M.V.JOY v. STATE OF KERALA

in 1993 by one Sri. Najeeb with a limited capacity of 40HP motor, that too as a secondary metal crusher unit. Petitioner alleges that after the establishment was sold to the eighth respondent, he applied for a building permit as per Ext.P2 dated 28-05-2008, for construction of a building for installing a primary crusher unit of 45 W.P.(C) No.20306/20 -:4:- HP in Survey No.439/5 of Kizhakkambalam Village. The said application was forwarded to the Chief Town Planner (for short 'CTP') who granted approval as per Ext.P9 on 15.10.2010 for the layout and usage with the condition to provide a 7-metre access width to the establishment. Petitioner alleges that the said 7-metre access width is not available and the establishment is being carried on illegally.

3. The eighth respondent, in the meantime, sold the unit to the seventh respondent, who is presently running the establishment, and the mandatory access width is unavailable. It is also pleaded that the minimum open area of 7.5 metres required around the building is yet to be maintained and therefore the conduct of the primary crusher is illegal. When the Panchayat had, without verifying any of the relevant factors, granted a licence, petitioner questioned the same, initially before the Panchayat Committee and later before the Tribunal. However, by Ext.P33 order, the Tribunal rejected the challenge. Petitioner alleges that the seventh respondent has illegally constructed a huge building without authority and has expanded his industry without complying with the relevant mandatory provisions while the Secretary of the Panchayat has, without verifying any of the statutory requirements, granted permission to conduct the W.P.(C) No.20306/20 -:5:- establishment. Petitioner has also pleaded that permissions have been obtained by the seventh respondent by fraud and misrepresentation and in collusion with the fifth respondent and hence the licences issued ought to be cancelled under section 236(9) of the Kerala Panchayat Raj Act, 1994 (for short ‘the Act’).

4. The seventh respondent in his counter affidavit stated that the crusher unit was started by Sri. Najeeb in the year 1993, at a time when the Panchayat Building Rules were not in force. It is pleaded that in 1996, the unit was sold to the eighth respondent, from whom the seventh respondent purchased it in 2012. It is also stated that the allegation of encroachment into revenue land no longer survives, while the allegations of lack of open space and access width were denied. The report of the Senior Town Planner dated 24-01-2015 was produced as Ext.R7(f) to justify the availability of open space. The seventh respondent further pleaded that, though the petitioner had filed various complaints, the Government directed the Panchayat to take a decision by its communication dated 30-12-2015 produced as Ext.R7(h) and thereafter, the Panchayat considered the matter and granted licence to the seventh respondent. It was also stated that the Tribunal had considered the entire matter in the correct W.P.(C) No.20306/20 -:6:- perspective and there are no reasons to interfere with the order of the Tribunal.

5. In the counter affidavit filed by respondents 4 and 5, it is stated that M/s.Robust Granites started in the year 1993 and the licence has been renewed till 30-06-2023. It is also stated that the allegation of trespass into road puramboke has now been resolved with the Kunnathunadu Panchayat granting a lease of the puramboke area to the seventh respondent. It was also pleaded that the area where the unit is situated is not densely populated and the traffic is also too minimal.

6. Petitioner has in his reply affidavit pointed out that the Panchayat could not have granted licence to the seventh respondent since the building was not only unauthorised but even the layout approval was cancelled on 20-03-2015 as per Ext.P21. It was also stated that more than ten residential buildings exist nearby and several vehicles ply through the road. It was also pointed out that the Senior Town Planner and the Town Planner (Vigilance) had in their reports found gross violation of the Building Rules and the minimum access width.

7. I have heard Sri. Renjith Thampan, the learned Senior W.P.(C) No.20306/20 -:7:- Counsel instructed by Sri. R.Parameswara Iyer, the learned counsel for the petitioner, Sri. S.Sreekumar, the learned Senior Counsel instructed by Sri. Alexander Joseph, the learned counsel for respondents 7 and 8, Sri Abraham P. Meachinkara, learned Standing Counsel for 6th respondent, Sri.Thomas George, learned Standing Counsel for respondents 4 and 5 and Smt. K.Amminikutty, the learned Senior Government Pleader.

