Dismissed

Jiby A.K. v. George Elias and Associates

Kerala HC9 Dec 2021WA/756/2021

Case brief

AI extract

What is this about?

Hot mix plants operating for six months or less require temporary permission; longer operation attracts building permit requirements. The court dismissed the rival appeals, upheld the requirement to approach the Panchayat Secretary, and granted fresh time to apply with a deadline for consideration.

What did the court decide?

Two weeks from receipt of the judgment to submit a suitable application; Secretary/Panchayat to consider it within three weeks of receipt.

Jiby A.K. Vs George Elias and Associates — Municipal and Town Planning | Kerala HC (2021)

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W. A. No. 607 of 2021

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and connected cases -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 9^TH DAY OF DECEMBER 2021 / 18TH AGRAHAYANA,

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1943

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WA NO. 607 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 17920/2020 OF HIGH COURT OF

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KERALA

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APPELLANT/S:

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1 JOLLY GEORGE AGED 60 YEARS S/O.LATE GEORGE, R/A. NEDUNKALLEL MANIANTHARAM, KALLOORKADU P.O., ERNAKULAM DISTRICT - 686 668.

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2 JIBY A.K. AGED 43 YEARS S/O.KUNJAN, RESIDING AT AREECKAL HOUSE, KALLOORKAD P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 668. BY ADVS. RAJAN VISHNURAJ SRI.HARISH VASUDEVAN

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RESPONDENT/S:

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1 GEORGE ELIAS AND ASSOCIATES EDAYATH, AYAVANA, MUVATTUPUZXHA, ERNAKULAM DISTRICT REPRESENTED BY ITS MANAGING PARTNER, MR.GEORGE ELIAS, AGED 48 YEARS, S/O.LATE E.V.ELIAS, GEORGE ELIAS AND ASSOCIATES, EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DISTRICT.

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2 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3 THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, KAKKANAD, ERNAKULAM.

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4 KALLOORKAD GRAMA PANCHAYAT OFFICE OF THE KALLOORKAD GRAMA PANCHAYAT, KALLOORKAD P.O., ERNAKULAM DISTRICT - 686 668 REPRESENTED BY ITS SECRETARY.

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W. A. No. 607 of 2021

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and connected cases -2-

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5 THE PRESIDENT, KALLOORKAD GRAMA PANCHAYAT OFFICE OF THE KALLOORKAD GRAMA PANCHAYAT, KALLOORKAD P.O., ERNAKULAM DISTRICT - 686 668.

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6 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM -695 004.

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7 THE DEPUTY SUPERINTENDENT OF POLICE MOOVATTUPUZHA, MOOVATTUPUZHA P.O., ERNAKULAM DISTRICT - 686 661.

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8 THE CIRCLE INSPECTOR OF POLICE KALLOORKADU POLICE STATION, KALLOORKADU P.O. - 686 668.

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9 ALBIN RAJU, PRESIDENT, YOUTH CONGRESS MANDALAM COMMITTEE, THOTTUMARICKAL HOUSE, KALLOORKADU P.O., ERNAKULAM DISTRICT – 686668

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10 RATHEESH PARAMESWARAN, KANJINITHINKKAL, MANIANTHARAM, KALLOORKADU P.O, ERNAKULAM DISTRICT – 686668

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11 DILEEP S/O BHASKARAN, ALACKAL, KALLOORKADU P.O., ERNAKULAM DISTRICT – 686668

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12 NOBY CHIRAKKALA, KALLOORKADU P.O, ERNAKULAM DISTRICT – 686668

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13 AJITH R., VATHYAPILLIL HOUSE, MANIANTHARAM,

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KALLOORKADU P.O., ERNAKULAM DISTRICT – 686668

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14 UNNI, ALACKAL, KALLOORKADU P.O, ERNAKULAM DISTRICT - 686668 BY ADVS.

