Kerala High Court
Sreekandan B vs Vellarada Grama Panchayat on 25 January, 2022
W.P.(C)No.17844 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
WP(C) NO. 17844 OF 2021
PETITIONER:
SREEKANDAN B
AGED 63 YEARS
AVANI, MAMPAZHAKKARA,
PERUMPAZHATHOOR P.O,
NEYYATTINKARA,
THIRUVANANTHAPURAM - 695126.
BY ADVS.
SRI ENOCH DAVID SIMON JOEL
SRI S.SREEDEV
SRI RONY JOSE
SUZANNE KURIAN
CIMIL CHERIAN KOTTALIL
RESPONDENTS:
1 VELLARADA GRAMA PANCHAYAT
PANACHUMOODU P.O,
THIRUVANANTHAPURAM - 695505,
REPRESENTED BY ITS SECRETARY.
2 SECRETARY
VELLARADA GRAMA PANCHAYATH,
PANACHUMOODU P.O,
THIRUVANANTHAPURAM - 695505
ADDL.R3 IMPLEADED
ADDL. R3: SURENDRAN @ MANOHARAN
AGED 59 YEARS
S/O.SANKARA PANICKER,
ERAMATHUVEEDU,
NELLISSERY,
VELLARADA P.O.,
THIRUVANANTHAPURAM, PIN - 695505.
ADDL.R3 IS IMPLEADED AS PER ORDER DATED 01.10.2021
IN IA 1/2021 IN WPC NO. 17844/2021.
W.P.(C)No.17844 OF 2021 2
ADDL.R4 IMPLEADED
ADDL.R4 THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTER, THIRUVANANTHAPURAM,
KERALA, ADDL.R4 IS SUO MOTU IMLEADED AS PER ORDER
DATED 09.11.2021 IN WPC .
R1 & 2 BY SRI J.S.AJITHKUMAR
R3 BY BY ADV SRI.R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
SRI RAJEEV JYOTHISH GEORGE, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06.01.2022, THE COURT ON 25.1.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.17844 OF 2021 3
T.R.RAVI,J.
-----------------------------
W.P.(C)No.17844 OF 2021
-------------------------------
Dated this the 25th day of January, 2022
The petitioner has set up a temporary hotmix plant after
obtaining Ext.P1 consent from the Pollution Control Board. He also
obtained Ext.P2 acknowledgement certificate under the provisions of
the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019
(hereinafter referred to as the 2019 Act). As per Ext.P2 certificate,
the petitioner is exempted from obtaining any permission under any
of the State enactments for a period of three years. The petitioner
was issued Ext.P3 by the 2 nd respondent Panchayat directing him not
to operate the hotmix plant without obtaining licenses under
Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994
(hereinafter referred to as the 1994 Act). According to the petitioner,
in view of Ext.P2 certificate, he is not obliged to obtain any licence
under any of the provisions of the the 1994 Act for a period of three
years. The writ petition has been filed challenging Ext.P3 issued by
the Panchayat.
2. The 3rd respondent in the writ petition is a neighbour, who
has property adjacent to the site where the hotmix plant is put up by
the petitioner. The 3rd respondent has filed a counter affidavit
wherein it is stated that the area is a thickly populated area and the
hotmix plant is a mega construction with high profile equipments
operating on 130 HP and that it is an industry specified in the first
schedule to the Industries Development and Regulation Act, 1951 as
contemplated in Section 7 of the Micro Small and Medium
Enterprises Development Act, 2006. According to the 3 rd
respondent, the hotmix plant is beyond the domain of 2019 Act
which had adopted by incorporation and reference the Micro Small
and Medium Enterprises Development Act, 2006. According to the
3rd respondent, the petitioner is obliged to obtain a permission for
development of the land and permit for setting up the hotmix plant
and to obtain the D&O licence as mandated by the Kerala Panchayat
Raj Act. It is further submitted that Ext.P2 acknowledgement
certificate has been wrongly issued, since it is not relating to an
industry to which the 2019 Act applies.
3. The petitioner has filed a reply affidavit in which it is
stated that the petitioner is operating a small enterprise as defined
in Section 7 of the Micro Small and Medium Enterprises
Development Act, 2006 and can be classified under Item 1(B) and
19(40) of Schedule 1 of the Industries Development and Regulation
Act, 1951. It is also submitted that the petitioner has already applied
to the 2nd respondent under Rule 68 of the Kerala Panchayat Building
Rules, 2019 seeking permission to install the hotmix plant and the
application is produced as Ext.P6. It is submitted that in view of the
judgment of the Full Bench of this Court in Tomy Thomas v. State
of Kerala reported in [2019 (3) KLT 987], the 2nd respondent
cannot refuse such permission, since the petitioner has already
secured consent from the Pollution Control Board.
4. The petitioner relies on the decision in Jolly George v.
George Elias and Associates reported in [2022 (1) KLT 8]
wherein a Division Bench of this Court held that on a conjoint
reading of Group I under Rule 25 of the Panchayat Building Rules,
2019 and the provisions of Rule 68 it is categoric and clear that any
construction of hotmix plant for a period of six months or below
requires only a permission from the Secretary of the Grama
Panchayat. It is further held that if the hotmix plant is to be
installed for a period beyond six months, it requires a compliance of
all the relevant provisions of the Building Rules, 2019 including a
building permit. The Court held that the legal position under the
Building Rules, 2019 has changed drastically from what was
available under the Building Rules, 2011 and the permanent nature
of a hotmix plant is to be identified now on the basis of the period
for which the plant is to be installed rather than the capacity or the
permanent fixtures to be employed for the setting up of the plant.
