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2017 Supreme(Ker) 81

IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAN M.SHANTANAGOUDAR & ANIL K.NARENDRAN, JJ.
JILMON JOHN – APPELLANT
Versus
THE MANAKAD GRAMA PANCHAYATH CHITTOOR AND ORS. – RESPONDENTS
W.A.No.2462 of 2016
Decided On : 13-02-2017

Advocates Appeared:
For the Appellant : ADVS. SRI.S. SREEKUMAR (SR.), SRI. MATHEW JOHN (K)
For the Respondent: ADV. SRI. P. RAVINDRAN (SR.), ADV. SRI. M.H. HANIL KUMAR, ADV. SRI. T. NAVEEN (SC), ADV. SRI. RAJAN VISHNURAJ, ADV. SRI. V. HARISH, SR. GOVERNMENT PLEADER SRI. TEKCHAND

Headnote:Punchayat Building Rules 2011 (Kerala), R. 61(1) Punchayat Raj Act 1994 (Kerala), Sections 233B, 232 and 233), RR. 2(1) (m), 2(1) (cu) and 34 – As for the permanent hot mix plant there is mandatory permission needed as from the punchayat as under section 223 of the act and also the permit from the Grama Panchayat also.

JUDGMENT :

Anil K. Narendran, J.

This appeal arises out of the judgment of the learned Single Judge dated 9.2.2016 in W.P.(C).No.38356/2016.

2. The appellants herein filed that Writ Petition seeking a writ of certiorari to quash Exts.P16 and P19 proceedings of the 2nd respondent, the Secretary of Manakad Grama Panchayat, and for other consequential reliefs.

3. By Ext.P16 proceedings, the 1st appellant was informed that his application for building permit for the purpose of establishing a bitumen mixing unit (hot mix plant/drum mix plant) in the plot having an extent of 2.72 Acres in Sy.Nos.170/7, 8, 9, 10 and 11 of Manakad Village in Thodupuzha Taluk, falls under 'Group I Hazardous' non-residential occupancy under Note (ii) to Rule 34(2) of the Kerala Panchayat Building Rules, 2011 (for brevity, 'the Building Rules') as described under Rule 34(3)(l) of the said Rules and as such, layout approval of the Chief Town Planner, as per Rule 61 of the said Rules, etc. are necessary for considering his request.

4. By Ext.P19 proceedings, the 1st appellant was informed that, since he has already made permanent construction of plant, building, etc. in the plot in question, such constructions will have to be regularised as per the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number before considering his application for D&O licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for brevity, 'the D&O Rules'). The 1st appellant was also informed that, since the construction of the plant and the building fall under hazardous occupancy and the area of the plot is more than one hectare, layout approval of the Chief Town Planner is required as per Rule 61 of the Building Rules. The reliefs sought for in the Writ Petition read thus;

"(i) call for the records leading upto Ext.P19 and issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Exts.P16 and P19;

(ii) declare that the defects noted by the 2nd respondent in Ext.P16 are wholly unsustainable;

(iii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the 2nd respondent to consider the application submitted by the petitioners for construction of the temporary sheds without insisting on the conditions enumerated in Ext.P16;

(iv) declare that the provisions of the Kerala Panchayat Building Rules, 2011 are wholly irrelevant for considering an application for D&O licence;

(v) issue a writ of mandamus or any other appropriate writ, direction or order commanding the 2nd respondent to pass fresh orders on Ext.P17 application for D&O licence without reference to the conditions enumerated in Ext.P16;

(vi) issue such other writ, direction or order as are just and necessary in the facts and circumstances of the case to meet the ends of justice."

5. The reliefs sought for in the Writ Petition were opposed by the 1st and 2nd respondents, the Grama Panchayat and its Secretary, by filing counter affidavit. The appellants filed a reply affidavit to the said counter affidavit. The 4th respondent/objector has also filed a counter affidavit, supporting the stand taken by the 1st and 2nd respondents.

6. After considering the rival contentions, the learned Single Judge dismissed the Writ Petition repelling the challenge made by the appellants against Exts.P16 and P19 proceedings of the 2nd respondent/Secretary.

7. Feeling aggrieved by the judgment of the learned Single Judge, the appellants/writ petitioners are before this Court in this appeal.

8. We heard Sri. S. Sreekumar, learned Senior Counsel for the appellants/writ petitioners, Sri. P.Raveendran, learned Senior Counsel for the 1st and 2nd respondents/Grama Panchayat and its Secretary, Sri. T. Naveen, learned Standing Counsel for the 3rd respondent/Kerala State Pollution Control Board and also Sri. Rajan Vishnu Raj, learned counsel for the 4th respondent/objector.

9. The pl



















































































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