Partly allowed

The Trippangottur Grama Panchayat v. M.P.Abdulla

Kerala HC5 Oct 2021WA/1240/2021

Case brief

AI extract

What is this about?

The High Court held that Grama Panchayats must independently consider each application for dangerous trade licences under the Kerala Panchayat Raj Act, 1994. It refused to treat RQP reports as binding and quashed directions to issue licences based solely on such reports, ordering the Panchayat to process applications according to statutory rules.

What did the court decide?

The Writ Appeals allowed partly; judgment of Single Judge modified to vacate findings based on RQP report; direction given to process applications per statutory provisions within time limits.

The Trippangottur Grama Panchayat Vs M.P.Abdulla — Mining and Natural Resources | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 WA NO. 1189 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 28527/2020 DATED 16.07.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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1 THE THRIPPANGOTTUR GRAMA PANCHAYAT, KALLIKANDI P.O., KALLIKKANDI, PIN - 670 693, REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, THRIPPANGOTTOR GRAMA PANCHAYATH, KALLIKANDI P.O., KALLIKKANDI, KANNUR DISTRICT, PIN - 670 693. BY ADV V. HARISH

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RESPONDENT/S:

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1 M.K. CHANDRAN, AGED 45 YEARS, S/O.KUMARAN, MADAPPURA KUNIYIL HOUSE, ELANGODE P.O., PANOOR, KANNUR DISTRICT - 670 692.

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2 THE DIRECTOR OF MINING AND GEOLOGY, DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695 004.

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3 THE DISTRICT GEOLOGIST, CIVIL STATION, KANNUR - 670 002.

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4 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 BY SRI.ALEX M.SCARIA

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R2 TO R4 BY SRI. TEKCHAND V., GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WA.NOS. 1225/2021, 1240/2021, AND 1231/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR &

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

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WA NO. 1240 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 17148/2020 DATED 16.07.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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1 THE TRIPPANGOTTUR GRAMA PANCHAYAT, KALLIKKANDI P.O., KALLIKKANDI, PIN-670 693, REPRESENTED BY ITS SECRETARY

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2 THE SECRETARY, THRIPPANGOTTUR GRAMA PANCHAYATH, KALLIKKANDI P.O., KALLIKKANDI, PIN-670 693

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BY ADV V.HARISH

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RESPONDENT/S:

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1 M.P.ABDULLA, KANNAVAN P.O., KANNAVAN, KANNUR DISTRICT-670 650

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2 THE DISTRICT DISASTER MANAGEMENT AUTHORITY, KANNUR REPRESENTED BY ITS CHAIRMAN R1 BY SRI. SANTHOSH MATHEW R2 TO R4 BY SRI. TEKCHAND V., GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WA.NOS.1189/2021, 1225/2021, 1231/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 WA NO. 1231 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 27773/2020 DATED 16.07.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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1 THE THRIPPANGOTTUR GRAMA PANCHAYAT, KALLIKKANDI P.O, KALLIKKANDI, PIN-670 693, REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, THRIPPANGOTTUR GRAMA PANCHAYAT, KALLIKKANDI P.O, KALLIKKANDI, KANNUR DISTRICT, PIN-670 693 BY ADV V.HARISH

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RESPONDENT/S:

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1 PUSHPARAJAN.T, AGED 60 YEARS, S/O.NANU, PARAYIL PARAMBATH HOUSE, CHERUPARAMBA P.O, KANNUR-670 693

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2 THE DIRECTOR OF MINING AND GEOLOGY, DEPARTMENT OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM, 695 004.

