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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937
WA.No. 2760 of 2015 () IN WP(C).19503/2015
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AGAINST THE ORDER/JUDGMENT IN WP(C) 19503/2015 of HIGH COURT OF KERALA
DATED 17-11-2015
APPELLANT(S)/1ST RESPONDENT:
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RAMAPURAM GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, RAMAPURAM BAZAR, P.O
KOTTAYAM DISTRICT 686 576
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
RESPONDENT(S)/PETITIONER AND RESPONDENTS 2 TO 4:
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1. ST.BASIL INDUSTRIES INDIA (P) LIMITED
REPRESENTED BY ITS DIRECTOR SHANS PAUL
P.B NO.2 MMC VI 710C9, II FLOOR, SURYA TOWER
VELLORKUNNAM, MUVATTUPUZHA, ERNAKULAM 686 673
2. K.N THANKAPPAN
S/O.NARAYANAN, KUZHUNNUKANDATHIL HOUSE, KIZHATHIRI P.O
KOTTAYAM DISTRICT 686 576
3. SARASWATHIAMMA K
KOCHUMADATHIL HOUSE, KIZHATHIRI P.O
KOTTAYAM DISTRICT 686 576
4. C.N PRABHAKARAN
VADAKKEL HOUSE, KIZHATHIRI P.O
KOTTAYAM DISTRICT 686 576
R1 BY ADV. SRI.P.K.SURESH KUMAR (SR.)
R1 BY ADV. SRI.BIBIN KUMAR
R2 TO 4 BY SRI.GEORGEKUTTY MATHEW
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2016, ALONG
WITH WA. 78/2016, THE COURT ON 02/3/2016 DELIVERED THE FOLLOWING:
ASHOK BHUSHAN, C.J. "C.R."
&
A.M. SHAFFIQUE, J.
================
W.A. No. 2760 of 2015
&
W.A.No.78 of 2016
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Dated this, the 2nd day of March, 2016
J U D G M E N T
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 W.A. Nos.2760/15 & 78/16 -:2:- 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 W.A. Nos.2760/15 & 78/16 -:3:- 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 W.A. Nos.2760/15 & 78/16 -:4:- 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 by the District Medical Officer and the Fire and Safety Certificate which are necessary for considering such an application under Sec.233 of the Act were not produced along with the documents submitted by the petitioner. Hence, letters were issued to the said authorities. Certain clarification was also sought with reference to the blaster licence. It is stated that subsequently the petitioner W.A. Nos.2760/15 & 78/16 -:5:- under cover of letter dated 19/2/2014 submitted the study report of the Ministry of Environment and Forest (MoEF). The Panchayat Committee considered the matter and decided to conduct a site inspection. Site inspection was conducted and a report was prepared. In the report it was stated that though the petitioner was not permitted to conduct quarrying operations in areas having slopes of more than 45o in the land in question, in so far as the slope is more than 70o, the clearance of MoEF was issued without seeking opinion from the Panchayat and without conducting any site inspection, but based on Google map. The Panchayat Committee found that if quarrying operations are permitted, it will pollute natural water sources, cause ecological imbalance to the area which is prone to earth quake, land sliding etc,. Therefore, it was decided not to grant permit or licence to the petitioner in terms of Ext.P7 decision and the same was communicated by letter dated 14/3/2014.
7. It is further contended that in so far as the judgment in WP(C) No. 8123/14 has become final, it is not open for the petitioner to reagitate or reopen the matters involved in or the questions that had arisen for consideration. The Panchayat W.A. Nos.2760/15 & 78/16 -:6:- therefore supported the stand taken in the matter.
8. Respondents 2 to 4 were not originally parties to the proceedings and they were impleaded in the case. They filed a counter affidavit supporting the stand taken by the Panchayat. According to them, the decision was taken by the Panchayat in terms of Ext.P7 to secure the well being of the people in the area and that apart, there is no mining plan which is mandatory in terms of the Kerala Minor Mineral Concession Rules, 2015. They also contended that the writ petition is not maintainable in view of the earlier judgment in WP(C) Nos. 8123/14 and 35078/14. The learned Single Judge after considering the entire legal and factual issues involved in the matter allowed the writ petition, quashed Exts.P6 and P7 and the respondent Panchayat was directed to reconsider the issue and grant licence on the basis of Ext.P1 environmental clearance and to issue formal orders granting permit within a period of one month from the date of receipt of a copy of the judgment.
9. Heard learned counsel Sri.Philip T. Varghese appearing on behalf of the appellant Panchayat, Sri.Georgekutty Mathew appearing on behalf of the appellants in WA No.78/2016 W.A. Nos.2760/15 & 78/16 -:7:- and Sri.P.K.Suresh Kumar, learned senior counsel appearing on behalf of the writ petitioner.
