Sedeer Granites v. Kavilumpara Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938** **WP(C).No. 11984 of 2016 (W) ----------------------------** **PETITIONER(S): -------------** **SEDEER GRANITES,** **REPRESENTED BY ITS MANAGING PARTNER A.R.ZULFIKAR, 6/624, SEDEER ARCADE, FEROKE, KOZHIKODE-673 631.** **BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN** **RESPONDENT(S):** **--------------** **KAVILUMPARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KAVILUMPARA P.O., KOZHIKODE DISTRICT - 673 513.** **BY ADVS. SRI.T.A.SHAJI (SR.) SRI.B.S.SYAMANTHAK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 11984 of 2016 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 TRUE COPY OF PROCEEDINGS OF THE DIRECTOR OF MINING AND GEOLOGY ISSUED ON 17/3/2011.** - **P2 TRUE COPY OF THE QUARRYING LEASE DT. 6/4/2011 BETWEEN THE PETITIONER AND THE GOVERNMENT.** - **P3 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE DTD. 11/8/2011 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **P4 TRUE COPY OF INTEGRATED CLEARANCE TO ESTABLISH RENEWAL DTD. 16/8/2012 ISSUED BY KERALA STATE POLLUTION CONTROL BOARD.** - **P5 TRUE COPY OF LICENCE NO. A5/59/13 DT. 20/4/2013 ISSUED BY KAVILUMPARA GRAMA PANCHAYAT.** - **P6 TRUE COPY OF NO OBJECTION CERTIFICATE DT. 24/10/2011 ISSUED BY DISTRICT MEDICAL OFFICER OF HEALTH, KOZHIKODE.** - **P7 TRUE COPY OF NO OBJECTION CERTIFICATE NO. A6-810/11 ISSUED BY THE RESPONDENT.** - **P8 TRUE COPY OF RECEIPT DT. 25/2/2014 ISSUED BY THE RESPONDENT.** - **P9 TRUE COPY OF ORDER NO. A8. 1152/14 DTD. 24/5/2014 ISSUED BY THE RESPONDENT.** - **P10 TRUE COPY OF THE LETTER DTD. 11/4/2014 ISSUED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT.** - **P11 TRUE COPY OF ORDER DT. 18/10/2014 ISSUED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT.** - **P12 TRUE COPY OF THE MEMORANDUM ISSUED BY THE GOVERNMENT OF INDIA ON 20/12/2013.** - **P13 TRUE COPY OF OFFICE MEMORANDUM DT. 4/3/2014 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FORESTS.** - **P14 TRUE COPY OF GO (RT) NO. 57/2014/ENVT. DT. 27/3/2014 ISSUED BY GOVERNMENT OF KERALA, ENVIRONMENT(A) DEPARTMENT.** - **P15 TRUE COPY OF CADASTRAL MAP IN RESPECT OF KAVILUMPARA VILLAGE ALONG WITH COVERING LETTER DT. 20/12/2014.** - **P16 TRUE COPY OF THE COUNTER AFFIDAVIT DT. 23/3/2015 FILED BY THE RESPONDENT PANCHAYAT IN WPC 6860/2015 BEFORE THIS HON'BLE COURT.** **msv/** **-2-** **-2-** ## **WP(C).No. 11984 of 2016 (W) ---------------------------** - **P17 TRUE COPY OF JUDGMENT DTD. 27TH MARCH 2015 IN WPC 6860/2015 OF THIS HON'BLE COURT.** - **P18 TRUE COPY OF ORDER NO. A8/2165/15 DTD. 20/4/2015 PASSED BY THE RESPONDENT.** - **P19 TRUE COPY OF ORDER NO. A8 2165/15(1) DTD. 20/4/2015 ISSUED BY THE RESPONDENT.** - **P20 TRUE COPY OF ORDER NO. A8-1544/14 DTD. 17/8/2015 ISSUED BY THE RESPONDENT.** - **P21 TRUE COPY OF DECISION NO. 278/15 DTD. 14/7/2015 OF KAVILUMPARA GRAMA PANCHYAT COMMITTEE.** - **P22 TRUE COPY OF REPRESENTATION DTD.8.3.2016 AFFIDAVIT BY LOCAL RESIDENTS OF KAVILUMPARA GRAMA PANCHAYAT, WARD NO.7 BEFORE THE SECRETARY, KAVILUMPARA GRAMA PANCHAYAT AND ITS ENGLISH TRANSLATION.** - **P23 TRUE COPY OF D & O LICENSE DTD.1.2.2016 ISSUED BY THE RESPONDENT IN FAVOUR OF ONE N.P.PADMANABHAN.** **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **EXT.R1(a): TRUE COPY OF THE REPRESENTATION SUBMITTED BY ONE MR.JOSHY PUTHEN PURACKAL AND 18 OTHERS.** - **EXT.R1(b): TRUE COPY OF THE REPRESENTATION DTD.22.6.2015 SUBMITTED BY ONE MR.ABRAHAM KUDAPATT.** - **EXT.R1(c): TRUE COPY OF THE MASS REPRESENTATION BEFORE THE PANCHAYATH.** - **EXT.R1(d): TRUE COPY OF THE RESOLUTION NO.8/6/DTD.16.4.2016. EXT.R1(e): ENGLISH TRANSLATION OF EXT.R1(a)** **EXT.R1(f): ENGLISH TRANSLATION OF EXT.R1(b)** **EXT.R1(g): ENGLISH TRANSLATION OF EXT.R1(c)** **EXT.R1(h): ENGLISH TRANSLATION OF EXT.R1(d)** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** **C.R.** ## **DAMA SESHADRI NAIDU, J.