Summary
A road contractor holding an Acknowledgement Certificate under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 and consent from the State Pollution Control Board was refused a Gram Panchayat licence for a hot mix plant; the Kerala High Court directed the Panchayat to grant permission subject to conditions but refused a declaration that no Panchayat licence was needed. The Supreme Court allowed the contractor's appeal and dismissed the objectors' appeals: under Section 6 the certificate has effect as every approval required under State law for three years, Section 10 gives the Act overriding effect specifically over the Kerala Panchayat Raj Act, 1994, rules or a self-certification form cannot annul the statute, and no reading down was warranted since the Act does not override pollution control laws and Pollution Control Board consent had been obtained.
Issues
- Whether an enterprise holding an Acknowledgement Certificate under Section 5 of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 requires a separate licence or permission from the Gram Panchayat under the Kerala Panchayat Raj Act, 1994 and the Panchayat Building Rules, 2019.
- Whether the overriding clause in Section 10 of the 2019 Act should be read down in the interest of environmental protection and Panchayat participation.
Provisions considered
- Sections 2(c), 5 and 6, Kerala Micro Small and Medium Enterprises Facilitation Act, 2019An Acknowledgement Certificate has effect for all purposes as an 'approval', defined to include licences, permissions and consents required under any State law, for three years, during which no competent authority may inspect for such approval. (¶¶ 8, 9, 18)
- Section 10, Kerala Micro Small and Medium Enterprises Facilitation Act, 2019Gives the Act overriding effect over inconsistent laws and specifically directs that the Kerala Panchayat Raj Act, 1994 and listed local enactments be read as amended in conformity with it; it does not override central pollution control laws. (¶¶ 10, 14, 16)
- Rule 3 and Form I, Kerala Micro Small and Medium Enterprises Facilitation Rules, 2020The self-certification undertaking to comply with the Panchayat Building Rules cannot be used to nullify the statutory effect of the certificate, since rules cannot annul the Act. (¶¶ 13, 14)
Held
- By virtue of Sections 6 and 10 of the 2019 Act, the Acknowledgement Certificate operates as the Panchayat licence or permission required under the Act of 1994, and the declaration sought that no such licence was necessary ought to have been granted; both the Single Judge and the Division Bench overlooked this vital aspect. (¶¶ 8, 10, 11, 19)
- The objectors cannot rely on the Rules or the self-certification form to nullify the statute, and there is no occasion to read down Section 10 in the name of the precautionary principle because the Act does not override the Environment, Air or Water Acts and the writ petitioner had obtained consent from the Pollution Control Board; the plea of Panchayat participation is misconceived since road construction materials must be manufactured somewhere. (¶¶ 14, 15, 16, 17)
- It was unnecessary to decide whether the hot mix plant was portable or a temporary or permanent structure, as the Acknowledgement Certificate alone clinched the issue. (¶ 18)
Result
Appeal of the writ petitioner George Elias and Associates allowed, the High Court orders set aside and both writ petitions allowed, including the declaration that no separate Panchayat licence is required in view of the Acknowledgement Certificate; appeals of the objectors dismissed; no order as to costs.