Reji KuriaKose Chirakkal v. Secretary, Keerampara Grama Panchayath; Keerampara Grama Panchayath; The Geologist; Shajan Mathew; Additional R3; Additional R4

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939 WP(C).No. 17486 of 2017 (I) ---------------------------- PETITIONER(S): ------------- REJI KURIAKOSE CHIRAKKAL HOUSE, THURUTHY P.O, ERNAKULAM. BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SMT.DENNIS VARGHESE RESPONDENT(S): -------------- 1. THE SECRETARY KEERAMPARA GRAMA PANCHAYATH, KEERAMPARA P.O, PUNNEKKADU, ERNAKULAM, PIN - 686 681. 2. KEERAMPARA GRAMA PANCHAYATH, KEERAMPARA P.O, PUNNEKKADU, ERNAKULAM PIN - 686 681, REPRESENTED BY ITS SECRETARY. ADDL. 3. THE GEOLOGIST, DISTRICT OFFICE, ERNAKULAM CIVIL STATION, KAKKANAD, COCHIN-682 030. ADDL. 4. SHAJAN MATHEW, AGED 50 YEARS, S/O.T.P.MATHEW, THEKKEKARA HOUSE, NADUKANI POST, KOTHAMANGALAM, ERNAKULAM DISTRICT, PRESIDENT, THE NADUKANI PARISHITHI SAMRAKSHANA SAMITHI. ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 5.7.2017 IN I.A.NO.10190 OF 2017. ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 6.11.2017 IN I.A.NO.13691 OF 2017. R1 BY ADV. SRI.SERGI JOSEPH THOMAS R3 BY SR.GOVERNMENT PLEADER SRI.ASHRAFF RADDL BY ADV. SRI.VINOD VALLIKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17486 of 2017 (I) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MINING & GEOLOGY DT. 1.3.2012 GRANTING QUARRYING LEASE FOR A PERIOD OF 11 YEARS. EXHIBIT P2 TRUE COPY OF THE LICENSE TO POSSESS EXPLOSIVES FOR USE DATED 31.1.2017, WHICH IS VALID UP TO 31.3.2017. EXHIBIT P3 TRUE COPY OF APPLICATION SHOWING ENDORSEMENT OF SUBMISSION OF APPLICATION FOR RENEWAL OF LICENSE. EXHIBIT P3(A) TRUE COPY OF EXPLOSIVE LICENSE DT. 14-3-2017 VALID UPTO THE YEAR 2022. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF COMPETENCY OF THE PERSON WHO IS APPOINTED FOR CONDUCTING BLASTING OPERATIONS IN THE PETITIONER'S QUARRY. EXHIBIT P5 TRUE COPY OF CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD, WHICH IS VALID UP TO 30.6.2018. EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 27.9.2011 ISSUED BY THE FIRES& RESCUE DEPARTMENT. EXHIBIT P7 TRUE COPY OF THE LICENSE RENEWED BY THE 1ST RESPONDENT FOR THE PERIOD 2016-17, WHICH IS VALID UP TO 31.3.2017. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 27.2.2017 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY. EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 28.2.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE RESPONDENTS ISSUED AGAINST SUBMISSION OF DOCUMENTS. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 16-3-2017 IN W.P(C) NO. 8808/2017 OF THIS HON'BLE COURT. EXHIBIT P12 TRUE COPY OF LETTER AND ACKNOWLEDGMENT SHOWING DISPATCH OF EXT. P11 BY REGISTERED POST. EXHIBIT P13 TRUE COPY OF THE COMMUNICATION DT.23-3-2017 ISSUED BY THE 1ST RESPONDENT REFUSING TO CONSIDER THE APPLICATION FOR RENEWAL. EXHIBIT P14 TRUE COPY OF INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 11123/2017. EXHIBIT P15 TRUE COPY OF ORDER DT. 20-4-2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF POSTAL COVER IN WHICH EXT. P15 ORDER DISPATCHED FROM THE OFFICE OF THE 1ST RESPONDENT. WP(C).No. 17486 of 2017 (I) ---------------------------- -2- EXHIBIT P17 TRUE COPY OF PROCEEDINGS OF DIRECTOR OF MINING & GEOLOGY GRANTING LEASE TO THE PETITIONER. EXHIBIT P18 TRUE COPY OF PROCEEDINGS OF DIRECTOR OF MINING & GEOLOGY GRANTING LEASE TO THE PETITIONER. EXHIBIT P19 TRUE COPY OF REPORT SUBMITTED BY THE CHIEF CONSERVATOR OF FOREST TO THE PRINCIPAL CHIEF CONSERVATOR OF FOREST(WILD LIFE), DATED 28-2-2014. EXHIBIT P20: COPY OF STOP MEMO DATED 26.5.2017 ISSUED BY THE GEOLOGIST. EXHIBIT P21: COPY OF COMPLIANCE REPORT SUBMITTED BY THE PETITIONER TO EXT.P20 DATED 10.6.17. EXHIBIT P22: COPY OF MOVEMENT PERMIT ISSUED BY THE MINING & GEOLOGY DEPARTMENT DATED 26.11.2016. EXHIBIT P23: COPY OF EXPLOSIVE LICENCE ISSUED BY THE EXPLOSIVE DEPARTMENT IN LE3 FORM. EXHIBIT P24: COPY OF CERTIFICATE DATED 8.8.2017 ISSUED BY THE VILLAGE OFFICER IN RESPECT OF EXT.P1. EXHIBIT P25: COPY OF CERTIFICATE DATED 8.8.2017 ISSUED BY THE VILLAGE OFFICER IN RESPECT OF EXT.P17. EXHIBIT P26: COPYOF CERTIFICATE DATED 8.8.2017 ISSUED BY THE VILLAGE OFFICER IN RESPECT OF EXT.P18. EXHIBIT P27: COPY OF BOTH SIDES OF ENVOLOP IN WHICH EXT.P15 DISPATCHED BY THE RESPONDENT. EXHIBIT P28: COPY OF DEMAND DRAFT AND ALLIED DOCUMENTS RETURNED BY THE 1ST RESPONDENT ALONG WITH EXT.P13. EXHIBIT P29: COPY OF SPECIMEN COPY OF APPLICATION FOR D&O LICENCE. EXHIBIT P30: COPY OF LICENCE NO.54/09-09 DATED 28.3.