N.V. Ashok Kumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** ## **WP(C).No.36659 of 2018** ## **PETITIONER:** **N.V.ASOK KUMAR, AGED 49 YEARS S/O. VENUGOPAL, MOHANAVILASOM, PALLIKIZHAKKETHIL, VETTITHITTA - P.O, PATHANAPURAM, PATHANAMTHITTA DISTRICT- 691 551.** **BY ADV. SRI.M.K.CHANDRA MOHANDAS** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPUEAM -695 001.**| |**2**|**DIRECTOR**| ||**DIRECTOR OF MINING AND GEOLOGY,**| ||**KESAVADASAPURAM, PATTAM PALACE P.O.,**| ||**THIRUVANANTHAPURAM-695 004.**| |**3**|**DISTRICT LEVEL ENVIRONMENT IMPACT ASSESSMENT**| ||**AUTHORITY (DEIAA)**| ||**REPRESENTED BY THE DISTRICT COLLECTOR AND**| ||**CHAIRMAN, PATHANAMTHITTA-689 645.**| |**4**|**DISTRICT LEVEL EXPERT APPRAISAL COMMITTEE**| ||**(DEAC) REPRESENTED BY THE CHAIRMAN (EXECUTIVE**| ||**ENGINEER),IRRIGATION DEPARTMENT,**| ||**PATHANAMTHITTA-689645.**| W.P.(C). No. 36659 of 2018 -2- - **5 THE GEOLOGIST MINING AND GEOLOGY DEPARTMENT, PATHANAMTHITTA-689645.** - **6 ENADIMANGALAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, ENADIMANGALAM, ELAMANNOOR P.O., PATHANAMTHITTA DISTRICT691524.** - **7 THE SECRETARY ENADIMANGALAM GRAMA PANCHAYAT, ENADIMANGALAM, ELAMANNOOR P.O., PATHANAMTHITTA DISTRICT691524.** - **8 ADDL.R8 RAJAN K G, AGED 62 YEARS S/O LATE Y GEORGE, KILINILATH, CHAYALOD P.O., PIN-691556.** - **9 ADDL.R9 P K THOMAS, AGED 64 YEARS S/O Y KOSHY, CHAYALOD PUTHEN VEEDU, CHAYALOD P.O., PIN-691556.** - **10 ADDL.R10 SAMUEL BABY, AGED 49 YEARS S/O BABY, KILINILATH NAVEEN BHAVAN, CHAYALOD P.O., PIN-691556. (ADDL.R8 TO R10 IS IMPLEADED AS PER ORDER DATED 28/11/2018 IN IA.NO.01/2018)** - **11 ADDL. R11 FR. JOHN THOMAS (TIJU) VICAR, ST. GEORGE ORTHODOX CHURCH, CHAYALODE - 691566, PATHANAMTHITTA DISTRICT.** - **12 ADDL. R12 BINDU U. D/O. UTHAMAN, PRESIDENT, PARENT- TEACHERS ASSOCIATION, ST. GEORGE ASHRAM HIGH SCHOOL, CHAYALODE - 691566, PATHANAMTHITTA DISTRICT.** W.P.(C). No. 36659 of 2018 -3- **13 ADDL. R13 REENA ZACHARIAH D/O. P.M. DANIAL, PRESIDENT, PARENT- TEACHERS ASSOCIATION, ST. GEORGE ASHRAM UPPER PRIMARY SCHOOL, CHAYALODE - 691566, PATHANAMTHITTA DISTRICT.** **14 ADDL. R14 GOPINATHA PILLAI S/O. NARAYANA PILLAI, VALIYATHOTTATHIL, KOTTANGAL, MANIMALA - 686543. (ADDL.R11 TO R14 ARE IMPLEADED AS PER ORDER DATTED 14/12/2018 IN IA.NO.05/2018)** **BY ADVS. SRI MANURAJ K.J., GOVT.PLEADER SRI.K.SHAJ SRI.T.M.ABDUL LATHEEF SRI.RENJIT GEORGE SRI T.NAVEEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C). No. 36659 of 2018 -4- ## **JUDGMENT** The petitioner, who is stated to be an 'A' Grade contractor, who had applied for mining lease for mining granite building stone from the land having an extent of 0.8903 hectare in Block No. 26, Re-Sy. No. 140/3-1 of Enadimangalam Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P12 communication dated 09.11.2018 issued by the seventh respondent, who is the Secretary of the sixth respondent Grama Panchayat, whereby the petitioner is informed that further action cannot be taken on Ext.R6(a) application dated 15.10.2018 made by the petitioner for licence to conduct a granite quarry, in view of the recommendation made by the Panchayat Committee not to grant licence to granite quarry, in view of public protest. The reliefs sought for in this writ petition read thus: “(i)Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P12 and quash the same as arbitrary and W.P.(C). No. 36659 of 2018 -5- illegal and violative of the right to obtain license as per the provisions contained in Section 232 and 233 of the Kerala Panchayat Raj Act as amended vide Kerala Investment, Promotion and Facilitation (No.2) Act 2018. (ii)Issue a writ of mandamus or any other appropriate writ, order or direction to the seventh respondent Secretary of the Enadimangalam Grama Panchayat to consider the application of the petitioner for D&O License received by the Panchayat vide Exhibit P6 receipt and issue D&O License immediately. (iii)Declare that the sixth respondent Grama Panchayat or the Grama Sabha have no manner of right to object the application for License submitted by the petitioner in the light of the enactment, Kerala investment, Promotion and Facilitation (No.2) Act, 2018 and the Amendment thereon in Section 232 of the Kerala Panchayat Raj Act 1994 and the Secretary alone is the Authority to consider the application for license.” 