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SRI.V.PHILIP MATHEWS SHRI.AMAL PARTHASARADHY

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OTHER PRESENT:

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SRI.TEK CHAND SR GP, SRI.T.NAVEEN, SC PCB

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, ALONG WITH WA.756/2021, 741/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. A. No. 607 of 2021

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and connected cases -3-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 9^TH DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 WA NO. 756 OF 2021 AGAINST THE JUDGMENT IN WP(C) 10381/2020 OF HIGH COURT OF KERALA

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APPELLANT/S:

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JIBY A.K. AGED 43 YEARS S/O. KUNJAN, RESIDING AT AREECKAL HOUSE, KALLOORKAD P.O, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 668 BY ADVS. HARISH VSUDEVAN RAJAN VISHNURAJ

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RESPONDENT/S:

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1 GEORGE ELIAS AND ASSOCIATES EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER, MR. GEORGE ELIAS, AGED 48 YEARS, S/O. LATE E.V. ELIAS, GEORGE ELIAS AND ASSOCIATES, EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DISTRICT.

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2 KALLORKAD GRAMA PANCHAYAT, OFFICE OF THE KALLOORKAD GRAMA PANCHAYAT, KALLOORKAD P.O, ERNAKULAM DISTRICT-686 668, REPRESENTED BY ITS SECRETARY.

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3 THE SECRETARY, KALLOORKAD GRAMA PANCHAYAT, OFFICE OF THE KALLOORKAD GRAMA PANCHAYAT, KALLOORKAD P.O, ERNAKULAM DISTRICT686 668

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4 THE PRESIDENT, KALLOORKAD GRAMA PANCHAYATH, OFFICE OF THE KALLORKAD GRAMA PANCHAYAT, KALLOORKAD P.O, ERNAKULAM DISTRICT686 668

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5 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS SECRETARY, PATTOM P.O, THIRUVANANTHAPURAM-695 004

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6 THE CIRCLE INSPECTOR OF POLICE, KALLOORKADU POLICE STATION, KALLOORKADU P.O-686 668

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7 ALBIN RAJU, PRESIDENT , YOUTH CONGRESS MADALAM COMMITTEE, KALLORKADU P.O, ERNAKULAM DISTRICT-686 668 BY SRI. TEK CHAND, SR. GP, SRI. V. PHILIP MATHEWS SRI. T. NAVEEN, SC.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, ALONG WITH WA.607/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. A. No. 607 of 2021 and connected cases -4-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 9^TH DAY OF DECEMBER 2021 / 18TH AGRAHAYANA,

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1943

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WA NO. 741 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 17920/2020 OF HIGH COURT OF KERALA

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APPELLANT/S:

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GEORGE ALIAS AND ASSOCIATES EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DSISTRICT, REPRESENTED BY ITS MANAGING PARTNER MR. GEORGE ELIAS, AGED 48 S/O. LATE E.V. ELIAS, GEORGE ELIAS AND ASSOCIATES, EDAYATH, AYAVANA, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV V.PHILIP MATHEWS

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES AND COMMERCE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KAKKANAD, ERNAKULAM. 682 021.

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3 KALLOORKAD GRAMA PANCHAYATH. OFFICE OF THE KALLOORKAD GRAMA PANCHAYATH, KALLOORKAD P O, ERNAKULAM DISTRICT - 686668 REPRESENTED BY SECRETARY.

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4 THE PRESIDENT KALLOORKAD GRAMA PANCHAYATH, OFFICE OF THE KALLOORKAD GRAMA PANCHAYATH, KALLOORKAD P O, ERNAKULAM DISTRICT - 686668.

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5 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS SECRETARY, PATTOM P.O, THIRUVANANTHAPURAM - 695004.

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6 DEPUTY SUPERINTENDENT OF POLICE, MOOVATTUPUZHA, MOOVATTUPUZHA P O, ERNAKULAM DISTRICT - 686661.

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W. A. No. 607 of 2021

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and connected cases -5-

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7 CIRCLE INSPECTOR OF POLICE, KALLOORKADU POLICE STATION, KALOORKADU P O, ERNAKULAM DISTRICT - 686668.

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8 ALBIN RAJU, PRESIDENT, YOUTH CONGRESS MANDALAM COMMITTEE, THOTTUMARICKAL HOUSE, KALLOORKADU P.O, ERNAKULAM DISTRICT - 686668.

