Kerala High Court
M/S Safa Stone Crusher vs The Secretary on 6 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941
WP(C).No.5422 OF 2019(C)
PETITIONER/S:
M/S SAFA STONE CRUSHER,
AGASTIAMOOZHI, MUKKOM P.O.KOZHIKODE 673 602,
REPRESENTED BY ITS MANAGING PARTNER, SHAHUL HAMEED
K.T.S/O MUHAMMED HAJI.
BY ADVS.
SRI.PHILIP J.VETTICKATTU
SMT.ANEY PAUL
RESPONDENT/S:
1 THE SECRETARY, MUKKOM MUNICIPALITY,
MUKKOM P.O.KOZHIKODE-673 602.
2 THE MUKKOM MUNICIPALITY,
MUKKOM P.O., KOZHIKODE, PIN- 673 602, REPRESENTED BY
ITS SECRETARY.
3 ADDL.R3. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT
AUTHORITY,
(SEIAA KERALA), REPRESENTED BY ITS CHAIRMAN,
DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE,
PALLIMUKKU, PETTAH P.O., TRIVANDRUM-695 024. IS
IMPLEADED AS ADDITIONAL R3 AS PER THE ORDER DATED
06.03.2020 IN IA NO.2/2019 IN WP(C) NO.5422/2019.
R1-2 BY ADV. SRI.SURESH KUMAR KODOTH
R1-2 BY ADV. SRI.K.P.ANTONY BINU
OTHER PRESENT:
SRI.M.P.SREEKRISHNAN, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5422 OF 2019(C) 2
'CR'
ALEXANDER THOMAS, J.
-----------------------------------------
W.P.(C.) No. 5422 of 2019
-----------------------------------------
Dated this the 6th day of March, 2020
JUDGMENT
The case set up in the above W.P.(C.) is as follows :
That the petitioner had been conducting quarrying operations in Sy.No.147/2A2 and 149/sB1 of Thazehkkad Village, Kozhikode Taluk, which falls within the erstwhile Mukkom Grama Panchayat since the year 2010 onwards. The quarry was originally established in the year 2005. the Mukkom Grama Panchayat has been renewing the license from time to time till 2016. In the year 2016, in the light of the settled law by this Hon'ble Court vide [2016(1) KLT 75], that Environmental clearance is necessary for conducting quarrying operations even on the basis of Permits, the Geologist stopped issuing permits to the petitioner. In the meanwhile, the Mukkom Grama Panchayat was constituted as a Municipality by November, 2016. In the meanwhile, the petitioner had obtained necessary Environmental Clearance, Letter of intent from the Mining & Geology Department of quarrying lease, Explosive License, Consent to operate from the Pollution Control Board etc. The petitioner had approached the 1st respondent for the grant of license. The application WP(C).No.5422 OF 2019(C) 3 submitted by the petitioner for the period 2017-2018 and for the subsequent year were rejected earlier, which result in filing of W.P.(C.) No.4112/2018 and W.P.(C.) No.13134/2018, which were disposed of by this Court vide a common judgment viz Ext.P10. Vide Ext.P10, this Court directed the 1st respondent to consider the application afresh. However, the 1st respondent rejected the same for the very same reason for which the earlier applications were rejected (Ext.P11). The 1 st respondent has referred to Rule 18 of Kerala Municipality (Licensing to Dangerous and Offensive Trades & Other Trades & Factories) rules, 2011 (hereinafter be referred to as Rules 2011 for brevity) for rejecting the application submitted by the petitioner for a license. However, Rule 18 does not apply to quarrying unit.
Hence, the impugned order is absolutely illegal in so far as quarrying unit is concerned.
2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers.
1. "Issue a Declaration declaring that Rule 18 of the Rules, 2011 does not apply to granite quarries.
2. Issue a declaration declaring that Rule 18(1)(iv) and (v) is ultravires, to Article 19(1)(g) and 21 of the Constitution of India and unworkable and irrational.
3. Issue a writ of certiorari, or any other appropriate order, writ or direction quashing Ext.P11.
4. Issue a writ of Mandamus or any other appropriate order, writ or direction directing the respondents to grant license to the petitioner for conducting quarrying operations by allowing Ext.P8 application and
5. To grant such other reliefs as this Hon'ble Court may deem just and fit in the circumstances of the case."
3. Heard Sri. Philp J.Vettickattu, learned counsel appearing for the petitioner, Sri.Suresh Kumar Kodoth, learned counsel appearing for the WP(C).No.5422 OF 2019(C) 4 respondents-Mukkom Municipality and Sri.M.P.Sreekrishnan, learned standing counsel appearing for Kerala State Environment Impact Assessment Authority, additional respondent No.3.
