Shine Mathew v. Purapuzha Grama Panchayath

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 WP(C) NO.26093 OF 2023 ``` ## **`PETITIONER:`** ``` SHINE MATHEW, AGED 49 YEARS, S/O.MATHAI, VADAKKEMUTTANOLIL HOUSE, KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT, PIN - 686662 ``` ``` BY ADVS. GEORGEKUTTY MATHEW RENJITH THAMPAN (SR.)(K/276/1990) ``` ## **`RESPONDENTS:`** - **`1 THE PURAPUZHA GRAMAPANCHAYATH REPRESENTED BY ITS SECRETARY, PURAPUZHA P.O., IDUKKI DISTRICT, PIN - 685583`** - **`2 THE PURAPUZHA GRAMAPANCHAYATH COMMITTEE REPRESENTED BY ITS PRESIDENT, PURAPUZHA P.O., IDUKKI DISTRICT, PIN - 685583`** - **`3 THE SECRETARY THE PURAPUZHA GRAMAPANCHAYATH, PURAPUZHA P.O., IDUKKI DISTRICT, PIN - 685583`** - **`4 JAICE JOHN, AGED 49 YEARS, S/O.JOHN, PAZHAYAPURAYIL HOUSE, KUNINJI P.O., IDDUKI DISTRICT, PIN-685583`** - **`* 5 GEORGE MATHEW, AGED 70 YEARS, S/O.MATHEW, NOORAMMAKKAL HOUSE, KUNINJI P.O., IDUKKI DISTRICT, PIN-685583`** - **`6 TOMY ZACHARIAS, AGED 62 YEARS, S/O.ZACHARIA, VELLANKAL HOUSE, KUNINJI P.O., IDUKKI DISTRICT, PIN-685583`** W.P.(C) No.26093 of 2023 2 ``` * ``` ``` (ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DATED 16-08-2023 IN I.A.NO.1/2023) ``` ``` BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB ATHUL V. VADAKKEDOM REXY ELIZABETH THOMAS SHYSON P.MANGUZHA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.26093 of 2023 3 ## **`JUDGMENT`** ``` The petitioner, with the intention to start a quarry, applied for letter of intent and the Director of Mining and Geology has issued Ext.P2 letter of intent to him. Ext.P3 is the Environmental Clearance issued by the State Environmental Impact Assessment Authority, Ext.P4 is the Explosive Licence AND Ext.P5 is the consent to operate issued by the Kerala State Pollution Control Board. Based on the said licences and permissions, the petitioner filed Ext.P1 application dated 16.05.2023 under Section 233 of the Kerala Panchayat Raj Act, 1994 [for brevity, ‘the Act’] for trade licence for running the granite quarry. The petitioner states that though ``` W.P.(C) No.26093 of 2023 4 ``` certain defects were noted by the 3[rd] respondent, which were cured and resubmitted on 05.06.2023 as evident from Ext.P7 communication. The petitioner further states that even though the application for trade licence was resubmitted after curing the defects on 05.06.2023, no orders have been passed by the 3[rd] respondent either allowing or rejecting the same within 30 days from the date of resubmission. Therefore, the petitioner is entitled for deemed licence under Section 236(3) of the Act. The petitioner refers to Ext.P8 communication issued by the 3[rd]respondent rejecting the application based on Ext.P9 resolution of the Panchayat Committee. The petitioner submits that in view of the judgment of the Full Bench of this Court in Tomy Thomas v. State of Kerala and Others [2019 (4) KHC 553], the ``` W.P.