Kerala High Court
Jilmon John vs The Manakad Grama Panchayath on 9 December, 2016
Author: Anil K. Narendran
Bench: Mohan M.Shantanagoudar, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938
WA.No. 2462 of 2016 () IN WP(C).38356/2016
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 38356/2016 of HIGH COURT OF KERALA
DATED 9.12.2016
APPELLANTS/PETITIONERS:
------------------- -------------------
1. JILMON JOHN
MADATHIL HOUSE, MANAKAD POST,
THODUPUZHA.
2. JINO JOHN
MADATHIL HOUSE, MANAKAD POST,THODUPUZHA.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.MATHEW JOHN (K)
RESPONDENTS/RESPONDENTS:
---------------------------------------------
1. THE MANAKAD GRAMA PANCHAYATH
CHITTOOR, PUTHUPARIYARAM POST, IDUKKI DISTRICT- 685 608
REPRESENTED BY ITS SECRETARY.
2. THE SECRETARY,
THE MANAKAD GRAMA PANCHAYATH
CHITTOOR, PUTHUPARIYARAM POST, IDUKKI DISTRICT- 685 608
3. THE DISTRICT ENVIORNEMENTAL ENGINEER
OF THE KERALA STATEPOLLUTION CONTROL BOARD, IDUKKI.
4. P.A.THOMAS,
S/O.ABRAHAM, THEKKEPARAMBIL
PUTHUPARIYARAM POST, THODUPUZHA-685 608.
ADDL.R5 IMPLEADED:
ADDL. R5. STATEOF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
P.W.D. (ROADS DIVISION), GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
(IS SUO MOTU IMPLEADED AS ADDITIONAL 5th RESPONDENT VIDE ORDER DATED
10.1.2017)
R1 BY ADV. SRI.P.RAVINDRAN (SR.)
R1&2 BY ADV. SRI.M.H.HANIL KUMAR
R3 BY ADV. SRI T. NAVEEN (SC)
R4 BY ADV. SRI.RAJAN VISHNURAJ
R4 BY ADV. SRI.V.HARISH
ADDL.R5 BY SR. GOVERNMENT PLEADER SRI TEKCHAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 7.2.2017, THE COURT
ON 13-02-2017, DELIVERED THE FOLLOWING:
APPENDIX IN W.A.No.2462/2016
APPELLANT'S ANNEXURES:
ANNEXURE-A: COPY OF RELEVANT PORTIONS OF PRINTOUTS FROM THE
WEBSITE OF AMMAN APPOLO INDIA LTD.
ANNEXURE B: COPY OF LETTER DT.16.1.2017 ISSUED BY AMMAN APPOL INDIA
LTD. TO THE EXECUTIVE ENGINEER, PWD.
RESPONDENTS' ANNEXURES:
ANNEXURE R1(A): COPY OF PHOTOGRAPHS SHOWING THE LAY AND NATURE OF
THE HOT MIXING PLANT.
TRUE COPY
P.S. TO JUDGE
dsn
"CR"
MOHAN M. SHANTANAGOUDAR, CJ. & ANIL K. NARENDRAN, J.
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W.A.No.2462 of 2016
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Dated this the 13th day of February, 2017
JUDGMENT
Anil K. Narendran, J.
This appeal arises out of the judgment of the learned Single Judge dated 9.2.2016 in W.P.(C).No.38356/2016.
2. The appellants herein filed that Writ Petition seeking a writ of certiorari to quash Exts.P16 and P19 proceedings of the 2nd respondent, the Secretary of Manakad Grama Panchayat, and for other consequential reliefs.
3. By Ext.P16 proceedings, the 1st appellant was informed that his application for building permit for the purpose of establishing a bitumen mixing unit (hot mix plant/drum mix plant) in the plot having an extent of 2.72 Acres in Sy.Nos.170/7, 8, 9, 10 and 11 of Manakad Village in Thodupuzha Taluk, falls under 'Group I Hazardous' non-residential occupancy under Note
(ii) to Rule 34(2) of the Kerala Panchayat Building Rules, 2011 (for brevity, 'the Building Rules') as described under Rule 34(3)(l) of the said Rules and as such, layout approval of the Chief Town W.A.No.2462 of 2016 2 Planner, as per Rule 61 of the said Rules, etc. are necessary for considering his request.
4. By Ext.P19 proceedings, the 1st appellant was informed that, since he has already made permanent construction of plant, building, etc. in the plot in question, such constructions will have to be regularised as per the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number before considering his application for D&O licence under the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (for brevity, 'the D&O Rules'). The 1st appellant was also informed that, since the construction of the plant and the building fall under hazardous occupancy and the area of the plot is more than one hectare, layout approval of the Chief Town Planner is required as per Rule 61 of the Building Rules. The reliefs sought for in the Writ Petition read thus;
"(i) call for the records leading upto Ext.P19 and issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Exts.P16 and P19;
W.A.No.2462 of 2016 3
(ii) declare that the defects noted by the 2nd respondent in Ext.P16 are wholly unsustainable;
(iii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the 2nd respondent to consider the application submitted by the petitioners for construction of the temporary sheds without insisting on the conditions enumerated in Ext.P16;
(iv) declare that the provisions of the Kerala Panchayat Building Rules, 2011 are wholly irrelevant for considering an application for D&O licence;
(v) issue a writ of mandamus or any other appropriate
writ, direction or order commanding the 2nd
respondent to pass fresh orders on Ext.P17
application for D&O licence without reference to the conditions enumerated in Ext.P16;
(vi) issue such other writ, direction or order as are just and necessary in the facts and circumstances of the case to meet the ends of justice."
5. The reliefs sought for in the Writ Petition were opposed by the 1st and 2nd respondents, the Grama Panchayat and its Secretary, by filing counter affidavit. The appellants filed a reply affidavit to the said counter affidavit. The 4th respondent/objector has also filed a counter affidavit, supporting W.A.No.2462 of 2016 4 the stand taken by the 1st and 2nd respondents.