2. On 12.11.2018, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions from respondents 1 to 5. Urgent notice by special messenger was ordered to respondents 6 and 7. W.P.(C). No. 36659 of 2018 -6- 3. On 28.11.2018, this Court allowed IA No.1 of 2018 filed by third parties and they were impleaded as additional respondents 8 to 10. 4. On 14.12.2018, this Court allowed I.A.No.3 of 2018 filed by the petitioner to amend the writ petition and also I.A.No.5 of 2018 filed by third parties, who were impleaded as additional respondents 11 to 14. 5. Respondents 8 to 14 have filed counter affidavits opposing the reliefs sought for in this writ petition, which is followed by an additional counter affidavit. Respondents 6 and 7 have also filed counter affidavit, producing therewith various documents including Ext.R6(a) application dated 15.10.2018 made by the petitioner for D&O (Trade) licence. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the official respondents, the learned Standing Counsel for the Grama Panchayat and also the learned counsel for the party respondents. W.P.(C). No. 36659 of 2018 -7- 7. In **Kadaplamattom Grama Panchayat, Kottayam and Another v. Johny Roy [2013 (3) KHC 857]** , a Division Bench of this Court held that, when a composite application is submitted by a person under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994, a decision to grant a license or permission under Section 233 is to be taken by the Village Panchayat and the decision to issue license under Section 232 is to be taken by the Secretary. If the Panchayat decides not to grant permission under Section 233, the Secretary cannot separately consider the application under Section 232 read with Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. In instances covered by Section 233 of the Act, only after permission is obtained under Section 233 does the question of granting license under Section 232 arises. But in a case where the applicant does not employ power of any form, apparently a situation as contemplated under Section 233 may not arise. There could be a situation where even without W.P.(C). No. 36659 of 2018 -8- an application being filed under Section 233 an application is required to be submitted under Section 232 read with D&O rules. In such situations, the Secretary will be the only authority to decide whether the license could be granted or not. But such conferment of power does not mean to indicate that the Village Panchayat has no powers in the matter relating to the grant or refusal of permission under Section 233 of the Act. 8. In **Kadaplamattom Grama Panchayat's case (supra),** as per Ext.P8 resolution, the Panchayat Committee has considered the complaints of the people in the locality in respect of the grant of license for new quarries and it was resolved not to grant license to new quarries as it would affect the health of the people in the locality, it will affect the agricultural operations in the locality and it would also affect the water source in the neighbourhood. The Division Bench held that the mandatory and other functions enumerated in the third schedule, does not empower the Panchayat to take a W.P.