Kerala High Court
Alakode Grama Panchayat vs Kakkara Crushers Private Ltd on 1 October, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942
WA.No.1151 OF 2020
AGAINST THEJUDGMENT IN WP(C) 8218/2020(B) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 ALAKODE GRAMA PANCHAYAT,
ALAKODE P.O.,KANNUR-670 571,
REPRESENTED BY ITS SECRETARY.
2 SECRETARY,
ALAKODE GRAMA PANCHAYAT,
ALAKODE P.O., KANNUR-670 571.
BY ADV. SRI.GEORGE MECHERIL
RESPONDENT/PETITIONER:
KAKKARA CRUSHERS PRIVATE LTD.,
KUTHAMBALAM,KAKKARA P.O.,
KANNUR-670 306, REPRESENTED BY ITS MANAGING DIRECTOR
K.F.VARGHESE.
BY ADVS. SRI.T.B.HOOD
SMT.M.ISHA
SRI.AMAL KASHA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2020, THE
COURT ON 01-10-2020 DELIVERED THE FOLLOWING:
WA.No.1151 OF 2020 2
JUDGMENT
SHAJI P.CHALY,J This appeal is preferred by respondents i.e., the Alakode Grama Panchayat and its Secretary in W.P.(C)No.8218/2020 challenging the judgment of the learned Single Judge dated 28.7.2020, whereby the writ petition was allowed modifying Ext.P14 order passed by the Tribunal For Local Self Government Institutions in the appeal preferred by the writ petitioner/respondent. It was found that Ext.P14 order of the Tribunal clearly indicates that the Tribunal has made substantive findings in favour of the writ petitioner and has taken a technical view that the petitioner to cure the defects in its application as can be seen from the last paragraph of the order. It was further held that the Tribunal should not have taken such a technical stand and could have substantively allowed the plea of the writ petitioner and any minor technical defects in the application would have been directed to be cured by the writ petitioner. After entering into the findings accordingly, the impugned decision of the appellants rejecting Ext P7 Application submitted by the writ petitioner seeking licence to WA.No.1151 OF 2020 3 establish a quarry, as per Ext.P9 and P10 were quashed and the following directions were issued at paragraphs 12 and 13:-
12.However, the petitioner produce attested photocopies as well as the originals of the title deed and prior deed and should also furnish the details of the machinery proposed to be used by him for running of the quarrying unit in terms of item No.4 of Ext.P7 application. The petitioner may produce these documents before the 2nd respondent-Secretary of the Grama Panchayat after verification of the original deeds, the 2nd respondent-Secretary of the Grama Panchayat will return back the originals of the deeds after retaining the attested copies thereof. On the petitioner complying these requirements, the competent authority of the respondents will pass formal orders granting licence to the petitioner, as sought for in Ext.P7 application and this shall be done within 2 weeks from the date of production of the abovesaid documents and the requisite details, along with the certified copy of this judgment. In the meanwhile, it is ordered that the petitioner will stand permitted to operate the unit as already directed in the order dated 27.5.2020, subject to the condition that the petitioner should comply with all the terms and condition of the requisite clearances/consents/licences as aforesaid issued by the competent regulatory authorities concerned as well as the terms and conditions in the Panchayat licence.WA.No.1151 OF 2020 4
13. The impugned Ext.P14 order of the appellate Tribunal will stand modified as directed hereinabove."
2. It is thus challenging the legality and correctness of the judgement of the learned Single Judge, the appeal is preferred. Brief material facts for the disposal of the writ appeal are as follows;
3. Writ petitioner has submitted an application dated 26.4.2019 seeking a licence to establish a quarry in an extent of 2.9130 hectares of land comprised in Sy.No.100/2A of Thimiri Village, Taliparamba Taluk, Kannur District, evident from Ext.P7. Environmental clearance, consent from Pollution Control Board, NOC issued by the Additional District Magistrate etc. were produced along with the application. On 18.5.2019, the Panchayat Committee met and decided to constitute a sub committee to examine the feasibility of allowing the application and call for a report from the sub committee, evident from Ext.P8. On 21.6.2019 the Panchayat Committee met and examined the report of the sub committee and that of the recommendation of the Secretary, decided to accept the report of the sub committee and accordingly rejected Ext.P7 application vide Ext.P9 resolution. The said decision was communicated to the writ petitioner as per WA.No.1151 OF 2020 5 Ext.P10 dated 1.7.2019 by the Secretary of the Grama Panchayat.