4. The order under challenge in this case is Ext.P11 proceedings dated 25.7.2018 passed by the 1st respondent Secretary of the Mukkom Municipality, whereby the application submitted by the petitioner for grant of license to conduct the quarry has been rejected on the ground that the proposed site of the quarry is within the distance of 125 metres from the public road, viz, Mukkom-Thamarassery road and therefore, if license is granted to the quarry will amount to violation of the provisions contained in the Kerala Municipality (Licensing to Dangerous and Offensive Trades & Other Trades & Factories)Rules, 2011 (in short 'Municipal Rules, 2011'). It is pointed out that the said Municipal Rules, 2011 does not permit quarrying operations within 500 metres from the National Highways and State Highways.
5. From the pleadings and materials on record, it is seen that the petitioner herein has secured letter of intent issued by the Director of Mining and Geology for fresh quarry lease as can be seen from Ext.P4 dated 7.12.2016. It is also seen that the petitioner has also secured environmental clearance under the provisions of the notifications issued under the Environmental Protection Act, 2006 as per Ext.P12 proceeding dated 22.11.2017 for conducting such quarrying activities. By Ext.P5 dated WP(C).No.5422 OF 2019(C) 5 31.3.2020, the petitioner has also obtained the requisite explosive license. Further it is seen that by Ext.P6 dated 23.3.2018, the Kerala State Pollution Control Board has issued the renewed consent to operate the quarrying unit. The petitioner would point out that as he has obtained all the requisite formalities of the primary authorities, he had thereafter submitted Ext.P8 application for the formal grant of the trade/D&O license to be issued by the respondents Mukkom Municipality and the said Ext.P8 application filed under Sec.447 of the Kerala Municipalities Act, 1994 for securing license for a period of 5 years from 2018 onwards along with the requisite clearance from the statutory authorities as mentioned hereinabove. The petitioner would point out that after the petitioner has submitted Ext.P8 application before the 2nd respondent Secretary of the Munkkom Municipality or its authorised officer and they have not intimated the petitioner that any of the requisite documents or clearance are not been placed on record or there are any defects in the said application.
6. Now, Ext.P8 application submitted by the petitioner for grant of D&O/trade license has been rejected by the respondent Mukkom Municipality as per the impugned Ext.P11 order dated 25.7.2018, citing the abovesaid grounds. It is pointed out that there is a public road i.e., Mukkom - Thamarassery road, which is within 124 metres from the proposed quarrying site. The petitioner would strongly urge that the said WP(C).No.5422 OF 2019(C) 6 Mukkom -Thamarassery road is not a State Highway as understood under the provisions of the State Highways Act or it is also not a National Highway as understood under the National Highways Act. Further, very particularly, the petitioner would contend that none of the provisions in the Municipality Rules 2011 contemplates that the license to the quarrying operation is to be refused if a quarrying site is situated within 500 metres from a National Highway or State Highway.
7. It is pointed out Rule 18 of the abovesaid Municipality Rules 2011 thereof deals with licenses to be issued to the stone crusher units and Rule 18 (v) thereof stipulates that such license shall not be granted to a crusher unit which is situated within a distance of 500 metres from a State Highway or a National Highway. It is pointed out that none of the provisions contained in the abovesaid Municipality Rules have a provision that license to a quarrying unit shall not be granted in the quarrying site situated within the said distance of 500 metres from a State Highway or a National Highway or any such other restriction. It is pointed out that Rule 18 deals only with stone crusher units and has no application for a quarrying site. Further, it is also urged by the petitioner that the primary legislation which regulates mining activities in relation to major minerals and minor minerals is the Mines and Minerals (Development and Regulation) Act, 1957 and Kerala Minor Mineral Concession Rules, 2015 has been framed by the State Government by virtue of the enabling powers WP(C).No.5422 OF 2019(C) 7 for rule making conferred as per the said central Act.
