Thidanadu Grama Panchayat vs Nisar Raheem

Shaji P. Chaly, J

The captioned writ appeals are filed challenging the judgment of the learned single Judge dated 22.06.2022 in W.P.(C) No. 17305 of 2022, whereby the writ petition was allowed holding that the writ petitioner/first respondent has secured a deemed licence by virtue of the legal fiction contained under Section 236(3) of the Kerala Panchayat Raj Act, 1994 (‘Act, 1994’ for short) and consequently, directing the Secretary of the Thidanadu Grama Panchayat to issue necessary deemed licence based on Ext. P5 application as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of the judgment, with a further rider that the writ petitioner will start quarrying activities only after getting ‘No Objection Certificate’ as per Section 42 of the Kerala Irrigation and Conservation of Water Act, 2003 (‘Act, 2003’ for short), if such an NOC is necessary as per the above provision.

Writ Appeal No. 889 of 2022 is filed by the Thidanadu Grama Panchayat and its Secretary, who were respondents 1 and 2 in the writ petition; whereas W.A.No. 962 of 2022 is filed by third parties residing within the limits of the Grama Panchayat, after securing leave to file the writ appeal as per order dated 26.07.2022 in I.A. No. 1 of 2022. W.A. No. 889 of 2022 is taken as the leading case and the parties are referred to as arrayed thereunder.

The basic facts for the disposal of the writ appeals are as follows:

In order to start a quarry for mining building stones in an extent of 0.9719 Hectares of land comprised in survey No. 82/2 in Kondoor Village of Meenachil Taluk of Kottayam District, the writ petitioner applied for a letter of intent as mandated under the Kerala Minor Mineral Concession Rules, 2015 (‘Rules, 2015’ for short) before the Geologist, the second respondent in the appeal; who has granted the letter of intent on 02.03.2018 on condition that the quarrying permit under Rules 9 and 10 of the Rules, 2015 would be granted, subject to the production of consent from the Pollution Control Board, Explosive Licence from the authority concerned and D & O licence from the Local Self Government Institutions. According to the writ petitioner/first respondent, he has secured all statutory licences, except the establishment permit and the trade licence from the Panchayat and the Secretary under Sections 233 and 232 respectively of the Act, 1994.

The case of the writ petitioner is that he filed Ext. P5 combined application for trade licence as well as permission to establish the unit before the appellant as early as on 05.03.2022, as is evident from Ext. P6 receipt dated 05.03.2022; however, the appellant had failed to pass orders on Ext. P5 and therefore, he is entitled to secure a deemed licence under Section 236(3) of the Act, 1994.

The paramount contention advanced by the writ petitioner/first respondent is that after the amendment brought into the Act, 1994 through the Kerala Investment Promotion and Facilitation Act, 2018, the power to refuse licnece by the Panchayat has been taken away. It is further contended that after the introduction of Rule 10 of the Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996, as amended on 07.04.2018, the Panchayat and the Secretary are duty bound to grant and renew licence, and cannot reject the licence. In fact, the Secretary of the Grama Panchayat has filed a detailed counter affidavit before the writ court refuting the allegations and the claims and demands raised by the writ petitioner, wherein it is pointed out that the Taluk Land Board, Meenachil have initiated proceedings against the property in question under the Kerala Land Reforms Act, 1963 and started a case on finding that the holder of the quarry site has exceeded the limit of the land; and the Taluk Land Board, as per Ext. R2(a) proceedings dated 04.07.2019, prohibited transfer of the lands as well as the quarrying and construction activities in the lands. Other contentions are also raised with respect to the said aspect.

Apart from the same, it is pointed out that the quarry site is in a thickly populated area, which is clear from Ext. R2(c) report dated 24.05.2022 submitted by the Tahsildar, Meenachil to the District Collector, Kottayam as well as Revenue Divisional Officer, Pala. In the report, it is stated that the quarrying site is at a distance of 60 meters from Pinnakkanda-Variyanikkad road. It is also submitted in the counter affidavit that building No. 7/196 owned by one Mathukkutty Muthanatt is at a distance of 48 meters from the quarry and the residential building of Kinattukara family is at a distance of 60 meters from the quarrying site. It is also stated that an anganavadi bearing No. 7/69 is situated at a distance of 175 meters and St. Joseph Church as well as Carmel Rani Public School is within half a kilometre from the quarrying site. It is also stated that the ‘Michabhoomi’ colony consisting of 120 houses and ‘Thadappally’ colony consisting of 20 houses and other colonies are situated within a distance of 200 metres from the quarrying site.

