## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942**
## **WP(C).No.10569 OF 2020(U)**
## **PETITIONER:**
**SUDHEESH A.T ADAKKATHOTTATHIL HOUSE, RATTAKUNDU, KUMABLERI P.O. WAYANAD 673 593.**
**BY ADV. SRI.PAUL JACOB (P)**
## **RESPONDENTS:**
**1 VENGAPPALLY GRAMA PANCHAYAT PINANGODE P.O. WAYNAD 673 121. REPRESENTED BY ITS SECRETARY. 2 SECRETARY, VENGAPPALLY GRAMA PANCHAYAT, PINANGODE P.O. WAYNAD 673 121. 3 DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, MEENANGADI, WAYANAD 673 591.**
## **BY ADVS**
**SRI.MANOJ RAMASWAMY, SC,VENGAPPALLY GRAMA PANCHAYAT SRI.K.J.MANU RAJ, GOVERNMENT PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2020, ALONG WITH WP(C).10647/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.P(C) Nos.10569 & 10647 of 2020
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942**
## **WP(C).No.10647 OF 2020(E)**
## **PETITIONER:**
**SUDHEESH A.T. AGED 44 YEARS ADAKKATHOTTATHIL HOUSE, RATTAKUNDU, KUMBALERI P. O., WAYNAD - 673593**
**BY ADVS. SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE**
## **RESPONDENTS:**
**1 VENGAPPALLY GRAMA PANCHAYAT PINANGODE P. O., WAYNAD - 673121, REPRESENTED BY ITS SECRETARY. 2 SECRETARY VENGAPPALLY GRAMA PANCHAYAT, PINANGODE P. O., WAYNAD - 673121. 3 THE DIRECTOR OF MINING AND GEOLOGY DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O., THIRUVANANTHAPURAM - 695 004.**
**BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.MANOJ RAMASWAMY,SC**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2020, ALONG WITH WP(C).10569/2020(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
W.P(C) Nos.10569 & 10647 of 2020
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## ALEXANDER THOMAS, J.
-----------------------------------W.P(C) Nos. 10569 & 10647 of 2020 -----------------------------------Dated this the 9[th ] day of June, 2020
## **JUDGMENT**
Since the issues raised in these two cases are broadly similar, these cases are disposed of on the basis of common judgment. W.P(C) No.10569/2020 is taken as a lead case.
2. The case set up in the aforecaptioned writ petition (C) as follows:
The petitioner has obtained a letter of intent, EC, explosive license and the consent from the PCB to start a quarry. The petitioner submitted an application or a trade licence before the 2[nd] respondent on 06.02.2020. After the statutorily prescribed period of 30 days, 2[nd] respondent issued Ext.P4 letter on 13-03-2020 informing the petitioner that the application was placed before the Panchayat Committee who in turn deferred the application for the opinion of the Disaster Management Authority and the application will be considered only on receipt of their opinion. Section 236(3) of the Kerala Panchayat Raj Act provides an outer limit of 30 days for the Secretary to consider an application. Therefore, orders ought to
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have been passed by the Secretary by 07.03.2020, failing which a deemed license under Section 236(3) of the Kerala Panchayat Raj Act comes in favour of the Petitioner,. Once the deemed license comes into force, the application no longer survives for the Secretary to pass any orders thereon. After the statutorily prescribed period of 30 days, if no orders are passed by the Secretary, the Secretary becomes _functus officio_ to consider the application. His mandate to consider the application comes to an end on the expiry of the period of 30 days. Ext.P4 letter issued by the Secretary is also bad in law on account of the fact that an application for a trade license under Section 232 is to be considered independently by the Secretary and any interference by any authority other than the Secretary will invite the vice of Section 185B of the Kerala Panchayat Raj Act. Moreover once the applicant has obtained an environmental clearance and consent from the Pollution Control Board, the Panchayat is statutorily bound to grant the lecence by virtue of the amendment to the Kerala Panchayat Raj (Issue of License to Factories, Trades Entrepreneurship Activities and Other Services) Amendment Rules, 2017 and the declaration of law by this Court in _**Tomy Thomas v.**_
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_**State of Kerala,** [_ 2019 (3) KLT 987] _**.**_ Without a declaration of the deemed trade license, the 3[rd] Respondent District Geologist is hesitant to consider Ext.P5 application for quarrying permit submitted by the Petitioner. Hence this Writ Petition seeking a declaration of deemed trade license. In an identical situation, this Court had issued Ext.P6 interim order and Petitioner is ideally placed as the Petitioner therein.