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9 RATHEESH PARAMESWARAN, KANJINITHIKKAL, MANIANTHARAM, KALLOORKADU P.O., ERNAKULAM DISTRICT-686 668

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10 JOLLY, NEDUNKALLEL, MANIANTHARAM, KALLOORKADU P.O., ERNAKULAM DISTRICT-686 668

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11 DILEEP, S/O.BHASKARAN, ALACKAL, KALLOORKADU P.O., ERNAKULAM DISTRICT-686 668.

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12 NOBY, CHIRAKKALA, KALLOORKADU P.O., ERNAKULAM DISTRICT686 668.

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13 AJITH R, VATHYAPILLIL HOUSE, MANIANTHARAM, KALLOORKADU P.O., ERNAKULAM DISTRICT-686 668.

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14 UNNI, ALACKAL, KALLOORKADU P.O., ERNAKULAM DISTRICT686 668.

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15 JIBY A.K., AREEKAL HOUSE, KALLOORKADU P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 668. BY ADVS. RAJAN VISHNURAJ HARISH VASUDEVAN T. NAVEEN, SC SRI. TEKCHAND, SR. GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2021, ALONG WITH WA.607/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. A. No. 607 of 2021 and connected cases -6-

C. R.

J U D G M E N T

Shaji P. Chaly, J.

The captioned writ appeals are filed by the rival parties in W. P. (C) Nos. 10381 of 2020 and 17920 of 2020, challenging the common judgment of the learned Single Judge dated 18.03.2021.

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Writ appeal Nos. 607 of 2021 and 756 of 2021 are filed by respondents 10 and 15 in W. P. (C) No. 17920 of 2020 and the 7^th respondent in W. P. (C) No. 10381 of 2020 respectively, whereas writ appeal No. 741 of 2021 is filed by the petitioner in W. P. (C) No. 17920 of 2020.

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W. P. (C) No. 17920 of 2020 leading to writ appeal No. 741 of 2021 was filed by the appellant / writ petitioner, seeking a declaration that no license or permission is required under the Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship activities and other services), Rules, 1996, or under the Kerala Panchayat Raj Act, 1994, for establishing / functioning the hot mix plant by the petitioner, as the petitioner has obtained Ext. P6 certificate under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019,

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and for a further writ of mandamus or appropriate writ or order commanding the Kalloorkad Grama Panchayat and the President of the Kalloorkad Grama Panchayat, respondent Nos. 3 and 4, not to interfere with the functioning / establishing of hot mix plant by the appellant in his property, whereas W. P. (C) No. 10381 of 2021 was filed by the very same writ petitioner, challenging Ext. P11 minutes of

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the Grama Panchayat dated 12.05.2020, whereby the Grama Panchayat has decided not to grant permission to establish the hot mix plant to the petitioner.

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The learned Single Judge, after taking into account the factual and legal circumstances involved in the matter, has found that since the petitioner is not required to obtain either license under Section 232 of the Kerala Panchayat Raj Act, 1994, or permission of the Committee of the Panchayat under Section 233 of the Act, for the purpose of installing and operating a hot mix plant, it is unnecessary to consider the question as to whether the petitioner has obtained deemed license in terms of the relevant rules.

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It was further held that on account of the very same reason, it

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is unnecessary to examine the correctness of the decision of the

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Panchayat and the contention of the writ petitioner that they are not required to obtain any license or permission from the Panchayat, in the light of the acknowledgment certificate obtained under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019.

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However it was found that in the light of Rule 68 of the Kerala Panchayat Building Rules, 2019, before a hot mix plant is installed on a temporary measure, the permission of the Secretary of the Grama Panchayat is to be obtained; that the writ petitioner has admittedly not obtained the permission of the Secretary of the Panchayat; that a reading of Rule 68 of the Kerala Panchayat Building Rules, 2019, indicates that the said power has to be exercised by the Secretary, having regard to the general conditions fixed by the Committee of the Panchayat; that having regard to the propositions laid down by the Full Bench of this Court in Tomy Thomas v. State of Kerala [2019 (3) KLT 987 (FB)] , insofar as the petitioner has secured consent to establish the hot mix plant from the State Pollution Control Board, the only other requirement under law to be complied with by the petitioner in the matter of installing a portable hot mix plant is the permission of the Secretary, the Secretary of the Panchayat cannot refuse the permission under Rule 68 of the Kerala Panchayat

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Building Rules, 2019, but can only impose general conditions prescribed by the Committee for the said purpose.