10. The main contention urged on behalf of the appellants is that when the Panchayat has taken a conscious decision to reject the licence on various grounds, there was no reason for the learned Single Judge to have overlooked the said reasons merely for the reason that the petitioner had obtained all other licence/permission from other statutory authorities. It is argued that as per the Act, it is for the local authority to consider whether an industrial unit can be permitted to operate in a particular Panchayat. When the Sub committee of the Panchayat has after conducting a site inspection formed an opinion that permitting operation of the quarry will be disadvantageous to the people in the locality and it will affect the water source in the locality, the learned Single Judge should not have interfered with the said findings made by the Panchayat Committee. That apart, the writ petition is not maintainable on account of the fact that in an earlier proceeding, the petitioner was relegated to challenge Exts.P6 and P7 by preferring an appeal. Though the delay in filing the appeal was condoned by the Tribunal, the appellate authority, W.A. Nos.2760/15 & 78/16 -:8:- the said order was set aside by this Court in WP(C) No. 35078/14. It is contended that even in WP(C) No. 8123/14, the petitioner had challenged Exts.P6 and P7. But, the learned Single Judge did not consider the same and therefore when the said judgment had become final, another writ petition for the same relief is not maintainable. Hence, the writ petition is barred by the general principle of res judicata. It was also argued that obtaining environmental clearance was not at all a substitute for the Panchayat to take a decision in the matter when the Panchayat is given the right to issue permit for establishing a unit, the said right cannot be taken away by another authority granting permission for setting up the unit. The consideration made by the Panchayat for permitting establishment of the unit under Section 233 of the Act is totally different from the manner in which issues are considered by the other authorities. It is stated that pollution and density of population are matters which are to be considered by the Panchayat in terms of Section 233 of the Act and when a decision is taken based on the materials made available, there was no reason for the learned Single Judge to have interfered in the matter.
W.A. Nos.2760/15 & 78/16 -:9:-
11. The learned counsel for the appellants also placed reliance on a Division Bench judgment of this Court in Gem Granites v. Deputy Superintendent of Police (2008 (1) KLT
937). That was a case in which the petitioner sought for police protection to carry on quarry operations in his property for which he obtained a quarrying lease. It was contended by the respondents that the petitioner did not have the statutory licences/clearance under the relevant statutes and therefore he cannot carry on the quarrying activity. The question that was considered was whether a person who obtained permission under the Kerala Minor Mineral Concession Rules to extract granite is entitled to operate the quarry without licence from the Grama Panchayat under the provisions of the Panchayat Raj Act and the Rules framed thereunder. After considering the said issue, it was held that the provisions of the Kerala Panchayat Raj Act and the Rules framed thereunder and the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder operate in different fields. It was therefore held that permit/licence is required under the Panchayat Raj Act notwithstanding the lease granted under the provision of the W.A. Nos.2760/15 & 78/16 -:10:- Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder. Relevant portions in the judgment read as under:
"We notice that the provisions of the Kerala Panchayat Raj Act and the Rules framed thereunder and the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules framed thereunder operate in different fields. They occupy different areas. One, inter alia, is concerned with the well being of the people of the Grama Panchayat by regulating dangerous and offensive trades. If a dangerous or offensive trade takes place at a mine or a quarry, permit or licence for the same is required, notwithstanding the lease granted under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules framed thereunder. So, licence/permission under the one Act is not a substitute for the licence/permission under the other Act. The contention raised in this regard on behalf of the petitioner is untenable and we reject the same. This view taken by us is supported by the decision of the Division Bench of this Court in C.A. Industries v. K. Poura Samithi (1995 (2) KLT 720).
12. For running its establishment, which is evidently a work place where heavy machinery and electricity are used, the petitioner must get the required permission under S.233 of the Panchayat Raj Act from the local Grama Panchayat. Therefore, W.A. Nos.2760/15 & 78/16 -:11:- without the necessary permission/licences, the petitioner is not entitled to operate its quarry or mine. So, in the absence of any legal right to run its establishment, the petitioner cannot seek any police protection for the same. We make it clear that we have not considered the genuineness of the claims of the workmen for employment. They are to be decided by the appropriate authorities. It is also made clear that we have not decided regarding the requirement of clearance from the Pollution Control Board for the running of the petitioner's establishment, as the same has not been specifically raised and argued before us."
12. Another judgment relied upon is Action Council v. Benny Abraham (2002 (2) KLT 228 (SC). That was a case in which the Panchayat refused grant of licence for installing a metal crusher machine. Though the petitioner obtained NOC from the environmental authorities, Panchayat did not grant permission stating that in the interest of public, it cannot be permitted. Panchayat also ascribed four reasons for rejecting the licence. Supreme Court observed that since all the reasons are germane to the issue and cannot be held to be arbitrary or fictitious, there was no reason for the High Court to have interfered with the said decision of the Panchayat. It was held that in the facts and W.A. Nos.2760/15 & 78/16 -:12:- circumstances of the case, Panchayat was justified in refusing to grant licence to the entrepreneur.
13. The learned counsel also relied upon a Constitution Bench judgment in Municipal Corporation, Ahmedabad v. Jan Mohammed (AIR 1986 SC 1205). The Supreme Court in that case was considering whether closure of slaughter houses for seven days in terms of the standing orders, amounts to an unreasonable restriction on the fundamental right guaranteed to a beef dealer. While considering the said issue, Supreme Court held at para 15 as under:
"15. Before proceeding to deal with the points urged on behalf of the appellants it will be appropriate to refer to the well-established principles in the construction of the constitutional provisions. When the validity of a law placing restriction on the exercise of a fundamental right in Art. 19(1)(g) is challenged, the onus of proving to 'the satisfaction of the Court that the restriction is reasonable lies upon the State. If the law requires that an act which is inherently dangerous, noxious or injurious to the public interest, health or safety or is likely to prove a nuisance to the community shall be done under a permit or a licence of an executive authority, it is not per se unreasonable and no person may claim a licence or a permit to W.A. Nos.2760/15 & 78/16 -:13:- do that act as of right. Where the law providing for grant of a licence or permit confers a discretion upon an administrative authority regulated by rules or principles; express or implied, and exerciseable in consonance with the rules of natural justice, it will be presumed to impose a reasonable restriction. Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion the law ex facie infringes the fundamental right under Art. 19(1)(g). Imposition of restriction on the exercise of a fundamental right may be in the form of control of prohibition. But when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the interest of general public lies heavily upon the State. In this background of legal position the appellants have to establish that the restriction put on the fundamental right of the respondents to carry on their trade or business in beef was a reasonable one. The Court must in considering the validity of the impugned law imposing prohibition on the carrying on of a business or a profession attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be W.A. Nos.2760/15 & 78/16 -:14:- harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency, national or local, or the necessity to maintain necessary supplies or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that a case for imposing restriction is made out or a less drastic restriction may ensure the object intended to be achieved."