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3 THE DISTRICT GEOLOGIST, CIVIL STATION, KANNUR-670 002

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4 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001 R1 BY ADVS.SARITHA THOMAS & ALEX.M.SCARIA R2 TO R4 BY SRI. TEKCHAND V., GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WA.NOS.1189/2021, 1225/2021, 1240/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 WA NO. 1225 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 10534/2021 DATED 16.07.2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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1 THE THRIPPANGOTTUR GRAMA PANCHAYATH KALLIKKANDI P.O., KALLIKKANDI,PIN-670 693, REPRESENTED BY ITS SECRETARY

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2 THE SECRETARY, THRIPPANGOTTUR GRAMA PANCHAYAT, KALLIKKANDI P.O., KALLIKKANDI,PIN-670 693

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BY ADV V.HARISH

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RESPONDENT/S:

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M.P.ABDULLA AGED 63 YEARS

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FASNAS, KANNAVAN P.O., KANNAVAM, KANNUR DISTRICT-670 650 BY SRI. SANTHOSH MATHEW

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH WA.1189/2021, 1231/2021, 1240/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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SHAJI.P.CHALY, J.

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The captioned writ appeals are filed by respondent Nos. 1 and 2, in the writ petitions i.e., The Thrippangottur Grama Panchayat and its Secretary, challenging the common judgment of the learned Single Judge in W.P.C.Nos. 17148/2020, 27773/2020, 28527/2020, & 10534/2021, dated 16.07.2021, whereby, the impugned orders passed by the Secretary of the Grama Panchayat declining the D & O licence for conducting quarries to the writ petitioners were quashed and the appellants were directed to issue D & O licence to the writ petitioners, if the petitioners are otherwise eligible, within a period of four weeks. However, it was made clear that, the issuance of licence to the petitioners would be subject to any satellite mapping study that may be conducted by the Disaster Management Authority, and the writ petitioners shall permit the authorities to conduct any such study in the quarrying area, if warranted, without any objection. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the appeals are preferred.

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In the writ petition leading to Writ Appeal No.1189/2021, the challenge made by the writ petitioners was against Ext.P8 order of the Secretary, whereby,

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it was found that, within 500 meters of the proposed quarry of the writ petitioner, the stone quarries of Abdulla and Jovin George are situated and hence, it has be declared as a cluster, and since the extent of the cluster is more than 5 hectares, the environmental clearance of the State authority is mandatory as per the notification dated 15.01.2016, in order to understand the impact it has on the environment. Further, the Secretary has pointed out that the area in question has been identified as an area prone to landslides, by the Disaster Management Authority, and therefore, in accordance with the Disaster Management Master Plan, in order to give permission to conduct stone quarry in localities like the one in question, prior permission of the Disaster Management Authority is needed. However, no such permission has been submitted. Therefore, according to the Secretary, the local body has the power to ensure that the guidelines of the Disaster Management Authority are being complied with and further that the panchayat has also the power to take a general decision not to grant further licenses to establish quarries. Other aspects with respect to the land slides, etc are also pointed out in Ext.P8.

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Writ petitions leading to writ appeal Nos.1225/2021 and 1240/2021, are filed by one and the same entrepreneur, challenging Ext.P10 order passed by the Secretary dated 19.04.2021, whereby, the licence was declined stating that the

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licence for conducting mining in Re.Sy.No.275/A of the village in question was considered by the governing body on 17.04.2021, and since there are 9 quarries already working in the area with licence, it has been decided not to give licence to new quarries.

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Writ petition leading writ appeal No.1231/2021, is filed basically challenging Ext.P8 order dated 03.12.2019, which is a typical order passed by the Secretary similar to the one in the writ petition leading to writ appeal No.1189/2021.

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The paramount contention advanced by the petitioners were that, the order passed by the Secretary insisting the production of prior clearance from the Disaster Management Authority and the authority under the Environmental Protection Act and Rules and Regulations thereto, cannot be sustained, since as per the provisions of the Panchayat Raj Act, 1994, in regard to grant of licence to dangerous and offensive trades, and the rules prescribed for the said purpose, the Secretary of the Panchayat/ the Panchayat ought to have taken an independent decision as to whether the writ petitioners were entitled to secure licence, in accordance with the provisions of the Act, 1994, and the Rules thereto.

