IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 17559 OF 2015
PETITIONER:
M/S. PLANT LIPIDS (P) LTD
KADAYIRUPPU, KOLENCHERRY, ERNAKULAM,
REPRESENTED BY ITS DIRECTOR, MARIAM GEORGE.
BY ADVS.
ENOCH DAVID SIMON JOEL
S.SREEDEV
RONY JOSE
SUZANNE KURIAN
CIMIL CHERIAN KOTTALIL
LEO LUKOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 SHOLAYOOR GRAMA PANCHAYAT
SHOLAYOOR, MATTATHUKKAD PO,
ANAKKATTIL, PALAKKAD DISTRICT-678 581,
REPRESENTED BY ITS SECRETARY.
3 SECRETARY
SHOLAYOOR GRAMA PANCHAYAT, SHOLAYOOR,
MATTATHUKKAD PO, ANAKKATTIL,
PALAKKAD DISTRICT-678 581.
BY ADV P.SHAIJAN JOSEPH
R1 - SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.17559 of 2015
2
JUDGMENT
Dated this the 1st day of July, 2022 This writ petition is filed by the petitioner, a company registered under the Companies Act, 1956, challenging Exhibit P5 notice issued by the Secretary of Sholayoor Grama Panchayat dated 25.05.2015, the third respondent herein. For the sake of convenience and brevity, the said notice is extracted hereunder:
"OFFICE OF THE SHOLAYOOR GRAMA PANCHAYATH ANAKKATTY MATTATHUKKAD P.O. PALAKKAD DIST, KERALA-678581 Ph:04924 254381 A3-437/2009/SUZLONE/SGP Dt.25.05.2015 From Secretary Sholayoor Grama Panchayath.
To Sri C.J.George M/s. Plant Lipids pvt. Ltd.
Kadayirippu, Ekm - 682 311.
Sir Sub:-Unauthorised construction of windmill constructed by you (your firm).
Ref:- (1) File no:-A-750/07, A3 750/07, A3-437/09/ suzlon/sgp of Sholayoor Grama Panchayath (2) Letter no:-C3 36015/10 Hon. Director of Panchayaths Kerala Trivandram dt 28.04.2011 (3) Letter no-c3 36015/10 Dt 27.02.2012 of W.P.(C)No.17559 of 2015 3 Director of Panchayath Kerala Trivandram (4) letter no:-A3-2612/11SGP Dt 17.05.2011 of Secretary Sholayoor grama panchayath addressed to you (5) Audit enquiry No:-09 dt 08.05.2014 of Local body audit party no:-10 of Hon. Accountant General of Kerala.
(6) Letter No A3-437/2009/suzlone/sgp dt 27.06.2014 of this office.
(7) A3-5577/14 dt 21.08.2014 of panchayath, Palakkad.
...................
Vide ref (1) secretary sholayoor grama panchayath have found that you (your firm or company) have constructed wind energy turbines for producing electricity from wind. But it is found that your construction is not within the provisions of Kerala panchayath Raj Act, Kerala Panchayath Building Rules which governs and controls the constructions activities inside this panchayath. Besides various reminders you haven't looked into the legality of your construction(s). Hence Hon Director of Panchayaths Trivandrum have ordered vide ref No(2) to remove the construction. It was informed to you vide ref (4), (6) to remove constructions vide ref(1). unfortunately it is found that you haven't took action vide ref (4), (6). Vide ref(2),(3) & (5) Hon. Director of Panchayaths Kerala and A.G. Kerala have directed us to remove those constructions. Also Hon DDP Palakkad ordered secretary sholayoor grama panchayat for immediate action on these towers vide ref (7). So you are advised to remove the wind energy turbines, its towers, and all other allied constructions which co-exist with your windmill within a period of 3 days of receival of this letter. Unless secretary Sholayoor grama panchayath W.P.(C)No.17559 of 2015 4 will be forced to remove the construction(s) created by you or your firm or company. By using the powers given to secretary sholayoor grama panchayat by Kerala Panchayath Raj Act sec 241, sec 235, sec 235(w). Also the charges and losses there by accumulated on this Panchayth will be recovered from you including Revenue recovery methods. Also if you want to say or produce anything against this letter or if you have any documents to prove the legality of constructions conducted by you, you can present it before the secretary Sholayoor Grama Panchayath within two working Days of receival of this letter. If in any case you can't present it before secretary you can also present your side before the Head Clerk of this panchayath. Besides this you have to pay the tax and its fine for your constructions as may be decided by Hon. Government of Kerala.
Yours faithfully Secretary Sholayoor Grama Panchayath"
2. According to the petitioner, the contents of Exhibit P5 notice is totally unwarranted and illegal and there is no power vested with the Panchayat to raise a threat as is contained in Exhibit P5 and it is thus argued that Exhibit P5 suffers from the vice of arbitrariness and illegality susceptible to be interfered by this court exercising the power of judicial review under Article 226 of the Constitution of India.
