N.S. Arun Kumar vs Convener & General Manager, Single Window Clearance Board, District Industries Centre Palakkad; Secretary, Erumayoor Grama Panchayath; Kuttappan; A.K. Viswanathan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937** ## **WP(C).No. 20894 of 2015 (J)** **----------------------------** ## **PETITIONER :** **---------------------** **N.S.ARUN KUMAR MANAGING PARTNER, M/S. ARADHANA GRANITES, CHITHALY ERUMAYOOR, KAVASSERY P.O., PALAKKAD DISTRICT-678543.** **BY SENIOR ADVOCATE SRI.N.N.SUGUNAPALAN BY ADV. SRI.S.SUJIN** ## **RESPONDENT(S) :** **----------------------------** ## **1. THE CONVENER & GENERAL MANAGER** **SINGLE WINDOW CLEARANCE BOARD (DISTRICT BOARD) DISTRICT INDUSTRIAL CENTRE, PALAKKAD-678 001.** ## **2. SECRETARY** **ERUMAYOOR GRAMA PANCHAYATH, ERUMAYOOR P.O.-678 546.** ## **3. KUTTAPPAN** **S/O. RAMAKRISHNAN, TREASURER, ACTION COMMITTEE AMMOORPADAM HOUSE, VAYYAMKULAMBU, ERUMAYOOR P.O.-678 546 ERUMAYOOR GRAMA PANCHAYATH, ALATHUR, PALAKKAD.** ## **4. A.K.VISWANATHAN** **S/O. KANDACHAMI, SECRETARY, ACTION COMMITTEE AMMOORPADAM HOUSE, VAYYAMKULAMBU, ERAMAYOOR P.O. - 678 546 ERUMAYOOR GRAMA PANCHAYATH, ALATHUR, PALAKKAD.** **R1 BY SR. GOVT. PLEADER SRI. C.R. SYAMKUMAR R2 BY ADV. SRI.U.BALAGANGADHARAN R3 & R4 BY ADV. SRI.P.R.VENKETESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2015, ALONG WITH WP(C).NO. 24917/2015, THE COURT ON 14-01-2016 DELIVERED THE FOLLOWING:** **Mn** **WP(C).No. 20894 of 2015 (J) -----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **EXT. P1 : COPY OF THE PROCEEDINGS OF THE SINGLE WINDOW CLEARANCE BOARD DTD.29.10.2012. EXT. P2 : COPY OF THE DECISION OF THE SINGLE WINDOW CLEARANCE BOARD DTD. 2.9.2013. EXT. P3 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.29071/2014 AND WP(C). NO.11852/2014. EXT. P4 : COPY OF THE PROCEEDINGS DTD.4.7.2015 OF THE CONVENER SINGLE WINDOW CLEARANCE BOARD. EXT. P5 : COPY OF THE PROCEEDINGS DTD.4.2.2015 OF THE SUB DIVISIONAL MAGISTRATE, PALAKKAD. EXT. P6 : COPY OF THE JUDGMENT DTD.31.10.2014. EXT. P7 : COPY OF THE FILE NOTE OF THE IST GRADE DRAUGHTSMAN IN THE OFFICE OF TOWN PLANNER DATED 19.3.2013. EXT. P8 : COPY OF THE FIR 1228/14 DATED 17.9.2014. EXT. P9 : COPY OF THE PROJECT FORMATION FORM 2 DATED 24.12.2012. EXT. P10 : COPY OF THE RELEVANT PAGE OF GUIDELINES DATED 16.11.2013 ISSUED BY THE GOVERNMENT FOR THE YEAR 2013. EXT. P11 : COPY OF THE LETTER DATED 7.1.2013 OF THE ASSISTANT ENGINEER, LSGD, ERIMAYOOR AND SKETCH OF THE ROAD SENT TO THE PETITIONER. RESPONDENT(S)' EXHIBITS : ------------------------------------------EXT. R2(a) COPY OF APPLICATION SUBMITTED BY THE PETITIONER DATED 16.8.2012. EXT. R2(b) COPY OF MEMO ISSUED BY 2ND RESPONDENT TO PETITIONER DATED 22.8.2012. EXT. R2(c) COPY OF LETTER DATED 10.1.2013 ISSUED BY DISTRICT TOWN PLANNER TO 2ND RESPONDENT. EXT. R2(d) COPY OF ORDER OF 2ND RESPONDENT DATED 17.1.2013.** **(Contd...)** ## **WP(C).No. 20894 of 2015 (J) -----------------------------------------** **EXT. R2(e) COPY OF LETTER OF 2ND RESPONDENT DATED 12.6.2013 TO FIRST RESPONDENT.** **EXT. R2(f) COPY OF LETTER DATED 31.7.2013 ISSUED BY THE DISTRICT TOWN PLANNER TO SECOND RESPONDENT.** **EXT. R2(g) COPY OF NOTICE ISSUED BY SECOND RESPONDENT DATED 5.2.2013 UNDER SECTION 232 OF PANCHAYAT RAJ ACT. EXT. R2(h) COPY OF LETTER OF 2ND RESPONDENT DATED 19.4.2014 TO THE PETITIONER.** **EXT. R2(i) COPY OF LETTER OF 2ND RESPONDENT DATED 19.5.2014 TO THE PETITIONER.** **EXT. R3(a): COPY OF THE COMMUNICATION DATED 4.3.2013 ISSUED TO THE TOWN PLANNER TO THE GENERAL MANAGER.** **EXT. R3(b): COPY OF COMMUNICATION ISSUED BY THE GENERAL MANAGER, SINGLE WINDOW CLEARANCE BOARD DATED 16.8.2013 TO THE PETITIONER.** **EXT. R3(c): COPY OF THE COMMUNICATION DATED 31.7.2013 ISSUED BY THE CHIEF TOWN PLANNER.** **EXT. R3(d): COPY OF THE COMMUNICATION DATED 3.7.2015 ISSUED BY THE PANCHAYAT DEPUTY DIRECTOR TO SIVARAMAN.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.M. SHAFFIQUE, J.** ============= W.P. (C) Nos. 20894 & 24917 of 2015 ======================== Dated this, the 14[th] day of January, 2016 ## **J U D G M E N T** Since the issues involved in these writ petitions are same, they are heard and decided together. WP(C) No. 20894/15 has been filed seeking to quash Ext.P4 proceedings dated 4/7/2015 issued by the Convenor, Palakkad District Single Window Clearance Board (hereinafter referred to as 'the Board') and General Manager, District Industries Centre. By virtue of the above proceedings, the Board had come to a conclusion that the access to the petitioner's property varies from 10.4 metres to 3 metres. It is also found that at the time of submitting the application, as per the Rules framed in 2011, the requirement of the width of the access road