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Learned Single Judge, taking into consideration the rival submissions made, held that, though Sections 3, 3A and 3B of the Kerala Panchayat Raj Act, 1994, give wide powers to Grama Sabhas on matters relating to formulation, prioritization and implementation of general schemes, beneficiary schemes and developmental programmes, the Act, 1994, does not empower the Grama Sabhas to interfere with the statutory exercise of various powers exercisable by the Panchayat and its functionaries, and therefore, any decision taken by the Grama Sabha cannot affect the powers and functions of the licencing authority under the Act, 1994, including the power to issue a licence under Section 233 of the Act, 1994. It was also found that, if the Grama Panchayat or the Secretary decides not to consider or process or to issue D & O licence in exercise of the powers under Section 233 of the Act, 1994, on the basis of resolution passed or decision taken by Grama Sabha, it would amount to abdication of power which is impermissible in law. It was on the basis of the said findings that the ist appellant Grama Panchayat was directed to issue licence to the writ petitioners by incorporating certain riders.

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The appellants have filed the appeals basically contending that the findings of the learned Single Judge is contrary to law especially due to the fact that the quarries to which licences are sought are located in the high hazard

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landslide prone area and the direction to issue the licence solely relying on a report filed by a Recognized Qualified Person (RQP), cannot be sustained under law. According to the appellants, the report was prepared by the RQP as per the instructions given by the writ petitioners themselves and therefore the same has no legal basis, and further that, the RQP has no power or authority under the Disaster Management Act, 2005, to file a report and give a clean chit to the 1^st respondent/petitioner to operate in the area. It is also contended that, since quarries in question are situated in high hazard or moderate hazard landslide prone areas, it was only appropriate on the part of the Secretary of the Grama Panchayat to reject the licence assigning the said reason also. The sum and substance of the contention advanced by the appellants is that, when the Panchayat and the Secretary are vested with appropriate statutory powers under the provisions of the Act, 1994, and the attendant rules, they are entitled as of right to take independent decisions, which according to the appellants, is a concluded legal position by virtue of the judgment of the Full Bench of this Court in Tomy Thomas vs. State of Kerala 2019 (3) KLT 987 . Therefore, according to the appellants, unless and until the directions so issued to issue licence to the writ petitioners are not interfered with, it would cause serious prejudice and irreparable injury to the public at large residing in the areas in question.

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We have heard, Sri. Harish Vasudevan, appearing for the appellants, Sri. Santhosh Mathew and Sri. Alex M.Scaria, appearing for the writ petitioners and Sri. Tekchand V., appearing for the Disaster Management Authority, and perused the pleadings and the materials on record.

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Learned Counsel for the respective parties have addressed their arguments based on the pleadings discussed above. The issue with respect to grant of licence for dangerous and offensive trades and factories, is guided by Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994. Section 232(1) clearly specifies that the Village Panchayat may notify that no place in the Panchayat area shall be used for any of the purposes specified in the rules made in that behalf, being purposes which in the opinion of the Government, are likely to be offensive or dangerous to human life or health or property, without a licence issued by the Secretary and except in accordance with the conditions specified in such licence. The proviso thereto makes it clear that, if any such notification was issued, it shall not take effect until the expiry of thirty days from the date of its publication. Section 233 deals with permission for the construction of factories and the installation of machinery; and sub-section (1) thereto specifies that no person shall without the permission of the Village Panchayat and except in accordance with the conditions specified in such

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permission – (a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power; or (b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the provisions of this Act or the rules made thereunder. Sub-section (2) thereto makes it clear that, an application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed. The application is to be considered by the Panchayat in accordance with the prescription contained under sub-section 3 to sub -section 5 of Section 233 as it originally stood,reads thus:-

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“233. Permission for the construction of factories and the installation of machinery. -

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(1) xxxxx

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(2) xxxx

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(3) 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

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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,-

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(a) grant the permission either absolutely or subject to such conditions as it thinks fit to impose; or

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(b) refuse the permission for the reasons to be recorded.

