IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 635 of 2011(D) ------------------------ PETITIONER(S): --------------- SUNNICHAN ABRAHAM, POOVATHINAL HOUSE AMBARANIRAPPEL PO, BHARANANGANAM,KOTTAYAM DISTRICT. BY ADV. SRI.RAJU JOSEPH, SENIOR ADVOCATE SRI.SHYSON P.MANGUZHA SRI.C.N.MIDHUN RESPONDENT(S): --------------- 1. THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT ISNTITUTION,THIRUVANANTHAPURAM 695 001. 2. THIDANADU GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY THIDANADU PO, ERATTUPETTA,KOTTAYAM DISTRICT 686123. 3. THE SECRETARY THIDANADU GRAMA PANCHAYATH THIDANADU PO, ERATTUPETTA,KOTTAYAM DISTRICT 686123. 4. P.C.JOSEPH, PARANKULANGARA HOUSE AMBARANIRAPPEL PO, BHARANANGANAM, KOTTAYAM DISTRICT 686 578. ADV. SRI.K.JAJU BABU FOR R2&3 SRI.GEORGEKUTTY MATHEW FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 635 of 2011(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE JUDGMENT IN O.S.NO.69/09 PASSED BY MUNSIFF'S COURT, ERATTUPETTA DATED 13.11.2009. EXT.P2: TRUE COPY OF THE LICENCE TO STORE EXPLOSIVES IN FORM LE-3 DATED 27.04.2010. EXT.P3: TRUE COPY OF THE LICENCE IN THE NAME OF K.A.THOMAS DATED 21.01.2010. EXT.P4: TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN PETITIONER AND K.A.THOMAS DATED 12.07.2010. EXT.P5: TRUE COPY OF THE CONSENT ISSUED BY THE KERALA POLLUTION CONTROL BOARD DATED 01.10.2009. EXT.P6: TRUE COPY OF THE APPLICATION IN PLAIN PAPER DATED 12.07.2010 SUBMITTED BEFORE THE SECRETARY THIDANADU GRAMA PANCHAYATH. EXT.P7:TRUE COPY OF THE ACKNOWLEDGMENT SHOWING RECEIPT OF APPLICATION DATED 12.07.2010. EXT.P8: TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 10.08.2010. EXT.P9: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 06.09.2010. EXT.P10: TRUE COPY OF THE ACKNOWLEDTGMENT ISSUED BY THE OFFICE ASSISTANT DATED 08.09.2010. EXT.P11: TRUE COPY OF THE APPLICATION IN THE PRESCRIBED FORM DATED 08.09.2010. EXT.P12: TRUE COPY OF THE RESOLUTION OF THE 2ND PANCHAYAT DATED 08.09.2010. EXT.P13: TRUE COPY OF THE LICENCE ISSUED BY THE 3RD RESPONDENT DATED 16.09.2010. EXT.P14: TRUE COPY OF THE QUARRYING PERMIT DATED 15.11.2010. EXT.P15: TRUE COPY OF THE NOC ISSUED BY THE DMO, KOTTAYAM DATED 03.08.2006. WP(C).No. 635 of 2011(D) EXT.P16: TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY CONTROLLER OF EXPLOSIVES TO DISTRICT COLLECTOR KOTTAYAM DATED 25.02.2008. EXT.P17: TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 13.12.2010. EXT.P18: TRUE COPY OF THE ORDER OF TRIBUNAL IN I.A.NO.1444/2010 IN APPEAL NO.1055/2010 DATED 20.12.2010. EXT.P19: TRUE COPY OF THE LETTER DATED 27.12.2010. RESPONDENTS' EXHIBITS: EXT.R4(a): TRUE COPY OF THE COUNTER AFFIDAVIT DATED 01.01.2009 IN W.P.(C) NO.27418/2008 FILED BY THE DEPUTY CONTROLLER OF EXPLOSIVES, ERNAKULAM. EXT.R4(b): TRUE COPY OF THE CIRCULAR DATED 30.04.2010 ISSUED BY THE DIRECTOR OF PANCHAYAT. // TRUE COPY // P.S. TO JUDGE C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.635 of 2011 ---------------------------------------- Dated 8th February, 2011 JUDGMENT The petitioner is the owner in absolute possession of 8.49 acres of dry land comprised in Survey Nos.134/2-1 150/1 and 151/4 of Kondoor Village in Meenachil Taluk. The property lies contiguous and conterminous with the said property having an extent of 24.75 acres belongs to his father, brothers and sister. In short, according to the petitioner, the entire extent of 33.24 acres lies as a single plot. There is a private road starting from Aruvithara - Poovathodu Public Road. The fourth respondent is having property abutting the same. According to the petitioner, the said private road was constructed long back, utilising a portion of his property as well. The long and short of the further contentions is that a dispute regarding the user of the said private road resulted in a decree restraining the 4th respondent herein from obstructing the use of the said private road and since then, he has been on inimical terms with the petitioner and his family members. Later, against the operation of quarry by the petitioner and others the 4th respondent instituted O.S.No.69/2009 and the suit was decreed in part, as per Ext.P1. Ext.P1 would