Remanded

Joy Scaria v. Meenachil Grama Panchayath Committee

Kerala HC21 Mar 2013WP(C)/2798/2013

Case brief

AI extract

What is this about?

The petitioner, a quarry owner with a valid license, challenged an order by the respondent Panchayath refusing to permit quarry operations due to alleged procedural deficiencies. The court held that the Panchayath's conclusion on deficiencies was a factual question unsuitable for writ review but directed the petitioner to approach the Panchayath again after curing defects.

What did the court decide?

The petitioner directed to approach the Panchayath again after curing deficiencies; the Third Respondent to reconsider the matter within three weeks untrammeled by earlier findings.

Joy Scaria Vs Meenachil Grama Panchayath Committee — Service and Employment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934

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WP(C).No. 2798 of 2013 (Y)

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PETITIONER(S):

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JOY SCARIA, AGED 50 YEARS, S/O.SCARIA, PULIKKUNNEL HOUSE, POOVATHODE P.O., PALA, KOTTAYAM-686 578.

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BY ADVS.SRI.K.S.HARIHARAPUTHRAN

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SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.P.A.ISMAIL SRI.DIPU JAMES

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RESPONDENT(S):

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1. MEENACHIL GRAMA PANCHAYAT COMMITTEE, GRAMA PANCHAYAT OFFICE, EDAMATTOM P.O., PALA, KOTTAYAM-686 588, REP. BY ITS PRESIDENT.

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2. MEENACHIL GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, EDAMATTOM P.O., PALA, KOTTAYAM-686 588, REP. BY ITS SECRETARY.

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3. SECRETARY,MEENACHIL GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, EDAMATTOM P.O., PALA, KOTTAYAM-686 588.

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BY ADV. SRI.P.C.HARIDAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.NO.2798/2013 Y

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: TRUE COPY OF THE REPORT DATED 17.01.2012.

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EXHIBIT P2: TRUE COPY OF THE ORDER DATED 10.07.2012 IN APPEAL NO.126 OF 2012 OF THE TRIBUNAL.

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EXHIBIT P3: TRUE COPY OF THE LICENSE NO.A8-5427/2012 DATED 18.10.2012.

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EXHIBIT P4: TRUE COPY OF THE SITE LOCATION PLAN APPROVED BY THE ENVIRONMENTAL ENGINEER.

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EXHIBIT P5: TRUE COPY OF THE SURVEY PLAN DTD.03.12.2011.

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EXHIBIT P6: TRUE COPY OF THE NOTICE DATED 11.12.2012.

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EXHIBIT P7: TRUE COPY OF THE REQUEST DATED 14.12.2012.

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EXHIBIT P8: TRUE COPY OF THE INTERIM ORDER DATED 24.12.2012 IN WP(C) NO.31164 OF 2012.

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EXHIBIT P9: TRUE COPY OF THE ORDER NO.A8-5427/2012 DATED 26.12.2012.

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EXHIBIT P10: TRUE COPY OF THE REPLY DATED 31.12.2012 TO EXT.P9.

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EXHIBIT P11: TRUE COPY OF THE JUDGMENT DATED 03.01.2013 IN WP(C)NO.222 OF 2013.

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EXHIBIT P12: TRUE COPY OF THE ORDER DATED 01.01.2013.

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EXHIBIT P13: TRUE COPY OF COVER CONTAINING EXT.P12 RECEIVED BY THE PETITIONER.

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EXHIBIT P14: TRUE COPY OF THE REPORT ALONG WITH THE RE-FIXING SKETCH DATED 18.01.2013.

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EXHIBIT P15: TRUE COPY OF REPRESENTATION DTD.19.01.2013.

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EXHIBIT P16: TRUE COPY OF THE ORDER DTD. 11/02/2013 PASSED BY THE 3RD RESPONDENT.

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EXHIBIT P17: TRUE COPY OF AGREEMENT DTD. 13/12/2012 (2002).

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EXHIBIT P18: COPY OF RECEIPT DTD.04/02/2013. EXHIBIT P19: COPY OF MINUTES DTD. 15/10/2012. EXHIBIT P20: COPY OF COMMISSION REPORT DTD. 08/02/2013. EXHIBIT P21: COPY OF THE REPORT DTD. 9/03/2012. EXHIBIT P22: PHOTOGRAPH SHOWING THE INCIDENT ON 02/01/2013.

