M/S. Adani Vizhinjam Port Pvt. Ltd vs Manickal Grama Panchayat
2021 Latest Caselaw 1231 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                        WP(C).No.274 OF 2021(H)


PETITIONER/S:

                M/S. ADANI VIZHINJAM PORT PVT. LTD.,
                HAVING ITS REGISTERED OFFICE AT ADANI CORPORATE
                HOUSE, SHANTIGRAM, NR. VAISHNO DEVI CIRCLE, S.G
                HIGHWAY AHMEDABAD, GUJARAT-682 421 AND HAVING ITS
                BRANCH OFFICE AT 2ND FLOOR, VIPANCHIKA TOWERS,
                THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MD
                AND CEO SRI. RAJESH KUMAR JHA.

                BY ADVS.
                SRI.ROSHEN.D.ALEXANDER
                SMT.TINA ALEX THOMAS
                SHRI.HARIMOHAN

RESPONDENT/S:

      1         MANICKAL GRAMA PANCHAYAT
                OFFICE OF THE MANICKAL GRAMA PANCHAYAT, PIRAPPANCODE
                P.O., THIRUVANANTHAPURAM-695 607 REPRESENTED BY ITS
                SECRETARY.

      2         THE SECRETARY
                MANICKAL GRAMA PANCHAYAT, OFFICE OF THE MANICKAL
                GRAMA PANCHAYAT, PIRAPPANCODE P.O.,
                THIRUVANANTHAPURAM-695 607.

      3         THE DIRECTOR OF MINING AND GEOLOGY
                DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O.,
                THIRUVANANTHAPURAM-695 004.

      4         STATE OF KERALA
                REPRESENTED BY SECRETARY, DEPARTMENT OF PORTS AND
                FISHERIES GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-
                695 001.
                R1-2 BY ADV. SHRI.K.P.HARISH
                GP.SRI. A RAVIKRISHNAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.274 OF 2021(H)

                                      2



                                  JUDGMENT

The petitioner, which is a private limited company, and selected as the

Concessionaire for the Design, Build, Finance, Operate and Transfer of

Vizhinjam Seaport Project, has approached this Court aggrieved by Ext.P17

order passed by the 1st respondent Panchayat, which refused to issue the D &O

license to the petitioner for conducting quarrying operations in Block No. 29 of

Re-survey No.170/10 of Manickal Village. In the writ petition, it is the case of

the petitioner that the application for D &O license was submitted by the

petitioner as early as on 18.3.2020 and resubmitted on 5.8.2020, and by

5.9.2020 the petitioner had secured a deemed license, in terms of Section

236(3) of the Kerala Panchayat Raj Act. It is the specific case of the petitioner

that during the said period, there was no communication in the nature of

Ext.P17 from the 1st respondent and hence it has to be treated as having

obtained a deemed license by virtue of the provisions referred above. There is

a further prayer in the writ petition for a direction to the 3 rd respondent to

consider its application for quarrying lease on the basis of the deemed license

secured by it as per Section 236(3) of the Kerala Panchayat Raj Act( 'the Act'

for short).

2.I have heard the learned counsel appearing for the petitioner and also

the learned Government Pleader appearing for the respondents.

3.On a consideration of the facts and circumstances of the case as also

the submissions made across the Bar, I find that the circumstances under

which an applicant for D&O license can be said to have obtained a deemed

license in accordance with Section 236(3) of the Act, have been delineated by WP(C).No.274 OF 2021(H)

a Full Bench decision of this Court in Abdul Kharim and Another V.

Pazhayakunummel Grama Panchayat and Another, [2018(5) KHC 643].

4.Taking cue from the said decision, I am of the view that on the facts of

the instant case, the petitioner can be said to have secured a valid deemed

license as on 5.9.2020 in terms of Section 236(3) of the Act. Accordingly, I

dispose the writ petition by declaring the petitioner as having secured and

valid deemed license as on 5.9.2020 under Section 236(3) of the Act, and

directing the 3rd respondent to consider the petitioner's application for

quarrying lease on the basis of the said declaration and the applications

submitted by him for the said lease. The 3 rd respondent shall consider and pass

orders on the application for quarrying lease within a period of six weeks from

the date of receipt of a copy of this judgment, after hearing the petitioner.