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Accordingly, the writ petitions were disposed of directing the petitioner to prefer an application for permission under Rule 68 of the Kerala Panchayat Building Rules, 2019, for installation of the hot mix plant, and if the application was filed within two weeks from the date of receipt of a copy of the judgment, the Secretary of the Panchayat was directed to grant permission sought for by the writ petitioner, subject to the conditions, if any, imposed by the Committee of the Panchayat, in terms of sub-rule (1) of Rule 68 of the Kerala Panchayat Building Rules, 2019.

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It is thus challenging the legality and correctness of the judgment, the writ appeals are preferred by the writ petitioner and some of the respondents.

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The paramount contention advanced by the writ petitioner in W. A. No. 741 of 2021 is that the learned Single Judge ought to have found that no further license or permission is required from the Panchayat for installing or operating the temporary portable hot mix plant, in view of Ext. P6 certificate issued by the Department of

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Industries and Commerce, District Industries Center, Ernakulam dated 11.05.2020; that by virtue of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, there is no requirement for securing any license / permission under the Kerala Panchayat Raj Act, 1994, or Rule 12 of the Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship activities and other services), Rules, 1996, and that the Kerala Panchayat Building Rules, 2019 is not applicable to hot mix plants, as those Rules are framed under the Kerala Panchayat Raj Act, 1994, which is one among the enactments mentioned in Section 10 of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, and even if those Rules are applicable to the appellants, applications dated 07.03.2020 and 21.01.2021 have to be treated as applications under Rule 68 of the Kerala Panchayat Building Rules, 2019, and therefore a further application is not required.

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In W. A. Nos. 607 of 2021 and 756 of 2021 filed by the respondents in the aforesaid writ petitions, the paramount contention advanced is that the judgment of the learned Single Judge is unfair, illegal, arbitrary and the same has been passed in stark contravention of the law as well as the dictum laid down by this Court in George

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Joseph and others v. Bose Well John and others [2021(1) KHC

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609], that the learned Single Judge erred in coming to the conclusion that the foundation of the hot mix plant is nothing but concrete footing made for the purpose of installing and operating a device for making concrete / hot mix for a temporary period, and it would not fall within the scope of building defined under Rule 2(1)(n) of the Kerala Panchayat Building Rules, and the said finding is against a Division Bench Judgment of this Court in Jilmon John and another v. Manakkadu Grama Panchayat and others [2017 (1) KLT 794] , where it was held that foundation of the hot mix plant on which it is erected would clearly come within the definition of building.

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Other contentions are also raised in order to impress upon this Court that constructions of permanent nature are put up by the writ petitioner without securing permission and plan under the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2019.

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We have heard, Sri. V. Philip Mathews for the appellant in W. A. No. 741 of 2021, Sri. Harish Vasudevan for the appellants in the connected writ appeals, Sri. Tek Chand, learned Senior Government

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Pleader, Sri. T. Naveen for the Kerala State Pollution Control Board, and perused the pleadings and material on record.

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The sole question emerging for consideration is whether any

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manner of interference is required to the judgment of the learned Single Judge.

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In fact, by virtue of Section 233 of the Kerala Panchayat Raj Act, 1994, a permission for the construction of factories and the installation of machinery is required from the Village Panchayat, and except in accordance with the conditions specified in such permission, construction to establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or of other mechanical power or electrical power; or install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the provisions of the Act or the Rules framed thereunder is possible.

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It also prescribes the manner in which an application submitted for the purpose is to be dealt with and the time within which such application shall be considered.

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That apart, Section 232 of the Act 1994 deals with the

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requirement of a license from the Village Panchayat for utilizing the places within the Panchayat area for any of the purposes specified in the Rules made in that behalf without a license issued by the Secretary and except in accordance with the conditions specified in such license.

