JILMON JOHN Vs. MANAKAD GRAMA PANCHAYATH

JUDGEMENT

(1.) All these writ petitions deal with the establishment of a hot mix plant; two for and one against. Arguments have been addressed by the parties based on the documents produced in W.P(C) No. 17418 of 2016; which is filed by the co-owners of the property one of whom intends to set up the unit in the property; who is the sole petitioner in W.P.(C) No. 8725 of 2016. The first writ petition challenge the cancellation of a permission to establish the unit and the second challenge the subsequent rejection of an application for construction of building, on the ground of the pending litigation before this Court. W.P.(C).No.16515 of 2016 is filed by a neighbouring property owner, who raised a complaint against the establishment of the unit before the Panchayat and sought for implementation of the stop memo issued by the Panchayat, styling the said stop memo to be a prohibitory order against the establishment itself.

(2.) The petitioners 1 and 2 in W.P.(C) No. 17418 of 2016; which writ petition is referred to, are co-owners of a property having an extent of 2.72 acres of land in Survey No. 170/10, 11, 7, 8, 9 of Manacad Village in Thodupuzha Taluk; wherein setting up of a bitumen mixing plant is proposed. Exhibit P1 is the permission granted by one co-owner to the other co-owner for the establishment of the unit and Exhibit P2 is a Circular issued by the Pollution Control Board [for brevity "PCB"] as to the specifications in granting permission to hot mix plants. The petitioner has obtained Exhibit P3 Consent to Establish from the PCB on the general conditions stipulated thereunder. The petitioner also applied for installation of machinery, as is evidenced at Exhibit P4; which has to be considered by the Panchayat Council under Section 233 of the Kerala Panchayat Raj Act, 1994 [for brevity "KPR Act"]. The Panchayat Council granted the permission for such establishment as per Exhibit P5; which was later sought to be withdrawn by Exhibit P10 notice. This was challenged in W.P.(C). No. 8725 of 2016. Subsequently, Exhibit P13 dated 18.04.2016 was issued, interdicting the construction carried on by the petitioner in the property; which was without sanction under the Kerala Panchayat Building Rules, 2011 [for brevity "KPBR"]. The petitioner is said to have stopped the construction and made an application for building permit to construct an office building, which was rejected s per Exhibit P14 on the ground of the pending litigation. The stop memo issued, based on Exhibit P14, is produced at Exhibit P15; which is sought to be implemented by way of W.P.(C) No. 16515 of 2016.

(3.) The learned Counsel for the petitioner submits that the consent having been granted under Section 233 of the KPR Act, there could be no subsequent withdrawal of the same and relies on the decisions in S. Pathrose v. State of Kerala and Ors. [1996 KHC 495 = 1996 (2) KLJ 177] and Siyad Hassan v. Marady Grama Panchayat [2015 (1) KLT 961] to urge the above contention. Reliance is also placed on the decision of the Division Bench in Janardhanan Nair v. Vijayamma [2016 (2) KLT 735] to contend that a hot mix plant is not included in the Schedule to the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 [for brevity "D and O Rules"] and, hence, no licence under Section 232 of the KPR Act would be required. The Consent to Establish granted under Section 233 is said to be a one time affair, for which a renewal is not required under Section 232. To advance such a contention, the learned Counsel relies on the Division Bench decision in Sudhakaran v. Pallichal Grama Panchayat [2016 (2) KLT 175] . The inability of the Panchayat to decline grant under Section 233 for reason of the apprehended pollution in the teeth of a No Objection Certificate [for brevity "NOC"] issued by the District Medical Officer of Health [for brevity "DMO(H)"] and the Consent to Establish issued by the PCB is urged relying on Soorya Retreats and Holidays India Pvt. Ltd. v. Elamadu Grama Panchayat [2016 (3) KLT 346].