Kerala High Court

C.A.Sharafudhin vs Naduvil Grama Panchayat on 2 March, 2022

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                      WP(C) NO. 1809 OF 2022
PETITIONER:

            C.A.SHARAFUDHIN,
            AGED 43 YEARS
            S/O.C.K.ABU, SAIFOOL SAFA, PINARAYI,
            KANNUR-670 741.
            BY ADVS.
            GEORGE POONTHOTTAM (SR.)
            NISHA GEORGE

RESPONDENTS:

    1       NADUVIL GRAMA PANCHAYAT,
            REPRESENTED BY THE SECRETARY, NADUVIL P.O.,
            KANNUR-670 582.

    2       THE SECRETARY, NADUVIL GRAMA PANCHAYAT,
            NADUVIL P.O., KANNUR-670 582.

            BY ADVS.T.R.HARIKUMAR
            T.P.RAMACHANDRAN
            ARJUN RAGHAVAN


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   02.03.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.1809/2022

                                     2




                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                     W.P.(C).No.1809 of 2022
              ----------------------------------------------
            Dated this the 02nd day of March, 2022


                            JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of certiorari calling for the records leading to Exhibits P4, Exhibit-P5, Exhibit-P7 and Exhibit-P9 to quash the same.

ii. Issue a writ declaring that the respondents have acted in malafide and without jurisdiction in interfering with the operations conducted in the petitioner's property.

iii. Issue a writ of Mandamus directing the respondents not to prevent the petitioner from carrying out mining operations including clearing of the property.

iv. Grant such other reliefs as this Court deems fit in the facts and circumstances of the case.

(SIC)

2. Petitioner owns 2 hectares 12 Are 55 sq. meters of

land in Re-Survey No.292, Re-Survey Sub Division No.1A (Re-

Sy.No.292/1A) in Vellad Village, Naduvil Panchayat, Kannur W.P.(C).No.1809/2022

District. It is the case of the petitioner that his attempt to

start a quarry in the said land had been illegally thwarted by

the Panchayat from 2012 onwards. It is the further case of the

petitioner that he approached this Court on several occasions

and that also from 2013 onwards and even now the Panchayat

is passing orders detrimental to the petitioner and he is not

able to start quarrying work even now. It is the case of the

petitioner that the petitioner obtained licence and permission

from all statutory authorities and even then the Panchayat is

passing orders restraining the petitioner from starting the

quarry works. It is the case of the petitioner that the

Panchayat is taking action in violation of the direction of this

Court in Ext.P2 judgment. Hence this writ petition.

3. Heard the learned Senior Counsel Sri.George

Poonthottam instructed by Smt.Nisha George. I also heard

Sri.T.R. Harikumar, appearing for respondents 1 and 2.

4. The learned Senior Counsel takes me through

Exts.P1 and P2 judgments. The learned Senior Counsel

submitted that in the light of Ext.P2 judgment, the Panchayat

has no right, as of now, to cancel the licence obtained by the

petitioner but can only take steps to abate nuisance and avert W.P.(C).No.1809/2022

danger if any, as is permitted by the provisions of the Kerala

Panchayat Raj Act. It is the definite case of the Senior

Counsel that the Panchayat has no power to restrain the

activities of the quarry and they can only avert and abate

nuisance, if any. Subsequently the Panchayat issued Ext.P3(e)

licence. Thereafter the Panchayat issued Ext.P4 with Ext.P5

notice. Ext.P4 is an order directing the petitioner to stop

further activities. Ext.P6 is the reply to Ext.P5. Thereafter

Ext.P7 show cause notice was issued in which 24 defects were

alleged. The petitioner submitted Ext.P8 reply in which he

responded to all the 24 defects alleged in Ext.P7. Thereafter

Ext.P9 order was passed, without considering the reply

submitted by the petitioner, is the grievance. According to the

petitioner, the Panchayat has no authority to stop the

functioning of the quarry when all statutory authorities

granted permission for quarrying. According to the petitioner,

the Panchayat can only abate nuisance and avert danger if

any, as is permitted by the provisions of the Kerala Panchayat

Raj Act.