for buildings having an area less than 300m[2] is only 3 metres. By virtue of an amendment made on 13/1/2014, the minimum width of the access road should be 7 metres. It was therefore opined that if the petitioner has a 7 metre road access to the premises in question, he could proceed with the construction of the building and function the unit. W.P(C) Nos.20894 & 24917 of 2015 -:2:- 2. According to the petitioner, though he had approached the Grama Panchayat seeking permission to set up a M sand manufacturing unit, the Panchayat did not consider the same, which prompted him to submit an application to the Board. By Ext.P1 proceedings dated 29/10/2012, the Board had called upon the Panchayat to intimate the defects in the application to be considered for review in the next meeting. Thereafter, by proceedings dated 2/9/2013, the Board granted deemed licence to the petitioner. In Ext.P2, it was observed that the access road to the property is having a width of 8 metres as evident from the documents produced by the Panchayat. In the meantime, respondents 3 and 4, who are the petitioners in WP(C) No. 24917/2015, filed WP(C) No.11852/2014 challenging Ext.P2 decision. Petitioner also filed WP(C) No.29071/14 challenging the decision of the Panchayat prohibiting construction of the building. This Court by judgment dated 11/2/2015 in WP(C) Nos.29071/14 & 11852/14 directed the Convenor and General Manager of the Board to conduct a physical inspection of the access road and to determine the width of the road. It is pursuant to the said W.P(C) Nos.20894 & 24917 of 2015 -:3:- direction that the aforesaid proceedings dated 4/7/2015 had been issued by the authorities. 3. According to the petitioner, there had been large scale encroachment in the road and the actual width of the road is 8 metres and it is only on account of the encroachment that the width of the road had substantially reduced. In fact, the Sub Divisional Magistrate, Palakkad had issued an order dated 4/2/2015 as Ext.P5 by which directions had been issued to restore the road to the original position by removing the encroachment. Necessary directions had been issued to the Grama Panchayat. This Court by judgment dated 31/10/2014 in WP(C) No.28643/2014 had also directed the Panchayat as well as the Tahsildar to take necessary measures if the Panchayat road is blocked by any person. It is therefore contended that though the road is having more than 7 metres width, it is only on account of the encroachment that there is reduction in the width of the road and, therefore, encroachment by itself cannot be a reason to deny permission to the petitioner for starting the M sand unit. 4. Counter affidavit has been filed by the 1[st] respondent W.P(C) Nos.20894 & 24917 of 2015 -:4:- _inter alia_ supporting the stand taken by the Board. It is stated that during physical verification and on comparison with authentic records, there is large scale encroachment in the road portion and it is for the respective departments to remove the encroachment. Though earlier there was a requirement of a 7 metre wide road, the Rules were subsequently amended as per SRO No.26/2014 dated 13/1/2014 reducing the width of the road to 3 metres in respect of buildings where the total floor area is below 300 m[2] . 5. Respondents 3 and 4 have also filed counter affidavit _inter alia_ stating that the petitioner has no right to put up the unit in the said area. It is also stated that at no point of time the road was having the requisite width of 7 metres as prescribed in Rule 61(4) of the Kerala Panchayat Building Rules. According to them, even at the time when the original order was issued, the road was not having sufficient width and therefore, the Board was justified in indicating that in the absence of having a 7 metre road, it is not open for the petitioner to put up the industrial unit in the said locality. 6. Counter affidavit is also filed by the 2[nd] respondent W.P(C) Nos.20894 & 24917 of 2015 **==> picture [21 x 9] intentionally omitted <==** indicating that the deemed licence has been obtained on extraneous consideration and the Board has no competence or authority to issue such deemed licence in respect of the M sand unit. It is further contended that by virtue of Ext.R2(c) dated 10/1/2013, the Town Planner had informed the Secretary of the Panchayat regarding the deficiencies in the request for putting up the M sand unit. It is therefore contended that the application of the petitioner could not have been entertained even by the Panchayat. 