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George Joseph & Others v/s Bose Well John & Others

    W.A. Nos. 124, 160 & 170 of 2021

    Decided On, 04 February 2021

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellants: S. Sreekumar, Sr. Advocate, P. Martin Jose, R. Githesh, P. Prijith, Thomas P. Kuruvilla, Manjunath Menon, S. Harikrishnan, For the Respondents: Surin George Ipe, Sr. Government Pleader, K.I. Mayankutty Mather, Uthara Asokan, Advocates.



Judgment Text

Shaji P. Chaly, J.

1. The captioned writ appeals are materially connected in respect of the installation of a tar mixing plant by a Contracting company namely M/s. Cheeran Structurals, who is awarded with a contract by the Public Works Department of the State Government for improvement of a road in Idukki District as per the work order dated 06.06.2019 and a contract agreement dated 27.09.2019, evident from Ext.P1 and P1(a) in W.A. No. 170 of 2021. Therefore, we have heard them together and propose to pass this common judgment.

2. W.A. Nos. 124 and 160 of 2021 arises from W.P.(C) Nos. 774 and 22609 of 2020 filed by third persons against the installation of the tar mixing plant alleging that necessary permits/licences are not secured by the Contractor as per the provisions of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short) and Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules and the Kerala Panchayat Building Rules, 2019 (‘Rules 2019’ for short). Whereas, W.A. No. 170 of 2021 arises from W.P.(C) No. 3846 of 2020 filed by the Contractor seeking a direction to quash a stop memo dated 03.01.2020 issued by the Kavalangad Grama Panchayat directing the Contractor to stop the construction work of tar mixing plant forthwith, to consider Ext. P8 application for building permit, to quash Ext P11 decision No. 20(1) of the General meeting of Kavalangad Grama Panchayat held on 31.01.2020 to stop functioning of the plant and not to grant permission for the installation of the plant, and also seeking further directions directing the Panchayat and the Secretary to accord permission to the petitioner to establish a portable hot mix plant and a shed in the subject site as is sought for in the building permit application.

3. The learned single Judge, after taking into consideration the rival submissions made across the Bar and appreciating the provisions of the Kerala Panchayat Raj Act, 1994, has issued the following directions:

“10. In the result, W.P.(C).No.3846/2020 is allowed. The Secretary of the Panchayat is directed to follow the procedure under Section 233(4). If the Secretary obtains necessary report, as referred to under sub section 4, the Village Panchayat is directed to grant permission as referred to under Section 233(3). The entrepreneur's application for regularisation and approval of layout shall also be taken up for necessary action without any delay. The entire proceedings for granting permission shall be concluded within 30 days. W.P. (C).Nos.774/2020 and 22609/2009 are accordingly dismissed.”

It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeals are preferred.

4. The basic point raised by the appellants is that the Contractor has not submitted any application seeking issuance of any establishment permit under Section 233 of the Act, 1994 and the Rules prescribed thereto which stood amended time and again. It is also the case of the appellants that the tar mixing plant was erected by the Contractor without securing a building permit in contemplation of the provisions of Act, 1994 and the Rules, 2019.

5. It is also the case of the appellants that as per Rules, 2019 in order to install a hot mix plant, the Contractor has to secure a permission as is provided in Rule 68 even if assuming that it is a portable hot mix plant, and so also, the construction of a hot mix plant comes under Group I— hazardous building and therefore, without the permission of the Municipality, no construction can be carried out by the Contractor. However, in utter violation of the provisions of the Rules, 2019, the Contractor has constructed the hot mix plant and attempted to start functioning of the same without securing necessary establishment permit and trade licence in contemplation of Sections 233 and 232 of the Act, 1994 respectively .

6. On the other hand, the learned counsel for the Contractor fairly concedes that by virtue of the provisions contained under the Act, 1994 and the Rules, 2019, the Contractor had to secure necessary permission/permits/licence from the Panchayat/Secretary before proceeding with the construction and functioning of the hot mix plant. However, it is submitted that the Contractor was carried away by the provisions of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, whereby certain concessions are provided to the micro small and medium enterprises.