6. After considering the rival contentions, the learned Single Judge dismissed the Writ Petition repelling the challenge made by the appellants against Exts.P16 and P19 proceedings of the 2nd respondent/Secretary.
7. Feeling aggrieved by the judgment of the learned Single Judge, the appellants/writ petitioners are before this Court in this appeal.
8. We heard Sri.S.Sreekumar, learned Senior Counsel for the appellants/writ petitioners, Sri.P.Raveendran, learned Senior Counsel for the 1st and 2nd respondents/Grama Panchayat and its Secretary, Sri.T.Naveen, learned Standing Counsel for the 3rd respondent/Kerala State Pollution Control Board and also Sri.Rajan Vishnu Raj, learned counsel for the 4th respondent/objector.
9. The pleadings and material on record would show that, the appellants, who are stated to be co-owners of the plot in question having an extent of 2.72 Acres in Manakad Village, have entered into Ext.P1 agreement by which, the 1st appellant is W.A.No.2462 of 2016 5 permitted to use the said plot for the purpose of establishing a bitumen mixing plant (hereinafter referred to in this judgment as 'the hot mix plant'). The Kerala State Pollution Control Board (for brevity, 'the PCB'), the 3rd respondent herein, has issued Ext.P2 circular dated 1.10.2015 prescribing the norms for granting consent for establishing and operating temporary/ permanent hot mix plants in the State. Clauses (1) and (2) of Ext.P2 circular prescribe different norms/criteria for granting temporary/regular consent for establishing such hot mix plants.
10. According to the appellants, there are no residential houses within a radius of 100 meters from the point where the hot mix plant is sought to be located. Accordingly, the PCB/3rd respondent, issued Ext.P3 consent dated 22.12.2015, valid upto 30.12.2018, for establishing the hot mix plant in the location shown in the sketch appended thereto.
11. Based on Ext.P3 consent, the 1st appellant submitted application before the Panchayat seeking permission to set up the hot mix plant, as provided under Section 233 of the Kerala Panchayat Raj Act, 1994 (for brevity, 'the Act'). The said W.A.No.2462 of 2016 6 application was acknowledged vide Ext.P4 receipt. Based on the decision taken by the Panchayat Committee, the 2nd respondent/Secretary issued Ext.P5 proceedings dated 15.2.2016 granting permission to the 1st appellant for installation of the machinery for the hot mix plant, subject to the condition that, after such installation, he shall obtain D&O licence from the Panchayat, consent to operate from the 3rd respondent and No Objection Certificate (for brevity, 'NOC') from the District Medical Officer, before operating the plant.
12. According to the appellants, a copy of Ext.P5 proceedings was served on the 1st appellant on 17.2.2016 and on the strength of that permission, he commenced the work of setting up of the hot mix plant. However, the averments in Para.2 of the Writ Petition would show that, based on a complaint made against the permission granted in Ext.P5, by the local residents under the leadership of the 4th respondent, the 1st appellant was issued with Ext.P6 notice of the 2nd respondent dated 17.2.2016, regarding the personal hearing scheduled to be held on 19.2.2016.
W.A.No.2462 of 2016 7
13. By Ext.P7 communication dated 18.2.2016, the 2nd respondent requested the District Medical Officer, Idukki to take further steps on the request for issuance of NOC for the hot mix plant proposed by the 1st appellant. By Ext.P8 communication dated 18.2.2016, the 2nd respondent made a similar request to the Assistant Divisional Officer, Fire and Rescue Services, Idukki.
14. Pursuant to Ext.P8, the Assistant Divisional Officer, Fire and Rescue Services, Idukki issued Ext.P9 NOC dated 19.2.2016 for the site proposed by the 1st appellant for installation of the hot mix plant, subject to the condition that, a fresh NOC from that department shall be obtained after completion and before occupation of the Unit; and necessary primary fire fighting equipments like fire extinguishers and 'no smoking' boards, fire buckets with sand and water may be installed there.
15. In response to Ext.P6 notice, the 1st appellant appeared before the 2nd respondent on 19.2.2016 and pointed out that, the apprehensions of the 4th respondent and others in the locality against installation of the hot mix plant are totally W.A.No.2462 of 2016 8 baseless. However, the 2nd respondent issued Ext.P10 notice dated 4.3.2016, directing the 1st appellant to forthwith stop the work undertaken for setting up the hot mix plant. Challenging the said notice, the 1st appellant had approached this Court in W.P. (C).No.8725 of 2016, in which this Court granted an interim order dated 9.3.2016 staying the operation of the said notice, initially for a period of one month, which was later extended.
16. According to the appellants, seeking building permit to construct two temporary sheds, which are integral parts of the hot mix plant, the 1st appellant submitted an application dated 17.2.2016 before the 2nd respondent. However, the 2nd respondent sent a reply dated 22.3.2016, stating that the application for building permit should be jointly made by the appellants, since they are co-owners of the plot in question. In response to the said reply, the appellants made Ext.R1(a) joint application dated 2.4.2016 for building permit. Anticipating grant of such building permit, the 1st appellant commenced the construction of the temporary sheds.
17. Alleging unauthorised construction in the plot in W.A.No.2462 of 2016 9 question without obtaining prior permission from the Panchayat, the appellants were issued with Ext.P11 order dated 18.4.2016, under Section 235X of the Act, to stop such construction forthwith. Later, by Ext.P12 communication dated 29.4.2016 of the 2nd respondent, the appellants were informed that their application for building permit cannot be granted in view of the pendency of a writ petition before this Court. Still later, by Ext.P13 communication dated 5.5.2016 of the 2nd respondent, the appellants were directed to stop all constructions in the plot in question, in view of an interim order passed by this Court dated 29.4.2016 in W.P.(C).No.16515 of 2016, a copy of which was enclosed therewith. By the said interim order granted in the Writ Petition filed by the 4th respondent herein, this Court directed Manakad Panchayat and its Secretary (respondents 1 and 2 herein) to implement Ext.P11 order dated 18.4.2016 (produced as Ext.P3 in that writ petition) forthwith, if it is not interdicted so far.