7. WP(C) No.24917/2015 has been filed challenging various orders passed by the competent authorities in the matter relating to the grant of permission to start M sand unit by the 6[th] respondent, who is the petitioner in WP(C) No.20894/2015. They have also challenged the proceedings dated 4/7/2015 (Ext.P25) by which the Board had permitted the 6[th] respondent to put up the industrial unit if the encroachment on the access road is removed and the road will have a width of 7 metres. 8. The main contention urged by the petitioners is that the orders issued by the competent authorities especially the District Medical Officer, Pollution Control Board, District Labour W.P(C) Nos.20894 & 24917 of 2015 -:6:- Officer and Fire and Rescue Department in the matter relating to setting up of the industrial unit by the 6[th] respondent is illegal and without any basis. It is also contended that the Board was not competent to issue Ext.P25 order especially on account of the fact that Panchayat has all along been taking a stand that the access to the premises did not have width of 7 metres. Petitioners also challenge the licenses/permissions granted on the ground that there are several persons in the nearby locality who will be affected on account of the pollution being caused by functioning of the unit. According to them, Ext.P15 consent to establish issued by the Pollution Control Board itself would indicate that the said unit cannot be started in the said locality. As per Ext.P15 consent, the water consumption is 28,000 litres per day. It is an area where there is scarcity of water and if borewells are dug and water is extracted, the entire area in the locality will suffer scarcity of water. 9. In this writ petition, counter affidavit has been filed by the 6[th] respondent _inter alia_ contending that the petitioners have filed an earlier writ petition as WP(C) No.11852/2014, which was ## W.P(C) Nos.20894 & 24917 of 2015 -:7:- disposed by common judgment dated 11/2/2015 in which appropriate directions have been issued to the Board to take a decision after determining the width of the road. Under such circumstances, it is not open for the petitioners to raise the very same contentions urged in the earlier writ petition. The 6[th] respondent raised contentions similar to that raised in WP(C) No.20894/2015 and contended that the only issue that has to be verified is regarding the width of the access road. According to the 6[th] respondent, the access to the plot was having more than 8 metres and subsequently there had been some encroachments which caused the reduction in the width of the road. 10. Heard the learned counsel appearing on either side. 11. Though the petitioners in WP(C) No.24917/2015 have raised various contentions regarding the validity of orders passed by the competent statutory authorities including the local authority, I do not think it necessary to go into the factual circumstances under which the said orders had been issued and the challenge to the same especially on account of the judgment dated 11/2/2015 in WP(C) Nos.29071/14 and 11852/2014. In fact, ## W.P(C) Nos.20894 & 24917 of 2015 -:8:- WP(C) No.11852/14 has been filed challenging the order issued by the Board on 2/9/2013. The question raised was regarding the jurisdiction of the Board in issuing clearance to the 6[th] respondent _inter alia_ contending that objections were raised by the District Town Planner. The learned Single Judge observed that the only issue that remains to be considered is whether the 6[th] respondent could establish the unit taking into account the minimum width of the approach road that is required as per the statutory provisions. Having considered the matter, the learned Single Judge held at para 19 and 20 as under; _“19. At any rate, without fear of contradiction it can be stated that there is any amount of controversy with regard to the actual width of the road. On one hand, the learned Senior Counsel for the petitioner has contended that though it is eight meters, it has been subjected to encroachment, regarding which steps have already been initiated by the authorities concerned. On the other hand, the learned counsel for the 3[rd] and 4[th] respondents, as well the learned counsel for the Grama Panchayat, has contended that the width of the road is less than the prescribed one._ _20. Without cogitating much on the issue of the width of the road, I deem it appropriate to direct the Convener and General Manager of the Board, i.e.,_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:9:- _the first respondent in WP(C) No.11852 of 2014, to subject the approach road to physical inspection, duly taking into account the aspects of encroachment and also the rival contentions in that regard and take an appropriate decision before permitting the petitioner to proceed further in terms of the permit granted earlier through Exhibit P1. Needless to observe that, given the acrimony and heat the issue has generated, the first respondent may take expeditious steps in this regard to put a quietus to the litigation. It is further observed that at the time of determining the width of the road, the first respondent shall provide an opportunity of hearing to all the parties concerned.”