Dismissed

Kottakkaparambil Mulamkunnathu Sree Bhagavathy Kshethram Trust v. Mudakkuzha Grama Panchayat

Kerala HC17 Jun 2019WA/1390/2019

Case brief

AI extract

What is this about?

Number 4 of Judge dismissed an appeal challenging a building permit granted for an engineering workshop unit near a managed temple. The court held the construction complied with distance norms relative to the worship building and upheld the Board's clearance despite delegate representation, citing the Act's provision on vacancies.

What did the court decide?

The writ appeal was dismissed as devoid of merit, rejecting the challenge to the building permit.

Kottakkaparambil Mulamkunnathu Sree… — Constitutional and Fundamental Rights | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

¶4

¶5

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

¶6

MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941

¶7

WA.No.1390 of 2019

¶8

AGAINST THE JUDGMENT IN WP(C) 38547/2016 of HIGH COURT OF KERALA DATED 13.2.2019

¶9

APPELLANT/PETITIONER:

¶10

KOTTAKKAPARAMBIL MULAMKUNNATHU SREE BHAGAVATHY KSHETHRAM TRUST, ANAKALLU, CHOONDAKUZHY P. O., MUDAKKUZHA, REPRESENTED BY ITS PRESIDENT - K. K. KRISHNAN KUTTY, AGED 54 YEARS, S/O. KELAN, KOTTALIKUDY, CHOONDAKUZHY P. O., KURUPPUMPADY – 683 546.

¶11

BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SRI.LEGITH T.KOTTAKKAL

¶12

RESPONDENTS/RESPONDENTS:

¶13

1 MUDAKKUZHA GRAMA PANCHAYAT, MUDAKKUZHA P. O., 683 546, REPRESENTED BY ITS SECRETARY

¶14

2 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.

¶15

3 DISTRICT SINGLE WINDOW CLEARANCE BOARD, ERNAKULAM, REPRESENTED BY ITS CHAIRMAN - THE DISTRICT COLLECTOR, ERNAKULAM – 682 030.

¶16

W.A.No.1390 of 2019

¶17

¶18

4 SANTHOSH KUMAR A. T. S/O. A. K. THANKAPPAN, ARUMMAKKATTUKUDI HOUSE, KANJIRAKKADU, MUDAKKUZHA, PERUMBAVOOR, PIN-683 542.

¶19

5 CHIEF TOWN PLANNER OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM - 695 001.

¶20

6 RANGAM GRAMMEENA GRANDHASALA, ANAKKALLU, MUDAKKUZHA P. O. 683 546, REPRESENTED BY ITS SECRETARY.

¶21

R4 BY ADV.SRI.P.THOMAS GEEVARGHESE R1 BY ADV.SRI.R.RANJITH, SC R2,3&5 BY SR.GOVT.PLEADER SRI.ARAVINDAKUMAR BABU R6 BY ADV.SRI.D.ANIL KUMAR

¶22

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶23

W.A.No.1390 of 2019

¶24

¶25

JUDGMENT

¶26

Hrishikesh Roy, C.J.

¶27

Heard the learned counsel Sri.Legith T. Kottakkal appearing for the Appellant/Writ Petitioner. The 4^th respondent is represented by the learned counsel Sri.P. Thomas Geevarghese. The Mudakuzha Grama Panchayat is represented by the learned counsel Sri.R.Ranjith. The learned Senior Government Pleader Sri.Aravindakumar Babu, represents the State Authorities.

¶28

This Appeal is filed to challenge the judgment dated 13.2.2019 in the W.P. (C)No.38547 of 2016 that was filed to challenge the building permit (Ext.P1) granted under the provisions of the Kerala Panchayat Building Rules, 2011 (for short “the 2011 Rules”), to the 4^th respondent to construct a group-G1 engineering workshop. The Writ Petitioner Trust is managing a Temple and the permission to construct the unit to manufacture grill, gate, etc., in close vicinity of the Temple, was the reason for challenging the building permit.

¶29

The learned Judge, in the impugned judgment, referred to the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 and the provisions made in Section 4 therein, for constitution of the District Single Window Clearance Board for each District. The court also noted that the distance requirement under Rule 3(i)(c) is only 25 metres under the Kerala Factories Rules, 1957 and in the instant case, the unit and the Temple is at a distance of 26 metres. Accordingly, the court opined that there is no violation of Rule 59 of the 2011 Rules as the intended construction is found to conform to the provisions of the Kerala Factories Rules, 1957.

¶30

W.A.No.1390 of 2019

¶31

¶32

Insofar as the non-participation of the District Collector and the President of the Mudakuzha Grama Panchayat as members of the District Single Window Clearance Board, the learned Judge found that the representatives of the Panchayat as well as the District Collector, were present in the meeting of the District Single Window Clearance Board and therefore, there cannot be any illegality in the grant of clearance by the said Board merely because, two nominated persons were represented by their delegates.

¶33

The learned counsel Sri.Legith T. Kottakkal for the Appellant would reiterate the arguments advanced before the learned single Judge by contending that besides the Temple building where worship is conducted, there are additional structure near the Temple and the engineering unit must therefore be located, at a distance of 25 metres from the boundary of the Temple complex. On this contention, it is seen that the distance norms is applicable for the religious-cum-worship building but not to the Temple complex itself, under Rule 3(i)(c) of the Kerala Factories Rules. Therefore, when the engineering unit is at a distance of more than 25 metres from the worship building, the same definitely conformed to the requirement of the Kerala Factories Rules.

¶34

On the non-participation of the District Collector and the Panchayat President in the Ext.P20 deliberations of the District Single Window Clearance Board, we find from the Ext.P20 that the Additional District Magistrate was present on behalf of the District Magistrate. Similarly, a representative of the Mudakuzha Grama Panchayat also participated in the meeting, where around 30 officials attended. It is also discernible from Section 23 of the Kerala Industrial Single Window Clearance Boards and Industrial Township Area Development Act, 1999 that the act of the Board is not to be invalidated by any vacancy or defect in the constitution of the Board. Therefore, it is

¶35

W.A.No.1390 of 2019

¶36

¶37

apparent that the Act itself takes into account situations where, one of the nominated members may not be attending the meeting and is represented by his nominee. Therefore, we are of the considered view that the learned Judge did not err in approving the Ext.P20 decision (dated 12.7.2016) of the District Single Window Clearance Board, which was convened by the District Collector, in terms of the Act.

¶38