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2017 DIGILAW 163 (KER)

M. M. THOMAS v. KOLAYAD GRAMA PANCHAYATH

2017-01-19

ANIL K.NARENDRAN, MOHAN M.SHANTANAGOUDAR

body2017
JUDGMENT : MOHAN M. SHANTANAGOUDAR, J. 1. This writ appeal is filed by the writ petitioner in W.P. (C) No. 38238 of 2016 against the judgment dated 14.12.2016 passed therein. 2. Brief facts relevant to decide this writ appeal are as follows:- The appellant and the 4th respondent are the Managing Directors of Malabar Construction Materials (P) Ltd. a private limited company. Formerly, the appellant was the sole Managing Director. There are four Directors for the said Company. The Company is engaged in quarrying operations in the property comprised in Survey No. 70/I of Kolayad Grama Panchayat. The Company has got statutory licences from all the authorities, including the Dangerous & Offensive Trades Licence (for short D & O licence) issued by the Panchayat and the Movement and Quarrying Permits issued by the Department of Mining and Geology. The said Company has been functioning for the past 15 years on the basis of the said statutory licences. It is relevant to note that the Department of Environment & Climate Change has also granted Environmental Clearance to the Company on 31.5.2014, which would be valid for a period of nine years from that date. Ext.P2 is the Quarrying Permit dated 26.11.2015 issued by the Department of Mining and Geology, District Office, Kannur, permitting the Company to extract granite building stone/laterite building stone/ordinary sand, etc. The said permit expired on 25.11.2016. It is made clear therein that the quarrying operation after 31.3.2016 should be conducted only after the renewal of D & O licence under the Kerala Panchayat Raj Act from the concerned Local Self Government Department. The appellant, in order to get Ext.R4(a) licence renewed in his name exclusively, approached the Grama Panchayat. Such attempt of the appellant was opposed by the 4th respondent. Ultimately, the Panchayat did not renew the licence exclusively in the name of the appellant and issued notice to the appellant to stop operations. The said notice was challenged by the appellant before this Court in W.P. (C) No. 1822 of 2016. 3. During the pendency of the said writ petition, this Court, having felt that there is an element of settlement between the parties, directed the parties to approach before the Mediation Centre for the purpose of getting the dispute mediated. Pursuant thereto, a settlement was arrived at between the appellant and the 4th respondent as per Ext.P3 on 3.3.2016. 4. 3. During the pendency of the said writ petition, this Court, having felt that there is an element of settlement between the parties, directed the parties to approach before the Mediation Centre for the purpose of getting the dispute mediated. Pursuant thereto, a settlement was arrived at between the appellant and the 4th respondent as per Ext.P3 on 3.3.2016. 4. As per the said settlement agreement, the appellant as well as the 4th respondent agreed that both of them would act as Managing Directors from the date of settlement and that the Company's incorporation documents shall be suitably amended for the said purpose. It was also agreed that the policy decisions affecting the Company, its constitution and business shall be taken jointly by the said Managing Directors. However, it was clarified therein that this shall not include or affect the decisions and applications in respect of ordinary routine matters including routine permits, orders and applications for the day-to-day smooth and convenient conduct of business. Clause 8 of the settlement agreement states that from the date of the settlement, all the Directors, more so, the Managing Directors shall involve and be equally liable for the Company and all its major loans to the extent prescribed under law. Clause 12 states that if the parties have acted upon the terms mentioned in the settlement agreement during the period after the said agreement is signed and submitted before the disposal of the writ proceedings, no party shall withdraw from the terms of the settlement. Lastly, it is clarified in Clause 13 that in case of any dispute between the appellant and the 4th respondent regarding the conduct of the business of the Company referred therein, the said disputes shall be referred for arbitration, wherever arbitrable, by the Arbitrator mutually appointed by the said two parties. 5. The said agreement was presented before this Court in W.P. (C) No. 1822 of 2016. This Court, while disposing of the said writ petition on 15.3.2016, recorded the terms of the settlement and the said settlement agreement formed part of the judgment. It was also observed in the said judgment that the Panchayat is free to deal with the application for renewal of licence in accordance with the settlement. 6. This Court, while disposing of the said writ petition on 15.3.2016, recorded the terms of the settlement and the said settlement agreement formed part of the judgment. It was also observed in the said judgment that the Panchayat is free to deal with the application for renewal of licence in accordance with the settlement. 