V.K. JANARDHANAN NAIR v. VARAPETTY GRAMA PANCHAYAT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **WP(C).No.5132 OF 2019(N)** ## **PETITIONER:** **V.K. JANARDHANAN NAIR, AGED 49 YEARS S/O KESAVAN NAIR, MANAGING PARTNER, M/S VKJ INFRASTRUCTURE, ROOM NO.V/35, VARAPPETTY P.O., KOTHAMANGALAM, ERNAKULAM-686691.** **BY ADV. SRI.JOBI JOSE KONDODY** ## **RESPONDENTS:** |**1**|**VARAPETTY GRAMA PANCHAYAT,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, VARAPPETTY GRAMA**| ||**PANCHAYAT OFFICE, VARAPPETTY P.O.,**| ||**KOTHAMANGALAM, ERNAKULAM-686691.**| |**2**|**THE SECRETARY,**| ||**VARAPPETTY GRAMA PANCHAYAT, VARAPPETTY GRAMA**| ||**PANCHAYAT OFFICE, VARAPPETTY P.O.,**| ||**KOTHAMANGALAM, ERNAKULAM-686691.**| |**3**|**ADDL. R3 – ANILKUMAR, AGED 29 YEARS**| ||**S/O.KUTTAPPAN, KUZHIYAPPARA**| ||**VARAPPETTY KOTHAMANGALAM,**| ||**ERNAKULAM DISTRICT-686691**| ||**(ADDL.R3 IS IMPLEADED AS PER THE ORDER DATED**| ||**18.3.2019 IN I.A.1/2019).**| ||**R1-2 BY ADV. SRI.S.JIJI**| ||**R3 BY ADV. SUNIL NAIR PALAKKAT**| ||**R3 BY ADV. SRI.K.N.ABHILASH**| ||**R3 BY ADV. SRI.M.A.AHAMMAD SAHEER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.08.2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 5132 of 2019 ## **JUDGMENT** The petitioner, who is Managing Director of M/s. VKJ Infrastructure, a partnership firm carrying out PWD works of construction and maintenance of PWD Roads and National Highways, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 reply dated 28.11.2018 issued by the 2[nd] respondent on receipt of Ext.P5 application for licence and Ext.P10 letter dated 19.01.2019 issued by the said respondent. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to consider and pass orders on Exts.P5 and P11 applications submitted by the petitioner and grant licence to the petitioner, based on Ext.P5, in the light of Act 14 of 2018; and a declaration that the petitioner is entitled for a deemed licence under Section 233(5A) of the Kerala Payanchayt Raj Act, 1994. 2. On 20.02.2019, when this writ petition came up for admission, notice by special messenger was ordered to the respondents. On 05.03.2019, the learned Standing Counsel for the 1[st] respondent Grama Panchayat sought time to get -3- W.P.(C). No. 5132 of 2019 instructions and this writ petition was ordered to be listed along with W.P.(C).No.31335 of 2018. On 18.03.2019, a third party got himself impleaded as additional 3[rd] respondent in this writ petition by the order in I.A.No.1 of 2019. 3. A counter affidavit has been filed by the additional 3[rd] respondent opposing the reliefs sought for in this writ petition. 4. On 24.05.2019, when this writ petition came up for consideration, certain clarifications were sought as to the licence of the petitioner for the hot mix plant and the application made by the petitioner for licence for the hot batch mix plant. The learned counsel who represented the learned Standing Counsel for the 1[st] respondent Grama Panchayat sought adjournment. Thereafter, on 05.08.2019, the learned counsel for the petitioner submitted that the petitioner has already made an application for building permit/installation permission for the hot batch mix. The learned Standing Counsel for the Grama Panchayat submitted that no such application is received. The learned counsel for the petitioner sought time to get instructions. -4- W.P.(C). No. 5132 of 2019 5. On 08.08.2019, the petitioner has filed I.A.No.3 of 2019 producing therewith a copy as Ext.P12 online application dated 03.06.2019 for regularisation of the construction of hot batch mix plant. The petitioner has also produced Ext.P13 acknowledgment dated 07.06.2019 issued by the 2[nd] respondent, acknowledging the receipt of Ext.P12. Ext.P14 is a letter dated 14.03.2019 issued by the 2[nd] respondent to the petitioner, wherein it has been stated that Ext.P12 application can be considered only subject to the outcome of this writ petition. 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 7. The learned counsel for the petitioner would submit that Ext.P12 application for regularisation of the construction already made, is now pending consideration before the 2[nd] respondent and the said respondent may be directed to consider and pass appropriate orders, with notice to the petitioner, within a time limit to be specified by this Court. 8. In **Jilmon John v. Manakad Grama Panchayath** -5- W.P.(C). No. 5132 of 2019 **(2017(1) KLT 794)** this Court held that a hot mix plant with with bin feeder, drier drum, bitumen tank, etc. of a considerable size and having a rated capacity of 90 to 120 tonnes of asphalt per hour cannot be termed as a portable machinery used for construction purpose, falling under the exemption clause in Section 233B of the Kerala Panchayat Raj Act and for erecting such a hot mix plant, one has to obtain necessary building permit. In the said decision, this Court has also held that approval of the District Town Planner should be obtained for the use of plot upto one hectare area and/or layout of buildings upto 1000 sq.metres in floor area under hazardous occupancy and approval of the Chief Town Planner shall be obtained for usage of plot exceeding one hectare area and/or layout of buildings about 1000 sq.metres in floor area. The substitution of the words 'and/or' for the word 'and' in sub-rule (1) of Rule 61 of the Kerala Panchayat Building Rules, 2011 makes it explicitly clear that, layout approval from the District Town Planner or the Chief Town Planner, as the case may be, has to be obtained in 'either or both' of the two eventualities stated therein. In the said decision this Court -6- W.P.