BYJU Vs. MUNDATHIKKODU GRAMA PANCHAYAT

JUDGEMENT

(1.) The petitioner is an unemployed person. With a view to start a quarry in the land belonging to him, he submitted Ext. P1 application to the Secretary of Mundathikkodu Grama Panchayat. He had by then applied for and obtained the consent of the Kerala State Pollution Control Board to establish the quarry. By Ext. P3, quarrying permit was also granted by the Geologist, District Office, Department of Mining and Geology to quarry granite from the said parcel of land subject to the terms and conditions stipulated therein. The Controller of Explosives also granted him licence to store and use explosives, as can be seen from Ext. P5. However, By Ext. P6 letter dated 27/07/2010, the application for licence submitted by the petitioner was rejected on the ground that if the licence is issued it will lead to a law and order situation. Ext. P6 is under challenge in this writ petition. The main ground raised in this writ petition is that the Secretary ought not to have rejected the petitioner's application and that under rule 6 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996 it was for the President of the Panchayat to consider the application and to take an appropriate decision in the matter. Sri. D. Krishna Prasad, the learned standing counsel appearing for respondents 1 to 3 submitted with reference to the counter-affidavit dated 15/11/2010 filed by the Secretary of the Grama Panchayat that Ext. P6 order was passed after the committee of the Panchayat decided to refuse the licence as the committee was of the opinion that the grant of licence would lead to a law and order situation. A copy of the resolution adopted by the committee of the Panchayat at its meeting on 15/07/2010 was made available to me during the time of hearing. In the counter-affidavit filed by respondents 1 to 3 it is stated that a large number of residential houses are situated within 100 metres from the proposed quarry and that of blasting operations are carried out, it will affect the safety of the structures and the residents.

(2.) I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. It is evident from the materials presently on record that the committee of the Panchayat has not followed the procedure prescribed in Section 233 of the Kerala Panchayat Raj Act or Rule 12 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996 before rejecting the petitioner's application. Section 233 of the Kerala Panchayat Raj Act and Rule 12 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996 contemplate an enquiry into the suitability of the site for establishment of a quarry and also consultation with the District Medical Officer as regards 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. Thus it is evident that while a decision was taken to reject the petitioner's application, the suitability of the site for the proposed activity was not considered. Apart from stating that if the quarry is established it will lead to a law and order situation, the committee of the Panchayat has not given any reason to reject the petitioner's application for licence. In my opinion, the decision of the committee of the Panchayat runs counter to the scheme of Section 233 of Kerala Panchayat Raj Act, 1994 and Rule 12 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. It has therefore to be necessarily held that the decision taken by the committee on 15/07/2010 to reject the petitioner's application for licence cannot be sustained. I accordingly allow the writ petition, quash Ext. P6 and direct the committee of the first respondent Panchayat to reconsider the petitioner's application for quarrying permit having due regard to the procedure prescribed in Section 233 of the Kerala Panchayat Raj Act, 1994 and Rule 12 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. A final decision in the matter shall be taken within two months from the date on which the petitioner produces a certified copy of this judgment before the second respondent. The committee shall, before taking a decision in the matter, afford the petitioner or his authorised representative and also the representatives of the objectors an opportunity of being heard.