Cherpu Grama Panchayath v. Tribunal for Local Self Government Institutions, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 2ND DAY OF SEPTEMBER 2016/11TH BHADRA, 1938** **W.P(C).No.21629 of 2016 (C) ----------------------------** ## **PETITIONER(S):-** **---------------** **CHERPU GRAMA PANCHAYATH, KATTAKAMBAL P.O., THRISSUR DISTRICT -680 561, REPRESENTED BY THE SECRETARY VELMURUGAN.** **BY ADV. SRI.RAJIT.** **RESPONDENT(S):-** **--------------** **1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM - 695 001.** **2. CHIEF TOWN PLANER, SWARAJ BHAVAN, NATHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 004.** **3. DISTRICT TOWN PLANNER,** - **P.O.AYYANTHOLE, THRISSUR DISTRICT - 680 001.** **4. JIJI SAJEEV, MUTTICHUKKARAN HOUSE, CHERPU P.O., THRISSUR DISTRICT - 680 561.** **5. ADV. SAJEEV GEORGE, MUTTICHUKKARAN HOUSE, CHERPU P.O., THRISSUR DISTRICT - 680 561.** **R1 TO R3 BY SR.GOVT.PLEADER SRI.RENIL ANTO KANDAMKULATHY. R4 & R5 BY ADV. SRI.SAJEEV GEORGE (PARTY-IN-PERSON)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No.21629 of 2016 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** ## **-------------------------** **EXT.P1A TRUE COPY OF THE ORDER ISSUED BY THE PETITIONER DT. 2.2.2013. EXT.P2 A TRUE COPY OF THE JUDGMENT DT. 21.6.2013 IN WPC NO.9193/2013 OF THIS HON'BLE COURT. EXT.P3A TRUE COPY OF THE COMMUNICATION ISSUED BY THE PETITIONER PANCHAYAT TO THE 4TH RESPONDENT, DT.26.7.13. EXT.P4 A TRUE COPY OF THE LETTER ISSUED BY THE DISTRICT TOWN PLANNER TO THE PETITIONER PANCHAYAT DT. 29.11.2013. EXT.P5 A TRUE COPY OF THE LETTER DT. 18.12.2013 ISSUED BY THE PETITIONER PANCHAYAT TO THE 5TH RESPONDENT. EXT.P6 A TRUE COPY OF THE STAY ORDER DT. 3.2.2014 IN IA NO.162/2014 IN APPEAL NO.79/2014. EXT.P7 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT Dated 6.3.2014. EXT.P8 A TRUE COPY OF THE ORDER PASSED BY THE CONSUMER REDRESSAL FORUM THRISSUR IN CC NO.140/2014 DT. 26.3.2014. EXT.P9 A TRUE COPY OF THE ORDER DT. 24.5.2014 IN APPEAL NO.79/2014 OF THE TRIBUNAL LOCAL SELF GOVERNMENT INSTITUTION. EXT.P10 A TRUE COPY OF THE ORDER DT. =13.2.2015 IN CC NO.140/2014. EXT.P11 A TRUE COPY OF THE ORDER IN APPEAL NO.403/2016 DATED 10.12.15. EXT.P12 A TRUE COPY OF THE ORDER DT. 17.2.2016 IN IA NO.60/2016 IN APPEAL NO.403/2016 OF THE 1ST RESPONDENT. EXT.P13 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT DT. 30.5.2016.** **W.P(C).No.21629 of 2016 (C)** ## **- 2 -** ## **RESPONDENT(S)' EXHIBITS:-** **--------------------------** - **EXT.R5(a) AUTHORISATION OF R4 FOR R5 TO APPEAR, PLEAD OR ACT FOR SUCH OTHER IN THEIR PROCEEDINGS DT.23.8.2016.** - **EXT.R5(b) COPY OF THE APPLICATION FOR TRADE LICENCE DT.12.12.2012 FILED BEFORE THE PETITION BY THE 4TH RESPONDENT.** - **EXT.R5(c) COPY OF PLAINT NUMBERED AS O.S.NO.2469 OF 2012 FILED BEFORE THE PRINCIPAL MUNSIFF COURT, THRISSUR.** - **EXT.R5(d) COPY OF LICENCE ISSUED BY EXPLOSIVE DEPARTMENT DATED 13.2.2015.** - **EXT.R5(e) COPY OF ORDER OF MINORITY COMMISSION DT.26.4.2016.** - **EXT.R5(f) COPY OF JUDGMENT DT.3.1.2014 IN COURT CASE (CIVIL) NO.1047/2014(S) OF THE HONOURABLE HIGH COURT.** - **EXT.R5(g) COPY OF RECEIPT ISSUED BY ASST.CONTROLLER, LEGAL METROLOGY, THRISSUR ACKNOWLEDGING THE ACCEPTANCE OF RS.2250/-.** - **EXT.R5(h) COPY OF THE REPLY DATED 02.06.2015 RECEIVED BY THE 5TH RESPONDENT FROM THE DISTRICT TOWN PLANNER, THRISSUR.** - **EXT.R5(i) DR.RADHAS MEDICAL PRESCRIPTION DT.16.3.2016.** - **EXT.R5(j) JUBILEE MEDICAL MISSION HOSPITAL M0MOGRAM RESULT DATED 16.3.2016.** **vku/-** **[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------- ## W.P.