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2021 Supreme(Online)(KER) 12537
HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
JIBY A.K. – Appellant
Versus
GEORGE ELIAS AND ASSOCIATES – Respondent
WA/756/2021
HARISH VASUDEVAN RAJAN VISHNURAJ
Temporary constructions require permission from the Secretary under specific rules, distinguishing them from permanent constructions needing formal licensing.
Headnote:
License - Writ Appeals - Kerala Panchayat Raj Act, 1994 Sections 232, 233 - Court recognized that licenses are necessary for factory construction but clarified the scope of temporary constructions as defined by updated rules.
Fact of the Case:
The petitioner sought a declaration that no license was needed to operate a hot mix plant under the Kerala Panchayat Raj Act, relying on a certificate from the Micro Small and Medium Enterprises Facilitation Act.
Finding of the Court:
The court affirmed that while licenses are generally required for factory establishment, the petitioner only needs to apply for permission for temporary setups under recent amendments to building rules.
Issues: Whether the petitioner requires a license from the Grama Panchayat for installing a temporary hot mix plant and the interpretation of relevant rules.
Ratio Decidendi: The necessity of a license from the Grama Panchayat under the Kerala Panchayat Raj Act is contingent on whether the plant is classified as temporary or permanent under applicable building rules.
Final Decision: The writ appeals are dismissed, allowing the petitioner to apply for temporary permission within two weeks.
J U D G M E N T
Shaji P. Chaly, J.
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 , 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 inTomy Thomas v. 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 , 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 judgment, the Secretary of the Panchayat wa
