Dismissed

Nagalassery Grama Panchayat v. K.M.K. Granites

Kerala HC8 Jul 2019WP(C)/14221/2019

Case brief

AI extract

What is this about?

The High Court of Kerala quashed Tribunal orders directing the Panchayat Secretary to independently decide a quarry licence renewal. The Court reiterated that under the Kerala Panchayat Raj Act, trade licence applicants facing stop memos must have their applications considered by the Secretary after replying to the memo, following a procedure involving a hearing.

What did the court decide?

Directed the Secretary to consider the reply to the stop memo and decide the licence renewal application after hearing within two months.

Nagalassery Grama Panchayat Vs K.M.K. Granites — Property and Title | Kerala HC (2019)

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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 ANIL K.NARENDRAN

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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WP(C).No.14221 of 2019

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PETITIONERS:

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1 NAGALASSERY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KOOTTANAD P.O, PALAKKAD DISTRICT, PIN - 679 533.

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2 SECRETARY, NAGALASSERY GRAMA PANCHAYAT, KOOTTANAD P.O, PALAKKAD DISTRICT, PIN - 679 533.

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BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.K.N.REMYA KUM.ABHIRAMI K. UDAY SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SHRI.VISHNU V.K. SRI.V.VARGHESE

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RESPONDENTS:

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1 K.M.K. GRANITES, VELLADIKUNNU, NAGALASSERY P.O, PALAKKAD DISTRICT, PIN - 679 533, REPRESENTED BY ITS MANAGING PARTNER, RIYAS P.M.

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2 TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, PIN - 695 035.

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)14221 OF 2019

JUDGMENT

The 1^st petitioner in this writ petition is Nagalassery

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Grama Panchayat and the 2^nd petitioner is its Secretary. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 09.04.2019 of the Tribunal for Local Self Government Institutions in Appeal No.225 of 2019 filed by the 1^st respondent herein, challenging decision No.17(1) dated 28.02.2019 of the Panchayat Committee and subsequent communication dated 15.03.2019 issued by the 2^nd petitioner, who is the Secretary of the 1^st petitioner Grama Panchayat, rejecting the application for licence made by the 1^st respondent.

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By Ext.P3 order, the appeal filed by the 1^st respondent stands allowed, thereby setting aside decision No.17(1) dated 28.02.2019 and the 2^nd petitioner, who is the Secretary of the 1^st petitioner Grama Panchayat, has been directed to dispose of the application for licence (trade licence) submitted by the 1^st respondent independently, in the light of the discussion in that order. Paragraphs 6 to 8 and also the

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WP(C)14221 OF 2019

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last paragraph of the said order read thus;

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“6. The points that arise for consideration are:

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(i) Whether the appeal is liable to be allowed?

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(ii) Relief and cost?

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Point No.(i)

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The impugned order is produced as Ext.P5. Learned counsel for the applicant submitted that the impugned order is in violation of Section 185 B of Kerala Panchayat Raj Act and as such the same is unsustainable. As per Ext.P5 the Secretary has intimated the appellant regarding the rejection of application for license for the year 2019-20 since the Panchayat Committee as per decision No.17(1) dated 28.02.2019 has decided not to renew the license. Therefore, it is clear that the Secretary has rejected the application for renewal of D&O license for the quarry based on decision No.17(1) dated 28.02.2019 of Panchayat Committee. The authority to consider an application for D&O license is the Secretary and not the Panchayat Committee. Since the Secretary rejected the application for D&O license based on decision of Panchayat Committee, the same is in violation of Section 185B of Kerala Panchayat Raj Act. More over the reason for rejection of renewal is public protest. Public protest is not at all a ground for rejecting an application for renewal of licence. For these reasons the impugned order is unsustainable and is liable to be set aside. This point is found accordingly.

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Point No.(ii)

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Considering the finding in point No.(i) appeal is to be allowed.

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WP(C)14221 OF 2019 4

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In the result, appeal is allowed. The impugned order produced as Ext.P5 dated 15.03.2019 is set aside. Secretary is directed to dispose of the application for D&O license submitted by the appellant independently, in the light of the above discussion and to pass fresh orders within 15 days from the date of receipt of copy of this order.”

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Feeling aggrieved by Ext.P3 order of the Tribunal, the petitioners are before this Court in this writ petition, seeking various reliefs.

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On 23.05.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by speed post to the 1^st respondent, returnable within 10 days.

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On 04.06.2019, when this writ petition came up for consideration, the learned counsel for the 1^st respondent sought time to file counter affidavit. This Court granted two weeks' time to file counter affidavit and ordered that the implementation of Ext.P3 shall be deferred for a period of three weeks. The said interim order, which was extended from time to time, is still in force.

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A counter affidavit has been filed by the 1^st

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respondent, opposing the reliefs sought for in this writ petition.

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WP(C)14221 OF 2019

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The 1^st respondent has also filed I.A. No.1 of 2019, seeking an order to vacate the interim stay granted in this writ petition.

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The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 order dated 09.04.2019 of the Tribunal in Appeal No.225 of 2019.

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The pleadings and materials on record would show that the 1^st respondent, who is conducting a quarry in the property, having an extent of 2.3698 Hectares in Survey Nos.459/1B2B, 459/1B2C, 459/3pt, 459/5pt, has filed an application for renewal of licence (trade licence), which was rejected by decision No.17(1) dated 28.02.2019 of the Panchayat Committee on the ground that there is a public protest.

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During the course of arguments, the submission made by the learned counsel for the petitioners is that, at the time of filing of renewal application, a stop memo dated 14.03.2019 issued by the 2^nd petitioner, which is placed on record as Ext.P3 in Ext.P1 appeal filed before the Tribunal (at page No.35 of Ext.P1), was pending consideration and it was

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WP(C)14221 OF 2019

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ignoring the said fact that the Tribunal in Ext.P3 order directed the 2^nd petitioner, who is the Secretary of the 1^st petitioner Grama Panchayat, to consider that application for renewal of licence made by the 1^st respondent.

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The fact that the stop memo dated 14.03.2019 issued by the 2^nd petitioner is in force, is not disputed by the learned counsel for the 1^st respondent. However, the learned counsel would submit that against that stop memo, the 1^st respondent has already submitted a reply.

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In Kadaplamattom Grama Panchayat,

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Kottayam and Another v. Johny Roy [2013 (3) KLT 1053] , a Division Bench of this Court held that, when a composite application is submitted by a person under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994, a decision to grant a license or permission under Section 233 is to be taken by the Village Panchayat and the decision to issue license under Section 232 is to be taken by the Secretary. If the Panchayat decides not to grant permission under Section 233, the Secretary cannot separately consider the application under Section 232 read with Kerala Panchayat Raj (Issue of

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Licence to Dangerous and Offensive Trades and Factories) Rules, 1996. In instances covered by Section 233 of the Act, only after permission is obtained under Section 233 does the question of granting license under Section 232 arises. But in a case where the applicant does not employ power of any form, apparently a situation as contemplated under Section 233 may not arise. There could be a situation where even without an application being filed under Section 233 an application is required to be submitted under Section 232 read with D&O rules. In such situations, the Secretary will be the only authority to decide whether the license could be granted or not. But such conferment of power does not mean to indicate that the Village Panchayat has no powers in the matter relating to the grant or refusal of permission under Section 233 of the Act.

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Having considered the submissions made by the learned counsel on both sides, this Court finds that, when an application for licence (trade licence) is made by the 1^st respondent in view of the law laid down in the decision referred to supra, such application has to be considered by the 2^nd

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petitioner, who is the Secretary of the 1^st petitioner Grama Panchayat and not by the Panchayat Committee. Before taking a decision on that application, the 2^nd petitioner has to take an appropriate decision on the reply, if any, submitted by the 1^st respondent to the stop memo dated 14.03.2019.

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In such circumstances, this writ petition is disposed of by directing the 2^nd petitioner to consider the reply, if any, submitted by the 1^st respondent to the stop memo dated 14.03.2019 and take appropriate decision, with notice to the petitioners and after affording an opportunity of being heard. Thereafter, it is for the 2^nd petitioner to consider the application for renewal of licence (trade licence) made by the 1^st respondent for the period 2019-20 and take appropriate decision, strictly in accordance with law, with notice to the 1^st respondent and after an opportunity of being heard. The entire exercise in this regard shall be completed within two months from the date of receipt of a certified copy of this judgment.

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Sd/- ANIL K. NARENDRAN JUDGE

APPENDIX

PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF APPEAL ALONG WITH ITS EXHIBITS FILED UNDER SECTION 276(5) OF THE KERALA PANCHAYATH RAJ ACT, 1994.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT/OBJECTION FILED BY 1ST RESPONDENT IN APPEAL NO.225/2019. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 09.04.2019 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 30.10.2018 OF THIS HONOURABLE COURT IN WP(C)NO.16312/2018. EXHIBIT P5 TRUE COPY OF THE NOTICE NO.A49672/2018 DATED 11.12.2018. EXHIBIT P6 TRUE COPY OF THE REPLY DATED 22.12.2018. EXHIBIT P7 TRUE COPY OF DECISION NO.17(1) DATED 28.02.019 OF THE PANCHAYAT COMMITTEE.

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RESPONDENT'S EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE

Nagalassery Grama Panchayat v. K.M.K. Granites

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Nagalassery Grama Panchayat v. K.M.K. Granites

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