(C). No. 36659 of 2018 -9- decision as stated in Ext.P8. In a case where an application is filed by a person seeking to establish a factory, workplace or other establishments, the said application cannot be summarily rejected by stating that the Panchayat has taken a policy decision not to permit any such establishments in the Panchayat area. Such an authority is not seen vested with the Panchayat, under the provisions of Sections 166(1), 232, 233 or the D &O Rules. That apart a decision like Ext.P8 will affect the constitutional right of an individual to carry on business or trade and put his property to the best advantage. The Panchayat will have to consider each application on its own merits and decide whether permission could be granted or not. 9. In the instant case, as can be seen from Ext.P12 communication dated 09.11.2018 issued by the Secretary of the Grama Panchayat, further action on Ext.R6(a) application dated 15.10.2018 made by the petitioner for licence to conduct granite quarry for the year 2018-19 stands deferred W.P.(C). No. 36659 of 2018 -10- for the time being, in view of Ext.P13 decision No.2(1) dated 16.11.2018 of the Panchayat Committee, not to grant licence for the granite quarry, on account of public protest. 10. As far as the challenge made in this writ petition against Ext.P12 communication dated 09.11.2018 is concerned, as discernible from Ext.R6(a) application produced along with the counter affidavit filed by the sixth respondent, the application made by the petitioner is one under Section 232 of the Kerala Panchayat Raj Act for D&O (Trade) Licence to conduct a granite quarry in the property in question and it is not an application filed under Section 233 of the said Act for installation of machinery. 11. The learned counsel for additional respondents 8 to 14, would contend that, only after obtaining permission of the Village Panchayat under Section 233 of the Kerala Panchayat Raj Act for installation of machinery for granite quarry, the petitioner can make an application before the seventh respondent Secretary of the Grama Panchayat for granting W.P.(C). No. 36659 of 2018 -11- Trade Licence under Section 232 of the Act. The learned counsel would also point out the observations made by the Division Bench of this Court dated 28.03.2019 in W.A.No.706 of 2019, a copy of which is placed on record as Ext.R8(R) along with I.A.No.6 of 2019. Paragraphs 2 to 6 of the said judgment read thus; “2. This Appeal is filed by 3[rd] parties with court's leave, to challenge the judgment dated 31.1.2019 in the W.P(C). No.1716 of 2019. That case was filed by one N.V. Ashok Kumar (respondent No.1), who had previously filed the Ext.P8 application for installation permit for machines in connection with granite quarrying activities. The learned Judge considering the limited nature of prayer made in the petition, issued direction to finalise the Ext.P8 application in accordance with law, by the Enadimangalam Grama Panchayat, who were the 2[nd] respondent in that case. 3. On the above direction for disposal of the Ext.P8 application, it is however seen that the stand of the respondent/writ petitioner in this very Ext.P8 application is that he is exempted from securing any installation permit for quarrying since he will be using only portable machinery and those are exempted, under Section 233(b) of the Kerala Panchayat Raj Act. W.P.(C). No. 36659 of 2018 -12- If such be the stand of the applicant in the Ext.P8 application itself, the direction given by the learned Judge in the impugned judgment for disposal of the Ext.P8 application, was not warranted. 4. Besides it is also the case of the learned counsel Sri. Chandra Mohandas that the Writ Petitioner has already applied for the D & O license, but as the same was rejected by the Panchayat authorities, the aggrieved party has now filed Writ Petition No.36659 of 2018, to challenge the negative decision on the D & O Licence application. 