M.V. Paulose v. Elamkunnapuzha Grama Panchayat and Secretary, Elamkunnapuzha Grama Panchayat

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942** ## **WP(C).No.10045 OF 2020(E)** ## **PETITIONER:** **M.V.PAULOSE AGED 74 YEARS S/O. LATE VARGHESE, MALIYEKKAL HOSUE, VALAPPU, MALIPPURAM P.O., ERNAKULAM-682 511. BY ADV. SRI.K.T.THOMAS** ## **RESPONDENTS:** |**1**|**ELAMKUNNAPUZHA GRAMA PANCHYAT**| |---|---| ||**ELAMKUNNAPUZHA, ERNAKULAM DISTRICT, PIN-682 503,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE SECRETARY**| ||**ELAMKUNNAPUZHA GRAMA PANCHAYAT, ELAMKUNNAPUZHA,**| ||**ERNAKULAM DISTRICT, PIN-682 503.**| ||**SRI.P.M.BENZIR, ADVOCATE**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 10045 of 2020 --------------------------------------Dated this the 21[st ] day of May, 2020 ## J U D G M E N T The case set up in this Writ Petition is as follows: The petitioner is conducting a wood based industrial unit, at Elamkunnapuzha Grama Panchayat in Ernakulam District. The unit was started in the year 1976. The petitioner was also conducting three other units. All the units were being operated with all requisite permits and licenses and all the licenses are renewed from time to time without any complaints of violation of license conditions. Presently all the units are closed and not functioning since November, 2017. One of the neighbouring property owners had filed several complaints and cases before various authorities and this Court, against the units of the petitioner. Ultimately in 2017, the Panchayat denied to renew the licence on the ground that there is structural variation in the buildings. Though the petitioner tried to regularize the same, the Senior Town Planner declined. Consequently, the petitioner removed additional constructions and complied with Rules applicable prior to denial of licence. The W.P. © No. 10045/2020 ..3.. petitioner thereafter submitted application seeking grant/renewal of licence for the unit for the period 2020-2025. Along with the application, the petitioner produced permission/NOC issued by the Pollution Control Board, Fire and Rescue Services and the Divisional Forest Officer and plan. Without considering the application on merits, the 2[nd] respondent rejected the same on the ground stated earlier, ie; structural variation is not regularized. Accordingly to the petitioner, presently there is no violation and the unit complies with all statutory requirements as applicable at the relevant time. The unit is closed down since November, 2017 and the petitioner has no other source of income or occupation. More than 50 persons were directly or indirectly engaged in the unit. The petitioner is in a desperate situation and has sold his house to clear a portion of the liability due to bank. The impugned order passed by the 2[nd] respondent is highly arbitrary, illegal and it is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ a) To issue a writ of ceftiorari or other appropriate writ, order or direction quashing Ext-P16 order issued by 2nd respondent. W.P. © No. 10045/2020 ..4.. b) To issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to consider Ext-P15 application afresh and to pass orders thereon, after hearing the petitioner, taking note of the fact that the unit of the petitioner was established before coming into force of the Kerala Panchayat Raj Act, 1994 and Rules. c) To issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to permit the petitioner to run Janatha Saw Mill on trial basis, till orders are passed afresh on Ext-pl5 application. d) To issue such other writ, order or direction as this Hon'ble Court may deem fit to pass in facts and circumstances of the case. “ 2. Heard Sri.K.T.Thomas, learned counsel appearing for the petitioner and Sri.P.M.Benzir, learned counsel appearing for the respondents (Elankunnapuzha Grama Panchayat). 3. According to the petitioner, he had secured the requisite license from all the authorities concerned including the respondent Panchayat for running his sawmill, and there were no issues between the petitioner and the Panchayat till the year 2015. The petitioner would assert that, the building in which the sawmill is housed was constructed at a time prior to the coming into force of the Kerala Panchayat Raj Act, 1994, and prior to the applicability of the Building Rules to the respondent Panchayat concerned. It is only later there that the Kerala Panchayat Building Rules, 2011, had come into force. Allegations were raised that the petitioner has made some unauthorized construction in the said building in the W.P. © No. 10045/2020 ..5.. year 2016 or so. That, the respondent Panchayat had then taken the stand that the trade license for the petitioner to run the sawmill could be renewed only if the petitioner gets regularization from the Town Planner to obviate the issues regarding the alleged unauthorized construction in the building. When such disputes are pending, the petitioner could even thereafter operate the sawmill till the year 2017 on the basis of the provisions contained in the Kerala Panchayat Raj Act regarding grant of deemed license. The request of the petitioner for regularization of alleged unauthorized construction was declined by the Senior Town Planner. It is on that basis that the respondent Panchayat has consistently taken the stand that the trade license of the petitioner to run the sawmill cannot be further renewed. The specific case of the petitioner is that, the alleged unauthorized constructions has already been removed by the petitioner subsequently, and therefore no question of getting any regularization of the alleged unauthorized construction, as the alleged unauthorized construction is no longer