(C) No.26093 of 2023 5 ``` Panchayat Committee has no primacy in the matter on issuance of trade licence and it is for the Secretary to take a decision independently. ``` ``` 2. The learned Senior Counsel for the petitioner also refers toAbdul Kharim v. Pazhayakunummel Grama Panchayat [2018 (4) KLT 1086 [F.B], wherein this Court has held that rejection of an application of permit after the expiry of the period under Section 236(3) of the Act is of no consequence. ``` ``` 3. A Counter Affidavit has been filed by the Panchayat. The additional respondents 4 to 6 have also filed a counter affidavit resisting the contention of the petitioner in the writ petition. It is stated by the additional respondents that the petitioner has not complied with the conditions in Ext.P2 letter of intent. The ``` W.P.(C) No.26093 of 2023 6 ``` additional respondents further contend that Ext.P4 is not an explosive licence issued in terms of law and therefore, the Panchayat cannot issue a trade licence to the petitioner. The learned counsel for the petitioner disputes the said submission. ``` ``` 4. Heard Sri.Georgekutty, the learned counsel for the petitioner, Sri.Renjith Thampan, the learned Senior Counsel, Sri.Shyson P.Manguzha and Sri.Liji J.Vadakkedom, the learned Standing Counsel appearing for the Panchayat. ``` ``` 5. Ext.P1 application for trade licence is filed on 16.05.2023. As per the provisions of Sections 233 & 236 of the Act, the Secretary of the Panchayat has to take a decision on the application for trade licence within a period of 30 days from the date of receipt of the application. In case there are defects in the ``` 7 W.P.(C) No.26093 of 2023 ``` application, the same has to be cured and a decision thereon shall be taken within 30 days of resubmissionoftheapplication.Ext.P1 application has been resubmitted after curing the defects on 05.06.2023. The 30 days’ period therefrom expired on 04.07.2023. The 3[rd] respondent has not passed any order rejecting the application for trade licence. Rule 5A of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, 1996 provides that on receipt of an application for trade licence, the Secretary shall issue an acknowledgment to the applicant. On receipt of the application along with supporting documents in Form No.1, the Secretary shall immediately verify the application and all supporting documents and if the supporting ``` W.P.(C) No.26093 of 2023 8 ``` documents on the support, and if any supporting document required is not attached with the application, the Secretary or the Officer authorised by him shall immediately inform the applicant regarding the details of the missing document, if any, and allow the applicant to submit the missing document at the earliest, but not later than three days from the date of receipt of the application. ``` ``` 6. No such procedure is seem to have been adopted in this case. Since no orders have been passed and communicated to the petitioner within 30 days from the date of resubmission of the application, I allow this writ petition and declare that the petitioner is entitled for deemed licence under Section 236(3) of the Act. The 3[rd] respondent shall issue a licence in paper form to ``` W.P.(C) No.26093 of 2023 9 ``` the petitioner within a period of two weeks from the date of receipt of a certified copy of this judgment. It is made clear that the 3[rd] respondent will be free to revoke the licence in case there is any violation of the provisions of the Act and the Rules framed thereunder. ``` ``` The writ petition is disposed of. ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/22/03/2024 ``` W.P.