5. In the above view of the matter and more particularly, the definite stand taken by the Writ Petitioner in the Ext.P8 application that he is not required to obtain installation permit for quarrying activities and is exempted, we deem it appropriate to allow this Appeal by setting aside the impugned judgment dated 31.1.2019 in the Writ Petition No.1716 of 2019, where the learned Judge issued direction to consider the Ext.P8 application, of the Writ Petitioner. Through this order, we are not however pronouncing on the correctness of the stand taken by the respondent/writ petitioner that he is exempted from obtaining installation permit in connection with the quarrying activities proposed to be carried out by him. This issue will be considered by W.P.(C). No. 36659 of 2018 -13- the competent authority, if need arises. It is also made clear that nothing in the judgment will be seen as pronouncement on the entitlement of the petitioner for the D & O licence as the same is the subject matter of the pending W.P(C). No.36659 of 2018. 6. With the above order, the Writ Appeal stands allowed in the manner indicated. “ 12. This Court need not go into all these issues, since the challenge made in this writ petition against Ext.P12 communication dated 09.11.2018 can be decided, taking note of the law laid down in the decision of the Division Bench in ## **Kadaplamattom Grama Panchayat's case (Supra).** 13. The learned Standing Counsel for the Grama Panchayat would submit that Ext.P12 communication is one issued by the seventh respondent, who is the Secretary of the Grama Panchayat. However, a mere perusal of Ext.P12 communication would make it explicitly clear that the Secretary of the Grama Panchayat, based on Ext.P13 decision of the Panchayat Committee, decided to defer consideration of Ext.R6(a) application made by the petitioner for Trade Licence W.P.(C). No. 36659 of 2018 -14- under Section 232 of the Kerala Panchayat Raj Act, for conducting granite quarry. 14. In such circumstances, this writ petition is disposed of by setting aside Ext.P12 communication dated 09.11.2018 issued by the seventh respondent Secretary of the Grama Panchayat and by directing the said respondent to consider the application for Trade License for the granite quarry, if any, made by the petitioner for the year 2019-20, taking note of the law laid down in the decision referred to supra. It is made clear that this Court has not expressed any opinion as to whether the petitioner can make an application for Trade Licence for the granite quarry under Section 232 of the Kerala Panchayat Raj Act without obtaining permission of the Village Panchayat under Section 233 of the Act, for installation of machinery. 15. A decision in this regard shall be taken with notice to the petitioner and also to the party respondents, who are the objectors, as expeditiously as possible, at any rate, within W.P.(C). No. 36659 of 2018 -15- a period of six weeks from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioner and also by additional respondents 8 to 14 are left open to be raised before appropriate authority, at appropriate stage. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** das W.P.(C). No. 36659 of 2018 -16- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A COPY OF THE LETTER OF INTEND NO.1523/DOPTA/M/18 DATED 18.7.2018.** **EXHIBIT P2 A COPY OF THE EXPLOSIVE LICENSE NO.E/SC/KL/22/1418 (E67637) DATED 21.9.2018. EXHIBIT P3 A COPY OF CERTIFICATE NO.E/SE/KL/30/547 (E 70002).** - **EXHIBIT P4 A COPY OF PROCEEDINGS NO.2323/2018/C1.DIA/KL/MIN/14232/2018 DATED 13.8.2018.** - **EXHIBIT P5 A COPY OF THE CONSENT NO.QCO/PTA/229/2018. EXHIBIT P6 A COPY OF THE RECEIPT NO.4914 DATED 16.10.2018.** - **EXHIBIT P7 A COPY OF THE ORDER OF THE NATIONAL GREEN TRIBUNAL DATED 13.9.2018.** - **EXHIBIT P8 A COPY OF THE LETTER NO.1802/A1/2018/SEIAA DATED 29.10.2018.