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However, Section 233B deals with exemptions which specifies that notwithstanding anything contained in section 233, no permission of Village Panchayat shall be required for the installation of establishment of the machineries specified therein, which includes portable drilling machines and portable engines used for construction purpose such as concrete mixers etc.

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On a perusal of the provisions of the Kerala Panchayat Building Rules, 2011, it is clear that as per Rule 34 dealing with occupancy, hazardous constructions are included in group I which reads thus:-

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“ Group I - Hazardous building shall include any building or part of a building which is used for the storage, handling, manufacturing or processing of highly combustible or explosive material or products which are liable to burn with extreme rapidity and or which may produce poisonous fumes or explosions for storage, handling, manufacturing or processing which involve highly corrosive, toxic or noxious alkalis, acids or

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other liquids or chemicals producing flame, fumes and explosive, poisonous, irritant or corrosive gasses; and for the storage, handling or processing of any material producing explosive mixtures of dust which result in the division of matter into fine particles subject to spontaneous ignition.

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Any process or activity, where raw materials used therein or wastes or effluents there of would result in the pollution of the general environment are also included under this group.

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Buildings under Group I - Hazardous occupancy shall generally include buildings and yards used for storage under pressure of more than 1 kg/cm² and in quantities exceeding 10m³ of acetylene, hydrogen, ammonia, chlorine, phosgene, sulphur dioxide, carbon monoxide, methyl oxide and all gasses subject to explosion, fumes or toxic hazard; Godowns or warehouses (combustible/hazardous goods), storage and handling of hazardous and highly inflammable liquids, oil terminals/depots and bulk storage of flammable liquids, crematoria, burial grounds, vaults, yards, abattoirs (slaughter houses), sewage treatment plants except domestic treatment plants, stone crusher units, automobile fuel filling stations, coal, wood and timber yards, saw mills.”

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It is clear from the said provision that a hot mix plant was

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not specifically covered under Group I. But it is significant to note

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that the Kerala Panchayat Building Rules, 2011 is replaced by the Kerala Panchayat Building Rules, 2019. Section 25 therein deals with

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occupancy which clearly specifies that all buildings, existing or hereinafter proposed, shall be classified in one of the occupancies mentioned therein, according to the use or character of occupancy. Therein also Group I deals with hazardous which reads thus:-

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“Group I - Hazardous building shall include any building or part of a building which is used for the storage, handling, manufacturing or processing of highly combustible or explosive materials or products which are liable to burn with extreme rapidity and/or which may produce poisonous fumes or explosions; for the storage, handling, manufacturing or processing which involve highly corrosive, toxic or noxious alkalis, acids or other liquids or chemicals producing flame, fumes and explosive, poisonous, irritant or corrosive gasses; and for the storage, handling or processing of any material producing explosive mixtures of dust which result in the division of matter into fine particles subject to spontaneous ignition.

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Any process or activity, where raw materials used therein or wastes or effluents thereof would result in the pollution of the general environment are also included under this group.

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Building under Group I – Hazardous occupancy shall generally include buildings and yards used for storage under pressure of more than 1Kg/cm² and in quantities exceeding 70 m³ of acetylene, hydrogen, ammonia, chlorine, phosgene, sulphur dioxide, carbon monoxide, methyl oxide and all gasses subject to explosion, fumes ortoxic hazard; Godowns or warehouses

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(combustible / hazardous goods), storage and handling of hazardous and highly inflammable liquids, oil terminals/depots and bulk storage of flammable liquids, crematoria, burial grounds, vaults, garbage dumping yards, abattoirs (slaughter houses), sewage treatment plants of capacity more than 100 KLD, stone crusher units, hot mixing plants of permanent nature (intended to function for more than six months), ready mix concrete plant (intended to function for more than six months), automobile fuel filling stations, coal, wood and timber yards, saw mills.

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Sewage treatment plant of capacity less than 100 KLD and constructed as part of the main building, shall be treated as an ancillary building of the main use.”

