IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 RP.No. 1116 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33148/2007 Dated 07/11/2007 .................... PETITIONERS:RESPONDENTS: ----------------------------------------------- 1. PIRAVOM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, PIRAVOM GRAMA PANCHAYAT. PIRAVOM. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: PETITIONERS: ------------------------------------------------ 1. BENNY M.O., AGED 36 YEARS, S/O.OUSEPH, MADAVANA HOUSE, NORTH KUTHIYATHODU P.O PIN-683 594, ERNAKULAM DISTRICT. 2. K.G.THULASI, AGED 46 YEARS, W/O.VASUDEVAN A.R., POTHIYIL VEEDU, KALAMBUR P.O. ERNAKULAM DISTRICT. 3. SONY GEORGE, S/O.GEORGE, VATTAPARAMBIL HOUSE, ETTUMANUR P.O. 4. PRADEEP P.S., S/O.SIVAN, PADINJAREPARAMBIL, KUTHIYATHODU, ERNAKULAM DISTRICT. 5. N.SURESH, S/O.NARAYANAN, NJALIL HOUSE, ATHANI P.O., ERNAKULAM DISTRICT. 6. K.K.RAMAKRISHNAN, S/O.KUTTAPPAN, LAL VIHAR PUTHENVELIKKARA, ERNAKULAM DISTRICT. Kss ..2/- ...2.... RP.NO.1116/2007 7. SATHYABHAMA ANTHARJANAM, W/O.RAJENDRA MOHANAN, AMBALAPPILLY ILLOM, KALAMBUR P.O., PIRAVOM. 8. K.V.KUNJU MUHAMMED, AGED 68 YEARS, S/O.K.K.BEERAN, KADAVIL HOUSE, CHALAKKAL, ERNAKULAM DISTRICT. 9. K.V.ABDUL RAHIMAN, AGED 49 YEARS, S/O.K.K.BEERAN, KADAVIL HOUSE, CHALAKKAL, ERNAKULAM DISTRICT. 10. C.M.MOHAMMED, S/O.M.AMMU, CHERUPARAMBIL VEEDU, SOUTH ADUVASSERY, ERNAKULAM DISTRICT . 11. K.M.ABU, AGED 50 YEARS, S/O.MUHAMMED, MUNNUMMAL VEEDU, SOUTH ADUVASSERY, ERNAKULAM DISTRICT. 12. V.K.SIRAJ, S/O.KHALID, VALLINJALIL, SOUTH ADUVASSERY, ERNAKULAM DISTRICT. 13. ABDUL KAREEM, AGED 49 YEARS, S/O.MUHAMMED, URAMCHALIL HOUSE, ULIYANNUR, ALUVA. 14. ABDUL SAMAD, S/O.KHADER, KHADER MANZIL, CHENGAMANAD, ERNAKULAM DISTRICT. 15. KRISHNAN NAMBOOTHIRI, CHANDYIADATH ILLAM, KALAMBOUR P.O., PIRAVOM, MOOVATTUPUZHA. R1 & R2 BY ADV. SRI. S. SREEKUMAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ...3/- ...3..... R.P.NO.1116/2007 O R D E R R.P.will stand disposed of in view of the order dtd. 17/12/07 in the Writ Petition withdrawing the interim order dtd. 7/11/07. 18/03/2008 Sd/- Pius C.Kuriakose, Judge /True Copy/ P.S.to Judge Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- RP No. 116 of 2007 in W.P.(C)No.33148 OF 2007 ----------------------------------------------- Dated this the day of March, 2008 O R D E R The petitioners who have been conducting kiln brick manufacturing unit within the area of the first respondent Piravom Panchayat have filed this writ petition arraying the Panchayat and its secretary challenging the orders of the Panchayat rejecting their applications for licence and for a writ of mandamus commanding the first respaondent to renew the licence which had been issued to them to the limited extent of “manufacturing brick making use of the clay which is already stands stored” in the yards belonging to the petitioners. According to the petitioners, they have been running brik kiln within the area of first respondent Panchayat for the last 20 to 25 years after obtaining the requisite permit from the permit from the Mining and Geology Department for excavation of clay and clearance from the Kerala State Pollution Control Board for manufacturing bricks. They were havinglicence from the Panchayat also for the period upto 31-3-2007. They claim that they have conducting their kilns without any chance for complaint from any quarter. At their instance no paddy fields have been excavated exceeding the prescribed limit and no damages have been caused to any of the roads. No environmental r WP(C)N0.33148/07 -2- hazards or public inconvenience or nuisancehave been caused. Being encironmentally and ecologically conscious citizens they stolpped collecting sand and clay with effect from March 200 and stored sufficient clay for manufacturing of bricks for the years 2007-08 by obtaining valid permit from the Department of Kerala Mining and Geology. They have paid the royalty and related fee to the Government. They do not propose to excavate any more clay. Their inteniton is only to manufacture bricks by using the clay which is already collected on the basis of permits already issued from the Mining and Geology Department. To support their claims petitioners have produced documents. Ext.P1 is the consent issued bay the Kerala State Pollution Control Board on 9-1-06. Ext.P2 is copy of the permit issued by the Geologist. Ext.P2 is valid upto 31-3-2007 and is renewable annually. Ext.P3 is the location sketch prepared by the local village officer on the basis of P2 showing boundary of the property in which the kilns are situated and the clay is stored. Ext.P4 is the receipt against remittances of royalty of Rs.3000/- to the Mining and Geology Department. Ext.P5 is the licence issued by the first respondent Panchayat on 9-2-2007 for manufacture and sale of bricks and Ext.P5 is valid upto 31-3-2007 only. Ext.P is copy of the WP(C)N0.33148/07 -3- application for renewal of licence submitted by the first petitioner. Petitioners submit that there are similar documents in favour of other petitioners also. Since there was delay on the part of the Panchayat for considering the licence renewable applications petitioners moved this court and obtained Ext.P7 judgment by which the Panchayat was directed to here the petitioners and take an early decision. After Ext.P7 a hearing was conducted by orders Ext.P8 to Ext.P8(n) all the licence renewal applications were rejected. Petitioners contend that Ext.P8(a) to P8(n) in so far as the petitioners are not granted