As per Ext. R2(c) report of the Tahsildar, a water tank having a capacity of 17000 litres is also existing at a distance of about 200 meters from the quarrying site, and that as per Section 40(2) of the Act, 2003, notwithstanding anything contained in any other law for the time being in force, no person shall, without the written permission of the Irrigation Officer, conduct mining or quarrying operation using explosives within a radius of one kilometer of any bridge, dam, check dam or any other work, structure or construction, owned, controlled or maintained by the Government, a local authority or any other authority. It is also the case of the Panchayat that the writ petitioner has not secured a 'No Objection Certificate' in contemplation of Section 40(2) of the Act, 2003 and consequently contends that Ext. P1 letter of intent and Ext. P2 environmental clearance would not have been granted for the proposed quarry of the writ petitioner.

That apart, it is pointed out that the Panchayat, as per Ext. R2(d) decision dated 09.06.2022, has requested the State Environmental Impact Assessment Authority (SEIAA) to reconsider the grant of Ext. P2 environmental clearance by invoking clause 8(vi) of the EIA Notification, 2006. It seems, as per Ext. R2(e) request dated 09.06.2022, the appellants have sought to cancel the letter of intent granted to the writ petitioner. Other contentions are also raised with respect to the licence secured by the writ petitioner for storage of explosives in a plantation.

Above all, it is submitted that when Ext. P5 application dated 05.03.2022 was received, the Panchayat has issued Ext. R2(g) letter dated 14.03.2022 to the writ petitioner stating that on the basis of a complaint received, a sub-committee is constituted to enquire into the ground reality of the complaint; and therefore, the petitioner is not entitled to get a deemed licence in contemplation of the provisions of Section 236(3) of the Act, 1994. That apart, it is pointed out that the Panchayat has rejected Ext. P5 application for licence on 24.05.2022, as is evident from Ext. R2(h) and the same was communicated to the petitioner as per Ext. R2(i) letter dated 01.06.2022. Therefore, according to the Panchayat, the observation in the judgment of the learned single Judge that the petitioner has secured a deemed licence and the consequential directions issued cannot be sustained under law.

Appellants in W.A. No. 962 of 2022 are residents within the limits of the appellant Grama Panchayat in the other writ appeal. Apart from the contentions advanced by the Panchayat in its counter affidavit and the writ appeal, it is stated that the writ petitioner has not produced Ext. P2 environmental clearance in its entirety, so as to make it appear that there are only 3 conditions contained under the environmental clearance. The appellants therein have produced the entire text of the environmental clearance issued by the SEIAA as Annexure A1, from where it is clear that apart from Ext. P2 produced by the writ petitioner, 48 general conditions are incorporated in the Environmental Clearance issued to the writ petitioner. Clause 18 thereto specifies that a minimum buffer distance of 100 metres from the boundary of the quarry to the nearest dwelling unit or other structures, not being any facility for mining, shall be provided.

According to the writ petitioner, the said condition was modified and the minimum distance was reduced to 50 metres consequent to the directions issued by the National Green Tribunal. Whatever that be, the learned counsel for the appellant in the said writ appeal has submitted that by virtue of the report submitted by the Tahsildar, it is clear that a building is situated within 48 metres and yet another residential building within 60 metres from one of the pillars of the quarry. The learned counsel has also relied upon Annexure A2 Government Order dated 19.03.2014 to contend that the Government have examined the situation with respect to the conduct of quarries and ordered that the authorities are empowered to give clearance, license, permits, consents or any kind of permission for projects/activities/processes etc. requiring prior clearance under the respective environmental statutes/orders, and no violation thereof shall be involved.

It is also submitted that the learned single Judge had issued directions permitting the writ petitioner to carry on the quarrying activities without identifying as to whether the petitioner has secured any clearance/licence under the Explosive Rules to store, transport, and operate the quarrying operations. Therefore, the sum and substance of the contention advanced by the appellants is that the direction issued by the learned single Judge cannot be sustained at all. It is also pointed out that the learned single Judge has not relied upon the provisions of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, 1996 (‘Rules, 1996’ for short), and if the provisions of Sections 233 and 232 of the Act, 1994 and Rules, 1996 are read together, it is clear that the writ petitioner/first respondent has not secured any deemed licence, in view of Ext. R2(g) communication dated 14.03.2022 issued by the Panchayat.

We have heard the learned counsel for the appellants Sri. Georgekutty Mathew and Sri. Harish Vasudevan, learned Special Government Pleader Smt. K.R. Deepa and Sri. Jobi Jose Kondody for the writ petitioner/first respondent, and perused the pleadings and materials on record.

Respective counsel have advanced their arguments in accordance with the deliberations made above. Primarily, the issue raised by the parties revolves around Section 236(3) of the Act, 1994, which reads thus:

“(3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary the application shall be deemed to have been allowed for the period, if any for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed.”