in existence. That, now the application of the petitioner for renewal of license for the years 2020-2025 has now been rejected by the 2[nd] respondent Secretary of the Elankunnapuzha Grama Panchayat, as W.P. © No. 10045/2020 ..6.. per the impugned Ext.P-16 proceedings dated 18.3.2020, on the ground that the plea of the petitioner for renewal of trade license can be considered by the Panchayat only after he gets orders from the Senior Town Planner regarding the regularization of alleged unauthorized construction. It is pointed out by the petitioner that Ext.P-16 has been passed by the 2[nd] respondent Secretary, behind the back of the petitioner and without even conducting an inspection of building to ascertain the crucial aspect as to whether the petitioner has already removed the alleged unauthorized construction, and without even affording reasonable opportunity of being heard before a decision as per Ext.P-16 was taken. One of the specific contention raised by the petitioner is that, since the building has been constructed prior to the applicability of the building rules to the respondent Elamkunnapuzha Grama Panchayat, the matters relating to open space of the building cannot be determined with reference to the provisions contained either in the Kerala Panchayat Building Rules, 2011, or in the subsequently promulgated the Kerala Panchayat Building Rules, 2019. The petitioner submits that he has all other requisite statutory licenses, permission, consent etc from the authorities W.P. © No. 10045/2020 ..7.. concerned including the DFO. 4. Sri.K.T.Thomas, learned counsel appearing for the petitioner would strongly urge that since the original building was constructed at a time when the building rules were not applicable to the respondent Panchayat, and now as the alleged unauthorized construction said to have been made subsequently has been removed by the petitioner, the issues relating to free space of the building, etc cannot be gone into by the respondent Panchayat, so long as the construction is in the original form. Further, as an alternate contention Sri.K.T.Thomas, learned counsel appearing for the petitioner would urge that, if at all the issue of open space is to be adjudged for the purpose of renewal of trade license, it can only on the basis of the rules which were in force at the time when the Panchayat had initially denied the license in the year 2015, or atleast in the year 2017 upto which time the petitioner has operated the unit on the basis of deemed license, and if that be so, the issues will have to be adjudged on the basis of the provisions contained in the Kerala Panchayat Building Rules, 2011, and not on the basis of the subsequently promulgated Kerala Panchayat Building Rules, 2019. It is pointed out by the petitioner's counsel W.P. © No. 10045/2020 ..8.. that, the petitioner's saw-mill was engaging atleast 50 workers, and the impugned action of the Panchayat has detrimentally affected not only the right to livelihood of the petitioner, but also the precious right to livelihood of the workers of the unit. 5. Sri.P.M.Benzir, learned counsel appearing for the respondents would submit that Ext.P-16 has been validly passed by the respondent, and the reasons thereof are also stated therein, and that the petitioner has not so far obtained the order of regularization from the Senior Town Planner, etc. 6. However after hearing both sides it appears that, the impugned Ext.P-16 proceedings has been rendered without even conducting an inspection to ascertain the correct factual affairs. More particularly, as to whether or not the alleged unauthorized construction has already been removed by the petitioner. Further, the petitioner has not been given a reasonable opportunity of being heard by the 2[nd] respondent before the impugned Ext.P-16 order has been rendered, which casts adverse civil consequences on him. 7. After hearing both sides this Court is of the considered view that, since the impugned Ext.P-16 decision has been taken without conducting inspection to ascertain the abovesaid crucial W.P. © No. 10045/2020 **==> picture [19 x 9] intentionally omitted <==** factual aspects, and without considering the other contentions of the petitioner, and without affording reasonable opportunity of being heard to the petitioner, the matter requires interdiction and the matters calls for a serious reconsideration at the hands of the 2[nd] respondent Secretary of the Elamkunnapuzha Grama Panchayat. The discretion of the 2[nd] respondent to refuse Trade License is also now extremely limited in view of the amendments made to the Kerala Panchayat Raj Act, and legal principles in that regard has already been set out in detail by a Full Bench decision of this Court in the case in _**Tomy Thomas v. State of Kerala & Others [2019 (3) KLT 987 (FB)]**_ **.** Therefore, as the matter requires a remit, the impugned Ext.P-16 proceedings will stand set aside. Correspondingly, the application submitted by the petitioner for renewal of Trade License for running saw-mill for the year 2020-2025 as per Ext.P-15 will stand remitted to the 2[nd] respondent Secretary, Elamkunnapuzha Grama Panchayat, for consideration and decision afresh. The 2[nd] respondent will immediately ensure that, an inspection of the petitioner's building is conducted by an engineering staff/building inspector of the said Panchayat with due prior notice to the petitioner. The said W.P. © No. 10045/2020 ..10.. inspection officer should conduct inspection immediately with notice to the petitioner and ascertain as to whether the alleged unauthorized construction has already been removed by the petitioner. Then 2[nd] respondent will also ascertain as