A.N.Sadasivan Nair vs The Thirumittacode Grama ...
2021 Latest Caselaw 23103 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021/3RD AGRAHAYANA, 1943
                    WP(C) NO. 16420 OF 2021
PETITIONER:

         A.N.SADASIVAN NAIR
         AGED 60 YEARS
         MANAGING PARTNER, M/S. POPULAR GRANITES, ALTHARA,
         PERUMPILAVU P.O, THRISSUR DISTRICT.
         BY ADV JOBI JOSE KONDODY


RESPONDENT:

    1    THE THIRUMITTACODE GRAMA PANCHAYATH
         REPRESENTED BY ITS SECRETARY, THIRUMITTACODE
         GRAMA PANCHAYATH OFFICE, CHATHANNUR P.O,
         PALAKKAD DISTRICT - 679533.
    2    THE SECRETARY
         THIRUMITTACODE GRAMA PANCHAYATH, THIRUMITTACODE
         GRAMA PANCHAYATH OFFICE, CHATHANNUR P.O,
         PALAKKAD DISTRICT - 679533.
    3    THE GEOLOGIST
         MINING AND GEOLOGY DISTRICT OFFICE,
         TOWN BUS STAND COMPLEX, PALAKKAD - 697514.
    4    ADDL.R4.SUBRAMANIYAN. K.
         AGED 56 YEARS
         S/O GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O,
         PERINGODE VAI, AKILANAM, THEKKEKARA-679 535
    5    ADDL.R5.VINOD KUMAR.A.V
         AGED 45 YEARS
         S/O.RAGHAVAN, AYYATHU VALAPPIL HOUSE,
         CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM,
         THEKKEKARA-679 535
    6    ADDL.R6.SUBASH.M
         AGED 35 YEARS
         S/O SANKARAN, MANGATTIL HOUSE, CHAZHIYATTIRI P.O,
         PERINGODE VAI, AKILANAM, THEKKEKARA-679 535
    7    ADDL.R7.RAJESH.C.V
         AGED 45 YEARS
         S/O.SREEDHARAN NAIR, SREELAKSHMI NILAYAM,
         CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM,
         THEKKEKARA-679 535
 WP(C) No.16420/2021
                            :2 :


     8     ADDL.R8.MANIKANDAN.M
           AGED 52 YEARS
           S/O.SANKARAN.M, MANGATTILL HOUSE, CHAZHIYATTIRI
           P.O, PERINGODE VAI, AKILANAM, THEKKEKARA-679 535
     9     ADDL.R9.UNNIKRISHNAN.M
           AGED 45 YEARS
           S/O.SIVADASAN, PALATHU VEETTIL HOUSE,
           CHAZHIYATTIRI P.O, PERINGODE VAI, AKILANAM,
           THEKKEKARA-679 535
    10     ADDL.R10.VIDYADHARAN
           AGED 45 YEARS
           S/O.KRISHNAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O,
           PERINGODE VAI, AKILANAM, THEKKEKARA-679 535
    11     ADDL.R11.VIJAYAN.K
           AGED 60 YEARS
           S/O.GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O,
           PERINGODE VAI, AKILANAM, THEKKEKARA-679 535
    12     ADDL.R12.RAJAN.K
           AGED 54 YEARS
           S/O.GOPALAN, KUNDIL HOUSE, CHAZHIYATTIRI P.O,
           PERINGODE VAI, AKILANAM, THEKKEKARA-679 535.

           (ADDL R4 TO ADDL R12 ARE IMPLEADED AS PER ORDER
           DATED 14-09-2021, IN IA 1/2021 IN
           WP(C)16420/2021)

           BY ADVS.
           T.A.RAJAGOPALAN, R1 AND R2
           P.SANKARAN NAMPOOTHIRI, R4 TO R12
           SRI.VIPIN NARAYANAN, SR.GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 24.11.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.16420/2021
                                   :3 :