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On a reading of Group I of rule 25 of Rules 2019, it is categoric and clear that it includes hot mix plants of permanent nature intended to function for more than six months. Therefore, for a Group I construction, a permit / permission is required from the authority prescribed under the Kerala Panchayat Building Rules, 2019. But at the same time, it is relevant to note that Rule 68 of the Kerala Panchayat Building Rules, 2019 deals with temporary constructions. It reads thus:-

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“ 68. Temporary hut or shed. - (1) The Secretary may grant permission to a person to erect for a specified period or huts or sheds of a purely temporary nature for stabling or similar

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purposes or hot mix plant or concrete mix plant, on general conditions as may be fixed by the Council.

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(2) The Secretary may, on the failure of the person to demolish or dismantle the shed or hut or hot mix plant or concrete mix plant at the expiry of the period specified, cause it to be demolished or dismantled and the cost thereof shall be recovered from such person as if it were an arrear of property tax due under the Act.

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(3) Application for permission to erect temporary hut or shed or hot mix plant or concrete mix plant shall be submitted in white paper typed or written in ink, affixed with necessary court fee stamp and accompanied by document to prove ownership or consent of the owner, if the land is not owned by the applicant.

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(4) The Secretary shall, if convinced of the ownership, issue permit with or without condition and specifying the period beyond which the hut or shed or hot mix plant or concrete mix plant shall not be retained.”

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On an analysis of Section 68, it is clear that a permission of

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the Secretary is required to a person, to erect for a specified period, a hot mix plant of a purely temporary nature, however the Secretary is vested with powers to demolish or dismantle the constructions prescribed under Section 68, if the conditions contained under the permission is not complied with by the owner of the hot mix plant.

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On a conjoint reading of Group I under rule 25 of Rules

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2019 and the provisions of Rule 68, it is categoric and clear that any construction of a hot mix plant for a period of six months or below, requires only a permission from the Secretary of the Grama Panchayat. However if a hot mix plant is to be installed beyond the six months period, it requires the compliance of all the relevant provisions of the Building Rules 2019 including a building permit, so as to satisfy the rules. Therefore it can be seen that the rule position has changed drastically from the rule position available under the Building Rules 2011, consequent to the introduction of Building Rules 2019. Thus to say the permanent nature of a hot mix plant is to be identified now, on the basis of the period for which the plant is installed rather than the capacity or the permanent fixtures to be employed for the setting up of the plant. To explain the situation in a different manner, earlier in order to ascertain whether a plant is portable or not in contemplation of Section 233B of the Kerala Panchayat Raj Act 1994, adjudication by the Secretary was required taking into account the nature of construction put up to install the plant, whereas, as per the Building Rules 2019 the Secretary need to ascertain the period for which the plant is proposed to be put up, i.e. if it is for a period of six

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months or below, a permission under Section 68 alone is required from the Secretary, but if it is exceeding the said period it will come under group I of rule 25 thus susceptible to the requirements of the other relevant provisions of Rule 2019. Therefore, merely because a strong foundation is required to install a temporary hot mix plant in contemplation of rule 68 of Rules 2019, that would not necessitate a permit to satisfy the requirements of the other provisions of the Rule 2019.

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Analyzing the situation, if the writ petitioner is of the opinion that he requires the installation of a hot mix plant for a period up to six months alone, then the permission of the Secretary in contemplation of Rule 68 of the Kerala Panchayat Building Rules, 2019 alone is required. That is why, the Secretary is granted with sufficient powers under the said Rules to demolish any construction put up by any person of a temporary nature, on the basis of conditions included in the permission granted under rule 68. In other words in order to secure advantage of Rule 68 the installations and the plant put up, can under no circumstances, exceed a six months period.

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Identifying the situation so, we are of the clear opinion that

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it is for the Secretary of the Grama Panchayat to consider the application submitted by the writ petitioner for putting up the hot mix plant and grant permission, in accordance with law, as is held by the learned Single Judge also bearing in mind the observations made above.