** -------------------------------------------- ## WPC No.11984 of 2016 --------------------------------------------Dated this the 14[th] day of March, 2017 ## **JUDGMENT** ## **Facts in Brief:** The petitioner, a partnership firm (‘the Firm’), has all the licenses and permits to carry on its quarry operations within the territorial limits of Kavilumpara Grama Panchayat (‘the Panchayat’). As the lease was subsisting, the Firm requested the Panchayat to renew its D&O license. The Panchayat, however, rejected the Firm's request through Ext.P9: The area where the Firm quarries falls within the ecologically sensitive zone. 2. Aggrieved, the Firm approached the Government, which clarified through Ext.P10 letter, dt.11.4.2014, that the subsisting leases in the area can continue till they expire or for five years, whichever is earlier. Indeed, it asserted that Kavilumpara is ecologically sensitive, but the policy permits the existing licencees to WPC No.11984 of 2016 2 quarry. Realising that Ext.P10 clarification is not explicit in endorsing the Firm's claim, the firm once again approached the Government; it resulted in a second clarification—Ext.P11, dated 18.10.2014. The Government, this time, did say that it prohibited new crusher units in ecologically sensitive areas. It has however informed the Secretary of the Panchayat that the Firm's quarry and crusher units can be allowed to function "till the expiry of the lease or till five years." 3. Despite Exts.P10 and P11 clarifications, the Panchayat remained unmoved. Then, the Firm filed WP (C) No.6860 of 2015. This Court, through its Ext.P17 judgment, dated 27[th] March 2015, held: "In the facts and circumstances, this Court is of the considered opinion that the respondent Grama Panchayat is obligated to reconsider the petitioner's application in the light of Exhibits P11 and P13 proceedings. As a result, Ext.P9 order is set aside with a further direction to the respondent Grama Panchayat to reconsider the petitioner's application, especially in the light of Exhibits P11 and P13, and pass appropriate orders thereon as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment". ## 4. As the Panchayat passed no orders within the stipulated one WPC No.11984 of 2016 3 month, the Firm filed Contempt Case No.845 of 2015: that the officials of the Panchayat had wilfully disobeyed the Court's directive. ## **The Contempt Proceedings** 5. Initially, on 17.6.2015, a counsel appeared for the Panchayat and took notice on its behalf; on 29.6.2015, the counsel for the Panchayat handed over to the counsel for the firm a copy of order, dt.20.04.2015, passed by the Panchayat, ostensibly in compliance with the judgment. Thereafter, a couple of adjournments later, the counsel for the Panchayat produced another order, dt.20.04.2015, passed by the Panchayat. The first order dealt with the Firm’s mining operations; the second, crusher unit. ## **(a) Initial Compliance:** 6. Both the orders, marked as Exts.P18 & P19, were issued on the same date—20[th] April 2015—though produced on different dates. The orders, signed by the Secretary-in-charge, have acknowledged that the quarries with subsisting licenses can operate. He has, however, required the firm to produce before him the enlisted permissions and licenses from certain statutory authorities. WPC No.11984 of 2016 4 ## **(b) Volte-face:** 7. The Firm complied with the requirement. Meanwhile, a new secretary assumed charge. He issued Ext.P20 order, dated 17.8.2015, rejecting the Firm's application for the renewal of D & O licence. Amazed at the U-turn taken by the Panchayat, the Firm issued Ext.P4 legal notice, which the Panchayat met with its Annexure A5 reply: The Panchayat has maintained that it has not violated the Court's directions; rather, it has acted on the complaints it received from the public apprehending the area’s environmental safety. Under those circumstances, the Firm filed I.A.No.357 of 2015 for having the contempt case restored to the file. It was restored. 8. Chronologically viewed, on 29[th] July 2015, the Court initially closed the contempt case because the learned counsel for the Firm represented that the directions in the judgment had been complied with. Given the later developments, on 29[th] September 2015, the Court allowed I.A.Nos.357 and 358 of 2015: It restored the contempt case to file and permitted the Firm to bring on record the new secretary as the additional second respondent. On 26[th] November WPC No.11984 of 2016 5 2015, the respondents in the contempt case represented that the incumbent secretary had no say in Ext.P20 order; he only communicated the order passed by the Committee of the Panchayat, which exercised its appellate power under section 276 of the Kerala Grama Panchayat Act. 9. In Ext.P20—the order through which the Panchayat reversed its stand—it referred to certain orders and proceedings to justify its conclusion, though a volte-face. Among other things, it refers to an affidavit, dated 22.6.2015, said to have been filed by the Panchayat before the Court, when the writ petition was pending. The Panchayat does not seem to have filed any affidavit before the Court, at any point in time. So, to ascertain how the committee had exercised its appellate power if any; the Court directed the respondents to place before it all the relevant records. 