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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN & A.M. SHAFFIQUE, JJ.
RAMAPURAM GRAMA PANCHAYAT - APPELLANT
Vs.
ST.BASIL INDUSTRIES INDIA (P) LIMITED & ORS. - RESPONDENTS
W.A. No. 2760 of 2015 & W.A.No.78 of 2016
Decided On : 02-03-2016
Kerala Panchayat Raj Act 1994 - Sections 232 and 233 - Constitution of India, 1950 - Article 19(1)(g) and 226 - Air (Prevention and Control of Pollution) Act 1981 - Environment (Protection) Act 1986 - Purpose for which places may not be used without a license - Permission for the construction of factories and the installation of machinery - Rejection of the permit/licence was not on account of any valid reason which would have come to the aid of the Panchayat in terms of S.233, whereas they have virtually entrenched into the area which are to be considered by other competent authorities and had rejected the application - Challenging the rejection of licence on factual material but taking a contention that the Panchayat has rejected the licence based on matters extraneous for consideration by the Panchayat and therefore, it violates Art.19(1)(g) of the Constitution - Whether permission from the Panchayat was required for the purpose of functioning quarrying unit having licence under the Minor Mineral Concession Rules. Such a question does not arise for consideration in the present appeal - Held, A party, whose remedy by way of an appeal Writ Petition was rightly entertained by the learned Single Judge and cannot be dismissed merely for reason that appeal was dismissed on ground of delay - Consent has been issued under Act, 1981 and Act, 1986, by itself indicate that allegation of the Unit causing pollution is baseless - Unless Unit is established and functioning, it may not be possible for the Panchayat to come to a conclusion that the Unit causes pollution. If after establishing the Unit, any pollution is caused, it is always open for the Panchayat or the Kerala State Pollution Control Board, as the case may be, to take appropriate preventive measures or even revoke or suspend the licence if there is non compliance of the statutory provisions - When a competent authority like the SEIAA having considered and granted environmental clearance in terms of the judgment of the Supreme Court and permitted mining activities enumerating about 22 conditions, there was no reason for interfering with the discretion exercised by the said authority by rejecting the application for the very same reason for which environmental clearance had been granted - Being a private property, Panchayat cannot take a view that they have a right to prevent any activity in the property for public purposes - It is private land and the owner or holder of the land is entitled to utilize the land in accordance with his wish and of course subject to reasonable restrictions.
Shaffique, J.
These appeals have been filed challenging the judgment dated 17/11/2015 in WP(C) No. 19503/2015. Writ Appeal No.2760/15 is filed by the Ramapuram Grama Panchayat, the 1st respondent in the writ petition and WA No. 78/2016 has been filed by respondent Nos.2 to 4 in the writ petition.
2. The writ petition has been filed by the 1st respondent in these appeals challenging Exts.P6 and P7 and for a direction to the respondent Panchayat to grant licence in favour of the petitioner's quarry. The parties are referred to as shown in the writ petition.
3. The short facts involved in the writ petition would disclose that the petitioner, a Private Limited Company, had obtained quarrying lease from Government of Kerala for quarrying granite building stones from a property having an extent of 4.1341 hectares which is situated in Ramapuram Grama Panchayat. Petitioner obtained Environmental Clearance from the State Environment Impact Assessment Authority (for short SEIAA) as per proceedings dated 7/4/2013. Ext.P2 dated 26/9/2013 is the quarrying lease by which permission has been granted for quarrying for a period of twelve years commencing from 26/9/2013. Petitioner obtained consent to operate from the Pollution Control Board, permit from the Controller of Explosives, District Medical Officer etc,.
4. However, when the petitioner approached the Panchayat for licence in terms of the Kerala Panchayat Raj Act, 1994 (hereinafter referred as the Act) and the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules (hereinafter referred as the D&O Rules), their application was rejected as per Ext.P6 order dated 14/3/2014. The resolution passed by the Panchayat stating the reasons for rejecting the permit is produced as Ext.P7.
5. Petitioner filed WP(C) No. 8123/2014 challenging the rejection of permit by the Panchayat on the ground that the petitioner had obtained a deemed licence. The said claim was rejected by this Court. However, petitioner was permitted to challenge the validity of Ext.P6 order before the Tribunal for Local Self Government Institutions. An appeal was filed, along with a petition to condone delay, by claiming exclusion of the period during which the writ petition was pending before this Court in terms of Section 14 of the Limitation Act. The Tribunal condoned the delay. However, the said order came to be challenged by certain persons in the locality by filing WP(C) No. 35078/2014. This Court held that the Tribunal did not have the power to condone the delay. Accordingly, the Tribunal's order was set aside. Under these circumstances, this writ petition has been filed inter alia contending that when the petitioner has all necessary licence/permission from all competent authorities, there was no reason for the Panchayat to have refused the licence on the very same grounds on which the statutory authorities had granted permission. The main contention urged by the petitioner was that when environmental clearance was granted by the competent authority, the question of environmental degradation could not have been considered by the Panchayat. When the consent to operate had been issued by the Pollution Control Board, the allegation of pollution cannot be taken up by the Panchayat. The District Medical Officer has given a positive report in the matter and therefore the health of the people in the locality will not be affected by the grant of such licence. Therefore, all necessary precautionary measures which are required to be enquired into by the Panchayat have been made available and under such circumstances, the reasons stated in Exts.P6 and P7 have no relevance at all for rejecting the licence.
6. Counter affidavit has been filed by the Panchayat supporting the stand taken by them. It is stated that after receiving the application, site inspection was conducted and a report was prepared on 15/2/2014. It was found that necessary documents like the No Objection Certificate issued
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