High Court of KeralaDivision Bench2014-11-10Appeal dismissed

WA No. 1485 of 2014 (J. Jayan & Sunanda Bai C.K. v. State of Kerala & Others)

Case / Petition Number:WA No.1485/14

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANTONY DOMINIC
ANIL K. NARENDRAN
Judgment Date: 2014-11-10
Court Decision / Holding: Appeal fails and is dismissed.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

J. Jayan
Sunanda Bai C.K

Respondents

State of Kerala represented by Chief Secretary to Government, Government Secretariat, Thiruvananthapuram
District Single Window Clearance Board, Kollam
The General Manager, District Industries Centre, Kollam
The Deputy Director of Panchayats, Kollam
The District Town Planner, Kollam
The Environmental Engineer, Kerala State Pollution Control Board, District Office, Kollam
Kalluvathukkal Grama Panchayat represented by its Secretary
The Secretary, Kalluvathukkal Grama Panchayat, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Leo George
• Sri. K. N. Sasidharan Nair

Counsels for Respondents

• Sri S. Jamal
• Sri Pirappancode V.S. Sudhir
• Sri M. Ajay, SC, Kerala State Pollution Control Board

Case Synopsis & Summary

This writ appeal challenges a 6 February 2013 order dismissing WP(C) 14055/2012. The appellants, J. Jayan and Sunanda Bai C.K., claimed a licence for an industrial occupancy, as recommended by the District Single Window Clearance Board (Ext. P7). They had obtained Ext. P1 building permit for a factory to manufacture steel furniture, and Ext. P2 showing a permit for commercial occupancy; subsequently, occupancy for industrial use was denied on the ground that the permit was for commercial occupancy and Rule 59 of the Kerala Municipality Building Rules was not satisfied. Appellants contended that once the Board resolved to grant clearance, the Panchayat was bound to issue the licence as applied for, relying on Wade on Administrative Law and Moumita Poddar v. IOC to argue for a humane approach and estoppel. The court held that a permit for commercial occupancy cannot be converted to industrial occupancy where Rule 59 is not met. It found that the building did not meet Rule 59 and that the non-obstante clause in the Single Window Clearance Act could not override the building rules. The court distinguished the authorities cited by the appellants and concluded that occupancy for industrial purposes cannot be issued. The writ appeal was dismissed, upholding the lower court’s order.

Provisions of Law Cited

Rule 59 of the Kerala Municipality Building RulesIndustrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999

Legal Doctrines & Maxims

Estoppel
Non-obstante clause
Humane approach (as cited)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants submitted Ext.P1 for a building permit for industrial activity and Ext.P2 for commercial occupancy, with Ext.P7 indicating a favourable clearance. They argued that once the District Single Window Clearance Board resolved to grant clearance, the Panchayat was bound to issue the licence as sought, invoking administrative law principles and estoppel, supported by Wade on Administrative Law and Moumita Poddar. They contended that Rule 59’s non-satisfaction should not bar occupancy given prior approvals and the humane expectation of clearance.