Ultimately it was held that the standing orders adopt a classification based on sound and intelligible basis and can quite clearly stand the test laid down in the said case.
14. The appellants also relied upon judgment of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval (2005 (4) KLT 947). The issue considered in the said case related to the right of assessees to challenge the demand for service tax after the statutory appeals were dismissed on the ground of delay. It was held at paras 7 and 8 as under:
"7. At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot W.A. Nos.2760/15 & 78/16 -:15:- get the appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Article 226 of the Constitution of India. Once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant.
W.A. Nos.2760/15 & 78/16 -:16:-
8. The learned counsel for the respondents has cited before us a decision of the Madras High Court in Maheswary Fire Work Industries v. Commercial Tax Officer and Others reported in 12 STC 272, which held that "although, as far as the appellate authority is concerned under the Tamilnadu General Sales Tax Act, 1959, its jurisdiction and power to condone delay is limited to a period of 30 days, that limitation cannot be made applicable to the High Court while exercising jurisdiction under Art.226 of the Constitution of India." With great respect, we are unable to persuade ourselves to agree with the said decision which does not also contain any reasoning for holding so. According to us, all the remedies of the respondents have come to an end when their appeals were dismissed by the Commissioner of Central Excise (Appeals) on the ground of limitation. Even the further appellate authority or this court does not have the jurisdiction to entertain the claim on merits disregarding the limitation or condoning the delay. In any event, the appellants have not pleaded any extraordinary circumstances warranting interference, even if we had the jurisdiction to do so."
Further reference is made to a judgment of the learned Single Judge of this Court in Thomas Thomas v. Kottayam Municipality (2008 (3) KLT 964) wherein the learned Single W.A. Nos.2760/15 & 78/16 -:17:- Judge had taken a view that once an appeal before the Tribunal has been dismissed on the ground of delay, it is not open for the appellant to invoke power under Article 226 and bypass statutory restrictions and get the delay condoned. It is held at para 11 as under:
"11. From the aforesaid judgments it is clear that once the statutory period of limitation has expired, the party looses its right of appeal. Thereafter it is not open to him to invoke the power of this court under Art.226 of the Constitution and bypass the statutory restrictions and get the delay condoned or to have the matter examined by this court. Admittedly proviso to R. 8(3) authorises the Tribunal to condone delay of only one month if it is satisfied that there is sufficient reason for the delay.
The power conferred on the Tribunal being restricted, in my view, the above two judgments of this court gives a complete answer to the contentions of the petitioner."
15. On the other hand, learned counsel appearing for the writ petitioner submitted that the learned Single Judge was justified in setting aside Exts.P6 and P7 and sufficient reasons have been stated by the learned Single Judge in invoking the jurisdiction of the Court. When the learned Single Judge has W.A. Nos.2760/15 & 78/16 -:18:- exercised the jurisdiction and had set aside Exts.P6 and P7, in the absence of any perversity or illegality in the judgment, there is no reason for this Court to exercise the appellate jurisdiction. It is also contended that the appellants have in fact challenged the decision of the Panchayat in WP(C) No. 8123/2014. However, the learned Single Judge who considered the matter did not consider the contentions on merit, whereas only the question relating to the petitioner's claim for deemed licence has been considered. The petitioner was therefore given liberty to challenge the impugned decision by approaching the statutory appellate authority. It is contended that there was no decision on merits as far as the challenge to Exts.P6 and P7 were concerned. Though the Tribunal allowed the application to condone delay, in another judgment of this Court in WP(C) No. 35078/2014, this Court had set aside the said order by forming an opinion that the Tribunal has no power to condone delay. It is therefore contended that there could not be a situation where the person is without any remedy at all and therefore, only a Constitutional Court can interfere in the matter. It is argued that this case has no similarly to the judgment in Krishna Poduval (supra) as that was a case W.A. Nos.2760/15 & 78/16 -:19:- relating to a separate set of facts where a penalty had been imposed for non payment of service tax. In this case, the Court was concerned with rejection of an application for permit/licence and not with reference to any imposition of service tax/penalty. The petitioner had obtained quarrying permission for quarrying lease for a period of twelve years from 26th September, 2013. A decision of this Court with reference to a fiscal statute, where there is an adjudication of rights, cannot be made applicable to the fact situation. The learned Single Judge was therefore right in relying upon the judgment in Chandi Prasad v. Jagdish Prasad (2004 (3) KLT 654) and State of Kerala v. Kondottyparambanmoosa [2008 (3) KLT 730 (SC)]. It is further argued that the question of res judicata does not apply in so far as the issues raised by the petitioner was not decided on merits. This question was considered by the learned Single Judge by relying upon Paul Industries (India) v. Union of India & Others [(2004) 13 SCC 340], Mool Shankar Singh v. Regional Manager, PNB and another [(2004) 9 SCC 754] and Hoshnak Singh v. Union of India & Others (AIR 1979 SC 1328).
