Philips Grano Products vs State Of Kerala
2021 Latest Caselaw 17482 Ker

      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 26TH DAY OF AUGUST 2021/4TH BHADRA, 1943
                 W.P.(C)NO.14406 OF 2021


  PETITIONER:

       PHILIPS GRANO PRODUCTS,
       ANICAUD P.O., REPRESENTED BY ITS PROPRIETOR,
       NAVEEN MATHEW PHILIP, S/O.PHILIP MATHEW,
       AGED 36, RESIDING AT THEKKENEDUMPLACKAL,
       MALLAPPALLAY WEST, PATHANAMTHITTA DISTRICT,
       PIN-689 585.

       BY ADVS.
       P.HARIDAS
       BIJU HARIHARAN
       P.C.SHIJIN
       RISHIKESH HARIDAS


  RESPONDENTS:

 1     STATE OF KERALA,
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF LOCAL SELF GOVERNMENT,
       STATE SECRETARIAT, THIRUVANANTHAPURAM,
       PIN-695 001.
 2     ANICADU GRAMA PANCHAYAT,
       REPRESENTED BY ITS SECRETARY,
       ANICADU GRAMA PANCHAYAT OFFICE, NOOROMMAVU P.O.,
       MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT,
       PIN-689 589.
 3     SECRETARY, ANICADU GRAMA PANCHAYAT,
       ANICADU GRAMA PANCHAYAT OFFICE, NOOROMMAVU P.O.,
       MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT,
       PIN-689 589.

       SRI.MANU RAJ, GOVERNMENT PLEADER,
       SRI.ESM.KABEER, SC - R2 & R3
       SRI.K.K.ASHKAR (THIRD PARTY)

       THIS WRIT PETITION (CIVIL) HAVING COME UP
  FOR ADMISSION ON 26.08.2021, THE COURT ON THE
  SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.14406/2021
                               :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 26th day of August, 2021

The petitioner seeks to quash Ext.P7 and to direct

respondents 2 and 3 to to accept and process petitioner's

application for licence under the Kerala Panchayat Raj (Issue

of Licence to Factories, Trades, Entrepreneurship Activities

and Other Services) Rules, 1996.

2. The petitioner is conducting a Stone Crusher Unit at

Anicadu, Mallappally with requisite Licences. Ext.P1 is the

Integrated Consent to Operate issued by the Pollution Control

Board. The Department of Mining and Geology has issued

Ext.P2 Depot Licence. The 2nd respondent-Anicadu Grama

Panchayat has issued Ext.P3 Factory Licence. Ext.P4 is the

Certification under GST Act. The Department of Factories and

Boilers has issued Ext.P5 Licence.

WP(C) No.14406/2021

3. The petitioner has been purchasing raw materials

from one M/s.Peegee Aggregates functioning in Kottangal

Village. The said quarry remained non-operational for some

time. Consequent to orders of the Central Government, the

petitioner could commence quarrying in the quarry owned by

M/s.Peegee Aggregates and consequently the petitioner

could resume operations in its Crushing Unit also. During the

Covid-19 pandemic, with the restricted movement, the

petitioner could get the Quarry Licence of M/s.Peegee

Aggregates operational. But, the petitioner could not apply for

renewal of licence under the Kerala Panchayat Raj (Issue of

Licence to Factories, Trades, Entrepreneurship Activities and

Other Services) Rules, 1996 before the expiry of the licence.

4. The petitioner submitted application for renewal of

licence after the currency period of the licence as evidenced

by Ext.P6. The 3rd respondent-Secretary did not accept the

licence fee. Instead, the petitioner was informed as per Ext.P7

communication that the petitioner ought to have applied for

renewal of licence before 30 days of the expiry of the licence. WP(C) No.14406/2021

The petitioner contended that in view of the orders passed by

the Apex Court in the background of Covid-19 pandemic,

respondents 2 and 3 are compellable to consider application

for renewal of licence without regard to any period of

limitation, failure of which would result in shutting down of two

industrial units rendering a number of workers unemployed.

