Allowed

Biju @ Varghese P. K. v. the Secretary

Kerala HC1 Apr 2022WP(C)/5531/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition regarding the refusal of a Denomination and Occupation (D&O) licence for quarrying. The Court held that under Rule 6 of the Kerala Panchayat Rules and Section 232 of the Panchayat Raj Act, the licence must be granted as all other statutory clearances were obtained, declining to accept a Panchayat policy ban as a valid ground for refusal.

What did the court decide?

Writ petition allowed; Exhibits P8 and P9 quashed; Respondents directed to reconsider the application and pass fresh orders within two weeks.

Biju @ Varghese P. K. Vs the Secretary — Labour and Industrial Disputes | 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 T.R.RAVI

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FRIDAY, THE 1^ST DAY OF APRIL 2022 / 11TH CHAITHRA, 1944

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WP(C) NO. 5531 OF 2022

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PETITIONER:

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MR.BIJU @ VARGHESE P. K. PARAKKAL HOUSE, KORANCHIRA, PALAKKAD DISTRICT 678684.

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BY ADVS. PHILIP J.VETTICKATTU SAJITHA GEORGE NEENU BERNATH

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RESPONDENTS:

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1 THE SECRETARY KIZHAKKANCHERY GRAMA PANCHAYAT, KIZHAKKANCHERY, PALAKKAD - 678 684. 2 THE KIZHAKKANCHERY GRAMA PANCHAYAT KIZHAKKANCHERY, PALAKKAD - 678 684, REPRESENTED BY ITS SECRETARY. BY ADVS. N.KRISHNA PRASAD GAYATHRI POTI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5531 OF 2022

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T.R. RAVI, J.

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W. P. (C). No. 5531 of 2022

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Dated this the 1^st day of April, 2022

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JUDGMENT

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The petitioner had applied for a D& O licence for the purpose of carrying out quarrying operations. He is a grantee of Ext.P1 letter of intent by the Director, Mining & Geology with respect to an extent of 2.3087 Hectares comprised in Re.Sy.No.303/pt of Kizhakkanchery II Village. The quarrying lease is to be issued after the petitioner obtains all other documents which are required under Rule 6 of the Kerala Panchayat (Licensing of Dangerous and Offensive Trades and Factories) Rules (Rules for short) . The documents which are required are mining plan, environmental clearance, consent from Pollution Control Board, explosive licence and D&O licence from the Local Self Government Institutions. The petitioner has obtained all licenses except the D&O licence from the Local Self Government authority. From Ext.P9 it is seen that the application submitted by the petitioner which ought to have been considere d by the Secretary of the Panchayat, was considered by Panchayat Committee a nd it

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WP(C) NO. 5531 OF 2022

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was decided that the D&O licence need not be granted. The case of the petitioner is that the application ought to have been considered under Section 232 of the Panchayat Raj Act by the Secretary. It is seen from Ext.P9 that the Secretary had at the meeting pointed out that the application submitted by the petitioner cannot be rejected in the light of the legal position and no stop memo can also be issued. Aggrieved by the above decision, the petitioner has approached this Court.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents.

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The learned counsel for the petitioner points out that as per Rule 6 of the Rules, the Secretary may by order in writing and subject to such restrictions and regulations, issue such licence or in public interest refuse to issue the same. It further says that in case of refusal of the licence, the reasons should be stated. However, Proviso to the Rule specifically says that if the application is submitted along with the requisite clearance from other Departments stipulated under the Rule for grant of licence along with the fee specified under Schedule II, the Secretary shall issue the licence

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WP(C) NO. 5531 OF 2022

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within 7 days from the date of receipt of the application. The proviso says that if the application is complete in all respects and is submitted along with all other clearances, the Secretary is bound to issue the licence.

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The learned counsel for the Panchayat fairly submitted that going by Rule 6, the Secretary has no other option but to grant the licence if all other legal requirements are satisfied. He however sought to support the rejection on the ground that as a policy the Panchayat had decided that no new quarries need be permitted in the Panchayat.