8. The question to be considered is whether the metal crusher unit of the seventh respondent satisfies the requirements of law to function and to obtain a licence and whether Ext.P33 requires any interference. Two main contentions are raised on behalf of the petitioner. They are (i) the minimum open area of 7.5 m has not been maintained by the seventh respondent, and (ii) the minimum access width of 7-metres is not available for the industrial unit. These two contentions are dealt with as below: (i) Minimum open area of 7.5 metres.

9. The Tribunal has relied upon a report of the Senior Town Planner dated 24-01-2015 to arrive at a conclusion that the minimum open area of 7.5m has been maintained. A perusal of the documents produced, especially Ext.R7(g) report of the Deputy Director of W.P.(C) No.20306/20 -:8:- Panchayat states that the seventh respondent had purchased the adjacent property in 2012 and has annexed it to his property and therefore the minimum open area is available. No reasons are advanced to disbelieve the said report. The Tribunal has placed reliance on the report of the Senior Town Planner dated 24-01-2015 as well, to hold that the minimum open area required under law is maintained. The aforesaid finding of the Tribunal is based on the materials before it and it not being perverse, the said finding needs no interference. (ii) Minimum access width of 7.5 metres.

10. In Ext.P33, the Tribunal found that the minimum access width is available. However, the finding of the Tribunal on the access width to the establishment is not based on any material. The Tribunal has observed that the access width is available as a passing observation without reference to any document. The finding on the minimum access width available to the seventh respondent’s establishment is, therefore perverse.

11. In this context, it needs to be mentioned that the Building Rules became applicable to Panchayat areas on 06-06-2007. At that time, the eighth respondent was functioning as a secondary crusher W.P.(C) No.20306/20 -:9:- unit with a 40 HP motor. Thereafter, by Ext.P2, the eighth respondent applied for the construction of a building for the proposed primary crusher unit on 23-06-2008 (application is dated 28.05.2008 but received only on 23-06-2008, as seen from the endorsement). The said application was forwarded to the Chief Town Planner for approval of the layout and usage of the proposed building.

12. By Ext.P9 dated 15-10-2010, the Chief Town Planner, granted approval for the layout and usage of the plot in Survey No.439/6 to construct the machine room to convert the existing secondary metal crusher unit to a primary crusher unit on conditions. Amongst the conditions imposed, the third condition stipulated is that the minimum access width for the road to the establishment must be 7-metres and the Panchayat Secretary was directed to ensure that the said width was available. Unlike what has been projected by the respondents, Ext.P2 is an application for a building permit and not an application for regularisation, while, Ext.P9 is an order of approval of the layout and plot usage and not an order of regularisation.

13. The condition requiring an access width of a minimum 7- metres was a legal mandate as on the date of layout approval since the Building Rules had, with effect from 16-12-2009, incorporated W.P.(C) No.20306/20 -:10:- such a mandate for stone crushers.

14. While the application for approval was under process, the eighth respondent commenced construction in 2010 without getting the layout approval. Hence, the Panchayat on 13-09-2010 by Ext.P6, and later the District Collector on 18-11-2010 by Ext.P5, issued orders restraining any construction by the eighth respondent. In the meantime, the Regional Town Planner on 10-12-2010 by Ext.P11 communication pointed out that the conditions regarding the minimum access width to the establishment imposed in the layout approval of the Chief Town Planner have not been complied with. The Regional Town Planner pointed out that the access width available to the establishment was only 5m, 6.20m, and 6.60m. The seventh respondent came into the picture thereafter on 16-06-2012 as he purchased the unit. While so, on the basis of a report by the Chief Town Planner (Vigilance), the layout approval issued on 15-10-2010 was cancelled by Ext.P21 order dated 20-02-2015 for the failure to maintain the access width stipulated. Thus, the seventh respondent does not possess a layout approval for the additional construction or usage of the plot as a machine room for the primary crusher. The order cancelling the layout approval has not been W.P.(C) No.20306/20 -:11:- challenged as well and thus, Ext.P21 has become final.

