V.K. JANARDHANAN NAIR v. PALLARIMANGALAM GRAMA PANCHAYATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939** **WP(C).No. 29901 of 2017 (K) ----------------------------** ## **PETITIONER:** ## **-----------** **V.K.JANARDHANAN NAIR, AGED 48 YEARS, S/O.KESAVAN NAIR, VADAKKEPUTHENPURA HOUSE, VARAPPETTI P O, KOTHAMANGALAM, ERNAKULAM DISTRICT.** **BY ADVS.SRI.JOBI JOSE KONDODY SMT.K.MOYA KURIAKOSE** **RESPONDENTS:** **------------** **1. PALLARIMANGALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PALLARIMANGALAM GRAMA PANCHAYATH OFFICE, KOOVALLOOR P O, ERNAKULAM DISTRICT, PIN - 686671.** **2. THE SECRETARY, PALLARIMANGALAM GRAMA PANCHAYATH, PALLARIMANGALAM GRAMA PANCHAYATH OFFICE, KOOVALLOOR PO, ERNAKULAM DISTRICT, PIN - 686671.** **BY ADVS.SRI.P.VISWANATHAN SRI.JAYASANKAR.G** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 29901 of 2017 (K) ----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: A TRUE COPY OF THE LETTER OF INTENT** **DTD 16/2/2017 ISSUED BY THE GEOLOGIST, ERNAKULAM TO THE PETITIONER.** **EXHIBIT P2: A TRUE COPY OF THE CONSENT TO ESTABLISH THE QUARRY OF THE PETITIONER ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DTD 3/3/2017 TO THE PETITIONER.** **EXHIBIT P3: A TRUE COPY OF THE FORM LE-3 LICENSE DTD 10/10/2011 VALID UPTO 31/3/2019 ISSUED BY THE JOINT CHIEF CONTROLLER OF EXPLOSIVES TO THE PETITIONER.** **EXHIBIT P4: A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE VIDE NO.32/2017 DTD 9/8/2017 ISSUED BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, ERNAKULAM TO THE PETITIONERS PROPOSED QUARRY EXTENDING TO 0.9998 HECTARES OF LAND COMPRISED IN SURVEY NO.487/1/B OF PALLARIMAGALAM VILLAGE. EXHIBIT P5: A TRUE COPY OF THE APPLICATION DTD 20/3/2017 SUBMITTED BY THE PETITIONER FOR D & O LICENSE BEFORE THE SECOND RESPONDENT. EXHIBIT P6: A TRUE COPY OF THE REPRESENTATION DTD 10/8/2017 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P7: A TRUE COPY OF THE COMMUNICATION DTD 13/9/2017 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P8: A TRUE COPY OF THE DECISION NO.160/2017 DTD 31/8/2017 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY// P.S. TO JUDGE** **mbr/** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.29901 of 2017-K.** ## **= = = = = = = = = = = = = = =** Dated this the 25[th] day of October, 2017. ## **J U D G M E N T** Petitioner owns an item of property having an extent of 4 acres. He intends to establish a quarry in the said property. It is stated by the petitioner that after acquiring all the requisite permissions and licences other than Environmental Clearance under the Environment (Protection) Act, the petitioner applied to the first respondent Panchayat for permission to establish the quarry as provided for under Section 233 of the Kerala Panchayat Raj Act, 1994 (the Act). On the said application, the Panchayat took a decision not to grant the permission sought by the petitioner. It was a little later, the petitioner could obtain Environmental Clearance for conducting the quarry. On receipt of the Environmental Clearance, the petitioner applied again for permission under Section 233 of 2 ## **WP.(C).No.29901/2017-K.** the Act. The matter was though reconsidered by the Panchayat on the said application, there was no change in the decision of the Panchayat. Ext.P8 is the decision taken by the Panchayat in this connection. Ext P8 is under challenge in the writ petition. 2. A counter affidavit has been filed by the second respondent, the secretary of the first respondent Panchayat on his behalf and also on behalf of the first respondent Panchayat. It is contended by the Panchayat in the counter affidavit that there was a quarry in the property referred to by the petitioner in the writ petition earlier and the same was closed down by the Panchayat on account of public protest. It is also contended by the Panchayat in the counter affidavit that the blasting operations in the quarry would endanger the life and property of the people in the neighbourhood; that the water course near the proposed quarry on which the local people depend for their drinking water is likely to be polluted if quarrying is permitted and that Environmental Clearance has been issued to the 3 ## **WP.(C).No.29901/2017-K.** petitioner by the competent authority without considering the relevant aspects. According to the Panchayat, it is on account of the said reasons that Ext.P8 decision has been taken by the Panchayat. 3. Heard the learned counsel for the petitioner as also the learned counsel for the respondents. 