M/S. Malayoram Rock Products Pvt. ... vs Vanimel Grama Panchayat
2021 Latest Caselaw 15264 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                    WP(C) NO. 10498 OF 2021
PETITIONER:

         M/S. MALAYORAM ROCK PRODUCTS PVT. LTD.,
         7/444A, PADIKKAL HOUSE,
         PERAMANGALAM P.O.,
         THRISSUR DISTRICT - 680 545,
         REPRESENTED BY ITS MANAGING DIRECTOR.

         BY ADVS.
         SRI.ARUN THOMAS
         SRI.SANTHOSH MATHEW
         SRI.JENNIS STEPHEN
         SRI.VIJAY V. PAUL
         SMT.KARTHIKA MARIA
         SRI.ANIL SEBASTIAN PULICKEL
         SMT.JAISY ELZA JOE


RESPONDENTS:

    1    VANIMEL GRAMA PANCHAYAT,
         KODIYURA P.O., KALLACHI VIA,
         KOZHIKODE DISTRICT 673 506,
         REPRESENTED BY ITS SECRETARY.
    2    THE SECRETARY,
         VANIMEL GRAMA PANCHAYAT,
         KODIYURA P.O., KALLACHI VIA,
         KOZHIKODE DISTRICT, PIN - 673 506

         BY ADVS.
         SRI. VINOD SINGH CHERIYAN
         SRI. T.M.KHALID
         SRI. K.P.SUSMITHA

     THIS WRIT PETITION       (CIVIL) HAVING COME UP   FOR
ADMISSION ON 22.07.2021,      THE COURT ON THE SAME    DAY
DELIVERED THE FOLLOWING:
 WP(C) No.10498/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 22nd day of July, 2021

The petitioner, a Company in the business of

quarrying minerals, has approached this Court challenging

Ext.P8 and seeking to direct the respondents to consider and

pass orders on Ext.P7 application submitted for conducting

quarrying operations under the provisions of the Kerala

Panchayat Raj Act, 1994, in the light of the Full Bench

judgment of this Court in Tomy Thomas v. State of Kerala

and others [2019 (4) KHC 553] and other licences, permits

and consents issued to the petitioner by statutory authorities.

2. The petitioner applied to the Director of Mining and

Geology seeking quarrying lease for extracting granite building

stone from land in Re-survey No.242 of Valayam Village of

Vadakara Taluk in Kozhikode District. The Director issued

Ext.P1 Letter of Intent. The Ministry of Environment, Forest WP(C) No.10498/2021

and Climate Change granted Ext.P2 Environmental

Clearance. The Kerala State Pollution Control Board issued

Ext.P3 Consent to Operate. The Additional District Magistrate

gave Ext.P4 NOC under Rules 102 and 103 of the Explosive

Rules, 2008. The Petroleum and Explosives Safety

Organisation (PESO) issued Ext.P5 Explosives Licence in

Form LE-3. By Ext.P6 communication, the District Geologist

approved the Mining Plan.

3. The petitioner, as per Ext.P7 dated 20.02.2021,

applied to the 2nd respondent-Secretary to Grama Panchayat,

for issuance of Trade Licence to conduct quarrying operation.

The 2nd respondent sent Ext.P8 communication dated

05.03.2021 to the petitioner stating that the petitioner needs to

obtain an approval from the District Disaster Management

Authority (DDMA). The petitioner states that Ext.P8 is highly

arbitrary and illegal and goes against the Full Bench judgment

of this Court in Tomy Thomas (supra). There is no legal

justification for the 2nd respondent to delay or deny Trade

Licence to the petitioner.

WP(C) No.10498/2021

4. Respondents 1 and 2 filed a counter affidavit

contesting the claims of the petitioner. Respondents 1 and 2

submitted that the order impugned is appealable under

Section 276 of the Kerala Panchayat Raj Act and hence this

writ petition is premature. Licence has yet not been denied to

the petitioner. The respondents have only required the

petitioner to obtain concurrence of the DDMA to rule out any

possibility of disaster apprehended. The direction contained

in Ext.P8 is strictly in accordance with the judgment of this

Court in Tomy Thomas (supra) and the writ petition is liable to

be dismissed, contended the respondents.

5. Heard the learned counsel for the petitioner and the

learned Standing Counsel representing the respondents.

6. The petitioner has obtained requisite licences/

clearances/permissions/NOCs from the Ministry of

Environment, Forest and Climate Change, Kerala State

Pollution Control Board, the Petroleum and Explosives Safety

Organisation, the District Geologist and the Director of Mining

and Geology. However, the application submitted by the WP(C) No.10498/2021

petitioner to the respondents-Panchayat Authorities for

issuance of Trade Licence has not been granted insisting that

for grant of Trade Licence, the petitioner shall produce

approval of the District Disaster Management Authority.