(C) No.21629 of 2016-C ---------------------------------------Dated this the 02[nd] day of September, 2016 ## **JUDGMENT** The petitioner, a Panchayat, is concerned with Exhibit P11 and P12 orders passed by the Tribunal for Local Self Government Institutions [for brevity “the Tribunal”]. Exhibit P11 is an order passed in appeal filed by the 4[th] and 5[th] respondents before the Tribunal against the refusal to grant a licence to conduct a retail outlet of petroleum products, for which a Letter of Indent has been granted by the Indian Oil Corporation [for brevity “IOC”]. The respondents 4 and 5 having obtained a Letter of Indent from the IOC and a No Objection Certificate [for brevity “NOC”] from the Additional District Magistrate, filed an application for D&O Licence before the Panchayat. The application submitted was to carry on the retail outlet in a building which was granted occupancy certificate under the residential category. The application was, hence, rejected by Exhibit P1. - 2 - WP(C) No.21629 of 2016 2. An appeal filed against Exhibit P1 before the Tribunal was dismissed on 12.03.2013; however, reserving the right of the 4[th] respondent to seek change of occupancy. The order of the Tribunal was challenged before this Court; which writ petition was disposed of by Exhibit P2. The Panchayat, before this Court submitted that the application has to be preferred by the actual owner of the property, i.e, the husband of the petitioner therein; who are respectively the 5[th] and 4[th] respondents here. Leaving such remedy, the writ petition was disposed of by Exhibit P2. 3. The application submitted by the 5[th] respondent was defective and the defects were notified to the 5[th] respondent, by Exhibit P3. The Secretary of the Panchayat also forwarded the application to the Town Planner, Thrissur; who noticed certain further defects as per Exhibit P4. The defects noticed by the Town Planner was intimated to the party respondents by Exhibit P5. The party respondents then filed an appeal before the Tribunal and, as seen from Exhibit P8, also approached the Consumer Disputes Redressal Forum, Thrissur [for brevity “CDRF”]. The appeal before WP(C) No.21629 of 2016 - 3 - the Tribunal was disposed of by Exhibit P9. 4. Before the Tribunal, the appellants/party respondents contended that for granting a permit under Rule 61 of the Kerala Panchayat Building Rules, 2011 [for brevity “Building Rules”] the Secretary of the Panchayat need only consult with the Town Planner and there is no need to obtain a concurrence as such. The aforesaid contention was raised on the ground that the Petroleum Rules, 2002 [for brevity “Petroleum Rules”] are framed by the Central Government under List I of the Seventh Schedule to the Constitution; Entry 53, and Entry 33 of List III, which takes away the power of the State to legislate on the very same subject. The party respondents also relied on _**Mary Ulahannan v. Union of India**_ **[2011 (3) KLT 570].** 5. The Tribunal, by Exhibit P9, considered the entire issue in detail. It was found that the decision in _**Mary Ulahannan**_ has no application to the case of the appellants. _**Mary Ulahannan**_ , from facts, was a case in which existing retail outlet operators had challenged the grant of new retail outlets in their area upon which WP(C) No.21629 of 2016 - 4 - State Government had made some restrictions; which restrictions were found to be not coming within the power of the State going by the Entries in the three Lists under the Seventh Schedule. Rule 61 of the Building Rules was referred to, to find that hazardous occupancy has been categorised under Group 1, wherein the approval of the District Town Planner had to be obtained for a plot upto 0.5 hectares area and layout of buildings upto 1000 square metres in floor area. ## 6. The Tribunal found so in Exhibit P9 order:- “Even though Rule 144 of the Petroleum Rules speaks about the licence to be issued showing the location of the premises proposed, to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed, it did not provide the location to automobile fuel filling station and their layout. So those matters are coming within the purview of Rule 61(9) of the KPBR and has to be considered by the Secretary in consultation with the District Collector and Chief Town Planner. In other words what Rule 61(9) provides are the matters to be considered by the Secretary while locating the automobile filling station and their layout within the approved site by the licensing authority under the Petroleum Rules”. - 5 - WP(C) No.21629 of 2016 It was found that while Rule 144 of the Petroleum Rules talks about site approval for establishing a retail outlet, Rule 61 of the Building Rules deals with the actual establishment of the outlet within the site and the layout of such establishment. The contention of the appellants with respect to the Town Planner having no authority, was repelled. 