reveal that the petitioner was one of the defendants WP(C).No.635/2011 2 therein and that the defendants were permanently restrained from conducting quarry using explosives in the plaint schedule properties comprised in item Nos.3 and 4 without valid licence from the concerned authorities. In short, permanent injunction against the defendants including the petitioner was granted solely on the ground that they are conducting the quarrying operation without any licence. The specific contention of the petitioner is that subsequent to Ext.P1 judgment he had approached the Panchayat and submitted an application and thereupon approached all the competent authorities and obtained the requisite licences/permits for conducting quarrying operation in the above mentioned property. It is further contended that on 8.9.2010 he had submitted a formal application to the Panchayat in response to their direction to submit an application in the prescribed format. It is also contended that though an application in the prescribed format was submitted only on 8.9.2010, an application for that purpose was submitted in a white paper, much earlier and it is based on such application that he was issued other licences by the other competent authorities as is obvious from Exts.P2 to P6. Later, considering the application submitted by the petitioner on 8.9.2010 along with all requisite permits/licences, the Panchayat considered the application of the petitioner for quarrying permit and passed Ext.P12 resolution on WP(C).No.635/2011 3 8.9.2010. Subsequently, Ext.P13 licence was issued. The fourth respondent thereupon challenged Ext.P12 resolution before the Tribunal for Local Self Government Institutions by filing Ext.P17 appeal. A perusal of the grounds raised thereunder would show that, the contention of the 4th respondent is that the petitioner herein was granted the requisite licence viz., Ext.P13 on the very date of his application. It is the further contention of the fourth respondent that the Panchayat has not issued any permit under section 233 of the Kerala Panchayat Raj Act, 1994. Insufficiency of the other licences produced by the petitioner has also been made as a ground to assail Ext.P13. In view of the grounds raised therein, I.A.No.1444 of 2010 was moved by the fourth respondent seeking stay of implementation of the impugned decision by the Panchayat. Thereupon, Ext.P18 interim order granting stay of the impugned decision till disposal of the appeal was passed by the Tribunal on 20.12.2010. Immediately thereafter, the Panchayat as per Ext.P19 proceedings dated 29.12.2010 cancelling Ext.P13 permit granted to the petitioner directed him to stop quarrying operations. It is challenging Exts.P18 and P19 that this writ petition has been filed. 2. I have heard the learned Senior Counsel appearing for the petitioner as also the learned counsel for the fourth respondent. WP(C).No.635/2011 4 3. As already noticed hereinbefore, the challenge in this writ petition is against Exts.P18 and P19. Ext.P18 is the interim order passed by the Tribunal for Self Government Institutions staying the decision in Ext.P12 till disposal of Ext.P17 appeal. Pursuant to the receipt of Exts.P18, Ext.P19 has been passed by the Panchayat cancelling Ext.P13 licence and directing the petitioner to stop the quarrying operations. The learned Senior Counsel submitted that even without affording an opportunity of being heard to the petitioner an order of stay till disposal of the appeal should not have been passed. That apart, it is contended that evidently, as per Ext.P18, the operation of Ext.P12 has been stayed only till disposal of the appeal. In the said circumstances, whether the petitioner could conduct the quarry based on Ext.P13 would essentially depend on the outcome of Ext.P17 appeal. Therefore, it is contended that Ext.P18 should not have taken as the basis for cancellation of the permit and, at any rate, the Panchayat should have waited till the disposal of the appeal. In short, there is no justification for the Panchayat to cancel Ext.P13 licence that has been issued after considering the application submitted for that