¶166

Even though learned counsel for the appellants in the other appeals, who were respondents in the writ petitions, have raised a contention that the constructions put up by the writ petitioner for installation of the hot mix plant is of permanent nature, and therefore a permit was required as per the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2019, in our considered opinion, it depends on the facts, circumstances and nature of the permission granted by the Secretary of the Grama Panchayat. If a permission is granted only for putting up a hot mix plant of temporary nature, as is contemplated under Rule 68 of the Kerala Panchayat Building Rules, 2019, no further permissions are required. But, whatever be the nature of constructions put up by the owner of the hot mix plant for installing the machineries, it will have to be removed within a period of six months, failing which the Secretary is vested with powers to demolish the entire structure put up for that purpose.

¶167

W. A. No. 607 of 2021 and connected cases -21-

¶168

No doubt, if any application is submitted by the writ petitioner for a permanent hot mix plant as is specified under Group I of Rule 25 of the Kerala Panchayat Building Rules, 2019, intended to function for more than six months, the writ petitioner have to secure necessary permits / permissions under the Kerala Panchayat Raj Act, 1994 and the Rules 2019.

¶169

Therefore, if the writ petitioner is still insisting for the hot mix plant of a permanent nature in contemplation of the Rules as discussed above, necessarily, the writ petitioner has to submit an application for regularization of the construction already put up. These are all matters to be considered by the Secretary of the Grama Panchayat / the Grama Panchayat, in accordance with law.

¶170

This we say because even if any construction is made unauthorizedly, and the construction made is not in violation of the Kerala Panchayat Building Rules, 2019, the Secretary is vested with powers under Rule 92 of the Rules 2019 to regularize the constructions.

¶171

Viewed in that circumstances, we do not think the appellants in the rival appeals have made out any case for interference with the

¶172

W. A. No. 607 of 2021 and connected cases -22-

¶173

common judgment of the learned Single Judge.

¶174

Needless to say, the appeals fail and accordingly, they are

¶175

dismissed.

¶176

However, we make it clear that since the period granted by the learned Single Judge to submit the application and consideration by the Secretary is over, the writ petitioner is granted two weeks time from the date of receipt of a copy of this judgment, to submit suitable application, in accordance with law, and if any such application is received, it shall be considered by the Secretary / the Grama Panchayat, in accordance with law, at the earliest possible, and at any rate, within three weeks from the date of receipt of the application.

¶177

Sd/S. MANIKUMAR CHIEF JUSTICE

¶178

Sd/SHAJI P. CHALY JUDGE

///TRUE COPY///

P. A. TO JUDGE

W. A. No. 607 of 2021 and connected cases -23-

¶183

APPENDIX OF WA 607/2021

¶184

PETITIONER ANNEXURES ANNEXURE A1 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 09/06/2020 IN WPC NO.11190 OF 2020. ANNEXURE A2 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 08/07/2020 IN WPC NO.11190 OF 2020.

¶185

W. A. No. 607 of 2021 and connected cases -24-

¶186

APPENDIX OF WA 756/2021

¶187

PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE INTERIM ORDER DATED 27.05.2020 IN W.P.C NO. 10381 OF 2020. ANNEXURE A2 A TRUE COPY OF THE INTERIM ORDER DATED 09.06.2020 IN W.P.C NO. 11190 OF 2020. ANNEXURE A3 A TRUE COPY OF THE INTERIM ORDER DATED 08.07.2020 IN W.P.C NO. 11190 OF 2020. ANNEXURE A4 A TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BY THE APPELLANT IN W.P.C NO. 17920 OF 2020.

¶188

W. A. No. 607 of 2021 and connected cases -25-

¶189

APPENDIX OF WA 741/2021

¶190

PETITIONER ANNEXURES

¶191

ANNEXURE A1 PETITION DATED 22.01.201 FILED BY THE APPELLANT/WRIT PETITIONER IN WPC NO. 17920/20. ANNEXURE A2 COPY OF THE DECISION OF THE PANCHAYAT COMMITTEE DATED 10.02.2021 WITH ENGLISH TRANSLATION. ANNEXURE A3 COPY OF THE REPRESENTATION DAETD 31.03.2021 FILED BY THE APPELLANT BEFORE THE PANCHAYAT SECRETARY.

Jiby A.K. v. George Elias and Associates

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Jiby A.K. v. George Elias and Associates

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