5. Respondents 2 and 3 contested the writ petition.

The 3rd respondent stated that the application for renewal of

licence was given six months after the expiry of the period of

licence. Hence, Rule 10 of the Kerala Panchayat Raj (Issue of

Licence to Factories, Trades, Entrepreneurship Activities and

Other Services) Rules, 1996 stands violated. The petitioner

was hence required to submit a new application. There are

violations of the Mining and Geology Rules and Regulations

and OA No.142/2020 is pending in the National Green

Tribunal. The petitioner was required to produce new NOC

from Kerala Pollution Control Board since there are violations

of various rules and regulations after issuance of Ext.P1. The

petitioner was further required to produce NOC from Geologist WP(C) No.14406/2021

for the same reason. The petitioner was also required to

produce NOC from the NGT.

6. Heard the learned counsel for the petitioner, the

learned Government Pleader for the 1 st respondent and the

learned Standing Counsel representing respondents 2 and 3.

7. As regards the delay in submitting application for

renewal of licence, a learned Single Judge of this Court has

held in the judgment in Swapna Jestus K. V. Secretary,

Pulpally Grama Panchayat and another [2013 (1) KLT 444]

that a belated application is maintainable provided additional

fee is paid. This Court held as follows:

"7. Though a time limit has been stipulated by Rule 10 of the Rules, the consequence of not submitting an application within the time stipulated, is not mentioned anywhere in the Rules. However, an indication is offered by Rule 19, which reads as follows:

'19. Additional Fee.--The maximum fee specified in Schedule III appended to these rules shall be applicable only for the application submitted in due time. In the case of belated applications an additional fee of 25 per cent of the fee for licence payable under the schedule may be charged.'

8. Therefore, what is evident from a conjoint reading of the Rules is that the only consequence that is made mention of therein for not submitting an application within the stipulated period of time is that WP(C) No.14406/2021

an additional fee of 25 per cent would be charged. Rule 19 also indicates that a belated application is maintainable for, if it were not maintainable there is no question of paying an additional fee for the omission to submit an application within the stipulated time. The irresistible inference that follows therefore is that a belated application is also maintainable provided the petitioner pays the additional fee that is stipulated by Rule 19. The petitioner has not paid any fee, the reason being that the 1st respondent has declined to receive the fee. In view of the fact that the petitioner was already issued with Ext. P-1 licence after fulfilling all the legal requirements, insistence on her to produce a consent from the landlord a fresh, is uncalled for. No power enabling the 1st respondent to insist on such a condition has been pointed out to me either in the Act or in the Rules. For the above reasons, it is held that the insistence on production of a fresh consent from the petitioner's landlord is without any justification."

8. In Abdul Rasheed K.V. v. Pariyaram Grama

Panchayat, Kannur and others [2017 (1) KLT 335], this Court

again considered the issue and held as follows:

"8. In cases of business wherein there is use of machinery or manufacturing plant which is being operated by electricity, Rules 17 to 19 would apply. As per Rule 18, the fee chargeable for grant of licence is as specified in Schedule III to the said Rules. Rule 19 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule III shall be chargeable. As pointed out earlier, Rules 17 to 19 relate to business wherein there is machinery or manufacturing plant wherein electricity is used.

9. There is yet another category referred to under the 1996 Rules, i.e., business being conducted by using machinery but without electricity. Rules 20 to 22 WP(C) No.14406/2021

of the 1996 Rules relate to the said category. Rule 21 of the 1996 Rules provides that in such cases, for grant or renewal of licence, the fee payable shall be as specified in Schedule IV to the said Rules. Rule 22 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule IV could be charged. Therefore, it is obvious that three categories of business are comprehended under the Rules; one is where no machinery is used i.e., common trade, in respect of which the fee payable is at the rates mentioned in Schedule II; the second category is business where machinery operated by electricity is used, regarding which the fee payable is as specified in Schedule III to the Rules; and the third category being business conducted with machinery but without using electricity, for which the fee payable is as specified in Schedule IV to the Rules.

10. As could be noticed from the above, as regards business where machinery operated by electricity is used, Rule 19 provides for making belated applications for grant or renewal of licence on payment of an additional fee of 25%. Similarly, in the case of business where machinery operated without electricity is being used, Rule 22 provides for payment of additional fee of 25% in case of belated applications for grant or renewal of licence. Therefore, in the latter two categories there is an enabling provision which permits submission of belated applications on payment of additional fee of 25%. Such a provision is conspicuously absent in the first category."

