Jilmon John and Jino John v. Manakad Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938** **WP(C).No. 38356 of 2016 (T) ----------------------------** **PETITIONER(S):** **-------------** **1. JILMON JOHN, MADATHIL HOUSE, MANAKAD POST, THODUPUZHA. 2. JINO JOHN, MADATHIL HOUSE, MANAKAD POST, THODUPUZHA.** **BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **RESPONDENT(S):** - **--------------** **1. THE MANAKAD GRAMA PANCHAYAT, CHITTOOR, PUTHUPARIYARAM POST, IDUKKI DISTRICT-685 608, REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY, MANAKAD GRAMA PANCHAYATH, CHITTOOR, PUTHUPARIYARAM POST, IDUKKI DISTRICT-685 608.** **3. THE DISTRICT ENVIRONMENTAL ENGINEER OF THE KERALA STATE POLLUTION CONTROL BOARD, IDUKKI.** **4. P.A.THOMAS, S/O.ABRAHAM, THEKKEPARAMBIL, PUTHUPARIYARAM POST, THODUPUZHA-685 608.** - **R1 & R2 BY ADV. SRI.M.H.HANIL KUMAR R3 BY SRI.T.NAVEEN SC R4 BY ADVS. SRI.RAJAN VISHNURAJ SRI.V.HARISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/** ## **WP(C).No. 38356 of 2016 (T) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------EXHIBIT P1 : A TRUE COPY OF THE AGREEMENT EXECUTED BY THE 2ND PETITIONER IN FAVOUR OF THE PETITIONER DATED 18.12.2015. EXHIBIT P2 : A TRUE COPY OF THE CIRCULAR DATED 1.10.2015 ISSUED BY THE CHAIRMAN OF THE PCB. EXHIBIT P3 : A TRUE COPY OF THE CONSENT TO ESTABLISH DATED 22.12.2015 ISSUED BY THE ENVIRONMENTAL ENGINEER. EXHIBIT P4 : A TRUE COPY OF THE RECEIPT DATED 13.2.2016 ACKNOWLEDGING THE RECEIPT OF THE APPLICATION FOR PERMIT SUBMITTED BY THE PETITIONER. EXHIBIT P5 : A TRUE COPY OF THE PERMIT IN FAVOUR OF THE PETITIONER DATED 15.2.2016 BY THE 2ND RESPONDENT. EXHIBIT P6 : A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 17.2.2016. EXHIBIT P7 : A TRUE COPY OF THE LETTER DATED 18.2.2016 BY THE 2ND RESPONDENT TO THE DISTRICT MEDICAL OFFICER, IDUKKI. EXHIBIT P8 : A TRUE COPY OF THE LETTER BY THE 2ND RESPONDENT TO THE ASSISTANT DIVISIONAL OFFICER, KERALA FIRE AND RESCUE SERVICES, IDUKKI. EXHIBIT P9 : A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 19.2.2016 ISSUED BY THE ASST. DIVISIONAL OFFICER, IDUKKI. EXHIBIT P10 : A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 4.3.2016. EXHIBIT P11 : A TRUE COPY OF THE ORDER DATED 18.4.2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P12 : A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 29.4.2016. EXHIBIT P13 : A TRUE COPY OF THE ORDER DATED 29.4.2016 IN WPC NO.16515/2016 ALONG WITH THE ORDER DATED 5.5.2016 BY THE 2ND RESPONDENT.** **--2--** **--2--** ## **WP(C).No. 38356 of 2016 (T)** ## **---------------------------** **EXHIBIT P14 : A TRUE COPY OF THE JUDGMENT IN WPC NO.8725, 17416 AND 16515/2016, DATED 17.10.2016. EXHIBIT P15 : A COPY OF THE LETTER BY THE 1ST PETITIONER DATED 21.10.2016. EXHIBIT P16 : A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 14.11.2016. EXHIBIT P17 : A TRUE COPY OF THE APPLICATION BY THE 1ST PETITIONER DATED 3.11.2016 FOR GRANT OF D & O LICENSE. EXHIBIT P18 : A TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE 3RD RESPONDENT DATED 12.7.2016. EXHIBIT P19 : A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 17.11.2016.** |**RESPONDENT(S)'**|**EXHIBITS:**| |---|---| |**-----------------------**|| |**EXT.R1A:**|**A TRUE COPY OF THE BUILDING PERMIT APPLICATION**| ||**SUBMITTED BY THE PETITIONER DATED 2.4.2016.**| |**EXT.R1B:**|**A TRUE COPY OF THE REPORT SUBMITTED BY THE**| ||**ASSISTANT ENGINEER LSGD SECTION MANAKAD.**| |**EXT.R1C:**|**A TRUE COPY OF THE HEARING NOTICE**| ||**DATED 7.11.2016.**| |**EXT.R1D:**|**A TRUE COPY OF THE RELEVANT PAGES OF THE KERALA**| ||**PANCHAYATH BUILDING RULES 2011.**| |**EXT.R1E:**|**A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LAY**| ||**AND NATURE OF THE HOT MIXING PLANT AND OFFICE**| ||**BUILDING 2011.**| **//TRUE COPY// P.S. TO JUDGE mbr/** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 38356 of 2016 (T) -----------------------------------------Dated: 09[th] December, 2016 ## **J U D G M E N T** The petitioners are aggrieved with Ext.P19 order dated 17.11.2016 and submit that the same is in violation of the directions issued in Ext.P14 judgment. 2. Ext.P19 indicates that the hot mix bitumen plant, which is sought to be erected in the land, comes within the hazardous occupancy and also since the extent of the land exceeds one hectare; under Rule 61 of the Kerala Panchayat Building Rules, 2011 ('Rules' for short), the layout requires an approval from the Chief Town Planner. The Panchayat also states in Ext.P19 that, by communication dated 14.11.2016, the petitioners have been informed of the same and the petitioners have not taken up any proceedings to obtain such lay out approval from the Chief Town Planner. ## **W.P.