3. The main contentions urged by the petitioner are as follows. Since no orders were passed by the Secretary by 07-03-2020 a deemed licence came into force w.e.f 07-03-2020. Thereafter the Secretary has no mandate to consider the application for trade license.
4. The prayers in the Writ Petition (C) No.10569/2020
seeking the following prayers:
- _i) Issue a writ in the nature of a declaration, declaring that petitioner has a deemed trade license under Sec.236(3) of Panchayat Raj Act for operating the quarrying unit with effect from 07-03-2020._
- _ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue formal trade license to the petitioner for conducting the quarrying unit on the basis of the deemed license that accrued to the petitioner with effect from 07-03-2020._
- _iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 3[rd] resp0ndent to consider Ext.P5_
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_application for quarrying permit submitted by the petitioner on the basis of the deemed trade license that accrued to the petitioner with effect from 07-03-2020._
- _iv) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case._
The prayers in the writ petition (C) No.10647/2020 is as
follows:
- _i) Issue a writ in the nature of a declaration, declaring that petitioner has a deemed trade license under Sec.236(3) of Panchayat Raj Act for operating the quarrying unit with effect from 07-03-2020._
- _ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to issue formal trade license to the petitioner for conducting the quarrying unit on the basis of the deemed license that accrued to the petitioner with effect from 07-03-2020._
- _iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 3[rd] resp0ndent to consider Ext.P5 application for quarrying lease submitted by the petitioner on the basis of the deemed trade license that accrued to the petitioner with effect from 07-03-2020._
- _iv) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case._
5. The case set up in the W.P(C) No.10647/2020 is also broadly
similar, the Exhibit numbers as well as the dates of the Exhibited
documents are also the same. The main difference is that Ext.P5 in W.P(C) No.10569/2020 is for quarrying permit, whereas Ext.P5 in W.P(C) No.10647/2020 is for a quarrying lease.
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6. Heard Sri.Enoch David Simon Joel, learned counsel appearing for the petitioner in these two W.P(C)s, Sri.Manoj Ramaswamy, learned counsel appearing for R1 and R2 (Vengappally Grama Panchayat) and Sri.K.J.Manu Raj, learned Government Pleader appearing for the 3[rd] respondent (official respondents in two W.P(C)s).
7. The main contention urged by the petitioner in these cases is to the effect that he has secured the benefit of grant of deemed licence as mandated in Sec.236 (3) of the Kerala Panchayat Raj Act. As no orders have been duly communicated to him by the 2[nd] respondent Secretary of the Grama Panchayat in respect of his application submitted on 06-02-2020, which has been acknowledged as per Ext.P3 receipt, for grant of trade licence/D&O licence as per the provisions of the Kerala Panchayat Raj Act and the rules framed thereunder, in respect of the running of the proposed quarries within the outer time limit of 30 days from the submission of the said application as mandated in Sec.236(3) of the Kerala Panchayat Raj Act etc, the respondent Panchayat has filed a statement dated 08-06-2020 through their learned counsel and the same reads as
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## follows:
_This statement is filed on the basis of the instructions received from the 2[nd] respondent._
_2. It is submitted that the petitioner in the above writ petition had submitted an application for trade licence on 06.02.2020. The licence is for the purpose for the conduct of a granite quarry of an extent of 2.7513 Hectares in Sy.No.257/2/1, 257/2/3, 257/2/4, 257/3/1, 257/3/2, 258/4 in Block No.10 in Vengappally Village within the limits of Vengappally Grama Panchayath. The above application of the petitioner was numbered as D3-618 dated 06.02.2020._
_3. It is submitted that the land was indicated as plantation land in the possession certificate and tax receipt submitted by the petitioner. Thereon vide letter No.A1-618/2020 on 12.02.2020, the 2[nd] respondent sought clarification from the Revenue Divisional Officer, Mananthavady with respect to the suitability of the land for quarrying purpose and also sought clarification regarding whether the land comes within the Kerala Land Reforms (Ceiling) Rules, 1970. Till date no reply was received from the office of the Revenue Divisional Officer._
