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2021 Supreme(Online)(KER) 19686
HIGH COURT OF KERALA
P. B. Suresh Kumar, J
GEORGE ALIAS AND ASSOCIATES – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/17920/2020
SRI.V.PHILIP MATHEW, SRI.GIBI.C.GEORGE, SRI.M.H.HANIL KUMAR, SRI.RAJAN VISHNURAJ, SRI.HARISH VASUDEVAN, SRI.NAVEEN, SRI.K.J. MANURAJ, G. RANJITHA, SRI.NAVEEN.T, SRI.V.HARISH
A temporary hot mix plant deemed portable does not require a Panchayat license or permits if it meets conditions established in relevant statutes and rules.
Headnote:
Regulation - Licensing of Industries - Kerala Panchayat Raj Act, 1994 - Sections 232, 233
Fact of the Case:
The petitioner operates a portable hot mix plant and obtained consent from the State Pollution Control Board. Their application for a Panchayat license was rejected, leading to challenges regarding the necessity of permits and licenses.
Finding of the Court:
The court established that the hot mix plant was portable and did not require a license under Section 232 or permission under Section 233 of the Act, as long as it is not operated permanently or requires construction.
Issues: Whether the petitioner required a license or permits from the Panchayat for operating a portable hot mix plant.
Ratio Decidendi: The interpretation of 'portable' hinted at flexibility in structural requirements; a hot mix plant for temporary use does not constitute a building needing the same compliance as permanent structures.
Final Decision: The petitioner was permitted to apply for temporary installation of the hot mix plant under Rule 68 of the Kerala Panchayat Building Rules.
JUDGMENT
The issues arising for consideration in these matters being closely interlinked, they are disposed of by this common judgment. The parties and documents are referred to in the judgment, unless otherwise mentioned, as they appear in W.P.
(C) No.10381 of 2020.
2. The petitioner is a firm engaged in executing road works on contract basis. They own a portable Hot Mix Plant. For the purpose of installing the same on a land within the limits of the first respondent Panchayat, the petitioner obtained Ext.P2 consent from the State Pollution Control Board. It is stated by the petitioner that though licence of the Panchayat is not required for establishing and operating a portable hot mix plant, by way of abundant caution, they preferred Ext.P3 application for licence before the panchayat on 7.3.2020 in terms of the Kerala Panchayat Raj (Issue of Licence to Factories, Trades, Entrepreneurship activities and other services) Rules, 1996 (the Rules) framed under the Kerala Panchayat Raj Act , 1994 (the Act). The said application was rejected by the Committee of the Panchayat as per Ext.P11 decision, stating among others, that the petitioner has not obtained permission of the Panchayat under Section 233 of the Act for the purpose of installing the hot mix plant and that the operation of the hot mix plant would cause health issues to the people in the locality. The writ petition is instituted challenging Ext.P11 decision of the Committee of the Panchayat. The petitioner also seeks a declaration that they have obtained deemed licence under Rule 12(3)(c) of the Rules.
3. W.P.(C) No.17920 of 2020 was instituted by the petitioner thereafter, alleging that they have obtained Acknowledgement Certificate on 11.05.2020, in terms of the provisions of the Kerala Micro Small and Medium Enterprises Facilitation Act , 2019. The prayer in the said writ petition is for a declaration that the petitioner is not required to obtain any permission/licence from the Panchayat for the purpose of establishing and operating the portable hot mix plant, in the light of the Acknowledgement Certificate. In W.P.(C) No.17920 of 2020, the petitioner also seeks directions to the Panchayat and its President to refrain from interfering with the operation of the hot mix plant.
4. A counter affidavit has been filed by the Panchayat in W.P.(C) No.10381 of 2020 stating, among others, that the petitioner intends to install a huge hot mix plant permanently in the property referred to in the writ petition; that the petitioner needs to obtain permission of the Panchayat under Section 233 of the Act for the said purpose; that the petitioner has not filed application for licence in the form prescribed under the Rules; that the application referred to by the petitioner in the writ petition is one preferred by them on a white paper; that the said application was not accompanied by the requisite documents including documents to prove the ownership of the land; that in so far as the application preferred by the petitioner for licence was defective, the petitioner is not entitled, at any rate, the benefit of the deemed licence in terms of the provisions of the Rules. A reply affidavit has been filed by the petitioner to the said counter affidavit stating that the petitioner does not intend to have the hot mix plant permanently at the place proposed by them and the same would be relocated depending on the works of the petitioner. It is also stated by the petitioner in the reply affidavit that the petitioner does not intend to put up any construction in the site and the hot mix plant would be fixed at the site using nuts and bolts. A person residing near the site of the hot mix plant, who got himself impleaded as the additional seventh respondent in W.P.(C) No.10381 of 2020 has filed a counter affidavit supporting the stand taken by the Panchayat and stating, in addition, that the hot mix plant is likely to cause health issues to the people residing in the neighbourhood.
