CASE TITLE
JOLLY GEORGE & ANR VS GEORGE ELIAS AND ASSOCIATES & ORS
WITH
CIVIL APPEAL NO. OF 2023
(Arising out of Special Leave Petition (C) No.4822 of 2022)
DATE OF ORDER
12th April 2023
BENCH
HON’BLE JUSTICE MR. V. RAMASUBRAMANIAN
PARTIES
APPELLANT- JOLLY GEORGE & ANR
RESPONDENT- GEORGE ELIAS AND ASSOCIATES &ORS
SUBJECT
OVERVIEW
- The case deals with first three set of appeals where GEORGE ELIAS AND ASSOCIATES & ORS is respondent no.1 and appellant in the fourth appeal filed two writ petitions in the High Court of Kerala for setting aside an order of the committee of gram panchayat of Kalloorkad in which the writ petitioners were refused to grant license for establishing a Hot Mix Plant and for declaration that approval certificate granted under Kerala Micro Small and Medium Enterprises Facilitation Act,2019 should be deemed to have licensed them.
- The writ petitioners were granted ‘ CONSENT GIVEN’ certificate by the Kerala State Pollution Control Board on 04.03.2020.
- The High Court through an order dated 18.03.2021 disposed of both the writ petitions. The court in the order directed the writ petitioners to obtain permission from the panchayat under Rule 68 of Kerala Panchayat Building Rules,2019 within two weeks.
- High Court of Kerala directed the secretary of panchayat to grant necessary permission and impose conditions if it may be necessary. The secretary cannot refuse to grant the permission since petitioners were already approved by the state pollution board to establish Hot Mix Plant.
- The decision of the High Court was challenged and three intra-court appeals were filed. One by the writ petitioners themselves since they were dissatisfied with the decision and the appeals were filed by local people who objected the establishing of Hot Mix Plant.
- Division Bench of Kerala High Court dismissed the appeals through an order dated 09.12.2021.
- Aggrieved by the disposal, the local people have come up with first three appeals and the original writ petitioner have come up with fourth appeal before the apex court.
ARGUMENTS ADVANCED BY THE APPELLANT
- The counsel appearing on behalf of the local people objecting the establishing of Hot Mix Plant questioned whether the certification obtained by respondent no.1 under Kerala MSME ACT is sufficient in itself.
- The counsel raised the contention that even if self-certification was obtained by the Respondent then whether no permission was required from the panchayat under the Kerala Panchayat Act,1994 and Kerala Panchayat Building Rules,2019.
- It was contended by the counsel that though constitutional validity of Section 10 of Kerala MSME ACT was not challenged, court can read down the overriding clauses in public interest.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The counsel submitted that the decision of the High Court was dissatisfying. The court in its decision did not actually got into the overriding effect of Kerala MSME ACT,2019.
- High Court of Kerala in its decision held that permission by the panchayat was a mere formality if given after the state pollution control board had already given its consent to establish.
- It was submitted by the counsel that the respondent (original writ petitioners) submitted an application on 05.02.2020 to the Kalloorkad Panchayat for the grant of license for establishment of the Hot Mix Plant.
- Since there was no response from the panchayat, the respondent claimed benefit under Rule12(3) of Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship Activities and Other Services)Rules, 1996.
- It is also submitted that an Acknowledge Certificate was also obtained under Section 5(3) of Kerala MSME ACT.
JUDGEMENT
- The apex court allowed the appeal filed by the writ petitioner George Elias & Associates and set aside the impugned orders.
- Court admitted that the writ petitioner i.e respondent no.1 have obtained consent to establish from the state pollution control board and an acknowledge certificate under Kerala MSME ACT.
- Court held that writ petitioner who is respondent no.1 in three appeals and appellant in fourth appeal is entitled to sought relief.
- It was held that Acknowledge Certificate obtained under Kerala MSME ACT, alone is sufficient to clinch the issue, whether Hot Mix Plant is portable or whether it is a temporary or permanent structure, in favour of the respondent no.1 (herein).
- Court held that consent taken from the State Control Pollution board has the most importance and after that no other permission is needed under the Kerala MSME ACT.
- It was made clear in the decision by the apex court that section 10 of Kerala MSME ACT does not have overriding effect on provisions of any of the pollution control laws. The overriding effect of the Act is on the Kerala Panchayat Act and local laws promulgated by the State.
CONCLUSION
The decision made by the apex court made it clear that the for the purpose of protection of environment, consent from the State Pollution Control Board is prioritized. Local enactments hold their own importance but comes latter to the pollution control laws.
