SALU SUGATHAN SOMENI Vs. NOUSHAD K.

JUDGEMENT

(1.) The above appeal arises from a common judgment of the learned Single Judge in two writ petitions filed by the respondents 1 to 4 herein. W.P(C) No.22117 of 2018 challenged Ext.P12 order of the Tribunal for Local Self Government Institutions, Thiruvananthapuram [for brevity 'the Tribunal'] from which the above appeal arises. W.P(C) No.35055 of 2016 was filed by respondents 1 to 4 in this appeal and another, seeking a direction to the respondent-Panchayat not to grant permit/consent to establish a M-Sand Plant in the land possessed by the other party respondents in the appeal.

(2.) Learned Senior Counsel Sri.T.Krishnanunni, instructed by Smt.Mini.M.R, points out that a consent to establish has already been issued and in any event, there can be no permanent injunction against the respondent-Panchayat for consideration of a fresh consent to establish. The learned Senior Counsel would assert that by virtue of the amendments made to the Kerala Panchayat Raj Act, 1994 (Act of 1994, hereafter), on an application made, the Panchayat has to necessarily grant a permit, if necessary, with conditions imposed to abate any nuisance or pollution. It has been declared by a Full Bench of this Court in Tomy Thomas v. State of Kerala [2019 (4) KHC 553] that 'from the date of enforcement of the amendments from 20/10/2017, it cannot be said that Village Panchayats have got primacy of power to take an independent decision to reject the applications for permission/licence under provisions of the Act and the Licensing Rules, for construction or for establishment of any factory, workshop or work place'.

(3.) The learned Single Judge found that the building permit issued by the Panchayats as of now is a 'commercial building' under Group-F of the Kerala Panchayat Building Rules, 2011 (Rules of 2011, hereafter) and an 'industrial occupancy' under Group-G1 has different parameters. It was held that the requirement of an establishment permit under Sec. 233 under the Act of 1994 arises only when the building permit granted is one for industrial occupancy. Hence, leaving open the remedy of the respondents 1 and 2 therein to seek category change before the Panchayat under the Act of 1994 and the Rules of 2011, the writ petition was disposed of. The learned Senior Counsel argues that there is no requirement for such category change since the establishment permit under Sec. 233 itself has been issued as a building permit.