Philips Grano Products vs. State Of Kerala - Kerala High Court, 26 August 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THUR AY, THE 26TH DAY OF AUGUST 2021/4TH BHADRA, 1943 W.P.(C)NO.14406 OF 2021 PETITIONER: PHILIPS GRANO PRODUCTS, ANICAUD P.O., REPRESENTED BY ITS PROPRIETOR, NAVEEN MATHEW PHILIP, S/O.PHILIP MATHEW, AGED 36, RESIDING AT THEKKENEDUMPLACKAL, MALLAPPALLAY WEST, PATHANAMTHITTA DISTRICT, PIN-689 585. BY ADVS. P.HARIDAS BIJU HARIHARAN P.C.SHIJIN RISHIKESH HARIDAS RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 ANICADU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ANICADU GRAMA PANCHAYAT OFFICE, NOOROMMAVU P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 589. 3 SECRETARY, ANICADU GRAMA PANCHAYAT, ANICADU GRAMA PANCHAYAT OFFICE, NOOROMMAVU P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 589. SRI.MANU RAJ, GOVERNMENT PLEADER, SRI.ESM.KABEER, SC – R2 & R3 SRI.K.K.ASHKAR (THIRD PARTY) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.14406/2021 : 2 : J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 26th day of August, 2021 The petitioner seeks to quash Ext.P7 and to direct respondents 2 and 3 to to accept and process petitioner’s application for licence under the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996. 2. The petitioner is conducting a Stone Crusher Unit at Anicadu, Mallappally with requisite Licences. Ext.P1 is the Integrated Consent to Operate issued by the Pollution Control Board. The Department of Mining and Geology has issued Ext.P2 Depot Licence. The 2nd respondent-Anicadu Grama Panchayat has issued Ext.P3 Factory Licence. Ext.P4 is the Certification under GST Act. The Department of Factories and Boilers has issued Ext.P5 Licence.

WP(C) No.14406/2021 : 3 :

The petitioner has been purchasing raw materials from one M/s.Peegee Aggregates functioning in Kottangal Village. The said quarry remained non-operational for some time. Consequent to orders of the Central Government, the petitioner could commence quarrying in the quarry owned by M/s.Peegee Aggregates and consequently the petitioner could resume operations in its Crushing Unit also. During the Covid-19 pandemic, with the restricted movement, the petitioner could get the Quarry Licence of M/s.Peegee Aggregates operational. But, the petitioner could not apply for renewal of licence under the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996 before the expiry of the licence.

The petitioner submitted application for renewal of licence after the currency period of the licence as evidenced by Ext.P6. The 3rd respondent-Secretary did not accept the licence fee. Instead, the petitioner was informed as per Ext.P7 communication that the petitioner ought to have applied for renewal of licence before 30 days of the expiry of the licence.

WP(C) No.14406/2021 : 4 : The petitioner contended that in view of the orders passed by the Apex Court in the background of Covid-19 pandemic, respondents 2 and 3 are compellable to consider application for renewal of licence without regard to any period of limitation, failure of which would result in shutting down of two industrial units rendering a number of workers unemployed.

Respondents 2 and 3 contested the writ petition. The 3rd respondent stated that the application for renewal of licence was given six months after the expiry of the period of licence. Hence, Rule 10 of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship Activities and Other Services) Rules, 1996 stands violated. The petitioner was hence required to submit a new application. There are violations of the Mining and Geology Rules and Regulations and OA No.142/2020 is pending in the National Green Tribunal. The petitioner was required to produce new NOC from Kerala Pollution Control Board since there are violations of various rules and regulations after issuance of Ext.P1. The petitioner was further required to produce NOC from Geologist

WP(C) No.14406/2021 : 5 : for the same reason. The petitioner was also required to produce NOC from the NGT.