8. Further, in that regard, it is pointed out that the said statutory provision would prescribe as per Rule 14(1) of the Kerala Minor Mineral Concession Rules, 2015 that the quarrying unit shall not lie within 50 metres distance from the public road. It is on the basis of this primary legislation that regulates the quarrying activity, whereby the Director, Mining and Geology, who is the authority under the Kerala Minor Mineral Concession Rules, 2015 has granted the quarrying lease in favour of the petitioner, it is pointed out.
9. Accordingly, it is urged by the counsel for the petitioner that ground of rejection cited by the respondent-Municipality in the impugned Ext.P11 order dated 25.7.2018 is untenable and unsustainable in law and is liable to be quashed by this court.
10. Per contra, Sri.Suresh Kumar Kodoth, learned counsel appearing R1 and R2, Mukkom Municipality would point out on the basis of the pleadings in the counter affidavit filed by his parties that though Rule 18 of the Municipality Rules 2011 deals with stone crusher units, it has to be borne in mind that conduct of a quarry is more dangerous to the public than a crusher unit, which would be mainly functioning in a enclosed premises like a factory and that therefore, the said guideline contained in Rule 18(v) would also be invoked by the respondent Municipal authorities while dealing with trade/D&O license to be granted to WP(C).No.5422 OF 2019(C) 8 quarrying units etc.
11. On being queried, Sri.M.P.Sreekrishnan, learned standing counsel appearing for the additional 3rd respondent, Kerala State Environment Impact Assessment Authority has stated that the said authority has granted environment clearance to the petitioner as aforestated for the functioning of the quarrying unit.
12. It is to be noted that the respondent Municipal authority has not been able to point out to this Court any provision in the Kerala Municipality (Licensing to Dangerous and Offensive Trades & Other Trades & Factories) Rules, 2011 which stipulates any such distance restriction for grant of a license to a quarrying unit. The only provision that can be pressed into service by respondents 1 and 2 is Rule 18(v) of the abovesaid Municipality Rules. Rule 18 (v) reads as follows :
"dµ×V ÎicJßWÈßKí çÆÖàÏÉÞÄÏßçÜAᢠآØíÅÞÈÉÞÄÏßçÜAáÎáU Æâø¢ 500 ÎàxùßW µáùÕÞÏßøßAÞX ÉÞ¿áUÄÜï."
13. A reading of Rule 18 itself would indicate that it deals with scenarios of grant of license to stone crush ers. Rule 18(v) stipulates that trade/D&O license shall not be granted to a stone crusher unit, if the site is not situated within a distance of 500 metres from a State Highway or National Highway. The said provision can apply only in the matter of consideration of license for functioning of stone crusher unit and cannot be pressed into service as far as quarrying units are concerned. The counsel for the WP(C).No.5422 OF 2019(C) 9 petitioner has also now raised a contention that the Mukkom- Thamarassery road is not a State Highway or notified to be State Highway within the meaning of the State Highways Act and also it is not a National Highway as envisaged in National Highways Act.
14. It is pointed out that even if Mukkom-Thamarassery road is maintained by the Public Works Department of the State Government, that does not necessarily imply that it could be State Highway. The counsel for the respondents 1 and 2 would point out that such a factual case has not been stated in the pleadings in W.P.(C.). In view of the actual fact, this Court has already taken the view that the abovesaid Rule 18 of the Municipal Rules will not have any application to the functioning of the quarrying unit. This Court need not examine the abovesaid new contention urged by the counsel for the petitioner that the road in question is not a State Highway or National Highway. It is also to be borne in mind that the primary legislation which would apply in respect of the activity of mining of the major minerals and minor minerals is the Mines and Minerals (Regulation and Development) Act, which has been enacted by the Parliament. The said Central Act confers power on the State Government concerned to frame rules for regulating the activities in relation to minor minerals. Accordingly, the Government of Kerala has framed the Kerala Minor Minerals Concession Rules, 2015 and Rule 14(1) specifically envisaging that a quarrying unit cannot be permitted to WP(C).No.5422 OF 2019(C) 10 function if the quarrying site is situated within 50 metres from the public roads. The Parliament has envisaged that the power to frame rules to regulate the activities of mining of minor minerals is entrusted with the State Governments concerned and for the exercise of the said power, Government of Kerala has framed the abovesaid Kerala Minor Mineral Concession Rules, 2015 and therein the statute regulates the said activity of the quarrying and Rule 14(1) of the KMMC Rules provides that quarrying activity cannot be permitted to quarrying sites,which is within 50 metres distance from the public roads. When the primary law places such a restriction regarding minimum distance to be maintained as between the quarrying site and the public roads, the said statutory provision should be seen as the primary provision, which has to be relied on.
