IMPORTANT POINT
The absence of a valid layout approval and required access width renders the operation of a metal crusher unit illegal, necessitating the cancellation of its licence.

JUDGMENT :

Bechu Kurian Thomas, J.

1. The functioning of a metal crusher unit situated on the adjacent property of the petitioner is questioned in this writ petition. Petitioner challenges Ext.P33 order of the Tribunal for Local Self-Government Institutions, declining to interfere with the licence granted to conduct the aforesaid metal crusher and has also sought a declaration that the said establishment is not entitled to get a licence.

2. Petitioner resides adjacent to a metal crusher unit named 'M/s.Robust Granites' presently conducted by the seventh respondent. According to the petitioner, the said industry was started in 1993 by one Sri. Najeeb with a limited capacity of 40HP motor, that too as a secondary metal crusher unit. Petitioner alleges that after the establishment was sold to the eighth respondent, he applied for a building permit as per Ext.P2 dated 28-05-2008, for construction of a building for installing a primary crusher unit of 45 HP in Survey No. 439/5 of Kizhakkambalam Village. The said application was forwarded to the Chief Town Planner (for short 'CTP') who granted approval as per Ext.P9 on 15.10.2010 for the layout and usage with the condition to provide a 7-metre access width to the establishment. Petitioner alleges that the said 7-metre access width is not available and the establishment is being carried on illegally.

3. The eighth respondent, in the meantime, sold the unit to the seventh respondent, who is presently running the establishment, and the mandatory access width is unavailable. It is also pleaded that the minimum open area of 7.5 metres required around the building is yet to be maintained and therefore the conduct of the primary crusher is illegal. When the Panchayat had, without verifying any of the relevant factors, granted a licence, petitioner questioned the same, initially before the Panchayat Committee and later before the Tribunal. However, by Ext.P33 order, the Tribunal rejected the challenge. Petitioner alleges that the seventh respondent has illegally constructed a huge building without authority and has expanded his industry without complying with the relevant mandatory provisions while the Secretary of the Panchayat has, without verifying any of the statutory requirements, granted permission to conduct the establishment. Petitioner has also pleaded that permissions have been obtained by the seventh respondent by fraud and misrepresentation and in collusion with the fifth respondent and hence the licences issued ought to be cancelled under Section 236(9) of the Kerala Panchayat Raj Act, 1994 (for short ‘the Act’).

4. The seventh respondent in his counter affidavit stated that the crusher unit was started by Sri. Najeeb in the year 1993, at a time when the Panchayat Building Rules were not in force. It is pleaded that in 1996, the unit was sold to the eighth respondent, from whom the seventh respondent purchased it in 2012. It is also stated that the allegation of encroachment into revenue land no longer survives, while the allegations of lack of open space and access width were denied. The report of the Senior Town Planner dated 24-01-2015 was produced as Ext.R7(f) to justify the availability of open space. The seventh respondent further pleaded that, though the petitioner had filed various complaints, the Government directed the Panchayat to take a decision by its communication dated 30-12-2015 produced as Ext.R7(h) and thereafter, the Panchayat considered the matter and granted licence to the seventh respondent. It was also stated that the Tribunal had considered the entire matter in the correct perspective and there are no reasons to interfere with the order of the Tribunal.

5. In the counter affidavit filed by respondents 4 and 5, it is stated that M/s.Robust Granites started in the year 1993 and the licence has been renewed till 30-06-2023. It is also stated that the allegation of trespass into road puramboke has now been resolved with the Kunnathunadu Panchayat granting a lease