18. Challenging Ext.P11 order dated 18.4.2016 of the 2nd respondent, the appellants approached this Court in W.P.(C). W.A.No.2462 of 2016 10 No.17418 of 2016. This Court, by Ext.P14 common judgment dated 17.10.2016, allowed W.P.(C).No.8725 of 2016 filed by the 1st appellant and W.P.(C).No.17418 of 2016 filed by the appellants, thereby setting aside Exts.P10 notice and Ext.P11 order of the 2nd respondent and directed the said respondent to reconsider the application made by the appellants for building permit, within a period of one month. W.P.(C).No.16515 of 2016 filed by the 4th respondent herein for implementation of Ext.P11 order was closed in view of the disposal of the other two writ petitions.
19. As borne out from Ext.P14 judgment, the 1st appellant contended in W.P.(C).No.8725 of 2016 that, since the hot mix plant is not included in Schedule I to the D&O Rules, there is no legal requirement to obtain licence under Section 232 of the Act and the permission for installation of machinery granted under Section 233 of the Act, vide Ext.P5 proceedings of the 2nd respondent dated 15.2.2016 is only a one-time affair. In support of the said contention, the 1st appellant placed reliance on the decision of a Division Bench of this Court in Janardhanan Nair W.A.No.2462 of 2016 11 v. Vijaymma (2016 (2) KLT 735).
20. The said contentions were repelled by this Court in Ext.P14 judgment, on a finding that in Janardhanan Nair's case this Court was dealing with a temporary hot mix plant which was erected for the purpose of road work of the National Highway between two points. In the said decision, the Division Bench first considered the exemption available under Section 233B of the Act and it was found that, a temporary plant is one akin to machinery used for construction purpose, such as concrete mixtures, and the mere size of the unit would not by that alone detract from its coverage under the wide definition of 'portable' as found in the exemption clause under that Section. As to the requirement for an application under Section 232 of the Act, the Division Bench, on the fact situation found that the unit was not specified in Schedule I to the D&O Rules and Item No.117 of Schedule I was specifically noted to find that the subject unit would not come under the said description. After referring to Item No.117 which relates to 'Tar - storing, packing, refining, preparing or selling', the Division Bench found that in the installation and operation of W.A.No.2462 of 2016 12 a temporary hot mix plant for the purpose of producing bitumen to lay a road between two points, none of these activities occur.
21. Therefore, the learned Single Judge held in Ext.P14 judgment that, same inference cannot be drawn for the activity which is proposed to be carried out by the 1st appellant herein, since his hot mix plant is not a temporary one and not portable also; in the sense in which the term is used in the exemption clause under Section 233B of the Act. The learned Single Judge held further that, all the activities described in Item No.117 of Schedule I to the D&O Rules will definitely occur in the operation of the 1st appellant's unit and as such, the decision of the Division Bench in Janardhanan Nair's case has no application to the facts of the 1st appellant's case. In the absence of any challenge, the said finding of the learned Single Judge in Ext.P14 judgment has attained finality.
22. The 1st appellant produced a copy of Ext.P14 judgment before the 2nd respondent along with Ext.P15 covering letter dated 21.10.2016 and requested to grant building permit as sought for. The 2nd respondent vide Ext.P16 proceedings dated W.A.No.2462 of 2016 13 14.11.2016 returned the said application for building permit with a direction to the 1st appellant to re-submit the same after rectifying the deficiencies/defects noted therein.
23. As discernible from Ext.P16, pursuant to Ext.P14 judgment of this Court, the Assistant Engineer, LSGD Section, Manakad inspected the plot in question and submitted Ext.R1(b) report dated 7.11.2016, reporting that, the construction of the hot mix plant, building, etc. has already been completed. Since, as per Note (ii) to Rule 34(2) of the Building Rules, minor occupancy incidental to operations in another type of occupancy shall be considered as part of the main occupancy and shall be classified under the relevant group for the main occupancy, the application made by the 1st appellant falls under Group I hazardous occupancy. Since the area of the plot exceeds one hectare, layout approval by the Chief Town Planner is required. In Ext.R1(b) report, the Assistant Engineer, LSGD Section has also noticed various deficiencies with reference to the mandatory requirements under Rule 61 of the Building Rules, which deals with hazardous occupancy.
W.A.No.2462 of 2016 14
24. Based on Ext.R1(b) report of the Assistant Engineer, LSGD Section, the 1st appellant was issued with Ext.R1(c) notice dated 9.11.2016 for a personal hearing scheduled to be held on 11.11.2016. The specific stand taken by the 1st and 2nd respondents in their counter affidavit is that, on the date of personal hearing, i.e., on 11.11.2016, the 1st appellant was furnished with a copy of Ext.R1(b) report and he had also acknowledged the receipt of the same. It was thereafter that the 2nd respondent issued Ext.P16 proceedings dated 14.11.2016, by which he was directed to resubmit the application after rectifying the deficiencies/defects noted therein. The deficiencies/defects noted in Ext.P16 proceedings read thus;
"1. For constructions falling under hazardous occupancy the minimum clear width of the street giving access to the plot shall be 7 meters. But in the plan produced, the width of the street giving access is only 4.50 meters. Therefore, access to the plot with a minimum clear width of not less than 7 meters should be provided and the same should be marked in the plan.
2. Detailed plan of the hot mix plant already constructed should be produced.
W.A.No.2462 of 2016 15
3. Distance from all sides of the building to the boundary of the plot should not be less than 7.50 meters and the same should be marked in the plan."