(C) No. 38356/2016** **-2-** 3. The petitioners' reliance is on Ext.P14 judgment, which directed reconsideration of the building permit application within a period of one month. The objection raised in the earlier writ petition, filed by the petitioners, was with respect to the withdrawal of permission to establish granted under Section 233 of the Kerala Panchayat Raj Act, 1994 ('Act' for short). This Court found that such a review of the grant cannot be made and also that the revocation was not made on sustainable grounds. It was also found that in the teeth of a consent to establish issued by the Pollution Control Board, the Panchayat could not have refused the consent under Section 233 merely based on allegations of pollution, which had been addressed by the Pollution Control Board, the appropriate authority, competent to deal with that subject. It was also specifically noticed in the judgment that the pollution, if ## **W.P.(C) No. 38356/2016** **-3-** any occasioned, could be measured only after the commencement of the unit. The appellate remedy available to the objectors under Section 276 of the Act, before the Tribunal for Local Self Government Institutions, was also left open; which is said to have been now availed. 4. The consideration directed of the building permit application, going by Ext.P19, is not possible since compliance of Rule 61 of the Rules is not made by the petitioners. The petitioners, however, would contend that there is no building as such constructed and that the hot mix plant is erected in the open air without any covering or structure constructed with bricks and cement. The said contention cannot be countenanced since the definition of as 'building' contained in the Rules is not confined to a construction made of brick and cement. The definition of 'building' **-4-** ## **W.P.(C) No. 38356/2016** as contained in Rule 2(m) is extracted hereunder: “2(m) 'building' includes any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building, wells or anything affixed there to or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures;” 5. Hence, any structure constructed, for whatever purpose and whatsoever be the material used, would be covered under the definition clause. The erection of a structure for a hot mix plant would necessarily have to be with permit issued under the ## **W.P.(C) No. 38356/2016** **-5-** Rules, for which a prior approval is required from the District/Chief Town Planner, not only for the structure, but also for the plot since Rule 61(1) speaks of a building of a specified plinth area **and/or** a plot exceeding 1 hectares. In such circumstance, there can be no interference caused to Ext.P19. 6. The learned Counsel has a further contention in the reply affidavit that he would establish the unit as a temporary unit, since he had undertaken certain works and then it would be covered under the decision in **Janardhanan Nair v. Vijayamma - 2016 (2) KLT 735** . The decision in **Janardhanan Nair** was specifically referred to and distinguished in Ext.P14 judgment. The petitioners' claim, all through, was for erecting a permanent hot mix plant. The material imported to make such erection is also for a permanent unit. Only in the circumstance of the same having been ## **W.P.(C) No. 38356/2016** **-6-** declined, the petitioners contend that they would erect a temporary unit, but, however, with the very same materials they purchased and brought into the property for establishing a permanent hot mix unit. This is just an after thought not worthy of consideration and there was never a contention that the unit was intended to be shifted after the work undertaken. The claim has been reduced to one of a temporary unit only to wriggle out of the prescriptions in the statutory rule and to get over the situation of the establishment of the unit being delayed for the default of the petitioners in not complying with the mandate of the rule. 7. The temporary hot mix unit, as was referred to in the decision in **Janardhanan Nair** , was a temporary unit established near the work site for carrying out a specified work of tarring of a road, which, even at the time of establishment, was intended ## **W.P.(C) No. 38356/2016** **-7-** to be erected and continued only for the period in which the work was continued on the road. In the present case, the contention raised is only to get over the difficulty insofar as the compliance directed by the Panchayat, of the prescription in the rules of approval from the Chief Town Planner; for considering issuance of a building permit. This Court is unable to countenance the contention of the petitioner that he would, hence, make a temporary installation and then remove it after the work which he has contracted is carried out. The prayer is not for installation of a temporary unit; but the installation of a permanent unit, temporarily to carry out the obligations undertaken by the petitioner, without even a permit issued by the Panchayath under the building rules; the consideration of which under the rules was the only direction in Exhibit P14. This would lead to the statutory rules ## **W.P.(C) No. 38356/2016** **-8-** being violated, which this Court would not and shall not condone. The writ petition is found to be devoid of merit and the same is dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 9/12/16