Heard the learned counsel for the petitioner, the learned Government Pleader for the 1st respondent and the learned Standing Counsel representing respondents 2 and 3. 7. As regards the delay in submitting application for renewal of licence, a learned Single Judge of this Court has held in the judgment in Swapna Jestus K. V. Secretary, Pulpally Grama Panchayat and another [2013 (1) KLT 444] that a belated application is maintainable provided additional fee is paid. This Court held as follows:

“7. Though a time limit has been stipulated by Rule 10 of the Rules, the consequence of not submitting an application within the time stipulated, is not mentioned anywhere in the Rules. However, an indication is offered by Rule 19, which reads as follows: '

19.

Additional Fee.--The maximum fee specified in Schedule III appended to these rules shall be applicable only for the application submitted in due time. In the case of belated applications an additional fee of 25 per cent of the fee for licence payable under the schedule may be charged.'

Therefore, what is evident from a conjoint reading of the Rules is that the only consequence that is made mention of therein for not submitting an application within the stipulated period of time is that

WP(C) No.14406/2021 : 6 : an additional fee of 25 per cent would be charged. Rule 19 also indicates that a belated application is maintainable for, if it were not maintainable there is no question of paying an additional fee for the omission to submit an application within the stipulated time. The irresistible inference that follows therefore is that a belated application is also maintainable provided the petitioner pays the additional fee that is stipulated by Rule 19. The petitioner has not paid any fee, the reason being that the 1st respondent has declined to receive the fee. In view of the fact that the petitioner was already issued with Ext. P-1 licence after fulfilling all the legal requirements, insistence on her to produce a consent from the landlord a fresh, is uncalled for. No power enabling the 1st respondent to insist on such a condition has been pointed out to me either in the Act or in the Rules. For the above reasons, it is held that the insistence on production of a fresh consent from the petitioner's landlord is without any justification.”

In Abdul Rasheed K.V. v. Pariyaram Grama Panchayat, Kannur and others [2017 (1) KLT 335], this Court again considered the issue and held as follows:

“8. In cases of business wherein there is use of machinery or manufacturing plant which is being operated by electricity, Rules 17 to 19 would apply. As per Rule 18, the fee chargeable for grant of licence is as specified in Schedule III to the said Rules. Rule 19 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule III shall be chargeable. As pointed out earlier, Rules 17 to 19 relate to business wherein there is machinery or manufacturing plant wherein electricity is used.

There is yet another category referred to under the 1996 Rules, i.e., business being conducted by using machinery but without electricity. Rules 20 to 22

WP(C) No.14406/2021 : 7 : of the 1996 Rules relate to the said category. Rule 21 of the 1996 Rules provides that in such cases, for grant or renewal of licence, the fee payable shall be as specified in Schedule IV to the said Rules. Rule 22 provides that in case of belated applications, an additional fee of 25% of the fee specified in Schedule IV could be charged. Therefore, it is obvious that three categories of business are comprehended under the Rules; one is where no machinery is used i.e., common trade, in respect of which the fee payable is at the rates mentioned in Schedule II; the second category is business where machinery operated by electricity is used, regarding which the fee payable is as specified in Schedule III to the Rules; and the third category being business conducted with machinery but without using electricity, for which the fee payable is as specified in Schedule IV to the Rules.

10.

As could be noticed from the above, as regards business where machinery operated by electricity is used, Rule 19 provides for making belated applications for grant or renewal of licence on payment of an additional fee of 25%. Similarly, in the case of business where machinery operated without electricity is being used, Rule 22 provides for payment of additional fee of 25% in case of belated applications for grant or renewal of licence. Therefore, in the latter two categories there is an enabling provision which permits submission of belated applications on payment of additional fee of 25%. Such a provision is conspicuously absent in the first category.” Therefore, respondents 1 and 2 are bound to accept and consider the application submitted by the petitioner for renewal of licence, in accordance with law, provided the petitioner remits additional fee.