6. Pursuant to Ext.P3 judgment, the Panchayat has issued D & O licence as per Ext.P4 on 4.4.2016 in the joint name of the appellant and the 4th respondent which is valid upto 25.11.2016. Thereafter, it seems, once again litigation had arisen between the parties at the time of renewal of licence. 7. The appellant made application before the authorised officer of the Mining and Geology Department, Kannur District for renewal of quarrying permit. The said application was rejected by the Geologist, on the ground that since the Panchayat licence stood in the joint of the appellant and the 4th respondent, the same cannot be renewed on the basis of the individual application submitted by the appellant alone. Such an intimation was issued by the Geologist as per Ext.P7 dated 26.11.2016, which was questioned before this Court in W.P. (C) No. 38238 of 2016, which came to be dismissed by the impugned judgment dated 14.12.2016. 8. Sri. Ramesh Chander, learned Senior Counsel appearing for the appellant, taking us to the material on record, submits that Rule 4 of the Kerala Minor Mineral Concession Rules, 2015 (for short "Rules 2015") deals with submission of application for quarrying permit. The prayer for renewal of licence needs to be considered as per Rule 12 of the Rules 2015. Rule 51 empowers the authority to refuse renewal of quarrying licence. 9. By drawing the attention of this Court to Rule 51, learned Senior Counsel submits that only on two contingencies, that is; if the applicant is convicted for illegal quarrying and if there are no interim orders of any Court of law suspending the operation of the order of conviction, the renewal of quarrying licence can be refused. The sum and substance of the case put forward by the learned counsel is that except for the aforementioned two contingencies, consideration of application for renewal of licence is automatic. 10. The sum and substance of the case put forward by the learned counsel is that except for the aforementioned two contingencies, consideration of application for renewal of licence is automatic. 10. He further relies upon the document at Ext.P9, the Minutes of the meeting attended by both the Managing Directors as well as other Directors dated 18.7.2014, in which, it is resolved that the appellant, the Managing Director of the Company is appointed as the Nominated Mine Owner of Edayar Stone Mine of M/s. Malabar Constructions Materials (P) Ltd. and he is authorised to sign and execute all the necessary documents related to the statutory authorities by taking the legal responsibility of the Owner of the Mines. Thus, according to him, it is open for the appellant to act as the Owner of the Mine as per Section 76 of the Mines Act, 1952 and execute all the documents, including the application for renewal, for and on behalf of the Company. 11. For all the above reasons, the learned counsel prays for setting aside the impugned order at Ext.P7 as well as the impugned judgment of the learned Single Judge. 12. Per contra Sri. S. Sreekumar, learned Senior Counsel appearing for the 4th respondent, who argued in support of the judgment of the learned Single Judge, contends that the appellant cannot rely upon Ext.P9, the Minutes of the meeting, inasmuch as the said Minutes is prior to the settlement entered into between the parties. Since the settlement between the parties as per Ext.P3 is accepted by this Court in W.P. (C) No. 1822 of 2016, based on which, the said writ petition came to be disposed of, it is not open for the appellant to take a different view, contending that the settlement arrived at between the parties is unlawful. It is open for the Directors/Managing Directors of the Company to take all the arrangements for better management of the Company. It is true that prior to the settlement, the appellant was the Managing Director of the Company. However, the dispute arose when the appellant was trying to renew Ext.R4(a) licence issued in the name of the 4th respondent by the Grama Panchayat to his exclusive name. 13. Ultimately, the matter reached before this Court in W.P. (C) No. 1822 of 2016, mediation took place between the parties and a settlement was arrived at as per Ext.P3 dated 3.3.2016. 13. Ultimately, the matter reached before this Court in W.P. (C) No. 1822 of 2016, mediation took place between the parties and a settlement was arrived at as per Ext.P3 dated 3.3.2016. The settlement was duly signed by the appellant as well as the 4th respondent apart from other Directors. The said settlement was accepted by all the parties including the appellant and the 4th respondent and the same was presented before this Court in the aforesaid writ petition, which came to be disposed of with the following observation:- "The petitioner and the fourth respondent have settled the dispute. A memorandum of settlement has also been entered into. The Panchayat is also willing to agree to the settlement. No further directions are warranted and the writ petition is disposed of recording the settlement. The settlement shall form part of the judgment. The Panchayat is free to deal with the application for renewal of licence in accordance with the settlement." 