Dismissed

Mohammed Naha Salim v. the Karoor Grama Panchayat

Kerala HC18 Nov 2022WP(C)/25554/2022

Case brief

AI extract

What is this about?

The High Court dismissed two writ petitions challenging the refusal to grant an establishment permit and a paper trade licence for a quarry. The court found no evidence of a valid Section 233 application and quashed the Trade Licence issued without a prior establishment permit.

What did the court decide?

Writ petitions dismissed; Trade Licence (Ext.P6) set aside; Panchayat free to proceed with pending appeal decision.

Mohammed Naha Salim Vs the Karoor Grama Panchayat — Land Acquisition | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022/27TH KARTHIKA, 1944 WP(C) NO. 25554 OF 2022

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PETITIONER:

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MOHAMMED NAHA SALIM AGED 31 YEARS S/O.SALIM, THUNDIL PUTHENVEEDU, BHARATHIYAPURAM P.O., PATHADI, ANCHAL, KOLLAM DISTRICT - 691 312.

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BY ADV. JOBI JOSE KONDODY

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RESPONDENTS:

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1 THE KAROOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KAROOR GRAMA PANCHAYAT OFFICE, KAROOR P.O., KOTTAYAM DISTRICT- 686 574.

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2 THE SECRETARY KAROOR GRAMA PANCHAYAT, KAROOR GRAMA PANCHAYAT OFFICE, KAROOR P.O., KOTTAYAM DISTRICT- 686 574.

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3 THE PRESIDENT THE GEOLOGIST, KAROOR GRAMA PANCHAYAT, KAROOR GRAMA PANCHAYAT OFFICE, KAROOR P.O., KOTTAYAM DISTRICT - 686 574. 4 MR.DENNIS SEBASTIAN KUTTIYANKAL HOUSE, VALVAOOR P.O., KOTTAYAM DISTRICT - 686 635.

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BY ADVS. SRI.SUNIL CYRIAC, SC FOR R1 AND R2 SRI.GEORGEKUTTY MATHEW FOR R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, ALONG WITH WP(C).27678/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.25554 & 27678 of 2022

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: 2 :

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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 N.NAGARESH

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022/27TH KARTHIKA, 1944 WP(C) NO. 27678 OF 2022

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PETITIONER:

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MOHAMMED NAHA SALIM AGED 31 YEARS S/O. SALIM, THUNDIL PUTHENVEEDU, BHARATHIYAPURAM.PO, PATHADI, ANCHAL, KOLLAM DISTRICT - 691 312.

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BY ADV JOBI JOSE KONDODY

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RESPONDENTS:

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*1 KAROOR GRAMA PANCHAYAT REPRESENTED ITS SECRETARY, KAROOR GRAMA PANCHAYAT OFFICE, . KAROOR P.O, KOTTAYAM DISTRICT - 686 574. 2 THE SECRETARY, KAROOR GRAMA PANCHAYAT OFFICE, . KAROOR P.O, KOTTAYAM DISTRICT - 686 574. 3 ADDL.R3.DENNIS SEBASTIAN AGED 38 YEARS, S/o.DEVASSIA, KUTTIYANKAL HOUSE, VALAVOOR P.O., KOTTAYAM DISTRICT – 686 635. [ADDL.R3 IS IMPLEADED AS PER ORDER DATED 27/09/2022 IN I.A. NO.1 OF 2022.]

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BY ADVS. SRI.SUNIL CYRIAC, SC FOR R1 AND R2. SRI.GEORGEKUTTY MATHEW FOR ADDL.R3.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, ALONG WITH WP(C).25554/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.25554 & 27678 of 2022

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N. NAGARESH, J.

W.P.(C) Nos.25554 and 27678 of 2022

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Dated this the 18^th day of November, 2022

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Both these writ petitions relate to a proposed

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quarry in Karoor Grama Panchayat. The petitioner in W.P.(C) No.25554/2022 seeks to permit him to operate the quarry, whereas W.P.(C) No.27678/2022 has been filed by the same petitioner seeking to direct the Secretary to Grama Panchayat to issue an establishment permit under Section 233 of the Kerala Panchayat Raj Act, 1994 in paper form.