4. It was thus aggrieved by Exts.P9 and P10 resolution of the Panchayat committee and consequential communication of the Secretary of the Panchayat respectively writ petitioner approached the Tribunal for Local Self Government Institutions. The Tribunal allowed the appeal as per Ext.P14 order dated 6.3.2020 setting aside Ext.P9 decision of the Panchayat committee and the consequential Ext.P10 communication of the Secretary. However, the Tribunal found that Ext.P7 application submitted by the writ petitioner was incomplete and defective as regards the requirements contained under column 4 of the application and also due to the non- production of documents of title, prior deeds and sketches and drawings sufficient to identify the property proposed for quarrying operations. The writ petitioner having been aggrieved by the findings rendered by the Tribunal so far as affecting the writ petitioner, Ext.P14 order of the Tribunal was challenged in the Writ Petition. The paramount contention advanced by the appellants is that, the learned Single Judge ought not have interfered with WA.No.1151 OF 2020 6 the order of the Tribunal, since the Tribunal has entered into such findings as Ext.P7 application was incomplete, and without the details the application could not have been processed by the Grama Panchayat and the Secretary. It is further pointed out that the directions issued by the learned Single Judge enables the writ petitioner to operate the quarry without securing an establishment licence.
5. It is also the contention of the appellants that, before the Tribunal the writ petitioner did not have a case that consequent to the default on the part of the appellants the writ petitioner has secured a deemed licence as is contemplated under section 236(3) of the Kerala Panchayat Raj Act, 1994, hereinafter called, 'Act, 1994' due to the failure on the part of the appellants to communicate the order within 30 days from the date of receipt of the application. That apart it is submitted that the sub committee appointed by the Panchayat committee did not recommend for grant of establishment licence due to the fact that the local residents raised serious objections against the grant of licence.
6. We have heard counsel for the appellants WA.No.1151 OF 2020 7 Sri.George Mecheril, and the learned counsel for respondent Sri.T.B.Hood and perused the pleadings and entire materials available on record.
7. The sole question arises for consideration is whether any interference is warranted to the judgment of the learned Single Judge ?Learned counsel for the appellants has advanced arguments based on the above contentions and also that the National Green Tribunal Principal Bench has passed an order dated 21.7.2020 prescribing a minimum distance criteria for permitting operation of stone quarry of 100 meters from any residential/public buildings/inhabited sites, locations to be considered by States when no blasting is involved in a quarry, and if and when a blasting is involved, the distance shall be 200 meters. It is therefore pointed out that even though the order was passed by the National Green Tribunal after the impugned decision was taken by the Panchayat, it was passed before the judgment was pronounced by the learned Single Judge on 28.7.2020.
8. Therefore, the sum and substance of the contention is that the learned Single Judge ought to have considered the writ petition taking into account the order passed WA.No.1151 OF 2020 8 by the National Green Tribunal.
9. On the other hand, learned counsel for the respondent/Writ Petitioner submitted that so far as the distance for operation of a quarry is concerned, it is taken care of under the provisions of the Kerala Minor Mineral Concession Rules and the distance is only 50 meters from any residential building and other public installations. Therefore, when the application was considered by the Panchayat as well as the Tribunal for Local Self Government Institutions, the distance that was applicable was only 50 meters from the objectionable installations. It is also pointed out that since decision was not taken by the Panchayat/Secretary within thirty days in contemplation of law, it is axiomatic that a deemed licence is accrued to the petitioner and it was the said circumstance that weighed with the learned Single Judge to modify the Order of the Tribunal and issue directions accordingly.
10. We have considered the rival submissions made across the Bar. In fact the issue relates to the grant of an establishment permit covered under section 233 of the Kerala Panchayat Raj Act, 1994. Sub-section(1) thereto WA.No.1151 OF 2020 9 stipulates that no person shall without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission.--
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or of other mechanical power or electrical power; or
(b) Install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the provisions of this Act or the rules made thereunder.
11. Sub-section (2) thereunder prescribes that an application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary or Officer authorized by the Secretary in such form and with such details as prescribed. Sub-Section (2A) states that the Secretary or the officer authorised by him shall, issue an acknowledgement to the applicant on receipt of application along with supporting documents in the form as may be prescribed and shall verify the application and all supporting documents on the spot itself, and if any supporting documents is not attached along with the application, the Secretary or Officer WA.No.1151 OF 2020 10 authorised by him, shall immediately inform the applicant in writing the list of missing documents and allow the applicant to submit the missing documents, as early as possible, but not later than five days from the date of receipt of the application. Sub-section (3) is very relevant to decide the issue, which read thus:
"(3) The Secretary or the Officer Authorised by him shall as soon as may be, after the receipt of the application enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution and the Village Panchayat, after having considered the application and the reports of the Secretary, and of such other authorities as specified sub-section (4) may, as expeditiously as possible at any rate within thirty days grant the permission either absolutely or subject to such conditions, as it thinks fit to impose."