In fact, Section 236 deals with the general provisions regarding licences and permissions. On a perusal of sub-Section (3) thereto, dealing with deemed licence, it is clear that it is not an axiomatic provision, but it is subject to the law, rules, and by-laws and all conditions ordinarily imposed. Section 233 deals with permission for the construction of factories and the installation of machinery. Sub-Section (1) thereto specifies that no person shall, without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission, (a) construct or establish any factory, workshop, or workplace in which it is proposed to employ steam power, water power or other mechanical power, or electrical power; or (b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plan exempted by the provisions of the Act or the rules made thereunder. Sub-Section (2) thereto as it originally stood specifies that an application for permission under sub-Section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed.

However, after the amendment as per Act 14 of 2018, in Sub-Section (2) of Section 233, after the word ‘Secretary’, the words ‘or officer authorized by the Secretary’ was inserted. It is important to note that as per the Amendment Act 14 of 2018, sub-Section (2A) was added to Section 233, which specifies that the Secretary or officer authorized by him shall, issue an acknowledgement to the applicant, on receipt of application along with the supporting documents in the form, as may be prescribed, and shall verify the application and all supporting documents on the spot itself, and if any supporting document is not found attached along with the application, the Secretary or officer authorized by him shall, immediately inform the applicant in writing the list of missing documents and allow the applicant to submit the missing documents as early as possible, but not later than five days from the date of receipt of application.

Sub-Section (3) as it originally stood, was amended as per Act 14 of 2018 and it reads thus:

“(3) the Secretary or the officer authorised by him shall, as soon as may be, after the receipt of the application enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and possibility to cause nuisance or pollution and the Village Panchayat, after having considered the application and the reports of the Secretary and of such other authorities as specified in sub-section (4) may, as expeditiously as possible, within thirty days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose."

Therefore, on a reading of the amended sub-Section (3), it is clear that the Secretary or the officer authorised by him is duty bound to enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or work place or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighborhood and possibility to cause nuisance or pollution, and the Village Panchayat, after having considered the application and the reports of the Secretary and of such other authorities as specified in sub-section (4) may, as expeditiously as possible, within thirty days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose.

Sub-Section (4) of Section 233 reads thus:

(4) Before granting permission under sub-section (3), the village panchayat, shall obtain and consider.

(a) a report of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act 63 of 1948) or of an officer of the Industries Department not below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exits to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the Factories Act, 1948 (Central Act 63 of 1948) and such other matters as may be prescribed ;

(b) a report of the District Medical Officer in case the applicant is a Hospital clinic, para medical institution, clinical laboratories or other health care institution, regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 5 HP or if the nature of the machinery and installation are such that it may cause nuisance or pollution; and

(c) a report of the Divisional Fire Officer or any other officer authorised by him regarding the adequacy of fire prevention and fire fighting measures planned if the proposed industry involves the use of high tension power or inflammable or explosive materials;

Provided that, no report under clause (b) shall be called for in respect of any industry if the applicant produces a declaration recommended by an officer of the Industries Department authorised in this behalf or by the Kerala State Pollution Control Board to the effect that such industry would not cause pollution.”

Therefore, on a combined reading of sub-Sections (3) and (4) of Sections 233, it is clear that the mandate to grant establishment permit within a period of 30 days can only be after consideration of the report of the Secretary and the authorities mentioned in sub-Section (4). It is only after securing an establishment permit alone, trades and factories licence can be granted as provided under Section 232 of the Act, 1994. Apart from the same, Rules, 1996 has undergone amendment as per the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 2017 and basically, the words and brackets contained in the long title, “(Issue of licence to Dangerous and Offensive Trades and Factories)” was substituted with the words and brackets “(Issue of Licence to Factories, Trades, Entrepreneurship Activities and other services)”.

Further, Rule 5A was added to the Rules, whereby the manner in which the Secretary has to act on receipt of the application in contemplation of sub-Section 2A of Section 233 of Act 1994, is stipulated. So also, a proviso was added to Rules 6 dealing with the power of the President to take a decision, which specifies that “provided if the application is submitted along with the requisite clearance from other Departments stipulated under these Rules for grant of license along with the fee specified in the Schedule II, the President shall issue the licence applied for within seven days from the date of receipt of the application along with the requisite clearances”.

That apart, sub-Rule 3 of Rule 12, as it originally stood, specifies that the Village Panchayat shall, as soon as may be after the receipt of the application, within 45 days in the case of obtaining 'No Objection Certificate' from other establishments and within 30 days in other cases, (a) grant the permission applied for either absolutely or subject to such condition as it thinks fit to impose, or (b) refuse permission, if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighborhood or that it is likely to cause nuisance; or (c) where the application has not been disposed of within the specified time, licence shall be deemed to have been issued.