10. On 9[th] December 2015, the date of next hearing, the Panchayat produced no records. It was nevertheless granted further time. But, throughout, the Panchayat has not placed before the Court records of any relevance. To defend his stand, the Secretary of the WPC No.11984 of 2016 6 Panchayat filed a counter affidavit in the contempt case. He contended that the Panchayat, through Ext.P21, had annulled Secretary’s Ext.P18 & P19 orders by exercising its appellate powers. He further, though, undertook to “make amends if this Hon'ble Court finds that the action of the Panchayat amounted to contempt of Court.” ## **Panchayat’s Shifting Stand:** 11. Panchayat, viewed as a single entity, kept on shifting its stand in the contempt proceedings. As the people at the helm of the affairs changed, so was the Panchayat’s stand. For the Panchayat, many counsel came into and went out of the case. They pleaded their inability to persuade the Panchayat to adhere to the statutory stipulations. Eventually, on merits, I have directed, through Order, dt.18.01.2017, that the contempt case be placed before the Division Bench having the roster: I have prima facie found the respondent officials to have wilfully violated the judicial directive. 12. As the irony would have it, despite the Panchayat’s stand that it is different and distinct from its Secretary, in this writ petition, WPC No.11984 of 2016 7 it has pleaded, defended itself, and acted only through its Secretary —and Secretary alone. ## **The Writ Petition:** 13. Besides pursuing the contempt case, the Firm, on its part, has filed this writ petition questioning Exts.P20 & P21 orders of rejection. ## **The Contentions:** ## **The Petitioner’s:** 14. The Firm submits that Exts.P20 & P21 orders exemplify the Panchayat’s brazen, illegal efforts to stultify binding judicial directives. The Panchayat was required, as per the judgment, to reconsider the Firm’s request in the light of Exhibit P11 and P13 orders of clarification issued by the Government. But it passed the impugned orders without reference to the Government clarification— not even considering this Court’s Ext.P17 judgment. 15. On merits, the Firm contends that the Panchayat’s apprehension on the quarry’s ecological impact is unfounded and with no scientific basis. Many of about 20 quarries licenced by the WPC No.11984 of 2016 8 Panchayat have been functioning, in fact, at higher levels of the Western Ghats. The Firm’s quarry is at the Ghat’s foothills. The alleged landslide, according to the Firm, is a Panchayat’s invention, for in the last 20 years no such incident occurred. The landslide insisted on by the Panchayat occurred over 20 years ago, at a place called 'Pashukadavu,' four to five kilometers away from Vattippana. The Firm has reminded the Court that the Firm’s request was only for the renewal of the licence. After granting the licence, only during its renewal, the Panchayat invented reasons on unfounded allegations; thus goes the Firm’s contention. ## **The Respondent-Grama Panchayat’s:** 16. The Panchayat—through its Secretary—filed a detailed counter affidavit. To begin with, it contends that this Court’s Ext.P17 judgment directed the Panchayat “only to reconsider” the Firm's application; the direction was by no means a positive mandamus. According to the Panchayat, the area where the Firm’s quarry is located is ecologically sensitive and is prone to landslides. The people in the neighbourhood, too, have been relentlessly agitating WPC No.11984 of 2016 9 against the Firm’s quarry. And many people have petitioned to the Panchayat. 17. The Panchayat further submitted that, because of the public protest, the Panchayat constituted a committee of experts to assess the quarry’s environmental impact. The Committee’s Ext.R1 (d) report has concluded against the Firm’s quarry. 