In the light of the Division Bench judgment, the counsel for the
petitioner submits that the contentions raised by the 3 rd respondent
are no longer relevant and all that is to be looked into is whether the
hotmix plant which is being set up by the petitioner is a temporary
one, in which case all that is required is a permission from the
Secretary and nothing more. In the light of the Division Bench
judgment as submitted by the counsel for the petitioner, the order
Ext.P3 which proceeds on the basis that setting up of the hotmix
plant requires the licence from the Panchayat, without which there
will be violation of the provisions of sections 232 and 233 of the
1994 Act, and further directs the petitioner to start the work only
after getting the licence required for installation of the machineries
for the tar mixing plant under the 1994 Act, cannot be legally
sustained. Since the law requires only a permission from the
Secretary and since the Pollution Control Board has already granted
consent to establish, there is no further requirement under the law
for any other licenses. The petitioner has no case that they are
seeking to establish a hotmix plant of permanent nature. Ext.P6
application submitted by the petitioner to the Secretary specifically
requests for permission to put up a temporary asphalt hotmixing
plant. By Ext.P7, the Panchayat Committee rejected Ext.P6
application on the ground that if the same is permitted to be put up,
there will be health issues to the public. The petitioner has produced
Ext.P8, which is an interim order issued by the Tribunal for Local Self
Government Institutions, Thiruvananthapuram in an appeal filed by
the petitioner challenging Ext.P7. In Ext.P8, the Tribunal has stayed
the decision of the Panchayat until further orders and had ordered
that the Panchayat shall not interfere with the erection and
installation of the hotmix plant by the petitioner. At the time
hearing, the petitioner has also placed before me the final order
issued in the above said appeal, whereby the Tribunal has set aside
Ext.P7 decision of the Panchayat and directed the Panchayat to issue
necessary permission under Section 68 of the Panchayat Building
Rules, 2019 for erection and installation of a temporary hotmix plant
in the property on the basis of the application dated 6.10.2020. In
the light of the subsequent events and the judgment of the Division
Bench in Jolly George (supra), the writ petition is liable to be
allowed.
5. In the result, the writ petition is allowed. Ext.P3 is set
aside. The 2nd respondent shall issue necessary permission as
contemplated in the judgment of the Division Bench in Jolly
George (supra) and as directed by the Tribunal in the judgment in
Appeal No.506/2021, on the basis of Ext.P6 application submitted by
the petitioner for a temporary hotmix plant immediately, if not
already issued, within three weeks from the date of receipt of a copy
of this judgment. This judgment will not stand in the way of the 3 rd
respondent approaching the appropriate authorities, if there is any
attempt to convert the temporary hotmix plant into a permanent
hotmix plant, without the required licenses as held in the judgment
of the Division Bench above said.
Sd/-
T.R.RAVI
JUDGE
dsn
APPENDIX OF WP(C) 17844/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE CONSENT DATED 26.07.2021 VALID
TILL 30.06.2026 ISSUED BY THE POLLUTION CONTROL
BOARD.
Exhibit P2 TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE DATED
17.08.2021 ISSUED BY THE DISTRICT INDUSTRIES
CENTRE, THIRUVANANTHAPURAM.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 31.08.2021 WITH NO.
A3/4338/2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE LETTER DATED FEBRUARY 2021 ISSUED
BY THE SUPERINTENDING ENGINEER, PWD ROADS, SOUTH
CIRCLE TO THE PETITIONER.
Exhibit P4(A) TRUE COPY OF THE LETTER DATED 26.02.2021 ISSUED BY
THE SUPERINTENDING ENGINEER, PWD ROADS, SOUTH
CIRCLE TO THE PETITIONER.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 8/10/2021 IN WPC
NO.18358/2021 ON THE FILES OF THIS HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE APPLICATION DATED 6/10/2021
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESONDENT.
Exhibit P6 A TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND
RESPONDENT.
Exhibit P7 TRUE COPY OF THE DECISION DATED 11.10.2021 BEARING
NO.IX(1) TAKEN BY THE PANCHAYAT COMMITTEE OF THE
1ST RESPONDENT.
Exhibit P8 TRUE COPY OF THE ORDER DATED 20.10.2021 IN I.A
1092/2021 IN 506/2021 ON THE FILES OF THE TRIBUNAL
FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
RESPONDENTS' EXTS:
EXT.R3(A): TRUE COPY OF THE MASS COMPLAINT DATED NIL BEFORE
THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXT.R3(B): TRUE COY OF COMUNICATION DT.8.6.2021 FROM
DISTRICT COLLECTOR, THIRUVANANTHAPURAM TO THE
SECRETARY OF VELLARADA GRAMA PANCHAYAT.
EXT.R3(C): TRUE COPY OF MASS COMPLAINT DT.27.8.2021 BEFORE
THE PRESIDENT OF GRAMA PANCHAYAT.
EXT.R3(D): PHOTOGRAPHS OF THE CHANGE OF TERRAIN OF LAND AND
CONSTRUCTION ACTIVITY CARRIED ON.
