JOSE Vs. THE STATE OF KERALA

JUDGEMENT

(1.) As both these writ petitions are filed by the same petitioner and involve a common issue, they are taken up for consideration together and disposed by this common judgment.

(2.) The petitioners in both these writ petitions seek to establish and operate a crusher unit in 8 acres of land within the territorial limits of the Elamad Grama Panchayat. For the purposes of setting up the unit, and as a prelude thereto, they are stated to have applied for the necessary building permit, as also the D and O license, before the respondent Panchayat. It is the case of the petitioner that they have already approached, and obtained from the Kerala State Pollution Control Board, the necessary consent to establish the crusher unit in the said locality. The petitioners also produce as Exts.P3, P5 and P6 and P7, the No Objection Certificate issued by the Fire Department, the certificate issued by the Village Officer certifying that there is no forest in the vicinity of the proposed unit, the report of the District Medical Officer certified the health aspects in connection with the setting up of the unit and the report of the Assistant Engineer, which indicates that the road leading to the proposed unit has sufficient width. In W.P.(C). No.31123 of 2016, the case of the petitioners is essentially that while by Ext.P2 resolution, the respondent Panchayat had decided to forward the application of the petitioner to the Chief Town Planner for the latter's order, which is a requirement in terms of Rule 59 of the Kerala Panchayat Building Rules, for the purposes of grant of a building permit to the petitioners, and the said application was subsequently forwarded to the Chief Town Planner, while the matter was under consideration of the Chief Town Planner, the Panchayat passed a subsequent resolution dated 23.03.2016, whereby it took the view that, on account of the objections received from persons in the locality, there was no necessity to recommend the case of the petitioner for consideration of the Chief Town Planner for the purposes of issuance of a building permit. The communication issued by the respondent Panchayat to the Chief Town Planner resulted in Ext.P8 decision of the Chief Town Planner, who decided not to to consider the application taking note of the revised stand of the respondent Panchayat. By Ext.P9 communication issued by the Chief Town Planner, it was pointed out that since the Panchayat Committee had decided not to permit the proposed construction, the defects pointed out in the petitioners application for building permit did not require further consideration. In W.P.(C).No.31123 of 2016, Exts.P8 and P9 communications issued by the 2nd respondent Chief Town Planner are impugned by the petitioners. In W.P.(C).No.3851 of 2017, the resolution of the respondent Panchayat dated 23.03.2016, which led to the passing of Exts.P8 and P9 orders that are impugned in W.P.(C).No.31123 of 2016 is produced as Exts.P8 and impugned therein.

(3.) Counter affidavits have been filed in W.P.(C).No.31123 of 2016 by the 4th respondent Kerala State Pollution Control Board as also by the 2nd respondent Chief Town Planner. In the counter affidavit of the 2nd respondent, Exts.P8 and P9 decisions are justified for the reasons stated therein.