(C) No.26093 of 2023 10 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ## **`EXHIBIT P1`** ``` TRUE COPY OF THE COMBINED APPLICATION FOR ESTABLISHMENT PERMIT AND TRADE LICENSE FOR RUNNING QUARRY SUBMITTED BY THEPETITIONERBEFORETHE3RD RESPONDENT ON 16-05- 2023 ``` ``` EXHIBIT P2TRUE COPY OF THE LETTER OF INTENT BEARING NO. 4326/M3/2019, DATED 29-05- 25019 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY TO THE PETITIONER ``` ``` EXHIBIT P3 ``` ``` TRUE COPY OF THE ENVIRONMENTAL CLEARANCE BEARING NO. 160/Q/2022, DATED 11-10- 2022 ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY TO THE PETITIONER ``` - **`EXHIBIT P4 TRUE COPY OF THE EXPLOSIVE LICENSE BEARING NO E/SE/KL/22/333(E134567), DATED 11-05-2023 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI`** - **`EXHIBIT P5 TRUE COPY OF THE CONSENT TO OPERATE BEARING NO. KSPCB/ID/ICO/10014535/22, DATED 16-12-2022 ISSUED BY THE ENVIRONMENTAL ENGINEER OF THE KERALA STATE POLLUTION CONTROL BOARD, IDUKKI DISTRICT`** ``` EXHIBIT P6 ``` ``` TRUE COPY OF THE LETTER BEARING NO. 400575/RPTL19/GENERAL2023/2154/(1), DATED. 31-05- 2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER ``` W.P.(C) No.26093 of 2023 11 ## **`EXHIBIT P7`** ``` TRUE COPY OF THE LETTER DATED 05-06- 2023 SUBMITTED BY THE PETITIONER IN REPLY TO EXT.P6 BEFORE THE 3RD RESPONDENT ``` ## **`EXHIBIT P8`** ``` TRUE COPY OF THE LETTER BEARING NO. G5- 2154/2023, DATED 03-08-2023 ISSUED BY THE 3RD RESPONDENT ``` ## **`EXHIBIT P9`** ``` TRUE COPY OF THE DECISION OF THE COMMITTEE OF THE RESPONDENT PANCHAYATH BEARING NO.20/1 DATED 31-07-2023 ``` ## **`EXHIBIT P10`** ``` TRUE COPY OF THE FORM LE-7 LICENSE BEARINGNO.E/SE/KL/25/56(E112803) DATED 26-06-2018 ISSUED BY THE DEPUTY CHIEFCONTROLLEROFEXPLOSIVES, ERNAKULAM PERMITTING TRANSPORTATION OF EXPLOSIVES IN THE VEHICLE BEARING NO. KL-17-S-3600 ``` - **`EXHIBIT P11 TRUE COPY OF THE EXPLOSIVE LICENSE IN FORM LE-7 BEARING NO. E/SE/KL/25/ 110(E138318) DATED 03-02-2022 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES ERNAKULAM IN FAVOUR OF P.P. BABU`** - **`EXHIBIT P12 TRUE COPY OF THE AGREEMENT DATED 04-042023 EXECUTED BETWEEN THE PETITIONER AND NIKHIL BABU`** - **`EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 05-072023 IN W.P.(C) 11840/2023 OF THIS HONBLE COURT`** - **`EXHIBIT -P14`** ``` TRUE COPY OF THE LETTER BEARING NO. DO1/1752/M/2018 DATED 26-07-2023 ISSUED BY IDUKKI DISTRICT GEOLOGIST TO THE ``` W.P.(C) No.26093 of 2023 12 ## **`SECRETARY OF PURAPPUZHA GRAMA PANCHAYATH`** ``` EXHIBIT -P15 ``` ``` TRUE COPY OF THE PERMIT BEARING NO. KL1717/1908/2018 IN FORM P.GD. UNDER RULE 144(D) ISSUED BY THE TRANSPORT DEPARTMENT OF KERALA ON 07-06-2023 WITH REGARD TO VEHICLE BEARING REGISTRATION NO. KL 17-S-3600 ``` ## **`EXHIBIT -P16`** ``` TRUE COPY OF THE PERMIT BEARING NO. KL 2022-GP-2441 A IN FORM P.GD. UNDER RULE 144 (D) ISSUED BY THE TRANSPORT DEPARTMENT OF KERALA ON 02-02-2022 WITH REGARD TO VEHICLE BEARING REGISTRATION NO. KL-17-W-5499. ``` ## **`EXHIBIT -P17`** ``` TRUE COPY OF THE CONSENT LETTER DATED 25-03-2023 ISSUED BY P.P. BABU I FAVOR OF NIKHIL BABU ``` ``` RESPONDENT'S EXHIBITS:- ``` ``` EXHIBIT R4(A) ``` ``` A COPY OF THE REPORT DATED 10/1/2013 PREPARED BY THE SECRETARY, PURAPUZHA GRAMA PANCHAYAT ```