15. However, the Government issued Ext.R7(h) communication to the fourth respondent Panchayat on 30-12-2015, directing the Panchayat to consider the grant of permit to the seventh respondent on the basis of the access width required by law as on 23-06-2008 which is stated as the “date of the application for regularisation”. Such an application for regularisation dated 23-06-2008 has not come on record. In fact, no one has a case that an application for regularisation was submitted by the eighth respondent on

23.06.2008. Ext.R7(g) is the report of the Panchayat Director referred to as serial No.4 in Ext.R7(h). A perusal of Ext.R7(g) reveals that it was the Panchayat Director, who has referred to the application for permission to construct the proposed primary crusher unit as an application for regularisation. It has to be reiterated that the application submitted by the eighth respondent on 23-06-2008 is an application for permission to construct and not an application for regularisation.

16. In this context, it has to be borne in mind that an application for a building permit has to be considered on the basis of the law in force at the time of consideration of the application and not W.P.(C) No.20306/20 -:12:- by the rules in force at the time of filing the application. Reference to the decisions in Asset Homes (P) Ltd. v. State of Kerala (2011 (2) KLT 1) and Ramesh T.K v. State of Kerala and Others (2019 (1) KHC 642) are relevant. Thus, the observation in Ext.R7(h) that the grant of licence can be considered based on the law in force as on 23-06-2008, is contrary to the binding precedents laid down by this Court.

17. Though it was contended by Adv. Alexander Joseph and correctly too, that there is no challenge on Ext.R7(h) still, while considering the grant of licence to an industrial establishment, the Panchayat Secretary has to abide by the law of the land. Law mandates that an industrial building can be constructed only with a valid layout approval. When by Ext.P21 the layout approval was cancelled, the Panchayat Secretary could not have issued a licence without the seventh respondent obtaining a fresh layout approval. The cancellation of the layout approval was never even challenged by the seventh respondent and in fact, Ext.P21 has become final also. Hence, even if Ext.R7(h) permitted consideration of the application for licence on the basis of the law in force as on 23-06-2008, still the Secretary of the Panchayat ought to have noted W.P.(C) No.20306/20 -:13:- that there was no layout approval available for the seventh respondent.

18. It is apposite to mention that from 40 HP motor installed in 1996 inside a 30 Sq.ft. building, the seventh respondent is conducting his metal crusher with a 238.5 HP motor in a building having more than 3000 Sq.ft. with the building falling under the Group I category of hazardous occupation. The access width required to be maintained are mandatory and cannot be relaxed under any circumstances too.

19. During the course of hearing, this Court enquired about the present access width. It was submitted on behalf of the petitioner and the respondents that even now the access width is less than 7 metres. All the reports too state that the access width is less than the minimum required. In such circumstances, the licence to conduct business as a metal crusher could not have been issued by the Panchayat. The Tribunal had failed to consider the absence of the access width in the proper legal perspective. Hence Ext.P33 order to that extent is liable to be set aside.

20. The seventh respondent and his predecessor has illegally converted a secondary metal crusher unit into a primary crusher unit W.P.(C) No.20306/20 -:14:- and constructed a building contrary to the building rules, without even having a valid layout approval. A licence could not have therefore been granted by the Panchayat to function such a metal crusher unit. Since as even now the minimum access width as required by law has not been provided, the industry cannot function as per law.