18. As to the Panchayat’s earlier communications—Ext.P18 & P19—offering to renew the Firm’s licence, the Panchayat has tried to explain it away. It maintained that its Secretary—and its Secretary alone—issued Exts.P18 & P19 to ward off contempt proceedings. The Panchayat as such has nothing to do with them. It also contends that, when the matter was placed before it, the Panchayat Committee realized “the potential danger” and found that renewing the Firm’s licence “would necessarily infringe the right to life of the residents of the locality and there would be severe damage to . . . this Environmentally Sensitive Area.” As it is against the public interest, the Panchayat unanimously rejected the Firm’s request for renewal. WPC No.11984 of 2016 10 19. Strange as it may sound, the Panchayat has not shied away from contending that this Court in Ext.P17 judgment directed the Panchayat—but not the Secretary—to reconsider the Firm’s application. So, the Secretary’s agreeing before this Court (in contempt proceedings), through Ext.P17 & P18, that the Firm’s licence would be renewed, is of no consequence. 20. Finally, the Panchayat prides itself of its exalted position: As the Panchayat is a Constitutional body constituted under Article 243 and 243C of Chapter IX of the Constitution of India read with Section 4 of the Kerala Panchayath Raj Act 1994, it is “bound to protect its residents right to life under Article 21 of the Constitution of India and the Panchayat has got a duty to protect this hill against activities which would [be] tantamount to infringement of the right to life of the people under Article 21 of the Constitution of India.” 21. Heard Sri P. K. Suresh Kumar, the learned Senior Counsel, for the petitioner and Sri T. A. Shaji, the learned Senior Counsel, for the Grama Panchayat, besides perusing the record. WPC No.11984 of 2016 11 ## **Discussion:** ## **1. Is the Secretary a parallel authority different and distinct from the Grama Panchayat?** 22. I will first address the Panchayat’s defence that Exts.P18 & P19 orders were passed by the Secretary; the Panchayat was under the bona fide impression that it should have been the Panchayat itself. The submission runs shallow. Granted that the Committee acted bona fide, it ought to have passed an order considering the observations made in the judgment. But Ext.P20, passed on 14.07.2015, had no reference—not even remote—to the judgment, much less to its compliance. 23. Viewed differently, the Panchayat would have us conclude that the Panchayat is different from its Secretary. The statute, however, mandates that the Panchayat must be represented by, and act through, the Secretary. Unless there is an inter-departmental appeal, the Panchayat can have no dichotomy as a corporate or legal entity—to view itself as different and distinct from the Secretary. As an artificial person, it ought to be represented by a human agency, WPC No.11984 of 2016 12 and that human agency is the Secretary—statutory position being loud and clear. 24. The second or alternative—for me, it sounds incongruous— contention is that the order passed by the Secretary is appealable. The fallacy is this: The Secretary passed no order exercising his statutory powers; rather, he has passed Exts.P18 & P19 orders in compliance with the judgment. Still I reckon that those orders are amenable to statutory process or scrutiny—say, appeal. Let us see what follows, then. ## **Grama Panchayat’s Appellate Power:** 25. First, I will address the scope of Panchayat's Appellate powers. Section 276 of the Kerala Panchayat Raj Act, 1994 deals with the appeals and revisions. The Panchayat is the appellate authority against the orders passed or action taken by the President or Secretary. Sub-Section 6 of Section 276 of the Act prescribes a strict time-frame for an appeal or revision to be filed: 30 days from notice, or order, or action taken. The appeal thus preferred shall be disposed of within sixty days. WPC No.11984 of 2016 13 26. Chronologically viewed, the Secretary passed Exts.P18 & P19 orders on 20.04.2015; the appeal should have been filed by 20.05.2015. Of immense importance is that, absent any appeal, the Committee has no suo moto power to entertain an appeal. 27. But the Committee’s Ext.P20 order or Ext.P21 resolution does not whisper about any appeal. In the counter affidavit, the respondents do assert—evidently, as an afterthought—that Ext.R1 (a) and (b) are the complaints. They may be. But, except in the counter affidavit, they do not find themselves mentioned anywhere else. 28. Further, if at all the Committee passed Exts.P20 & P21 orders in appeal, it then follows that they are quasi-judicial. The hurdles to sustain this plea are these: The Committee in its proceedings mentions about no appellant, nor does it have any suo moto power; the putative appeal is barred by limitation. Further, though the Firm is the aggrieved party, it was not put on notice. ## **Environmental Clearance:** 29. Ext.P16 is the counter affidavit filed by the Panchayat in WPC No.11984 of 2016 14 W.P. (C) No.6860 of 2015. In para-5 of the counter affidavit, the assertion is loud and clear: “[E]nvironmental clearance is necessary for quarry and crusher licence. Therefore, the application was rejected for want of environment[al] clearance.” 30. But this Court in Ext.P17 judgment has held that there is no “impediment for the respondent Panchayat to re-consider the Firm's application for renewal of D & O licence. In other words, going by Exhibit P11, the respondent Grama Panchayat may have . . . to renew the licence, inasmuch as the Firm would have the lease unobstructed for the next five years to come.” Referring to Ext.P13, the Court has observed that “if the area where the Firm carries on its quarry operations is not within the notified area, the time cap of five years may not have any application.” Ext.P17 judgment became final. 31. Let us examine, once again, Ext.P11: In Ext.P11 the Government noted that “Kavilumpara being an ecologically sensitive area, the expired permits cannot be renewed. In the case of a lease, it can continue till its expiry or for five years.” Finally, the Government informed the Panchayat that “the applicant's quarry and WPC No.11984 of 2016 15 crusher can be allowed to function till the expiry of the lease or till five years.” Indeed, the Firm’s is a lease for five years. The Panchayat has not challenged Ext.P11. 32. In Ext.P18, the Grama Panchayat, through its Secretary, told the Firm that its “application has been gracefully considered.” It asked the Firm to produce the following: (1)Consent from the Pollution Control Board; (2)Explosive licence; (3)Permission from Mining and Geology Department; (4)Certificate to prove the expertise of the blaster issued from the Mining Examination Board and agreement; (5)N.O.C. from Forest Department; and (6) Possession certificate. The assurance was that the renewal would take place on the Firm’s compliance. The Firm complied. ## **Panchayat’s U-Turn:** 33. Later, the Panchayat issued Ext.P20. It informed the Firm that the Panchayat has resolved not to renew the Firm’s licence. The sole reason assigned is this: Vattippani is ecologically fragile. Ext.P20 also mentions, vaguely though, that the Firm’s land is “adjacent to the area where [the] landslide took place,” and that “several WPC No.11984 of 2016 16 complaints have been received in the matter.” The order further reads that the Executive Committee “found that the facts in the complaint are true.” 34. In Ext.P21, which supports Ext.P20, the observations are grave: (1) the President of the Grama Panchayat announced in the meeting that the quarry . . . is in Environmentally Fragile Area; (2) many complaints have been received; (3) the risks mentioned in the above complaints are persisting; (4) the quarry had expanded to more areas than those allotted under the lease; (5) that there were instances of rifts and breaking of nearby houses. Then, the order talismanically invokes a few set-phrases: It is “the prime responsibility of the panchayat to keep the environment, healthy and if permission is granted to renew the license to operate the quarry at the above place vide the renewal application submitted by Sedeer Granites, it will seriously affect the inhabitance and environmental balance of Vattippana, which is an Environmentally Fragile Area.” 35. Before proceeding further, I may note that, in the earlier rejection, which had led to Ext.P17 judgment, the Panchayat had WPC No.11984 of 2016 17 cited none of these grounds. The judicial dictum under these circumstances is well-established: Public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations given later by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have a public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older[1] . So an authority can sustain its action only on the grounds the initial order contained. It cannot be permitted to supplement or augment grounds by way of defence. 