5. The learned counsel for the Panchayat takes me

through the counter affidavit and Ext.R1(b) injunction order W.P.(C).No.1809/2022

passed by the Vacation Court of Thalassery. The learned

counsel appearing for the Panchayat submitted that in the

light of Ext.R1(b), the petitioner cannot continue quarrying in

this area. The learned counsel also submitted that the

Panchayat only acted in accordance to law and there is

nothing to interfere with Ext.P9 order.

6. This Court considered the contentions of the

petitioner and the respondents. I perused Ext.P7 show cause

notice and also the alleged defects noted in Ext.P7 as Items 1

to 24. Thereafter I perused Ext.P8 reply in which the

petitioner gave definite answers to the alleged defects

mentioned in Ext.P7. Thereafter the Panchayat passed Ext.P9

order. It will be better to extract the relevant portion:

"തുടർന്ന് താങ്കൾക്ക് സൂചന 8 പ്രകാരം ഒരു കാരണം

കാണിക്കൽ നോട്ടീസ് നൽകിയതിൽ താങ്കൾ സൂചന 9 പ്രകാരം

മറുപടി നൽകിയിട്ടുള്ളതാണല്ലോ. പ്രസ്തുത മറുപടി

തൃപ്തികരമല്ലാത്തതിനാൽ പാരസ്ഥിതിക അനുമതി പത്രത്തിലെ

വ്യവസ്ഥകൾ ലംഘിച്ചുകൊള്ള പ്രവൃത്തികൾ തുടരുന്നതിനാലും

പൊതുജനങ്ങൾക്കും പ്രദേശത്തിനും ഹാനികരമായിട്ടുള്ളതും

ആവാസ വ്യവസ്ഥയ്ക്ക് ദോഷകരമായിട്ടുള്ളതും ആയ പ്രവൃത്തികൾ

തുടർന്നുവരികയാണ്. പൊതുജനങ്ങൾക്കും പരിസ്ഥിതിക്കും

പ്രദേശത്തിനും ആവാസ വ്യവസ്ഥയ്ക്കും ഒരു പോലെ W.P.(C).No.1809/2022

ശല്യമായിവർത്തിക്കുന്ന നിയമലംഘനം തടയുക എന്നത്

പഞ്ചായത്തിന്റെ പ്രഥമ കർത്തവ്യമാണ്. അതുകൊണ്ട് താങ്കൾ

മാവുഞ്ചാൽ എന്ന സ്ഥലത്ത്റീസ് 292/1 എയിൽ 1.1028

ഹെക്ടർ സ്ഥലത്തു നിന്നും കരിങ്കൽ ഖനനം നടത്തുന്നതുമായി

ബന്ധപ്പെട്ട പ്രവർത്തികൾ നിർത്തി വെക്കേണ്ട സാഹചര്യം

ഉണ്ടായിരിക്കുന്നു."

7. On a perusal of the above order, I am of the firm

view that it is not an order in accordance to law and that also

after adverting to the reply submitted by the petitioner in

Ext.P8. The Panchayat simply says that the reply submitted by

the petitioner is not acceptable. When the Panchayat in the

show cause notice narrated certain defects and the petitioner

again gave a reply to those alleged defects by separate

heading in Ext.P8, it is the bounden duty of the Panchayat to

consider those explanation and thereafter proceed in

accordance with law. Moreover I perused Ext.P2 judgment. It

will be better to extract paragraphs 4 and 5 of the Ext.P2:

"4. When I consider the afore submissions, it is clear that the entire action taken by the Panchayat, as explained by them in their statement dated 20.02.2019, was without adverting to the impact of the judgment of the Full Bench of this Court in Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)].

5. Going by the said judgment, the Panchayat has no W.P.(C).No.1809/2022

right, as of now, to reject the licence of the petitioner but can only take steps to abate nuisance and to avert danger, as is permitted by the provisions of the Kerala Panchayat Raj Act. "

8. This Court clearly stated in Ext.P2 judgment that

the Panchayat can only abate nuisance and to avert danger, as

is permitted by the provisions of the Kerala Panchayat Raj Act.

