Kerala High Court
Jilmon John vs The Manakad Grama Panchayath on 28 November, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940
WP(C).No. 36913 of 2018
PETITIONER/S:
1 JILMON JOHN,
AGED 53 YEARS
S/O JOHN, MADATHIL HOUSE, MANAKAD P.O, 685 608
THODUPUZHA TALUK, IDUKKI DISTRICT.
2 JINO JOHN,
S/O JOHN, MADATHIL HOUSE, MANAKAD P.O, 685 608
THODUPUZHA TALUK, IDUKKI DISTRICT. REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER JILMON JOHN, AGED 53 YEARS,
S/O JOHN, MADATHIL HOUSE, MANAKAD P.O, 685 608
THODUPUZHA TALUK, IDUKKI DISTRICT.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.ABY J AUGUSTINE
SRI.MATHEW DEVASSI
RESPONDENT/S:
1 THE MANAKAD GRAMA PANCHAYATH
CHITTOOR, PUDUPARIYARAM.P.O, IDUKKI DISTRICT, 685 608
REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
MANAKAD GRAMA PANCHAYAT, CHITTOOR, PUDUPARIYARAM
P.O., IDUKKI DISTRICT, PIN-686608.
BY ADV. SRI.M.H.HANIL KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC.NO.36913/18 2
JUDGMENT
This writ petition is filed by the petitioners seeking the following reliefs:
I) To call for the records leading upto Ext.P6 and to issue a writ of certiorari or other appropriate writ or order quashing Ext.P4; II) To issue a writ in the nature of mandamus or other appropriate writ or order commanding the 2nd respondent to forthwith forward Exts.P1 and P3 regularization application to the District Town Planner for further consideration and finalization".
2. The petitioners are owners of an extent of 2.72 acres of property in Manakad village within the territory of the 1st respondent grama panchayat. According to the 1st petitioner, the 2nd petitioner has authorised him to use the said plot for the purpose of establishing a bitumen mixing plant (hot mix plant). The Kerala State Pollution Control Board has issued a circular dated 1.10.2015 prescribing the norms for granting consent for establishing and operating temporary/permanent hot mix plant in the State. There are no residential houses within a radius of 100 meters from the point where the hot mix plant is sought to be located. It is also the case of the petitioners that the PCB has issued a consent in favour of the 1 st petitioner on 22.12.2015 and the same is valid up to 30.12.2018.
3. On the basis of the consent issued by the PCB, the 1 st petitioner has submitted an application before the 1 st respondent panchayat seeking permission to set up the hot mix plant as provided under Section 233 of the Kerala Panchayat Raj Act, 1994. The Panchayat Committee issued proceedings WPC.NO.36913/18 3 dated 15.2.2016 granting permission to the 1 st petitioner 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 and also a consent to operate from the PCB and NOC from the District Medical Officer.
4. On the strength of the aforesaid permission, the petitioners commenced the work of setting up of the hot mix plant. On the allegation that there are objections from the local residents, the 1 st petitioner was called for a personal hearing held on 19.2.2016. Later, by proceedings dated 4.3.2016 the 2nd respondent issued a stop memo requiring the 1 st petitioner to stop the work forthwith. The said stop memo was challenged before this Court by filing W.P.(C).No.8725/2016. An interim order was granted by this Court on 9.3.2016 for a period of one month and thereafter it was extended.
