Tomy Abraham v. Naranammoozhi Grama Panchayat and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939** ## **WP(C).No. 29386 of 2017 (W)** **----------------------------** ## **PETITIONER:** ## **----------** **TOMY ABRAHAM, AGED 55 YEARS, S/O. ABRAHAM, MANIMALETHU HOUSE, VECHOOCHIRA (PO), PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.JOBI JOSE KONDODY SRI.P.DEEPAK** ## **RESPONDENT(S):** - **--------------** **1. THE NARANAMMOOZHI GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, NARANAMMOOZHI GRAMA PANCHAYAT OFFICE, NARANAMMOOZHI (PO), ATHIKKAYAM, PATHANAMTHITTA DISTRICT - 689 711** ## **2. THE SECRETARY,** **NARANAMMOOZHI GRAMA PANCHAYAT, NARANAMMOOZHI GRAMA PANCHAYAT OFFICE, NARANAMMOOZHI (PO), ATHIKKAYAM, PATHANAMTHITTA DISTRICT - 689 711.** **3. THE KERALA STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,REPRESENTED BY ITS MEMBER SECRETARY,** **DIRECTORATE OF ENVIRONMENT AND CLIMATIC CHANGE, PALLIMUKKU, PETTA (PO), THIRUVANANTHAPURAM - 695 024.** **4. MOHAN RAJ JACOB,** - **THE PANCHAYAT PRESIDENT, NARANAMMOOZHI GRAMA PANCHAYAT, NARANAMMOOZHI GRAMA PANCHAYAT OFFICE, NARANAMMOOZHI (PO), ATHIKKAYAM, PATHANAMTHITTA DISTRICT - 689 711.** **5. KUMARA SWAMI. N,** **THE SECRETARY, NARANAMMOOZHI GRAMA PANCHAYAT, NARANAMMOOZHI GRAMA PANCHAYAT OFFICE, NARANAMMOOZHI (PO), ATHIKKAYAM, PATHANAMTHITTA DISTRICT - 689 711.** **6. RAJAPPAN, S/O. KANDAN, KODITHOPPIL HOUSE, VECHOOCHIRA (PO), RANNI, PATHANAMTHITTA - 686 511.** **WP(C).No. 29386 of 2017 (W)** **----------------------------** **7. RAJAN C.R, S/O. C.K. RAGHAVAN, CHERIYATHU, CHEMBANOLY, VECHOOCHIRA (PO), RANNI, PATHANAMTHITTA - 686 511.** **R1,R2 BY ADVS. SRI.K.SHAJ SRI.RENJIT GEORGE R3 BY GOVERNMENT PLEADER SRI RAVI KRISHNAN R6 &R7 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 29386 of 2017 (W)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 A TRUE COPY OF THE QUARRYING LEASE DATED 06.09.2011 VALID UPTO 02.09.2021 FOR AN EXTEND OF 2.2278 HECTARES OF LAND COMPRISED IN SURVEY NO. 781/1-23-1, 781/1-23-2 OF ATHIKAYAM VILLAGE IN RANNI TALUK OF PATHANAMTHITTA DISTRICT. EXHIBIT P2 A TRUE COPY OF THE QUARRYING LEASE DATED 08.02.2010 VALID UPTO 07.02.2022 FOR AN EXTENT OF 2.1286 HECTARES OF LAND COMPRISED IN SURVEY NO. 781/1-23-1, 781/1-23-2 OF ATHIKAYAM VILLAGE IN RANNI TALUK OF PATHANAMTHITTA DISTRICT. EXHIBIT P3 A TRUE COPY OF THE FORM LE-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES ON 08.02.2000 WHICH WAS RENEWED AND EXTENDED UPTO 31.03.2018. EXHIBIT P4 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD ON 13.01.2014 VALID UPTO 30.06.2016. EXHIBIT P5 A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATERENEWAL DATED 15.07.2016 VALID UPTO 30.06.2019 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P6 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY TO THE PETITIONER DATED 23.12.2015. EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 30.05.2016 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO. 13490 OF 2016. EXHIBIT P8 A TRUE COPY OF THE D & O LICENSE DATED 07.07.2016 ISSUED BY THE NARANAMOOZHI GRAMA PANCHAYAT TO THE PETITIONER VALID UPTO 31.03.2017. EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 17.08.2016 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO. 23849 OF 2016. EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 18.10.2016 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN R.P.NO. 872 OF 2016 IN W.P.(C) NO. 23849 OF 2016. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT DATED 16.12.2016 PASSED BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN WRIT APPEAL NO. 2265 OF 2016. EXHIBIT P12 A TRUE COPY OF THE JUDGMENT DATED 05.01.2017 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO. 29176 OF 2016. EXHIBIT P13 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT ON 19.01.2017 FOR RENEWAL OF EXHIBIT P8 D & O LICENSE FOR THE FINANCIAL YEAR 2017-2022.