purpose and after perusing all the requisite licences produced by the petitioner. To support the said contention, the learned Senior Counsel also relied on the detailed counter affidavit filed by the respondent Panchayat before the Tribunal and contended that in WP(C).No.635/2011 5 the said counter affidavit the Panchayat had virtually raised contentions to support and sustain Ext.P13. Having taken such a stand before the Tribunal, in and vide the said counter affidavit the respondent should not have cancelled Ext.P13 in the absence of any direction in that regard. Based on the said contention the learned Senior Counsel submitted that Ext.P19 is unsustainable as long as Ext.P13 was issued by the Panchayat exercising the power conferred on it and on satisfying the fact that the petitioner has complied with all the statutory formalities. The licnece granted after application of mind and after consideration of the requisite licences/permits should not have been cancelled merely based on Ext.P18, especially, in the absence of any direction for cancellation and that too, without affording an opportunity of being heard to the petitioner. In short, the said action invites interference, it is submitted. 4. As already noticed, the contention raised by the fourth respondent before the Tribunal as also before this Court is that the petitioner was not issued with any permit under section 233 of the Kerala Panchayat Raj Act, 1994. That apart, it is contended that Ext.P13 has been issued on 8.9.2010 based on an application submitted on 8.9.2010.. In short, according to the learned counsel appearing for the fourth respondent, the undue hasty action on the part of the respondent Panchayat in granting Ext.P13 licence itself would suggest the non- WP(C).No.635/2011 6 application of mind. It is also apposite to note in this context that the fourth respondent has raised a contention regarding insufficiency of the permits produced before the respondent Panchayat for obtaining Ext.P13. According to the fourth respondent, if the application and the documents produced thereafter were considered with application of mind, it would not have resulted in issuance of Ext.P13. Be that as it may, it is evident that Ext.P18 is only an interim order passed by the Tribunal in Ext.P17 appeal No.1055 of 2010. Indisputably, there is no challenge against the competency of the Tribunal to entertain Ext.P17 appeal and to pass interim orders during the pendency of the appeal. Obviously, as per Ext.P18, the impugned decision in Ext.P12 has been stayed till disposal of the appeal. There is no dispute with respect to the fact that the order in Ext.P18 was passed without affording an opportunity of being heard to the petitioner. In such circumstances, especially in view of the fact that the stay has been granted till the disposal of the appeal, any delay in the matter of its disposal would definitely cause irreparable hardships and inconveniences to the petitioner. When a statutory appeal is pending before the competent authority , that is, Ext.P17 appeal is pending before the Tribunal for Local Self Government Institutions, I am of the considered view that it will be inappropriate for this Court to consider the rival contentions on merits. In view of the said position obtained in this WP(C).No.635/2011 7 case, I am of the view that Ext.P17 appeal requires an expedite disposal. In view of the discussions made above, this writ petition is disposed of as hereunder: There will be a direction to the Tribunal for Local Self Government Institutions to take up Ext.P17 appeal and pass final orders thereon expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that the hearing of Ext.P17 appeal shall not be adjourned at the instance of the fourth respondent herein viz., the appellant therein. It is further made clear that since Ext.P19 order was passed by the respondent Panchayat, based on Ext.P18 the question whether Ext.P13 could be restored would depend upon the outcome of Ext.P17 appeal. It is further made clear that this Cort has not made any observation with respect to the merits of the rival contentions. Sd/- C.T.RAVIKUMAR Judge TKS