W.P.(C) Nos. 20725 of 2020 & 19727 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944`** ## **`WP(C) NO. 19727 OF 2022`** ## **`PETITIONER/S:`** ``` TOMY EMMANUEL, AGED 58 YEARS S/O EMMANUEL, MANKUDIYIL HOUSE, VADAKODE P.O, ERNAKULAM DISTRICT, PIN 686670. BY ADV GEORGEKUTTY MATHEW ``` ## **`RESPONDENT/S:`** - `1 THE ERNAKULAM DISTRICT SINGLE WINDOW CLEARANCE BOARD, REP. BY ITS GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE ERNAKULAM, KAKKANAD P.O, ERNAKULAM - 682030.` - `2 THE MANJALLOOR GRAMA PANCHAYAT, REP. BY ITS SECRETARY, VAZHAKKULAM P.O, ERNAKULAM, PIN 686670.` - `3 THE KERALA WATER AUTHORITY, REP. BY ITS EXECUTIVE ENGINEER, P.H. DIVISION, MUVATTUPUZHA, ERNAKULAM DISTRICT PIN-686661.` - `4 T.L GEORGE, THOTTUMARIKKAL HOUSE, VAZHAKKULAM P.O, ERNAKULAM, PIN 686670.` - `5 THE KERALA STATE SINGLE WINDOW CLEARANCE BOARD, REPRESENTED BY CONVENOR (MANAGING DIRECTOR, KSIDC), KSIDC Ltd., TC.XI/266, KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM – 695 003` ``` (IS SUO MOTU IMPLEADED AS PER ORDER DATED 22.07.2022) ``` -2- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ``` BY ADVS. G.BHAGAVAT SINGH GEORGIE JOHNY PHILIP J.VETTICKATTU SAJITHA GEORGE P.M.JOHNY KELU BHAGAVAT SHYJU S. ``` ## **`OTHER PRESENT:`** ``` SMT.VIDYA KURIAKOSE, GP, SRI.S.KANNAN, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, ALONG WITH WP(C).20725/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 ``` ## **`WP(C) NO. 20725 OF 2020`** ## **`PETITIONER/S:`** ``` T.L. GEORGE, AGED 56 YEARS THOTTUMARICKAL HOUSE, VAZHAKKULAM.PO, MUVATTUPUZHA, ERNAKULAM-686670. BY ADV PHILIP J.VETTICKATTU ``` ## **`RESPONDENT/S:`** - `1 ERNAKULAM DISTRICT SINGLE WINDOW CLEARANCE BOARD, ERNAKULAM REPRESENTED BY ITS CHAIRMAN, CIVIL STATION, KAKKANAD-682030.` - `2 THE DIRECTOR DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE. P.O, TRIVANDRUM-695004.` - `3 THE DISTRICT GEOLOGIST, MINING AND GEOLOGY, DEPARTMENT, ERNAKULAM, KAKKANAD-682030.` - `4 ADDL.R4.TOMY IMMANUEL AND OTHERS ARE SOUGHT TO BE IMPLEADED BY ADVS. GOVERNMENT PLEADER GEORGEKUTTY MATHEW` ## **`OTHER PRESENT:`** -4- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ``` SMT.VIDYA KURIAKOSE, GP, SRI.S.KANNAN, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, ALONG WITH WP(C).19727/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -5- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ============================================================= Dated this the 22[nd] day of July, 2022 ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing of these writ petitions by a common judgment. I will narrate the facts in WP(C) No.19727 of 2022 first. 2. The petitioner is aggrieved by a quarry started by the 4[th] respondent, which is functioning based on Exts.P1 to P3. Ext.P1 is the minutes of the meeting of the 1[st] respondent – the Ernakulam District Single Window Clearance Board. Ext.P2 is the copy of the proceedings dated 08.12.2020 of the 1[st] respondent. Ext.P3 is the copy of the certificate dated 08.12.2020 issued by the 1[st] respondent to the 4[th] respondent. It is the case of the petitioner that as evident from Ext P1 minutes, the District Board held on 07.12.2020, which issued Ext P2 and P3 license and certificate to the quarry is not consist of the -6- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 members of District Board mandated in section 4(3) of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 (for short the Act, 1999) and strangers not mentioned in Section 4(3) participated in the meeting. As per section 4(3)(c), the president of the panchayath is one of the member of the District Board. But the president of the 2[nd] respondent panchayath was not invited to Ext P1 meeting. Similarly the executive engineer of Kerala Water Authority is an essential member of District Board under section 4(3)(o) who was also not invited to Ext P1 meeting. It is stated that the quarry site is near to a water reservoir with capacity