7. The Tribunal then examined the notice issued by the Secretary. It was found that the requirement for a site plan and service plan including the remaining property of the party respondents and ownership of the neighbouring properties is not required. What would be required is only to show the boundaries of the plot in the plan was the finding. The Tribunal found that there is discrepancy insofar as the defects noticed at item Nos.1, 4 and 5. The defects noticed at item Nos.2, 3, 6 and 7 were found to be within the powers of the Secretary as per the Building Rules. The said defects were directed to be rectified and a fresh consideration was directed. 8. In the meanwhile, the complaint filed before the WP(C) No.21629 of 2016 - 6 - CDRF was dismissed by Exhibit P10, mulcting cost on the complainants; the party respondents herein. 9. Obviously there was a further order passed by the Panchayat, bearing No.A29855/14 dated 23.03.2015, which was again challenged by the party respondents before the Tribunal; the order in which, produced at Exhibit P11, is also impugned herein. 10. The defects noticed by the Panchayat, in the impugned order before the Tribunal, was extracted by the Tribunal in Exhibit P11; which reads as under: - “a) The appellant has not described the distance from the road end to the dispensing unit in the plan. - (b) Along with the drawing, the licensee has not produced the certificate. - (c) The applicant has to produce a drawing showing the entire extent of land lying adjacent to the construction and if there are any other buildings, the description of those buildings must be recorded in the drawing. - (d) The applicant has to submit a location plan”. 11. The Tribunal found that defect (c), as noticed above, was not proper; since that would lead to an insistence for a - 7 - WP(C) No.21629 of 2016 site plan and service plan, showing the buildings in the boundary and within the locality which specifically was found to be not required as per Exhibit P9 order of the Tribunal in the earlier proceeding. Here, it is to be noticed that the Tribunal, even at the earlier point, had upheld the requirement for submission of detailed drawings prepared in 1:100 scale; the site plan, detailed site and service plan in 1:400 scale, which is noticed as defect No.2 in Exhibit P5. What was interfered with by the Tribunal at the earlier stage was the 4[th] condition, which required the site plan showing the neighbouring buildings on the boundaries also. The Tribunal had, without interfering with the demand for a site plan as such, indicated that what would be necessary for the applicants is to indicate the boundaries of the property in which the retail outlet is sought to be established. In such circumstance, the earlier order of the Tribunal having acquired finality, this Court does not find any reason to interfere with Exhibit P11 to that extent. 12. Defects (a), (b) and (d) as extracted hereinabove, were found to be proper by the Tribunal. It was also found by the WP(C) No.21629 of 2016 - 8 - Tribunal that consultation with the Town Planner is not a mere formality and the Secretary has to consider and take an independent decision; however, not blindly accepting the objections of the Town Planner. Having held so, the Tribunal directed that if the appellants/party-respondents produce copy of the documents showing the eligibility of the licensee and a location plan as required in the notice, ' _**the Secretary has to issue an order allowing the request of the appellants'**_ (sic). 13. This Court is not convinced that such a pre-emptive direction could have been issued merely for the reason that the Panchayat, in the appeal, had not appeared before the Tribunal. Especially when the Tribunal had found that the defects at (a), (b) and (d) were sustainable, there is ambiguity in the direction of the Tribunal since it indicates that the request of the appellants/party respondents has to be allowed if the documents showing the eligibility of the licensee is produced. This would be divesting the Secretary and the Town Planner of the authority conferred under the statute. Rule 61, as contended by the party respondents, does WP(C) No.21629 of 2016 - 9 - not merely speak of a consultation with the District Town Planner and mandates an approval in the event of a “Hazardous Occupancy” of a building. Hence, necessarily there should be a consideration of the eligibility; which has to be done by the Secretary on approval obtained from the Tribunal. 