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The petitioner obtained Ext.P1 Letter of Intent under the Kerala Minor Mineral Concession Rules, 2015 to start a quarry for mining building stones in 0.8525 Hectares of land in Vallichal Village, Meenachil Taluk of Kottayam

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W.P.(C) Nos.25554 & 27678 of 2022

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District. The petitioner was issued with Ext.P2 Environmental Clearance (EC) by the State Environment Impact Assessment Authority (SEIAA) and Ext.P3 Consent to Operate, by the Pollution Control Board. The petitioner has also obtained Ext.P4 Explosives Licence from the Deputy Chief Controller of Explosives.

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The petitioner states that he submitted Ext.P5 Composite Application on 16.02.2022 seeking Trade Licence under Section 232 and Establishment Licence under Section 233 of the Kerala Panchayat Raj Act, to the Secretary to the Grama Panchayat. According to the petitioner, the Secretary has to place the application before the Panchayat Committee for grant of permission under Section 233, to establish the quarry and after the Committee grants permission, the Secretary shall process and issue the Trade Licence under Section 232.

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On 26.04 2022, the Secretary issued Ext.P6 Trade Licence after receiving the requisite fee of ₹7,500/-. Based on the licences and permissions obtained from various

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W.P.(C) Nos.25554 & 27678 of 2022

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statutory authorities, the Geologist granted Ext.P7 Quarrying Permit to the petitioner. While so, the 4^th respondent filed Ext.P9 representation before the Panchayat alleging that the quarry will result in ecological imbalance, environmental degradation and nuisance.

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The Panchayat Committee treated Ext.P9 representation as an appeal against grant of Trade Licence. The Committee stayed the operation of the Trade Licence till a decision is taken on Ext.P9, as per Ext.P12 order dated 27.07.2022. Aggrieved by Ext.P12, the petitioner filed W.P. (C) No.25554 of 2022. The petitioner filed W.P.(C) No.27678 of 2022 seeking to declare that he is entitled to a Deemed Establishment Permit under Section 233(3) based on Ext.P5 Composite Application.

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The counsel for the petitioner argued that when a composite applications under Section 233 for permit to establish and under Section 232 for Trade Licence are submitted, the application for permission to establish should be processed and considered by the Panchayat Committee

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W.P.(C) Nos.25554 & 27678 of 2022

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first and the application for Trade Licence can be processed by the Secretary only after the Committee gives permission to establish first. The fact that the Secretary has granted Trade Licence to the petitioner would show that the Committee has granted permission under Section 233.

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Even if the Committee has not taken a decision to give permission to establish, since the petitioner has not been communicated with a decision on Section 233 application submitted by the petitioner within 30 days of its receipt, the petitioner is entitled to Deemed Licence in view of Section 233(6), contends the petitioner.

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In view of Section 233(3) of the Kerala Panchayat Raj Act, 1994, the 3^rd respondent ought to have relegated the 4^th respondent to challenge Ext.P6 before the appropriate forum, contended the petitioner. A Full Bench of this Court has held in the judgment in Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)] that the power to refuse a licence or permission to establish has been taken away by the legislature and after the amendment, Panchayat is bound

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W.P.(C) Nos.25554 & 27678 of 2022 : 7 :

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to grant permission either absolutely or on conditions.

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The petitioner further urged that the 3^rd respondent cannot invoke Section 276(1) of the Kerala Panchayat Raj Act, 1994 by converting Ext.P9 representation into a statutory appeal. Section 233A(2) of the Act, 1994 provides that the Secretary may obtain opinion from the Departments concerned with regard to the determination of nuisance or its abatement. The power to take action on nuisance is vested with the 2^nd respondent alone. As regards the alleged possibility of environmental degradation, the competent authority has given Ext.P2 Environmental Clearance and the apprehension of environmental degradation is unfounded, contended the counsel for the petitioner. Ext.P10 decision in W.P.(C) No.25554/2022 is therefore liable to be quashed and the respondents are compellable to issue Deemed Trade Licence to the petitioner in paper form, contended the petitioner.

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The Standing Counsel for the 1^st respondentPanchayat resisted the writ petition. The petitioner has not

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W.P.(C) Nos.25554 & 27678 of 2022

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submitted an application for permission to establish quarry, under Section 233 of the Kerala Panchayat Raj Act. Ext.P5 application is only for licence under Section 232. There is nothing in Ext.P5 to show that it is a composite application under Section 233 too.

