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2024 Supreme(Online)(Ker) 86306
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JUSTICE, J
AJIKUMAR N. – Appellant
Versus
MALAYALAPUZHA GRAMA PANCHAYAT – Respondent
Writ Petition
For the Appellants/Petitioners: Sri. S. Sreekumar
For the Respondents: Sri. Shaj
Statutory exemptions under the Kerala Panchayath Raj Act for portable machinery negate the need for additional permits, leading to the quashing of the panchayat's refusal to grant a quarry licence.
Headnote:(A) Kerala Panchayath Raj Act, 1994 - Sections 232 and 233 - Licence application for quarry operation - Refusal based on non-obtaining establishment and building permits, and existence of a road - Exemption for portable drilling machines under Section 233B established - Previous judgments clarify that portable machinery does not require an establishment permit - Court quashes refusal and directs reconsideration of the application. (Paras 4, 12)
(B) Statutory Authority - Powers must be exercised bonafide and for the intended purpose under the Act - Erroneous reasoning by panchayat in refusal of licence highlighted. (Paras 12)
Facts of the case:
The petitioner applied for a quarry licence, which was refused by the panchayat citing three reasons, including the lack of necessary permits and the existence of a road. The petitioner argued exemptions under the Act for portable machinery and provided evidence of compliance with safety regulations.
Findings of Court:
The court found the panchayat's reasons for refusal to be erroneous and unsustainable, particularly regarding the exemption for portable machinery and the non-existence of a claimed road.
Issues: The main issues included the validity of the panchayat's reasons for refusal and the applicability of exemptions under the Act for the quarry operation.
Ratio Decidendi: The court ruled that the panchayat's refusal was not justified, emphasizing that the exemptions for portable machinery under Section 233B apply, and the reasons given were insufficient to deny the licence.
Result: The court quashed the refusal and directed the panchayat to reconsider the application within four weeks.
| Table of Content |
|---|
| 1. petitioner challenges refusal of quarry licence based on non-compliance with permits. (Para 2 , 6 , 8) |
| 2. court examines exemptions for portable machinery and existing road claims. (Para 3 , 4 , 5 , 7 , 10 , 11) |
| 3. court finds panchayat's reasoning erroneous and unsustainable. (Para 9 , 12) |
| 4. court orders reconsideration of the licence application. (Para 13) |
JUDGMENT
The petitioner challenges Ext.P16 order passed by respondents 1 and 2 on an application preferred by the petitioner under Section 232 of the Kerala Panchayath Raj Act , for a licence to operate a quarry. Three reasons stated in Ext.P16 order, for refusing the licence sought for by writ petition are as follows;
(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.
(ii) Petitioner has not obtained a building permit for constructing the explosive magazine.
2. As far as the 1st defect is concerned, that the petitioner has not obtained an establishment permit under Section 233 prior to the licence under Section 232 , the learned Senior Counsel Sri. S. Sreekumar relies on the consent granted by the Pollution Control Board dated 13.07.2022, which shows the machinery details as Jack Hammer – 45 HP(1 No.), Breaker – 80HP (1 No.), Total – 125 HP).
3. Going by Section 233 B , which provides for exemptions, stipulates that notwithstanding anything contained in Section 233 , no permission for panchayat shall be required for the installation of establishments of the following machinery or manufacturer in plants or industrial units, as the case may be for portable drilling machines and portable engines used for construction purposes, such as concrete mixers;
4. Construing the above provision, this Court in the judgment inAjantha v. Nagaroor Grama Panchayat (2018 (3) KLT 2022), found that the exemption was contemplated for portable drilling machines, irrespective of the industrial sector in which they were used. It was declared that in the event of the portable drilling machine being operated in the quarry, he would not require an establishment permit under Section 233 of the Kerala Panchayath Raj Act for the said activities.
5. The learned Counsel appearing for the panchayat Sri. Shaj relied on the judgment of this Court in Gem Granites v. Dy. Supdt. of Police ( 2008 (1) KLT 937 ), to argue that the running of a quarry is a work place where heavy machinery and electricity will be used and therefore, it must be treated as a work place for which licence is required under Section 233 of the Panchayat Act. It must be noted that the Division Bench was not considering a case of an exemption under Section 233 (B), but one filed for police protection. The issue of exemption under Section 233 (B) in particular, as regards the portable building machines, is covered in favour of the petitioner by the judgment of this Court in Ajantha’s case (Supra). Accordingly, no reliance can be placed on the Division Bench judgment inGem Granites’s case (Supra) to state as a principle that the exemption will not be available in a case were only portable machines are used. It is made clear that if the petitioner uses any machine other than what they have been permitted, it will be open to the panchayat to take appropriate action in accordance with law to prevent such use, by alerting the authorities, who gave the respective licences. The objection of the panchayat as regards the first defect has to be rejected based on the above reasons.
6. The 2nd objection raised by the panchayat is that no building permit was obtained for constructing the explosive magazine. Learned Senior Counsel appearing for the petitioner points out that the licence issued to him by the Petroleum and Explosive Safety Organization (in short PESO) dated 15.03.2022 is for portable magazines of M & A type fabricated by M/s. Industrial Explosives Pvt. Ltd., Nagapur, bearing magazine Nos.2 &