licnece for manufacturing of brick by making use of the clay which had already been lawfully collected and stored by the petitioners is illegal, arbitrary and beyond the Panchayat Secretary's powers. Petitioners reiterate that they have no intention to excavate clay from paddy fields. They only want renewal of licence so that they can manufacture bricks by making use of the clay which are already stored in their yards on the basis of permits issued to them. They claim that they have invested huge amounts for the establishment of industrial unit by availing bank loan and other financial sources. They are providing employment opportunities to above thousand persons directly and more than that indirectly. On the above averments petitioners have raised various WP(C)N0.33148/07 -4- grounds and filed the writ petition seeking the reliefs already indicated. On hearing Dr.Vincent Panikulangara for admission and interim orders I passed the following ex parte order: “The first respondent is directed to issue temporary licence to the petitioners for the purpose of enabling them to manufacture bricks making use of the clay which is already excavated by them and stored in their yards. The undertaking of the petitioners through their counsel that the petitioners will not excavate clay any more and propose to utilise only the clay which is already excavated is recorded. The further undertaking that further quantities of clay will not be brought from elsewhere also without permission of this court is also recorded.” WP(C)N0.33148/07 -5- It was as a measure to regulate the brick kilns and to stop excavation of paddy fields in a phased manner Panchayat decided to reduce the number of brick kilns. The persons who have been issued with licences are not causing any ecological imbalance. It is also contended that licence can be granted only on production of consent from Revenue Divisional Officer under Land Utilisation Order for Conversion of Paddy Fields. During the previous years RDO grants permit to conduct brick kiln with 500 MT of clay. So much quantity of clay is used for operating one kiln only. But what is happened in the Panchayat is that a single licencee operates 50 to 60 kilns. The licence which had been granted to the petitioners by the Panchayat for conducting kilns expired on 31-3-07. Thereafter the petitioners and others started collecting clay by excavation from the paddy fields within the area of the Panchayat and by bringing the same from other places. Counter affidavit denies the claim of the petitioners that they are having all necessary permits and consents statutorily required in the matter. They do not have consent from the RDO under the Land Utilisation Order for Conversion of Paddy Fields. They have been collecting clay far in excess of quantities permitted by the geologist. They do not have a current permit for excavating clay from the Mining WP(C)N0.33148/07 -6- and Geology Department. Counter affidavit goes on to repudiate each and every grounds in the writ petition and justifies Ext.P8 series of orders. Lastly it is pointed out that against Ext.P8 series of orders the petitioners have alternate and efficacious remedy of appeal under section 276. In fact attention of Dr.Vincent Panikulangara was drawn to the availability of appellate remedy under the statute to the Tribunal. He would submit that the licence which the petitioners require is not for excavating any fresh clay from the paddy fields or even for bringing clay from outside. They only want licence from the Panchayat for manufacturing bricks with the clay which is available in their yards. The Panchayat would allege that under the cover of the interim order which was granted the petitioners are collecting fresh clay either by excavating the same or by bringing clay from outside sources. The Panchayat I.A.16228/07 for appointment of a commission for local inspection. I allowed the application and accordingly the commissioner inspected the property and filed report dated 15-12-2007. In the meanwhile, I had impleaded the Geologist, Ernakulam and the Commissioner's inspection was conducted in the presence of the Geologist and the Assistant Geologist also. The commission report reveals that the petitioner had violated the WP(C)N0.33148/07 -7- undertaking which had been given to this court while receiving interim order dated 7-11-07 and this court vacated that interim order on the basis of the facts revealed by the commission report. The Panchayat has given fairly convincing explanation as to why licence was not renewed on the basis of the application submitted by the present petitioners even though renewal was granted to 21 other licencees. No reasons whatsoever have been stated by the petitioners as to why they are not invoking the statutory remedy available to them against Ext.P8 series of rejection orders. I am of the view that this court will not be justified even if there were good reasons for the petitioners to invoke extraordinary constitutional jurisdiction of this court under Article 226 rather than invoking statutory remedy under the Panchayat Raj Act against Ext.P8 series. This court will not be justified in exercising the jurisdiction in favour of the petitioners who were found to have violated the undertaking given to this court while receiving the favourable interim order. Writ petition will stand dismissed. However, it is made clear that statutory remedies against Ext.P8 series are not for closed. (PIUS C.KURIAKOSE, JUDGE) WP(C)N0.33148/07 -8-