_4. It is submitted that in the meantime, certain complaints were raised by the public with respect to the allotment of licence for the commencement of the quarry by the petitioner. In this situation the file was placed before the Panchayath committee by the 2[nd] respondent on the meeting held on 11.03.2020. The Panchayath committee vide decision No.21/1 had decided to place the issue before the District Disaster Management Authority for consideration. Accordingly, the issue was placed before the District, Disaster Management Authority for consideration. The decision of the Panchayath Committee was intimated to the petitioner vide letter No.B3-618/2020 dated 13.03.2020 as per Exhibit P4._
_5. It is submitted that the above statement is filed in accordance with the instructions issued by the 2[nd] respondent and without prejudice to the right to file a detailed counter affidavit in the above writ petition._
8. It has been held by the Division Bench of this Court in
_**Sudharakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175]**_ para No.9 thereof as follows:
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_“9. To answer the question referred by the learned Single Judge, it is enough that a reference is made to Section 236 (1), (3) and 11 which read as under:_
_"236: General provisions regarding licences and permissions_
_(1) Save as otherwise expressly provided in, or may be prescribed under this Act, every application for any licence or permission under this Act or any rule or bye-law made thereunder, or for the renewal thereof, shall be made not less than thirty and not more than ninety days before the earliest date with effect from which, or the commencement of the period being three year or such lesser period as is mentioned in the application for which the licence or permission is required."_
_"(3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed."_
_"(11) When any licence or permission is suspended or revoked or when the period for which it was granted, or within which application for renewal should be made, has expired, whichever expires later, the grantee shall for all purposes of this Act or any rule made under it be deemed to be without a licence or permission until the order suspending or revoking the licence or permission is cancelled or, subject to subsections (3) and (4), until the licence or permission is renewed, as the case may be."_
_On a bare reading of sub section (3), we do not find any ambiguity in the said provision. The section itself clearly indicates that if orders on any such application or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases, after the receipt of the application by the Secretary, “the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed”. The aforesaid words in the statute clearly indicates that a deemed_
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_licence comes into existence if orders in an application for licence or permission is not communicated to the applicant within thirty days. An application for renewal of a licence is akin to an application for licence as well.”_
9. The Full Bench of this Court in the case in A _**bdul Kharim**_
## _**v. Pazhayakunnummel Grama Panchayat [2018 (4) KLT 1086 (FB)]**_ has held in Para Nos.6 and 11 thereof as follows:
“ _6. We find the Division Bench, in the factual circumstances of that case, was right in regard to the interpretation of relevant provisions regarding deemed licence in as much as that the Panchayath did not issue any communication to the applicant within 30 days in regard to the application for the licence. We find at the same time the Division Bench erred in approving the dictum in Rajesh Ramachandran's case for the reasons stated hereafter._
_11. There are two elements that would require to be established by an applicant to entitle him for a 'deemed licence'. One is lodging an application in accordance with the statutory provision and other is the expiry of the time for consideration of such an application by the authority. The very purpose of fixing an outer limit for consideration of the application is to find out the validity of application and also to consider whether the applicant is entitled for permit or licence. The point that arises for consideration is, when an application is found to be defective within the outer limit stipulated for considering such application, can that application be considered as an 'application' as stipulated under Section 236(3) of the Act.”_
10. In the instant case it appears that, it is indisputable that the 2[nd] respondent Secretary of the Grama Panchayat has not issued any communication whatsoever intimating the petitioner about the rejection of his application for trade licence submitted on 06-02-2020 or that the matter has been referred for certain
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clarifications from the Revenue Officer etc., as is sought to be projected in the statement filed by him within the abovesaid outer time limit of 30 days from the submission of the said application.