14. From the aforementioned judgment, it is amply clear that the appellant and the 4th respondent had settled the dispute and a memorandum of settlement was also entered into between them. The Panchayat was also willing to agree with the settlement. In view of the same, the writ petition came to be disposed of recording the settlement and the same formed part of the judgment. The said judgment dated 15.3.2016 remained unquestioned. 15. Be that as it may, since the settlement entered into between the parties formed part of the judgment, the said settlement binds upon the parties. Even otherwise, we do not find any illegality in the settlement arrived at between the parties. The Directors, by agreement, agreed that instead of one Managing Director, there should be two Managing Directors and consequently, the appellant as well as the 4th respondent were nominated as Managing Directors to perform and act on behalf of the Company jointly. 16. As mentioned supra, all the policy decisions affecting the Company, its constitution and business were agreed to be taken jointly by the Managing Directors. It is specifically agreed that all the applications including the renewal of licence and documents to be executed for and in the name of the Company shall be executed jointly by the Managing Directors. 16. As mentioned supra, all the policy decisions affecting the Company, its constitution and business were agreed to be taken jointly by the Managing Directors. It is specifically agreed that all the applications including the renewal of licence and documents to be executed for and in the name of the Company shall be executed jointly by the Managing Directors. Merely because, the appellant was permitted to take decisions in respect of ordinary routine matters, including routine permits and orders for day-to-day business for the smooth and convenient conduct of business, it will not enure to the benefit of the appellant to contend that he can even file an application for renewal of licence, more particularly when it is specifically stated under Clause 5 of the settlement agreement that it is not open for any of the Managing Directors to file any application in his individual name, but such application need to be filed jointly by the appellant and the 4th respondent. 17. Clause 13 of the settlement agreement further makes it clear that in case of any disputes between the appellant and the 4th respondent regarding the conduct of the business of the Company referred to above, the said dispute shall be referred to Arbitration, wherever arbitrable, by Arbitrator mutually appointed by the said parties. Therefore, if the appellant has got any grievance against the 4th respondent in the matter of working of the Company and in the matter of non-co-operation by the 4th respondent in filing an application for renewal, it is open for the appellant to approach the Arbitrator as per law. 18. It is brought to the notice of this Court during the course of hearing that the appellant has already approached the Arbitrator invoking Clause 13 of the settlement agreement. Hence, it is clear that the matter is pending before the Arbitrator for adjudication of the dispute between the parties. 19. It is true that Rule 51 of the Rules 2015 states that the renewal of quarrying licence can be refused if the applicant is convicted for illegal quarrying and if there is no interim orders of any Court of law suspending the judgment and order of such conviction. Such rule nowhere permits a person to claim renewal of licence if he is not competent to do so. 20. Such rule nowhere permits a person to claim renewal of licence if he is not competent to do so. 20. In view of the settlement arrived at between the parties, it is not open for the appellant to seek renewal of licence in his own name by filing an application exclusively, without the concurrence of the 4th respondent. Only if an application for renewal is valid in the eye of law from the beginning, the concerned authority will have jurisdiction to consider the same in accordance with Rule 12 of Rules 2015. Since the application submitted by the 4th respondent is invalid and as the appellant has no locus standi to file an application all alone, the application filed by the appellant has to be returned by the concerned authority at the threshold. Therefore, the contention of the learned Senior Counsel for the appellant in that regard cannot be accepted. 21. It is made clear in Ext.P7 by the authorised officer of the Department of Mining and Geology that it is open for the appellant to re-submit the application clarifying as to how such an application is maintainable in view of the judgment passed by this Court in W.P. (C) No. 1822 of 2016. Moreover, the Minutes of the meeting at Ext.P9 dated 18.7.2014 cannot be relied upon by the appellant since no weightage can be given to such a decision taken by the Company, in view of the subsequent settlement between the parties. 22. Having regard to the above, we find no ground to interfere with the impugned judgment of the learned Single Judge. The appeal fails and the same stands dismissed.