3. The Panchayat and the Secretary have filed a counter W.P.(C)No.17559 of 2015 5 affidavit disputing the allegations and claims and demands raised in the writ petition. According to the Panchayat, the windmills are installed by the petitioner without securing establishment permit under section 233 of the Act 1994 and trade license under section 232 of the Act 1994.
4. I have heard the learned counsel for the petitioner Sri.Rony Jose and learned counsel for the Panchayat Sri.Shaijan Joseph and learned Senior Government Pleader Sri.K.P.Harish and perused the pleadings and the material on record.
5. The sole question to be considered is whether any manner of interference is required to Exhibit P5 notice issued by the Panchayat. The contents of the notice would make it clear that the Panchayat has made a request to the petitioner to remove the unauthorised construction failing which the Panchayat would be at liberty to initiate action against the petitioner under section 235W of the Kerala Panchayat Raj Act and other relevant provisions.
6. In my considered opinion, in the notice the Panchayat W.P.(C)No.17559 of 2015 6 itself has stated that if the request made thereunder is not complied with by the petitioner it would take action in accordance with law as provided under the Kerala Panchayat Raj Act, 1994. Therefore it is explicit that, Exhibit P5 notice by itself is not causing any adverse consequences so far as the existence of the windmill constructed by the petitioner is concerned. If the Secretary of the Grama Panchayat is of the opinion that the construction is unauthorised and illegal, action has to be taken under section 235W of the Act 1994.
Section 235W of the Act 1994 reads thus:
"235 W. Demolition or alteration of building works unlawfully commenced, carrying on or completed. - (1) Where the Secretary is satisfied that -
(i) the construction, or reconstruction or alteration of any building -
(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the village panchayat; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans specifications, or information on which such permission or decision was based; or
(c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or himade under this Act, such rule, bye-law or W.P.(C)No.17559 of 2015 7 order; or
(ii) any alteration required by notice issued under section 235 N, has not been duly made; or
(iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of section 235-V, he may make a provisional order requiring the owner or the person for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provisions of this Act, bye-laws, rules, direction, order or requisition as aforesaid, or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work:
Provided that the Secretary may, on realisation of a compounding fee as may be fixed by government, regularise any construction, re-construction, or alteration of the building, commenced, carried on or completed, without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the rules made there under.
(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice W.P.(C)No.17559 of 2015 8 requiring him to show cause within a reasonable time, to be specified in such notice, why the order should not be confirmed.
(3) where the owner or the person for whom the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the order to such an extent as he may think fit to make and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and expenses thereof shall be recoverable from the owner or such person.
(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), prosecution proceedings may be initiated against the owner or the person for whom the work is done.
(5) Where the Government is satisfied that the construction, re-construction or alteration of any building has been carried out in violation of any of the provisions of this Act or any rule made there under or any direction lawfully given by the Government or Secretary, the Government may direct the Secretary of the Village Panchayat to cause the demolition of such construction, re- construction or alteration and if such direction is not complied within the time limit specified in such direction, the Government may arrange its demolition and the cost thereof shall be recovered from the Village Panchayat." W.P.(C)No.17559 of 2015 9
7. On an analysis of the factual circumstances and the law, I am of the considered opinion that Exhibit P5 notice by itself would not constitute a cause of action to the petitioner since no action is taken by the Secretary of the Panchayat in contemplation of law under section 235W of the Act 1994. So also the said provision itself is a complete code to tackle situations arising out of illegal and other constructions and even to regularise it if the construction is in accordance with the Panchayat Building Rules in force. In that view of the matter, I do not think the petitioner is entitled to get any reliefs as are sought for in the writ petition.
The writ petition fails. Accordingly, it is dismissed.
However, I make it clear that the Panchayat shall not take any action without adhering to the mandatory requirements contained under section 235W, if at all it decides to proceed against the constructions carried out by the petitioner.
Sd/-
Shaji P.Chaly Judge vpv W.P.(C)No.17559 of 2015 10 APPENDIX OF WP(C) 17559/2015 PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND AND 3RD RESPONDENTS AS GIVEN BY M/S.SUZLON ENERGY LTD.
EXT.P1(A) A READABLE COPY OF EXT P1. EXT.P2 TRUE COPY OF THE LETTER DATED 31-3-2009
SUBMITTED BY M/S.SUZLON INFRASTRUCTURE SERVICES LTD TO THE 3RD RESPONDENT.
EXT.P3 TRUE COPY OF THE LETTER DATED 17-5-2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXT.P3(A) TRUE COPY OF THE REPLY LETTER DATED 7-6-
2011 SENT ON BEHALF OF THE PETITIONER.
EXT.P4 TRUE COPY OF THE NOTICE DATED 27-6-2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXT.P5 TRUE COPY OF THE NOTICE DATED 25-5-2015 ISSUED BY THE 2ND RESPONDENT.
EXT.P6 TRUE COPY OF THE LETTER DATED 29-5-2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
//TRUE COPY// P.A. TO JUDGE