16. Learned Single Judge having found that this is an extra W.A. Nos.2760/15 & 78/16 -:20:- ordinary situation where the licence/permission had been declined on environmental grounds, it amounts to violation of petitioner's fundamental right under Article 19(1)(g) of the Constitution of India and relying upon Olga Tellis and Others v. Bombay Municipal Corporation & Others (AIR 1986 SC 180), it was held that there was justification to entertain the writ petition.
17. Having regard to the aforesaid factual issues, the following issues arise for consideration:
(1) Whether the writ petition is barred by the general principle of res judicata?
(2) Whether the writ petition is maintainable on account of the dismissal of the appeal on the ground of delay?
(3) Whether the Panchayat has the power to refuse permission under Section 233 and licence under Section 232 of the Act even if the petitioner has all other statutory permission/clearances? (4) Whether the learned Single Judge was justified in quashing Exts.P6 ad P7 and directing the Panchayat to grant licence?
W.A. Nos.2760/15 & 78/16 -:21:-
18. WP(C) No. 8123/2014 was filed by the petitioner challenging Exts.P6 and P7. The contention urged was that the petitioner has a deemed permit to establish the unit. Ext.P17 in the said case is Ext.P6 in the present writ petition, by which the Secretary of the Panchayat had informed the petitioner that permit cannot be granted and that his application is rejected. The petitioner challenged Ext.P17 on the ground that it is a futile order. The judgment in WP(C)No. 8123/2014 is Ext.P8 wherein the learned Single Judge, in fact did not consider the validity or otherwise of Ext.P17. The only question considered was whether the petitioner has a deemed licence or not. Having found that the claim for deemed licence was not justified, it is held as under:
"Under the above mentioned circumstances, the writ petition deserves no merit. However, liberty of the petitioner is reserved to challenge the impugned decision by approaching the statutory appellate authority. The writ petition is dismissed reserving such liberty."
Therefore, it is clear that this Court did not consider the validity of Ext.P17 decision of the Panchayat. Hence, the proceedings in WP (C) No. 8123/2014 cannot be treated as a judgment on merits by which the present writ petition can be rejected on the principle of W.A. Nos.2760/15 & 78/16 -:22:- res judicata.
19. Coming to the next question, the facts disclose that the Tribunal had allowed IA No. 2503/2014 in Appeal No.798/2014 which was a petition to condone delay seeking exclusion of 12 days from the period of limitation. The same came to be challenged before this Court by filing WP(C) No.35078/2014 by the respondents 2 to 4 in the present writ petition. The learned Single Judge in that case did not consider the claim of the petitioners on merits. However, it was found that the Tribunal had no jurisdiction to condone the delay. It was held at para 58 as under:
"58. All through the conduct of the second respondent cannot be termed as blameworthy, or remiss in any sense. He has, indeed, prosecuted his case with due diligence, albeit before a constitutional court, when he has an efficacious alternative remedy. On that ground alone has he been non-suited. He was, in fact, given liberty to approach the appellate forum. The fact, however, remains that this Court's direction in WP(C) No.8123 of 2014 of granting liberty, does not, to me, appear to have the potential of nullifying a statutory mandate as to limitation."
The learned Single Judge allowed the writ petition setting aside W.A. Nos.2760/15 & 78/16 -:23:- the order passed by the Tribunal.
20. In the present writ petition, the petitioner has contended at para 4 of the writ petition as under;
"4. The petitioner is now back to square one and is deprived of ordinary remedies, statutory or otherwise, against Ext.P6 order. In the circumstances, the petitioner has no other alternative but to approach this Hon'ble Court under Article 226 of the Constitution of India in challenge of Exhibit P6 order and the decision which forms the basis of said order. The loss of a statutory remedy does not mean that the petitioner has lost his constitutional remedies. Ext.P6 order is therefore amenable to judicial review by this Hon'ble Court under Article 226 of the Constitution of India on the following among other:-"
21. The learned Single Judge considered the matter in great detail. In Thomas Thomas (supra), in fact this Court was considering an almost similar issue. That was a case in which petitioners filed an application for building permit at a stage when they were issued with notices for demolition of the structure. They filed appeal before the Tribunal for Local Self Government Institution challenging the notice of demolition. As per directions of the Tribunal, again an order was passed by the Municipality W.A. Nos.2760/15 & 78/16 -:24:- which was again challenged in appeal before the Tribunal. Again the matter was remitted back and again the Municipality passed an order to demolish the structure. The petitioner submitted a representation to the Municipality to recall the order of demolition which was not considered. The petitioner preferred a writ petition before this Court which was disposed holding that his remedy is to prefer an appeal before the Tribunal. Petitioner therefore preferred an appeal before the Tribunal with an application to condone delay which came to be rejected on the ground of delay. It is seeking to quash the said order that the present writ petition was filed. The learned Single Judge placing reliance on Krishna Poduval (supra), which was followed in Krishnan T and Others v. State of Kerala (ILR 2007 (1) KER 233), held that the writ petition has to be dismissed. But in this case, the learned single Judge found that the petitioner was seeking to enforce his fundamental right to carry on business as provided under Article 19(1)(g) of the Constitution of India. Petitioner's contention is that the 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 Section 233, whereas they have virtually entrenched into W.A. Nos.2760/15 & 78/16 -:25:- the area which are to be considered by other competent authorities and had rejected the application. Therefore, this is a case where the petitioner was not 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 of India. Viewed in that manner, and as rightly held by the learned Single Judge placing reliance on the judgment in Olga Tellis (supra), there was justification in entertaining the writ petition. The petitioner has taken a specific ground in the writ petition, clearly indicating the manner in which the Panchayat has rejected the licence, ignoring the expert opinion given by the competent authorities. The learned Single Judge therefore having found that this is an extra ordinary circumstance which requires consideration by a Constitutional Court, we do not think that a different view is to be taken in the matter and therefore, we are of the view that the writ petition was rightly entertained by the learned Single Judge and cannot be dismissed merely for the reason that the appeal was dismissed on the ground of delay. In fact, each case will have to be decided on W.A. Nos.2760/15 & 78/16 -:26:- its own facts. Thomas Thomas (supra) was decided on its own facts. It is trite that power of Constitutional Court cannot be denuded merely for the reason that, alternate remedy could not be availed by the suitor.
22. This question has been considered in another Division Bench judgment in Panopharam v. Union of India (2010 (3) KLT 149), wherein this Court had occasion to consider the question whether a party, whose remedy by way of an appeal under the Statute is barred by limitation, can invoke the extraordinary jurisdiction under Article 226. That was a case in which the petitioner was imposed with penalty under Section 78 of the Finance Act, 1994. The petitioner could not file an appeal within the prescribed period of three months or within the period for which the authority has power to condone delay. The Division Bench after considering the law laid down in Krishna Poduval (supra) and various other judgments on the point, laid down the proposition that though a party whose remedy by way of appeal under the statute is barred by the period prescribed thereunder, which by itself is not a reason to invoke the extraordinary jurisdiction under Art.226 of the Constitution of India, if the writ W.A. Nos.2760/15 & 78/16 -:27:- petition raises issues on which ordinarily relief could not be given by the statutory authority, the writ petition is maintainable. It is held that the question would be whether there exists such circumstances warranting interference in a writ petition either because the statutory remedy is effective or there is violation of the principles of natural justice or when there is an infringement of the fundamental right. In such situations, it is held that the remedy under Art.226 is not ousted. Para 23 is relevant, which reads as under:
"23. When we read the entire judgment, we have no doubt in our mind that the principles stated in the said decisions is in conformity with the earlier decisions of this Court as also that of the Supreme Court referred to therein. That a party whose remedy by way of an appeal under the statute is barred by the period prescribed thereunder is no reason by itself to invoke the extraordinary jurisdiction under Art.226 of the Constitution of India. If the Writ Petition raises issues on which ordinarily relief could not be given by that statutory authority then the fact that a Writ Petition is filed beyond the period prescribed under the statute is not liable to be dismissed on that ground. In other words, he will be similarly placed with the person who invoke the remedy under Art.226 even where the period of limitation as prescribed under the W.A. Nos.2760/15 & 78/16 -:28:- statute is not over. So, the question is whether there exists such circumstances warranting interference in a Writ Petition, either because a statutory remedy is not effective or because there is a violation of the statute or principles of natural justice or when there is an infringement of the fundamental right. In such situation, it cannot be said that Art.226 remedy is ousted."
In the said case, of course, the Division Bench did not interfere in the matter on a finding that the claim made could have been adjudicated by the appellate authority. As already held by the learned Single Judge, in this case, the petitioner seeks enforcement of his fundamental right to carry on business which cannot be denied on account of the reasons stated in the impugned order. That apart, it is evident that none of the reasons stated in Ext.P7 have been sought to be explained by the petitioner. In such circumstances also, exercise of jurisdiction by the learned Single Judge is justified.
23. Now coming to the factual issue involved in the matter, the question is whether Exts.P6 and P7 warrant interference. In fact, the learned Single Judge only observed that all the reasons stated by the Panchayat was in regard to the environmental W.A. Nos.2760/15 & 78/16 -:29:- issues which is already covered by the environmental clearance granted in favour of the petitioner. Perusal of Exts.P6 and P7 would be relevant to consider whether the Panchayat had exceeded its powers or not. Ext.P6 is a communication by which the Secretary had informed the petitioner regarding the rejection of the permit. Ext.P7 is the decision of the Grama Panchayat. In fact, they have stated 20 reasons. It is useful to extract the said resolution of the Panchayat. The English translation as provided in the writ appeal reads as under:
"RAMAPURAM GRAMA PANCHAYAT Resolution No.IX(1) of the ordinary/emergency meeting held on 14/3/2014 On the application submitted by Sri.Shans Paul, Managing Director, St.Basil Industries Pvt. Ltd. seeking permission to establish quarry in 4.8560 Hectare of land comprised in Survey No.245/1-8 of Ramapuram Village, Ward 2 of Ramapuram Grama Panchayat, as per Resolution No.VII dated 26/2/2014 of the Grama Panchayat Committee, and the report submitted after site inspection by the members of the Ramapuram Grama Panchayat Committee is read over in the meeting. Report The application submitted by Sri.Shans Paul, Managing Director, St.Basil Industries Pvt. Ltd.
seeking permission to establish quarry in 4.8560 W.A. Nos.2760/15 & 78/16 -:30:- Hectare of land comprised in Resurvey No.245/1-8 of Ramapuram Village, to the Ramapuram Grama Panchayat, was considered by the Panchayat Committee in the meeting held on 26/2/2014 and it was decided to conduct site inspection by the Panchayat Executive Committee Members and submit appropriate report. On the basis of the said decision, the members of the Executive Committee under the supervision of Sri.Mathew Abraham, In- charge President of Ramapuram Grama Panchayat inspected the site and submitted report to the panchayat committee.
