Tomy Abraham v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** **WP(C).No. 13490 of 2016 (I) ----------------------------** **PETITIONER: -----------** **TOMY ABRAHAM, AGED 54 YEARS, S/O.ABRAHAM, MANIMALETHU HOUSE, VECHOOCHIRA P O, PATHANAMTHITTA DISTRICT, PIN 689711** **BY ADV. SRI.JOBI JOSE KONDODY** **RESPONDENTS: ------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM 695001** **2. THE NARANAMMOZHI GRAMA PANCHAYATH, NARANAMMOZHI P O, ATHIKKAYAM, PATHANAMTHITTA DISTRICT, PIN 689711, REPRESENTED BY ITS SECRETARY.** **3. SECRETARY, THE NARANAMMOZHI GRAMA PANCHAYATH, NARANAMMOZHI P O, ATHIKKAYAM, PATHANAMTHITTA DISTRICT, PIN 689711,** **R2&3 BY ADV. SRI.B.S.SURESH (CHIRAKKARA) R1 BY SR.GOVERNMENT PLEADER SRI.P.M. SANEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 13490 of 2016 (I)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **P1(2 IN NOS) TRUE COPIES OF LEASE DEED NOS 1690/2011 DTD 6/9/2011 AND 425/2010 DTD 8/2/2010 OF PERUNAD SRO P2 TRUE COPY OF SHORT FIRER'S CERTIFICATE DTD 21/10/2010 P3 TRUE COPY LICENSE TO POSSESS EXPLOSIVES DTD 8/2/2010 P4 TRUE COPY OF THE PERMISSION TO USE HEAVY EARTH MOVING MACHINERIES ISSUED BY THE DIRECTOR GENERAL OF MINES SAFETY, BANGALORE P5 TRUE COPY OF THE APPOINTMENT LETTER OF MINES MANAGER. P5(A) TRUE COPY OF THE MINES MANAGER CERTIFICATE P6 TRUE COPY OF THE CONSENT TO OPERATE DTD 13/1/2013 FROM THE POLLUTION CONTROL BOARD P7 TRUE COPY OF THE REPORT DTD 18/3/2013 OF THE VILLAGE OFFCER, ATHIKAYAM TO THE VILLAGE P7(A) TRUE COPY OF THE NOC DTD 3/10/2013 OF DISTRICT COLLECTOR, PATHANAMTHITTA P8 TRUE COPY OF THE LICENSE DTD 31/3/2013 ISSUED BY THE GRAMA PANCHAYATH P9 TRUE COPY OF THE PROCEEDINGS DTD 17/12/2014 OF THE SECRETARY OF THE NARANAMOOZHY GRAMA PANCHAYATH P10 TRUE COPY OF THE SAID LETTER DTD 1/4/2015 OF THE SECRETARY OF NARANAMOOZHY GRAMA PANCHAYATH P11 TRUE COPY OF THE LETTER DTD 15/5/2014 THE 2ND RESPONDENT WITH COPY OF THE MINUTES OF 30TH MEETING HELD ON 9/5/2014 P12 TRUE COPY OF THE WRITTEN VERSION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P13 TRUE COPY OF THE REPRESENTATION DTD 2/2/2016 P14 TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT IN RESPECT OF EXT P12 P15 TRUE COPY OF THE LETTER DTD 29/2/2016 OF THE 3RD RESPONDENT** **....2** **WP(C).No. 13490 of 2016 (I)** ||**-2-**| |---|---| |**P16**<br>|**TRUE COPY OF THE application DATED 21.03.2016 FOR D&O**| ||**LICENSE**| |**P17**<br>|**TRUE COPY OF THE RECEIPT**| |**P18**<br>|**TRUE COPY OF THE COMMUNICATION GIVEN BY THE 3RD**| ||**RESPONDENT**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| ||**NIL**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 13490 of 2016 (I) -----------------------------------------Dated this the 30[th] day of May, 2016 ## **J U D G M E N T** The petitioner is aggrieved with the fact that the Panchayath is dragging its feet insofar as the consideration of the application, filed at Ext.P12, for quarrying operations in the year 2016-2017. The application itself is filed on 14.01.2016. The learned Standing Counsel for the respondent Panchayath appears and submits that the application will be considered within two weeks. 2. The brief facts to be noticed are that the petitioner had two quarrying leases, with respect to less than 5 hectares of property, as is indicated at Ext.P1. The petitioner, by the two leases, was permitted to carry on quarrying in 4.3564 hectares; one of the leases ## **W.P.(C) No. 13490/2016** **-2-** being valid between 06.09.2011 to 02.09.2021 and the other being valid between 08.02.2010 to 07.02.2022. 