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2017 DIGILAW 1089 (KER)

George v. Vannappuram Grama Panchayat

2017-07-27

K.VINOD CHANDRAN

body2017
JUDGMENT : The petitioner in W.P.(C) No.9597 of 2017 is an entrepreneur who has been consistently before the Panchayat and this Court and various other authorities for establishment of a M-Sand and Hollow-brick unit. The same is opposed by respondents 3 and 4. Respondent No.4 along with another have filed W.P.(C) No.4576 of 2017 seeking a direction to consider the representation against the establishment of the said unit. The parties are referred to from their status in W.P.(C) No.9597 of 2017. 2. As has been rightly pointed out by the learned Counsel appearing for the petitioner, the documents from Exhibits P1 to P26 need not be referred to at this point, since the entire controversy has been settled by Exhibit P27 judgment. Exhibit P27 considered a series of Writ Appeals filed against the common judgment in Writ Petitions by both the petitioner and the party respondents. The issue was insofar as a Consent to Establish haying been granted by the Kerala State Pollution Control Board [for brevity “PCB”] for establishing a Hollow-brick and M-Sand unit. The contention was with respect to the unit being within the prohibited distance as measured; with reference to the capacity of the motor used within the unit. By Exhibit P27 judgment, this Court found that the Consent to Establish as issued by the PCB, is proper and there would be no interference made to the same. In the course of the judgment, the Civil Suit which was filed by the party respondents, was also referred to. Similar contentions raised before the Civil Court was rejected and the suit stood dismissed. 3. The Consent to Establish has the approval of the Division Bench of this Court. The petitioner, armed with Exhibit P27, and a building permit issued by the local authority; constructed the building and approached the local authority for numbering of the building. The local authority issued Exhibit P29, which, according to the learned Standing Counsel, is only a direction to cure the defects and not one rejecting the application as such. The objectors, who appear through learned Counsel in both the Writ Petitions, submit that the petitioner has not, till date, obtained a permission to establish under S.233 of the Kerala Panchayat Raj Act, 1994 [for brevity “KPR Act”]. It is submitted that the said application has not even been made till date and the application was only for the construction of a building. It is submitted that the said application has not even been made till date and the application was only for the construction of a building. The learned Counsel appearing for the petitioner, however, would refer to Exhibit P33 to contend that the Council had permitted the establishment. 4. Exhibit P33 is a decision taken by the Council, allowing the building permit. It indicates that the application made was also for the purpose of a permit for building a Hollow-brick unit. On the basis of Exhibit P33 decision, the Secretary also has issued a building permit; based on which the construction has been proceeded with and completed. Looking at the decision at Exhibit P23, it cannot be said to be a decision taken under S.233 of the KPR Act. The issuance of building permit is within the exclusive premise of the Secretary of the local authority and it need not have been referred to the Council. The Panchayat committed a mistake insofar as referring it to the Council and the Secretary issuing a permit on the basis of the decision taken by the Council. Having issued the permit, at this stage this Court need not further look into whether the building permit was issued properly or not. 5. Building permit has been issued by the Panchayat and based on which construction has also been carried out. The mistake is insofar as the petitioner having not applied for a permission to establish, as provided under S.233 of the KPR Act; after which alone building permit could be applied for and then a D&O Licence sought as provided under S.232 of the KPR Act. The petitioner also cannot take a contention that since the building permit has been granted, there can be no further refusal of a permission to establish. The permission to establish was required for applying for a building permit as mandated in the statute and there cannot be any sustainable claim of estoppel against the specific terms of the statute. 6. Looking at Exhibit P29, the defects noticed are the absence of a permanent NOC from the DMO, a final NOC from the Fire and Rescue Services, the installation permit and the pendency of W.P.(C) No.4576 of 2017. 6. Looking at Exhibit P29, the defects noticed are the absence of a permanent NOC from the DMO, a final NOC from the Fire and Rescue Services, the installation permit and the pendency of W.P.(C) No.4576 of 2017. Neither the learned Standing Counsel for the Panchayat nor the learned Counsel for the objectors point out any provision which mandates a permanent NOC from the DMO for the purpose of numbering the building. There is also no requirement for producing a final NOC from the Fire and Rescue Services. The further objection with respect to the pendency of the Writ Petition would also no longer survive, since the same is being disposed of today. 7. The only sustainable objection in Exhibit P29 is with respect to the installation permit, which, obviously, is a permission under S.233 of the KPR Act. The said application having not been filed, it is incumbent upon the petitioner to make an application before the Panchayat. The learned Counsel for the petitioner submits that an application would be made within a period of one week from today. On such application being made, an inspection shall be carried out by the Secretary with notice to the petitioner and the objectors and a report filed before the Council, by the Secretary, as mandated in sub-section (3) of S.233 of the KPR Act. On filing the application, the Secretary shall expeditiously carry out inspection and file a report, at any rate, within a period of six weeks. The Council, on receipt of the report; shall consider the application with notice to the petitioner and the party respondents, affording an opportunity of hearing and conclude the proceedings within one month from the date of receipt of the report of the Secretary. The Panchayat shall consider the application keeping in mind the observations in Exhibit P27 judgment and also considering the Consent to Establish, issued by the PCB. The Writ Petitions would stand disposed of as above. No costs.