7. A Full Bench of this Court has held in the judgment

in Tomy Thomas (supra) that under the amended provisions

of sub-section 3 of Section 233 of the Kerala Panchayat Raj

Act, 1994 (as amended by Act 14 of 2018), it cannot be said

that Village Panchayats have got primacy of power to take an

independent decision to reject the applications for

permission/licence under the provisions of the Act and the

licensing rules, for construction or for establishment of any

factory, workshop or workplace. On the other hand, the

Grama Panchayats are obliged to grant omissions in cases

where the authorities mentioned under Section 233 of the Act

had issued such permissions or concerns or 'No Objection

Certificate'. Legal position has been changed by virtue of the

amendments as mentioned above and the Village Panchayats

do not enjoy any primacy of their power to refuse the WP(C) No.10498/2021

application seeking permission for construction or

establishment of any factory, workshop for workplace, under

Section 233 of the Kerala Panchayat Raj Act, on and from the

date of enforcement of the amendments.

8. The Full Bench of this Court further held that if the

Village Panchayat is of the opinion that the construction or

establishment is objectionable by reason of high density of

population in the neighbourhood and it is likely to cause

nuisance, the Secretary shall as soon as may be after the

receipt of the application, obtain an expert opinion of the

department concerned with regard to determination of reasons

for its abatement, at the cost of the owner or person in charge

of the factory, workshop, workplace or machinery concerned

and such a report shall be furnished to the Village Panchayat.

The Village Panchayat shall issue permission subject to such

conditions as may be required.

9. In the case of the petitioner herein, the 2 nd

respondent has not obtained any expert opinion to arrive at a

conclusion that the area where the petitioner proposes to WP(C) No.10498/2021

establish their unit is disaster prone or that the activities of the

petitioner will result in disaster. There is otherwise no

requirement in the Kerala Panchayat Raj Act or under in any

rules made thereunder to insist that the petitioner is legally

bound to produce consent from the DDMA, in order to get

Trade Licence. In the circumstances, Ext.P8 communication

of the 2nd respondent is not legally sustainable.

10. In the present case, it has to be noted that the

petitioner submitted Ext.P7 application for trade licence on

20.02.2021 and submission of the said application on

20.02.2021 is evidenced by the acknowledgment produced

along with Ext.P7. The respondents have not rejected the

application of the petitioner for a period of 15 days. Ext.P8

communication dated 05.03.2021, was admittedly dispatched

by the Panchayat only on 10.03.2021 and received by the

petitioner on 15.03.2021. Since the respondents have not

acted upon the application of the petitioner for a period of 15

days, the petitioner should be treated as having been deemed

licence, in the light of Rule 12(3)(c) of the Kerala Panchayat WP(C) No.10498/2021

Raj (Issue of Licences to Factories, Trades, Entrepreneurship

Activities and other Services) Rules, 1996.

11. For all the afore reasons, the petitioner is entitled to

succeed in this writ petition. Ext.P8 order issued by the 2 nd

respondent is therefore set aside. The respondents are

directed to consider and pass orders on Ext.P7 application

submitted by the petitioner for Trade Licence, in the light of

the Full Bench judgment of this Court in Tomy Thomas

(supra) and Exts.P1 to P5, within a period of one month.

The writ petition is disposed as above.

Sd/-

N. NAGARESH, JUDGE

aks/30.07.2021 WP(C) No.10498/2021

APPENDIX OF WP(C) 10498/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER OF INTENT ISSUED TO THE PETITIONER BY THE DIRECTOR OF MINING AND GEOLOGY ON 18.08.2017.

EXHIBIT P2 TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 14.08.2018 ISSUED BY THE MINISTRY OF ENVIRONMENTAL FOREST AND CLIMATE CHANGE TO THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER ON 12.03.2020.

EXHIBIT P4 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE DATED 27.01.2021.

EXHIBIT P5 TRUE COPY OF THE EXPLOSIVE LICENCE ISSUED BY THE PETROLEUM & EXPLOSIVES SAFETY ORGANIZATION (PESO), TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 23.08.2017 ISSUED BY THE DISTRICT GEOLOGIST TO THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 20.02.201 SUBMITTED BY THE PETITIONER FOR TRADE LICENCE TO THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE REPLY DATED 05.03.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

EXHIBIT P9 TRUE COPY OF THE FULL BENCH JUDGMENT REPORTED IN 2019 (4) KHC 553.

EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 02.11.2020 IN WPC NO. 35742/2019 OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN DATED 8.4.2021 IN WPC NO. 1060/2021 AND CONNECTED CASE OF THIS HONBLE COURT.

SR