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M/S. Aiswarya Granites v. Elamadu Grama Panchayat

Kerala HC28 Nov 2022WP(C)/34348/2022

Case brief

AI extract

What is this about?

, the High Court of Kerala held that the petitioner is entitled to a deemed D&O license under Section 236(3) of the Kerala Panchayat Raj Act because no order was communicated within 30 days. The court quashed a committee rejection and directed the Secretary to issue a paper license within 10 days.

What did the court decide?

Issued a direction to the 2nd respondent to issue a D&O license in paper form to the petitioner within 10 days from the date of receipt of a copy of the judgment.

M/S. Aiswarya Granites Vs Elamadu Grama Panchayat — Landlord and Tenant | Kerala HC (2022)

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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 MURALI PURUSHOTHAMAN

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MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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WP(C) NO. 34348 OF 2022

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PETITIONER:

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M/S. AISWARYA GRANITES
ELAVINMOODU,
ARKKANNOOR P.O, AYUR,
KOLLAM-691331
REPRESENTED BY ITS MANAGING PARTNER,
SRI. A.M. CHACKOCHEN.
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
LEO LUKOSE
CIMIL CHERIAN KOTTALIL

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RESPONDENTS:

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1ELAMADU GRAMA PANCHAYAT
ELAMADU P.O.,
KOLLAM - 691533
REPRESENTED BY ITS SECRETARY
2SECRETARY
ELAMADU GRAMA PANCHAYAT,
ELAMADU P.O.,
KOLLAM-691533.
3GEOLOGIST
DEPARTMENT OF MINING AND GEOLOGY,
DISTRICT OFFICE, ASRAMAM,
KOLLAM- 691008

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.34348 OF 2022.

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J UDGMENT

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Dated this the 28^th day of November, 2022

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The petitioner submitted Ext.R1(a) application on 26.08.2022 for D&O license before the 2^nd respondent, the Secretary of the 1^st respondent Grama Panchayat. According to the petitioner, the 2^nd respondent has not communicated any orders on the said application within a period of 30 days from the date of receipt of the application and therefore, the petitioner is entitled for deemed D&O license under Section 236(3) of the Kerala Panchayat Raj Act (hereinafter referred to as "the Act", for short).

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A counter affidavit is filed on behalf of the 1^st respondent wherein it is stated that after the receipt of the application for D&O license, since the application was found to be defective, the 2^nd respondent addressed Ext.R1(d) letter to the Village Officer seeking certain clarifications with regard to the survey number

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W.P.(C)No.34348 OF 2022.

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of the property of the petitioner. It is stated that a copy

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of Ext.R1(d) was also served on the petitioner. It is

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contended that the same shall be construed as a communication within the ambit of Section 236(3) of the Act. It is further stated that the Panchayat committee as per Ext.R1(f) resolution dated 26.10.2022, has resolved to reject the application of the petitioner for D&O license. Accordingly, respondents 1 and 2 contend that the petitioner is not entitled for D&O license.

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Heard the learned counsel for the petitioner and the learned counsel for respondents 1 and 2 and the learned Government Pleader.

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Apart from Ext.R1(d) communication which is

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addressed to the Village Officer seeking certain clarifications regarding the survey number of the property of the petitioner, nothing is placed on record to show that the 2^nd respondent has considered the application for D&O license and communicated an order to the petitioner, within a period of 30 days as

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W.P.(C)No.34348 OF 2022.

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provided under Section 236(3) of the Act. The learned counsel for the petitioner relies on the Division Bench decision of this Court in Sudhakaran v. Pallichal Grama Panchayat and Another [2016 (2) KHC 481] . Paragraph 14 of the said decision reads as follows:-

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"The consideration of an application for permission or licence or renewal thereof is available only during the period prescribed for the same and unless the order is communicated within the specified time, either granting the renewal or rejecting the same, the Panchayat cannot exercise jurisdiction to reject the same at a later occasion. Thereafter, the remedy of the Panchayat is only to verify whether the licensee complying with the conditions imposed under the licence as per the rules, bye-laws etc".

