Gopinathan vs Nellaya Grama Panchayat
2022 Latest Caselaw 2531 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE T.R.RAVI
  FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                    WP(C) NO. 26536 OF 2021
PETITIONER/S:

            GOPINATHAN,
            AGED 59 YEARS
            S/O.VELYUDHAN, PAPPANKATTIL HOUSE, VALLAPUZHA
            P.O., PATTAMBI, PALAKKAD-679 336.
            BY ADVS.
            ENOCH DAVID SIMON JOEL
            S.SREEDEV
            RONY JOSE
            LEO LUKOSE
            SUZANNE KURIAN
            CIMIL CHERIAN KOTTALIL


RESPONDENT/S:

    1       NELLAYA GRAMA PANCHAYAT,
            NELLAYA P.O., PALAKKAD-679 335, REPRESENTED BY
            ITS SECRETARY.
    2       SECRETARY, NELLAYA GRAMA PANCHAYAT,
            NELLAYA P.O., PALAKAKD-679 335.
            BY ADVS.
            T.C.SURESH MENON
            B.DEEPAK



     THIS    WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   04.03.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.26536 of 2021

                                     2



                                JUDGMENT

The petitioner claims to have a deemed trade license under

Section 236(3) of Panchayat Raj Act for operating the quarrying

unit with effect from 19.03.2021. The petitioner filed the

application for trade license on 17.02.2021. Orders ought to have

been passed by the 2nd respondent on or before 19.03.2021.

Since no orders were issued, going by Section 236(3) of the Kerala

Panchayat Raj Act, a deemed trade license in favour of the

petitioner has to be legally found by applying the statutory

provisions.

2. The case of the petitioner is that unless a D&O license is

obtained the processing of his application for quarrying permit and

all subsequent permits will not be undertaken. Since the deemed

license period is also nearing an end, the petitioner has preferred

an application for renewal which is produced as Ext.P10 and is

evidenced by Ext.P10(a) receipt.

3. The respondent panchayath has produced Ext.R1(b)

which is the decision taken by the Grama Panchayath on

15.12.2021 in which it is stated that there are public protests W.P.(C) No.26536 of 2021

against grant of the D&O license and there is also a restriction

regarding the distance from the nearby residences based on the

order of the National Green Tribunal dated 21.07.2020. It is also

stated in Ext.R1(b) that the quarrying permit has not been granted

by the Mining and Geology department.

4. The reasoning in Ext.R1(b) are not legally sustainable.

The order of the National Green Tribunal has already been set

aside by the Honourable Supreme Court and at present, the

distance that has to be maintained is only 50 meters. As long as

the petitioner satisfies all other legal requirements, the fact that

there is a public protest cannot be treated as a reason to refuse

the D&O license. So also, since the grant of a quarrying permit

depends on the issuance of the D&O license, that cannot be reason

for not granting the D&O license.

In the above circumstances, the petitioner is entitled to

deemed license. However, no purpose will be served by directing

the Panchayath to issue the physical copy of the deemed license at

this distance of time. Accordingly, the 2nd respondent is directed to

consider Ext.P10 application for renewal of license in accordance W.P.(C) No.26536 of 2021

with law and pass appropriate orders for granting the license on

the basis of the deemed license which has already been issued.

Necessary orders shall be issued within one month from the date

of receipt of a copy of this judgment.

Sd/-

T.R. RAVI JUDGE rpk W.P.(C) No.26536 of 2021

APPENDIX OF WP(C) 26536/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 22.12.2017 ISSUED BY THE GEOLOGIST, PALAKKAD.

Exhibit P2 TRUE COPY OF THE CONSENT TO OPERATE DATED 04.05.2018 ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 31.03.2023. Exhibit P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 28.04.2018 VALID TILL 28.04.2023 ISSUED BY THE DEIAA, PALAKAKD. Exhibit P2 B TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2022.

Exhibit P3 TRUE COPY OF THE LETTER DATED 31.08.2018 ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE ORDER DATED 17.01.2019 IN APPEAL NO.575/2018 ON THE FILES OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.

Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 06.07.2020 IN WPC NO.11905/2020 ON THE FILES OF THIS HON'BLE COURT.

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 18.09.2020 IN WA NO.1232/2020 ON THE FILES OF THIS HON'BLE COURT.

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 22.09.2020 IN CON.CASE NO.1351/2020 ON THE FILES OF THIS HON'BLE COURT.

Exhibit P8 TRUE COPY OF THE TRADE LICENSE DATED 22.09.2020 VALID TILL 31.03.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P9 TRUE COPY OF THE RECEIPT DATED 17.02.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P10 TRUE COPY OF THE LETTER DATED 22.12.2021 BEARING NO.A5-1202/2021 ISSUED BY THE 2ND W.P.(C) No.26536 of 2021

RESPONDENT TO THE PETITIONER.

RESPONDET EXHIBITS Exhibit R1 (a) TRUE COPY OF COMMUNICATION NO.DOP/3152/2017/A1 ISSUED BY THE GEOLOGIST, DISTRICT OFFICE, MINING AND GEOLOGY DEPARTMENT, PALAKKAD TO THE RESPONDENT PANCHAYATH DATED 21.010.2021 Exhibit R1(b) TRUE COPY OF THE RESOLUTION NO.9/1 PASSED BY THE PANCHAYATH COUNCIL,DATED 15.12.2021.

Exhibit R1(c) TRUE COPY OF THE COMMUNICATION NO.A5 1202/2021 ISSUED BY THE PANCHAYATH TO THE PETITIONER DATED 22.012.2021.