15. In the light of these aspects, it is only to be held that the impugned decision reflected in Ext.P11 is not legally tenable or sustainable. It also appears that the petitioner has secured all the other necessary permissions and licenses for the conduct of the quarry. Accordingly, the impugned decision as per Ext.P11 is liable to be quashed by this Court.
16. The following aspects relating to the provisions contained in the Kerala Municipality Act, 1994 and the Kerala Panchayat Raj Act, 1994 would be relevant in this case. The provisions contained in Sec.233(3) of the Kerala Panchayat Raj Act, 1994 as it stood prior to the amendment made with effect from 7.4.2018, provided as follows : WP(C).No.5422 OF 2019(C) 11
"The Secretary 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 the 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 in sub-section (4) may as expeditiously as possible, at any rate within sixty days.
(a) grant the permission either absolutely or subject to such conditions as it thinks fit to impose or
(b) grant the permission for the reasons to be recorded."
17. Thereafter, the abovesaid provisions have been amended and the provisions in Sec.233(3) of the Kerala Panchayat Raj Act, 1994 as it stood after the amendment made with effect from 7.4.2018 provides as follows :
"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, workplace or other installation of the machinery or manufacturing plant, for which permisison 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 report of the Secretary and of such other authorities as specified in sub-section (4) may as expeditiously as possible, within thirty days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose."
18. Construing the abovesaid amended provisions of Sec.233(3) of the Kerala Panchayat Raj Act, 1994, the Full Bench of this Court in case in Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)] has held in para No. 22 thereof as follows :
22. "Under the amended provisions of sub-section (3) of S.233 of the Act, the Secretary or the officer authorised by him should conduct an enquiry and submit report to the Village Panchayat as to whether the establishment of the factory, workshop, workplace or other installation of machinery or manufacturing plant, for which the permission is applied for, is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution. The Village Panchayat on consideration of the application and the report of the Secretary and of such other authorities as specified in 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. Sub-clause (a) and
(b) of sub-section (3) contained in the unamended provisions were omitted through the amendment. Sub-clause (b) of sub-section (3) which enabled the Village WP(C).No.5422 OF 2019(C) 12 Panchayat to refuse the permission for reason to be recorded, was omitted from the statute book. It gives a clear indication that the power of the Village Panchayat to refuse the permission has been taken away by the legislature."
19. The corresponding provisions in the Kerala Municipality Act, 1994 are those in Sec.447(3) thereof. Sec.447(3) of the Kerala Municipality Act, 1994 as it stood prior to the abovesaid amendment made effective from 7.4.2018 provided as follows :
"The power to grant a license, after factual verification, on an application requesting sanction for using a place in the municipality area for starting an industry factory of workplace or for running a trade or service in such manner as may be prescribed or to reject the same in public interest, on reasonable grounds, by an order in writing shall be vested in the Council and the Secretary shall, after detailed enquiry and collection of information furnish a report to enable the Council to take an appropriate decision in the matter. The decision of the Council shall be intimated to the applicant within thirty days from the date of receipt of the application. In cases where additional information has to be collected from the applicant or other authorities, the aforesaid period shall be deemed to have been extended taking into account the delay for the same. Information regarding such unavoidable delay shall be intimated to the applicant by the Secretary in time."
20. The provision contained in Sec.447(3) of the Kerala Municipality Act, 1994 after the amendment made effective from 7.4.2018, now stipulate as follows :
The Secretary or the Officer authorized by him shall, within five days from the date of receipt of all supporting documents along with the prescribed clearance from other departments or authorities, by order and subject to such terms and conditions, as he deems fit grant the license for use of the place for conducting any industries, factories, trades, entrepreneurship activities or other services as the case may be.
21. Since the abovesaid provisions in both the abovesaid enactments relating to the power of the local authority concerned to deal with the grant of license are almost similar or identical, the dictum laid down by the Full Bench of this Court in para No.22 of the case in Tomy Thomas's case (supra) [2019 (3) KLT 987 (FB)], which is in the context of WP(C).No.5422 OF 2019(C) 13 the provisions contained in Sec. 233(3) of the Kerala Panchayat Raj Act, 1994 would apply in the equal rigour in the case of provisions contained in Sec. 447 (3) of the Kerala Panchayat Raj Act, 1994 as well.
