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2021 Supreme(Online)(KER) 40578
HIGH COURT OF KERALA
P. B. Suresh Kumar, J
GEORGE ELIAS AND ASSOCIATES, – Appellant
Versus
KALLOORKAD GRAMA PANCHAYAT, – Respondent
WP(C)/10381/2020
Sri.V.PHILIP MATHEW, SRI.GIBI.C.GEORGE, SRI.M.H.HANIL KUMAR, SRI.RAJAN VISHNURAJ, SRI.HARISH VASUDEVAN, SRI.NAVEEN, SC, SRI.K.J.MANURAJ, GP
A portable hot mix plant requires neither a license nor permission from the Panchayat, provided it adheres to Pollution Control Board regulations.
Headnote:
Licensing - Hot Mix Plant - Kerala Panchayat Raj Act 1994, Rules of 1996, Kerala Micro Small and Medium Enterprises Facilitation Act - The court clarified that a portable hot mix plant does not require a Panchayat license, emphasizing interpretations of Sections 232 and 233 of the Act.
Fact of the Case:
A firm sought permission to establish a portable hot mix plant, arguing that it did not need a Panchayat license after obtaining approval from the State Pollution Control Board. The Panchayat rejected the application, citing health concerns and lack of proper permission.
Finding of the Court:
The court ruled that under existing legal precedents, particularly Janardhanan Nair, a portable hot mix plant does not require Panchayat permission, and emphasized compliance with the State Pollution Control Board's conditions for operational standards.
Issues: Whether a portable hot mix plant requires a license or permission from the Panchayat and the interpretation of relevant sections of the Kerala Panchayat Raj Act.
Ratio Decidendi: The court determined that a portable hot mix plant does not necessitate a license under Sections 232 and 233 of the Act and reaffirmed the interpretation set in prior judgments regarding such installations.
Final Decision: The petitioner was permitted to apply for permission to install the hot mix plant under Rule 68, with directed compliance by the Panchayat.
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.