4. Ext.P8 decision of the Panchayat indicates that the same has been taken mainly for two reasons namely, that the quarry conducted earlier in the very same property was closed down by the Panchayat on account of public protest and that if permission is granted to the petitioner for conducting quarry, the same would adversely affect the drinking water sources in the area. As far as the first reason is concerned, the petitioner was not conducting any quarry in the area at any point of time earlier and that therefore the fact that the quarry conducted by somebody else earlier in the area was closed down by the panchayat cannot be a reason at all for rejecting the application preferred by the petitioner for permission to establish the **WP.(C).No.29901/2017-K.** 4 quarry, if he is otherwise entitled for the same. As regards the reason stated in Ext.P8 decision that the grant of permission sought by the petitioner would adversely effect the drinking water sources in the area, it is seen that this is one of the aspects considered by the competent authorities under the Environment (Protection) Act while considering the application preferred by the petitioner for Environmental Clearance. Ext.P4 Environmental Clearance obtained by the petitioner indicates that the District Level Environment Appraisal Committee found that there are no perennial water courses or streams within the applied area and that the quarrying operations will not touch the water table. When an expert body like District Level Environment Appraisal Committee recommended for grant of Environmental Clearance to the petitioner on the aforesaid finding and when another expert body like District Level Impact Assessment Authority accepted the said recommendation and granted Environmental Clearance sought by the petitioner, the Panchayat which has no 5 ## **WP.(C).No.29901/2017-K.** expertise in matters like this, cannot refuse the permission sought by the petitioner on the said ground. (See _**Ramapuram Grama Panchayat**_ v. _**St.Basil Industries India (P) Ltd.**_ (2016 (2) KLT 219). 5. Now, I shall proceed to consider the contentions raised by the Panchayat in the counter affidavit filed in this matter. The contentions namely that the blasting operations in the quarry would endanger the life and property of the people in the neighbourhood and that the water course near the proposed quarry on which the local people depend for their drinking water is likely to be polluted, if quarrying is permitted, are not reasons mentioned by the Panchayat in Ext.P8 decision. As such, the same cannot be relied on to support Ext.P8 decision. As regards the contention raised by the Panchayat that there is public protest against the proposed quarry, it has to be mentioned that this Court has held time and again that the same cannot be a reason for the Panchayat to decline permission for legitimate activities. True, it is contended by 6 ## **WP.(C).No.29901/2017-K.** the Panchayat in the counter affidavit that the District Environment Impact Assessment Authority has not considered the relevant aspects while issuing Environmental Clearance to the petitioner. According to me, the same is also not a ground that could be raised by the Panchayat in a matter like this to support Ext.P8 decision. If, as a matter of fact, the relevant aspects have not been considered by the District Environment Impact Assessment Committee while granting Environmental Clearance to the petitioner, nothing prevented the Panchayat from challenging the Environmental Clearance granted to the petitioner in a process known to law. 6. Further, a reading of Section 233 of the Act would indicate that the permission sought under that provision can be rejected only for any of the reasons mentioned in sub-Section (3) of Section 233 of the Act, viz, by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The reasons stated by the Panchayat in Ext.P8 decision do not fall under 7 ## **WP.(C).No.29901/2017-K.** the said heads, especially in the light of the Environmental Clearance obtained by the petitioner provided for under the Environment (Protection) Act and the consent provided for under the Water (Prevention and Control of Pollution) Act and the Air ( Prevention and Control of Pollution) Act. In the result, the writ petition is allowed and Ext.P8 decision of the first respondent Panchayat is quashed. The first respondent Panchayat is consequently directed to grant the permission sought by the petitioner. It is, however, made clear that this judgment will not preclude the Panchayat from challenging the Environmental Clearance and the consent to establish the quarry obtained by the petitioner under the relevant statutes in a process known to law. _**Sd/-**_ **P.B.SURESH KUMAR, JUDGE.** ## _**Kvs/-**_ _**// true copy //**_