W.P.(C)No.17844 OF 2021

W.P.(C)No.17844 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** ## **WP(C) NO. 17844 OF 2021** ## **PETITIONER:** SREEKANDAN B AGED 63 YEARS AVANI, MAMPAZHAKKARA, PERUMPAZHATHOOR P.O, NEYYATTINKARA, THIRUVANANTHAPURAM - 695126. BY ADVS. SRI ENOCH DAVID SIMON JOEL SRI S.SREEDEV SRI RONY JOSE SUZANNE KURIAN CIMIL CHERIAN KOTTALIL ## **RESPONDENTS:** 1 VELLARADA GRAMA PANCHAYAT PANACHUMOODU P.O, THIRUVANANTHAPURAM - 695505, REPRESENTED BY ITS SECRETARY. 2 SECRETARY VELLARADA GRAMA PANCHAYATH, PANACHUMOODU P.O, THIRUVANANTHAPURAM – 695505 ## **ADDL.R3 IMPLEADED** ADDL. R3: SURENDRAN @ MANOHARAN AGED 59 YEARS S/O.SANKARA PANICKER, ERAMATHUVEEDU, NELLISSERY, VELLARADA P.O., THIRUVANANTHAPURAM, PIN – 695505. ADDL.R3 IS IMPLEADED AS PER ORDER DATED 01.10.2021 IN IA 1/2021 IN WPC NO. 17844/2021. W.P.(C)No.17844 OF 2021 2 ## **ADDL.R4 IMPLEADED** ADDL.R4 THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, THIRUVANANTHAPURAM, KERALA, ADDL.R4 IS SUO MOTU IMLEADED AS PER ORDER DATED 09.11.2021 IN WPC . R1 & 2 BY SRI J.S.AJITHKUMAR R3 BY BY ADV SRI.R.T.PRADEEP M.BINDUDAS K.C.HARISH SRI RAJEEV JYOTHISH GEORGE, GOVT.PLEADER **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.01.2022, THE COURT ON 25.1.2022 DELIVERED THE FOLLOWING:** W.P.(C)No.17844 OF 2021 3 ## **T.R.RAVI,J.** **-----------------------------** ## **W.P.(C)No.17844 OF 2021** **-------------------------------** ## **Dated this the 25th day of January, 2022** The petitioner has set up a temporary hotmix plant after obtaining Ext.P1 consent from the Pollution Control Board. He also obtained Ext.P2 acknowledgement certificate under the provisions of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (hereinafter referred to as the 2019 Act). As per Ext.P2 certificate, the petitioner is exempted from obtaining any permission under any of the State enactments for a period of three years. The petitioner was issued Ext.P3 by the 2[nd] respondent Panchayat directing him not to operate the hotmix plant without obtaining licenses under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the 1994 Act). According to the petitioner, in view of Ext.P2 certificate, he is not obliged to obtain any licence under any of the provisions of the the 1994 Act for a period of three years. The writ petition has been filed challenging Ext.P3 issued by the Panchayat. W.P.(C)No.17844 OF 2021 4 2. The 3[rd] respondent in the writ petition is a neighbour, who has property adjacent to the site where the hotmix plant is put up by the petitioner. The 3[rd] respondent has filed a counter affidavit wherein it is stated that the area is a thickly populated area and the hotmix plant is a mega construction with high profile equipments operating on 130 HP and that it is an industry specified in the first schedule to the Industries Development and Regulation Act, 1951 as contemplated in Section 7 of the Micro Small and Medium Enterprises Development Act, 2006. According to the 3[rd] respondent, the hotmix plant is beyond the domain of 2019 Act which had adopted by incorporation and reference the Micro Small and Medium Enterprises Development Act, 2006. According to the 3[rd] respondent, the petitioner is obliged to obtain a permission for development of the land and permit for setting up the hotmix plant and to obtain the D&O licence as mandated by the Kerala Panchayat Raj Act. It is further submitted that Ext.P2 acknowledgement certificate has been wrongly issued, since it is not relating to an industry to which the 2019 Act applies. 3. The petitioner has filed a reply affidavit in which it is stated that the petitioner is operating a small enterprise as defined W.P.(C)No.17844 OF 2021 5 in Section 7 of the Micro Small and Medium Enterprises Development Act, 2006 and can be classified under Item 1(B) and 19(40) of Schedule 1 of the Industries Development and Regulation Act, 1951. It is also submitted that the petitioner has already applied to the 2[nd] respondent under Rule 68 of the Kerala Panchayat Building Rules, 2019 seeking permission to install the hotmix plant and the application is produced as Ext.P6. It is submitted that in view of the judgment of the Full Bench of this Court in **Tomy Thomas v. State of Kerala** reported in **[2019 (3) KLT 987]** , the 2[nd] respondent cannot refuse such permission, since the petitioner has already secured consent from the Pollution Control Board. 4. The petitioner relies on the decision in **Jolly George v. George Elias and Associates** reported in **[2022 (1) KLT 8]** wherein a Division Bench of this Court held that on a conjoint reading of Group I under Rule 25 of the Panchayat Building Rules, 2019 and the provisions of Rule 68 it is categoric and clear that any construction of hotmix plant for a period of six months or below requires only a permission from the Secretary of the Grama Panchayat. It is further held that if the hotmix plant is to be installed for a period beyond six months, it requires a compliance of W.P.