** ## **WP(C).No. 29386 of 2017 (W)** ## **----------------------------** **EXHIBIT P14 A TRUE COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE MEETING OF THE FIRST RESPONDENT SIGNED BY THE THIRD RESPONDENT SIGNED BY THE THIRD RESPONDENT DATED 03.03.2017. EXHIBIT P15 A TRUE COPY OF THE INTERIM ORDER DATED 31.03.2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN W.P(C) NO. 9110 OF 2017. EXHIBIT P16 A TRUE COPY OF THE INTERIM ORDER DATED 07.06.2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT IN W.P.(C) NO. 9110 OF 2017. EXHIBIT P17 A TRUE COPY OF THE JUDGMENT DATED 12.06.2017 IN W.P.(C) NO. 9110 OF 2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HONOURABLE COURT. EXHIBIT P18 A TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT VIDE ORDER NO. C2-270/17 DATED 21.08.2017. EXHIBIT P19 A TRUE COPY OF THE TRACK CONSIGNMENT OBTAINED BY THE PETITIONER FROM THE WEBSITE OF INDIA POST DATED 09.06.17. EXHIBIT P20 TRUE PHOTOGRAPHS OF THE PETITIONER'S QUARRY. EXHIBIT P21 A TRUE COPY OF THE PAPER PUBLICATION MADE BY THE PETITIONER IN COMPLIANCE OF CONDITION NO. (XXXV) OF EXHIBIT P6 IN THE INDIAN EXPRESS DAILY DATED 06.01.2016. EXHIBIT P22 A TRUE COPY OF THE PAPER PUBLICATION MADE BY THE PETITIONER IN COMPLIANCE OF CONDITION NO. (XXXV) OF EXHIBIT P6 IN THE MANGALAM DAILY DATED 04.01.2016. EXHIBIT P23 A TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 27.01.2016 TO THE ADMINISTRATOR OF THE THIRD RESPONDENT REGARDING THE INTIMATION GIVEN BY THE PETITIONER OF EXHIBIT P6 AND ITS CONDITIONS BEFORE THE SECOND RESPONDENT. EXHIBIT P24 A TRUE COPY OF THE INTIMATION LETTER DATED 25.9.2017 ISSUED BY THE MINISTRY OF ENVIRONMENT FORESTS AND CLIMATE CHANGE, REGIONAL OFFICE (SOUTHERN ZONE) BANGALORE TO THE PETITIONER. EXHIBIT P25 A TRUE COPY OF THE NOTICE DATED 7.11.2017 ISSUED BY THE RESEARCH OFFICER, MINISTRY OF ENVIRONMENT FORESTS AND CLIMATE CHANGE REGIONAL OFFICE, SOUTHERN ZONE, BANGALORE TO THE PETITIONER.** **RESPONDENT(S)' EXHIBITS ----------------------R6(A) A TRUE COPY OF COMMUNITY CERTIFICATE DATED 7.5.2012 COMMUNITY CERTIFICATE DATED 7.5.2012.** **WP(C).No. 29386 of 2017 (W)** ## **----------------------------** **R6(B) A TRUE COPY OF NEWS PAPER REPORT DATED 26.10.2016 IN MALAYALA MANORAMA DAILY. R6(C) A TRUE COPY OF REPORT DATED 20.5.2013 PREPARED BY THE GEOLOGICAL SURVEY OF INDIA. R6(D) A TRUE COPY OF JUDGMENT DATED 3.1.2014 OF THIS HON'BLE COURT IN WPC 17594/13 R6(E) A TRUE COPY CIRCULAR NO 78327/RC3/09/LSGD DATED 15.3.2010 OF LSG DEPARTMENT.** **/TRUE COPY/** **K.V. P.S.TO JUDGE** ## **P.B.SURESH KUMAR, J** **- - - - - - - - - - - - - - - - - - -** W.P.(C).No.29386 of 2017 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 7[th] day of December, 2017 ## **JUDGMENT** Petitioner holds two quarrying leases to mine and extract building stones. Exts.P1 and P2 are the quarrying leases granted to the petitioner on 06.09.2011 and 08.02.2010 respectively. It is stated by the petitioner that he was carrying out quarrying operations in the area specified in the quarrying leases after obtaining all the requisite permissions and licences including licence under Section 232 of the Kerala Panchayat Raj Act, 1994 (the Act) till 2012-'13. The Panchayat has not, however, renewed the licence issued to the petitioner thereafter on account of the objections raised by the people residing in the vicinity of the quarries. After a few rounds of litigations, the licence issued to the petitioner was again renewed in the year 2016-'17. Ext.P8 is the said