_ 12. Taking into consideration the fact that the issue raised between the parties had been crystallised, I do not think it necessary to consider the validity or otherwise of the permission/licenses granted by the competent authorities as challenged in WP(C) No.24917/15 except the final order dated 4/7/2015 issued after the judgment of the learned Single Judge. 13. It is apparent that pursuant to the aforesaid judgment, the Convener and the General Manager had conducted a site inspection and had observed that there had been large scale encroachment in the road leading to the property and that the W.P(C) Nos.20894 & 24917 of 2015 **==> picture [27 x 9] intentionally omitted <==** Revenue Department as well as the Grama Panchayat have to take appropriate action to remove the encroachment. Thereafter, the Secretary of Grama Panchayat has to measure the property and it should be declared in the asset register of the Panchayat. After removing such encroachment, if any of the access road has 7 metre width in terms of Rule 61(4) of the 2011 Rules, the petitioner in WP(C) No.20894/15 is entitled to establish the unit. 14. Learned senior counsel appearing on behalf of the petitioner in WP(C) No.20894/2015 relied upon the judgment of a Division Bench of this Court in _**Boby Uthup v. State of Kerala**_ [2014 (2) KHC 383], wherein this Court held that the _non obstante_ clause occurring in Sections 8 and 10 of the Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 would clearly indicate that the District Board constituted under the Act has jurisdiction to decide matters which can be decided by the Panchayat under Sec.233 of the Kerala Panchayat Raj Act. The learned counsel also relied upon judgment of this Court in _**M/s. Asset Homes P. Ltd. v. State of Kerala**_ (2011 (1) KHC 276), wherein this Court held that an W.P(C) Nos.20894 & 24917 of 2015 ## -:11:- application can be disposed of only on the basis of law prevailing on the date of consideration of the application and not in accordance with the law that prevail on the date of submission of application. Para 15, 16 and 17 are relevant, which read as under; _“15. This decision was followed in Commissioner of Municipal Corporation, Shimla's case wherein also similar question was considered. The legal position was explained in paragraphs 38 to 40, after relying upon the principles stated in Howrah Municipal Corporation's case, Union of India v. Indian Charge Crome and S.B.International Ltd. v. Asstt.Director General of Foreign Trade. In Indian Charge Crome's case it was held that the application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. In S.B.International's Ltd.'scase, it was held that the issuance of licences is not a formality, which is evident from the following: “We have mentioned herein that issuance of these licences is not a formality nor mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions. Therein also, it was held that there is no vested right. This is further clear from para 36 of the decision in Commissioner of Municipal Corporation, Shimla's case which reads as follows:_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:12:- _“It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra.”_ _16. A Full Bench of this Court in Raveendran Pillai's case, with regard to grant of licence under Foreign Liquor Rules, 1953, held that the application for FL-3 licence has to be dealt with, with reference to the law prevailing as on the date of consideration/disposal of it. (para 8)._ _17. A Division Bench of this Court in B.6 Holiday Resorts Pvt. Ltd. v. State of Kerala had taken a contrary view. The Apex Court reversed the same in Civil appeal Nos.983 to 990 of 2003 dated 13/01/2010. Another Division Bench in State of Kerala v. Raghavan also had taken a view that the application can be disposed of based on the law prevailing on the date of the application which was also reversed by the Full Bench in Raveendran Pillai's case. Reliance was placed therein on the decision of the Apex Court in Kuldeep Singh v. Govt. of NCT of Delhi. A similar argument raised by the petitioner herein that the delay occurred in granting NOC led to the pendency of the application and there was no fault on the part of the petitioner, was raised before the Full Bench by the learned counsel for the petitioner therein also. The said_ ## W.P(C) Nos.20894 & 24917 of 2015 **==> picture [27 x 9] intentionally omitted <==** _contention was also rejected by the Full Bench in para 10. it was held that a pela on equitable grounds cannot be accepted. This also goes against the contentions of the petitioner.”