21. In the result, Ext. P33 to the extent it held that the licence was issued validly and that there is sufficient access width, is set aside. It is declared that the metal crusher unit conducted by the seventh respondent is not entitled to be issued with any licence, in view of the absence of a valid layout approval and proper access width. There will be a further direction to the respondents to ensure that the primary crusher of the seventh respondent is closed immediately. Writ petition is allowed to the above extent. BECHU KURIAN THOMAS JUDGE Sd/- W.P.(C) No.20306/20 -:15:- APPENDIX OF WP(C) 20306/2020 PETITIONER'S/S' EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY SRI.ABOOBAKKER AND OTHERS ON 30/11/2010. TRUE COPY OF THE APPLICATION SUBMITTED BY SUNNY DATED 28/05/2008. TRUE COPY OF PLAN SUBMITTED BY SRI. SUNNY VARHESE PROPOSING TO CONSTRUCT A BUILDING FOR ESTABLISHMENT OF PRIMARY UNIT. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 23/06/2008. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 18/11/2010. EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P11 TRUE COPY OF ORDER ISSUED BY THE 5TH RESPONDENT DATED 13/09/2010. TRUE COPY OF THE REVISED PLAN SUBMITTED BEFORE THE GRAMA PANCHAYAT TRUE COPY OF THE COMMUNICATION DATED 27/09/2010 TRUE COPY OF THE LAYOUT APPROVAL ISSUED BY THE CHIEF TOWN PLANNER DATED 15/10/2010. TRUE COPY OF THE REGULARIZATION ORDER NO.132/2008-09 DATED NIL. TRUE COPY OF PROCEEDINGS DATED 10/12/2010, ISSUED BY THE SR.TOWN PLANNER. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 28/1/2011. EXHIBIT P13 TRUE COPY OF THE LICENSE GRANTED IN FAVOUR OF THE 8TH RESPONDENT DATED 13/10/2011. EXHIBIT P14 TRUE COPY OF THE TITLE DEED DATED W.P.(C) No.20306/20 -:16:- EXHIBIT P15 EXHIBIT P16 EXHIBIT P17 EXHIBIT P18 EXHIBIT P19 EXHIBIT P20 EXHIBIT P21 EXHIBIT P22 EXHIBIT P23 EXHIBIT P24 16/06/2012. TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR. TRUE COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR DATED 24/3/2012. TRUE COPY OF THE JUDGMENT IN W.P(C) 8201/12 DATED 13/07/2012. TRUE COPY OF ORDER ISSUED BY THE DISTRICT COLLECTOR DATED 10/09/2012. TRUE COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED 19/12/2014. TRUE COPY OF THE INTERIM ORDER PASSED IN W.P (C) 3723/15. TRUE COPY OF THE ORDER PASSED BY THE CHIEF TOWN PLANNER DATED 20/03/2015. TRUE COPY OF THE COMMUNICATION DATED 26/11/2015 ISSUED TO THE CHIEF TOWN PLANNER. TRUE COPY OF THE CIRCULAR DATED 24/11/2009. TRUE COPY OF THE PETITION FILED BY THE 7TH RESPONDENT DATED 14/10/2015. EXHIBIT P25 TRUE COPY OF THE ORDER DATED 30/12/2015. EXHIBIT P26 EXHIBIT P27 EXHIBIT P28 EXHIBIT P29 TRUE COPY OF THE COMMUNICATION DATED 1/2/2016. TRUE COPY OF THE COMPLAINT DATED 8/1/2016. TRUE COPY OF THE COMPLAINT FILED BY THE LOCAL RESIDENTS DATED 22/4/2016. TRUE COPY OF THE REPORT OF THE CHIEF TOWN PLANNER (VIGILANCE) DATED 29/12/2014. EXHIBIT P30 TRUE COPY OF THE ORDER OF THE TRIBUNAL W.P.(C) No.20306/20 -:17:- EXHIBIT P31 EXHIBIT P32 EXHIBIT P33 EXHIBIT P34 EXHIBIT P35 EXHIBIT P36 EXHIBIT P37 EXHIBIT P38 EXHIBIT P39 IN RP.NO.145/17. TRUE COPY OF THE LICENSE ISSUED TO THE 7TH RESPONDENT DATED 8/5/2019. TRUE COPY OF THE DECISION OF THE COMMITTEE DATED 22/10/2019. TRUE COPY OF THE ORDER IN R.P.NO.124/19 DATED 21/8/2020. TRUE COPY OF THE LICENSE ISSUED TO SUNNY VARGHESE DATED 20/04/2010. TRUE COPY OF THE RELEVANT PAGE OF THE BUILDING TAX ASSESSMENT REGISTER MAINTAINED IN THE KIZHAKKAMBALAM GRAMA PANCHAYAT. TRUE COPY OF THE PROCEEDINGS OF THE KERALA STATE POLLUTION CONTROL BOARD DATED 1/9/2015. TRUE COPY OF THE REPORT OF THE TAHSILDAR DATED 19/9/2019 TRUE COPY OF APPLICATION FILED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 24.02.2021 AND ITS REPLY DATED 12.03.2021 ISSUED BY THE 5TH RESPONDENT

