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2018 Supreme(Ker) 152

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, J.
Joice Joseph – Petitioner
Vs.
Ayarkunnam Grama Panchayath Panchayath Office, Ayarkunnam P.O., & Ors. – Respondents
W.P. (C).No. 19935 of 2017
Decided On : 05-03-2018

Advocates Appeared:
For the Petitioner: Sri. Rajan Vishnuraj Sri. Harish Vasudevan
For the Respondents: Sri. Sebastian Thomas, SC, Ayarkunnam Grama Panchayat, Dilip S, Government Pleader, Sri. T.Naveen SC, Kerala State Pollution Control Board, Sri. Abraham Vakkanal (Sr.), Sri. Dijo Sebastian, Smt. Vineetha Susan Thomas

Headnote:Panchayat Building Rules 2011 (Kerala), Rr. 61(4), 4, 7 & 11 - Building permit granted without following the amendments that had been brought in to Rule 61 of the Kerala Panchayat Building Rules that which is mandatory to ensure an access road width of at least 7 metres to the property in question to establish M-Sand unit - All the applications should be considered by the law applicable on the date of permission granted by the authorities - Secretary of the Panchayat have no authority to issue building permit based on provision of law that which is not considered by the Chief Town Planning Officer.

JUDGMENT :

As the issue involved in both these writ petitions is similar, they are taken up for consideration together and disposed by this common judgment.

2. The petitioners in both these writ petitions are residents in Ward No.20 of Ayarkunnam Grama Panchayat in Kottayam District, where, the 6th respondent has taken steps to establish an M-Sand unit installing a Vertical Shaft Impactor Machine in the property owned by him and comprised in Sy. Nos. 209/8, 209/8-1 and 215/1 of Ayarkunnam Village. In the writ petition, it is the case of the petitioners that the 6th respondent has taken steps to establish the M-Sand unit without obtaining the necessary permission under Section 233 of the Kerala Panchayat Raj Act, 1994, for establishing the unit in question, and further, that the petitioners had, without obtaining the said permission under Section 233, proceeded to obtain a building permit from the respondent Panchayat, and thereafter a Dangerous and Offensive license [D&O license] for conducting the M-Sand unit. In the writ petition, the building permit as well as the D & O license granted to the 6th respondent are impugned, as are the Resolutions of the respondent Panchayat which entailed the grant of the D & O license to the 6th respondent. It is the definite case of the petitioners that, while the 6th respondent had chosen to apply for the necessary permissions and licenses that were required for starting an M-Sand unit in his property, by preferring an application before the Kerala Single Window Clearance Board, he had subsequently abandoned the said route, and had chosen to separately approach the statutory authorities entrusted with the task of granting permissions and licenses for the M-Sand unit. It is stated that, while the 6th respondent had succeeded in getting some of the approvals and permissions, he had not obtained a permission under Section 233 of the Kerala Panchayat Raj Act, 1994, prior to approaching the Panchayat for the D & O license. It is also pointed out, in connection with the building permit granted to the 6th respondent, that the said respondent had obtained the permit on 15.06.2015, when, the law, as it stood on that date, mandated that a building permit could be granted for the purposes of establishing an M-Sand unit only if the width of the road leading to the property was at least 7 metres. It is stated that the width of the road in the instant case being less than 7 metres, the building permit granted to the 6th respondent itself is in violation of the statutory provisions, and therefore, illegal. The prayer sought for in the writ petitions is essentially to quash the building permit, the D & O license and the Resolutions passed by the Panchayat leading up to the D & O license, on the ground that they have been issued in violation of the statutory provisions under the Kerala Panchayat Raj Act as also Rule 12 of the Kerala Panchayat Building Rules, 2011.

3. Counter affidavits have been filed on behalf of the 6th respondent in both these writ petitions, wherein, documents have been produced to show that, while the said respondent had preferred an application before the Kerala Single Window Clearance Board for obtaining the necessary permission and consents from various statutory authorities entrusted with the regulation of the activities proposed by the said respondent, the Single Window Clearance Board had, in its first meeting held to consider the application of the said respondent, intimated the various statutory authorities of the proposal of the said respondent to establish an M-Sand unit, and had directed them to take decisions in the matter and report their decisions to the Single Window Clearance Board. Thereafter, in the subsequent meeting, while the only objection received by the Board was from the Office of the Chief Town Planner, which indicated that certain documents had yet to be obtained from the 6th respondent, for considering his application for the necessary permission to start the u





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