                           JUDGMENT

~~~~~~~~~

Dated this the 24th day of November, 2021

The petitioner, who is Managing Partner of a

Crusher Unit, seeks to direct the 1 st respondent to grant

permission to establish a Quarry for mining building stones in

the property covered by Ext.P1, under Section 233 of the

Kerala Panchayat Raj Act, 1994, based on Exts.P2 to P4

licences issued by the statutory authorities. The petitioner

also seeks to declare that he is entitled to Deemed Licence

under Section 236(3) of the Kerala Panchayat Raj Act, 1994

for operating the Quarry for the year 2021-'22 and direct the

2nd respondent to issue licence in paper form.

2. The petitioner is the Managing Partner of

M/s.Popular Granites situated in Perumpilavu Village of

Kunnamkulam Taluk. The 3rd respondent-Geologist issued

Ext.P1 Letter of Intent to the petitioner. The State WP(C) No.16420/2021

Environment Impact Assessment Authority (SEIAA) granted

Environmental Clearance valid up to 05.03.2026, as per

Ext.P2. The Kerala State Pollution Control Board gave Ext.P3

Consent to Operate. The Deputy Chief Controller of

Explosives granted Ext.P4 explosive licence.

3. After securing all the requisite

licence/permit/consent, the petitioner submitted an application

to the 1st respondent-Panchayat for issuing trade licence, as

per Ext.P5. The 2nd respondent-Secretary to the Panchayat

acknowledged the receipt of the application. However, the

petitioner's application was neither allowed nor rejected. The

petitioner states that he is entitled to a deemed licence to

operate the Quarry, in view of Section 236(3) of the Kerala

Panchayat Raj Act, 1994.

4. The learned counsel for the petitioner argued that

the 2nd respondent has no case that Ext.P5 application is not

supported by requisite documents. The 2 nd respondent has no

case that Ext.P5 application is defective. The petitioner is

therefore entitled to the benefit of deemed licence, under WP(C) No.16420/2021

Section 236(3) of the Act, 1994 and therefore respondents 1

and 2 are compellable to issue the licence applied for in paper

form.

5. The 2nd respondent resisted the writ petition filing

counter affidavit. The 2nd respondent stated that in the locality

where the petitioner proposes to operate Quarry, some

quarries were functioning years before. Due to the functioning

of those quarries, wells and houses were damaged and the

local residents submitted complaints. The petitioner is

proposing to start the Quarry on the top of a hill at a height of

600 to 700 feet. There are about 250 dwelling houses at the

foot of the hill. Quarrying operations will be dangerous.

6. The 2nd respondent further submitted that there is a

pond near the Quarry. There is a public road within 50 to 100

metres of the Quarry. The Special Grama Sabha meeting

held on 18.08.2019 passed a unanimous resolution against

the establishment of Quarry. It is doubtful whether the

petitioner is the owner of the land. In the circumstances, the

writ petition is liable to be dismissed. WP(C) No.16420/2021

7. The additional 4th respondent, who was impleaded

in the writ petition, also filed a counter affidavit. The additional

4th respondent stated that the earlier quarries which functioned

in that area have caused damage to the houses and wells of

the residents of the locality. Their houses used to shiver

during blasting operations. Large amount of granite dust and

smoke, polluted the area. Blasting operation is likely to result

in landslide.

8. The District Collector, on receipt of complaints,

interfered in the matter and forwarded the complaints to the

Geologist. The 4th respondent further urged that blasting in

granite mines are prohibited within one kilometre of water

shed area as per the Kerala Water Conservation Act.

Chazhiyattil Water Shed area is hardly 200 metres far from

the proposed Quarry. Therefore, the petitioner's proposed

Quarry should not be licensed.

9. In the rejoinder filed by the 2 nd respondent, the 2nd

respondent alleged that industrial occupancies should have

width of 6 metres for the road and the street. Similarly, the EC WP(C) No.16420/2021

issued to the petitioner mandates that 7 metres private road

must be maintained in good motorable condition. Access

roads to the Quarry shall be blacktopped to contain dust

emissions that may arise during transportation of materials. In

the present case, the Panchayat road is only about 4.5 metres

wide. Therefore, no licence can be granted to the petitioner.

10. In the rejoinder filed by the 4th respondent also, it