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(4) Before granting or refusing permission under sub-section (3), the Village Panchayat, shall obtain and consider;

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(a) a report of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act 63 of 1948) or of an officer of the Industries Department not below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exits to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the

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Factories Act, 1948 (Central Act 63 of 1948) and such other matters as may be prescribed;

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(b) a report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 25 HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution; and

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(c) a report of the Divisional Fire Officer or any other officer authorised by him regarding the adequacy of fire prevention and fire fighting measures planned if the proposed industry involves the use of high tension power or inflammable or explosive materials:

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Provided that, no report under clause (b) shall be called for in respect of any industry if the applicant produces a declaration recommended by an officer of the Industries Department authorised in this behalf or by the Kerala State Pollution Control Board to the effect that such industry would not cause pollution.

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(5) The grant of permission under this section,-

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(a) Shall be subject to the conditions to be observed in respect of the replacement of machinery the levy of fees and to such restrictions and

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conditions as may be prescribed;

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(b) Shall not be deemed as exempted from observing the provisions contained in section 235(F) and 235 (H) or 235(P) and 235 (Q)”

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However drastic amendments were brought to Section 233 of the Act, 1994, as per Act 14 of 2018, by which, in sub-section (2), after the word “Secretary”, the words “or officer authorised by the Secretary” was incorporated. That apart, after subsection (2), sub-section (2A) was introduced, dealing with the manner in which permission for construction of factories and installation of machinery are to be considered, which reads thus:

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“(2A) The Secretary or officer authorized by him shall issue an acknowledgment to the applicant, on receipt of application along with the supporting documents in the form, as may be prescribed, and shall verify the application and all supporting documents on the spot itself, and if any supporting document is not found attached along with the application, the Secretary or officer authorized by him shall, immediately inform the applicant in writing the list of missing documents and allow the applicant to submit the missing documents as early as possible, but not later than five days from the date of receipt of application.”

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The provisions of Sections 232 and 233 of Act 1994 are guided by the

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Kerala Panchayat Raj Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996, which was also amended as per G.O.(P) NO.80/2017, including in the long title, for the words and brackets as follows: “(Issue of Licence to Factories, Trades, Entrepreneurship activities and services)”. Various provisions are contained under the Rules 1996, to tackle the applications filed by any persons seeking permissions. As per Rule 3, as it originally stood, the Government may for the purposes of Section 232, specify in the First Schedule appended to these rules, the matters which, in the opinion of Government, are likely to be offensive or dangerous to human life, health or property; and as per Rule 4, the Village Panchayat may, by affixing notices in the notice board of the Offices of the Panchayat and in conspicuous places of every constituency in the Panchayat and by advertisement by way of pamphlets, loud speakers, notify that no place in the Panchayat area shall be used for any purpose or purposes specified in Schedule I without the licence issued by the President and except in accordance with the conditions specified therein. However , Rule 3 discussed above was substituted by G.O.(P) No.80/2017/LSGD, which starts with the heading “3. Description of trades, services and factories- The Government may for the purpose of Section 232, specify in the First Schedule appended to these rules, the matters which, in the opinion of the Government, shall be classified as factories, trades, entrepreneurship activities and

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other services.”

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As per G.O.(P) No.80/2017, other amendments were also made to the rules with respect to the receipt of the application, issuance of acknowledgment and processing of the same by including rule 5A and adding a proviso to rule 6, whereby, it is specified that “provided if the application is submitted along with the requisite clearance from other departments stipulated under these rules for grant of license along with the fee specified in the Schedule II, the President of the Grama Panchayat shall issue the licence applied for within seven days from the date of receipt of the application along with the requisite clearances” . In fact, consequent to the introduction of the proviso to rule 6, virtually the power of the president under Rule 6 is circumscribed or watered down, if the application is submitted with the requisite clearances from other departments and complying with the other prescriptions contained under the proviso as discussed above, especially due to the expression “shall” used in the added proviso.

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We have discussed the relevant provisions of the Act, 1994, and the Rules, 1996 in detail, to emphasise that the Panchayat, the Secretary and the President are endowed with requisite powers to consider any applications received under Sections 232 and 233, independent of other clearances to be

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issued by other statutory authorities under various other enactments, only if such clearances are not produced along with the application in contemplation of the afore proviso . This we also say because a report of an RQP is never a subject matter of consideration for the Panchayat in the matter of grant of licence to an entrepreneur. True, it may enable the Panchayat to identify certain situations while processing the application, however, it cannot be said to be absolutely binding on the Panchayat and its officers, or to put it straight the Panchayat and its officers are guided by clear statutory provisions which alone they are bound to follow . But,at the same time, the decision taken by the Grama Panchayat in general not to grant licence for new quarries, cannot be sustained under law, because the provisions of Sections 232 and 233 and the rules would make it clear that each and every application submitted by an entrepreneur is to be considered by the concerned statutory authority in accordance with the provisions of law. In fact, the said question was considered by a Division Bench of this Court in Kadaplamattom Grama Panchayat v. Johny Roy 2013 (3) KLT 1053 , and held that, even though the Village Panchayat is vested with powers to pass resolutions as permitted by the provisions of the Act, 1994, and the rules framed thereunder, the mandatory and other functions enumerated in the 3^rd Schedule does not empower the Panchayat to take a general decision not to grant permit/ license to establish a factory, workplace or other

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establishments, and that an application cannot be summarily rejected by stating that the Panchayat has taken a policy decision not to permit any such establishments in the Panchayat area. It was also held that such an authority is not vested with the Panchayat under the provisions of Sections 232, 233 or the Rules, 1996.

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Taking into account the above facts, circumstances and law, we are in agreement with the judgment of the learned Single Judge to the extent directions are issued to consider the applications submitted by the entrepreneurs, in accordance with law. However, the direction contained in the judgment to issue the licence, apparently based on the report of the RPQ that the quarries in question have no adverse situations in accordance with the map formulated by the disaster management authority in view of the legal aspects discussed above cannot be sustained . Therefore, to that extent, the judgment of the learned Single Judge has to be interfered with, and accordingly the findings in the Judgment on the basis of the report of the RPQ would stand vacated. However it is clear from the provisions of Rules, 1996, that a decision has to be taken by the President, in accordance with the time stipulations contained under the act and the Rules. In that view of the matter, there would be a direction to the Secretary and the President of the Grama Panchayat, to process the

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applications submitted by the writ petitioners, in accordance with the statutory prescriptions contained under the Act 1994 and the Rules 1996 discussed above, also adhering to the time stipulations contained thereunder.

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The Writ Appeals are allowed partly and the common judgment of the learned Single Judge is modified to the extent specified above.

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 Sd/-
S.MANIKUMAR
CHIEF JUSTICE

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 Sd/-
SHAJI P.CHALY
JUDGE

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07.10.2021

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WA NOS. 1189, 1225, 1231 & 1240 OF 2021

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APPENDIX OF WA 1231/2021

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PETITIONER ANNEXURE

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Annexure A1 A TRUE PHOTOCOPY OF MEMO FILED BY THE GOVERNMENT PLEADER FOR THE DDMA, KANNUR IN W.P.C NO. 17148 OF 2020. Annexure A2 A TRUE COPY OF THE REPORT OF THE RQP PRODUCED BY THE PETITIONER IN W.P.C NO. 17148 OF 2020.

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APPENDIX OF WA 1225/2021

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PETITIONER ANNEXURE

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Annexure A1 A TRUE PHOTOCOPY OF MEMO FILED BY THE GOVERNMENT PLEADER FOR THE DDMA, KANNUR IN WPC NO.17148 OF 2020 Annexure A2 A TRUE PHOTOCOPY OF THE REPORT PREPARED BY THE RQP ALONG WITH THE HAZARD MAP

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APPENDIX OF WA 1189/2021

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PETITIONER ANNEXURE

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Annexure A1 A TRUE PHOTOCOPY OF MEMO FILED BY THE GOVERNMENT PLEADER FOR THE DDMA, KANNUR IN WPC NO.17148 OF 2020. Annexure A2 A TRUE PHOTOCOPY OF THE REPORT OF THE RQP PRODUCED BY THE PETITIONER IN WPC NO.17148 OF 2020.

The Trippangottur Grama Panchayat v. M.P.Abdulla

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The Trippangottur Grama Panchayat v. M.P.Abdulla

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