1) In the study conducted by the Department of Environment & Climate Change, it was stipulated that quarrying operation shall not be conducted in the land with slanting more than 45 degree. But the land mentioned in the land in Resurvey 245/1- 8-1 is found to be more than 70 degree slanting.
2) Before issuing MOEF Clearance, opinion of the local administration after conducting necessary site inspection is to be considered. But, it is understood that here no such study was conducted or opinion of the Grama Panchayat was sought. The said Department has issued permission relying only on Google map. Therefore, it is recommended to take decision to revoke the clearance issued and inform the concerned office.
3) Conditions to be complied with are described in the permission so granted. It appears that along with the application submitted to the panchayat, no documents are submitted or no paper W.A. Nos.2760/15 & 78/16 -:31:- publication is issued as described therein.
4) Since the conditions are not complied with, the MOEF clearance submitted along with the said application need not be considered.
5) It appears that there are never drying natural water courses at several places in the said property. It is found that water is drawn there from to the low lying areas by using gravitational force through hose.
6) The commencement of the Kariyilathodu which is the vital resource of Kariyilathodu water shed is Kottamala comprising of this property. Construction of road leading to the proposed site and terracing are carried out by crossing this water canal. It will obstruct the natural flow of water.
7) Previously large scale landslips are happened in this area. It may be stated that in the said place comprising of naturally loose soil which is land sliding area from where large trees are cut and removed, may result in large scale land slide and land slip during monsoon.
8) It is clear from the records that in the reply given to Adv.Joy Abraham M.P. in the Rajya Sabha, the origin of the earth quake happened in Kerala at 1.8, 1.5 Rector Scale during 2012 was Ramapuram Panchayat.
9) Mining at a height of about 1000 feet at the said place situated at a height of about 1500 feet may result in large scale environmental pollution.
10) Since the area of mining is steep area, it will result in land sliding and accidents.
W.A. Nos.2760/15 & 78/16 -:32:-
11) 300 meter periphery of the quarry is fixed as danger zone. As per rules, there shall not be human habitation or public road within this perimeter. But residential buildings and public road are found in the said place.
12) It is found that attempt has been made to cut and remove large trees including black wood, Iripul, Teak etc. and to remove soil to make the rock clear. Permission for such construction has not been obtained from the Panchayat or Revenue Department. Therefore, notice should be issued to stop the said construction.
13) It is found that the entire trees and plants of about 10 acres of land has been cut and removed for conducting mining without obtaining any permission. It is found that when road work and terracing were conducted, boulders, trees and soil rolled down.
14) There is possibility of environmental pollution due to the emanation of dust while conducting quarrying operation. Since there is no green fencing of trees as prescribed by rules, there is possibility of emanating dust to a distance of kilometers.
15) Several peculiar creatures like wild animals
(monkeys, black monkey, mongoose, brown
mongoose, python, silver owl, pangolin (thorny pig), kite peacock, various types of civet, rare types of butterflies and various types of birds are living in the said hilly area. It is necessary to protect them.
W.A. Nos.2760/15 & 78/16
-:33:-
16) At the place where the water channels
originated from the said hills change into canal, three drinking water projects, wells and ponds are situated.
17) Kottamala, Kurinjikkumpan, Nedumala etc. hills which control the climate of Ramapuram, Karinkunnam, Purappuzha, Veliyannoor, Kadanad, Karoor and Uzhavoor panchayats and protects from the direct western sea wind, situated at a height of 1000-1500 feet comprising of hundreds of acres are now under the ownership and possession of mining industrialists, their relatives and other benamies. Globular stones of this area resist lightening. Rocks broken due to lightening are seen in this hilly area. Keeping and use of blasting materials in this area are threat to life and property of the people. If this hill is destroyed by mining, the same will adversely affect the climate itself.
18) As per the earlier decision of the Panchayat, for obtaining new mining permit, Rules of Public Liability Insurance Act 1991 are to be complied with. The said applicant has not complied with the same.
19) Students of the nearby schools and cadets depend on this hill area for trekking and study of organic diversity.
20) There is extensive scope of adventure tourism in this hilly area. It is necessary to take action to encourage the same. This report is submitted before the committee with direction to request the Environment Ministry for these reasons W.A. Nos.2760/15 & 78/16 -:34:- to reconsider the action of issuing clearance without inspection, study or knowledge of the Panchayat.
The said report was considered by the meeting in detail and the committee found that the facts stated in the report submitted by the Members of the Grama Panchayat after inspection of the quarry site are true and taking into consideration the sound-air pollution, threat to the life and properties of the people, protection of organic diversity, protection of soil-water, possibilities of natural calamity and since study of organic diversity and environmental impact is not conducted and it is found that it will adversely affect the environmental equilibrium it is decided not to issue licence to the Managing Director, St.Basil Industries Pvt. Ltd., in 4.8560 Hectare comprised in Resurvey No.245/1-9-1 of Ramapuram Village and the meeting rejects the said application."
24. In fact they were evaluating the clearance given by the Department of Environment and Climate Change though it is referred to as MoEF. Reasons 1 to 4 relate to the environmental clearance granted by the State Environment Impact Assessment Authority which apparently was not the jurisdiction of the Panchayat. With reference to reasons 5 to 8, no expert opinion of any competent authority has been relied upon by the Panchayat W.A. Nos.2760/15 & 78/16 -:35:- whereas they themselves have formed such an opinion. Apparently, Panchayat Sub Committee was not constituted with expert bodies nor have they taken the assistance of any experts in the field. With reference to reasons 9 to 17 and 20, the same also relates to environmental issues. Therefore, it has to be verified whether the reasons 5 to 8, 18 and 19 come within the area of consideration of the Panchayat in terms of Section 233 of the Act. Section 233 of the Act reads as under:
"233:Permission for the construction of factories and the installation of machinery 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 plant exempted by the 176.176. Substituted by Act 13 of 1999, w.e.f. 24-3-1999.[provisions of this Act or the rules made thereunder].
