K.Jayachandran vs. State Of Kerala - Kerala High Court, 14 November 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THUR AY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941 WP(C).No.30140 OF 2019(N) PETITIONER: K.JAYACHANDRAN AGED 61 YEARS S/O. NARAYANAN NAIR, RESIDING AT KODASSERY HOUSE, WEST HILL, 38/2585, WEST HILL, KOZHIKODE-673005. BY ADVS. SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE ASSISTANT EXECUTIVE ENGINEER, PWD MECHANICAL DIVISION, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, THIRUVANANTHAPURAM-695001. 3 OACHIRA GRAMA PANCHAYATH, OACHIRA PANCHAYATH OFFICE, OACHIRA P O, KOLLAM DISTRICT, PIN CODE-690526, REPRESENTED BY ITS SECRETARY. 4 OACHIRA TEMPLE ADMINISTRATION BOARD, OACHIRA TEMPLE, OACHIRA P O, KOLLAM DISTRICT, PIN CODE-690526, REPRESENTED BY ITS SECRETARY. R3 BY SRI.B.HARISH KUMAR, SC, OACHIRA GRAMA PANCHAYATH SRI.RAJASEKHARAN NAIR, SR.GP, ADV. HARIHARAPUTHRAN, FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.30140 OF 2019 2 JUDGMENT The petitioner says that he has been permitted by the 4th respondent - Oachira Temple Administration Board to establish and operate a temporary amusement park with respect to the famous Oachira Temple festival, which is to commence from 15.11.2019 and to continue until 01.12.2019. He says that even though he has obtained all the necessary licences and consents from the Competent Authority, the Secretary of the Panchayat is refusing to allow him to operate the Amusement Park on the ground that the structural stability of the equipments and rides to be used in it have not been yet certified.

The petitioner says that in the past years, the structural stability of the equipments in the amusement park was certified by the 2nd respondent - The Assistant Executive Engineer, of the PWD Mechanical Division, but that this year when he approached them, he has been informed that he will not do so, citing the reason that they have no experts to issue such certificates.

The petitioner, therefore prays that the Secretary of the 3rd respondent Panchayat be directed to issue him the necessary

WP(C).No.30140 OF 2019 3 permission to run the Amusement Park on the strength of the stability certificate which he has obtained from Government approved Mechanical Engineering Experts, namely Exts.P9(2) and P10(2).

When this matter was considered by me on earlier occasions, I asked the learned Government Pleader to obtain instruction from the 2nd respondent - the Assistant Executive Engineer, PWD Mechanical Division, whether he would be in a position to inspect the Amusement Park and certify its stability and safety. The learned Senior Government Pleader, Sri.Rajasekharan Nair, submits that the said Authority has informed that his office does not have the competence to do so and if it has been done, in past, it was without necessary legal sanction. He says that the said Authority has taken a stand that the stability certificate from a Government approved Mechanical Engineer can be obtained by the petitioner and presented before the Secretary of the Panchayat, so that a final decision can be taken as to its operation.

The learned Standing Counsel for the Panchayat - Sri.Harish Kumar, submits that they have no objection in allowing the Amusement Park to function but that their there only concern

WP(C).No.30140 OF 2019 4 is that it cannot be allowed to be done without a proper stability and safety certificate. He says that since the 2nd respondent has taken a view that the petitioner can be allowed to operate on the strength of certificates issued by Government approved Mechanical Engineers, he is willing to consider the same; but raises the apprehension that, going by the certificates already placed on record, it does not appear that the Engineers concerned are Government approved.

Taking note of the afore submissions, I allow the petitioner to obtain valid tructural and stability certificate with respect to the various equipments, machines and rides in the amusement park, from a Government approved Structural Engineer/Mechanical Engineer and he will be at liberty to present the certificates before the Secretary of the 3rd respondent Panchayat; which Authority will thereupon, after verifying that the concerned Engineer is validly approved by the Government, consider the application to run the Amusement Park in terms of law and after following due procedure.

Since I am told that the festival is to start from 15.11.2019, I direct the Secretary of the Panchayat to take a decision without any delay, but not later than 48 hours after the

WP(C).No.30140 OF 2019 5 certificate as above is produced before him, in terms of this judgment. This writ petition is thus ordered. DEVAN RAMACHANDRAN JUDGE sru

WP(C).No.30140 OF 2019 6 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE GST REGISTRATION ISSUED ON 26.10.2019. EXHIBIT P2OF THE RECEIPT DATED 24.10.2019 ISSUED TO MR. SHARAF BY THE 4TH RESPONDENT. EXHIBIT P3OF THE CONSENT DATED 31.10.2019 GIVEN BY THE PETITIONER TO THE 4TH RESPONDENT. EXHIBIT P4 AOF THE LETTER DATE 30.10.2019 SENT TO THE 2ND RESPONDENT BY THE 4TH RESPONDENT. EXHIBIT P5OF THE REQUEST DATED 5.11.2019 SENT BY THE PETITIONER TO THE SECOND RESPONDENT. EXHIBIT P6OF LETTER DATED 5.11.2019 SENT BY THE 2ND RESPONDENT. EXHIBIT P7OF SANCTION LETTER DATED 16.11.2017 SENT TO THE PETITIONER. EXHIBIT P8OF SANCTION LETTER DATED 16.11.2018 SENT TO THE PETITIONER. EXHIBIT P9OF CERTIFICATE DATED 7.12.2018 ISSUED BY THE REVENUE OFFICER, PALA MUNICIPALITY TO THE PETITIONER ALONG WITH THE STABILITY CERTIFICATE. EXHIBIT P10OF CERTIFICATE DATED 26.12.2018 ISSUED BY THE THANNOOR MUNICIPALITY TO THE PETITIONER ALONG WITH THE STABILITY CERTIFICATE. EXHIBIT P11OF CERTIFICATE DATED 09.10.2019 ISSUED BY THE AADHICHANLLOOR GRAMA PANCHAYATH TO THE PETITIONER ALONG WITH THE STABILITY CERTIFICATE.