36. Desperate to defend itself, the Panchayat talked out of both sides of its mouth—inconsistently: It has invoked environmental concerns; it has invoked public safety; it has invoked its right as an appellate authority; it has tried to invoke its exalted position as a “constitutional body,” as well. > 1 Gordhandas Bhanji v Gordhandas Bhanji, AIR 1952 SC 16; Mohinder Singh Gill v. CEC, AIR 1978SC 851 WPC No.11984 of 2016 18 37. Granted, the Grama Panchayat—the local administration—is at the grass roots of the civic administrative hierarchy as a constitutionally recognized institution. But that is not be-all and endall. Even in the autocratic Middle Ages, one individual pitted against the might of the State has declared that the King is under the Law. In 1608 Sir Edward Coke, as Chief Justice of the Common Pleas, came face to face with King James I, who asserted that “the King is the Law speaking.” The King pompously proclaimed that only to be met with an audacious retort by the Chief Justice: The King is under God and Law. Years later, Dr Thomas Fuller, historian and chaplain in the reigns of Charles I and Charles II, counseled the monarchy with these famous words: “Be you ever so high, the law is above you.”[2] 38. All institutions in a democratic polity are instrumentalities of the State. So they are infra-State. Just because an institution finds itself consecrated in constitutional terms, it cannot declare itself supra-State: the price of power is responsibility and, for an individual, humility. The very State is infra-Constitutional. The 2 Page 49, First steps in the Law by Geoffrey Rivlin, OUP, 7[th] Ed. WPC No.11984 of 2016 19 Constitution, the collective will of ‘We the People’ is the reigning monarch to which every institution—including the Parliament, the Executive, and the Judiciary—pays its obeisance. The Constitution embodies the Rule of Law, and any effort in any quarter, however noble the putative objective is, to negate the rule of law falls foul of the constitutional command. 39. The Grama Panchayat's solemn duty of protecting the public interest, laudable as it is, shall be within the constitutional confines; for that matter, even within the statutory stipulations. A violation couched in admirable terms still remains a violation. Ends hardly justify the means—at least in a Republic governed by the Rule of Law. Law is not “an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends.”[3] So, the much-vaunted ends here—that is, the environmental concern or public interest—are still subservient to the Rule of Law and cannot be a rouse or camouflage for the Grama Panchayat to act with impunity. > 3 Page 14, Law as a Means to an End: Thrat to the Rule of Law by Brian Z.Tamanaha, Cambridge University Press, 2006. WPC No.11984 of 2016 20 ## **Public Interest and Public Protest:** 40. As to the public protest, this Court has time and again declared that public protest, however clamorous or even judicious, cannot obliterate the statutory or constitutional rights of others. 41. The Panchayat’s entire edifice of defence stands on this keystone: it has acted on the complaints and reacted to public protests, in the public interest. 42. Ecological or environmental issues deserve deep examination and scrupulous compliance. That said, I hasten to add that they are not supra-constitutional concerns. In Southern Granite Industries v. Pallichal Grama Panchayat[4] , this Court (per me) has acknowledged that public protests do exert enormous pressure on the public functionaries, especially at the local government level. The protest is a symbol of strident and vibrant democracy. It is thinkingout loud in a democratic discourse—a discourse nevertheless. Public protest is a quasi-legal mechanism at the hands of the general populace for a policy change or even nullification, but not statutory 4 2016(1) KHC 207 WPC No.11984 of 2016 21 annihilation. The core constitutional principle of a Republic is that a democratic government, paradoxical as it sounds, is a government of laws, not of men of a majority. 