[(2) An application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with W.A. Nos.2760/15 & 78/16 -:36:- such details as prescribed.
(3) The secretary 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 the 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, at any rate within sixty days-
(a) grant the permission either absolutely or subject to such conditions as it thinks fit to impose; or
(b) refuse the permission for the reasons to be recorded.
(4) Before granting or refusing 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 exists 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, W.A. Nos.2760/15 & 78/16 -:37:- 1948 (Central Act 63 of 1948) and such other matters as may be prescribed:
(b) a report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of the machinery proposed to be installed exceeds 25 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.
(5) The grant of permission under this section,
(a) Shall be subject to the conditions to be observed in respect of the replacement of machinery the levy of fees and to such restrictions and conditions as may be prescribed;
(b) Shall not be deemed as exempted from observing the provisions contained in section 235 (F) and 235 (H) or 235 (P) and 235 (Q)]."
No doubt, in terms of Sub section (3) of Section 233, the W.A. Nos.2760/15 & 78/16 -:38:- Secretary has to 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 is objectionable by reason of density of population in the neighbourhood and the possibility to cause nuisance or pollution. The report has to be submitted to the Village Panchayat. The Village Panchayat will have to consider the report of the Secretary and such other authorities as specified under sub section (4). Sub section (4) of Section 233 indicates that the Village Panchayat shall obtain and consider a report of the Inspector of Factories or of an officer of the Industries Department if it comes within the purview of the Factories Act, 1948, a report of the District Medical Officer regarding the possibility of nuisance or pollution if the connected load of machinery proposed to be installed exceeds 25 HP or if the nature of machinery and installation are such that it may cause nuisance or pollution and a report of the Divisional Fire Officer regarding adequacy of fire prevention and fire fighting machines planned, if the proposed industry involves use of high tension power or inflammable or explosive materials. However, no report from the Medical Officer shall be called for if the applicant W.A. Nos.2760/15 & 78/16 -:39:- produces a declaration recommended by an officer of the Industries Department or Kerala State Pollution Control Board to the effect that such industry would not cause pollution. In terms of Sub section (5), the grant of permission will be subject to such restrictions and conditions as may be prescribed.
25. It is pertinent to note that as far as Section 233(4) is concerned, the petitioner himself has produced various documents which includes consent to operate from the Kerala State Pollution Control Board. The consent is granted on certain conditions, as per the AIR (Prevention of Control of Pollution) Act, 1981 as well. The consent was valid till 31/12/2015. The very fact that the consent has been issued under AIR (Prevention and Control of Pollution), Act, 1981 and Environment Protection Act, 1986, by itself indicate that the allegation of the Unit causing pollution is baseless. First of all, unless the 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 W.A. Nos.2760/15 & 78/16 -:40:- or suspend the licence if there is non compliance of the statutory provisions. Further, if any nuisance is caused, by reason of noise, vibration effluent discharge, smoke or dust, Section 233A provides for sufficient precautionary measures that could be taken by the Panchayat in that regard. Section 233A reads as under:
"233A:Abatement of nuisance caused by factory, workshop etc.-
(1) Where any factory, workshop, workplace or machinery causes, in the opinion of the Village Panchayat nuisance by reason of a particular kind of fuel being employed or by reason or the noise or vibration created, or effluent discharged or by reason of noxious odour, smoke or dust omitted, the secretary may direct the person in charge of such factory, workshop, workplace or machinery for the abatement of such nuisance within a reasonable time to be specified for that purpose. (2) The Village Panchayat may, if required, obtain expert opinion 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.
(3) Where there has been wilful default in carrying out a direction given under subsection (1) or where in the existing circumstances the abatement of nuisance is found impracticable, the W.A. Nos.2760/15 & 78/16 -:41:- Secretary may prohibit the working of the factory workshop, workplace or machinery till such time the person concerned takes necessary step to the satisfaction of the Secretary for the abatement of the nuisance."
