Muhammed C.Basheer vs Thirumittacode Grama Panchayath on 28 April, 2020

[Cites 6, Cited by 0]

Kerala High Court

Muhammed C.Basheer vs Thirumittacode Grama Panchayath on 28 April, 2020

Equivalent citations: AIR 2020 KERALA 103, AIRONLINE 2020 KER 194

The above writ appeals arise out of a common judgment passed by the Single Judge in W.P.(C) Nos.38636 and 38648 of 2015. The 2nd respondent in both the writ petitions is the appellant in both the appeals. The respondents in the writ appeals are the writ petitioners and other respondents in the respective writ petitions.

2. An order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram, in Appeal No.1154 of 2014, dated 20th November, 2015, was under

W.A. Nos.1316 & 1719/2017 -:7:- challenge in both the writ petitions. One of the writ petitions was filed by the Grama Panchayath and the other writ petition was filed by 10 persons who were objecting to the establishment of an industry manufacturing plywood, by the appellant herein. The issue relates to the rejection of application submitted by the appellant seeking permission for installation of the plywood factory, under Section 233 of the Kerala Panchayat Raj Act, 1994 read with the relevant Licensing Rules made thereunder. The said application was preferred before the Panchayath on 25.01.2012 supported by the "Consent to Establish" granted by the State Pollution Control Board, dated 01.06.2011. The Panchayath refused to grant installation permission for the reason of protest raised by the neighbouring residents, that the establishment of the factory may cause nuisance and health hazards to them. The said decision of the Grama Panchayath was challenged by the W.A. Nos.1316 & 1719/2017 -:8:- appellant in the appeal filed before the Tribunal for Local Self Government Institutions. Before the Tribunal, one among the issues considered was regarding validity of the "Consent to Establish" granted by the Pollution Control Board. It was contended that the consent issued on 01.06.2011 was based on the guidelines prevailing prior to 01.07.2011. It was pointed out that, unless a 'Consent to Establish' issued under the modified guidelines, which came into force on 01.07.2011, is produced, the application submitted before the Panchayath on 25.01.2012 cannot be considered. The Tribunal, while disposing the appeal held that, a person is governed by the law and regulations applicable at the time of making his application for issuance of any permission or license etc. and such Rules will continue to govern the authority concerned. On the basis of the said finding and on the basis of the finding that the reason for rejection of the application for 'installation permission' was not legally W.A. Nos.1316 & 1719/2017 -:9:- sustainable, the appeal was allowed and the decision of the Grama Panchayath was set aside. The Grama Panchayath was directed to issue 'installation permission' to the appellant, within 30 days. The Panchayath as well as the objectors were challenging the said order of the Tribunal, in the writ petitions filed.

3. The learned Single Judge, after analyzing provisions contained in Section 233 of the Kerala Panchayat Raj Act observed that, the 'Consent to Establish' granted by the Pollution Control Board has to be related in point of time to the application which is submitted before the Panchayath for getting the permission for installation of the factory. In other words, it was observed that, the consent granted by the Pollution Control Board must be based on the guidelines that existed as on the date of submission of the application before the Panchayath. Since the 'Consent to Establish' which was obtained in W.A. Nos.1316 & 1719/2017 -:10:- accordance with the guidelines which were not in force as on the date of submission of the application before the Grama Panchayath, cannot be accepted, because there was no consent issued by taking into account of the guidelines that existed as on the date of application submitted for getting the installation permission. Hence the learned Single Judge had reversed the finding of the Tribunal. Resultantly, the impugned order of the Tribunal was quashed. The Tribunal was directed to consider the matter afresh in view of the above said findings. It is the judgment of the Single Judge that is under challenge at the instance of the appellant, who is the applicant before the Panchayath.

4. In the decision of the Hon'ble Supreme Court in Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and others [(2007) 11 SCC 40], it was held that, no right can be said to have been vested in the person concerned W.A. Nos.1316 & 1719/2017 -:11:- merely on submission of the application. A "legitimate" or "settled expectation", if any, does not create any vested right to obtain the sanction. If the Rules and relevant provisions governing the grant or sanction was amended and imposes restriction, such "legitimate expectation" or "settled expectation"

becomes nullified. The so-called "vested right" cannot be countenanced against public interest and convenience, which are sought to be served by the amendment. Therefore it is held that, any application for sanction or permission need to be dealt with in accordance with the Rules which are prevailing as on the date of its consideration. Considering the above cited decision as well as the decision of the Apex Court in Howrah Municipal Corporation and others v. Ganges Rope Co. Ltd. & others[(2004) 1 SCC 663], a Division Bench of this court in Asset Homes(P) Ltd. v. State of Kerala(2011 (2) KLT 1) found that, an application for building permission is to be decided in W.A. Nos.1316 & 1719/2017 -:12:- accordance with law which is prevailing on the date of sanction of the permission and not in accordance with the law which was prevailing on the date of submission of the said application.

5. Considering the legal position remaining settled as above, we do not find any reason to interfere with the judgment of the Single Judge, impugned herein. Consequently, we do not find merit in the above writ appeals and they are hereby dismissed.

6. However, we make it clear that, in view of the legal proposition as held herein above, the Tribunal need not pursue the appeal further. The learned Senior Counsel appearing for the appellant submitted that the appellant may be permitted to make fresh application seeking installation permission, supported by necessary documents as contemplated under Section 233, read with the relevant provisions of the Licensing Rules under the Kerala Panchayat Raj Act. We are of the W.A. Nos.1316 & 1719/2017 -:13:- considered opinion that liberty in this regard can be reserved in favour of the appellant. If the appellant submits any fresh application seeking 'installation permission' for the industry concerned, the Grama Panchayath shall deal with the same in accordance with the law governing the subject matter, by following the dictum contained in the Full Bench decision of this court in Tomy Thomas v. State of Kerala(2019 (3) KLT 987) (FB).

Hence the above writ appeals are hereby dismissed, subject to liberty of the appellant reserved as mentioned above.

Sd/- C.K. ABDUL REHIM, JUDGE.

                            Sd/-    R. NARAYANA PISHARADI, JUDGE.

ul/-

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