In the light of Ext.P2 judgment, the Panchayat can act only in

accordance to the directions of this Court. Therefore,

according to me, Exts.P4 and P9 are to be set aside and the

Panchayat has to reconsider the matter strictly in accordance

to the directions in Ext.P2 judgment.

Therefore, this writ petition is allowed in the following

manner:

1. Exts.P4 and P9 are set aside.

2. The 2nd respondent is directed to reconsider

the matter if required, after adverting to the

reply in Ext.P8 to the alleged defects

mentioned in Ext.P7 and that also strictly in

accordance with the directions in paragraphs 4

and 5 of Ext.P2 judgment.

3. The orders if any passed by the 2 nd respondent W.P.(C).No.1809/2022

will be subject to the further orders from the

civil court in Ext.R1(b) suit.

Sd/-

                                           P.V.KUNHIKRISHNAN
JV                                                JUDGE
 W.P.(C).No.1809/2022





                  APPENDIX OF WP(C) 1809/2022

PETITIONER EXHIBITS

Exhibit P1             TRUE COPY OF THE JUDGMENT OF THIS
                       HON'BLE COURT IN WPC NO.17837/2013
                       DATED 02.09.2013.
Exhibit P2             TRUE COPY OF THE JUDGMENT OF THIS
                       HON'BLE COURT IN WPC NO.25092/2018
                       DATED 16.10.2019.
Exhibit P3             TRUE COPY OF THE JUDGMENT OF THIS

HON'BLE COURT IN RP NO.1085 OF 2019 IN WPC NO.25092/2018 DATED 12.11.2019. Exhibit P3 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE NO.10/2018 DATED 08.03.2018 ISSUED TO THE PETITIONER BY THE DISTRICT ENVIRONMENT IMPACT ASSESSMENT AUTHORITY, KANNUR.

Exhibit P3 B TRUE COPY OF THE RENEWED CONSENT TO OPERATE ISSUED ON 04.04.2018 BY THE KERALA POLLUTION CONTROL BOARD.

Exhibit P3 C TRUE COPY OF THE EXPLOSIVE LICENSE ISSUED TO THE PETITIONER DATED 17.06.2020 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES.

Exhibit P3D TRUE COPY OF THE QUARRYING LEASE ISSUED TO THE PETITIONER DATED 10.02.2021 ALONG WITH SURVEY MAP.

Exhibit P3 E TRUE COPY OF THE LICENSE NO.A2-

1841/2021-22-82 ISSUED TO THE PETITIONER DATED 17.04.2021.

Exhibit P4 TRUE COPY OF THE ORDER NO.A2-639/19 DATED 22.10.2021 ISSUED BY THE SECRETARY NADUVIL GRAMA PANCHAYAT.

Exhibit P5 COPY OF THE NOTICE NO.A2-639/19 ISSUED BY THE RESPONDENT PANCHAYAT DATED 23.10.2021.

Exhibit P6 COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 01.112021 TO THE RESPONDENT PANCHAYAT.

Exhibit P7 COPY OF THE ORDER NO.A2-639/19 DATED 16.11.2021 ISSUED BY THE 2ND RESPONDENT.

W.P.(C).No.1809/2022

Exhibit P8 COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE PANCHAYAT DATED 25.11.2021 ALONG WITH RECEIPT.

Exhibit P9 COPY OF THE ORDER NO.A2.6482/21 DATED 06.01.2022 ISSUED BY THE RESPONDENT PANCHAYAT.

Exhibit P10 COPY OF THEMEDICAL TREATMENT CERTIFICATE OF THE PETITIONER'S WIFE AT THE MALABAR CANCER CENTRE DATED 18.02.2022.

RESPONDENTS' EXHIBITS Exhibit-R1(a) COPY OF THE PHOTOGRAPH WITH RESPECT TO THE QUARRYING SITE OF THE PETITIONER Exhibit-R1(b) COPY OF THE INJUNCTION ORDER DATED 06-