JOICE JOSEPH Vs. AYARKUNNAM GRAMA PANCHAYATH

JUDGEMENT

(1.) As the issue involved in both these writ petitions is similar, they are taken up for consideration together and disposed by this common judgment.

(2.) The petitioners in both these writ petitions are residents in Ward No. 20 of Ayarkunnam Grama Panchayat in Kottayam District, where, the 6th respondent has taken steps to establish an M-Sand unit installing a Vertical Shaft Impactor Machine in the property owned by him and comprised in Sy. Nos. 209/8, 209/8-1 and 215/1 of Ayarkunnam Village. In the writ petition, it is the case of the petitioners that the 6th respondent has taken steps to establish the M-Sand unit without obtaining the necessary permission under Section 233 of the Kerala Panchayat Raj Act, 1994, for establishing the unit in question, and further, that the petitioners had, without obtaining the said permission under Section 233, proceeded to obtain a building permit from the respondent Panchayat, and thereafter a Dangerous and Offensive license (D&O license) for conducting the M-Sand unit. In the writ petition, the building permit as well as the DO license granted to the 6th respondent are impugned, as are the Resolutions of the respondent Panchayat which entailed the grant of the DO license to the 6th respondent. It is the definite case of the petitioners that, while the 6th respondent had chosen to apply for the necessary permissions and licenses that were required for starting an M-Sand unit in his property, by preferring an application before the Kerala Single Window Clearance Board, he had subsequently abandoned the said route, and had chosen to separately approach the statutory authorities entrusted with the task of granting permissions and licenses for the M-Sand unit. It is stated that, while the 6th respondent had succeeded in getting some of the approvals and permissions, he had not obtained a permission under Section 233 of the Kerala Panchayat Raj Act, 1994, prior to approaching the Panchayat for the DO license. It is also pointed out, in connection with the building permit granted to the 6th respondent, that the said respondent had obtained the permit on 15.06.2015, when, the law, as it stood on that date, mandated that a building permit could be granted for the purposes of establishing an M-Sand unit only if the width of the road leading to the property was at least 7 metres. It is stated that the width of the road in the instant case being less than 7 metres, the building permit granted to the 6th respondent itself is in violation of the statutory provisions, and therefore, illegal. The prayer sought for in the writ petitions is essentially to quash the building permit, the DO license and the Resolutions passed by the Panchayat leading up to the DO license, on the ground that they have been issued in violation of the statutory provisions under the Kerala Panchayat Raj Act as also Rule 12 of the Kerala Panchayat Building Rules, 2011.

(3.) Counter affidavits have been filed on behalf of the 6th respondent in both these writ petitions, wherein, documents have been produced to show that, while the said respondent had preferred an application before the Kerala Single Window Clearance Board for obtaining the necessary permission and consents from various statutory authorities entrusted with the regulation of the activities proposed by the said respondent, the Single Window Clearance Board had, in its first meeting held to consider the application of the said respondent, intimated the various statutory authorities of the proposal of the said respondent to establish an M-Sand unit, and had directed them to take decisions in the matter and report their decisions to the Single Window Clearance Board. Thereafter, in the subsequent meeting, while the only objection received by the Board was from the Office of the Chief Town Planner, which indicated that certain documents had yet to be obtained from the 6th respondent, for considering his application for the necessary permission to start the unit in question, the other statutory authorities had not raised any specific objection to the application of the 6th respondent that was forwarded to them for their decision. While matters stood so, in a subsequent proceedings before the Board a representation was made before the Board that the 6th respondent had already obtained the necessary permissions and licenses, and therefore, no further proceedings needed to be pursued before the respondent Board. The Board, therefore, by its decision dated 104.2015, closed the proceedings before it based on the representation made before it that the necessary approvals and permissions had already been obtained by the 6th respondent. It is stated that the 6th respondent had in fact obtained all the necessary licenses and consents from the respective statutory authorities, save for the permission under Section 233 of the Kerala Panchayat Raj Act, which he had no reason to assume would be denied to him since the Panchayat itself had issued a 'No Objection Certificate' to the issuance of such a permission in the event of the 6th respondent making an application before it. As it turned out, the 6th respondent did not get any permission from the Panchayat in terms of Section 233 of the Kerala Panchayat Raj Act. As regards the building permit and the DO license issued to the 6th respondent, it is stated that the application for building permit, although submitted before the Secretary of the respondent Panchayat, was forwarded to the Chief Town Planner for approval in terms of Rule 61 of the Kerala Panchayat Building Rules. It is stated that, during the relevant time, when the Chief Town Planner was considering the application in terms of Rule 61, the amendment to the Building Rules, which came into force with effect from 006.2015, whereby, the minimum access width of the road had to be 7 meters, had not taken effect, and hence, the Chief Town Planner had granted the approval based on the un-amended provisions which mandated that the width of the road to the construction put up by the petitioner, (being one with a floor area less than 300 sq. ms) needed to be only more than 3 meters, which existed in the instant case. It is stated that inasmuch as the approval of the Chief Town Planner was obtained prior to the date of the amendment to Rule 61 of the Kerala Panchayat Building Rules, the building permit that was subsequently granted to the petitioner based on the approval of the Chief Town Planner, could not be impugned on the ground that, as on the date of grant of building permit, the law had been amended to the prejudice of the 6th respondent. The learned Senior Counsel appearing for the 6th respondent would also place reliance on the decisions of this Court in Kerala Coastal Zone Management Authority v. Pearls Infrastructure Projects Ltd.-(2017 (1) KLT 602), Kallada Hotels and Resorts v. State of Kerala (2012 (2) KLT 167) and judgment dated 31.10.2017 of the Division Bench in W.A. No. 249/2016, to contend that inasmuch as the 6th respondent had constructed the building based on the building permit that was issued to the said respondent by the respondent Panchayat, the petitioners could not contend that the construction put up by the 6th respondent, based on the building permit issued to him, was illegal.