22. Accordingly, the learned counsel appearing for the petitioner would vehemently urge that in view of the abovesaid amendment made effective from 7.4.2018, the competent authority of the Municipality is also divested of the power to refuse or reject the license etc. Per contra, Sri.Suresh Kumar Kodoth, learned counsel appearing for respondents 1 and 2 would point out that the amendment should also be construed in the light of the elementary provisions in general law that the power to grant would also be inclusive of the power to revoke or cancel and that aspect of the matter contained in general law is also contemplated in the provisions of the Central General Clauses Act as well as the Travancore-Cochin General Clauses Act.
23. In the facts and circumstances of this particular case, this Court need not burden itself with the resolution of the said rival pleas now made by the parties. In the instant case, the sole ground of rejection as per the impugned Ext.P11 proceedings is on the basis of Rule 18(v) of the Municipality Rules, 2011. The petitioner has obtained all the requisite licenses and permissions from the primary authority concerned (Director of Mining and Geology) as well as Environmental clearance from the 3 rd respondent, Kerala State Environment Impact Assessment Authority in WP(C).No.5422 OF 2019(C) 14 terms of the notifications issued under the Environment Protection Act as well as the explosive license and the renewed statutory consent to operate from the State Pollution Control Board.
24. Therefore, this is a fit case where this Court can exercise powers of judicial review so as to interdict the decision making process, so that not only the impugned decision is quashed, but also necessary mandamus and directions should also be issued. In that view of the matter, it is ordered that the impugned rejection under Ext.P11 proceedings will stand quashed and rescinded. The 1st respondent-Secretary of the Mukkom Municipality is directed to immediately pass appropriate orders granting license to the petitioner for conduct of the quarry in terms of the provisions contained in the Municipality Rules, 2011 without much delay, preferably within a period of 2 weeks from the date of production of a certified copy of this judgment for the period applied for as per Ext.P8 application.
With these observations and directions, the above W.P.(C.) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS WP(C).No.5422 OF 2019(C) 15 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2012-2013 EXHIBIT P2 TRUE COPY OF THE COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2013-2014 EXHIBIT P3 TRUE COPY OF THE COMPOSITE LICENSE CERTIFICATE ISSUED BY THE MUKKOM GRAMA PANCHAYAT FOR THE PERIOD 2015-2016 EXHIBIT P4 TRUE COPY OF LETTER INTENT DATED 7.12.2016 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF EXPLOSIVE LICENSE VAILED UPTO 31.3.2020 ISSUED BY THE DY.CHIEF CONTROLLER OF EXPLOSIVES.
EXHIBIT P6 TRUE COPY OF CONSENT TO OPERATE ISSUED BY
THE POLLUTION CONTROL BOARD, VALIED UPTO
21.11.2022
EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF MINUTES
OF THE 2ND RESPONDENT DATED 16.1.2018
DECIDING TO DISMISS THE APPLICATION OF THE
PETITIONER
EXHIBIT P8 TRUE COPY OF APPLICATION FOR RENEWAL OF
LICENSE SUBMITTED BY THE PETITIONER ON
28.2.2018
EXHIBIT P9 TRUE COPY OF LETTER DATED 8.3.3018 ISSUED
BY THE 1ST RESPONDENT REJECTING EXPT P8
EXHIBIT P10 TRUE COPY OF COMMON JUDGMENT DATED
12.7.2018 IN WPC NOS 4112/2018 AND
13134/2018 OF THIS HON'BLE COURT.
EXHIBIT P11 TRUE COPY OF ORDER DATED 25.7.2018 ISSUED
BY THE 1ST RESPONDENT REJECTING EXT P8
EXHIBIT P12 TRUE COPY OF RELEVANT PAGES OF
ENVIRONMENTAL CLEARANCE ISSUED BY THE
SEIAA, DATED 22-11-2017.
EXHIBIT P13 TRUE COPY OF ENVIRONMENT PLAN ALONG WITH
THE RELEVANT PAGES OF THE PRE-FEASIBILITY
REPORT, WHICH FORM PART OF THE APPLICATION
FOR ENVIRONMENTAL CLEARANCE.