renewed licence. Ext.P13 is the application preferred by the petitioner invoking the proviso to Rule 8 of the Kerala **-2-** ## **W.P. (C).No.29386 of 2017** Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (the Rules) for renewal of the said licence for the period 2017-'22. It is stated by the petitioner that the Secretary of the Panchayat has placed the application preferred by the petitioner for renewal before the committee of the Panchayat and the committee as per Ext.P14, decided not to renew the licence granted to the petitioner on the very same ground on which licence was not renewed on the earlier occasion. Ext.P14 decision was challenged by the petitioner before this Court in W.P.(C) No.9110 of 2017. As per Ext.P17 judgment, this Court set aside Ext.P14 decision on the ground that the decision on the application preferred by the petitioner should have been taken by the Secretary of the Panchayat and not the Panchayat. Accordingly, this Court directed the Secretary of the Panchayat to consider and pass orders on the application for renewal submitted by the petitioner afresh. Respondents 6 and 7 are persons who got themselves ## **W.P. (C).No.29386 of 2017** **-3-** impleaded in the said writ petition. Pursuant to Ext.P17 judgment, the Secretary heard the petitioner as also respondents 6 and 7 and passed Ext.P18 order rejecting the application of the petitioner for renewal. Ext.P18 order is under challenge in the writ petition. 2. Heard the learned counsel for the petitioner, learned counsel for the first respondent Panchayat, the learned Government Pleader as also the learned counsel for respondents 6 and 7. 3. As noted above, the impugned order is passed on the application submitted by the petitioner for renewal of the licence for the period 2017-'22. In Ext.P18 order, the Secretary of the Panchayat found that the petitioner has all the requisite licences and permissions for conducting quarrying operations in the quarries referred to in Exts.P1 and P2 quarrying leases. It was also found by the Secretary in the said order that there are no residential houses within the radius of 128 meters from the quarries. It ## **W.P. (C).No.29386 of 2017** **-4-** was further found by the Secretary of the Panchayat in the order that the contentions advanced by respondents 6 and 7 at the time of hearing that the quarrying operations of the petitioner would be a threat to their life and property are baseless. It is, however, stated by the Secretary of the Panchayat in Ext.P18 order that the petitioner has not complied with condition Nos.III, VII, XXXV and XXXVIII of the Environmental Clearance obtained by him for conducting quarrying operations. Further, it is stated by the Secretary in the said order that there will be environmental issues if quarrying is permitted in the area. In addition, it is stated in Ext.P18 order that the means of livelihood of the people of the Panchayat would also be affected adversely if quarrying is permitted in the area. It is also observed by the Secretary in Ext.P18 order that when the matter was heard by the Secretary on 10.08.2017, a group of people including women barged into the Office of the Secretary and attempted to set him on fire after pouring kerosene on him. It is stated that ## **W.P. (C).No.29386 of 2017** **-5-** though Police rushed to the seen to rescue him, the miscreants have assaulted even the Police and poured kerosene on them as well. As such, according to the Secretary of the Panchayat, if licences are granted to the petitioner, the same would lead to law and order situations in the area. 4. As noted above, the first and foremost reason stated by the Secretary in Ext.P18 order to