** - **EXHIBIT P9 A COPY OF THE LETTER NO.3/PE (KYLM)/RIDFXX/2015 DATED 4.6.2015.** - **EXHIBIT P10 A COPY OF LETTER NO.3/PE (KYLM)/RIDFXX/2015 DATED 31.10.2018.** - **EXHIBIT P11 A COPY OF THE FINAL NOTICE NO.1/PE (KYLM)/RIDF-XX/2015 DATED 31.10.2018.** - **EXHIBIT P12 A COPY OF LETTER NO.B1-4914/18 DATED 09.11.2018.** W.P.(C). No. 36659 of 2018 -17- **EXHIBIT P13 A COPY OF THE RESOLUTION OF THE 6TH RESPONDENT ENADIMANGALAM GRAMA PANCHAYAT DATED 16.11.2018.** ## **6TH RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R6(A) THE TRUE COPY OF APPLICATION OF THE PETITIONER FOR D & O LICENSE DATED 15/10/2018** - **EXHIBIT R6(B): THE TRUE COPY OF APPLICATION FOR INSTALLATION PERMIT SUBMITTED BY THE PETITIONER** - **EXHIBIT R6(C): TRUE COPY OF LICENSE NO.B1-103/1/19 DATED 21/02/2019 ISSUED BY THE FOURTH RESPONDENT TO THE FIRST RESPONDENT** - **EXHIBIT R6(D): THE TRUE COPY OF NOTICE NO.B1/770/19 DATED 27/02/2019 ISSUED BY THE FOURTH RESPONDENT TO THE FIRST RESPONDENT** - **EXHIBIT R6(E): THE TRUE COPY OF ORDER NO.B1-103/1/19 DATED 05/03/2019 ISSUED BY THE FOURTH RESPONDENT** ## **RESPONDENTS 8 TO 14 EXHIBITS:** - **EXHIBIT R8(A) TRUE COPY OF THE CONSENT LETTER DATED 23.10.2017** **EXHIBIT R8(B) TRUE COPY OF PHOTOGRAPH** **EXHIBIT R8(C) TRUE COPY OF THE MASS PETITION DATED 09.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE CHAYALODE JANAKEEYA SAMITHI.** **EXHIBIT R8(D) TRUE COPY OF THE PETITION DATED 09.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE SUPERIOR OF ST.GEORGE ASHRAM.** W.P.(C). No. 36659 of 2018 -18- **EXHIBIT R8(E) TRUE COPY OF THE DECISION NO.2019/20 DATED 03.11.2018 TAKEN BY THE ENADIMANGALAM GRAMA PANCHAYAT WITH THE REQUEST DATED 20.10.2018 SUBMITTED BY CHAYALODE JANAKEEYA SAMITHI BEFORE THE PANCHAYAT.** - **EXHIBIT R8(F) TRUE COPY OF THE RESOLUTION DATED 16.11.2018 PASSED BY THE 6TH RESPONDENT (PANCHAYAT).** - **EXHIBIT R8(G) TRUE COPY OF THE SURVEY MAP.** - **EXHIBIT R8(H) TRUE COPY OF THE LOCATION SKETCH. EXHIBIT R8(I) TRUE COPY OF THE PETITION DATED 09.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE INDIAN PENTECOSTAL CHURCH OF GOD.** - **EXHIBIT R8(J) TRUE COPY OF THE PETITION DATED 08.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE HEADMISTRESS OF ST.GEORGE'S ASHRAM HIGH SCHOOL.** - **EXHIBIT R8(K) TRUE COPY OF THE PETITION DATED 09.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE HEADMISTRESS OF ST.GEORGE'S ASHRAM U.P.SCHOOL.** **EXHIBIT R8(L) TRUE COPY OF THE PETITION DATED 09.11.2018 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA BY THE STUDENTS OF ST.GEORGE'S ASHRAM U.P. SCHOOL. EXHIBIT R8(M) TRUE COPY OF THE PETITION DATED 16.10.2018 SUBMITTED BEFORE THE PANCHAYAT BY THE RESIDENTS OF WARD NO.15 OF THE PANCHAYAT. EXHIBIT R8(N) TRUE COPY OF THE PHOTOGRAPH.** W.P.(C). No. 36659 of 2018 -19- **EXHIBIT R8(O) TRUE COPY OF THE REPORT DATED 20.12.2018 SUBMITTED BY THE DISTRICT GEOLOGIST, PATHANAMTHITTA BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION.** **EXHIBIT R8(P) TRUE COPY OF THE REPORT DATED 27.12.2018 SUBMITTED BY THE DISTRICT ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PATHANAMTHITTA, BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION.** **EXHIBIT R8(Q) TRUE COPY OF THE COUNTER AFFIDAVIT DATED 22.03.2019 REPORT DATED 20.12.2018 SUBMITTED BY THE RESPONDENTS 7 AND 8 HEREIN BEFORE THE HONOURABLE DIVISION BENCH IN W.A.NO.706 OF 2018.** - **EXHIBIT R8(R) TRUE COPY OF THE JUDGMENT DATED 28.03.2019 PASSED BYTHIS COURT IN W.A.NO.706/2019.** - **EXHIBIT R8(S) TRUE COPY OF THE MASS PETITION DATED 06.04.2019 SUBMITTED BEFORE THE 8TH RESPONDENT (SECRETARY OF THE PANCHAYAT).** - **EXHIBIT R8(T) TRUE COPY OF THE MASS PETITION DATED 06.04.2019 SUBMITTED BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA.** ## **11TH RESPONDENTS'EXHIBITS** **EXHIBIT R11(A) TRUE COPY OF RESOLUTION DT.16.11.2018 PASSED BY THE 6TH RESPONDENT (PANCHAYAT)**