has been alleged that the entrance of the private mud road is

only 4 metre wide. The Panchayat road is only 4.5 metre

wide. Unless the road is 7 metre wide, no licence for

hazardous activities can be permitted.

11. I have heard the learned counsel for the petitioner,

the learned counsel for respondents 1 and 2, the learned

Government Pleader representing the 3rd respondent and the

learned counsel for respondents 4 to 12.

12. The petitioner has filed the writ petition seeking to

grant permission to establish the quarry under Section 233 of

the Kerala Panchayat Raj Act, 1994 based on Exts.P1 to P4

licences issued by the statutory authorities. The contention of WP(C) No.16420/2021

the petitioner is that he is entitled to a Deemed Licence under

Section 232 of the Kerala Panchayat Raj Act, 1994. The

petitioner seeks to issue licence in paper form. It is not

disputed that the petitioner has obtained necessary

licence/permit from the Geologist, SEIAA, the Kerala State

Pollution Control Board and the Deputy Chief Controller of

Explosives.

13. There is no dispute on the fact that the petitioner

has made a composite application under Sections 232 and

233 of the Kerala Panchayat Raj Act, 1994 for licences. The

application was made on 19.04.2021. Ext.P5 is the copy of

application and Ext.P6 is the copy of the acknowledgment

issued by the Panchayat authorities on 20.04.2021. The

argument of the petitioner is that in view of Section 236(3) of

the Kerala Panchayat Raj Act, 1994, if orders on application

for licence or permission are not communicated to the

applicant within 30 days, the licence shall be deemed to have

been issued for the period for which it would have been

ordinarily allowed. No orders have been passed on Ext.P5 WP(C) No.16420/2021

within the stipulated 30 days. Therefore, the petitioner should

be deemed to hold a licence and the respondents are

compellable to issue licence in paper form.

14. The defence of the Panchayat is that there were

quarries functioning in the area earlier, which caused damage

to nearby residential buildings, consequent to which the local

residents filed complaints. The proposed quarry is situated on

top of a hillock and buildings and wells will be

damaged/polluted due to the explosions in the quarry. A road

is situated within 50-100 metres distance, which is used by the

general public. There is a pond adjacent to the locality, which

will be polluted. The area is inhabited by animals and birds

within 100 metres from the locality. The Panchayat road

leading to the quarry has a width of 3 metres only. The

Special Grama Sabha has passed a resolution against

establishment of the Quarry in the area.

15. The State Environmental Impact Assessment

Authority, which is a statutory expert body competent to

examine adverse environmental impact due to the WP(C) No.16420/2021

establishment of the quarry, has granted Environmental

Clearance to the Quarry as per Ext.P2. The Environmental

Clearance given is not under challenge from any quarters.

Therefore, the objection as regards pollution that may be

resultant of establishment of the quarry and its adverse impact

on animals and birds, cannot be considered by this Court.

16. The further argument that nearby buildings will be

damaged due to explosions in the quarry. The Deputy Chief

Controller of Explosives, who is the competent authority in this

regard, has granted permission. Ext.P4 Licence granted to

the petitioner by the Deputy Controller of Explosives is also

not subjected to challenge from any quarters. The argument

of the 2nd respondent in this regard cannot be accepted for the

said reason.

17. The further defence is that the Special Grama

Sabha has unanimously passed a resolution against the

quarry. This Court has held in the judgment in Abdulla v.

Trippangottur Grama Panchayat [2021 (5) KLT 200] that any

decision of the Grama Sabha cannot affect the powers and WP(C) No.16420/2021

functions of the licensing authorities under the Kerala

Panchayat Raj Act, 1994 including the power to issue licence

under Section 233. Therefore, Panchayat licensing authorities,

without the support of any expert advice/report by a competent

body, cannot be heard to contend that the industry will cause

environmental damage and that the Grama Sabha has passed

a resolution against the industry.

18. The 2nd respondent as well as the 4 th respondent

vehemently urged that the access width of the road leading to

the quarry is less than the prescription. The Panchayat Road