_ 15. Reference is also made to the judgment of this Court in _**Lilly v. Secretary to Government**_ (2007 (1) KLT 567) for the proposition that in the case of public roads which have already vested in the Panchayat under Sect.169(1) of the Panchayat Raj Act, 1994, there need not be any separate notification by the Government. Para 8 is relevant, which reads as under; _"8. In the Writ Petition itself, the appellants categorically admit that local residents were using a pathway of about 6 ft. wide on the eastern side of the properties of appellants 1 and 2. Therefore, going by the definition of public road extracted above, it is clear that the road in question is a public road because as admitted by the appellants themselves, the public have right of way over the same. When, admittedly, the road is a public road, then we are of opinion that sub-s.(1) of S.169 as quoted above would clearly be attracted since all public roads other than those excepted in that section within the Panchayat area are deemed to be transferred to and vested absolutely in the Panchayat. The appellants do not have a case that this public road is one which comes within the_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:14:- _categories excepted in sub-s.(1). We are of further opinion that as rightly held by the learned Single Judge, transfer and vesting contemplated in sub-s. (4) of S.169 relate only to those roads in respect of which the rights and responsibilities vest with the Government. Therefore, in the case of public roads, which have already vested in the Panchayat under S.169(1), there need not be any separate notification by the Government as contemplated in sub-s.(4). We are also of opinion that the reliance by the learned Single Judge on the decisions of Kavilampara Panchayat's case and Fruit & Vegetable Merchants Union's case is quite apposite in the facts of the case. In the Kerala decision while interpreting the corresponding provision in the erstwhile Kerala Panchayat Act, this Court held that the vesting contemplated under the Act need not be a vesting of ownership itself and property owned by other persons also may vest in the Panchayat by virtue of that Section, although the vesting may be even in a limited sense as indicated by the context in which it may have been used in a particular piece of legislation. In this case, in Ext. P3 order, the Deputy Director found as a matter of evidence on record that the road in question was included in the road register of the 3rd respondent-Panchayat as item 66 named as Madakkathanam-Arakkathazham Pinnippilly road having 3.5 meters width and 750 meters length. The evidence also pointed to the fact that during the year 2004-2005, across the said_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:15:- _road, the Panchayat had constructed a culvert spending an amount of Rs.1,04,525/-. There is a further finding that it is through the said road that the pipes for water supply in the Panchayat from the tube well pump house lie. Further in Ext. R3(a) sale deed by which appellants 1 and 2 purchased the property, the eastern boundary is shown as 'road'. When appellants 1 and 2 have no case that there is any other road on the eastern boundary of the appellants' property other than the road in question, it defies logic as to how the appellants 1 and 2 who claimed title on the basis of Ext. R3(g) can contend that the road belongs to them. Moreover, they themselves admitted in the Writ Petition that the “local residents were using a pathway about 6' wide on the eastern side of the properties.” Therefore, there is overwhelming evidence in this case to show that the road in question in fact, is vested in the Panchayat by virtue of S.169(1) and therefore under S.170 of the Kerala Panchayat Raj Act as also under the provisions of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, the Panchayat has the power and in fact a duty to take steps to restore the same for public use by protecting the same from encroachment by appellants 1 and 2. As noted by the learned Single Judge, S.272 also provides that all roads vested in or maintained by a Panchayat shall be open to the use and enjoyment of all persons irrespective of their_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:16:- _caste and creed or any other considerations. The appellants cannot on a contrived interpretation of S.169(4) contend that unless and until the Government issues a notification ordering transfer and vesting of the public road in the Panchayat, the Panchayat cannot claim that the road has vested in it. We have absolutely no doubt in our mind that the interpretation sought to be canvassed by the appellant on sub-s.