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Going by the dictum laid down in the above decision, Ext.R1(d) cannot be construed as an order coming within the scope of Section 236(3) of the Act. Admittedly, no order is communicated to the petitioner as provided under Section 236(3) of the Act. Accordingly, the petitioner is entitled for deemed D&O

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W.P.(C)No.34348 OF 2022.

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license under the Act.

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As regards Ext.R1(f), it is for the Secretary of

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the Panchayat to consider and pass orders on an application for license and the Panchayat Committee

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has no jurisdiction to take a decision in the nature of Ext.R1(f).

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Accordingly, this writ petition is disposed of declaring that the petitioner has a deemed D&O license under Section 236(3) of the Act. There will be a direction to the 2^nd respondent to issue a D&O license in paper form to the petitioner within a period of 10 days from the date of receipt of a copy of this judgment. It is made clear that this declaration is without prejudice to the right of the 2^nd respondent to revoke the license, if it is found that there is breach of provisions of the Act or the Rules.

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Sd/MURALI PURUSHOTHAMAN JUDGE

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Raj.28.11.2022.

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W.P.(C)No.34348 OF 2022.

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APPENDIX OF WP(C) 34348/2022

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`PETITIONER EXHIBITS` `Exhibit P1`	`TRUE COPY OF THE NOC DTD. 01.08.2018 ISSUED BY THE` `DISTRICT COLLECTOR, KOLLAM.`
`Exhibit P1(a)`	`TRUE COPY OF THE PROCEEDINGS DTD. 18.03.2022 ISSUED` `BY THE DISTRICT COLLECTOR, KOLLAM.`
`Exhibit P2`	`A TRUE COPY OF THE LETTER OF INTENT DTD. 02.09.2019` `ISSUED BY THE 3RD RESPONDENT.`
`Exhibit P2(a)`	`TRUE COPY OF THE CONSENT TO OPERATE DTD. 23.08.2022` `ISSUED BY THE POLLUTION CONTROL BOARD VALID TILL` `19.07.2026.`
`Exhibit P2(b)`	`TRUE COPY OF THE ENVIRONMENTAL CLEARANCE CERTIFICATE` `ISSUED BY THE SEIAA.`
`Exhibit P2(c)`	`TRUE COPY OF THE EXPLOSIVE LICENSE VALID TILL` `31.03.2027.`
`Exhibit P3`	`TRUE COPY OF THE RECEIPT DATED 26.08.2022 ISSUED BY` `THE 2ND RESPONDENT.`
`Exhibit P4`	`TRUE COPY OF THE INTERIM ORDER DATED 09.06.2022 IN` `WP(C) NO. 14757/2022 ON THE FILES OF THIS HON'BLE` `COURT.`
`Exhibit P4(a)`	`TRUE COPY OF THE INTERIM ORDER DATED 14.12.2021 IN` `WP(C) NO. 25226/2021 ON THE FILES OF THIS HON'BLE` `COURT.`
`Exhibit P5`	`TRUE COPY OF THE LETTER DATED 26.10.2022 BEARING NO.` `S.C3-3743/2022 ISSUED BY THE 2ND RESPONDENT.`
`Exhibit P5(a)`	`TRUE COPY OF THE POSTAL COVER WHICH CONTAINED EXT.P5` `LETTER.`
`RESPONDENT EXHIBITS`
`Exhibit R1(a)`	`TRUE COPY OF THE APPLICATION DATED 20.08.2022.`
`Exhibit R1(b)`	`TRUE COPY OF THE AGREEMENT DATED 15.06.2022.`
`Exhibit R1(c)`	`TRUE COPY OF THE AGREEMENT DATED 04.09.2022.`
`Exhibit R1(d)`	`TRUE COPY OF THE COMMUNICATION ISSUED TO THE VILLAGE` `OFFICER DATED 03.10.2022.`
`Exhibit R1(e)`	`TRUE COPY OF THE REPORT ISSUED BY THE VILLAGE` `OFFICER OF THE ELAMAD VILLAGE OFFICE DATED` `06.10.2022.`
`Exhibit R1(f)`	`TRUE COPY OF THE COMMUNICATION ISSUED TO THE` `PETITIONER DATED 26.10.2022.`

M/S. Aiswarya Granites v. Elamadu Grama Panchayat

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M/S. Aiswarya Granites v. Elamadu Grama Panchayat

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