Sabu Kuriakose vs Karimkunnam Grama Panchayat
2023 Latest Caselaw 9026 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                     WP(C) NO. 23852 OF 2023
PETITIONER:


          SABU KURIAKOSE,
          AGED 40 YEARS, S/O. KURIAKOSE,
          OLIKUNNEL HOUSE, MEMADANGU P.O.,
          ARAKUZHA, MUVATTUPUZHA,
          ERANKULAM DISTRICT, PIN - 686672.

          BY ADVS.
          V.M.KRISHNAKUMAR
          P.R.REENA

RESPONDENTS:


    1     KARIMKUNNAM GRAMA PANCHAYAT
          REPRESENTED BY ITS SECRETARY, PALA,
          THODUPUZHA ROAD, IDUKKI - 685586.

    2     THE SECRETARY,
          KARIMKUNNAM GRAMA PANCHAYAT, PALA,
          THODUPUZHA ROAD, IDUKKI - 685586.

          BY ADVS.
          GEORGE MATHEW KARAMAYIL
          M.D.SASIKUMARAN
          SUNIL KUMAR A.G
          MATHEW K.T.(GEORGE K.V.)
          STEPHY K REGI
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.23852 of 2023

                                   2

                           JUDGMENT

Dated this the 23rd day of August, 2023

The petitioner is aggrieved by the rejection of licences under

Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994,

applied for by the petitioner for starting quarrying operations.

2. It is evident from the pleadings that the petitioner has

obtained Ext.P1 Letter of Intent, Ext.P2 approved Mining Plan,

Ext.P4 Environmental Clearance, Ext.P5 Consent to Operate,

Ext.P6 NOC from the District Fire Officer and Ext.P7 Explosive

Licence, issued by the competent authorities. With all these

clearances and approvals, when the petitioner approached the

Panchayat Authorities for issuing licence under Section 232 and

233, the application was rejected as per Ext.P9 order of the

Secretary.

3. In Ext.P9 order, it has been stated that the Panchayat

has constituted a sub-committee to assess the eligibility of the W.P.(C) No.23852 of 2023

petitioner to get a licence and the sub-committee has reported that

if quarrying is permitted, it would result in dust and sound

pollution. It would affect the air quality and water availability. The

quarry will be a threat to the life of the local citizens also.

Therefore, the Panchayat Committee has decided not to issue

quarrying licence to the petitioner.

4. This Court has considered the power of the Panchayat

Authorities in declining permission under Section 233 of the

Kerala Panchayat Raj Act, 1994 in the judgment in Sinoj Thomas

v. Balal Grama Panchayat and Another [2023(4) KLT 256]. This

Court held as follows:-

"22. When such specialised and expert statutory bodies are created, Panchayat Committees, who cannot claim expertise in those areas, cannot take a view contrary to that of other competent statutory authorities. Citizens who opt for start ups and entrepreneurships should be able to rely on the decisions and clearances given by specialised statutory bodies and go ahead with their projects. Local Self Government Institutions cannot take a view different from the views of other statutory bodies and stop or create hurdles for the entrepreneurs in going ahead with projects which are permitted under laws."

W.P.(C) No.23852 of 2023

5. In the case of the petitioner, the petitioner has obtained

Environmental Clearance from the Kerala State Environment

Impact Assessment Authority. The petitioner has obtained

Explosives license from Deputy Chief Controller of Explosives.

The petitioner has been issued with Consent to Operate by the

Pollution Control Board. The petitioner has also been given

clearance by the Fire and Safety Authorities. A Letter of Intent has

also been issued to the petitioner by the Department of Mining

and Geology.

6. When all the competent authorities who are specialised

in their own jurisdictional areas have given permission to the

petitioner after making proper assessment, it would not be justified

for the Panchayat to decline licence to the petitioner on the basis

of a sub-committee formed, which is not a statutory body. It is not

stated before this Court that the members included in the said

committee are experts in any fields. W.P.(C) No.23852 of 2023

7. A Full Bench of this Court has held in Tomy Thomas

vs. State of Kerala and others [2019 (4) KHC 553] that from the

date of enforcement of the amendments from 20 th October, 2017,

it cannot be said that the Panchayat 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 work place.

In view of the above, the writ petition is allowed. Ext.P9 is set

aside. Respondents 1 and 2 are directed to re-consider the

application of the petitioner and pass appropriate orders, within a

period of one month, in the light of the judgment laid down by this

Court in Ext.P10 as well as the Full Bench judgment of this Court

in Tomy Thomas v. State of Kerala and others (supra).

Sd/-

N. NAGARESH JUDGE ams W.P.(C) No.23852 of 2023

APPENDIX OF WP(C) 23852/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED 11.11.2019 ISSUED BY THE DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE IDUKKI.

Exhibit P2 TRUE COPY OF THE1ST PAGE OF MINING PLAN SHOWING THE ENDORSEMENT OF APPROVAL OF MINING PLAN DATED 14.12.2020 BY THE DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE IDUKKI Exhibit P3 TRUE COPY OF THE LETTER NO.

DOI/797/M/2020 DATED 14.12.2020 (APPROVAL OF MINING PLAN WITH PROGRESSIVE MINE CLOSURE PLAN) ISSUED BY THE SENIOR GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE IDUKKI.

Exhibit P4            TRUE COPY OF THE ENVIRONMENTAL CLEARANCE
                      DATED    18.2.2023    ISSUED    BY    THE

ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY (SEIAA).

Exhibit P5 TRUE COPY OF THE CONSENT TO OPERATE DATED 9.3.2023 ISSUED BY THE KERALA POLLUTION CONTROL BOARD.

Exhibit P6 TRUE COPY OF THE NOC DATED 15.12.2022 ISSUED BY DISTRICT FIRE OFFICER.

Exhibit P7 TRUE COPY OF THE PROCEEDINGS DATED 29.3.2023 ISSUED BY THE CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI. Exhibit P8 TRUE COPY OF THE APPLICATION ALONG WITH RECEIPT DATED 9.5.2023 ISSUED BY THE 1ST RESPONDENT PANCHAYAT.

W.P.(C) No.23852 of 2023

Exhibit P9 TRUE COPY OF THE LETTER DATED 6.7.2023 ISSUED BY THE 2ND RESPONDENT, WHICH COMMUNICATED TO THE PETITIONER ON 13.7.2023.

Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 5.7.2023 IN W.P. NO. 11840/2023.

RESPONDENT EXHIBITS EXHIBIT R1(a) TRUE COPY OF LETTER NO.400573/RPT4/ GHPO/2023/1715(3) DTD. 26.06.2023 ISSUED BY 2ND RESPONDENT EXHIBIT R1(b) TRUE COPY OF JUDGMENT DTD. 07.06.2023 IN W.P.(C) NO. 39405 OF 2022