12. It is clear that an outer time limit of 30 days is fixed to take a decision in an application submitted seeking a permit for establishment of a factory/Workshop or work place. It is true, as per sub-section (3), before granting permission under sub-section (3), the Secretary WA.No.1151 OF 2020 11 shall obtain and consider the report of the Inspector of Factories appointed under Factories Act, 1948 or of an Officer of the Industries Department not below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and other aspects apart from securing report of Divisional Fire Officer or any other Officer authorised by him regarding adequacy of fire prevention and fire fighting measures, if the proposed factory involves the use of high tension power or inflammable or explosive materials.
13. Anyhow, sub-section (6) thereto makes it imperative and clear that if any order on an application for permission under section 233 of Act, 1994 is not communicated to the applicant within 30 days from the date of receipt of application by the Secretary, the application shall be deemed to have been allowed for the period required in the application subject to the Act, Rules and Bye-laws and all conditions which would have been imposed and if any violation is noticed later, the Secretary shall have the power to cancel the licence after giving a show cause notice to the applicant stating the WA.No.1151 OF 2020 12 reason for such cancellation and after examining the submission if any made, within a time specified in the said notice and on such cancellation, the Secretary may impose a penalty on the applicant for an amount not exceeding Rs.5,00,000/-. The provisions of section 233 of Act, 1994 make it clear that it is a self contained code so far as consideration of an application for establishing a factory and installation of machinery. There is a structured formula provided under section 233 in order to consider the application for curing the defect and consideration of the application in accordance with other parameters and stipulations contained under section 233 of Act,1994 as amended by Act, 2018 published in the Kerala Gazette Extraordinary No.926 dated 7.4.2018.
14. However, it is made clear under sub-section (6) of section 233 of Act, 1994 that if any order on an application for permission under the section 233 of Act 1994 is not communicated to the applicant within 30 days from the date of receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period required in the application. True, the said deeming permission is subject to the Act, Rules WA.No.1151 OF 2020 13 and Bye-laws. But one thing is clear that, if the order is not communicated to the applicant within 30 days as prescribed, the deemed licence is automatic which stands unequivocal due to the imperative provisions of section 233 of Act, 1994. Anyhow the learned Single Judge has considered the issue of deemed licence taking into account the provisions of section 236(3) of Act, 1994 contained under Chapter XXIA dealing with General and Miscellaneous licences and permissions thereto.
15. However, we are of the considered opinion that the issue with respect to the application for establishment permit of an applicant is guided by the specific provisions of section 233 of Act, 1994. There is no dispute with respect to the date of application submitted by the writ petitioner and the final decision taken by the Panchayat and there is no case for the Panchayat that the order was communicated to the writ petitioner within 30 days from the date of receipt of the application as is contemplated under section 233(6) of Act, 1994. Anyhow if any nuisance is caused by factory, workshop etc. the Secretary is vested with powers under section 233A of Act, 1994 to take appropriate action WA.No.1151 OF 2020 14 after complying with the procedure contained thereunder.
16. The issues in question are also guided by the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996. Rule 12(3) specifies that, The village Panchayat shall, as soon as may be after receipt of application and within 30 days in all cases, grant the permission applied for either absolutely or subject to such condition as it thinks fit to impose, or if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance the Secretary shall as soon as may be after the receipt of application obtain an expert opinion of department concerned with regard to the determination of the nuisance or its abatement, at the cost of the owner or person in charge of the factory, workshop, workplace or machinery concerned and such report shall be furnished as soon as possible but not later than fifteen days of reporting of such nuisance and the Village Panchayat shall issue permission subject to such conditions as may be required for abatement of nuisance, if any, as recommended in the WA.No.1151 OF 2020 15 expert opinion of the concerned department. Other provisions are also contained under the Rules in order to deal with the application submitted and to tackle any situation after the grant of establishment permit. Anyhow there is no case for the Panchayat that any such eventuality has occurred during the pendency of the application. Admittedly Panchayat has not issued any notice to the writ petitioner to rectify any mistake or nuisance.
17. Taking into account all these aspects, we are of the considered opinion that the appellants have not made out any case justifying interference in the judgment of the learned Single Judge since we do not find any legal infirmity or other adverse legal consequences. But we make it clear that it is in accordance with our own findings in respect of the provisions of section 233 of Act, 1994 and Rules thereto. Therefore, needless to say the required consequential action in accordance with Act, 1994, after securing an establishment permit is to be undertaken by the writ petitioner.
18. Anyhow before we part with the judgment, since we are informed that the order of the National Green WA.No.1151 OF 2020 16 Tribunal as is specified above is under challenge in W.P. (C) No.15309/2020 and other connected writ petitions, the interim order passed by the learned Single Judge in those writ petitions dated 6.8.2020 would be applicable to the case in hand, and the establishment permit deemed to be granted would be guided by the further orders passed in the said writ petitions also.
Needless to say, writ appeal stands disposed of with the above modifications and subject to the observations made above in respect of the directions issued in W.P.(C) No.15305/2020 and other connected writ petitions dated 6.8.2020 and further orders to be passed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE