Remanded

Abid M.a., v. Karassery Grama Panchayat

Kerala HC14 Mar 2019WP(C)/736/2019

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting a quarrying D&O licence application due to procedural irregularity. The court directed the Secretary to reconsider the application under the correct statutory process and issue a notice within one month, aligning with Kerala Panchayath Raj Act provisions and precedent.

What did the court decide?

Ext.P6 order dated 21.05.2018 set aside. The 2nd respondent directed to consider the D&O licence application and pass appropriate orders within one month.

Abid M.a., Vs Karassery Grama Panchayat — Service and Employment | 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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THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940

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WP(C).No. 736 of 2019

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PETITIONER :

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ABID M.A., AGED 33 YEARS POYILIL HOUSE, KODIYATHOOR P.O., MUKKAM, KOZHIKODE673602.

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.SUZANNE KURIAN SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN

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RESPONDENTS:

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1 KARASSERY GRAMA PANCHAYAT, KARASSERY P.O., MUKKOM, KOZHIKODE-673602, REPRESENTED BY ITS SECRETARY.

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2 SECRETARY, KARASSERY GRAMA PANCHAYAT, KARASSERY P.O., MUKKOM, KOZHIKODE-673602.

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BY ADV. SRI.P.C.SASIDHARAN

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BY SRI MANU RAJ K.J, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 736 of 2019

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JUDGMENT

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The petitioner, who stated to have entered into agreements with the land owners of property having a total extent of 1.8016 hectares of land in Re-survey No.67/1 of Kakkad Village for undertaking quarrying operations, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 21.05.2018 of 2^nd respondent and a writ of mandamus commanding the 2^nd respondent to issue him D&O licence for conducting quarrying operation, as applied for in Ext.P2.

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On 10.01.2019, when this writ petition came up for admission, the learned Standing Counsel for the 1^st respondent Grama Panchayat was directed to get instructions and file a statement.

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A counter affidavit has been filed by respondents

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1 and 2 opposing the reliefs sought for in this writ petition.

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Heard the learned counsel for the petitioner and

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WP(C).No. 736 of 2019

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also the learned Standing Counsel appearing for respondents 1 and 2.

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One of the contentions raised by the petitioner is that Ext.P6 order dated 21.5.2018 of the 2^nd respondent Secretary on Ext.P2 application for D&O licence made by the petitioner under Section 232 of the Kerala Panchayath Raj Act is one based on the decision taken by the Panchayath Committee held on 11.05.2018.

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In Kadaplamattom Grama Panchayat v.

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

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WP(C).No. 736 of 2019

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Panchayath Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996. Whereas, if an application is submitted by a person only under Section 232 of the Kerala Panchayath Raj Act read with D&O Rules and a permission under Section 233 is not required, the Secretary is competent to consider the application and pass appropriate orders. That apart, in matters coming under Clause (d) of sub-rule (3) Rule 12 of the D&O Rules also power is conferred on the Secretary.

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The learned Standing Counsel for the 1^st respondent Grama Panchayath, after referring to the averments in the counter affidavit and also the documents placed on record, would contend that valid reasons have been stated in Ext.P6 for rejecting Ext.P2 application for D&O licence made by the petitioner.

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Having considered the submissions made by the learned counsel on both sides, this Court finds that the procedure adopted by the 2^nd respondent, while rejecting

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WP(C).No. 736 of 2019

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Ext.P2 application made by the petitioner, is contrary to the statutory mandate, as held by the Division Bench of this Court in the decision cited supra.

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On account of the aforesaid procedural irregularity, Ext.P6 order dated 21.05.2018 of the 2^nd respondent is set aside and the said respondent is directed to consider the application for D&O licence and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and other affected parties in the locality, within a period of one month from the date of receipt of a certified copy of this judgment.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/14/3

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WP(C).No. 736 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF THE LETTER OF INTENT DATED 11.01.2017 ISSUED BY THE DIRECTOR OF MINING AND GEOLOGY.
EXHIBIT	P1 A	TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL 30.09.2018.
EXHIBIT	P1 B	TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE DATED 15.07.2017 VALID TILL 15.07.2022 ISSUED BY THE DEIAA.
EXHIBIT	P1 C	TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL 31.03.2022.
EXHIBIT	P1 D	TRUE COPY OF THE NOC DATED 17.08.2015 ISSUED BY THE FIRE AND RESCUE DEPARTMENT.
EXHIBIT	P2	TRUE COPY OF THE APPLICATION DATED 02.02.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT	P3	TRUE COPY OF THE LETTER DATED 15.02.2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P4	TRUE COPY OF THE CERTIFICATE DATED 26.02.2018 AND NUMBERED AS NO.278/2018 ISSUED BY THE VILLAGE OFFICER, KAKKAD.
EXHIBIT	P5	TRUE COPY OF THE JUDGMENT DATED 05.04.2018 IN WP(C) NO.7419/2018 ON THE FILES OF THIS HON'BLE COURT.
EXHIBIT	P6	TRUE COPY OF THE ORDER DATED 21.05.2018 NUMBERED AS NO.A4-4962/17 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P7	TRUE COPY OF 3 PHOTOGRAPHS SHOWING THE ACTUAL LIE OF THE THODU.
RESPONDE	NT'S	EXHIBITS:
EXHIBIT	R1(A)	: TRUE COPY OF THE COMMUNICATION DATED 07-05-2018.
EXHIBIT	R1(B)	: TRUE COPY OF THE REPORT DATED 30/04/2018 OF THE BIO DIVERSITY MANAGEMENT COMMITTEE

Abid M.a., v. Karassery Grama Panchayat

Case brief

What is this about?

What did the court decide?

Abid M.a., v. Karassery Grama Panchayat

Case brief

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What did the court decide?

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