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P31: COPY OF DRAFT NOTIFICATION DATED 27.1.2016 ISSUED BY MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE. EXHIBIT P32: COPY OF LICENCE NO.A5-645/12-103/17-18 DATED 20.7.2017 ISSUED BY THE 1ST RESPONDENT TO A NEARBY QUARRY. RESPONDENT(S)' EXHIBITS -----------------------: EXHIBIT R3(a): COPY OF STOP NOTICE DATED 26.5.2017 VIDE NO.DOE/1001/E1/2017. EXHIBIT R3(b): COPY OF LETTER DATED Q8.7.2017 ADDRESSED TO THE TAHSILDAR KOTHAMANGALAM. EXHIBIT R3(c): COPY OF JUDGMENT OF THE HON'BLE DIVISION BENCH DATED 21.6.2016 IN W.A.NO.564/2016 IN W.P(C).44152016. WP(C).No. 17486 of 2017 (I) ---------------------------- -3- EXHIBIT R4(1): COPY OF REPRESENTATION MADE TO THE 2ND RESPONDENT DATED 17.2.2017 AND ACKNOLEDGED BY RECEIPT DATED 18.2.2017. EXHIBIT R4(2): COPY OF REPRESENTATION MADE TO THE 2ND RESPONDENT DATED 23.3.2017 AND ACKNOLEDGED BY RECEIPT DATED 26.3.2017. EXHIBIT R4(3): COPY OF REPLY TO AN APPLICATION UNDER THE RIGHT TO INFORMATION ACT SOUGHT FOR BY THIS PETITIONER AND RELIED TO BY THE SECRETARY OF THE PANCHAYAT. EXHIBIT R4(4): COPY OF ORDER OF the GEOLOGIST DATED 18.7.2017. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 17486 of 2017** **----------------------------------------------Dated this the 6[th] day of November, 2017** ## **JUDGMENT** This writ petition is filed with the following prayers: - _“i. issue a writ of certiorari or any other writ or order or direction quashing Ext.P15;_ - _ii. issue a writ of mandamus directing the 1[st] respondent to issue a certificate of licence for the period 2017-2018;_ - _iii.issue a writ of mandamus directing the respondents not to interfere with the functioning of the quarrying operation of the petitioner for want of environmental clearance.”_ 2 _._ Heard the learned Senior Counsel appearing for the petitioner, learned Standing Counsel appearing for respondents 1 and 2 and the learned Government Pleader appearing for the 3[rd] respondent as well as the learned counsel appearing for the additional 4[th] respondent. 3. The learned Senior Counsel appearing for the petitioner contends that the application submitted by the petitioner for licence has been rejected by Exhibit P15 order by the 1[st] respondent on untenable grounds. It is further contended that the order of rejection does not refer to any decision of the 2 _**WP(C).17486/17**_ Panchayat Council and therefore the order is vitiated by lack of jurisdiction. It is stated that the first reason stated for rejection of the licence is that the petitioner has not obtained environmental clearance for the renewal of licence. It is submitted by the learned Senior Counsel that no environmental clearance is required in view of the binding decisions of this Court and the Apex Court and that the rejection of the licence is therefore completely vitiated for want of application of mind. It is stated that the second reason stated for the rejection is that the petitioner has been granted three quarrying licences and his wife has been issued another quarrying licence and mining activities are being conducted in all the four quarries without demarcating the property covered by the individual licences. It is further stated that if permission is granted, it would lead to serious repercussions as far as the residents of the locality is concerned. Exhibit P15 also states that certain requisite documents including licence in Form LE-3 under the Explosive Rules, 2008 have not been produced by the petitioner. 4. The learned Senior Counsel contends that the issue with regard to the requirement of environmental clearance is clearly covered in favour of the petitioner by binding decision _**WP(C).17486/17**_ 3 of this Court. It is further stated that with regard to demarcation of property covered by individual quarrying licences, Exhibits P24 to P26 certificates have been issued by the Village Officer certifying that all the properties covered by the separate leases are clearly demarcated. The learned Senior Counsel further contends that Exhibits P17 and P18 leases have already run their course and the petitioner requires a licence only with regard to Exhibit P1 lease. It is also contended that the