The petitioner shall produce a copy of the writ petition together with a

copy of this judgment, before the 3rd respondent, for further action.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

SJ WP(C).No.274 OF 2021(H)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF MINUTES OF MEETING DATED 3.7.2018 WHICH WAS COMMUNICATED TO THE DISTRICT COLLECTOR, KOLLAM VIDE COMMUNICATION DATED 5.7.2018.

EXHIBIT P2 TRUE COPY OF NOC BEARING NO.B7-127329/18 DATED 13.7.2018.

EXHIBIT P3 TRUE COPY OF APPROVAL ORDER BEARING NO.362/DOT/ML/18 DATED 24.7.2019 ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY.

EXHIBIT P4 TRUE COPY OF ENVIRONMENTAL CLEARANCE NO.29/2020 ISSUED BY SEIAA BY ITS PROCEEDINGS NO.1416/EC1/2019/SEIAA DATED 27.2.2020.

EXHIBIT P5 TRUE COPY OF CONSENT NO.PCB/TVM-

DO/ICO/NDD/QRY/29/2020 DATED 16.3.2020 ISSUED BY THE KERALA POLLUTION CONTROL BOARD.

EXHIBIT P6 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT BEARING NO.AVPPL/GOK/2019-20/1087 DATED 18.3.2020.

EXHIBIT P6(A) TRUE COPY OF RECEIPT ACKNOWLEDGING PETITIONER'S APPLICATION FOR D&O LICENSE BEARING NO.7042797 BY THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE LETTER BEARING NO.A4-

2828/20 DATED 27.4.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT BEARING NO.AVPPL/GOK/2020-21/1167 DATED 20.6.2020.

EXHIBIT P9 TRUE COPY OF THE LETTER OF INTENT ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY BEARING NO.5219/M3/2019 DATED 7.6.2019.

EXHIBIT P10 TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED BY PESO DATED 17.6.2020.

WP(C).No.274 OF 2021(H)

EXHIBIT P11 TRUE COPY OF LETTER BEARING NO.A4-2828/20 DATED 18.7.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P12 TRUE COPY OF COMPLIANCE REPORT DATED 5.8.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE LETTER BEARING NO.A4-

2828/20 DATED 27.8.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P14 TRUE COPY OF THE EMAIL DATED 14.10.2020 ISSUED BY THE MANAGER-PROJECTS OF THE PETITIONER TO VISL.

EXHIBIT P15 TRUE COPY OF THE LETTER BEARING NO.VISL/2018-19/EE&EI-11/396 DATED 20.10.2020 ISSUED BY VISL TO THE 2ND RESPONDENT

EXHIBIT P16 TRUE COPY OF THE LETTER DATED 2.12.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE RESOLUTION NO.13(1) DATED 16.10.2020 OF THE COMMITTEE MEETING.

EXHIBIT P18 TRUE COPY OF MINUTES OF THE MEETING OF THE PANCHAYAT COMMITTEE HELD ON 16.10.2020.

EXHIBIT P19 TRUE COPY OF ORDER DATED 16.3.2020 IN WPC NO.8008/2020.

EXHIBIT P20 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN ABDUL KHARIM AND ANOTHER V.

PAZHAYAKUNNUMMEL GRAMA PANCHAYAT AND ANOTHER, 2018(4) KLT 1086 (FB) 2018 (5) KHC

EXHIBIT P21 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN ANIYERI SATYAN V. THRIPRANGOTTOOR GRAMA PANCHAYAT AND ANOTHER, 2018(5) KHC 580.

EXHIBIT P22 TRUE COPY OF DECISION IN SREEDHARAN N V.

KALLUVATHUKKAL PANCHAYAT, 2015 (1) KLT 778: 2015 (1) KHC 540.