(4) would not stand scrutiny and the correct interpretation would be that the said sub-section applies only to public roads other than those mentioned in sub-s.(1) namely, other roads which belong to the Government and has not already vested under S.169(1). If the interpretation canvassed by the appellant is accepted, then sub-s. (1) of S.169 would become meaningless, and for vesting of every minor road also, the Panchayat would require a notification by the Government, which is not the intention behind S.169. S.169(1) is a provision by which the legislature wanted to automatically vest in the Panchayat all public roads in the Panchayat other than those excepted in sub-s. (1) and sub-s.(4) only relates to vesting of other roads which are not covered by sub-s.(1)."_ 16. Another judgment dated 22/7/2013 in WP(C) No.16074/2012 is also relied upon wherein this Court (myself) relying upon Section 10 of the Act has held at para 14 as under; _“14. From the above provision it is clear that if_ ## W.P(C) Nos.20894 & 24917 of 2015 ## -:17:- _there is failure on the part of any local authority in not issuing the licence or permit as recommended by the Board, there shall be a deemed licence on the expiry of ten days from the date of issuing such recommendation. As already indicated, the facts of the case would show that a direction was issued on 27/3/2012 wherein the Panchayat was directed to grant permission within 15 days. That direction was not complied with and therefore it was open for the District Board to declare that the petitioner was having a deemed licence.”_ Having regard to the aforesaid question, it is relevant to note that the application of the petitioner for licence was considered prior to the amendment coming into force. In fact, Rule 61(4) of the 2011 Rules indicated that the width of the access road ought to be 7 metres. By virtue of the amendment, it was indicated that in the case of buildings with total floor area below 300m[2] , the width of the access road required is only 3 metres. In fact, if the application is considered as on date, the minimum required width is only 3 metres. The amendment however have come into effect on 13/1/2014. But on a perusal of the factual situation arising in the case, it is evident that the Board had issued orders as early as on 2/9/2013 which was under challenge and it finally resulted in ## W.P(C) Nos.20894 & 24917 of 2015 **==> picture [27 x 9] intentionally omitted <==** the order dated 4/7/2015. Therefore, the Rule as on the date when the Board considered the application and granted the licence is relevant as far as this case is concerned. Under such circumstances, one cannot deny the fact that the requirement of the access road width has to be 7 metres . 17. Then the only question is whether encroachment into the road would prevent the unit from being established. According to the authorities, there is large scale encroachment into the access road. But I do not think that if the actual width of the access road is less than 7 metres, it will be proper on the part of the authorities to permit the unit to be established. Encroachment into the road has necessarily reduced the width of the road. The very purpose of making a provision for the necessity of access road width is to ensure that materials can be transported for the purpose of manufacturing as well as transportation of finished products. Therefore, one cannot ignore the fact that if there is encroachment, sufficient road width will not be available. Under such circumstances, the Board was justified in issuing the direction making it clear that the unit can W.P(C) Nos.20894 & 24917 of 2015 **==> picture [27 x 9] intentionally omitted <==** be established only after removal of the encroachment and after the Panchayat making necessary entries in the asset register regarding the width of the road. 18. As far as the contention urged on behalf of the petitioners in WP(C) No.24917/15 is concerned, I do not think that there is any necessity to consider the claim on merits when appropriate licence has been granted by the competent authority taking into consideration all relevant facts. In the absence of any patent illegality, I do not think that this Court will be justified in interfering with the order dated 4/7/2015. In the result, both the writ petitions deserve to be dismissed and accordingly, I do so. **==> picture [40 x 13] intentionally omitted <==** ## **A.M. SHAFFIQUE, JUDGE** Rp //True Copy// P.S to Judge