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When complaint regarding issuance of licence under Section 232 was received, the Panchayat Committee found that licence has been issued by the Secretary without there being a permission of Council under Section 233 to establish the quarry. Therefore, the complaint was treated as an appeal and Ext.P10 decision was taken to hear the parties, before taking a decision in the matter. The Panchayat has not taken a final decision in the matter and a decision was to be taken after hearing the petitioner also. In the meanwhile, the petitioner has rushed to this Court.

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As regards claim for Deemed Licence made by the petitioner, the respondents pointed out that when there is no application at all made under Section 233 seeking permission to establish quarry, there is no question of

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W.P.(C) Nos.25554 & 27678 of 2022

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Deemed Licence. The claim of the petitioner in that regard is liable to be rejected.

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The 4^th respondent in W.P.(C) No.25554/2022

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filed a counter affidavit in the writ petition. The 4^th respondent contended that the quarry site is in a dangerously steep hillock. The earth shaking activities like quarrying will cause land sliding in this steep lands. Besides, the access road to the quarry site is very narrow having an average width of only 3 metres. This steep narrow road is not fit for plying of heavy vehicles used for transportation of quarry products. That apart, the vehicles of the emergency services including Fire Force and Ambulance cannot reach the quarry site and explosive magazine, through this narrow road in cases of accident and calamities caused by quarrying. The steepness of the land and absence of wide road access to the quarry site legally disentitle permits, consents, clearances, etc. to the petitioner. Exts.P1 to P4 seem to be granted to the unit of the petitioner without taking note of these relevant facts.

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W.P.(C) Nos.25554 & 27678 of 2022

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Ext.P6 proceedings of the Secretary of the Panchayat is highly arbitrary and illegal as the same is issued in the absence of establishment permit under Section 233. It is clarified by the Division Bench of this Court in the Kadaplamattom Grama Panchayat v. Johny Roy [2013 (3) KLT 1053] that the question of consideration of application for licence arises only when there is establishment permit under Section 233, in cases of using of power. Therefore, Ext.P6 issued by the Secretary of the Panchayat in the absence of permit under Section 233, is liable to be set aside.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel for the Grama Panchayat and the learned counsel for the 4^th respondent in W.P.(C) No.25554 of 2022.

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The question arising for consideration is whether the 1^st respondent-Grama Panchayat is justified in treating a complaint filed by the 4^th respondent as an appeal to reconsider the Trade Licence already issued to the

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W.P.(C) Nos.25554 & 27678 of 2022

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petitioner. The further question is whether the petitioner is legally entitled to get Deemed Licence in paper form for his quarry.

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It is evident from the pleadings in the writ petitions and the arguments at the Bar that the petitioner obtained Ext.P1 Letter of Intent under the Kerala Minor Mineral Concession Rules, 2015 to start a quarry for mining building stones in 0.8525 Hectares of land in Vallichal Village, Meenachil Taluk of Kottayam District. The petitioner was issued with Ext.P2 Environmental Clearance (EC) by the State Environment Impact Assessment Authority (SEIAA) and Ext.P3 Consent to Operate by the Pollution Control Board. The petitioner has also obtained Ext.P4 Explosives Licence from the Deputy Chief Controller of Explosives.

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The petitioner was issued Section 232 Licence by the Secretary on 26.04.2022. The Standing Counsel for the Panchayat has produced a copy of Section 232 Licence issued by the Secretary to the Grama Panchayat. The petitioner would urge that a Licence under Section 232 can

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W.P.(C) Nos.25554 & 27678 of 2022

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be issued by the Secretary only after the Panchayat gives permission to establish, under Section 233. The petitioner was required to pay fee for the licence. Therefore, there is a decision by the Panchayat granting permission to the petitioner to establish quarry. Ext.P5 (in W.P.(C) No.27678/2022) is the application submitted by the petitioner.

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Ext.P5 application does not indicate that it is an application for permission to establish quarry. Though the petitioner would urge that it is a composite application under Sections 232 and 233 of the Kerala Panchayat Raj Act, on a perusal of Ext.P5 application, this Court finds that the contents of Ext.P5 do not indicate that it is one made for permission to establish under Section 233.