Sub-Rule (3) is substituted with the following words:

“The Village Panchayat shall, as soon as may be after receipt of application and within 30 days in all cases.”

That apart, in sub-Rule (3)(i), for clause (b) the following clause was substituted:

“(b) if it is of the opinion that such construction or establishment is objectionable by reason of high density of population in the neighbourhood and is likely to cause nuisance the Secretary shall as soon as may be after the receipt of application obtain an expert opinion of department concerned with regard to the determination of the nuisance or its abatement, at the cost of the owner or person in charge of the factory, workshop, workplace or machinery concerned and such report shall be furnished as soon as possible but not later than fifteen days of reporting of such nuisance and the village panchayat shall issue permission subject to such conditions as may be required for abatement of nuisance, if any, as recommended in the expert opinion of the concerned department; or”

Further, for clause (c) in Sub-Rule 3, the following clauses was substituted:

“if any order or an application for permission under this Act or rule is not communicated to the applicant within fifteen days from the date of receipt of application by the Secretary the permission shall be deemed to have been issued for the period required in the application subject to the Act, rules and bye laws and all conditions which would have been imposed; or”

On a conjoint reading of Sections 233 and the rules discussed above, it is categoric and clear that the Secretary/Panchayat has a duty to ensure that such construction or establishment is not objectionable by reason of high density of population in the neighbourhood and that there is no likelihood of any noise pollution. Clause (c) of Rule 12(3), as it originally placed, even though sweeping in nature, stipulates that where the application has not been disposed of within the specified time, licence shall be deemed to have been issued; as per the amended clause (c) of Rule 12, it is made distinct and clear that if any order on an application or permission under the Act or Rule is not communicated to the applicant within 15 days from the date of receipt of application by the Secretary, the permission shall be deemed to have been issued for the period required in the application subject to the Act, Rules and the Bye-laws and all conditions which would have been imposed.

Which thus means, when the Secretary is vested with powers to identify, by virtue of Section (2A) of Section 233 of Act, 1994, and Rule 12(3)(b) of the Rules, 1996 as to the high density of population in the neighbourhood and the likelihood of causing nuisance, it can only be interpreted to mean, issuance of licence within 15 days from the date of the report of the Secretary with respect to the density of population and the likelihood of causing a nuisance.

In our view, if such a stand is not taken, the provisions of sub-Section 2A of Section 233 and Rule 12(3)(b) of Rules, 1996 would become otiose and redundant. It is true, the Secretary has to take a decision in accordance with the said provision within a reasonable time. This is a case where on receipt of the application on 05.03.2022, the Secretary has issued a letter dated 14.03.2022 to the writ petitioner stating that in view of a complaint received, it has constituted a committee to identify the issues.

We are also of the view that the learned single Judge has not taken into account the amended Section 2A of Section 233 and the amended sub-Rule 3 of Rule 12 of the Rules, 1996 in respect of the power conferred on the Secretary to identify as to whether the area in question is thickly populated and whether there is a likelihood of causing nuisance consequent to the operation of the quarry.

It is evident from Ext. R2(c) report of the Tahsildar submitted to the District Collector that there is a building situated within 48 metres of the quarry belonging to one Mathukkutty and yet another residential house is situated within 60 metres. It is also clear from Annexure A1 environmental clearance issued by the SEIAA that along with environmental clearance, general conditions were incorporated and as per clause 18, it is made clear that a minimum buffer distance of 100 metres from the boundary of the quarry to the nearest dwelling unit or other structures shall be maintained. The report filed by the Tahsildar before the District Collector is not under challenge. Moreover, the Panchayat has a case that a water tank having capacity of 17000 litres is situated half a kilometre away from the quarrying site and therefore, as per the provisions of the Act, 2003, necessary NOC should have been secured from the authority under the Act, 2003.

Therefore, in our considered opinion, it cannot be said that by virtue of the deeming provision contained under Section 236(3) of the Act, 1994, a deemed licence is secured by the writ petitioner after a period of 30 days from the date of submission of the application. However, we are of the opinion that the entire aspects of the matter has to be reconsidered by the Panchayat/Secretary within a time period to be prescribed by this Court untrammeled by the decision of the Panchayat committee as per Exhibit R2(h) and the consequential order of rejection as per R2 (i).

Therefore, the appeals are allowed, and accordingly we set aside the impugned judgment of the learned single Judge. Consequently the Panchayat Committee/Secretary are required to take a decision in contemplation of the provisions of law discussed above, taking into account, any report drawn or to be drawn, all relevant materials available, and carrying out any measurement to identify the distances, at the earliest, and at any rate, within 30 days from the date  of  receipt  of  a  copy  of  this  judgment  after providing  an opportunity of participation and hearing to all concerned.