25. Subsequent to Ext.P16 proceedings of the 2nd respondent, the 1st appellant submitted Ext.P17 application dated 3.11.2016 for D&O licence. Relying on Ext.P18 consent to operate dated 12.7.2016 issued by the 3rd respondent, which is valid upto 30.12.2018, the appellants would contend that, the PCB has issued the consent to operate after being fully satisfied that the hot mix plant established by the 1st appellant is fit for commercial production. As such, the Grama Panchayat is legally bound to grant D&O licence pursuant to Ext.P15 application made by the 1st appellant. However, the 2nd respondent returned the said application, vide Ext.P19 proceedings dated 17.11.2016, and the 1st appellant was informed that, since he has already made permanent construction of the plant, building, etc. in the plot in question, such constructions will have to be regularised as per the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number, W.A.No.2462 of 2016 16 before considering his application for D&O licence.
26. Vide Ext.P19 proceedings, the 1st appellant was also informed that, since the construction of the plant and the building fall under hazardous occupancy and the area of the plot is more than one hectare, layout approval of the Chief Town Planner is required as per Rule 61 of the Building Rules. The 1st appellant was also instructed vide Ext.P16 proceedings dated 14.11.2016, to take necessary steps in this regard. However, he failed to take any steps in this regard. Therefore, the 1st appellant was informed, vide Ext.P19 that, his application for D&O licence will be considered only after curing the defects in his application for building permit, and assigning building number after obtaining the approval of the Chief Town Planner.
27. In the counter affidavit, the specific stand taken by the 1st and 2nd respondents is that, the application made by the 1st appellant for building permit falls under Group I hazardous occupancy. Since the area of the plot exceeds one hectare, layout approval by the Chief Town Planner is required as per Rule 61 of the Building Rules. In order to show that the 1st appellant has W.A.No.2462 of 2016 17 already made permanent constructions to establish the hot mix plant and office building, the Grama Panchayat has produced Ext.R1(e) series of photographs. The 1st and 2nd respondents contended that, though the 1st appellant has obtained Ext.P9 NOC from the Fire and Rescue Department, the same is not final as he has to obtain a fresh NOC after completion of the construction and before occupation of the unit, as specified in the said NOC. Since the 1st appellant has already made permanent construction of plant, building, etc. in the plot in question, such constructions will have to be regularised as per the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number before considering his application for D&O licence. Therefore, according to the 1st and 2nd respondents, the stand taken by by the Grama Panchayat in Exts.P16 and P19 are perfectly legal. The 4th respondent/objector has also filed a counter affidavit supporting the stand taken by the Grama Panchayat.
28. The appellants have filed a reply affidavit to the counter affidavit filed by the respondent Grama Panchayat, W.A.No.2462 of 2016 18 reiterating the contentions raised in the writ petition. In para.5 of the said reply affidavit, the appellants have also raised a new contention that a temporary hot mix plant and a permanent hot mix plant are structurally one and the same. According to the appellants, the only difference is that temporary hot mix plants are normally operated for a fixed duration for the purpose of completing stipulated items of work. Referring to the decision of this Court in Janardhanan Nair's case (supra) the appellants contended that, the plant involved in the said decision and that in the instant case are structurally one and the same. Since the 1st appellant did not intend to shift the plant after expiry of a particular period, he had invested about 75,00,000/- for the purpose of construction of a permanent enclosure around the hot mix plant. On the other hand, in respect of the temporary unit involved in Janardhanan Nair's case, the enclosure around the plant was purely temporary in nature, i.e., a green net which is normally used in gardening operations. Therefore, the appellants contended that, insistence of a D&O licence itself is unnecessary.
29. In Para.5 of the reply affidavit, the appellants have W.A.No.2462 of 2016 19 admitted that, the construction of the hot mix plant has already been completed. However, they contended that, the 1st appellant stopped the construction of the temporary shed immediately on receipt of the stop memo issued by the Panchayat. The appellants have also pointed out that, the plant in question is essentially for providing tar mix to certain road works mentioned in Para.6 of the reply affidavit and as such, the said plant can also be called a temporary plant.
30. This Court by order dated 10.1.2017, suo motu impleaded the Secretary to Government, Public Works Department (Roads Division), Thiruvananthapuram as additional respondent in this appeal and the jurisdictional Executive Engineer was directed to visit the plot in question and to find out whether the hot mix plant installed by the appellants is a portable one or not. The Executive Engineer was directed to visit the plot after informing the parties as to the date of visit and file report within two weeks.
31. Pursuant to the said order, the Executive Engineer, Public Works Department (Roads Division), Idukki inspected the W.A.No.2462 of 2016 20 hot mix plant on 17.1.2017, in the presence of the appellants and others, and submitted a report, which is placed on record along with a memo filed by the learned Senior Government Pleader dated 24.1.2017 . The said report reads thus;
"The plant is intended for carrying out BM&BC works on the roads as per the specifications fixed by the Ministry of Road Transport and Highways (MORTH). It is seen that the plant components are fixed on nuts and bolts on concrete foundations. In addition to the plant a temporary shed is put up at the site which is required to conduct the mandatory tests of aggregates and sample of mix to satisfy the MORTH specifications.
The plant can be shifted to other locations and operated by fixing concrete foundations with bolts and nuts. The manufacturer of the plant namely 'Amman Apollo India Limited' has testified that the plant assemblies shall be easily shifted to a new location and installed within 10 days based on the project locations.
After considering all the above it is reported that plant installed is capable of being transported or conveyed to other locations."
32. In order to show that, the 1st appellant has already completed permanent construction of the hot mix plant and the office building, a few photographs of the plant and building are W.A.No.2462 of 2016 21 produced by the 1st and 2nd respondents, as Annexure R1(a) series, along with I.A.No.100 of 2017.
