A.N.Sadasivan Nair vs Hirumittacode Grama Panchayath Represented By Its Secretary

N.Nagaresh, J

The petitioner, who is Managing Partner of a Crusher Unit, seeks to direct the 1st respondent to grant permission to establish a Quarry for mining building stones in the property covered by Ext.P1, under Section 233 of the Kerala Panchayat Raj Act, 1994, based on Exts.P2 to P4 licences issued by the statutory authorities. The petitioner also seeks to declare that he is entitled to Deemed Licence under Section 236(3) of the Kerala Panchayat Raj Act, 1994 for operating the Quarry for the year 2021-'22 and direct the 2nd respondent to issue licence in paper form.

The petitioner is the Managing Partner of M/s.Popular Granites situated in Perumpilavu Village of Kunnamkulam Taluk. The 3rd respondent-Geologist issued Ext.P1 Letter of Intent to the petitioner. The State Environment Impact Assessment Authority (SEIAA) granted Environmental Clearance valid up to 05.03.2026, as per Ext.P2. The Kerala State Pollution Control Board gave Ext.P3 Consent to Operate. The Deputy Chief Controller of Explosives granted Ext.P4 explosive licence.

After securing all the requisite licence/permit/consent, the petitioner submitted an application to the 1st respondent-Panchayat for issuing trade licence, as per Ext.P5. The 2nd respondent-Secretary to the Panchayat acknowledged the receipt of the application. However, the petitioner's application was neither allowed nor rejected. The petitioner states that he is entitled to a deemed licence to operate the Quarry, in view of Section 236(3) of the Kerala Panchayat Raj Act, 1994.

The learned counsel for the petitioner argued that the 2nd respondent has no case that Ext.P5 application is not supported by requisite documents. The 2nd respondent has no case that Ext.P5 application is defective. The petitioner is therefore entitled to the benefit of deemed licence, under Section 236(3) of the Act, 1994 and therefore respondents 1 and 2 are compellable to issue the licence applied for in paper form.

The 2nd respondent resisted the writ petition filing counter affidavit. The 2nd respondent stated that in the locality where the petitioner proposes to operate Quarry, some quarries were functioning years before. Due to the functioning of those quarries, wells and houses were damaged and the local residents submitted complaints. The petitioner is proposing to start the Quarry on the top of a hill at a height of 600 to 700 feet. There are about 250 dwelling houses at the foot of the hill. Quarrying operations will be dangerous.

The 2nd respondent further submitted that there is a pond near the Quarry. There is a public road within 50 to 100 metres of the Quarry. The Special Grama Sabha meeting held on 18.08.2019 passed a unanimous resolution against the establishment of Quarry. It is doubtful whether the petitioner is the owner of the land. In the circumstances, the writ petition is liable to be dismissed.

The additional 4th respondent, who was impleaded in the writ petition, also filed a counter affidavit. The additional 4th respondent stated that the earlier quarries which functioned in that area have caused damage to the houses and wells of the residents of the locality. Their houses used to shiver during blasting operations. Large amount of granite dust and smoke, polluted the area. Blasting operation is likely to result in landslide.

The District Collector, on receipt of complaints, interfered in the matter and forwarded the complaints to the Geologist. The 4th respondent further urged that blasting in granite mines are prohibited within one kilometre of water shed area as per the Kerala Water Conservation Act. Chazhiyattil Water Shed area is hardly 200 metres far from the proposed Quarry. Therefore, the petitioner's proposed Quarry should not be licensed.

In the rejoinder filed by the 2nd  respondent, the 2nd respondent alleged that industrial occupancies should have width of 6 metres for the road and the street. Similarly, the EC issued to the petitioner mandates that 7 metres private road must be maintained in good motorable condition. Access roads to the Quarry shall be blacktopped to contain dust emissions that may arise during transportation of materials. In the present case, the Panchayat road is only about 4.5 metres wide. Therefore, no licence can be granted to the petitioner.

In the rejoinder filed by the 4th respondent also, it has been alleged that the entrance of the private mud road is only 4 metre wide. The Panchayat road is only 4.5 metre wide. Unless the road is 7 metre wide, no licence for hazardous activities can be permitted.

I have heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, the learned Government Pleader representing the 3rd respondent and the learned counsel for respondents 4 to 12.

