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2018 DIGILAW 815 (KER)

Silvy v. Koovappady Grama Panchayat

2018-10-11

SHAJI P.CHALY

body2018
JUDGMENT : This Writ Petition is filed by the petitioner seeking the following reliefs: “i. To call for the records leading to Ext.P7 resolution of the 2nd respondent and quash the same by issuing a writ of certiorari; ii. To call for the records leading to Ext.P6 notice of the 1st respondent and quash the same by issuing a writ of certiorari; iii. To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to issue building permit to the petitioner as per application dated 01.04.2015 as evidenced by Ext.P3(a) within a stipulated time; and iv. To grant such other reliefs which this Hon’ble Court deems fit and proper in the circumstances of the case.” 2. Material facts for the disposal of the Writ Petition are as follows: 3. Petitioner applied for a building permit before the 1st respondent for starting an industrial unit. Petitioner had already obtained licence from Single Window Clearance Board for starting the unit. The application for building permit filed by the petitioner was not considered by the Panchayat for a pretty long time, and thereupon, petitioner has approached this Court and secured a judgment in W.P.(C) No.33937 of 2016, directing the Secretary of the Grama Panchayat to take a decision in the application submitted by the petitioner, evident from Ext.P5 judgment. Thereupon, the application was considered by the Panchayat Committee as per Ext.P7 minutes dated 13.03.2017, which was communicated to the petitioner as per Ext.P6 order dated 21.03.2017 by the Secretary of the 1st respondent. It is thus challenging Exts.P6 and P7, this Writ Petition is filed. 4. A detailed counter affidavit is filed by respondents 1 and 2, justifying their stand adopted in Exts.P6 and P7. The paramount contention is that, the petitioner has got a remedy to challenge Exts.P6 and P7 by preferring appropriate proceedings before the Tribunal for Local Self Government Institutions. That apart, it is submitted that, the permit application was submitted by the petitioner to start a plastic re-processing unit. While so, objections were raised from various quarters against the grant of permit, stating that, establishment of the unit in a thickly populated area where they are living, would cause unbearable hardships to the people of the locality, evident from Ext.R1(a) complaint preferred before the District Collector. 5. While so, objections were raised from various quarters against the grant of permit, stating that, establishment of the unit in a thickly populated area where they are living, would cause unbearable hardships to the people of the locality, evident from Ext.R1(a) complaint preferred before the District Collector. 5. The application submitted by the petitioner for establishment of the unit was considered by the Panchayat Committee in its meeting held on 20.11.2013. After considering the entire aspects on merit, it was decided not to grant licence to the unit. It was also decided to intimate the said decision to the General Manager, District Industries Centre. Other contentions are also raised justifying the action of the Panchayat Committee. 6. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the Writ Petition. 7. I have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents and perused the pleadings and the documents on record. 8. The controversy revolves around Exts.P7 and P6 decision of the 2nd respondent and the communication issued by the Secretary of the 1st respondent Panchayat, respectively. The paramount contention advanced by learned counsel for the petitioner is that, so far as the building permit application is concerned, the same is to be considered by the Secretary of the Panchayat, who alone is vested with powers in accordance with the Kerala Panchayat Building Rules, 2011 (for short, ‘the Rules, 2011’). However, for reasons best known, the application for the building permit was considered by the 2nd respondent and there is no power vested with under the Building Rules, 2011, for the 2nd respondent to consider a building permit application. Even though petitioner has sought the permit to construct a building to start an industry, the Panchayat Committee is not at liberty to reject the building permit application. It is also pointed out that, whether to grant permission for running a unit is a subsequent act to be undertaken by the Secretary of the Panchayat and the Panchayat in accordance with the provisions of the Kerala Panchayat Raj Act, 1994. Merely because the people of the locality have raised objections, there is no power vested with the Secretary of the Panchayat or the Panchayat Committee to take into account such objections raised illegally and then decline the building permit application submitted by the petitioner. 9. Merely because the people of the locality have raised objections, there is no power vested with the Secretary of the Panchayat or the Panchayat Committee to take into account such objections raised illegally and then decline the building permit application submitted by the petitioner. 9. On the other hand, learned Standing Counsel for the respondents submitted that, the people of the locality were apprehensive of the starting of the unit which will cause inconvenience to them, and it was due to the public protest, the application submitted by the petitioner was declined by the Committee of the Panchayat. 10. I have evaluated the rival contentions put forth by the respective counsel. On a perusal of the provisions of the Kerala Panchayat Building Rules, 2011, it is specific and clear that a building permit application is to be considered by the Secretary of the Grama Panchayat. There is no case for the respondents that the building permit application was considered by the Secretary. The circumstances under which the Committee has taken such a decision, overlooking the powers of the Secretary are not discernible from Ext.P7 minutes. The probable reason would be that the petitioner has submitted the building permit application to start an industrial unit, and therefore, as per the provisions of S.233 read along with the Rules constituted thereto of the Kerala Panchayat Raj Act, 1994, the Committee has got power to allow or decline D.&O. licence and permit for establishment of the unit. In my considered view, the powers conferred under Sections 232 and 233 of Act, 1994 are entirely different from the powers conferred under the Kerala Panchayat Building Rules, 2011. There is no power vested with the Secretary of the Panchayat to decline a licence under the Rules, 2011, on the ground that there is public protest against the construction of the building. The building permit application submitted by an applicant will have to be considered by the Secretary in accordance with the provisions contained under the Rules, 2011. It is also evident from Exts.P6 and P7 that the Secretary has not undertaken any such exercise. The sole reason assigned in Ext.P7 by the Panchayat Committee is that, there is public protest. In my considered view, the reasons contained under Ext.P7 cannot be sustained under law. That apart, the Committee is not vested with powers under the Rules, 2011, to consider a building permit application. 11. The sole reason assigned in Ext.P7 by the Panchayat Committee is that, there is public protest. In my considered view, the reasons contained under Ext.P7 cannot be sustained under law. That apart, the Committee is not vested with powers under the Rules, 2011, to consider a building permit application. 11. Therefore, taking into account all these legal and factual circumstances, I am of the considered opinion that, Exts.P7 and P6 decision and the order passed by the Committee of the 1st respondent and the Secretary, respectively, suffers from the vice of arbitrariness and illegality, liable to be interfered with by this Court under Article 226 of the Constitution of India. Therefore, I quash Exts.P6 and P7 and direct the Secretary of the 1st respondent Panchayat to consider the building permit application submitted by the petitioner at the earliest, and at any rate, within one month from the date of receipt of a copy of this judgment, if required, after securing participation of the petitioner. The Writ Petition is disposed of accordingly.