33. During the course of arguments, the printouts of certain web pages from the website of M/s.Amman Apollo India Limited, the manufacturer of the hot mix plant in question, are produced as Annexure A, along with a memo dated 6.2.2017 filed by the learned counsel for the appellants. A copy of the letter dated 16.1.2017 of the authorised signatory of M/s.Amman Apollo India Ltd. addressed to the Executive Engineer, Public Works Department (Roads Division), Idukki is also produced as Annexure B, along with the said memo. The said letter reads thus;
"We refer to the supply of one number Apollo model DM60 drum mix type asphalt plant to M/s.United Metals vide our Invoice No.9510100866 dated 09.03.2016. We would like to clarify the following points based the request and the queries raised by the client-M/s.United Metals, Karimpana P.O., Muvattupuzha, Kerala. The plant consists of the main assemblies such as bin feeder, drier drum, bitumen tank and the control room. These assemblies are portable, made in modular form, W.A.No.2462 of 2016 22 easy to transport separately and assemble quickly to form the plant.
The plant assemblies shall be easily shifted to a new location and installed within 10 days based on project locations."
34. First, we shall deal with the main contention of the appellants that, the hot mix plant in question is a portable machinery used for construction purpose, similar to the one dealt with by the Division Bench of this Court in Janardhanan Nair's case (supra) and as such, no permission from the Grama Panchayat shall be required in view of the exemption under Section 233B of the Act.
35. Hot mix plant, which is also called 'asphalt plant' is a construction equipment used for the manufacture of 'asphalt', which is a composite mixture of aggregate, bitumen and sand that is mainly used for the construction and repair of public roads. Bitumen is the liquid binder that holds asphalt together. Asphalt is produced in a plant that heats, dries and mixes aggregate, bitumen and sand into a composite mix. It is then applied through paving machines for surfacing/resurfacing roads W.A.No.2462 of 2016 23 at the required thickness. Asphalt results in a smoother and more durable surface than a bitumen-sealed road; which has only a layer of bitumen sprayed and then covered with aggregate, which process is then repeated to give a two-coat seal.
36. The 3rd respondent/PCB has issued Ext.P2 circular dated 1.10.2015 prescribing the norms for granting consent for establishing and operating temporary/permanent hot mix plants in the State. Clauses (1) and (2) of Ext.P2 circular prescribe different norms/criteria for granting temporary/regular consent for establishing such hot mix plants.
37. As per sub-clause (a) to clause (1) of Ext.P2 circular, subject to the emission standards and conditions prescribed by the PCB, a temporary consent for a period of one year shall be granted for establishing and operating hot mix plant with chimney having a height of 11 meters, based on the work permit/work order issued by the Public Works Department for one year, if there are no residential buildings or public institutions within a radius of 25 meters from the plant.
38. As per sub-clause (b) to clause (1), a temporary W.A.No.2462 of 2016 24 consent for a period of three years shall be granted for establishing and operating hot mix plant with chimney having a height of 15 meters, based on the work permit/work order issued by the Public Works Department for three years, subject to the emission standards and conditions prescribed by the PCB, if there are no residential buildings or public institutions within a radius of 50 meters from the plant. Sub-clause (c) to clause (1) makes it clear that, in case such hot mix plant has to be operated for more than three years, a regular consent has to be obtained after providing all pollution control measures required for a regular consent.
39. Clause (2) of Ext.P2 circular, which deals with regular consent for hot mix plant provides that, subject to the emission standards and conditions prescribed by the PCB, a regular consent for establishing and operating hot mix plant with cyclone separator, scrubber and bag filter having the required capacity, chimney having a height of 20 meters, closed sheds for storing raw materials, with measures for prevention of dust emission while handling and loading/unloading of raw materials, and W.A.No.2462 of 2016 25 having compound wall around the plant, shall be granted if there are no residential buildings or public institutions within radius of 50 meters from such permanent structures put up for the plant.
40. What is apparent on a plain reading of clauses (1) and (2) of Ext.P2 circular issued by the PCB is that, the said clauses apply in respect of different categories of hot mix plants. A temporary consent under clause (1) of the said circular shall be granted for establishing and operating 'hot mix plant with chimney' having a height of 11/15 meters, subject to the conditions in sub-clause (a)/sub-clause (b) of the said clause for one/three years. On the other hand, a regular consent under clause (2) of Ext.P2 circular shall be granted, subject to the conditions in the said clause, only in respect of 'hot mix plant with cyclone separator, scrubber and bag filter having the required capacity with chimney' having a height of 20 meters. Such hot mix plants should also be provided with closed sheds for storing raw materials, with measures for prevention of dust emission while handling and loading/unloading of raw materials and compound wall around the plant.
W.A.No.2462 of 2016 26
41. The hot mix plant established by the 1st appellant is a permanent one governed by clause (2) of Ext.P2 circular, which is evident from the averments in Para.1 of the Writ Petition, which read thus;
"Since the 1st petitioner intends to set up a permanent unit he is governed by clause (2) of Ext.P2 dealing with the conditions to be followed for setting up a permanent unit."
For setting up such hot mix plant, the 1st appellant has made permanent constructions investing about 75,00,000/-, which is evident from the averments in Para.6 of the reply affidavit filed in the Writ Petition, which read thus;
"As a matter of fact, since I did not intend to shift the unit after expiry of a particular period I have invested about 75 lakhs for the purpose of construction of a permanent enclosure around the hot mix unit."
42. Ext.P3 consent to establish issued by the 3rd respondent/PCB would show that, the hot mix plant proposed by the 1st appellant falls under 'RED' category, with capacity to produce 450 metric tonnes of hot mix, using 300 metric tonnes of metal and 70 metric tonnes of bitumen as raw materials. The W.A.No.2462 of 2016 27 total power requirement of the plant is 109.50 HP. The 3rd respondent has issued Ext.P3 consent to establish the hot mix plant, subject to certain general conditions, which are enumerated in clauses 2.1 to 2.18 thereof. Clause 2.6 mandates that, the emission from the bitumen plant and other vents shall be routed through a 'chimney of 20 meters height' above ground level attached with 'dust extraction system of adequate capacity (cyclone separators and bag filters) and scrubber' to achieve the emission standards prescribed in clause 2.7. thereof.