2. TRUE COPY OF THE REPORT DATED 30.08.2021 OF PERFORMANCE AUDIT SUPERVISOR, PUTHENCRUZ RESPONDENT'S/S' EXHIBITS EXHIBIT R7(a): EXHIBIT R7(b): TRUE COPY OF THE OBJECTION DATED 04/09/2012 OF THE 7TH AND 8TH RESPONDENTS. TRUE COPY OF THE SKETCH DATED 28/10/2014 PREPARED BY THE TALUK SURVEYOR KUNNATHUNADU. EXHIBIT R7(c): TRUE COPY OF THE INTERIM ORDER DATED 25/01/2018 IN WPC.NO.3723/2015 OF THE W.P.(C) No.20306/20 -:18:- EXHIBIT R7(d): HON'BLE HIGH COURT OF KERALA. TRUE COPY OF THE JUDGMENT DATED 06/02/2012 IN WPC.NO.22816/2011 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT R7(e): TRUE COPY OF THE ORDER DATED 07/06/2012 OF THE 5TH AND 6TH RESPONDETS. EXHIBIT R7(f): EXHIBIT R7(g): TRUE COPY OF THE REPORT DATED 24/01/2015 OF THE SENIOR TOWN PLANNER ERNAKULAM TO PLANNER THE THIRUVANANTHAPURAM. CHIEF TOWN TRUE COPY OF THE REPORT DATED 17/08/2015 DIRECTOR OF THIRUVANANTHAPURAM TO THE 1ST RESPONDENT. PANCHAYAT THE EXHIBIT R7(h): TRUE COPY OF THE DIRECTION ISSUED BY THE 1ST RESPONDENT TO THE 6TH RESPONDENT. EXHIBIT R7(i): EXHIBIT R7(j): EXHIBIT R7(k) EXHIBIT R7(l) EXHIBIT R7(m) TRUE COPY OF THE WRITTEN STATEMENT DATED 02/03/2020 OF THE 5TH AND 6TH RESPONDENTS IN RP NO.124/19 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION. TRUE COPY OF THE COUNTER AFFIDAVIT DATED 12/12/2019 OF THE 7TH RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF INSTITUTION THIRUVANANTHAPURAM IN RP.124/19. TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE/RENEWAL ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD TRUE COPY OF THE LEASE AGREEMENT DATED 12/07/2023 BY THE 6TH RESPONDENT TRUE COPY THE NOTICE DATED 05.11. 2011 AND LIST OF PARTICIPANTS IN THE HEARING ISSUED BY THE 1ST RESPONDENT TO THE 7TH RESPONDENT EXHIBIT R7(n) TRUE COPY THE WRITTEN SUBMISSION OF THE W.P.(C) No.20306/20 -:19:- Exhibit R6(A) Exhibit R6(B) 7TH RESPONDENT IN THE HEARING TRUE COPY OF THE APPLICATION DATED 19-7-2022 SUBMITTED BY THE PETITIONER TO THE PANCHAYATH. TRUE COPY OF THE DECISION NO.6(1) DATED 4-8-2022 OF THE KUNNATHNADU GRAMA PANCHAYATH.