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seemabhatnagar · 1 year

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Kerala Micro Small Medium Enterprises Act 2019 has overriding effect over The Kerala Panchayat Raj Act, 1994.

Civil Appeal Jolly George & Anr. v. George Elias And Associates & Ors.

The appeal is filed by the people of the locality.

Facts:

George Elias and Associates, the original writ petitioners, were engaged in undertaking road works in different parts of the State of Kerala.

They purchased Hot Mix Plants for carrying out the road works for which they bagged contracts for road work in Cherthala Aroorkutty.

Within a few months, the Kerala MSME Act came into force and hence the writ petitioners obtained an Acknowledgement Certificate.

Writ Petitioners submitted an application on 05.02.20 to the Kalloorkad Panchayat for the grant of a license, for installation of the Hot Mix Plant.

On 04.03.20 Kerala State Pollution Control Board granted “Consent to Establish”.

No response was received from the Panchayat so the Writ Petitioners claimed the benefit of deemed provision as provided in the Rules of Kerala Panchayat Raj.

Objections were raised by the members of locality.

Kalloorkad Panchayat rejected the application of the Writ petitioners for establishing Hot Mix Plant vide its order dt.12.05.20.

Rejection order was challenged before the Kerala High Court. Interim Stay was granted against the order of Panchayat.

A second Writ Petition was filed for declaration that when Acknowledge Certificate id obtained under Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 than license under the Kerala Panchayat Raj Act, 19943 is not necessary.

Decision of Single judge of Kerala High Court:

The Hot Mix Plant of the writ petitioners was a portable equipment and that it does not fall within the definition of the word “building” under the Rules of 2019.

The learned Single Judge also held that after the grant of “Consent to Establish” by the Pollution Control Board, permission of the Panchayat was only formal.

Order of Single Judge affirmed by Division Bench: This view was also confirmed by the Division Bench of the High Court.

Contention of the objectors:

Panchayat has a public duty to safeguard the areas and persons within its jurisdiction against environmental pollution and that the precautionary principle requires to be applied.

Rule 3 of the Kerala Micro Small Medium Enterprises Facilitation Rules, 2020, requires all persons seeking Acknowledgment Certificate under Section 5(3) to furnish a duly filled self-certification in Form-I.

This form contains an undertaking from the applicant to comply with the Kerala Panchayat Building Rules, 2019 and hence it is contended that the writ petitioners cannot avoid the requirement of permission from the local Panchayat.

Observation of the Apex Court

Neither Single Judge nor Division Bench of the Kerala High Court had gone into the overriding effect of Kerala Micro Small Medium Enterprises Act, 2019.

Section 10(2) of the Kerala MSME Act makes it clear that the provisions of the Kerala Panchayat Raj Act, 1994 shall be read as amended to be in conformity with the provisions of the Kerala MSME Act. Therefore, the Rules framed under Kerala Panchayat Building Rules, 2019 cannot annul the effect of the statutory provisions.

Section 10 of the Kerala MSME Act does not override the provisions of any of the pollution control laws such as Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974. The Kerala MSME Act overrides the 1994 Act and a few other local enactments.

Writ Petitioners have taken “consent” from the Pollution Control Board. Once consent is taken from the Pollution Control Board, the necessity for reading down Section 10 of the Kerala MSME Act, for the purpose of protecting the environment, does not arise.

The argument that Panchayat being the grassroot institution, has the right of participation in decision making, is again misconceived. All Panchayats want motorable roads

But if they do not want road construction materials to be manufactured within their Panchayat, we do not know where from these materials can be imported.

Decision: The Division Bench of the Apex Court comprising Hon’ble Mr. Justice V Ramasubramanian J Hon’ble Mr. Justice Pankaj Mithal J vide their order dt.12.04.2023 dismissed the appeal of the objectors and allowed the Writ Petition of the Respondents.

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cinobabup97 · 6 years

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