IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 26th day of May 2022 / 5th Jyaishta, 1944
WA NO. 623 OF 2022
AGAINST JUDGMENT DATED 24.02.2022 IN WP(C) 20085/2021 OF THIS COURT
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APPELLANT/3RD RESPONDENT:
SECRETARY ,KIZHAKKENCHERI GRAMA PANCHAYATH, KUNDUKAD - CHITTADY
ROAD, KIZHAKKENCHERI - 1, MAMPAD, THRISSUR, PIN - 678 684.
BY ADVS.M/S.N.KRISHNA PRASAD, GAYATHRI POTI
RESPONDENTS/1ST & 2ND RESPONDENTS/PETITIONER IN THE WRIT PETITION:
1. THE DIRECTOR OF MINING AND GEOLOGY, OFFICE OF THE DIRECTORATE AND
MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., TRIVANDRUM
- 695 004.
2. STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY (SEIAA KERALA)
REPRESENTED BY ITS MEMBER SECRETARY, 4TH FLOOR, KSRTC BUS TERMINAL
COMPLEX, THIRUVANANTHAPURAM - 695 001.
3. K.N.NANDAKUMAR AGED 54 YEARS , S/O.NARAYANAN NAIR,KORACHADATH
HOUSE, 12TH STREET,MUSEUM CROSS LANE,CHEMBUKKAVU,THRISSUR
DISTRICT,PIN - 680 020.
BY ADV.SRI.BINU PAUL FOR R3
Prayer for relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum,the High Court may be
pleased to allow the Memorandum of Writ Appeal by setting aside the
judgement of the Learned Single Judge dated 24.02.2022 in Writ Petition
(Civil) No. 20085/2021 and to allow the Writ petition as prayed for.
This Writ Appeal coming on for admission on 26/05/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.R3(a):TRUE COPY OF THE COMMUNICATION DATED 6.12.2021
ISSUED TO THE PETITIONER BY THIS RESPONDENT.
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S.Manikumar, C.J.
&
Shaji P.Chaly, J.
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W.A.No.623 of 2022
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Dated this the 26th day of May, 2022
ORDER
S.Manikumar, C.J.
Before the writ court, petitioner/respondent No.3 herein, has sought for the following reliefs:
"(i) Issue a writ of mandamus or any other writ, order or direction commanding the 1st respondent to consider and pass orders on the Ext.P8 application within a time fixed by this Hon'ble Court.
(ii) Declare that the deemed D & O license contemplated in Section 236 (3) of the Kerala Panchayath Raj Act, 1994 came into effect with effect from 6.4.2021 as prayed for in the application covered by Ext P6.
(iii) Issue a writ of mandamus or any other writ, order or direction commanding the 1st respondent to initiate further proceedings on Ext.P1 without insisting for production of paper copy of the license issued by the 3rd respondent under Section 236 of the Kerala Panchayath Raj Act.
(iv) Issue a Writ of Mandamus, or any other writ, order or direction commanding the 2nd respondent to consider and pass orders on Ext.P6 application for renewal of D & O W.A.No.623 of 2022 -:2:- trade license, in the light of the legal position settled by Full Bench of this Court in the case in Tomy Thomas Vs. State of Kerala & Others (2019 (4) KHC 553 (FB)], within such time as may be fixed by this Hon'ble Court."
2. Material on record discloses that vide Exhibit R3(a) dated 06.12.2021, the Secretary, Kizhakkanchery Grama Panchayat issued a letter to the writ petitioner stating that as per letter No.1134/EC/SEIAA/KL/2017 of the State Environment Impact Assessment Authority, Kerala Administrator dated 31.05.2021 has directed to produce a No Objection Certificate issued by the National Forest and Wildlife Department. A No Objection Certificate from the State Environment Impact Assessment Authority (SEIAA) was also required to be produced.
3. For brevity, Exhibit R3(a) communication dated 06.12.2021 addressed to the writ petitioner is reproduced:
Kizhakkencheri Grama Panchayath Kizhakkencheri P.O., Palakkad District, Pin-678684 Phone-04922 255002 E-mail Id: [email protected] W.A.No.623 of 2022 -:3:- No.B3/7585/21 6.12.2021 To Nandakumar Korachadath Veedu Museum Crosslane Chembukkavu, Thrissur.