11. Section 236 of the Kerala Panchayat Raj Act reads as follows:
_"236: General provisions regarding licences and permissions:-_
_(1) Save as otherwise expressly provided in, or may be prescribed under this Act, every application for any licence or permission under this Act or any rule or byelaw made there under or for the renewal thereof, shall be made not less than thirty and not more than ninety days before the earliest date with effect from which, or the commencement of the period (being a year of such less period as is mentioned in the application) for which the licence or permission is required._
_(2) Save as otherwise expressly provided in or may be prescribed under this Act, for every such licence or permission fees may be charged on such units and at such rates as may be fixed by the Village Panchayat with due regard to the expenditure to be incurred for rendering service to the trade and for the regulation of the trade, for which the licence or permission is granted._
_(3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary the application shall be deemed to have been allowed for the period, if any for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed._
_(4) The acceptance of the pre-payment of the fee for any such licence or permission shall not entitle the person making such pre-payment to the licence or permission but only to a refund of the fee in case of refusal of the licence or permission._
_(5) If an act for which any such licence or permission is necessary is done without such licence or permission or in a manner inconsistent with the terms of the licence or permission obtained, then–_
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_(a) The Secretary may, by notice require the person so doing such act to alter, remove or as far as practicable restore to its original state, the whole, or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice; and 189[shall, so require if directed by the Village Panchayat;]_
_(b) If no penalty has been specifically provided in this Act for so doing such act the person so doing it shall be punishable with fine not exceeding one thousand rupees and with such higher rate of fine in case of repetition of offence and after three offences much severer punishment[190] [“may be awarded or prosecution proceeding may be initiated as the Panchayat may deem fit”]_
_(6) Whenever any person is convicted of an offence in respect of the failure to obtain any such licence or permission, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the village panchayat the amount of the fee chargeable for the licence or permission, and may, in his discretion, also recover summarily and pay over to the village panchayat such amount, if any as he may fix as the costs of the prosecution._ _**Explanation.** - The recovery of the fee for a licence or permission under this sub-section shall not entitle the person convicted to the licence or permission._
_(7) Every order of the Secretary granting or refusing a licence or permission shall be published on the notice board of the village panchayat._
_(8) Every order of the Secretary refusing, suspending, cancelling or modifying a licence or permission shall be in writing and shall state the grounds on which it proceeds._
_(9) Any licence or permission granted under this Act or any rule made under it may at any time be suspended or revoked by the Secretary, if any of its restrictions limitations or conditions is evaded or infringed by the grantee or if the grantee is convicted of a breach of the provisions of the Act or of any rules made under it in any matter to which such licence or permission relates or if the grantee has obtained the same by misrepresentation or fraud._
_(10) It shall be the duty of the Secretary to inspect places in respect of which a licence or permission is required by or under this Act, and he may enter any such place between sunrise and sunset and if he has reason to believe that anything is being done in any place without a licence or permission where the same_
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_is required by or under this Act, or otherwise than in conformity with the same, he may at any time by day or night without notice enter such place for the purpose of satisfying himself whether any provision of law or rules, any condition of a licence or permission or any lawful direction or prohibition is contravened and no claim shall lie against any person for any damage or inconvenience necessarily caused by the exercise of powers under this sub-section by the secretary or any person to whom he has lawfully delegated his powers or by any force necessary for effecting an entrance under this sub-section._
_(11) When any licence or permission is suspended or revoked or when the period for which it was granted, or within which application for renewal should be made, has expired, whichever expires later, the grantee shall for all purposes of this Act or any rule made under it be deemed to be without a licence or permission until the order suspending or revoking the licence or permission is cancelled or, subject to sub-sections (3) and (4), until the licence or permission is renewed, as the case may be._
_(12) Every grantee of a licence or permission shall at all reasonable times, while such licence or permission remains in force, produce the same when required by the secretary._
_(13) Notwithstanding anything contained in the provisions of this section, no licence or permission under this Act shall be granted to any person who has defaulted payment of any tax, fees or other dues payable to the Village Panchayat.”_
12. Therefore going by the legal principles laid down by this Court in the aforecited judgments and in view of the mandatory provisions contained in Sec.236(3), this Court has to hold that the petitioner is technically successful in contending that he is entitled for the benefit of deemed grant of said licence in terms of the mandatory provisions contained in Sec.236(3) of the Kerala Panchayat Raj Act. The position in this regard is ordered and declared accordingly. However this will be without prejudice to the
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right of the 2[nd] respondent Secretary of the Grama Panchayat concerned to pursue further action in respect of the factual aspects canvassed by him in statement dated 08-06-2020 filed by him before this Court or any other relevant aspects and if it is found that the jurisdictional facts required for the invocation of the provisions contained in Sec.236(9) of the Kerala Panchayat Raj Act are fulfilled in any of these cases, then it will be open to the 2[nd] respondent Secretary of the Grama Panchayat to take appropriate steps for cancellation or suspension of such deemed license of the petitioner and accordance with law.