14. The learned Counsel for the Panchayat also prays for setting aside of Exhibit P12 order passed in an application to set aside the order passed _ex parte_ . Having considered Exhibit P9 and P11, this Court is of the opinion that there need be no interference caused to Exhibit P12 order, especially in the context of this Court's findings with respect to the infirmity in the directions issued by the tribunal in Exhibit P11. 15. The party-in-person, the 5[th] respondent, himself an Advocate, who appeared personally, again places the decision _**Mary Ulahannan**_ before this Court to urge that the authorities under the State have no power when, under the Petroleum Rules, the party respondents have been granted a sanction to establish a retail outlet. At the outset, it has to be noticed that the said WP(C) No.21629 of 2016 - 10 - contention was answered by the Tribunal in detail in its order at Exhibit P9 and rejected. The party respondents cannot now again raise that question and in any event, the said contention cannot be countenanced. _**Mary Ulahannan**_ , as was noticed, was a case in which restrictions were imposed by the State Government on the grant of new retail outlets; which was interfered with by this Court on the ground of no such power being vested in the Executive Government in the State. The establishment of a retail outlet necessarily has to be sanctioned under the Petroleum Rules and the location would have to be sanctioned under the said Rules; but, however, that does not take away the power of the State or the Local Self Government Institution having jurisdiction over the area; with respect to the construction of a building, the user of the same and issuance of D&O Licence as a regulatory measure within such jurisdiction. The identification and the site approval under the Petroleum Rules and the conversion of user of a building already constructed under a different category and issuance of D&O Licence are different aspects; for which the Union Parliament and WP(C) No.21629 of 2016 - 11 - the State Legislature have the power. 16. The State Legislature having sourced power; from Entry 5 of List II of the Seventh Schedule to the Constitution has framed the Kerala Panchayat Raj Act, 1994 and the Building Rules. The Act and the Rules framed thereunder regulate the constructions carried on within the jurisdiction of a local self government institution and regulates its user as defined under various categories from 'Residential' to 'Hazardous Occupancy' and also regulates carrying on of trades and businesses within such defined areas, all of which come under the broad category of local self governance, which the State has exclusive power to legislate upon under List II of the Seventh Schedule of the Constitution. The location approval under the Petroleum Rules does not by itself render the authorities under the local self government institution helpless insofar as the various approvals and sanctions required under the Panchayat Raj Act and the Building Rules. - 12 - WP(C) No.21629 of 2016 17. In such circumstance, Exhibit P11 is interfered with only to the extent of the Tribunal directing the request of the appellants/party respondents to be allowed on production of documents; which can only be done after such satisfaction as required under the respective statutes. In such circumstances, the party respondents 4 and 5 would be entitled to cure the defects and submit a proper application; which shall be considered by the Secretary of the petitioner-Panchayat within a period of two months from the date of submission of such application with approval from the Town Planner. The writ petition is partly allowed with the aforesaid directions. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]