By a common order dated 18.03.2021, the learned Judge of the High Court of Kerala disposed of both the writ petitions permitting the writ petitioners to prefer an application for permission under Rule 68 of the Kerala Panchayat Building Rules, 2019 within two weeks and further directing the Secretary of the Panchayat to grant necessary permission subject to the conditions, if any, that may be imposed by the Panchayat.
Therefore, people of the locality have come up with the first three appeals challenging the common order passed by the Division Bench of the Kerala High Court in the three intra-court appeals. These brief facts are as follows: (i) George Elias and Associates, whom we shall describe as the writ petitioners, are engaged in undertaking road works in different parts of the State of Kerala.
(vii)
Therefore, challenging the said order dated 12.05.2020 the writ petitioners filed the first writ petition bearing WP (C) No.10381 of 2020.
(x) The learned Single Judge, without actually getting into the question relating to the overriding effect of Kerala MSME Act, held that 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. It is also admitted that the writ petitioners have obtained an Acknowledgment Certificate under Section 5(3) of the Kerala MSME Act. But Section 10 of the Kerala MSME Act not only confers overriding effect to the Act on other laws, but also makes a specific reference to the Act of 1994.
(2) In particular and without prejudice to the generality of the foregoing provisions of this Act, such provisions shall have effect notwithstanding anything inconsistent therewith contained in the following enactments and the provisions of these enactments shall be read as amended in conformity with the provisions of this Act, namely:— 1. Parameshwar, learned counsel appearing for the objectors contended that two issues arise for consideration namely (i) whether a self-certification obtained by respondent No.1 under the Kerala MSME Act is sufficient in itself to set up a Hot Mix Plant; and (ii) whether in the light of such self-certification, no permission from the Panchayat is required under the Act of 1994 and Rules of 2019.
Parameshwar, learned counsel that though his clients have not challenged the constitutional validity of Section 10 of the Kerala MSME Act, this Court can read down the overriding and absolute clauses in public interest.
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.
Accordingly, the appeal filed by the writ petitioner George Elias and Associates is allowed, the impugned orders are set aside and the writ petitions filed by George Elias and Associates are allowed.
There will be no order as to costs.
Case Title: JOLLY GEORGE Vs. GEORGE ELIAS AND ASSOCIATES (2023 INSC 365)
Case Number: C.A. No.-002764-002766 / 2023