7. The writ petitioner is a micro small enterprise as is certified by the statutory authority. It was also submitted that though the construction was carried out without securing a permit, realizing the requirements of Rules, 2019, the Contractor has submitted an application for permit/regularisation of the construction carried out in accordance with the provisions of the Rules, 2019. It was also submitted that the Contractor has submitted an application dated 28.12.2020 seeking establishment permit/trade licence for the hot mix plant as per Sections 233 and 232 respectively of the Act, 1994 and the Rules prescribed thereto.

8. The learned Standing Counsel for the Kavalangad Grama Panchayat has submitted that the application preferred by the Contractor would be considered by the Secretary/Panchayat in terms of the provisions of the Act, 1994 and the Rules thereto and the Rules, 2019. However, it was pointed out that the application for permit/licence under Section 233 is to be submitted in the prescribed form as per the Rules and if the application is not submitted in terms of the Rules, the Contractor may be directed to submit a proper application enabling the Secretary/Panchayat to consider the same in accordance with the provisions of the Act, 1994 and the Rules, 1996 as amended from time to time.

9. We have heard the learned Senior Counsel for the petitioner Sri. S. Sreekumar assisted by Adv. Prajith P., Sri. K.I. Mayankutty Mather appeared for the Contractor, Sri. Peeyus A Kottam, learned Standing Counsel for the Grama Panchayat, Sri. T. Naveen for the Kerala State Pollution Control Board and the learned Senior Government Pleader Sri. Surin George Ipe for the State.

10. The discussion of facts made above would make it clear that a serious adjudication of the contentions put forth in the appeals are not required, basically for the reason that it is an admitted fact that the Contractor has carried out the construction without securing permission from the Grama Panchayat in accordance with the provisions of the Rules, 2019 and no permission/licence was obtained in accordance with the provisions of Section 233 and 232 of the Act, 1994 respectively and in terms of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and, Factories) Rules, 1996 ('Rules, 1996' for short).

11. In our considered opinion, by virtue of Section 233 of Act, 1994, the Contractor had to secure necessary establishment permit in order to install the hot mix plant. Likewise, after the establishment of the unit, the Contractor has to secure a trade licence in contemplation of Section 232 of Act, 1994 if the plant put is not coming under the exempted category as provided under section 233B of the Act. Section 233 of Act, 1994 have undergone amendment as per the Amendment Act 14 of 2018, whereby sub-Section 3 of Section 233 as it originally was substituted and the Secretary or the Officer authorised by him is empowered to enquire and report to the Village Panchayat as to whether the establishment of the factory, workshop or workplace or other installation of machinery or manufacturing plant for which permission is applied for is objectionable by reason of density of population in the neighbourhood and the possibility to cause nuisance or pollution and the village panchayat after having considered the application and the reports of the Secretary, and of such other authorities as specified in sub-Section (4) may as expeditiously as possible, at any rate within 30 days, grant the permission either absolutely or subject to such conditions as it thinks fit to impose.

12. Therefore, it is unequivocal that without an application, the procedure contemplated under Section 233 of Act, 1994 cannot be undertaken by the Secretary and the Panchayat. It is only after granting establishment permit, the petitioner can seek a trade licence in accordance with the stipulations contained under Section 232 of the Act, 1994, which is also done on an application made to the Secretary.

13. Even though the learned counsel for the Contractor had submitted that the hot mix plant being a portable one, the Contractor is entitled to get exemption under Section 233B of the Act, 1994, in our considered opinion, those are all subject matters to be considered by the primary statutory authority in accordance with law and taking into account the factual and technical aspects in regard to the installation of the plant.

14. It is also equally important to note that Section 2(n) of the Rules, 2019 defines a building to mean “any structure for whatsoever purpose and of whatsoever materials constructed and every part thereof whether used for human habitation or not and includes foundation, plinth, walls, floors, roofs, chimneys, plumbing and building services, fixed platforms, verandah, balcony, cornice or projection, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures, tanks constructed or fixed for storage of chemicals in any form and for storage of water, effluent, swimming pool, ponds etc.”

15. Therefore, the Contractor had to submit an application to the Secretary of the Panchayat and secure a permit to proceed with the construction of the hot mix plant, if it is not a portable one. Likewise, the buildings are categorized under Rule 25 of Rules, 2019 in accordance with the occupancy of the buildings from Group A1 onwards and the hot mix plant comes under Group I, which is a hazardous occupancy. As per Rules 25 of Rules, 2019, Group I deals with 'hazardous building', which undoubtedly takes in the hot mix plant of permanent nature (intended to function for more than six months). Likewise, Rule 68 of Rule, 2019 deals with temporary hut or shed and it reads thus:

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

(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 .