(C). No. 5132 of 2019 has held further that on a combined reading of clause (m) and clause (cu) of sub-rule (1) of Rule 2 of the Buildings Rules makes it explicitly clear that, the term 'building' defined under clause (m) takes within its sweep any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not, foundations, plinth, walls, floors, roofs, chimneys, etc., as stated therein. Since the term 'structure' shall include 'building', the term 'building' as defined under clause (m) takes within its sweep anything that is built or constructed or building of any kind or any piece of work artificially build up or composed or parts jointed together in some definite manner. Therefore, any structure for whatsoever purpose and of whatsoever material constructed and every part thereof or anything that is built or constructed or building of any kind or any piece of work artificially build up or composed or parts jointed together in some definite manner would fall within the sweep of 'building' as defined under Rule 2(1)(m) of the said Rules. 9. The learned counsel for the additional 3[rd] -7- W.P.(C). No. 5132 of 2019 respondent would submit that the 3[rd] respondent may also be granted an opportunity of being heard, at the time of consideration of Ext.P12 application. 10. The learned Standing Counsel for respondents 1 and 2 would submit that the 2[nd] respondent is in receipt of Ext.P12 application made by the petitioner for regularisation of the construction and that the said respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also to the 3[rd] respondent. 11. Having considered the submissions made by the learned counsel on both sides, this Writ Petition is disposed of, leaving open the legal and factual contentions raised by the petitioner and also the additional 3[rd] respondent, by directing the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, to consider and pass appropriate orders on Ext.P12 application made by the petitioner for regularisation of the construction with notice to the petitioner and also to the additional 3[rd] respondent and after affording them an opportunity of being heard, taking note of the law laid down by this Court in **Jilmon John's case (supra)** . Necessary -8- W.P.(C). No. 5132 of 2019 orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. It is made clear that in view of the prohibitory orders granted in W.P.(C).No.31335 of 2018, it is for the petitioner to move an appropriate application in that writ petition, in case Ext.P12 application for regularisation is favourably considered. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** das -9- W.P.(C). No. 5132 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE SUPERINTENDING ENGINEER, PWD ROADS AND BRIDGES, CENTRAL CIRCLE, ALUVA TOT HE PETITIONER ON 5.4.2018 VALID UPTO 31.3.2021** **EXHIBIT P2 A TRUE COPY OF THE D AND O LICENSE DATED 2.8.2018 VALID UPTO 31.3.2019 ISSUED BY THE FIRST RESPONDENT GRAMA PANCHAYAT UNDER WHOSE TERRITORIAL LIMITS WHEREIN THE PETITIONER HAD ESTABLISHED THE HOT MIX PLANT** **EXHIBIT P3 A TRUE COPY OF THE CONSENT TO OPERATE DATED 6.10.2017 VALID UPTO 30.6.2017 ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM** - **EXHIBIT P4 A TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL DATED 19.7.2018 VALID UPTO 30.6.2019 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD** - **EXHIBIT P5 A TRUE COPY OF THE D AND O LICENSE APPLICATION FOR BATCH MIX PLANT ATTACHED TO THE PETITIONER'S HOT MIX PLANT SUBMITTED BY HIM BEFORE THE SECOND RESPONDENT DATED 16.11.2018** - **EXHIBIT P6 A TRUE COPY OF THE REPLY DATED 28.11.2018 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER** - **EXHIBIT P7 A TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO ESTABLISHED AN ERECT THE HOT MIX PLANT DATED 8.10.2018 TO THE PETITONER** -10- W.P.(C). No. 5132 of 2019 **EXHIBIT P8** - **A TRUE COPY OF THE LETTER OF ACCEPTANCE OF THE WORK DATED 9.7.2018 ISSUED BY THE PROJECT MANAGEMENT UNIT OF THE KERALA ROAD FUND BOARD TO THE PETITIONER** - **EXHIBIT P9** - **A TRUE COPY OF THE AGREEMENT DATED 1.8.2018 EXECUTED BETWEEN THE PETITIONER AND THE PROJECT DIRECTOR, KERALA ROAD FUND BOARD** - **EXHIBIT P10** - **A TRUE COPY OF THE LETTER DATED 19.1.2019 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER** - **EXHIBIT P11 A TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 26.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT WITH CASH RECEIPT** - **EXHIBIT P12 A TRUE COPY OF THE APPLICATION DATED 3/6/2019 AND PLAN SUBMITTED BY THE PETITIONER THROUGH ONLINE BEFORE THE SECOND RESPONDENT** - **EXHIBIT P13** - **A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 7/6/2019 ISSUED BY THE SECOND RESPONDENT ACKNOWLEDGING RECEIPT OF EXHIBIT P12** - **EXHIBIT P14** - **A TRUE COPY OF THE LETTER DATED 14/03/2019 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER**