Sreekandan B vs Vellarada Grama Panchayat Panachumoodu P.O, Thiruvananthapuram 695505

T.R.Ravi, J.

The petitioner has set up a temporary hotmix plant after obtaining Ext.P1 consent from the Pollution Control Board. He also obtained Ext.P2

acknowledgement certificate under the provisions of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (hereinafter referred to as

the 2019 Act). As per Ext.P2 certificate, the petitioner is exempted from obtaining any permission under any of the State enactments for a period of

three years. The petitioner was issued Ext.P3 by the 2nd respondent Panchayat directing him not to operate the hotmix plant without obtaining licenses

under Sections 232 and 233 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the 1994 Act). According to the petitioner, in view of

Ext.P2 certificate, he is not obliged to obtain any licence under any of the provisions of the the 1994 Act for a period of three years. The writ petition

has been filed challenging Ext.P3 issued by the Panchayat.

The 3rd respondent in the writ petition is a neighbour, who has property adjacent to the site where the hotmix plant is put up by the petitioner. The

3rd respondent has filed a counter affidavit wherein it is stated that the area is a thickly populated area and the hotmix plant is a mega construction

with high profile equipments operating on 130 HP and that it is an industry specified in the first schedule to the Industries Development and Regulation

Act, 1951 as contemplated in Section 7 of the Micro Small and Medium Enterprises Development Act, 2006. According to the 3rd respondent, the

hotmix plant is beyond the domain of 2019 Act which had adopted by incorporation and reference the Micro Small and Medium Enterprises

Development Act, 2006. According to the 3rd respondent, the petitioner is obliged to obtain a permission for development of the land and permit for

setting up the hotmix plant and to obtain the D&O licence as mandated by the Kerala Panchayat Raj Act. It is further submitted that Ext.P2

acknowledgement certificate has been wrongly issued, since it is not relating to an industry to which the 2019 Act applies.

The petitioner has filed a reply affidavit in which it is stated that the petitioner is operating a small enterprise as defined in Section 7 of the Micro

Small and Medium Enterprises Development Act, 2006 and can be classified under Item 1(B) and 19(40) of Schedule 1 of the Industries Development

and Regulation Act, 1951. It is also submitted that the petitioner has already applied to the 2nd respondent under Rule 68 of the Kerala Panchayat

Building Rules, 2019 seeking permission to install the hotmix plant and the application is produced as Ext.P6. It is submitted that in view of the

judgment of the Full Bench of this Court in Tomy Thomas v. State of Kerala reported in [2019 (3) KLT 987], the 2nd respondent cannot refuse such

permission, since the petitioner has already secured consent from the Pollution Control Board.

The petitioner relies on the decision in Jolly George v. George Elias and Associates reported in [2022 (1) KLT 8] wherein a Division Bench of this

Court held that on a conjoint reading of Group I under Rule 25 of the Panchayat Building Rules, 2019 and the provisions of Rule 68 it is categoric and

clear that any construction of hotmix plant for a period of six months or below requires only a permission from the Secretary of the Grama Panchayat.

It is further held that if the hotmix plant is to be installed for a period beyond six months, it requires a compliance of all the relevant provisions of the

Building Rules, 2019 including a building permit. The Court held that the legal position under the Building Rules, 2019 has changed drastically from

what was available under the Building Rules, 2011 and the permanent nature of a hotmix plant is to be identified now on the basis of the period for

which the plant is to be installed rather than the capacity or the permanent fixtures to be employed for the setting up of the plant. In the light of the

Division Bench judgment, the counsel for the petitioner submits that the contentions raised by the 3rd respondent are no longer relevant and all that is

to be looked into is whether the hotmix plant which is being set up by the petitioner is a temporary one, in which case all that is required is a permission

from the Secretary and nothing more. In the light of the Division Bench judgment as submitted by the counsel for the petitioner, the order Ext.P3

which proceeds on the basis that setting up of the hotmix plant requires the licence from the Panchayat, without which there will be violation of the

provisions of sections 232 and 233 of the 1994 Act, and further directs the petitioner to start the work only after getting the licence required for

installation of the machineries for the tar mixing plant under the 1994 Act, cannot be legally sustained. Since the law requires only a permission from

the Secretary and since the Pollution Control Board has already granted consent to establish, there is no further requirement under the law for any

other licenses. The petitioner has no case that they are seeking to establish a hotmix plant of permanent nature. Ext.P6 application submitted by the

petitioner to the Secretary specifically requests for permission to put up a temporary asphalt hotmixing plant. By Ext.P7, the Panchayat Committee

rejected Ext.P6 application on the ground that if the same is permitted to be put up, there will be health issues to the public. The petitioner has

produced Ext.P8, which is an interim order issued by the Tribunal for Local Self Government Institutions, Thiruvananthapuram in an appeal filed by

the petitioner challenging Ext.P7. In Ext.P8, the Tribunal has stayed the decision of the Panchayat until further orders and had ordered that the

Panchayat shall not interfere with the erection and installation of the hotmix plant by the petitioner. At the time hearing, the petitioner has also placed

before me the final order issued in the above said appeal, whereby the Tribunal has set aside Ext.P7 decision of the Panchayat and directed the

Panchayat to issue necessary permission under Section 68 of the Panchayat Building Rules, 2019 for erection and installation of a temporary hotmix

plant in the property on the basis of the application dated 6.10.2020. In the light of the subsequent events and the judgment of the Division Bench in

Jolly George (supra), the writ petition is liable to be allowed.

In the result, the writ petition is allowed. Ext.P3 is set aside. The 2nd respondent shall issue necessary permission as contemplated in the

judgment of the Division Bench in Jolly George (supra) and as directed by the Tribunal in the judgment in Appeal No.506/2021, on the basis of Ext.P6

application submitted by the petitioner for a temporary hotmix plant immediately, if not already issued, within three weeks from the date of receipt of a

copy of this judgment. This judgment will not stand in the way of the 3rd respondent approaching the appropriate authorities, if there is any attempt to

convert the temporary hotmix plant into a permanent hotmix plant, without the required licenses as held in the judgment of the Division Bench above

said.