(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.

(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.”

16. Therefore, thinking either way, the Contractor has to submit necessary application before the Panchayat in order to put up a hot mix plant, whether of permanent or temporary nature. That apart, Rules, 1996 deals with the procedure for considering the application submitted for establishment permits and a tar mixing plant is at entry 117 Schedule I thereto. So also, Schedule II thereto prescribes the maximum fees which may be fixed towards licence fees. Therefore, it is for the Contractor to pursue the application submitted before the Secretary/Grama Panchayat to regularize the construction carried out and secure establishment permit/trade licence/permission from the Secretary/Grama Panchayat in contemplation of the provisions of the Rules, 2019, Act, 1994 and the Rules, 1996. This we say, also because by virtue of Rule 92 of Rules, 2019, the Secretary is vested with powers to regularize the constructions carried out, if they are not violative of the Rules, 2019.

17. Whatever that may be, learned counsel for the Contractor submitted that the Contractor had to file the writ petition, since as per Ext.P11 produced in W.P.(C) No. 3846 of 2020, the Grama Panchayat has taken a blanket decision not to permit the Contractor to install a hot mix plant, without taking into account the relevant aspects and without providing an opportunity of hearing to the Contractor.

18. Learned counsel in that regard has invited our attention to the judgment of a Division Bench of this Court in Kadaplamattom Grama Panchayat, Kottayam and another v. Johny Roy [2013(3) KHC 857=2013(3) KLT 1053), wherein the legality of the Village Panchayat passing a resolution and taking a blanket decision not to grant a fresh licence for conducting quarries on account of objection by the people in the locality was considered and it is held that no such general decision can be taken and the decisions will have to be taken by the Grama Panchayat taking into account individual applications, and the same shall be considered in accordance with the provisions of the Act, 1994 and the Rules, 1996.

19. Though a challenge was made in the writ petition to Ext. P11, decision of the Grama Panchayat dated 06.02.2020, the learned single Judge has not adjudicated the issue raised by the Contractor. But, we are of the considered opinion that in view of the directions we are proposing to issue, if Ext. P11 decision of the Grama Panchayat dated 06.02.2020 is not interfered with, effective consideration of the applications submitted by the Contractor would be impossible.

20. Even though it was submitted that the construction/installation were put up by the Contractor only by virtue of the common interim order dated 02.03.2020 passed by this Court in W.P.(C) Nos. 3846 of 2020 and 774 of 2020, and therefore entitled to proceed with the construction, we are of the considered opinion that going by the provisions of Act, 1994, Rules, 1996 and the Rules, 2019, the Contractor was duty bound to submit applications so as to secure necessary permit/licence/permissions in order to proceed with the construction and functioning of the plant. Having not done so, everything has to be considered in accordance with law in order to identify as to whether the actions of the contractor can be regularise

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d . 21. Taking into account the facts, law and situation as is discussed above, we are inclined to interfere with the judgment of the learned single Judge in regard to the directions issued to the Grama Panchayat/Secretary to consider the establishment permit without submitting an application by the Contractor. Therefore, we set aside the common judgment of the learned single Judge, modify the judgment accordingly and direct the Secretary/Kavalangad Grama Panchayat to consider the application for establishment permit submitted by the Contractor in accordance with law at the earliest and, at any rate, within two weeks from the date of receipt of a copy of this judgment and depending on the decision taken any application received for trade license shall also be considered within a week thereafter. 22. Likewise, the Secretary of the Panchayat is directed to consider the application for building permit/regularization submitted by the Contractor in accordance with the provisions of the Act, 1994 and the Rules, 2019 at the earliest and, at any rate, within three weeks from the date of receipt of a copy of this judgment. However, we make it clear that if the application is not submitted in terms of form if any is prescribed, the Contractor is liable to submit the application in accordance with law. In order to enable the statutory authorities to consider the applications as directed above without any preconceived notions, and since we find that the decision taken by the Grama Panchayat dated 06.02.2020 at Ext P11 is not in accordance with law, we quash the same. Accordingly, the writ appeals are allowed as above.
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