The petitioner has filed the writ petition seeking to grant permission to establish the quarry under Section 233 of the Kerala Panchayat Raj Act, 1994 based on Exts.P1 to P4 licences issued by the statutory authorities. The contention of the petitioner is that he is entitled to a Deemed Licence under Section 232 of the Kerala Panchayat Raj Act, 1994. The petitioner seeks to issue licence in paper form. It is not disputed that the petitioner has obtained necessary licence/permit from the Geologist, SEIAA, the Kerala State Pollution Control Board and the Deputy Chief Controller of Explosives.

There is no dispute on the fact that the petitioner has made a composite application under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994 for licences. The application was made on 19.04.2021. Ext.P5 is the copy of application and Ext.P6 is the copy of the acknowledgment issued by the Panchayat authorities on 20.04.2021. The argument of the petitioner is that in view of Section 236(3) of the Kerala Panchayat Raj Act, 1994, if orders on application for licence or permission are not communicated to the applicant within 30 days, the licence shall be deemed to have been issued for the period for which it would have been ordinarily allowed. No orders have been passed on Ext.P5 within the stipulated 30 days. Therefore, the petitioner should be deemed to hold a licence and the respondents are compellable to issue licence in paper form.

The defence of the Panchayat is that there were quarries functioning in the area earlier, which caused damage to nearby residential buildings, consequent to which the local residents filed complaints. The proposed quarry is situated on top of a hillock and buildings and wells will be damaged/polluted due to the explosions in the quarry. A road is situated within 50-100 metres distance, which is used by the general public. There is a pond adjacent to the locality, which will be polluted. The area is inhabited by animals and birds within 100 metres from the locality. The Panchayat road leading to the quarry has a width of 3 metres only. The Special Grama Sabha has passed a resolution against establishment of the Quarry in the area.

The State Environmental Impact Assessment Authority, which is a statutory expert body competent to examine adverse environmental impact due to the establishment of the quarry, has granted Environmental Clearance to the Quarry as per Ext.P2. The Environmental Clearance given is not under challenge from any quarters. Therefore, the objection as regards pollution that may be resultant of establishment of the quarry and its adverse impact on animals and birds, cannot be considered by this Court.

The further argument that nearby buildings will be damaged due to explosions in the quarry. The Deputy Chief Controller of Explosives, who is the competent authority in this regard, has granted permission. Ext.P4 Licence granted to the petitioner by the Deputy Controller of Explosives is also not subjected to challenge from any quarters. The argument of the 2nd respondent in this regard cannot be accepted for the said reason.

The further defence is that the Special Grama Sabha has unanimously passed a resolution against the quarry. This Court has held in the judgment in Abdulla v. Trippangottur Grama Panchayat [2021 (5) KLT 200] that any decision of the Grama Sabha cannot affect the powers and functions of the licensing authorities under the Kerala Panchayat Raj Act, 1994 including the power to issue licence under Section 233. Therefore, Panchayat licensing authorities, without the support of any expert advice/report by a competent body, cannot be heard to contend that the industry will cause environmental damage and that the Grama Sabha has passed a resolution against the industry.

The 2nd respondent as well as the 4th respondent vehemently urged that the access width of the road leading to the quarry is less than the prescription. The Panchayat Road in question namely Akilanam-Thekkekara Road is 5 metre wide as per the Panchayat records, according to the petitioner. Ext.P9 Survey Map prepared by the Village Officer would show that the road leading to the quarry is 7.5 metres wide. The Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996 do not stipulate any minimum width for the road leading to a quarry.

The petitioner has submitted Ext.P5 application for licence under Sections 233 and 234 of the Act, 1994 on 19.04.2021. The receipt of which has been acknowledged by the Panchayat authorities on 20.04.2021, as per Ext.P6. Section 236(3) of the Act provides that if orders or permission are not communicated to the applicant within 30 days, the application should be deemed to have been allowed for that period. The respondents have no case that the application for licence is not supported by requisite documents. The respondents have no case that the Panchayat authorities have communicated any order of rejection to the petitioner within the period stipulated as per Section 236(3). Therefore, the petitioner is entitled to hold Deemed Licence.

A Division Bench of this Court has held in the judgment in V. Sudhakaran v. Pallichal Grama Panchayat and others [2016 (2) KLT 175] that even in the absence of a licence in the prescribed format, on the request of the applicants, the Secretary of the Panchayat may have to issue appropriate certificate to enable the applicants to utilise the same for other statutory permissions/licences.

In the afore facts and circumstances of the case, the writ petition is allowed and the competent among respondents 1 and 2 are directed to issue Deemed Licence to the petitioner in paper form for the period applied for in Ext.P5 application, within a period of one month.