13. If any such adverse proceedings are contemplated by the 2[nd] respondent Secretary of the Grama Panchayat, then reasonable opportunity of being heard may also be given to the petitioner before any such action in that regard is finalised. It will be open to the petitioner to produce a copy of this judgment before the 3[rd] respondent District Geologist or any of the other competent authorities of the mining and geology department, for consideration of his requisite application for grant of quarrying permit/quarrying lease, as the case may be, in furtherance of the letter of intent said to
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have been issued to him by the 3[rd] respondent.
14. Accordingly, it is ordered that the 2[nd] respondent Secretary of the Grama Panchayat may issue separate proceedings to be issued in the case of the petitioner stating that the petitioner concerned has already secured the benefit of deemed grant of permit in terms of the mandatory provisions contained in Sec.236(3) of the Kerala Panchayat Raj Act and in view of the orders and directions made by this Court in these W.P(C)s and that this will be without prejudice to their right to proceed under Sec.236(9) of the Kerala Panchayat Raj Act, if any such action is really warranted and justified etc,. Such written proceedings may be issued by the 2[nd] respondent to the petitioner within 10 days from the date of production of a certified copy of this judgment. It is open to the petitioner to produce such proceedings so issued by the 2[nd] respondent before the 3[rd] resp0ndent District Geologist in furtherance of his applications for grant of quarrying permit/quarrying lease as the case may be etc,.
15. The petitioner may produce certified copies of this judgment along with a copy of the memorandum of this W.P(C) with all the Exhibits to the 2[nd] respondent Secretary of the Grama
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Panchayat and 3[rd] respondent (official respondents) for necessary information and further action.
With these observations and directions the above Writ Petitions
(Civil) will stand finally disposed of.
Sd/-
**ALEXANDER THOMAS, JUDGE**
KAS
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## **APPENDIX OF WP(C) 10569/2020**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**TRUE COPY OF THE LETTER OF INTENT DATED 03.12.2018 ISSUED BY THE 3RD RESPONDENT.**
**EXHIBIT P2 TRUE COPY OF THE CONSENT TO OPERATE DTD. 22.01.2020 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.12.2024.**
**EXHIBIT P2 (A) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 31.12.2019 VALID TILL 30.12.2014 ISSUED BY THE SEIAA.**
**EXHIBIT P2 (B) TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2025. EXHIBIT P3 TRUE COPY OF THE RECEIPT DTD. 06.02.2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 13.03.2020 WITH NO. B3-617/2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED NIL FOR QUARRYING PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 16.03.2020 IN WPC NO. 8008/2020 ON THE FILES OF THIS HONBLE COURT.**
## **RESPONDENT'S/S EXHIBITS: NIL**
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## **APPENDIX OF WP(C) 10647/2020**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE LETTER OF INTENT DATED 28.09.2018 ISSUED BY THE 3RD RESPONDENT.**
- **EXHIBIT P2 TRUE COPY OF THE CONSENT TO OPERATE DATED 21.01.2020 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.12.2024.**
- **EXHIBIT P2 (a) TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 01.01.2020 VALID TILL 31.12.2024 ISSUED BY THE SEIAA.**
**EXHIBIT P2 (b) TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2025.**
- **EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 06.02.2020 ISSUED BY THE 2ND RESPONDENT.**
- **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 13.03.2020 WITH NO.B3-618/2020 ISSUED BY THE 2ND RESPONDENT.**
**EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 14.02.2018 FOR QUARRYING LEASE SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**
**EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 16.03.2020 IN WP(C) NO.8008/2020 ON THE FILES OF THIS HON'BLE COURT.**
**RESPONDENT'S/S EXHIBITS: NIL**
**//TRUE COPY//**
**PA TO JUDGE**