Contentions of Respondents

The respondents argued that Ext.P2 issued for commercial occupancy precluded an industrial occupancy certificate, as the building did not satisfy Rule 59 of the Kerala Municipality Building Rules. They asserted that a non-obstante clause cannot override the building rules, and that the SWC Act’s framework cannot compel occupancy contrary to statutory requirements. They distinguished the relied-upon authorities and maintained that approval of clearance does not equate to permissible occupancy where regulatory preconditions are unmet.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Moumita Poddar v. Indian Oil Corporation Limited and another	[(2010) 9 SCC 291]	Mentioned Only	Cited by appellants to invoke humane approach; court did not overrule or apply it to grant occupancy.
Parayil Granular Industries v. Kumaranalloor Grama Panchayat	2009 (2) KLT 1012	Mentioned Only	Cited by appellants; court did not adopt the reasoning to override Rule 59.
Boby Uthup v. State of Kerala	(2014) (2) KLT 542	Mentioned Only	Cited by appellants; no adoption of its ratio in the present context.
Chettikulangara Grama Panchayat v. State of Kerala	(2014) (3) KLT 105	Mentioned Only	Cited by appellants; the court did not rely on it to permit industrial occupancy.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against WA No. 1485 of 2014 (J. Jayan & Sunanda Bai C.K. v. State of Kerala & Others) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** ## **WA.No. 1485 of 2014 () IN WP(C).14055/2012 --------------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 14055/2012 of HIGH COURT OF KERALA DATED 06-02-2013** ## **APPELLANT(S)/PETITIONERS:** **--------------------------------------------** **1. J.JAYAN, AGED 60 YEARS S/O JANARDHANAN, RESIDING AT KUNNIL HOUSE PARIPPALLY P.O, KOLLAM 691574** **2. SUNANDA BAI C.K, AGED 48 YEARS** - **W/O JAYAN RESIDING AT KUNNIL HOUSE, PARIPPALLY PO KOLLAM 691574** **BY ADVS.SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **2. DISTIRCT SINGLE WONDOW CLEARANCE BOARD, KOLLAM, REPRESENTED BY ITS CONVENOR DISTRICT SINGLE WINDOW CLEARANCE BOARD KOLLAM 691001** **3. THE GENERAL MANAGER,** - **DISTRICT INDUSTRIES CENTRE, KOLLAM 691001** **4. THE DEPUTY DIRECTOR OF PANCHAYATS, KOLLAM 691001** **5. THE DISTRICT TOWN PLANNER, KOLLAM 691001** **6. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE KOLLAM 691008** **WA NO.1485/14** **-2-** ## **7. KALLUVATHUKKAL GRAMA PANCHAYAT,** - **REPRESENTED BY ITS SECRETARY KALLUVATHUKKAL GRAMA PANCHAYAT, KOLLAM 691578** ## **8. THE SECRETARY,** **KALLUVATHUKKAL GRAMA PANCHAYAT, KOLLAM 691578** **BY SR GOVERNMENT PLEADER SRI.S.JAMAL BY SRI.PIRAPPANCODE V.S.SUDHIR BY SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA NO.1485/14** ## **APPENDIX** ## **APPELLANTS' EXHIBITS** **ANNEXURE 1: TRUE COPY OF RP NO.198/2013 IN WPC NO.14055/2012 BEFORE THIS HON'BLE COURT DT 2.3.13. ANNEXURE 2: TRUE COPY OF THE JUDGMENT IN RP NO.198/2013 IN WPC NO.14055/2012 BEFORE THIS HON'BLE COURT DT 15.3.13.** ## **//True Copy//** **PA to Judge** ## **Rp** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. =============================== Writ Appeal No. 1485 of 2014 ====================** ## **Dated this the 10[th] day of November, 2014** ## **J U D G M E N T** ## Antony Dominic, J. The appellants filed WP(C) No.14055/12 seeking a direction to the respondents to issue the licence sought for by them as recommended by the 2[nd] respondent in Ext.P7. Consequential directions were also sought for. The writ petition having been dismissed, this appeal is filed. 2. We heard the learned counsel for the appellants and also the learned counsel appearing for the Kerala State Pollution Control Board. 3. Briefly stated, the case of the appellants is that first appellant submitted Ext.P1 application for building permit specifying it to be for industrial use for manufacturing steel furniture. Along with the application, he also enclosed the plan of the building. On that application, Ext.P2 permit was issued specifying that the building shall be for commercial occupancy. On the strength of the permit, the building was constructed and thereafter the second appellant applied for occupancy certificate for industrial purposes. **W.A.No.1485/14** ## **: 2 :** That was declined by the respondents stating that the permit having been given for commercial purposes, industrial occupancy cannot be allowed. Based on Ext.R7(a) report, it is also their case that the specifications of the building did not satisfy the requirements of Rule 59 of the Kerala Municipality Building Rules to permit industrial occupancy. It was in these circumstances the writ petition was filed. The writ petition having been dismissed, this appeal is filed. 4. According to the learned counsel for the appellants, the permit having been issued and the single window clearance board having resolved to grant licence, the appellants are entitled to get occupancy certificate for industrial purposes. Counsel also placed reliance on Sir William Wade on Administrative Law, Ninth Edition to contend that Ext.P2 building permit having been granted and building having been completed, the respondents are estopped from declining the occupancy certificate sought for. He also placed reliance on the Apex Court judgment in _**Moumita Poddar v. Indian Oil Corporation Limited and another**_ [(2010) 9 SCC 291] to contend that a humane approach should be taken in the matter. ## **W.A.No.1485/14** **: 3 :** 5. As we have already noticed, the permit was granted on Ext.P1 application and the plan enclosed thereto. Though it is stated in Ext.P1 that the building was to be constructed for industrial purpose, the plan produced by the appellant did not satisfy the requirements of Rule 59 of the Kerala Municipality Building Rules. It was considering the said application and the plan that Ext.P2 building permit was granted specifying that the same is for commercial occupancy alone. 6. Therefore, evidently, the building permit obtained by the appellants was for commercial purposes. If that be so, the occupancy cannot be granted for a different purpose. It was contended that when the appellants applied for permit, it was for industrial purposes, and that Ext.P2 building permit for commercial purpose was wrongly issued. To accept this contention and direct that occupancy be issued as applied for by the appellants, the building should satisfy the requirements of Rule 59 of the Kerala Municipality Building Rules. In this case, even the appellants do not have a case that the building satisfied the requirements of Rule 59. In such circumstances, the **W.A.No.1485/14** ## **: 4 :** appellants cannot seek a direction from this Court requiring the respondents to issue occupancy certificate for industrial purposes. 7. In so far as the judgment relied on by the appellants is concerned, so long as the building does not satisfy the requirements of the rules, the principles laid down in the judgment or in the entry of Administrative Law by Sir William Wade relied on by the counsel for the appellants, in our view, can be of no assistance to the appellants. 8. Learned counsel for the appellants relied on the judgments of this Court in _**Parayil Granular Industries v. Kumaranalloor Grama Panchayat**_ (2009 (2) KLT 1012), **Boby** _**Uthup v. State of Kerala**_ (2014 (2) KLT 542) and _**Chettikulangara Grama Panchayat v. State of Kerala**_ (2014 (3) KLT 105) and contended that in view of the provisions contained in Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999, since the Board has resolved to grant clearance, the Panchayat is bound to issue licence as applied for. In our view, even this contention cannot be accepted for the reason that the building in question admittedly did not satisfy the requirements of Rule 59 of the Kerala ## **W.A.No.1485/14** **: 5 :** Municipality Building Rules, which is a condition precedent for availing of the benefit of the _non obstante_ clause contained in the provisions of the Single Window Clearance Act relied on by the learned counsel for the appellants. Appeal fails and is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** Rp //True Copy// PA to Judge