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The counsel for the petitioner relying on Ext.P7 (in W.P.(C) No.27676/2022) decision of the Panchayat Committee would urge that the application submitted by the petitioner was placed before the Committee. However, on a perusal of Ext.P7, it cannot be said that the Committee has

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W.P.(C) Nos.25554 & 27678 of 2022

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taken any decision to give permission under Section 233, to the petitioner to establish quarry. There is nothing on record to find that the Panchayat Committee has decided to grant permission to the petitioner under Section 233 to establish the quarry.

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I find that the mere facts that an application was placed before the Panchayat Committee, that the Secretary has issued Section 232 licence and that the petitioner has paid fee for licence, are not sufficient to conclude that the Panchayat Committee had decided to give permission to the petitioner to establish quarry.

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Furthermore, I find from the copy of Section 232 licence produced before this Court that the same has been issued by an officer in charge of the Secretary to the Grama Panchayat. Issuance of Section 232 licence is under a statutory power conferred by the Kerala Panchayat Raj Act. Any subordinate officer in charge of the Secretary's post cannot exercise licensing powers conferred on the Secretary by the statute.

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W.P.(C) Nos.25554 & 27678 of 2022

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The claim of the petitioner in W.P.(C)

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No.27678/2022 is that the petitioner is entitled to deemed licence as the petitioner has submitted an application under Section 233 and the Grama Panchayat has not rejected the same within the statutory period. I find that there is no reason to find that the petitioner has submitted an application for permission to establish quarry under Section 233. The petitioner has not produced any document to show that an application under Section 233 has been submitted by the petitioner. Ext.P7 is too vague to arrive at any conclusion in this regard. Therefore, the prayer of the petitioner for issuance of Deemed Licence in paper form cannot be granted.

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For all the afore reasons, the writ petitions fail and they are consequently dismissed. The 1^st respondent will be free to proceed with Ext.P10 decision in W.P.(C) No.25554 of 2022.

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Sd/-

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N. NAGARESH, JUDGE

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aks/16.11.2022

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W.P.(C) Nos.25554 & 27678 of 2022

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APPENDIX OF WP(C) 25554/2022

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PETITIONER'S EXHIBITS

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EXHIBIT P1 A TRUE COPY OF INTENT DATED 03/10/2019 ISSUED BY THE GEOLOGIST, KOTTAYAM TO THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE ENVIRONMENT CLEARANCE DATED 22/09/2021 VALID UP TO 21.09.2024 FOR THE PROJECT OF THE PETITIONER ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY KERALA. EXHIBIT P3 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 07/02/2022 VALID UP TO 21/09/2024 FOR OPERATING THE QUARRY FOR MINING BUILDING STONES IN THE PROPERTY. EXHIBIT P4 A TRUE COPY OF THE FORM LE-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 08/02/2022 VALID UPTO 31/03/2023. EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIVED BY THE PETITIONER DATED 16/02/2022 FROM THE 2ND RESPONDENT EVIDENCING RECEIPT OF THE APPLICATION FOR TRADE LICENSE UNDER SEC. 232 OF THE KERALA PANCHAYAT RAJ ACT, 1994 AND FOR ESTABLISHING THE BUILDING STONES QUARRY UNDER SEC. 233 OF THE KERALA PANCHYAT RAJ ACT. EXHIBIT P6 A TRUE COPY OF THE TRADE LICENSE DATED 26/04/2022 VALID UP TO 31/03/2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P7 A TRUE COPY OF THE QUARRYING PERMIT DATED 10/06/2022 ISSUED BY THE GEOLOGIST, KOTTAYAM TO THE PETITIONER. EXHIBIT P8 A TRUE COPY OF CERTIFICATE DATED 06/09/2021 ISSUED BY THE VILLAGE OFFICER, VALLICHIRA.

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W.P.(C) Nos.25554 & 27678 of 2022

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EXHIBIT P9 A TRUE COPY OF REPRESENTATION DATED 19/07/2022 FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. EXHIBIT P10 A TRUE COPY OF THE MINUTES OF DECISION NO.1 OF THE COMMITTEE MEETING OF THE 1ST RESPONDENT HELD ON 26/07/2022. EXHIBIT P11 A TRUE COPY OF THE NOTICE DATED 27/07/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 27/07/2022 VIDE NO.JC2-1632/2022 PASSED BY THE 3RD RESPONDENT. EXHIBIT P13 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 02/08/2022. EXHIBIT P14 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 02/08/2022 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P15 A TRUE COPY OF NOTICE DATED 05/09/2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P16 A TRUE COPY OF THE DETAILED REPLY SUBMITTED BY ME BEFORE THE COMMITTEE OF THE 1ST RESPONDENT DATED 12/09/2022.