Further, the report of the Medical Officer produced as Ext.P5 dated 24/4/2014 clearly indicates that the property is lying in a slanting position and there are no buildings or religious institutions or Government Offices within a distance of 300 metres. It is also opined that there is no cause for any nuisance to the public, provided, the Unit functions in terms with the specifications stipulated by the District Medical Officer. The very fact that the Panchayat is called upon to consider the report of the Secretary as well as the authorities specified in sub section (4) of Section 233, is to enable the Panchayat to arrive at a proper decision. When all the authorities had confirmed that the Unit will not cause any environmental problems and that there would not be any pollution or nuisance to the people at large, provided it functions as per the conditions and restrictions imposed by the said authorities, the question is whether in the absence of any other material available with the Panchayat, it could reject a valid W.A. Nos.2760/15 & 78/16 -:42:- application. In fact, in the present case, there is no material to indicate that the rejection has been made on account of the fact that it is objectionable by reason of density of population in the neighbourhood and the possibility to cause nuisance or pollution as provided under Section 233 of the Act. If there has to be a finding that it is objectionable on account of density of population in the neighbourhood, the District Medical Officer ought to have taken such a view. That apart, no such material is relied upon by the Panchayat. A perusal of Ext.P6 refers to a report of the Panchayat Secretary and also an enquiry by the Committee directly. It is stated in Ext.P6 that if the permit is granted to the petitioner, it will cause harm to the life and property of the people in the locality and affect the environment as such. As already indicated, this is an instance where the petitioner had obtained an environmental clearance from the appropriate authority. Therefore, the same can never be a reason for denial of permit. An expert body like the SEIAA had vide their proceedings dated 7/4/2013 granted clearance on certain conditions. If there is failure to comply with the said conditions, it is a different issue which can be taken up by the Panchayat at a later stage after W.A. Nos.2760/15 & 78/16 -:43:- establishment of the Unit and when it is found that there is non compliance of the conditions imposed therein. But the finding that SEIAA had not properly evaluated the grant of environmental clearance is not a good reason for rejection of a licence. It is relevant to note that it is by virtue of judgment of the Supreme Court in Deepak Kumar v State of Haryana [(2012) 4 SCC 629] that environmental clearance was insisted for quarrying of minor minerals having an area of less than 5 hectares. 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. Same is the situation with reference to the expert opinion given by the Pollution Control Board, District Medical Officer and the Ministry of Commerce and Industry and Petroleum Explosives Safety Organization. All these authorities are concerned with the grant of licence/permission and they have stipulated various conditions. In such a situation, the question is W.A. Nos.2760/15 & 78/16 -:44:- whether the Panchayat can take a different view from what has been stated by the competent authorities. In Action Council (supra), the Supreme Court had set aside the judgment of a Division Bench of this Court reported in Action Council v. Benny Abraham (2001 (2) KLT 690). Supreme Court felt that four conditions ascribed by the Panchayat need not be interfered with. A perusal of para 11 of the Division Bench judgment of this Court would indicate that the main reason stated for rejecting the application for permit is that there was scarcity of water in the area and therefore it will not be possible to use sprinkler as directed by the Pollution Control Board during summer season and the agricultural properties might be adversely affected and it would include the members belonging to scheduled caste around the locality and there was a road around 100 metre of the premises. It is therefore clear that Action Council (supra) was decided on its own facts which is also clear from the judgment of the Supreme Court and cannot be treated as a binding precedent to form an opinion that in all cases such a view is to be taken. That apart, this is an instance where, in addition to the permission/licence obtained from various statutory authorities, W.A. Nos.2760/15 & 78/16 -:45:- environmental clearance also has been obtained wherein the competent authority viz., SEIAA has clearly imposed general conditions as to how the quarrying operation has to be carried out and the precautionary measures that are to be taken in the matter. In Gem Granites (supra), the issue was 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.
26. What is to be considered is whether the licence can be rejected on the ground of reasons 5 to 8, 18 and 19. It is relevant to note that the mining lease has been granted with reference to a property which does not either belong to the Government or the Panchayat. It is a 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. Being a private property, Panchayat cannot take a view that they have a right to prevent any activity in the property for public purposes. A permit/licence can be rejected only if there is possibility for pollution and if it affects the neighbourhood in any manner due W.A. Nos.2760/15 & 78/16 -:46:- to density of population. No such contingency is highlighted, nor has any material been relied upon to form such an opinion. Learned counsel for the Panchayat submits that quarrying licence has been given to four other institutions in the very same Panchayat. Therefore, it is clear that this Panchayat is not averse to quarrying operations in the Panchayat area. Learned counsel for the petitioner however argued that there are even unlicenced quarries functioning within the Panchayat area. We do not propose to go into such details in the present case.
27. The question is whether the decision taken by the Panchayat in terms of Exts.P6 and P7 is in accordance with the provisions of Section 233 read with Section 232 of the Act so that it infringes the right of the petitioner to carry on business of quarrying in terms of Article 19(1)(g) of the Constitution of India.
28. As already indicated, under the present scenario, substantial provisions had been made to prevent quarrying activities without environmental clearance and mining plan in terms of the Minor Mineral Concession Rules, 2015. As on date when the quarrying permit was granted and when the environmental clearance and other reports were obtained by the W.A. Nos.2760/15 & 78/16 -:47:- petitioner, there was no requirement for a mining plan. The Minor Mineral Concession Rules, 2015 had come into effect only on 7/2/2015. Under Rule 66, the mining plan can be submitted within one year from the commencement of Rules which period can be further extended for a period of one year. Thus, there is still time for the petitioner to submit the mining plan and on that ground, rejection cannot be sustained.
29. Now that substantial provisions are made for ensuring that the mining activity is being done in an environmental friendly manner, it is not open for the Panchayat to take a different view from what has been stated by the expert authorities. In the light of such an expert view, we do not think that the reasons stated by the Panchayat were justified nor can it be said that the Panchayat has obtained other expert opinion for denying permission on such grounds. Even in Ext.P7, ultimately the decision was to request the Environment Ministry to reconsider the action of issuing clearance without inspection, study or knowledge of the Panchayat. Therefore, it is rather clear that the main reason for denial of permission was on account of environmental issues which according to us has already been taken care of by the grant W.A. Nos.2760/15 & 78/16 -:48:- of environment clearance by the competent authority viz., SEIAA.
30. Under such circumstances, though these issues are not considered by the learned Single Judge, even on a consideration of such material, we are of the view that the learned Single Judge has exercised the discretion in accordance with law and there is no reason to interfere with the said judgment in exercise of appellate jurisdiction.
Accordingly, the appeals are dismissed.
Sd/-
ASHOK BHUSHAN, CHIEF JUSTICE Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// PS to Judge