43. Similarly, Ext.P18 consent to operate the hot mix plant issued by the 3rd respondent is subject to certain conditions, including the 'specific conditions', which are enumerated in clauses 5.1 to 5.15 thereof. Clause 5.4 mandates that, the facility provided for emission from the bitumen plant and other vents shall be routed through a 'chimney of 20 meters height' above ground level attached with 'dust extraction system of adequate capacity (cyclone separators and bag filters) and scrubber' to achieve the emission standards prescribed in clause 5.5. of Ext.P18 consent. As evident from Ext.P18, the hot mix plant W.A.No.2462 of 2016 28 established by the 1st appellant, which falls under 'RED' category, is having a capacity to produce 450 metric tonnes of hot mix per day, using 300 metric tonnes of metal and 70 metric tonnes of bitumen as raw materials per day.
44. As evident from Annexure A printouts and Annexure B letter produced along with the memo filed by the learned counsel for the appellants, the hot mix plant in question is an 'Apollo model DM60 drum mix type asphalt plant'. The plant consists of the main assemblies such as bin feeder, drier drum, bitumen tank and the control room. Such a plant is a continuous mixer in which heating of aggregates, its homogeneous mixing and addition of set amount of bitumen and filler is done in the drum itself. The hot mix asphalt manufactured gets dispensed continuously into trucks or conveyed to a storage silo.
45. As per the technical specifications given for the plant model 'DM60' in Annexure A, its rated capacity is 90 to 120 tonnes of asphalt per hour. The main assemblies of the plant such as bin feeder, drier drum, bitumen tank, etc. are equipments of considerable size, sufficient to store/handle W.A.No.2462 of 2016 29 bitumen, aggregates, etc. to meet the rated capacity of the plant. The main assemblies of the hot mix plant erected on concrete platforms/foundations are of considerable size/depth, which is evident from Ext.R1(e) series of photographs produced along along with the counter affidavit filed by the 1st and 2nd respondents and also from Annexure R1(a) series of photographs produced in this Writ Appeal, along with I.A.No.100 of 2017, especially Annexure R1(a)(8) photograph. The hot mix plant of the 1st appellant with bin feeder, drier drum, bitumen tank, etc. of a considerable size and having a rated capacity of 90 to 120 tonnes of asphalt per hour cannot be termed as a portable machinery used for construction purpose, falling under the exemption clause in Section 233B of the Act, i.e., clause (d) to Section 233B, which deals with portable drilling machines and portable engines used for constructions purpose such as concrete mixers.
46. Since the appellants have raised a specific contention that the hot mix plant in question is similar to the one dealt with by the Division Bench of this Court in Janardhanan Nair's case W.A.No.2462 of 2016 30 (supra) and as such, no permission from the Grama Panchayat shall be required, in view of the exemption under Section 233B of the Act, we have called for the Judges papers in W.P.(C). No.37718 of 2015 and perused the same.
47. W.P.(C).No.37718 of 2015 was filed by a Government contractor, namely, Shri.V.K.Janardhanan Nair, seeking police protection for installation and operation of a hot mix plant on the strength of the consent to operate a temporary hot mix plant granted by the PCB under sub-clause (a) to clause (1) of Ext.P2 circular dated 1.10.2015, which enables the PCB to grant temporary consent for a period of one year for establishing and operating such plant, subject to the conditions stipulated therein. The fact that the consent so granted was for establishing a temporary hot mix plant with chimney having a height of 11 meters is evident from Ext.P5 consent produced in that Writ Petition.
48. The photographs of the said hot mix plant are also available in the Judges papers, as Ext.P14 series produced along with I.A.No.1023/2016, which would make it clear that, the W.A.No.2462 of 2016 31 subject matter of that Writ Petition was a hot mix plant of a considerably lesser size than the hot mix plant in the instant case, which was erected on the strength of Ext.P5 consent granted by the PCB, by driving steel piles (steel rails) into soil to provide foundation support for the hot mix plant. Further, as evident from Ext.P14 photographs, the hot mix plant in that Writ Petition mainly consists of the drum mix and scrubbing line. Therefore, in Janardhanan Nair's case (supra) this Court was dealing with a temporary hot mix plant governed by sub-clause
(a) to clause (1) of Ext.P2 circular dated 1.10.2015 issued by the PCB.
49. On the other hand, in the instant case, the hot mix plant in question is a permanent one governed by clause (2) of Ext.P2 circular, which is the admitted case of the appellants in Para.1 of the Writ Petition. Further, for establishing such plant, the 1st appellant has made permanent constructions investing about 75,00,000/-, as admitted in Para.6 of the reply affidavit filed in the Writ Petition. Therefore, the contention of the appellants that, the hot mix plant established by the 1st appellant W.A.No.2462 of 2016 32 in the plot in question is similar to the one dealt with by this Court in Janardhanan Nair's case (supra) and as such, no permission from the Grama Panchayat shall be required in view of the exemption clause, i.e., clause (d) to Section 233B of the Act, was rightly rejected by the learned Single Judge.
50. As we have already noticed, the hot mix plant of the 1st appellant, with a rated capacity of 90 to 120 tonnes of asphalt per hour, have bin feeder, drier drum, bitumen tank, etc. of considerable size, sufficient to store/handle bitumen, aggregates, etc. to meet the rated capacity of that plant. As evident from Annexure A printout produced by the appellants, it is a continuous mixer in which heating of aggregates, its homogeneous mixing and addition of set amount of bitumen and filler is done in the drum and the hot mix asphalt manufactured gets dispensed continuously into trucks. As evident from Ext.P18 consent issued by the PCB, the plant is having a capacity to produce 450 metric tonnes of hot mix per day, using 300 metric tonnes of metal (aggregates) and 70 metric tonnes of bitumen as raw materials.