43. Erick J. Haynie in ‘Populism, Free Speech, and the Rule of Law: The Fully Informed Jury Movement and its Implications’,[5] has said that under the rule of law, citizen behavior is regulated not according to the passions and prejudices of human beings, but according to objective, published laws, formally sanctioned by elected representatives through a pre-ordained process. 44. I may, to conclude, quote Abraham Lincoln on the constant conflict between the law and public protests[6] : “Let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although, bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.” ## **The Magic or Mantra:** ## 45. The Panchayat knows, too well, that expressions such as > 5 88 J.Crim.L & Criminology 343 (Fall 1997) > 6 Pg.320, The Oxford Dictionary of American Legal Quotations, 1993 Ed. WPC No.11984 of 2016 22 ecology, environment, and so forth cast magic spells and send shivers down the spines of those who question any issue involving environmental concerns. But those expressions should not spell terror. They do well to serve as words of caution, not of fashion or of coercion. 46. The Courts have always presumed—rightly so—that both the Legislature and the Executive well know of the environmental impact of their legislations and actions, respectively. In other words, so long as a law persists or so long as an executive action is well within the statutory confines, mere invocation, with nothing more, of the expressions about environmental concerns cannot stultify the adjudicatory process. The courts need not be apologetic because of its upholding the rule of law vis-à-vis the environmental concerns, if there were any. It lies in the realms of the Legislature and the Executive to note those concerns and remedy them. I hasten to add that if the action of either of these branches in the field of environment, like any other field of activity, fails to measure up to the constitutional or statutory standards, the courts are well within WPC No.11984 of 2016 23 their competence to spike that action or even to void it. ## **The Government’s Clarification:** 47. As seen from Ext.P11, the Government of Kerala did issue a clarification that the existing leases should continue till their expiry. This Court does not have the necessary wherewithal to question the executive wisdom, more so, if it does not fall foul of any constitutional or statutory mandate. To say the least, the Panchayat has not even questioned Ext.P11. 48. Because of the environmental concerns the issue raises, because of the public interest, because of the Panchayat’s determined defiance—even at the cost of the rule of law—because of the subterfuges the Panchayat has sought to adopt, I have felt that the issue needs more elaboration than usual. Ext.P11 comes out of the enquiry conducted by the Deputy Director of Panchayats, Kozhikode; it was addressed to the very Panchayat. The Government makes it explicit that quarrying leases be allowed to continue till their expiry or for five years, whichever is earlier. In Ext.P12, the Government of India declares: “The existing projects/activities under WPC No.11984 of 2016 24 these categories may continue, according to law, except for existing mines which should be phased out within the next 5 years or expiry of their mine lease, whichever is earlier.” 49. In Ext.P13, the Government of India acknowledges that the Dr. K. Kasturirangan-Committee’s Report (HLWG Report) should form the basis. But it clarifies that “the boundaries of the Ecologically Sensitive Area (ESA) as identified by HLWG may be fine-tuned after receiving inputs from stakeholders/State Governments.” As a result, the Government of Kerala made its recommendations based on the findings of its Expert Committee—Kerala State Biodiversity Board— and Panchayat-Level Committee. As to the ESA, the Government approved the Biodiversity Board’s cadastral maps. The Firm’s contention that their mining area is beyond the area demarcated in the cadastral maps remains unrebutted. ## **Experts’ Opinion:** 50. Now I may turn to the Panchayat’s one last defence: the experts’ opinion. The Panchayat contends that, because of widespread public protest, it had constituted a committee of experts. WPC No.11984 of 2016 25 It also produced Ext.R1 (d) resolution—but not a report. The resolution is fait accompli. First, the Court is handicapped to know what the experts have opined; second, the Panchayat did not allow the Firm to present its version to that committee of experts, thus breaching the principles of natural