petitioner has all the permits required for the issuance of a D & O licence and all such material will be placed on record before the Panchayat Council. In the above view of the matter, it is prayed that Exhibit P15 may be set aside and the Panchayat Council may be directed to take up the request made by the petitioner for D & O licence and pass orders on the same in accordance with law. 5. A counter affidavit has been filed on behalf of the 3[rd] respondent. It is contended that on an inspection conducted by the 3[rd] respondent on the basis of the complaint preferred by the additional 4[th] respondent, it was found that the quarrying operations were being carried out without properly separating the areas covered by the individual leases. It is stated that on this basis a stop memo had been issued to the petitioner. It is 4 _**WP(C).17486/17**_ further stated that the 1[st] respondent cannot insist on the production of environmental clearance going by the decision of a Division Bench of this Court in W.A.No.564 of 2016 dated 21.6.2016. It is contended that the application for renewal of D & O licence is to be considered independently by the Panchayat. 6. The learned counsel appearing for the 4[th] respondent would contend that the 4[th] respondent had been objecting to the renewal of the D & O licence in respect of the quarries in the area due to the proximity of the Thattekad Bird Sanctuary and in view of the adverse impact on the environment which is likely by the indiscriminate grant of quarrying leases. It is stated that the petitioner had quarried beyond the possible limits going by the quarrying leases. 7. I have considered the contentions advanced on all sides. It is the specific case of the petitioner that the main reason stated in Exhibit P15 order for rejection of the renewal of the D & O licence is that the environmental clearance has not been produced. Relying on the decisions of the Supreme Court and of this Court reported in _**Goa Foundation v. Union of India**_ [(2011)15 SCC 791], _**Goa Foundation v. Union of India and Others**_ [(2014)6 SCC 590] and _**Ramapupram**_ 5 _**WP(C).17486/17**_ ## _**Grama Panchayat v. St.Basil Industries India (P) Ltd.**_ [2016(2) KLT 219], the learned Senior Counsel would contend that in the case of quarries, licences of which were granted on 18.2.2012, no environmental clearance need be produced by the petitioner for the renewal of the D & O licence. It is stated that the reason stated for rejection of licence relying on the Wild Life Protection Act, 1972 is totally misplaced and intended to mislead the Court. With regard to the complaint regarding non demarcation of the areas covered by the individual leases also, it is contended that Exhibits P24 to P26 would show that the areas now stand separately demarcated and that the same is not a valid reason for rejection of the licence. 8. The learned counsel appearing for respondents 1 and 2 would contend that in case an application which is complete in all respects is submitted before the Panchayat, the Panchayat Council will look into the matter and pass orders on the same in accordance with law. Learned counsel for the 4[th] respondent contends that the objections of the 4[th] respondent should also be heard before orders are passed. 9. On a consideration of the factual aspects of the matter, I am of the opinion that it is for the Panchayat Council to take a decision as to the renewal of D & O licence of the petitioner for 6 _**WP(C).17486/17**_ carrying out quarrying operations in the property covered by Exhibit P1 lease. If the petitioner makes an application for renewal along with all required documents, the same shall be taken up, considered and orders passed thereon by the Panchayat Council of the 2[nd] respondent within a period of three weeks from the date of receipt of a copy of this judgment. It is made clear that the 1[st] respondent shall not insist on environmental clearance for the consideration of the application made by the petitioner. In case the 4[th] respondent submits any written objection, the contentions shall also be looked into by the Panchayat. The respondents shall be guided by the observations contained in Exhibit R3(c) judgment while considering the application to be preferred by the petitioner. The writ petition is disposed of as above. **ANU SIVARAMAN JUDGE** _vgs8/11_