of 1,60,000 ltrs. It is also stated that, persons like Deputy Director of Panchayath who is not a member of District Board under section 4(3) has participated in Ext P1 meeting which took decision to grant license to the 4[th] respondent. It is also the case of the petitioner that various -7- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 other necessary officers as per law, were also not invited to the meeting as provided in section 4(3). It is stated in the writ petition that there are 15 mandatory members in the District Board under section 4(3) whereas 7 persons including strangers participated in Ext P1 meeting. Therefore, the decision in Ext P1 and consequent Ext P2 license and P3 certificate are liable to be set aside as invalid is the submission. The operation of quarry of the 4[th] respondent is liable to be stopped as having no valid license, is the contention. Hence, this writ petition is filed with following prayers: _“ (i) Issue a writ of certiorari quashing Ext.P1 to P3 as arbitrary and illegal._ _(ii) Issue a writ of mandamus directing 3[rd] respondent to ensure that the 4[th] respondent is operating quarry without obtaining No Objection Certificate mandated in section 40(2) of the Kerala Irrigation and Conservation of Water Act, 2003 with regard to the adjacent water reservoirs, in the interest of justice._ -8- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 _(iii) To grant such other reliefs just and proper in the nature of this case. ” (sic)_ 3. WP(C) No.20725 of 2020 is filed by the 4[th] respondent in WP(C) No.19727 of 2022. The prayers in the writ petition is extracted hereunder: _“i) Issue a writ of Mandamus or any other appropriate writ, direction or order directing the 1st respondent to issue a certificate of deemed license to the petitioner with respect to Ext.P6 application forthwith;_ _ii) Issue a writ of Mandamus or any other appropriate writ, direction or order directing the 2nd respondent to execute lease deed with the petitioner, And_ _iii) To grant such other reliefs as this Hon'ble Court may deem just and fit in the circumstances of the case.”_ 4. Heard the counsel for the petitioners, the Senior Government Pleader and the counsel appearing for the 2[nd] respondent Grama Panchayat in WP(C) No.19727 of 2022. 5. The counsel for the petitioner in WP(C) No.19727 of 2022 raised several contentions. In additional to the -9- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 constitution of the District Board, the counsel also takes me through Section 40(2) of the Kerala Irrigation and Conservation Act, 2003. The counsel takes me through the Division Bench judgment of this Court in Sobin P.K. v. District Geologist, Ernakulam and Others [2020 (1) KLT 79] to support that it is mandatory to get NOC from the jurisdictional authority. The counsel also relied on Section 23(c) of the Act, 1999. The counsel for the petitioner in WP(C) No.20725 of 2020 submitted that the petitioner already filed WP(C) No.22390 of 2022 before this Court in which there is an order restraining coercive proceedings against the petitioner for want of NOC from the irrigation department. The counsel relied on Section 23(a) and (b) to contend that even if the proper person has not participated in the District Industrial Single Window Board, that is not a reason to invalidate the decisions and the counsel also submitted that the Panchayat was represented in the -10- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 proceedings by the Secretary. The counsel for the Panchayat vehemently argued that WP(C) No.20725 of 2020 is filed without impleading the Panchayat as a party. The counsel also submitted that the President of the Panchayat was not invited for the meeting conducted by the Single Window Board, who is a member as per the Statute. The counsel for the petitioner in WP(C) No.20725 of 2020 submitted that the petitioner obtained environmental clearance, consent to operate, explosive licence and approved mining plan. The petitioner submitted Ext.P6 application for licence as contemplated under the provisions of the Kerala Panchayat Raj Act, 1994 through K-Sift on 18.02.2020. The 1[st] respondent did not notify any defect or missing of documents with respect to Ext.P6 application. The Secretary to the Grama Panchayat, in the meanwhile, directed the petitioner to remit licence fee and accordingly, the same was remitted vide Ext.P7. According to the petitioner, the Act 1999 -11- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 mandate that the 1[st] respondent in that writ petition has to take a decision either to grant or to refuse the licence within a period of 30 working days from the date of application, failing which the application will be deemed to have been issued, after the expiry of the said 30 days. The counsel submitted that 30 working days applicable to the petitioner expired on 29.05.2020 as against the application which was submitted on 18.02.2020. Therefore, this Court passed the interim order in WP(C) No.20725 of 2020, which may not be interfered by this Court. 6. This Court considered the contentions of the petitioners and the respondents. The main challenge in WP(C) No.19727 of 2022 is the decisions of the Single Window Clearance Board, the 1[st] respondent in that writ petition. Exts.P1 to P3 are the proceedings. Section 8(4) of the Act, 1999 is extracted hereunder: ## _“8._ _**Powers and functions of District Board** ._ -12- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 _(4) Notwithstanding anything contained in any other law for the time being in force. the application for clearance, licence or certificate or any renewal thereof, submitted before the District Board concerned for establishing or running of an enterprise having a capital investment of less than fifteen crore rupees is rejected or granted with conditions, the person aggrieved may file an appeal before the State Board against such order of refusal or grant of license with conditions within thirty days from the date of receipt of order from the District Board, in the manner prescribed, and appeal shall be disposed of by the State Board within twenty days from the date of receipt of the appeal.”_ 7. As per the above provision, an appeal is maintainable by the aggrieved party, if the application is rejected or granted with conditions. The appeal is to be submitted within 30 days from the date of receipt of the certified copy. If that is the case, according to me, the petitioner in WP(C) No.19727 of 2022 is free to file an appeal against Exts.P1 to P3 proceedings within a time frame fixed by this Court, along with a stay petition. If such an appeal along with -13- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 the stay petition is filed, the stay petition is to be heard within seven days from the date of receipt of the appeal by the appellate authority. 8. In WP(C) No.20725 of 2020, this Court passed interim order on 06.11.2020 directing the 1[st] respondent to issue a provisional certificate as against Ext.P6 application and based on the same, a provisional certificate is issued and the petitioner in that writ petition is now continuing the quarrying work. That interim order can continue, till the stay petition is considered. I make it clear that the District Board shall consider the stay petition and the appeal, untrammeled by the observations in this judgment of this Court. The appeal should be filed by the petitioner in WP(C) No.19727 of 2022 in accordance to law, as per the format. The petitioner is free to give the appeal memorandum and the stay petition to the appeal to the parties in the proceedings in advance. Since the writ petition is pending -14- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 before this Court from 2020 onwards, the time limit prescribed in the Act need not be insisted by the appellate authority, while considering the appeal. Moreover, the certified copy of the impugned order also need not be insisted, if a petition is filed for dispensing the production of the certified copy of the impugned orders. The appellate authority will conduct hearing of the stay petition and the appeal, if necessary, through video conferencing, after giving notice to all the affected parties. Therefore, these writ petitions are disposed of in the following manner: 1. The petitioner in WP(C) No.19727 of 2022 is free to file an appeal against Exts.P1 to P3 along with a stay petition, within four days from the date of receipt of a copy of this judgment. 2. Once such an appeal along with the stay petition is received, the stay petition will be considered by the appellate authority, within seven days from the -15- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 date of receipt of the stay petition, with notice to both parties. If the e-mail IDs are available, the notice through e-mail is enough. 3. Till final orders are passed in the stay petition as directed above, the interim order dated 06.11.2020 passed in WP(C) No.20725 of 2020 will continue. 4. The appellate authority will consider the appeal also, within the statutory period prescribed in the statute, untrammeled by any observation by this Court. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -16- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ## **`APPENDIX OF WP(C) 20725/2020`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF LETTER OF INTENT DATED 13.09.2017 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY.` - `EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF THE ENVIRONMENTAL CLEARANCE ISSUED BY THE COMPETENT AUTHORITY DATED 12.04.2018.` - `EXHIBIT P3 TRUE COPY OF RELEVANT PAGES OF THE CONSENT TO OPERATE, DATED 18.04.2018, WHICH IS VALID UP TO 12.04.2021.` - `EXHIBIT P4 TRUE COPY OF RELEVANT PAGES OF EXPLOSIVE LICENSE DATED 14.01.2020, ISSUED BY THE COMPETENT AUTHORITY, WHICH IS VALID UP TO 31.03.2024.` ``` EXHIBIT P5TRUE COPY OF RELEVANT PAGES OF MINING PLAN APPROVED BY THE COMPETENT AUTHORITY. ``` - `EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.` - `EXHIBIT P7 TRUE COPY OF RECEIPT SHOWING REMITTANCE OF LICENSE FEE ON 29.02.2020.` - `EXHIBIT P8 TRUE COPY INTIMATION DATED 3-3-2020 ISSUED BY THE PANCHAYAT.` - `EXHIBIT P9 TRUE COPY OF THE INTIMATION DATED 6.3.2020 RECEIVED FROM THE 1ST RESPONDENT.` - `EXHIBIT P10 TRUCE COPY OF INTIMATION DATED 16.03.2020 RECEIVED FROM THE 1ST RESPONDENT.` - `EXHIBIT P11 TRUE COPY OF INTIMATION DATED 18.03.2020 RECEIVED ISSUED BY THE PANCHAYAT.` -17- W.P.(C) Nos. 20725 of 2020 & 19727 of 2022 ## **`APPENDIX OF WP(C) 19727/2022`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE MINUTES OF THE`| ||`MEETING OF THE 1ST RESPONDENT HELD ON`| ||`07.12.2020`| |`Exhibit P2`|`TRUE COPY OF THE PROCEEDINGS DATED`| ||`08.12.2020 OF THE 1ST RESPONDENT`| |`Exhibit P3`|`TRUE COPY OF THE CERTIFICATE DATED`| ||`08.12.2020 ISSUED BY THE 1ST`| ||`RESPONDENT .`| |`Exhibit P4`|`TRUE COPY OF THE ORDER DATED`| ||`09.12.2020 IN WPC NO.20725/2020.`| |`Exhibit P5`|`TRUE COPY OF THE JUDGEMENT DATED`| ||`19.08.2020 IN WP(C) NO. 17181/2019.`| |`RESPONDENT EXHIBITS`|| |`Exhibit R4(A)`|`TRUE COPY OF THE ORDER DATED`| ||`06/11/2020 IN W.P(C) 20725/2020`| |`Exhibit R4(B)`|`TRUE COPY OF THE PETITION SUBMITTED BY`| ||`JOHNEY SEBASTIAN AND THE PRESENT WRIT`| ||`PETITIONER ALONG WITH FEW OTHERS DATED`| ||`02/05/2022`| |`Exhibit R4(C)`|`TRUE COPY OF THE DECISION OF THE`| ||`MANJALLOOR PANCHAYATH DATED 05/05/2022`| |`Exhibit R4(D)`|`TRUE COPY OF THE INTERIM ORDER PASSED`| ||`BY THE TRIBUNAL FOR LOCAL SELF`| ||`GOVERNMENT, THIRUVANANTHAPURAM`| |`Exhibit R4(E)`|`TRUE COPY OF THE LETTER ISSUED BY THE`| ||`DEAC DATED 11/12/2017`| |`Exhibit R4(F)`|`TRUE COPY OF THE REPORT SUBMITTED BY`| ||`THE EXECUTIVE ENGINEER, WATER`| ||`AUTHORITY, DATED 08/01/2018`| |`Exhibit R4(G)`|`TRUE COPY OF THE JUDGEMENT DATED`| ||`03/06/2022 IN W.P(C) NO. 17111/2022`|