decline renewal of the licence sought by the petitioner is that the petitioner has not complied with condition Nos.III, VII, XXXV and XXXVIII imposed on him in terms of the Environmental Clearance. In the light of the said stand taken by the Secretary in Ext.P18 order, on 24.10.2017, this Court directed the third respondent, the Kerala State Environment Impact Assessment Authority to report as to whether the petitioner has complied with the conditions referred to in Ext.P18 order. Pursuant to the said direction, a report has been filed by the third respondent stating that the finding ## **W.P. (C).No.29386 of 2017** **-6-** rendered by the Secretary in this regard is incorrect. The report aforesaid has been filed after conducting a fresh inspection of the quarry on 31.10.2017. The relevant portion of the report reads thus: “Condition No.iii) We observed that avenue trees are planted on either side of the tar road and open parking areas including approach road. Recently planted jack fruit and teak seedings are also seen. Condition No.vii) As mining is progressing excavated pits are not yet formed. Hence minimum of 10% out of the total excavated pit area as water storage area could not be observed. However, two small water storage areas on the western side of the quarry are noticed. Condition No.xxxv) The project proponent has advertised in two local newspapers (Mangalam daily dt.04.01.2016 and Indian Express dt.05.01.2016) as per the copies of the newspapers supplied by the proponent, that the project has been accorded Environmental Clearance. And the copies of the same has been forwarded to the SEIAA office vide a letter dt.27.01.2016 (Copy attached) Condition No.xxxviii) It is observed that the details of the EC is permanently displayed in a metallic board of 3 ft x3 3ft with green background and yellow letters of Times New Roman Font of size of not less than 14. Sign boards with extent of lease area and boundaries are depicted at the entrance of the quarry.” ## **W.P. (C).No.29386 of 2017** **-7-** In the light of the said report, the stand taken by the second respondent in Ext.P18 order that the petitioner has not complied with the conditions imposed on him in terms of the Environmental Clearance is unsustainable. 5. The reason stated in Ext.P18 order that the quarrying operations would create environmental issues is equally unsustainable since the petitioner has already been granted Environmental Clearance by the competent authority under the Environment (Protection) Act, 1986 for conducting quarrying operations. [See **Ramapuram Grama Panchayat v. St.Basil Industries India (P) Ltd** (2016 (2) KLT 219)]. The statement in Ext.P18 order that the quarrying operations of the petitioner would adversely affect the means of livelihood of the people in the Panchayat is only a general statement, not supported by reasons. 6. Coming to the statement in Ext.P18 order that the quarrying operations in the area would lead to law and order issues, it has to be mentioned that the said ## **W.P. (C).No.29386 of 2017** **-8-** statement has been made by the Secretary on account of the acts of hooliganism and vandalism demonstrated by the people who barged into the office of the Panchayat on the date of hearing. A Local Self Government Institution shall not be persuaded by the acts of hooliganism and vandalism to take decisions and if institutions of Self Government yield to such acts, the very concept of rule of law would fail. In the result, Ext.P18 order is quashed and the second respondent is directed to renew the licences granted to the petitioner in accordance with the provisions contained in the Rules. Sd/- **P.B.SURESH KUMAR JUDGE** bng