Therefore, respondents 1 and 2 are bound to accept and

consider the application submitted by the petitioner for

renewal of licence, in accordance with law, provided the

petitioner remits additional fee.

WP(C) No.14406/2021

9. The other reasons given by respondents 2 and 3 in

their counter affidavit for rejection of application for renewal

are also unsustainable. If the integrated Consent issued by

the Pollution Control Board and licences given by the

Geologist to the petitioner are currently valid, respondents 2

and 3 will not be justified in seeking from the petitioner fresh

Consent/ Licence from those authorities for any violation of

conditions contained therein, as long as the competent

authorities have not cancelled those consent/licence. Similarly,

respondents 2 and 3 cannot insist that the petitioner should

produce "NOC" from the National Green Tribunal for renewing

licence as there is an OA pending before the Tribunal. As long

as the Tribunal has not issued any orders restraining the

Panchayat from renewing the licence, the Panchayat cannot

insist for an NOC from the Tribunal.

In the circumstances, the writ petition is allowed.

Ext.P7 is set aside. Respondents 2 and 3 are directed to

accept additional fee for belated renewal application from the

petitioner. If the petitioner pays the additional fee, WP(C) No.14406/2021

respondents 2 and 3 shall consider the application for renewal

submitted by the petitioner in accordance with law, and pass

orders thereon within a period of four weeks from the date of

receipt of additional fee.

Sd/-

N. NAGARESH, JUDGE

aks/25.08.2021 WP(C) No.14406/2021

APPENDIX OF WP(C) 14406/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 11.07.2018 Exhibit P2 TRUE COPY OF THE DEPOT LICENSE VALID UPTO 13.2.2024 BY THE DEPARTMENT OF MINING AND GEOLOGY DATED 14.2.2019 Exhibit P3 TRUE COPY OF THE LICENCE ISSUED BY THE 2ND RESPONDENT UNDER THE KERALA PANCHAYAT RAJ (ISSUE OF LICENCE TO FACTORIES, TRADES, ENTREPRENEURSHIP ACTIVITIES AND OTHER SERVICES) RULES, 1996, DATED 02.04.2019 Exhibit P4 TRUE COPY OF THE CERTIFICATION ISSUED UNDER GOODS AND SERVICE TAX ACT, DATED 02.04.2019 Exhibit P5 TRUE COPY OF THE LICENCE GRANTED BY DEPARTMENT OF FACTORIES AND BOILERS, GOVT. OF KERALA DATED 31.05.2019 Exhibit P6 TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 16.6.2021 Exhibit P7 TRUE COPY OF THE LETTER ISSUED BY 3RD RESPONDENT TO PETITIONER DATED 15.07.2021 Exhibit P8 TRUE COPY OF THE FRESH APPLICATION DATED 27/07/2021.

Exhibit P8(a) TRUE COPY OF THE COVERING LETTER DATED 27/07/2021.

Exhibit P9 TRUE COPY OF THE RECEIPT OF THE FRESH APPLICATION DATED 27/07/2021.

Exhibit P10 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION NO.36358/2016 WITHOUT EXHIBITS DATED 11/011/2016.

Exhibit P11 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE SRI.RENY JACOB GEORGE IN WPC.NO.36358/2016 DATED 03/12/2016. Exhibit P12 TRUE COPY OF THE QUARRYING LEASE ISSUED TO SRI.A.J.ABRAHAM DATED 31/12/2008 VALID TILL 30/12/2018.

RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE DATED 15-06-2021 WP(C) No.14406/2021

Exhibit R3(B) TRUE COPY OF THE NOTICE ISSUED BY THE VILLAGE OFFICER, ANICADU DATED 22.06.2020 Exhibit R3(C) TRUE COPY OF THE ORDER ISSUED BY THE VILLAGE OFFICER, ANICADU DATED 02-10-

Exhibit R3(D) TRUE COPY OF THE NOTICE3 ISSUED BY THE 3RD RESPONDENT DATED 05-07-2021 Exhibit R3(E) TRUE COPY OF THE LEGAL OPINION DATED 14-07-2021.