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RESPONDENTS' EXHIBITS

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EXHIBIT R4(a) TRUE PHOTOGRAPH EXHIBIT R4(b) TRUE COPY OF THE COMPLAINT DATED 26/07/2022 SUBMITTED BEFORE THE RESPONDENT PANCHAYATH BY THE REGISTRAR OF IIIT. EXHIBIT R4(c) TRUE COPY OF THE NEWS REPORT APPEARED IN MANGALAM DAILY ON 19/03/2021. EXHIBIT R4(d) TRUE COPY OF THE STAY PETITION DATED 27/07/2022 FILED BY THE 4TH RESPONDENT.

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W.P.(C) Nos.25554 & 27678 of 2022

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: 17 :

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APPENDIX OF WP(C) 27678/2022

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PETITIONER'S EXHIBITS

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EXHIBIT P1 A TRUE COPY OF INTENT DATED 03/10/2019 ISSUED BY THE GEOLOGIST, KOTTAYAM TO THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE ENVIRONMENTAL CLEARANCE DATED 22/09/2021 VALID UP TO 21/09/2024 FOR THE PROJECT OF THE PETITIONER ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY-KERALA. EXHIBIT P3 A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER DATED 07/02/2022 VALID UP TO 21/09/2024 FOR OPERATING THE QUARRY FOR MINING BUILDING STONES IN THE PROPERTY. EXHIBIT P4 A TRUE COPY OF THE FORM LE-3 LICENSE ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 08/02/2022 VALID UPTO 31/03/2023. EXHIBIT P5 A TRUE COPY OF THE COMPOSITE APPLICATION DATED 16/02/2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED BY THE PETITIONER DATED 16/02/2022 FROM THE 2ND RESPONDENT EVIDENCING RECEIPT OF EXHIBIT P5 COMPOSITE APPLICATION FOR TRADE LICENSE UNDER SEC.232 OF THE KERALA PANCHAYAT RAJ ACT, 1994 AND FOR ESTABLISHING THE BUILDING STONES QUARRY UNDER SEC.233 OF THE KERALA PANCHAYAT RAJ ACT, 1994. EXHIBIT P7 A TRUE COPY OF THE MINUTES OF THE 1ST RESPONDENT GRAMA PANCHAYAT DATED 02/03/2022. EXHIBIT P8 A TRUE COPY OF G.O(K) NO.156/2021/LSGD DATED 29/07/2021 ISSUED BY THE STATE GOVERNMENT WITH TRANSLATION.

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W.P.(C) Nos.25554 & 27678 of 2022

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: 18 :

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EXHIBIT P9	A TRUE	COPY O	F TRADE	LICENSE DATED
	26/04/2	022 VAL	ID UP	TO 31/03/2023
	ISSUED PETITIO	BY THE NER.	2ND RESP	ONDENT TO THE
EXHIBIT P10	A TRUE	COPY O	F THE QU	ARRYING PERMIT
	DATED GEOLOGI	10/06/2 ST, KOTTA	022 ISS YAM TO TH	UED BY THE E PETITIONER.
EXHIBIT P11	A TRUE	COPY OF	THE CER	TIFICATE DATED
	06/09/2 OFFICER	021 ISS , VALLICH	UED BY IRA.	THE VILLAGE
EXHIBIT P12	A TRUE	COPY OF	THE FULL	BENCH JUDGMENT
	REPORTE	D IN20	*18 (4) K*	*LT 1086 (ABDUL*
	*KHARIM* *PANCHAY*	VS *AT).*	*PAZHAYAK*	*UNNEL* *GRAMA*

Mohammed Naha Salim v. the Karoor Grama Panchayat

Case brief

What is this about?

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Mohammed Naha Salim v. the Karoor Grama Panchayat

Case brief

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What did the court decide?

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