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RESPONDENTS' EXHIBITS:

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R3A: COPY OF THE COMPLAINT SUBMITTED BY THE ST.THOMAS CHURCH COMMITTEE.

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R3B: COPY OF THE COMPLAINT SUBMITTED BY THE ACTION COUNCIL.

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R3C: COPY OF THE SUB COMMITTEE REPORT.

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R3D: COPY OF THE ORDER.

/TRUE COPY/

P.A.TO JUDGE

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**A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.2798 of 2013

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Dated this the 21^st day of March 2013

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J U D G M E N T

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Petitioner, a quarry owner who had valid licence to conduct a quarry, challenges Ext.P16 order by which the Panchayath had refused to interfere with a stop memo issued based on certain allegations that the quarry is not being operated in accordance with the procedure prescribed. Initially, Panchayath had informed the petitioner that there

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were six short comings in the operation of the quarry.

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The petitioner had given necessary explanation and by virtue of a judgment of this Court in W.P.C.No.222 of 2013 produced as Ext.P11 the matter was considered by the Panchayath. According to the petitioner, all the short comings pointed out by the Panchayath had been rectified but still the Panchayath proceeded to pass Ext.P16 order confirming their decision not to permit the petitioner to operate the quarry temporarily.

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W.P.C.No.2798 of 2013 2

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As per Ext.P16 order, the Panchyath points out that there are four short comings. One is relating to the marking of the extent of 5 ares from among the larger extent of property for which the petitioner was permitted to carry on the quarry operations. The second is with reference

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to the agreement relating to appointment of a licenced blaster. The third is that the petitioner is not constructing fencing to prevent any damage to the nearby areas and the fourth relates to not exhibiting proper boards showing the licence number, period etc.

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The petitioner has a case that all the shortcomings now pointed out had in fact been rectified. But the Panchayath has taken a different view in the matter.

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Counter affidavit is filed by the Panchayath pointing out the deficiencies which had occurred in the operation of the quarry. Licence has been granted for operating the quarry on certain conditions and if the conditions are not complied with and if there is any violation

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W.P.C.No.2798 of 2013

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of the statutory Rules, it is open for the Panchayath to issue necessary stop memo which has been done in the case. The Panchayath has reiterated the fact that the deficiencies are still in existence and therefore the petitioner is not entitled to challenge Ext.P16.

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Having regard to the factual circumstances involved in the matter, it is clear that the Panchayath had formed an opinion that certain deficiencies were not cleared by the petitioner. This apparently is a question of fact which cannot be decided in a petition under Article 226 of the Constitution of India.

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But the fact remains that according to the petitioner, the shortcomings had already been rectified and the petitioner has valid documents to prove the same. In regard to the first deficiency, the petitioner points out that already measurements had been taken by the Taluk Surveyor and the said fact had been admitted by the Panchayath in the counter affidavit. But, according to the

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W.P.C.No.2798 of 2013

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Panchayath, the actual area of blasting has not been demarcated in the plan which is also required for the purpose of permitting the petitioner to operate the quarry. The petitioner shall appraise the Panchayat in regard to the same.

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In regard to the blaster licence, the deficiency pointed out is that the agreement Ext.P17 is dated 13/12/2002. Therefore, according to the Panchayath, it is not a valid agreement. It is open for the petitioner to produce the valid agreement showing the correct date and other particulars of the licence and the said document has to be produced before the Panchayath.

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It is submitted by the learned counsel for the petitioner that the entire 5 acres of land has been fenced. According to the petitioner, they have put up a temporary fence and only the access for vehicles is kept open. If that is the situation, I do not think that the said ground may have any relevance at all.

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W.P.C.No.2798 of 2013

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In regard to the 4^th deficiency regarding the sign boards, necessarily the petitioner will have to put up the sign boards showing licence number, period and other particulars that are required as per the Rules. This fact also requires to be convinced to the Panchayath authorities.

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Having regard to the facts and circumstances involved in the matter, I am of the view that the petitioner can again approach the Panchayath after curing all the deficiencies if any and the third respondent shall reconsider the matter and pass appropriate orders within a period of three weeks from the date of receipt of a copy of this judgment, untrammeled by any of the earlier findings.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.No.2798 of 2013 8

Joy Scaria v. Meenachil Grama Panchayath Committee

Case brief

What is this about?

What did the court decide?

Joy Scaria v. Meenachil Grama Panchayath Committee

Case brief

What is this about?

What did the court decide?

What the court decided

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