Statutory compliance under Section 233 of the Kerala Panchayat Raj Act is essential for quarrying applications, notwithstanding any claimed exemption for portable drilling machines.

JUDGMENT :

NITIN JAMDAR, C.J.

1. Heard Mr.K.shaj, learned counsel for the Appellants - Panchayat and Mr.S.Sreekumar, learned Senior Advocate for Respondent No.1 – Original Petitioner.

2. A perusal of the record proceedings would show that this is around the fourth round of litigation surrounding the permissions to be granted by the Appellant – Panchayat to the Respondent – Original Petitioner for conducting quarrying operations. In each successive round, grounds taken by the Appellant–Panchayat have either been negatived, or the matter has been remanded for reconsideration. Ultimately, the last round has resulted in Ext.P16 document, where three grounds have been taken for rejection, which reads thus:

(i) Petitioner has not obtained an establishment permit under Section 233 prior to a licence under Section 232.

(ii) The existence of a road which is mentioned in the asset register.

(iii) Petitioner has not obtained a building permit to construct the explosive magazine.

3. Therefore, the main ground that the Appellant urges – Panchayat is the necessity for the Respondent - Original Petitioner to apply under Section 233 of the Kerala Panchayat Raj Act, 1994 (the Act) which mandates that permission of Panchayat is required for the industrial construction of any factory, workshop or workplace which proposes to employ mechanical, electrical and other types of power. According to the Respondent–Petitioner, portable drilling machines are exempted under Section 233 B(d) of the Act, and since the Petitioner intends to employ only portable drilling machines, there is no need to apply for permission under Section 233 of the Act.

4. The learned Single Judge has accepted the stand of the Petitioner referring to the decision of the learned Single Judge in Ajantha v. Nagaroor Grama Panchayaat , 2018 (3) KLT 22 . The Appellant–Panchayat, on the other hand, relied on the decision of the Division Bench of this Court in Gem Granites v. Dy. Supdt. of Police , 2008 (1) KLT 937 and the decision of another learned Single Judge of this Court in Mathai John v. District Collector , 2015 (3) KLT 195 to contend that portable drilling machines are not part of the exemption and are covered under Section 233 of the Act. Therefore, the controversy is whether there is necessary to make an application when the Petitioner intends to use portable drilling machines.

5. The learned counsel for the Petitioner submits that even though the Petitioner contends that the portable drilling machines are all under the exempted category, to curtail further litigation, the Petitioner is not averse to making an application under Section 233 of the Act for permission. That being the position and no other impediment is shown to us as to why under Section 233 of the Act the application cannot be processed, we intend to pass orders setting up a time to schedule for filing the application and its disposal.

6. Turning to the second ground, which is the existence of a road concerned, this criterion is neither shown to be traceable to Section 233 nor to Rule 5 of the Kerala Panchayat and Building Rules, 2019 (the Rules), to withhold the permission itself. According to the Panchayat, the observations made in the impugned judgment that there is no such public road will affect the Panchayat and these criteria have been wrongly taken into consideration while granting environmental clearance. The Environmental Authority has observed that there does not exist a public road in Ext.P19 and has granted environmental clearance. The learned counsel for the Appellant