Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 1039

IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Jolly George S/o Late George – Appellant
Versus
George Elias and Associates – Respondent
W.A. Nos. 607, 741, 756 of 2021
Decided On : 09-12-2021

Advocates:
Advocate Appeared:
For the Appellants : Rajan Vishnuraj, Harish Vasudevan.
For the Respondents: V. Philip Mathews, Amal Parthasaradhy, Tek Chand.

Point of Law: 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.

Headnote:
Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 - Kerala Panchayat Raj Act, 1994 - Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship activities and other services), Rules, 1996 – Regularization of construction - 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, - Grama Panchayat has decided not to grant permission to establish the hot mix plant to the petitioner.
Finding of the Court:
A permission of 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 - 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 - 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.
Result: Petition dismissed

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

A permission from the Secretary of the Grama Panchayat is required to install a hot mix plant of a temporary nature for a specified period, typically up to six months, as per Rule 68 of the Kerala Panchayat Building Rules, 2019 (!) (!) .
If the permission is granted solely for a temporary hot mix plant, no additional permissions or licenses are necessary, provided the installation adheres to the conditions of the permission (!) (!) (!) .
A hot mix plant intended to operate beyond six months is classified as a permanent or long-term construction under the rules, requiring compliance with all relevant building and zoning regulations, including obtaining a regular building permit and necessary licenses under the Kerala Panchayat Raj Act, 1994, and the Kerala Panchayat Building Rules, 2019 (!) (!) .
The period of operation determines the classification: installations for six months or less are considered temporary and require only a permission under Rule 68, whereas those exceeding six months are deemed permanent and require full compliance with the applicable building regulations (!) (!) (!) .
Even if a construction is unauthorized, the Secretary has the authority to regularize it under Rule 92 of the Kerala Panchayat Building Rules, 2019, provided it does not violate the rules (!) .
If a party insists on establishing a permanent hot mix plant, they must submit an application for regularization of the existing construction and obtain the requisite permissions (!) (!) .
The decision-making authority regarding permissions and regularization lies with the Secretary of the Grama Panchayat, who must consider each application in accordance with the law and applicable rules (!) (!) .
The installation of a hot mix plant of a temporary nature, with proper permission, can be dismantled or demolished by the Secretary if conditions are not complied with, emphasizing the temporary nature of such installations (!) (!) (!) .
The legal framework distinguishes between temporary installations (permitted for up to six months) and permanent structures, which are subject to more stringent approval processes (!) (!) .

Please let me know if you need further assistance or specific legal interpretations.

JUDGMENT :

SHAJI P. CHALY, J.

1. 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.

2. 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 7th 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.

3. 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 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 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.

4. 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.

5. It was further held that on account of the very same reason, it is unnecessary to examine the correctness of the decision of the 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.

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

7. 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 judgmen

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Judicial Analysis

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2021 Supreme(Ker) 1039

IN THE HIGH COURT OF KERALA AT ERNAKULAMS. MANIKUMAR, SHAJI P. CHALY, JJ.Jolly George S/o Late George – AppellantVersusGeorge Elias and Associates – RespondentW.A. Nos. 607, 741, 756 of 2021Decided On : 09-12-2021

Point of Law: 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.

Cases Referred (2)

Judicial Analysis

IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Jolly George S/o Late George – Appellant
Versus
George Elias and Associates – Respondent
W.A. Nos. 607, 741, 756 of 2021
Decided On : 09-12-2021