in question namely Akilanam-Thekkekara Road is 5 metre

wide as per the Panchayat records, according to the

petitioner. Ext.P9 Survey Map prepared by the Village Officer

would show that the road leading to the quarry is 7.5 metres

wide. The Kerala Panchayat Raj (Issue of Licence to

Factories, Trades, Entrepreneurship Activities and Other

Services) Rules, 1996 do not stipulate any minimum width for

the road leading to a quarry.

WP(C) No.16420/2021

19. The petitioner has submitted Ext.P5 application for

licence under Sections 233 and 234 of the Act, 1994 on

19.04.2021. The receipt of which has been acknowledged by

the Panchayat authorities on 20.04.2021, as per Ext.P6.

Section 236(3) of the Act provides that if orders or permission

are not communicated to the applicant within 30 days, the

application should be deemed to have been allowed for that

period. The respondents have no case that the application for

licence is not supported by requisite documents. The

respondents have no case that the Panchayat authorities

have communicated any order of rejection to the petitioner

within the period stipulated as per Section 236(3). Therefore,

the petitioner is entitled to hold Deemed Licence.

20. A Division Bench of this Court has held in the

judgment in V. Sudhakaran v. Pallichal Grama Panchayat

and others [2016 (2) KLT 175] that even in the absence of a

licence in the prescribed format, on the request of the

applicants, the Secretary of the Panchayat may have to issue

appropriate certificate to enable the applicants to utilise the WP(C) No.16420/2021

same for other statutory permissions/licences.

In the afore facts and circumstances of the case,

the writ petition is allowed and the competent among

respondents 1 and 2 are directed to issue Deemed Licence to

the petitioner in paper form for the period applied for in Ext.P5

application, within a period of one month.

Sd/-

N. NAGARESH, JUDGE

aks/22.11.2021 WP(C) No.16420/2021

APPENDIX OF WP(C) 16420/2021

PETITIONER'S EXHIBITS

Exhibit P1 A TRUE COPY OF THE LETTER OF INTENT DATED 12.07.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

Exhibit P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 06.03.2021 VALID UP TO 05.03.2026 FOR THE PROJECT OF THE PETITIONER ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY

- KERALA.

Exhibit P3 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 26.05.2021 VALID UP TO 28.02.2026 FOR OPERATING THE QUARRY FOR MINING BUILDING STONES.

Exhibit P4 A TRUE COPY OF THE FORM L3-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 24.06.2009 VALID UPTO 31.03.2023.

Exhibit P5 A TRUE COPY OF THE APPLICATION DATED 19.04.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE TRADE LICENSE UNDER SEC.232 OF THE KERALA PANCHAYAT RAJ ACT, 1994 AND ESTABLISHING THE BUILDING STONES QUARRY UNDER SEC. 233 OF THE KERALA PANCHAYATH RAJ ACT, 1994.

Exhibit P6 A TRUE COPY OF THE RECEIPT DATED 20.04.2021 ACKNOWLEDGING RECEIPT OF EXHIBIT P5 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P7 A TRUE COPY OF THE G.O(K) NO.156/2021 LSGD (RD) DATED 29.07.2021 ISSUED BY THE STATE GOVERNMENT.

Exhibit P8 COPY OF ASSET REGISTER MAINTAINED BY THE 1ST RESPONDENT.

Exhibit P9 COPY OF SURVEY MP PEPARED BY VILLAGE OFFICER, THIRUMITTACODE-2 VILLAGE.

WP(C) No.16420/2021

Exhibit P10 COPY OF NO OBJECTION CERTIFICATE ISSUED BY MRS.RAJANI ELDHO FOR AND ON BEHALF OF THE PETITIONER FIRM DT 4.3.2019.

Exhibit P11 COPY OF NOC ISSUED BY MR.HARIKRISHNAN FOR AND ON BEHALF OF THE PETITIONER DT 4.3.2019 Exhibit P12 COPY OF DEED OF PARTNERSHIP DT 25.5.2015 OF M/S.POPULAR GRANITES.

RESPONDENT'S EXTS:

R2(a) LETTER DT 13.8.2021 TO DIRECTOR OF MINING AND GEOLOGY.

R2(b) LETTER DT 13.8.2021 TO MEMBER SECRETARY AND REVENUE DIVISIONAL OFFICER R2(c) MEMORANDUM SUBMITTED TO THE THIRUMITTACODE GRAMA PANCHAYATH.

R2(d) MEMORANDUM DT 20.7.2021.

R2(e) REPORT DT 16.7.2021.

R2(f) JUDGMENT IN (2002) 9 SCC 493.

R2(g) COPY OF RELEVANT PAGES OF ENVIRONMENT CLERANCE. R2(h) COPY OF RELEVANT PAGES OF GENERAL CONDITIONS FOR GRANITES STONE MINING PROJECTS.

R2(i) COPY OF URACHANOOR WATER BED.

R2(j) COPY OF RELEVANT PAGE WITH RESPECT TO LICENSE TO QUARRY.

R2(k) COPY OF LETTER DT 10.8.2021 R2(l) COPY OF ENVIRONMENT PLN OF POPULAR GRANTIES. R4(a) LETTER DT 28.5.2018 FROM COLELCTORATE, PALAKKADR4(b) LETTER DT 2.6.2018 TO PATTAMBI THAHSILDAR. R4(c) LETTER DT 23.5.2018.

R4(d) MEMORANDUM TO THE THIRUMITTACODE GRAMA PANCHAYATH. R4(e) RESOLUTION OF SPECIL GRAMA SABHA DT 18.8.2019. R4(f) MEMORANDUM DT 20.7.2021 TO THIRUMITTACODE GRAMA PANCHAYATH.