justice; third, so long as Ext.P11 subsists, the Panchayat cannot negate the Government’s discretion or concession—its having not been invalidated—to conclude on parallel, but contrary, lines. ## **Summary:** 51. To sum up, I must observe that (1) the Firm has got all the permissions, government clarifications, and previous orders passed by the Secretary ostensibly in compliance with the judgment; (2) the Government’s Ext.P11 clarification addressed to the Panchayat remains undisturbed; (3) before Ext.P17 judgment, the Panchayat had raised none of the objections it raised now, as is evident from its earlier Ext.P16 counter affidavit; (4) Panchayat’s objections raised in Ext.P16 stood answered by Ext.P17 judgment; (5) the Grama Panchayat Committee has no suo moto appellate powers; (6) the WPC No.11984 of 2016 26 alleged grounds of alleged environmental hazard is Panchayat’s recent invention, which, nevertheless, has all along been in the Government’s contemplation; (7) Union of India’s and the State Government’s Ext.P12 to Ext.P15 communications belie the Panchayat’s stand; (8) the Panchayat’s earlier orders, Exts.P18 & P19, have not been duly cancelled; (9) the Panchayat has failed to back up its claims with proper documentary proof despite opportunities; (10) the Panchayat provided no opportunity to the Firm before it passed Exts.P20 and P21; and (11) that the Panchayat has breached the principles of natural justice. In fact, the Grama Panchayat’s dogged defiance and obstinacy compels this Court to issue a positive mandamus. ## **Can the Court Issue a Positive Mandamus?** 52. A Division Bench of this Court in K.C.T. Steel Pvt. Ltd. v. State of Kerala[7] has examined the issue. Guided by the Apex Court’s precedents, it has held that if a court reckons that a statutory authority cannot take an independent or impartial decision because > 7 2016(4) KHC 336(DB) WPC No.11984 of 2016 27 of some external or internal pressure, it must give its reasons for concluding thus and decide the issue on its own. The reasons so given by the court can always be tested. And if the reasons are inadequate, the court’s decision to by-pass the statutory authority can always be set aside. 53. In Comptroller and Auditor General of India v. K.S. Jagannathan,[8] a three-Judge Bench, per Madon, J. quotes with approval House of Lords in Mayor of Rochester v. Regina[9] , King v. Revising Barrister for the Borough of Hanley[10] , Padfield v. Minister of Agriculture, Fisheries and Food[11] , and to a passage from Halsbury's Laws of England.[12] Madon, J., observes: "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in > 8 1986(2) SCC 679 9 1958 EB and E 1024 10 1912(3) KB 518 > 11 1968 AC 997 > 12 4[th] Ed.Vol.1, p.59 WPC No.11984 of 2016 28 another fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." (emphasis as quoted in Badrinath[13] ) 54. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving the decision-making to the statutory authority. In D.N. Jeevaraj v. State of Karnataka[14] the Supreme Court has, however, cautioned that if the court took over the decision-making power of the statutory authority, it must only be in exceptional circumstances and not as a routine. Jeevaraj, in fact, clarifies that the Court must give reasons why it took over the authority's decision-making function. Absent reasons, the positive mandamus is susceptible to a further judicial review. 55. I reckon that this is a fit case that calls for a positive mandamus. The Court has done every bit to make the Grama Panchayat see reason. But the Panchayat spoke in various voices, 13 Badrinath v. Government of Tamilnadu, (2000) 8 SCC 305 14 (2016) 2 SCC 653 WPC No.11984 of 2016 29 contradicting itself. It undertook that it would abide by the earlier judgment, but, later, changed tack; none of its pleas, it has supported with any material. It has displayed, regrettably, avoidable obstinacy and needless belligerence. The members of the Panchayat Committee have been facing contempt proceedings, too. 56. Under these circumstances, I allow the writ petition: (1) Ext.P20 & P21 are quashed; and (2) the Grama Panchayat is directed to renew the Petitioner’s licence “in respect of the quarry” owned by the Petitioner and to permit the Petitioner’s crusher to function under Ext.P18 & P19 orders. No order on costs. sd/- **DAMA SESHADRI NAIDU JUDGE** css/ true copy P.S.TO JUDGE