IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 WP(C).No. 28318 of 2011(L) ----------------------------------------- PETITIONER(S): ------------------------ T.L.PIUS, S/O.LONAPPAN.T.C., THALAKKOTTUR HOUSE, KOONAMMUCHI.P.O., THRISSUR DISTRICT. BY ADVS. SRI.DEEPU THANKAN, SMT.SONIA GEORGE. RESPONDENT(S): --------------------------- CHOONDAL GRAMA PANCHAYATH, KECHERI.P.O., THRISSUR DISTRICT.680 501, REP.BY ITS SECRETARY. BY ADVS. SRI.B.V.JOY SANKER, SRI.PRAMJI PAUL VAZHAPPILLY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28318/2011 L APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF QUARRYING PERMIT GRANTED BY THE GEOLOGIST DEPARTMENT OF MINING AND GEOLOGY, THRISSUR 16/10/2009 AND 9/3/2011. EXHIBIT P2- TRUE COPY OF THE LICENCE GRANTED TO THE PETITIONER BY THE GOVT.OF INDIA DATED 6/9/2010. EXHIBIT P3- TRUE COPY OF THE ORDER OF THE CONSENT ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 12/1/2011. EXHIBIT P4- TRUE COPY OF THE RECEIPT ISSUED BY THE RESPONDENT PANCHAYATH DATED 11/2/2011. EXHIBIT P5- TRUE COPY OF THE COMMUNICATION ISSUED BY THE PANCHAYATH TO THE PETITIONER DATED 14/10/2011. RESPONDENTS' EXHIBITS; N I L /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 28318 of 2011 --------------------------------------- Dated this the 14th day of November 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P5 and the decision of the Panchayat dated 12.10.2011 to reject the application of the petitioner for licence and to reconsider the application for licence in view of Exts.P1 to P3 no objection issued by competent authorities and grant licence to the petitioner and for other incidental reliefs. 2. Petitioner submitted application for licence under the provisions of the Kerala Panchayat Raj( Issue of License to Dangerous and Offensive Trades and Factories) Rules 1996 on 11.2.2011. After a period of 8 months respondent Panchayat had issued a letter to the petitioner informing that his application for licence was considered by the Panchayat Committee on 12.10.2011 and they have decided not to grant licence as they have received complaints. Ext.P5 is the copy of the communication dated 14.10.2011 which is under challenge. Petitioner submits that he had obtained licence from the W.P.(C) No. 28318/2011 2 Geologist marked as Ext.P1, Ext.P2 copy of the licence issued by the Department of Explosives, Central Government and Ext.P3 consent granted by the State Pollution Control Board for conducting quarrying operations in the property owned by the petitioner. Petitioner submits that the quarry has been functioning from 2008 with all the licences issued by the statutory authorities. Petitioner is aggrieved by the action of the Panchayat in rejecting the application for licence and the direction issued to close down the quarry which according to the petitioner had been operating with all statutory licences. 3. Petitioner applied for quarrying permit under the provisions of Kerala Minor Mineral Concession Rules 1967 in an area of 1.958 Hectares of land comprised in Sy.No. 11/P of Choondal Village, Thalappilly taluk. Petitioner submits that Exts.P1 to P3 certificates are necessary to run the quarry and that there is no provision in the Panchayat Raj Act stipulating licence to conduct quarry. It is submitted that this Court in the decision reported in Gem Granite Vs. Deputy W.P.(C) No. 28318/2011 3 Superintendent of Police (2008 (1) KLT 937) it is made clear that licences under the Kerala Panchayat Raj Act is also necessary for conducting quarry and therefore, it has become necessary for the petitioner to apply for the licence under the provisions of the Kerala Panchayat Raj Act ( Issue of License to Dangerous and Offensive Trades and Factories) Rules 1996. 4. Petitioner submitted application dated 11.2.2011. Under the Rules the decision to grant or reject the application for licence shall be taken within 45 days in case of obtaining no objection certificate from other establishments and within 30 days in other cases. It is pointed out that as per Rules where the application has not been disposed of within the specified time, licence shall be deemed to have been issued. The petitioner submits that with the deemed licence and Ext.P1 to P3 certificates the petitioner started operating the quarry. It is pointed out that licence under the Panchayat Raj Act is made compulsory only after the decision of this Hon'ble Court reported in Gem Granite Vs. Deputy W.P.(C) No. 28318/2011 4 Superintendent of Police (supra). Ext.P5 is the communication issued by the Secretary of the Grama Panchayat informing the petitioner that the application for licence was considered by the Panchayat Committee on 11.1.2011 and that the Committee has decided not to grant licence to the petitioner as they have received complaints. The Secretary also informed the petitioner that he shall take immediate steps to stop the functioning of the quarry in the property. Petitioner submits that Ext.P5 order was passed without giving notice to the petitioner and without hearing him and therefore, Ext.P5 was issued in gross violation of principles of natural justice. It is also pointed out that the statutory authorities, namely, the Geologist, Govt. of Kerala, Deputy Chief Controller of Explosives, Govt. of India and State Pollution Control Board have considered the pollution and safety measures and found that the precautions taken by the petitioner is in conformity with the provisions of the Kerala Minor Mineral Concession Rules 1967, Explosive Rules 2008 and provisions under the W.P.(C) No. 28318/2011 5 Water (Prevention & Control Pollution) Act 1974, the Air (Prevention & Control of Pollution) Act 1981 and Environmental(Protection) Act 1986. Petitioner pointed out that formerly licence under the Kerala Panchayat Raj Rules was not necessary and therefore, the respondent ought to have granted licence to the petitioner as all the other licences were issued by the competent authorities and no objection certificate from the Pollution Control Board. The only reason stated in Ext.P5 is that there are complaints from the local people. The petitioner pointed out that it is clear from the site location plan and Ext.P3 consent issued by the Pollution Control Board that nearest houses are situated 120 and 125 metres away from the quarry and as per the conditions stipulated by the Pollution Control Board, the nearest houses should be at the distance of 50 mts away from the boundary of the quarry area. Petitioner submits that for the purpose of safety of the local people, the petitioner had complied with the distance condition imposed by the Pollution Control Board and therefore, the reasons W.P.(C) No. 28318/2011 6 stated about the complaint of the local people is not a justifiable reason for rejecting the application for licence and not sustainable in law. It is pointed out that the Panchayat Committee is the authority to grant or to refuse license. But the Panchayat Committee did not apply its mind as to whether the petitioner is entitled to grant licence or not. 5. Taking into consideration the aforesaid facts and circumstances, Ext.P5 communication is set aside and a direction is issued to the respondent Panchayat Committee to reconsider the application for licence under the Kerala Panchayat Rules and pass appropriate orders, after affording an opportunity of being heard to the petitioner and other parties, if any, within a period of 6 weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al