Kerala High Court
Unknown vs By Advs.Sri.P.K.Suresh Kumar (Sr.)
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940
WP(C).No. 17733 of 2018
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PETITIONER
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MOHAMMED NISAR,
MANAGING PARTNER, MAJESTIC GRANITES,
MUKKAM, KOZHIKODE DISTRICT.
BY ADVS.SRI.P.K.SURESH KUMAR (SR.)
SRI.K.P.SUDHEER
SMT.C.K.SHERIN
RESPONDENT(S):
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1 URANGATTIRI GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, URANGATTIRI P.O.,
MALAPPURAM DISTRICT, PIN - 673 639.
* ADDL R2 IMPLEADED
2. N.K SUDHAKARAN,AGED 42 YEARS,
S/O VELAYUDHAN,RESIDING AT NEELAMKUNNUMMAL HOUSE,
KATTIYADIPOYIL,POOVATHIKKAL (P.O),AREEKODE,
MALAPPURAM DISTRICT.
* ADDL R2 IMPLEADED AS PER THE ORDER DATED 02.07.2018 IN IA NO.10502/2018
R1 BY SRI.S.SHYAM KUMAR
R2 BY ADVS. SRI.S.M.PRASANTH
SRI.T.H.ARAVIND
SRI.BONNY BENNY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 17733 of 2018 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF LETTER OF INTENT NO. 11145/M3/2015
DATED 18.07.2017 ISSUED BY THE DIRECTOR OF MINING
& GEOLOGY.
EXHIBIT P2 TRUE COPY OF 'CONSENT TO OPERATE' DATED
31.08.2017 ISSUED BY THE KERALA STATE POLLUTION
CONTROL BOARD.
EXHIBIT P3 TRUE COPY OF PERMIT DATED 14.01.2016 ISSUED BY
PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION.
EXHIBIT P4 TRUE COPY OF ENVIRONMENTAL CLEARANCE NO.
37/2017 DATED 29.05.2017 ISSUED BY THE STATE
ENVIRONMENT IMPACT ASSESSMENT AUTHORITY.
EXHIBIT P5 TRUE COPY OF REPORT DATED 01.01.2018 SUBMITTED
BY THE SECRETARY OF THE RESPONDENT PANCHAYAT.
EXHIBIT P6 TRUE COPY OF ORDER NO. A6-6148/17 DATED 20.01.2018
ISSUED BY THE RESPONDENT PANCHAYAT.
EXHIBIT P7 TRUE COPY OF MINUTES OF THE MEETING DATED
20.01.2018 OF RESPONDENT PANCHAYAT.
EXHIBIT P8 TRUE COPY OF D & O LICENSE DATED 18.01.2018 ISSUED
BY THE RESPONDENT PANCHAYAT TO ONE
JYOTHISHKUMAR.
EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 04.04.2018 IN
W.P.(C)NO.4269/2018 PASSED BY THIS HON'BLE COURT.
EXHIBIT P10 TRUE COPY OF COMMUNICATION DATED 22.05.2018
ISSUED BY THE SECRETARY OF THE RESPONDENT
PANCHAYAT TO THE PETITIONER.
EXHIBIT P11 TRUE COPY OF DECISION NO. 4(1) DATED 21.05.2018 OF
THE PANCHAYAT COMMITTEE OF RESPONDENT.
EXHIBIT P12 TRUE COPY OF MINUTES OF THE STANDING
COMMITTEE DATED 18.05.2018.
RESPONDENT(S)' EXHIBITS
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EXHIBIT-R2(A): PHOTOSTAT COPY OF THE REPRESENTATION DATED
28/05/2015 BEFORE THE ASSISTANT DIVISIONAL
OFFICER, FIRE & RESCUE SERVICES MALAPURAM.
EXHIBIT-R2(B): PHOTOSTAT COPY OF THE RTI QUESTIONNAIRE DATED
10/04/2018.
EXHIBIT-R2(C): PHOTOSTAT COPY OF THE REPLY TO THE RTI DATED
5/5/2018.
EXHIBIT-R2(D): PHOTOGRAPHS OF THE PUBLIC ROAD.
WP(C).No. 17733 of 2018 (N)
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EXHIBIT-R2(E): PHOTOSTAT COPY OF THE ORDER
NO.95/B2/2012/MLP/KSCSCST DATED 10.6.2016.
EXHIBIT-R2(F): PHOTOSTAT COPY OF THE NEWSPAPER ARTICLE
PUBLISHED IN MALAYALA MANORAMA DATED
24.5.2018.