W.A.No.2462 of 2016 33
51. In Ext.P14 judgment, while repelling the contention of the appellants with reference to the judgment of the Division Bench in Janardhanan Nair's case (supra), the learned Single Judge held that, the activities described in Item No.117 of Schedule I to the D&O Rules definitely will occur in the operation of the hot mix plant of the 1st appellant and as such, the decision of the Division Bench in Janardhanan Nair's case has no application to the facts of his case. In the absence of any challenge, the said finding of the learned Single Judge in Ext.P14 judgment has attained finality.
52. Moreover, vide Ext.P5 proceedings of the 2nd respondent/Secretary, the 1st appellant was granted permission for installation of machinery for the hot mix plant, subject to the condition that, after installation of the machinery, he is required to take separate D&O licence from the Panchayat. Accordingly, the 1st appellant submitted Ext.P17 application before the Grama Panchayat seeking D&O licence and the declaratory relief sought for in W.P.(C)No.38356 of 2016 is only to the effect that, the provisions of the Building Rules are wholly irrelevant for W.A.No.2462 of 2016 34 considering such an application for D&O licence and therefore, he has sought for a writ of mandamus commanding the 2nd respondent/Secretary to pass fresh orders on Ext.P17 application for D&O licence, without reference to the conditions enumerated in Ext.P16.
53. Therefore, the only question that remains for consideration is as to whether the reasons stated by the 2nd respondent/Secretary in Exts.P16 and P19 proceedings for not considering the applications for building permit and D&O licence for the hot mix plant are legally sustainable or not.
54. As we have already noticed, the fact that the 1st appellant had erected the drum mix plant with bin feeder, drier drum, bitumen tank, etc. of considerable size, after constructing concrete platforms/foundations of considerable size/depth is evident from Ext.R1(e) series of photographs produced along along with the counter affidavit filed by the 1st and 2nd respondents and also from Annexure R1(a) series of photographs produced in this Writ Appeal, along with I.A.No.100 of 2017. The 1st appellant has also constructed office building. All such W.A.No.2462 of 2016 35 constructions by the 1st appellant were made without obtaining a building permit from the Grama Panchayat under the provisions of the Building Rules is not in dispute. The fact that the plot in question is having an extent of more than one hectare is also not in dispute.
55. Rule 2(1)(m) of the Kerala Panchayat Building Rules, 2011 define the term 'building', which reads thus;
"2(1)(m). 'building' includes any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building, wells or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures."
56. Rule 2(1)(cu) of the Building Rules define the term 'structure', which reads thus;
"2(1)(cu). 'structure' means anything that is built or constructed or building of any kind or any piece of work artificially build up or composed or parts jointed together in some definite manner. The term 'structure' shall include W.A.No.2462 of 2016 36 'building'."
57. On a combined reading of clause (m) and clause (cu) of sub-rule (1) of Rule 2 of the Buildings Rules makes it explicitly clear that, the term 'building' defined under clause (m) takes within its sweep any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not, foundations, plinth, walls, floors, roofs, chimneys, etc., as stated therein. Since the term 'structure' shall include 'building', the term 'building' as defined under clause (m) takes within its sweep anything that is built or constructed or building of any kind or any piece of work artificially build up or composed or parts jointed together in some definite manner. Therefore, any structure for whatsoever purpose and of whatsoever material constructed and every part thereof or anything that is built or constructed or building of any kind or any piece of work artificially build up or composed or parts jointed together in some definite manner would fall within the sweep of 'building' as defined under Rule 2(1)(m) of the said Rules.
58. If that be so, for erecting the hot mix plant on W.A.No.2462 of 2016 37 concrete foundations/platforms, the 1st appellant has to obtain necessary building permit from the Grama Panchayat for making such constructions, including the enclosures, walls, buildings, etc. Therefore, the contention of the 1st appellant that, he requires building permit only in respect of the two buildings having a total plinth area of 186.09 sq. meters, as sought for in Ext.R1(a) application, cannot be sustained in law.
59. Rule 34 of the Building Rules deals with occupancy of buildings. As per Rule 34(1), the occupancy of any building or part thereof shall be governed by the use of plots proposed for development or redevelopment according to the provisions contained in the development plan or detailed town planning scheme prepared for the area. Rule 34(2) classify all buildings whether existing or proposed after the introduction of the said sub-rule, in one of the occupancies enumerated thereunder, according to the use or character of occupancy. Group I deals with hazardous occupancy.
60. As per Note (i) to Rule 34(2), any building not specifically covered by any of the occupancies under the said sub- W.A.No.2462 of 2016 38 rule shall be in the group, which most nearly resembles its existing or proposed use. Note (ii) to Rule 34(2) provides that, minor occupancy incidental to operations in another type of occupancy shall be considered as part of the main occupancy and shall be classified under the relevant group for the main occupancy.
61. As per Rule 34(3)(l) of the Building Rules, Group I hazardous buildings shall include any building or part of any building which is used for the storage, handling, manufacturing or processing of highly combustible or explosive materials or products which are liable to burn with extreme rapidity and/or which may produce poisonous fumes or explosions for storage, handling, manufacture or processing which evolve highly corrosive, toxic or noxious alkalies, acids or other liquids or chemicals producing flame, fume and explosive, poisonous, irritant or corrosive gases; and for the storage, handling or processing of any material producing explosive mixtures of dust which result in the division of matter into fine particles subject to spontaneous ignition. As per the said clause, any process or W.A.No.2462 of 2016 39 activity, where raw materials used therein or waste or effluence thereof would result in the pollution of the general environment are also included under Group I.
