since the application submitted by the petitioner was defective, the respondents had issued a letter to the petitioner requiring to cure the defects. The question of Deemed Licence arises only when the Secretary fails to initiate the application and fails to intimate the applicant of the receipt of the application. In the petitioner's case, the Secretary had issued Ext.R3(a) communication to the petitioner on 24.01.2023. Therefore, there is no question of the petitioner getting any Deemed Licence. 9. The respondents further submitted that the issue of grant of licence to the proposed quarry of the petitioner in Ward No.1 was considered by the Grama Sabha and the Grama Sabha had taken a decision that no licence can be issued in favour of the petitioner for running the quarry since establishment of quarry would cause inconvenience and nuisance to the public. The respondents relied on Ext.R3(b) W.P.(C) No.14852/2023 : 7 : decision dated 12.10.2022 of the Grama Sabha. 10. The respondents have resorted to Section 182(iii) of the Kerala Panchayat Raj Act and has referred the matter to the Government and till a decision of the Government is received, the resolution of the Committee will be implemented. The respondents further contended that against Exts.P6 and P7 decision of the Panchayat Committee, there is an alternate remedy available to the petitioner, of filing appeal under Section 276(5) of the Kerala Panchayat Raj Act. 11. I have heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 4 and the learned Standing Counsel appearing for respondents 2 and 3. 12. It is evident that the petitioner has obtained various statutory licences and clearances from competent authorities, namely the State Level Environmental Impact Assessment Authority, the Deputy Chief Controller of Explosives, the Kerala State Pollution Control Board and the W.P.(C) No.14852/2023 : 8 : Director of Mining and Geology. All the said authorities had given statutory clearances/licences after examining the matter. In the circumstances, respondents 2 and 3 are not justified in not granting licence to the petitioner under the Kerala Panchayat Raj Act. 13. In the judgment in _**Tomy Thomas**_ (Supra), a Full Bench of this Court has held that when all statutory clearances are obtained, the Village Panchayat cannot refuse grant of permission to an applicant, the powers of the Panchayat in this regard being limited. 14. This Court has held in the judgment in _**Abdulla v. Trippangottur Panchayat** [2021 (5) KLT 200]_ that a resolution of a Grama Sabha cannot interfere or dabble in the statutory exercise of various powers exercisable by the Panchayats and its functionaries under the Kerala Panchayat Raj Act. Therefore, the reliance placed by respondents 2 and 3 on Ext.R3(b) resolution is unfounded. 15. The petitioner has obtained statutory licences and clearances from various authorities. The petitioner has been W.P.(C) No.14852/2023 : 9 : waiting for issuance of licence under the Kerala Panchayat Raj Act for long. In the facts and circumstances of the case, I find that it will be improper and unjust to deny relief to the petitioner based on Section 276(5) of the Kerala Panchayat Raj Act. In the facts and circumstances of the case, the writ petition is allowed setting aside Exts.P6 and P7. The respondents are directed to reconsider the application for licence submitted by the petitioner in the light of Exts.P1 to P5 and issue licence to the petitioner if the petitioner is otherwise eligible, without regard to Exts.P6, P7 and R3(b). This shall be done within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks/19.08.2023 W.P.(C) No.14852/2023 : 10 : ## **APPENDIX OF WP(C) 14852/2023** ## **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PETITIONER DATED, 19-5-2017** - **Exhibit P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED TO THE PETITIONER DATED, 20-7-2022** - **Exhibit P3 TRUE COPY OF THE EXPLOSIVE LICENCE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, CHENNAI DATED, 26-122022** - **Exhibit P4 TRUE COPY OF THE CONSENT TO OPERATE ISSUED TO THE PETITIONER BY THE KERALA STATE POLLUTION CONTROL BOARD DATED, 14-1-2023** - **Exhibit P5 TRUE COPY OF THE LETTER OF INTEND ISSUED TO THE PETITIONER BY THE DIRECTOR OF MINING AND GEOLOGY, DATED, 30-4-2019** - **Exhibit P6 TRUE COPY OF THE RESOLUTION OF THE 2ND RESPONDENT - GRAMA PANCHAYATH DATED, 27-1-2023** - **Exhibit P7 A TRUE COPY OF THE RESOLUTION OF THE 2ND RESPONDENT - PANCHYATH COMMITTEE DATED, 20-2-2023** - **Exhibit P8 A TRUE COPY OF THE LETTER ADDRESSED BY THE 3RD RESPONDENT TO THE FIRST RESPONDENT DATED, 22-2-2023** - **RESPONDENT EXHIBITS** - **Exhibit R2(a) A TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE PETITION DATED 24.01.2023 DIRECTING THE PETITIONER TO CURE THE CERTAIN DEFECT** **Exhibit R2(b) A TRUE COPY OF THE DECISION OF THE GRAMA SABHA DATED 12.10.2022**