EXHIBIT-R2(G): PHOTOSTAT COPY OF THE ORDER NO.E7/66463/12 BY
DISTRICT COLLECTOR MALAPPURAM DATED 3.10.2015.
/TRUE COPY/
K.V. P.S.TO JUDGE
03.08.2018
SHAJI P. CHALY, J.
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W.P.(C) No.17733 of 2018
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Dated this the 31st day of July, 2018
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P11 proceedings of the President of the 1st respondent Grama Panchayat, whereby the licence sought for by the petitioner to start a quarry was declined, stating that there are large number of quarries functioning within the Panchayat area and majority of the members of the Panchayat have objected the issuance of fresh licence to the petitioner. Material facts for the disposal of the writ petition are as follows:
2. The Director of Mining and Geology granted a letter of intent in favour of M/s. Majestic Granites, a partnership firm, of which the petitioner is the Managing Partner. By the letter of intent, a quarrying lease in respect of 3.9590 hectares of land within the limits of the 1 st respondent Panchayat was decided to be granted in favour of the firm. However, it was directed that a mining plan and an Environmental Clearance have to be obtained. Similarly, consent from the Pollution W.P.(C) No.17733 of 2018 2 Control Board, Explosive licence, and licence from the local authority were directed to be secured, evident from Ext.P1 letter of intent. Accordingly, Ext.P2 consent from the Pollution Control Board and Ext.P3 permit from the authorities under Petroleum and Explosives Safety Organization were also obtained by the petitioner. As per Ext.P4, the State Environment Impact Assessment Authority conducted a detailed study and has granted an Environmental Clearance also. The mining plan prepared in respect of the project was approved by the Geologist.
3. According to the petitioner, after obtaining the aforesaid permits and grants, petitioner approached the 1 st respondent Panchayat for issuance of necessary permit/licence under the Dangerous and Offensive Trades Rules. The Secretary of the Panchayat conducted an enquiry on the basis of the application, and also taking into account the two complaints filed by third persons pretending to be local residents. After enquiry, the Secretary submitted a report stating that the licence could be granted as the complaints are frivolous, and that the petitioner has all the required permits and grants from all the authorities, evident from Ext.P5 report. W.P.(C) No.17733 of 2018 3
However, the committee of the Panchayat, as per Ext.P6 order, without assigning any reason, rejected the application, stating that, most of the members of the Panchayat committee opposed the grant of licence.
4. Petitioner has secured Ext.P7 copy of the minutes from the Panchayat, and it is found that the members who opposed the grant of licence have not stated anything against the same, but simply asserted that licence shall not be granted. According to the petitioner, such an attitude from the side of the Panchayat is unsustainable in law, and is not in consonance with the basic principles of the Constitution of India, and is opposed to the fundamentals of a democratic polity. Thereupon, petitioner has challenged Ext.P6 by filing W.P.(C) No.4269 of 2018, in which a counter affidavit is filed by the Panchayat, stating that, Panchayat is of the firm belief that granting of licence to the petitioner would be opposed to public interest. However, according to the petitioner, no material was relied upon by the Panchayat. In the reply affidavit thereto, it is pointed out by the petitioner that Panchayat had granted licence on 18.01.2018 in favour of one Jyothishkumar who submitted application along with the W.P.(C) No.17733 of 2018 4 petitioner, and a copy of the licence so issued to the said person is produced as Ext.P8.
5. After elaborate consideration of the matter, this Court has passed Ext.P9 judgment, holding that the Panchayat did not assign any reason for rejecting the application of the petitioner, and the decision of the Panchayat has to be based on legally valid reasons to justify denial of permission to one person alone. Accordingly, the proceedings of the Panchayat were quashed and the committee was directed to pass fresh orders in the matter, after hearing the petitioner and after taking note of Ext.P5 recommendation by the Secretary of the Panchayat. It was also directed to take note of the judgment of this Court in 'Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd.' [2016 (2) KLT 219].
6. Now, the Panchayat has again declined licence to the petitioner, vaguely stating that several quarries are functioning within the limits of the Panchayat, and therefore, the application of the petitioner is rejected. The communication issued by the Secretary is produced as Ext.P10 and the decision of the Panchayat is produced as Ext.P11. The minutes of the Standing Committee which considered the matter and W.P.(C) No.17733 of 2018 5 heard the petitioner is produced and marked as Ext.P12. According to the petitioner, the view taken by the Panchayat that there are several quarries functioning in the Panchayat cannot be sustained under law, since it is absolutely illegal and the said subject matter was considered by this Court in Ext.P9 judgment, and on finding that justifiable and valid reasons are not assigned, it was set aside and sent back. According to the petitioner, since all the authorities have provided consents/permits to the petitioner, the respondent Panchayat is duty bound to issue licence to the petitioner, especially in view of the proposition of law laid down by this Court in the judgment in 'Ramapuram Grama Panchayat' (supra).