to when the original building was constructed with reference to documents like the assessment register of the Panchayat, etc. This is to be so done to verify as to whether the original building was constructed prior to the applicability of building rules to the respondent Panchayat. Thereafter, the inspection officer shall give a comprehensive report in the matter to the 2[nd] respondent Secretary, who thereafter will ensure that a copy of said inspection report is given to the petitioner in advance. Thereafter, the 2[nd] respondent will invite the petitioner for personal hearing and the petitioner will also be permitted to submit written submissions in the matter, and the petitioner should be afforded a reasonable opportunity of being heard through authorized representative/counsel if any, and then the 2[nd] respondent should pass orders in accordance with law on Ext.P-15 application on the plea of the petitioner for renewal of Trade License to conduct the saw-mil for the year 2020-2025. The entire process in this regard should be duly completed by the W.P. © No. 10045/2020 ..11.. 2[nd] respondent within 6 weeks from the date of production of a certified copy of this judgment. While doing so, the 2[nd] respondent will specifically consider as to whether the unauthorized construction has already been removed, and if it so found, then goes without saying that then there is no question of getting any regularization as the unauthorized construction itself is now non-existent. Therefore, the license to the petitioner cannot be denied on that ground. The 2[nd] respondent will ascertain as to whether the original building was constructed at a time when building rules were not applicable to the respondent Panchayat, and also the abovesaid contention of the petitioner regarding the open space, etc especially the contention of the petitioner that the strict norms contained in the Kerala Panchayat Building Rules, 2019, cannot be made applicable to the case of the petitioner, as aforenoted. 8. In that regard it is hoped and expected that, the 2[nd] respondent will get necessary legal advice in that regard before he renders decision on Ext.P-15. This Court would also venture to observe that in matters like this, officers like the 2[nd] respondent should not act mechanically, especially when the precious right to W.P. © No. 10045/2020 ..12.. livelihood of workers of an unit are involved. The petitioner would assert that about 50 workers have been engaged in the said unit, and if that be so, those workers are invisible as far as the respondents are concerned in the decision making process. But, this Court would also observe that, the precious right to livelihood of these poor workers should also be kept in mind by the 2[nd] respondent, as any decision he may take in the matter would also have the inevitable consequences of affecting the rights and interests of the workers. 9. Sri.K.T.Thomas, learned counsel appearing for the petitioner submits that, the saw-mil was in operation since the last 3 to 4 years from November, 2017 onwards, and most of the machinery are now rusted, and that this Court may order that the petitioner could atleast operate the unit for a few weeks on a trial run basis. 10. Taking note of the peculiar facts and circumstances of the case and in the interest of justice it is ordered that, the respondents will permit the petitioner to operate the saw mill unit on a trial run basis for 3 weeks, and this may be done by the petitioner with due prior notice to the 2[nd] W.P. © No. 10045/2020 **==> picture [24 x 9] intentionally omitted <==** respondent and thereupon, it will be open to the 2[nd] respondent to depute authorized officials to the saw-mill on the days on which trial run is done as aforedirected. 11. The petitioner will forward a copy of this judgment along with a copy of memorandum of this WP(C) with all exhibits to the 2[nd] respondent for necessary information. With these observations and direction, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 10045/2020 ..14.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF LETTER DATED 21.3.2012 ISSUED BY ASSISTANT ENGINEER, KSEB, VYPIN TO FOREST CONSERVATOR.** **EXHIBIT P2 TRUE COPY OF SALE DEED NO.1292/1999.** **EXHIBIT P3 TRUE COPY OF THE LICENSE DATED 9.10.1978 ISSUED TO J ANATHA SAW MILL BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LICENSE ISSUED FOR THE PERIOD UPTO 31.3.1990 TO J ANATHA SAW MILL BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE LICENSE ISSUED FOR THE PERIOD 1998-99 TO J ANATHA SAW MILL BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LICENSE ISSUED FOR THE PERIOD 2014-15 TO J ANATHA SAW MILL BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 23.5.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE DECISION DATED 19.7.2017 OF PANCHAYAT COMMITTEE, ELAMKUNNAPPUZHA. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 24.11.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 6.7.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19.12.2018 ISSUED BY SENIOR TOWN PLANNER, ERNAKULAM.** W.P. © No. 10045/2020 ..15.. **EXHIBIT P12** **EXHIBIT P13** **EXHIBIT P14** **EXHIBIT P15** **EXHIBIT P16** **TRUE COPY OF THE NOC ISSUED BY ASSISTANT DIVISIONAL OFFICER, FIRE & RESCUE SERVICES, ERNAKULAM.** **TRUE COPY OF THE LICENCE FOR SAW MILL ISSUED BY DIVISIONAL FOREST OFFICER, MALAYATTOOR.** **TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL ISSUED BY THE ENVIRONMENTAL ENGINNER, KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM.** **TRUE COPY OF THE APPLICATION ALONGWITH COVERING LETTER DATED 12.3.2020 SUBMITTED BY THE PETITIONER.** **TRUE COPY OF THE ORDER DATED 18.3.2020 ISSUED BY 2ND RESPONDENT.**