(C)No.17844 OF 2021 6 all the relevant provisions of the Building Rules, 2019 including a building permit. The Court held that the legal position under the Building Rules, 2019 has changed drastically from what was available under the Building Rules, 2011 and the permanent nature of a hotmix plant is to be identified now on the basis of the period for which the plant is to be installed rather than the capacity or the permanent fixtures to be employed for the setting up of the plant. In the light of the Division Bench judgment, the counsel for the petitioner submits that the contentions raised by the 3[rd] respondent are no longer relevant and all that is to be looked into is whether the hotmix plant which is being set up by the petitioner is a temporary one, in which case all that is required is a permission from the Secretary and nothing more. In the light of the Division Bench judgment as submitted by the counsel for the petitioner, the order Ext.P3 which proceeds on the basis that setting up of the hotmix plant requires the licence from the Panchayat, without which there will be violation of the provisions of sections 232 and 233 of the 1994 Act, and further directs the petitioner to start the work only after getting the licence required for installation of the machineries for the tar mixing plant under the 1994 Act, cannot be legally W.P.(C)No.17844 OF 2021 7 sustained. Since the law requires only a permission from the Secretary and since the Pollution Control Board has already granted consent to establish, there is no further requirement under the law for any other licenses. The petitioner has no case that they are seeking to establish a hotmix plant of permanent nature. Ext.P6 application submitted by the petitioner to the Secretary specifically requests for permission to put up a temporary asphalt hotmixing plant. By Ext.P7, the Panchayat Committee rejected Ext.P6 application on the ground that if the same is permitted to be put up, there will be health issues to the public. The petitioner has produced Ext.P8, which is an interim order issued by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in an appeal filed by the petitioner challenging Ext.P7. In Ext.P8, the Tribunal has stayed the decision of the Panchayat until further orders and had ordered that the Panchayat shall not interfere with the erection and installation of the hotmix plant by the petitioner. At the time hearing, the petitioner has also placed before me the final order issued in the above said appeal, whereby the Tribunal has set aside Ext.P7 decision of the Panchayat and directed the Panchayat to issue necessary permission under Section 68 of the Panchayat Building W.P.(C)No.17844 OF 2021 8 Rules, 2019 for erection and installation of a temporary hotmix plant in the property on the basis of the application dated 6.10.2020. In the light of the subsequent events and the judgment of the Division Bench in **Jolly George (supra)** , the writ petition is liable to be allowed. 5. In the result, the writ petition is allowed. Ext.P3 is set aside. The 2[nd] respondent shall issue necessary permission as contemplated in the judgment of the Division Bench in **Jolly George (supra)** and as directed by the Tribunal in the judgment in Appeal No.506/2021, on the basis of Ext.P6 application submitted by the petitioner for a temporary hotmix plant immediately, if not already issued, within three weeks from the date of receipt of a copy of this judgment. This judgment will not stand in the way of the 3[rd] respondent approaching the appropriate authorities, if there is any attempt to convert the temporary hotmix plant into a permanent hotmix plant, without the required licenses as held in the judgment of the Division Bench above said. Sd/- **==> picture [319 x 32] intentionally omitted <==** **T.R.RAVI JUDGE** dsn W.P.(C)No.17844 OF 2021 9 ## **APPENDIX OF WP(C) 17844/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CONSENT DATED 26.07.2021 VALID TILL 30.06.2026 ISSUED BY THE POLLUTION CONTROL BOARD. Exhibit P2 TRUE COPY OF THE ACKNOWLEDGMENT CERTIFICATE DATED 17.08.2021 ISSUED BY THE DISTRICT INDUSTRIES CENTRE, THIRUVANANTHAPURAM. Exhibit P3 TRUE COPY OF THE NOTICE DATED 31.08.2021 WITH NO. A3/4338/2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P4 TRUE COPY OF THE LETTER DATED FEBRUARY 2021 ISSUED BY THE SUPERINTENDING ENGINEER, PWD ROADS, SOUTH CIRCLE TO THE PETITIONER. Exhibit P4(A) TRUE COPY OF THE LETTER DATED 26.02.2021 ISSUED BY THE SUPERINTENDING ENGINEER, PWD ROADS, SOUTH CIRCLE TO THE PETITIONER. Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 8/10/2021 IN WPC NO.18358/2021 ON THE FILES OF THIS HON'BLE COURT. Exhibit P6 TRUE COPY OF THE APPLICATION DATED 6/10/2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESONDENT. Exhibit P6 A TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT. - Exhibit P7 TRUE COPY OF THE DECISION DATED 11.10.2021 BEARING NO.IX(1) TAKEN BY THE PANCHAYAT COMMITTEE OF THE 1ST RESPONDENT. - Exhibit P8 TRUE COPY OF THE ORDER DATED 20.10.2021 IN I.A 1092/2021 IN 506/2021 ON THE FILES OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. ## **RESPONDENTS' EXTS:** - EXT.R3(A): TRUE COPY OF THE MASS COMPLAINT DATED NIL BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. EXT.R3(B): TRUE COY OF COMUNICATION DT.8.6.2021 FROM DISTRICT COLLECTOR, THIRUVANANTHAPURAM TO THE SECRETARY OF VELLARADA GRAMA PANCHAYAT. EXT.R3(C): TRUE COPY OF MASS COMPLAINT DT.27.8.2021 BEFORE THE PRESIDENT OF GRAMA PANCHAYAT. EXT.R3(D): PHOTOGRAPHS OF THE CHANGE OF TERRAIN OF LAND AND CONSTRUCTION ACTIVITY CARRIED ON.