Secretary, Ottappalam Municipality & Ottappalam Municipality v. Dark Stone Land Developers Pvt. Ltd. & Director, Directorate of Mining and Geology, Government of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** **WA.No.830 OF 2020** ## **AGAINST THE JUDGMENT IN WP(C) 19361/2019(U) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN THE WRIT PETITION:** **1 THE SECRETARY, OTTAPPALAM MUNICIPALITY, OTTAPPALAM,PALAKKAD-679 101. 2 OTTAPPALAM MUNICIPALITY, OTTAPPALAM,PALAKKAD, REPRESENTED BY ITS SECRETARY-679 101. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SRI.SHARATH S.PUTHENPARAMPAN SMT.P.M.MAZNA MANSOOR RESPONDENTS/PETITIONER & 3RD RESPONDENT IN THE WRIT PETITION:: 1 DARK STONE LAND DEVELOPERS PVT. LTD. VARODE P.O.,OTTAPPALAM PALAKKAD-679 102. REPRESENTED BY ITS MANAGING DIRECTOR. 2 THE DIRECTOR, DIRECTORATE OF MINING AND GEOLOGY, MINING AND GEOLOGY DEPARTMENT, KESAVADASAPURAM,PATTOM,PALACE P.O., TRIVANDRUM-695 004. SRI. PHILIP J VETTICKATTU FOR R1, SRI.ARAVIND KUMAR BABU, SENIOR GOVERNMENT PLEADER FOR R2** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT IN THE WRIT PETITION::** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.830 OF 2020 2 ## **JUDGMENT** ## **SHAJI P.CHALY,J** Respondents 1 & 2, who are the Secretary and the Ottappalam Municipality in W.P.(C) No.19361/2019, have filed this writ appeal challenging the judgment of the learned Single Judge dated 25.11.2019, whereby the learned Single Judge directed the 1[st] appellant to take up Ext.P7 application of the writ petitioner i.e., the 1[st] respondent herein and issue necessary orders thereon, granting trade licence to it subject to the production of all the relevant and necessary consents and permissions, including the environmental clearance, as expeditiously as possible but not later than one month from the date of receipt of a copy of the judgment. It was further directed that the 1[st] appellant shall issue the said order after verifying the documents and after ensuring that all necessary conditions imposed therein have been complied with by the writ petitioner. The writ petitioner was also given the liberty to produce the trade licence, if issued by the Secretary of WA.No.830 OF 2020 3 the Municipality, in accordance with the directions issued to produce the same before the Director of Mining and Geology, Thiruvananthapuram, who also was directed to consider the application for grant of mining lease in terms of law and after verifying all relevant documents. 2. Basic contention advanced by the appellants in the appeal is that the directions contained in the judgment impugned for considering the application of the writ petitioner for the trade licence results in interfering with the duty cast upon the Municipality in confirming that quarry will not adversely affect the environment, water resources and natural characteristics of the place by calling for report from the Department of Mining and Geology, Department of Environment and the State Pollution Control Board as envisaged in the proviso to section 448(4)(c) of the Municipality Act and therefore, it goes against the law and the prescriptions contained in the Municipality Act, 1994. 3. It is also pointed out that the writ petitioner WA.No.830 OF 2020 4 has not exhausted the statutory remedy available under rule 24 of the Kerala Municipality (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 2011. It is also submitted that section 30 of the Municipality Act enables the Municipality to function as an institution of self-government and a duty has been cast upon the Municipality to render necessary service to the inhabitants of the Municipal area in respect of matters enumerated as mandatory functions in the First Schedule since as per Entry No.19 of the First Schedule, it is the duty of the Municipality to protect public right such as environment, public safety and public health while granting licenses to industries and trades. 4. It is also contended that the inhabitants in the locality and their property are under danger, if the quarrying activities are permitted to be conducted in the locality and the citizens have a legal right to reside in a safe environment without fear and the Municipality is endowed with a duty and obligation to ensure protection to the residents within the Municipal WA.No.830 OF 2020 5 area. That apart it is predominantly contended that in accordance with the Full bench Judgment in **Tomy Thomas v. State of Kerala** [2019(3)KLT 987 FB], this Court considered the amendment brought to the Municipality Act as per the provisions of the Kerala Investment Promotion and Facilitation Act, 2018. However, the Rules, 2011 is not so far amended and therefore, the Panchayat has got still powers to reject any application seeking trade licence if it is detrimental to the inhabitants. 5. On the other hand learned counsel for the writ petitioner has submitted that it has obtained all necessary clearances/consent/licence from other relevant statutory authorities for conducting quarrying operations, evident from Exts.P1 to P4 and P6 produced along with the writ petition. It was accordingly that Ext.P7 application seeking trade licence was submitted by the writ petitioner and it is significant to note that the Secretary of the Panchayat has issued Ext.P9 on 30.1.2019 specifying that the Secretary has sought for a meeting with Sub Collector and the application WA.No.830 OF 2020 6 can be considered only thereafter. However, no action was initiated by the 1[st] respondent in Ext.P7 application either rejecting or returning or refusing or dismissing or granting licence to the writ petitioner and communicated the writ petitioner within 30 days from 30.1.2019 or even from 29.4.2019 and till the filing of the writ petition and therefore, consequent to Ext.P7 application the writ petitioner has secured a deemed licence by the statutory fiction created under the Kerala Municipality Act, 1994. It is also pointed out that the appellants have not made out any case justifying interference in the impugned judgment since the entire aspects of the matter were considered by the learned Single Judge and there is no error in exercise of the discretionary jurisdiction by the learned Single Judge. 6. We have heard Sri.Vinod Madhavan appearing for appellants and Sri.Philip J.Vettikkad appearing for the writ petitioner/1[st] respondent and perused the pleadings and documents on record. WA.No.830 OF 2020 7 7. The paramount contention advanced by learned counsel for the appellants is that though amendments are made to the Municipality Act by introducing the Kerala Investment Promotion and Facilitation Act, 2018, correspondingly the rules are not amended and therefore, there is no procedure prescribed for implementation of the provisions of the amended provisions of the Act, 1994. In order to understand the argument advanced the relevant portions of the amendments would be worthwhile. Section 447 of the Municipality Act, 1994 was dealing with industries, factories and other trades. Now as per the amendment before the said section the heading 'Industries, Factories, Trades, Entrepreneurship Activities and Other Services' is substituted. Amended section 2A enables the Secretary or the officer authorised by him to issue an acknowledgement to the applicant along with supporting documents in such form as may be prescribed and shall verify the application and all supporting documents immediately on receipt and if any supporting documents required is not attached with the WA.No.830 OF 2020 8 application, the Secretary or the officer authorised by him shall immediately inform the applicant in writing the missing documents, if any, and allow the applicant to submit the missing documents, at the earliest but not later than 5 days from the date of receipt of application. Sub-section (3) as it stood originally was replaced with the following: _“(3) the Secretary or the officer authorised by him shall, within five days from the date of receipt of all supporting documents along with the prescribed clearances from other departments or authorities, by order and subject to such terms and conditions, as he deems fit, grant the licence for use of the place for conducting any industries, factories, trades, entrepreneurship activities or other services as the case may be”._ After sub-section (5) of Act, 1994, the following sub-section was inserted: _“(5A): the licence once granted under this section shall remain in force for a period of 5 years and shall be renewed without any application on payment of the prescribed fee, 30 days before the end of validity of the licence for a further period of 5 years”._ WA.No.830 OF 2020 9 Likewise section 448 of the Act, 1994 was amended and many provisions were incorporated including section 5A after sub-section 5, which read thus: _“(5A) if any order on an application for permission under this application is not communicated to the applicant within thirty days from the date of receipt of the application, by the Secretary, the application shall be deemed to have been allowed for the period required in the application subject to the Act, Rules and bye-laws and all conditions, which would have been imposed.”_ ## 8. A proviso is added thereto, which specifies that, “ provided that if any violation is noticed later, the Secretary with the approval of the Council may cancel the licence after giving a show cause notice to the applicant stating the reason for such cancellation and after examining the submission, if any, made within the time specified in the said notice”. There are other provisions enabling the Secretary to impose penalty etc. by virtue of the amendment. The material contention raised by the writ petitioner in the writ petition that Ext.P7 application was submitted before the Municipality on 10.1.2019 is not disputed, which is WA.No.830 OF 2020 10 also clear from the receipt attached to Ext.P7 application dated 10.1.2019. 9. It is also admitted that the writ petitioner has secured necessary clearances for conducting quarry operations from the required statutory authorities, evident from Exts.P1 to P4 and P6. There is no case for the appellants that the licence application was rejected by the appellants within 30 days from the date of receipt of the application. It is true that Ext.P9 communication was issued on 30.1.2019, whereby it was informed the writ petitioner that in order to consider the issue with respect to the conduct of the quarry, Panchayat intends to convene a conciliation meeting in the presence of the Sub Collector, Ottappalam. It is also an admitted fact that as per Ext.P10 letter dated 25.4.2019 the Managing Director of the writ petitioner has addressed the 1[st] appellant Municipal Secretary and conveyed that since no conciliation made was conveyed by the Panchayat as stated in Ext.P9 communication issued by the Secretary, the application submitted by the writ petitioner for D&O licence may be declared as WA.No.830 OF 2020 11 'secured by virtue of deeming provision'. To the said communication, Ext.P10 receipt is issued which is dated 24.4.2019. There is no case for the Panchayat that any meeting was convened or any decision was taken in Ext.P7 application for licence. It is also clear from Ext.P11 dated 12.4.2019 addressed by the Sub Collector, Ottappalam to the Chairman of the appellant Municipality that the application for licence is to be considered by the Municipality itself. 10. It was taking into account all these aspects, the learned Single Judge has arrived at the conclusion that the writ petitioner has secured deeming licence by virtue of sub-section (5A) of section 448 of the Act, 1994. On an analysis of sub-section (5A) of section 448 of the Act, it is categoric and clear that sub-section (5A) is a sweeping provision, which clearly specifies that if any order on the application for permission under section 448 of the Act is not communicated to the applicant within 30 days from the date of receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period required WA.No.830 OF 2020 12 in the application subject to the Act, Rules and byelaws and all conditions which would have been imposed. Therefore, there is no point in stating that since no rules are framed, the writ petitioner is not entitled to get the benefit of the deeming provision contained as above. It is clear from the amending provision also that even without a rule, the amended provisions of Act, 1994, as discussed above is liable to be followed and implemented by the Secretary as well as the Municipality. The said legal position is clear from the proviso to sub-section (5A) of section 448 that if at all there is any violation, the Secretary is vested with ample powers to take action by following the procedure contemplated under the amended provisions of the Act. Therefore, the provisions of the amended Act itself, is a self contained code to have all recourse enabling the Secretary or the officer authorised by the Secretary to take action in accordance with law. Taking into account all these aspects, we are of the considered opinion that the appellants have not made out any case justifying interference in the WA.No.830 OF 2020 13 impugned judgment of the learned Single Judge since we do not find any error or other legal infirmities in exercising the discretionary power conferred under Article 226 of the Constitution of India. Needless to say the writ appeal fails, accordingly it is dismissed. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** smv **SHAJI P.CHALY JUDGE**