62. Rule 61 of the Building Rules deals with Group I hazardous occupancy. Sub-rule (1) of Rule 61, as it stood originally, reads thus;
"61(1). Approval of the District Town Planner shall be obtained for the usage of plot of upto 0.5 hectares area and layout of buildings upto 1000 sq.metres in area under hazardous occupancy and approval of the Chief Town Planner shall be obtained for the usage of plot exceeding one hectare area and layout of building exceeding 1000 sq.metres in area."
63. Relying on the provisions under Rule 61(1) of the Building Rules, as it originally stood, the appellants contended in Para.8 and Ground No.2 of the Writ Petition that, the approval of Chief Town Planner arises only when two conditions are cumulatively attracted, i.e., (i) the extent of the plot exceeds one hectare in area and (ii) layout of the building exceeds 1000 sq.meters in area. According to the appellants, since the total W.A.No.2462 of 2016 40 area of the temporary sheds in respect of which the 1st appellant had applied for building permit is less than 150 sq.meters., the provisions under Rule 61 of the Building Rules have no application in respect of his application for building permit. Such a contention was reiterated in Para.3 of the reply affidavit.
64. Vide S.R.O.No.26/2014, sub-rules (1) to (4) of Rule 61 of the Building Rules were substituted with effect from 13.1.2014. Sub-rule (1) of Rule 61, as substituted vide S.R.O.No.26/2014, reads thus;
"61(1). Approval of the District Town Planner shall be obtained for the usage of plot upto one hectare area and/or layout of buildings upto 1000 sq.metres in floor area under hazardous occupancy and approval of the Chief Town Planner shall be obtained for usage of plot exceeding one hectare area and/or layout of buildings about 1000 sq.metres in floor area."
65. Rule 61(1) of the Building Rules, after its substitution vide S.R.O.No.26/2014, with effect from 13.1.2014, mandates that, approval of the District Town Planner should be obtained for the use of plot upto one hectare area and/or layout of buildings W.A.No.2462 of 2016 41 upto 1000 sq.metres in floor area under hazardous occupancy and approval of the Chief Town Planner shall be obtained for usage of plot exceeding one hectare area and/or layout of buildings about 1000 sq.metres in floor area. The substitution of the words 'and/or' for the word 'and' in sub-rule (1) of Rule 61, makes it explicitly clear that, layout approval from the District Town Planner or the Chief Town Planner, as the case may be, has to be obtained in 'either or both' of the two eventualities stated therein.
66. In the instant case, admittedly the plot in which the 1st appellant has established the hot mix plant exceeds one hectare area. As such, he has to obtain layout approval of the Chief Town Planner for usage of that plot. As per Rule 61(4) of the Building Rules, the minimum clear width of access to a building as well as the width of the street giving access to the plot from the main street shall be 7 meters and shall be motorable.
67. Relying on the proviso to sub-rule (4) of Rule 61, the appellants contended in Para.8 and Ground No.4 of the Writ Petition that in the case of buildings under Group I occupancy W.A.No.2462 of 2016 42 with total floor area upto 300 sq.meters, such width shall not be less than 3 meters and shall be motorable. Therefore, the access to the plot in question having a width of 4.5 meters meet the requirements of Rule 61(4), since the total floor area of the building is less than 300 sq.meters.
68. The said proviso to Rule 61(4) was also amended by S.R.O.No.362/2015, with effect from 3.6.2015, by substituting the word 'vault' for the words 'building(s) with total floor area upto 300 sq.meters'. The said proviso after it substitution by S.R.O.No.362/2015 reads thus;
"Provided that, in the case of vault crematoria or burial grounds, the width shall not be less than 3 meters and shall be motorable."
The proviso to Rule 61(4) had undergone amendment as above, much prior to even Ext.P1 agreement dated 18.12.2015 executed between the appellants for the purpose of establishing a hot mix unit in the plot in question. Therefore, the contention of the appellants as to non application of the provisions under Rule 61 of the Building Rules in respect of the application submitted by W.A.No.2462 of 2016 43 the 1st appellant can only be rejected.
69. As discernible from Ext.P16, the construction of the hot mix plant, building, etc. has already been completed. Since, as per Note (ii) to Rule 34(2) of the Building Rules, minor occupancy incidental to operations in another type of occupancy shall be considered as part of the main occupancy and shall be classified under the relevant group for the main occupancy, the application for building permit made by the 1st appellant falls under Group I hazardous occupancy. Since the area of the plot exceeds one hectare, layout approval by the Chief Town Planner is required as provided under Rule 61 of the Building Rules. Accordingly, by Ext.P16 proceedings of the 2nd respondent, the 1st appellant was directed to resubmit the application after rectifying the deficiencies/defects noted therein, with reference to the mandatory requirements under Rule 61 of the Building Rules. Similarly, vide Ext.P19 proceedings of the 2nd respondent, the 1st appellant was informed that, since he has already made permanent construction of the plant, building, etc. in the plot in question, such constructions will have to be regularised as per W.A.No.2462 of 2016 44 the provisions of Rule 134 of the Building Rules and the Panchayat has to issue occupancy and assign building number, before considering his application for D&O licence.
70. For the reasons stated hereinbefore, the stand taken by the 2nd respondent/Secretary in Exts.P16 and P19 proceedings are perfectly legal, which warrants no interference at the hands of this Court. Therefore, the learned Single Judge rightly dismissed the Writ Petition, declining interference. We find no valid ground to interfere with the reasoning of the learned Single Judge in the judgment impugned in this appeal.
In the result, the appeal fails and the same is accordingly dismissed. No order as to costs.
Sd/-
MOHAN M. SHANTANAGOUDAR, CHIEF JUSTICE Sd/-
ANIL K.NARENDRAN, JUDGE dsn/skj True copy P.S. to Judge