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I do not think that can be a reason for rejection of an application for D&O licence which is otherwise in order. One of the reasons which has been stated is that the petitioner has not produced the quarrying lease along with the application. The said reason also cannot be legally sustained. Rule 33 of the Kerala Minor Mineral Concession Rules, 2015 (KMMC Rules for short) specifically says that for the purpose of grant of a quarrying lease, the applicant should produce the approved mining plan, environmental clearances for the precise area and the statutory licenses/clearances and no

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WP(C) NO. 5531 OF 2022

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objection certificates from other statutory authorities. It can be seen that the quarrying lease is the final stage of granting permission for quarrying. It can be seen from Ext.P1 which is the letter issued by the Director of Mining and Geology to the petitioner that a quarrying lease will be granted only on production of the mining plan and environmental clearance as stipulated in the KMMC Rules, consent of the Pollution Control Board, explosive licence from the authorities concerned and D&O licence from the Local Self Government Authorities. In such circumstances, the petitioner is entitled to succeed in this writ petition.

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The petitioner also pointed out that Government Order dated 29.07.2021 issued by the Government in its Local Self Government Department had specifically issued guidelines that have to be followed while granting licence to new establishments. The guidelines stipulate that the Local Self Government Institutions have to avoid several of the inspections that are now being carried out and that within 3 months after the grant of licence they can inspect the premises and ensure that no illegality is being conducted by the licensee. Apparently these are all guidelines issued in an effort to

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WP(C) NO. 5531 OF 2022

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ease of doing business in the State.

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The writ petition is hence allowed. Exts.P8 & P9 are quashed. Respondents are directed to reconsider the application submitted by the petitioner and pass fresh orders within tw o weeks fr om the date of receipt of a copy of this judgment. It is declared that the petitioner's case comes under Section 232 of the Panchayat Raj Act 1992 read with Proviso to Rule 6 of the Rules and the 1^st respondent has to consider the application accordingly.

Sd/-

T.R. RAVI JUDGE

WP(C) NO. 5531 OF 2022

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APPENDIX OF WP(C) 5531/2022

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF LETTER OF INTENT DATED 26.03.2017 ISSUED BY THE 3RD RESPONDENT.
Exhibit P2	TRUE COPY OF CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 19.12.2018.
Exhibit P3	TRUE COPY OF ENVIRONMENTAL CLEARANCE ISSUED BY THE COMPETENT AUTHORITY TO THE PETITIONER DATED 29.11.2018.
Exhibit P4	TRUE COPY OF EXPLOSIVE LICENSE ISSUED BY THE COMPETENT AUTHORITY TO THE PETITIONER DATED 11.12.2018.
Exhibit P5	TRUE COPY OF MINING PLAN APPROVED BY THE COMPETENT AUTHORITY 30.04.2018.
Exhibit P6	TRUE COPY OF COVERING LETTER ALONG WITH WHICH THE APPLICATION FOR LICENSE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT 6.1.2022.
Exhibit P7	TRUE COPY OF RECEIPT ISSUED BY THE 1ST RESPONDENT PANCHAYAT SHOWING ACCEPTANCE OF EXT.P6 6.1.2022.
Exhibit P8	TRUE COPY OF COMMUNICATION ISSUED BY THE 1ST RESPONDENT REFUSING TO CONSIDER APPLICATION FOR LICENSE DATED 28.12.2021.
Exhibit P9	TRUE COPY OF DECISION TAKEN BY THE 2ND RESPONDENT DATED 22.12.2021.

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WP(C) NO. 5531 OF 2022

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Exhibit P10 TRUE COPY OF INFORMATION OBTAINED UNDER THE RTI ACT TO THE EFFECT THAT THERE IS NOT NATURAL CALAMITIES OCCURRED IN THE PANCHAYAT DURING THE PERIOD 2017-2022 DATED 16.02.2022. Exhibit P11 TRUE COPY OF JUDGMENT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM, DATED 10.08.2021. EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 06.01.2022

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RESPONDENTS' EXHIBITS

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Exhibit R1(A) TRUE COPY OF THE RESOLUTION DATED 19/11/2021 Exhibit R1(B) TRUE COPY OF THE COMMUNICATION DATED 28/12/2021 ADDRESSED TO THE PETITIONER

Biju @ Varghese P. K. v. the Secretary

Case brief

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Biju @ Varghese P. K. v. the Secretary

Case brief

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