WP(C) No.14406/2021 : 8 :

The other reasons given by respondents 2 and 3 in their counter affidavit for rejection of application for renewal are also unsustainable. If the integrated Consent issued by the Pollution Control Board and licences given by the Geologist to the petitioner are currently valid, respondents 2 and 3 will not be justified in seeking from the petitioner fresh Consent/ Licence from those authorities for any violation of conditions contained therein, as long as the competent authorities have not cancelled those consent/licence. Similarly, respondents 2 and 3 cannot insist that the petitioner should produce “NOC” from the National Green Tribunal for renewing licence as there is an OA pending before the Tribunal. As long as the Tribunal has not issued any orders restraining the Panchayat from renewing the licence, the Panchayat cannot insist for an NOC from the Tribunal. In the circumstances, the writ petition is allowed. Ext.P7 is set aside. Respondents 2 and 3 are directed to accept additional fee for belated renewal application from the petitioner. If the petitioner pays the additional fee,

WP(C) No.14406/2021 : 9 : respondents 2 and 3 shall consider the application for renewal submitted by the petitioner in accordance with law, and pass orders thereon within a period of four weeks from the date of receipt of additional fee. N. NAGARESH, JUDGE aks/25.08.2021

WP(C) No.14406/2021 : 10 : APPENDIX OF WP(C) 14406/2021 PETITIONER EXHIBITS Exhibit P1OF THE INTEGRATED CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 11.07.2018 Exhibit P2OF THE DEPOT LICENSE VALID UPTO 13.2.2024 BY THE DEPARTMENT OF MINING AND GEOLOGY DATED 14.2.2019 Exhibit P3OF THE LICENCE ISSUED BY THE 2ND RESPONDENT UNDER THE KERALA PANCHAYAT RAJ (ISSUE OF LICENCE TO FACTORIES, TRADES, ENTREPRENEURSHIP ACTIVITIES AND OTHER SERVICES) RULES, 1996, DATED 02.04.2019 Exhibit P4OF THE CERTIFICATION ISSUED UNDER GOODS AND SERVICE TAX ACT, DATED 02.04.2019 Exhibit P5OF THE LICENCE GRANTED BY DEPARTMENT OF FACTORIES AND BOILERS, GOVT. OF KERALA DATED 31.05.2019 Exhibit P6OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 16.6.2021 Exhibit P7OF THE LETTER ISSUED BY 3RD RESPONDENT

TO PETITIONER

DATED 15.07.2021 Exhibit P8OF THE FRESH APPLICATION DATED 27/07/2021. Exhibit P8(a)OF THE COVERING LETTER DATED 27/07/2021. Exhibit P9OF THE RECEIPT OF THE FRESH APPLICATION DATED 27/07/2021. Exhibit P10OF THE MEMORANDUM OF WRIT PETITION NO.36358/2016 WITHOUT EXHIBITS DATED 11/011/2016. Exhibit P11OF THE COUNTER AFFIDAVIT FILED BY THE SRI.RENY JACOB GEORGE IN WPC.NO.36358/2016 DATED 03/12/2016. Exhibit P12OF THE QUARRYING LEASE ISSUED TO SRI.A.J.ABRAHAM DATED 31/12/2008 VALID TILL 30/12/2018. RESPONDENT EXHIBITS Exhibit R3(A)OF THE APPLICATION FOR RENEWAL OF LICENCE DATED 15-06-2021

WP(C) No.14406/2021 : 11 : Exhibit R3(B)OF THE NOTICE ISSUED BY THE VILLAGE

OFFICER,

ANICADU

DATED 22.06.2020 Exhibit R3(C)OF THE ORDER ISSUED BY THE VILLAGE OFFICER, ANICADU DATED 02-10- 2020 Exhibit R3(D)OF THE NOTICE3 ISSUED BY THE 3RD RESPONDENT DATED 05-07-2021 Exhibit R3(E)OF THE LEGAL OPINION DATED 14-07-2021.