5. The petitioners thereafter applied for a building permit to construct two temporary sheds which are integral part of the hot mix plant. For the said purpose, the 1st petitioner submitted an application dated 17.2.2016 before the 2nd respondent. But the 2nd respondent vide his reply dated 22.3.2016 returned the said application pointing out that a joint application by the 1 st and 2nd petitioners is necessary for considering the application. Anticipating grant of building permit, the 1 st petitioner commenced construction of the temporary sheds. Alleging that the said construction was unauthorised, the petitioners were served with notice dated 18.4.2016 in exercise of the powers vested in the 2nd respondent in terms of Section 235X of the Kerala Panchayat Raj Act, 1994 to stop the construction forthwith. Later, another communication dated 29.4.2016 was issued, by which the petitioners were WPC.NO.36913/18 4 informed that their application for building Permit cannot be granted in view of the pendency of the writ petition before this Court. As per a communication dated 5.5.2016, the 2nd respondent required the petitioners to stop the construction in the plot in view of an interim order said to have been passed by this Court dated 29.4.2016 in W.P.(C).No.16515/2016. While so, the Kerala Panchayat Building (Regularisation of Unauthorised Construction) Rules, 2018 was brought into force, whereby the petitioners have submitted an application namely Ext.P1 seeking regularisation of the building constructed by them. The point that is put forth by the petitioners is that, under the Rules 2018 a mandatory requirement is provided by which the Secretary of the panchayat is to forward the regularisation application to the District Town Planner within 60 days from the date of receipt of the application. Anyhow, the case of the petitioners is that, if the Secretary did not reject the application within 60 days, the Secretary is bound to forward the same to the District Town Planner. It is thus seeking appropriate directions, this writ petition is filed.
6. Today when the matter is taken up, learned counsel for the respondents has produced a notice dated 26.11.2018 whereby the petitioners were directed to appear before the panchayat on 1.12.2018, receipt of which is denied by the learned counsel for the petitioners.
7. Anyhow, I am satisfied that on the basis of Ext.P1 application, already an action is taken by the Secretary of the panchayat to consider the application submitted by the petitioners for regularisation. According to learned counsel for the petitioners, the action now initiated by the Secretary WPC.NO.36913/18 5 of the panchayat cannot be sustained under law since he has not rejected the same within 60 days and therefore, the only course open is to refer the matter to the District Town Planner. This is stoutly opposed by learned counsel appearing for the respondents.
8. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents. I have considered the rival submissions made at the Bar and perused the pleadings and documents on record.
9. Relying upon Ext.P4 communication dated 7.9.2018 issued by the Secretary of the panchayat, learned counsel for the petitioners submitted that already the Secretary has taken a decision with respect to the application submitted by the petitioners on account of public protest raised against installation of the hot mixing plant. It is also submitted that since the suit is pending before the Munsiff Court, unless and until the same is finalised with respect to a road in question, the application submitted by the petitioners cannot be considered on merits.
10. On the other hand, learned counsel for the respondents pointed out that the Secretary of the panchayt will take a decision in accordance with law, ie., the Rules, 2018.
In my considered view, the provision with respect to consideration of the application by the Secretary within a period of 60 days can only be directory in nature, since the Secretary is vested with ample powers in the Rules itself to reject the application, if the same is found to be defective or under any circumstances not maintainable under law for consideration by the authorities WPC.NO.36913/18 6 constituted under the Rules, 2018. In that view of the matter, this writ petition is disposed of directing the Secretary to take a decision in the application submitted by the petitioners in accordance with law after securing participation of the petitioners and providing reasonable opportunity of hearing to the petitioners within a period of three weeks, dehors the findings contained in Ext.P4. The findings rendered by the Secretary or any other authorities under the Rules 2018 will be subject to the result of the suit said to be pending before the Munsiff Court evident from Ext.P4.
The writ petition is disposed of as above.
Sd/-
SHAJI P.CHALY JUDGE WPC.NO.36913/18 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 19/5/2018 EXHIBIT P2 TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT POINTING OUT THE DEFECTS DATED 1/6/2018 EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 6/8/2018 SUBMITTED BY THE PETITIONER TOGETHER WITH THE ACCOMPANYING DOCUMENTS.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED
7/9/2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS NO. 356/2017
ON THE FILE OF THE MUNSIFF COURT.
EXHIBIT P6 TRUE COPY OF THE STATEMENT SHOWING THE
LIABILITY OF THE PETITIONERS TO THE BANK
TRUE COPY
CL P.S TO JUDGE