7. The 2nd respondent got himself suo motu impleaded by filing I.A.No.10502 of 2018, styling himself as the Chairman of the Chekkunnumala Welfare Samithi, a Samithi formed by the people residing near the proposed quarry. The 2nd respondent has filed a detailed counter affidavit, refuting the the claims and demands raised by the petitioner. According to the 2nd respondent, Ext.P4 licence is granted by the State Environment Impact Assessment Authority without following the proper procedures prescribed under the Rules. That apart, W.P.(C) No.17733 of 2018 6 it is submitted that, various complaints have been raised by the public against the proposed quarry and none of them were heard or referred by the Authority before granting the permission, even though the Rules demand the same. The 2nd respondent himself had filed various written complaints before different authorities. Ext.R2(a) is a representation made before the Assistant Divisional Officer, Fire & Rescue Services, Malappuram. It is further pointed out that, the State Environment Impact Assessment Authority has intentionally avoided such obligations. Various other contentions are also raised and produced several documents secured by the 2nd respondent under the Right to Information Act in order to show that the road is too narrow, and it is impossible to carry out rescue operations, if any casualty arises.
8. That apart, Ext.R2(e) is produced, which is an order passed by the Kerala State SC/ST Commission, making stringent restrictions with respect to quarrying activities in Chekkunnu Hills, wherein the site for the proposed quarry is located. According to the 2nd respondent, the averment made that there is no forest land within 5 kms. is not true, and it would be revealed from the sketch of Block No.27 in the W.P.(C) No.17733 of 2018 7 records of the 1st respondent Panchayat. Other contentions are also raised to state that, if quarrying operations are permitted, there is a likelihood of landslide in the area, since the proposed site is situated in highly critical areas, and a Malayalam daily has published a news item, produced as Ext.R2(f) in that regard. That apart, it is submitted that, the Explosive Licence granted by the Deputy Chief Controller of Explosives is arbitrary and clear exploitation of the powers granted under the Explosives Act, 2008. Other contentions are also raised by the 2nd respondent to justify the action of the Panchayat.
9. I have heard learned counsel for the petitioner, learned counsel appearing for the 1st respondent Grama Panchayat and the learned counsel appearing for the additional 2nd respondent. Perused the documents on record and the pleadings put forth by the respective parties.
10. The question to be considered is, whether any manner of interference is warranted to Ext.P11 order passed by the 1st respondent Panchayat. As I have pointed out above, it remains undisputed that petitioner has secured consents/permissions from all the statutory authorities in order W.P.(C) No.17733 of 2018 8 to conduct quarrying operations in Re-survey Nos.147/2, 149/1, 149/2, 150/1, 150/3, 151/1 and 151/2 in Vezhakkodu Ward of the 1st respondent Panchayat. When licence was declined as per Ext.P6, petitioner has approached this Court and secured Ext.P9 judgment, whereby the Panchayat was directed that fresh orders shall be passed, after hearing the petitioner and taking note of Ext.P5 recommendation therein made by the Secretary of the Panchayat . It is also held that, Ext.P6 order thereunder cannot be legally sustained. The reason assigned in Ext.P6 for declining licence was that majority of the members opposed the grant of licence. However, in the fresh order passed by the Panchayat, based on Ext.P9 direction, the reason assigned is that, since in the Panchayat various quarries are operating, majority of the members expressed their dissent for providing licence to a new quarry.
11. Section 232 of the Kerala Panchayat Raj Act, 1994, deals with grant of a licence. The Kerala Panchayat Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, deals with issuance of licence to such establishments. As per Rule 6, the President is vested with W.P.(C) No.17733 of 2018 9 powers to pass an order in writing and subject to such restrictions and regulations as he thinks fit, to issue such licence or in public interest refuse to issue the same, and in the case of refusal of licence, the reasons for such refusal shall be mentioned in such order. As per S.R.O. No.674/2017 dated 31.10.2017, the Rules specified above is amended which became operative at once. After Rule 5 of the existing Rules, Rule 5A is added, which read thus:
b