Sub: Kizhakkencheri Grama Panchayath - licensed of granite quarry-regarding.
Ref: 1. Your application No.B3/7467/21 dated 2 12.2021.
2. Letter No 1134/EC/SEIAA/KL/2017 of the State Environment Impact Authority Kerala Administrator dated 31.05.2021.
3. Letter No DCPKD/5061/2021/LRGS dated 28.6 2021 of Hon'ble District Collector.
4. Letter No. B3/7585 dated 16.11.2021 sent to you from this office.
5. Judgment in W.P (C) No.20085 of 2021 of the Hon'ble High Court.
Your attention is invited to the above reference The Chairman of the District Disaster Management Authority has directed the Geology Department to obtain the permits issued by various departments as per reference (3) above and the clearance certificate issued by the Standing Committee of the National Forest and Wildlife Department as per reference (2) from the Disaster Management Authority. The State Environmental Impact Authority has also stated that a non-objection certificate is required. You have been given a letter regarding this in reference 4. In this case, you are W.A.No.623 of 2022 -:4:- informed that there is no action to be taken on your application.
Yours sincerely, Secretary Kizhakkancheri Grama Panchayath." Without challenging the above said letter or the satisfying requirements, the writ petitioner has sought for a mandamus as stated supra.
4. After considering the rival submissions, writ court vide judgment dated 24.02.2022 in W.P.(C)No.20085 of 2021 ordered thus:
"3. After hearing the counsel for the petitioner and the respondents, I am of the opinion that interest of justice will be served if the writ petition is disposed with a direction to the 3rd respondent to issue a D&O licence to the petitioner, if he has satisfied all requirements other than two conditions stated in Ext.P9. However, it is made clear that the petitioner shall not start the quarrying operation without obtaining the clearance from the Standing Committee of the National Board for Wild Life and NOC from the District Disaster Management Authority and submitting the same before the 3rd respondent. The 1st respondent shall through its officers W.A.No.623 of 2022 -:5:- ensure that this order is complied with. Necessary orders shall be issued by the 3rd respondent within three weeks from the date of receipt of a copy of this judgment."
Being aggrieved, instant writ appeal is filed on the grounds raised.
5. Mr.N.Krishna Prasad, learned counsel for the appellant made submissions on the above.
6. Per contra, Mr.Binu Paul, learned counsel appearing for respondent No.3/writ petitioner submitted that in the letter, Director of Mining and Geology, Thiruvananthapuram, respondent No.1 in this appeal, has insisted for production of D&O licence by the Panchayat for grant of lease. It is also his submission that SEIAA, Kerala represented by its Member Secretary, Thiruvananthapuram also insisted for production of D&O licence for issuing a No Objection Certificate as referred to in Exhibit R3(a).
7. Learned counsel for the 3rd respondent further submitted that for the purpose of obtaining a lease, D&O W.A.No.623 of 2022 -:6:- licence alone is sufficient and not the other certificates, referred to earlier. He further submitted that D&O licence is required only for the purpose of obtaining lease and not for commencement of the quarrying activity. Contention of the learned counsel for respondent No.3 is not supported by any Government Orders or statutory provisions.
8. Having heard learned counsel for the parties and on perusal of the material on record, we are of the view that by virtue of the mandamus issued, there is an implied collateral challenge to Exhibit R3(a), which prima facie is not permissible.
9. Learned counsel for the 3rd respondent also submitted that a writ petition has been filed against the State Environment Impact Assessment Authority, Thiruvananthapuram (respondent No.2) for a mandamus to issue a No Objection Certificate.
10. The above submission is placed on record.
11. Fact remains that knowing fully aware that No Objection Certificate is required for obtaining either D&O W.A.No.623 of 2022 -:7:- licence or lease, writ petitioner/respondent No.3 seemed to have filed the same and thus sought for a mandamus.
12. We are of the view that appellant has made out a prima facie case for admission. Accordingly, writ appeal is admitted.
13. There shall be an interim stay of the operation of the judgment in W.P.(C)No.20085 of 2021 dated 24.02.2022 for a period of three weeks.
Post after three weeks.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv 26-05-2022 /True Copy/ Assistant Registrar