3. The petitioner had been carrying on the said quarrying operations when there was an agitation with respect to another quarry carried on in the neighborhood. The District Collector, on the basis of the complaints raised, passed a prohibitory order under Section 133 of the Criminal Procedure Code, directing stoppage of both the quarries of the petitioner also. The petitioner approached the District Collector and produced the requisite licenses and permissions, upon which the District Collector was pleased to vacate the earlier order and granted a 'No Objection Certificate' as per Ext.P7(a) to conduct quarrying operations in the 4.3564 hectares of dry land, comprised in Survey Nos.781/1-23-1 and 781/1-23-2 of Athikayam village, Ranni Taluk in Naranamoozhy Panchayat. The said ## **W.P.(C) No. 13490/2016** **-3-** 'No Objection Certificate' was also issued on the basis of certain conditions, specifically 24 in number; listed out in the certificate itself. 4. When the petitioner approached the Panchayath for permission to resume operations; by Ext.P9, was informed the decision to obtain legal opinion. The legal opinion was in favour of the petitioner, as is seen at Ext.P9(a). However, by the said order, the Panchayath declined license on the ground that the period has expired and a fresh application has to be filed. The fresh application filed, for the year 2015-2016, was rejected as per Ext.P10, for reason that the petitioner did not have an Environmental Clearance. 5. The petitioner's specific contention is that as per the E.I.A notification of 18.05.2012 and the decision in **Deepak Kumar and others v. State of Harayana & others - (2012) 4 SCC 629** there was no ## **W.P.(C) No. 13490/2016** **-4-** requirement for an Environmental Clearance, since the lease was granted prior to the said notification and validity extended beyond the said notification also. The same was clarified by a Division Bench in **All Kerala River Protection Council v. State of Kerala - 2015 (2) KLT 78** . In any event, the said issue need not be considered because the petitioner has received an Environmental Clearance, as is produced at Ext.P9. 6. The petitioner, hence, moved the Panchayath for D&O license to carry on the quarrying operations for the year 2016-2017, as per Ext.P12 dated 14.01.2016. The application is not yet considered by the Panchayath. The learned Counsel for the petitioner, in fact, would contend that as per the decision in **Sudhakaran v. Pallichal Grama Panchayat - 2016 (2) KLT 175** , the Panchayath having not responded to the application within a period of 30 days, as per ## **W.P.(C) No. 13490/2016** **-5-** Section 236(3) of the Kerala Panchayath Raj Act, 1994, the petitioner could carry on the quarrying operations deeming it to be a proper grant of license. 7. In any event, the petitioner says that the petitioner would leave the matter to the Panchayath to be considered and in such circumstance, the Panchayath is directed to consider the application at Ext.P12 within a period of two weeks from the date of receipt of the certified copy of this judgment. 8. The decision in **Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd. - 2016(2) KLT 2019** is also placed reliance upon to contend that on the Environmental Clearance being granted by the State Environment Impact Assessment Authority, the Panchayath has to necessarily make the grant. ## **W.P.(C) No. 13490/2016** **-6-** 9. In such circumstance, it is directed that the respondent Panchayath would consider the application at Ext.P12 of the petitioner within a period of two weeks, in accordance with the precedents afore mentioned and pass orders; failing which the petitioner would be entitled to commence and continue the quarrying operations, deeming the license to have been granted for the year 2016-2017. The writ petition is allowed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 30 /5/16