Jiji Sajeev & Sajeev George v. Secretary, Cherppu Grama Panchayat & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938 WA.No. 2338 of 2016 () IN WP(C).21629/2016 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 21629/2016 of HIGH COURT OF KERALA DATED 02-09-2016 ## APPELLANTS/RESPONDENT 4 & 5.: ------------------------------ 1. JIJI SAJEEV, MUTTICHUKKARAN HOUSE, CHERPU P.O., THRISSUR DIST, PIN-680561. 2. ADVOCATE SAJEEV GEORGE, MUTTICHUKKARAN HOUSE, CHERPU P.O., THRISSUR DIST.PIN-680561. BY SRI. JIJI SAJEEV (PARTY-IN-PERSON) ADV. SAJEEV GEORGE (PARTY-IN-PERSON) ## RESPONDENTS/PETITIONER/RESPODNENTS: - ------------------------------------1. SECRETARY, CHERP GRAMA PANCHAYATH, CHERPU P.O, PIN-680561. - 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM.PIN-695001. - 3. CHIEF TOWN PLANNER, SWARAJ BHAVAN, NANDAN CODE, KOWDIAR P.O, THIRUVANANTHAPURAM, PIN-695004. - 4. DISTRICT TOWN PLANNER, AYYANTHOLE P.O, THRISSUR DIST. PIN-680003. R1 BY SRI.RAJIT BY ADV.SRI.SAJI VARGHESE (AMICUS CURIAE) R3-R4 BY SR.GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU.T.K THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2017, THE COURT ON 08-02-2017 DELIVERED THE FOLLOWING: ## **MOHAN M.SHANTANAGOUDAR, CJ. & ANIL K.NARENDRAN, J.** **--------------------------------------------------------------------W.A.No.2338 of 2016 --------------------------------------------------------------------Dated this the 8[th] day of February, 2017** ## **JUDGMENT** ## **Anil K.Narendran, J.** This Writ Appeal arises out of the judgment of the learned Single Judge dated 2.9.2016 in W.P.(C).No.21629/2016. 2. Cherppu Grama Panchayat, the 1[st] respondent herein filed the said Writ Petition seeking a writ of certiorari to quash Ext.P11 order dated 10.12.2015 of the Tribunal for Local Self Government Institutions in Appeal No.403/2015 and Ext.P12 order of the said Tribunal dated 17.2.2016 in I.A.No.60/2016 in that appeal. The Grama Panchayat has also sought for a writ of mandamus commanding the Chief Town Planner, Thiruvananthapuram and the District Town Planner, Thrissur, the 3[rd] and 4[th] respondents herein, to certify the safety measures and due compliance of the provisions under Rule 61 of the Kerala Panchayat Building Rules, 2011, in respect of the application submitted by the appellants herein and forward the same to the Grama Panchayat for appropriate action. W.A.No.2338 of 2016 2 3. The reliefs sought for in the Writ Petition were opposed by the appellants/respondents 4 and 5 by filing a detailed counter affidavit. 4. After considering the rival contentions with reference to the materials on record, the learned Single Judge allowed the Writ Petition in part thereby interfering with Ext.P11 order of the Tribunal to the extent of the Tribunal directing the request of the appellants to be allowed on production of documents; which can only be done after such satisfaction as required under the respective statutes. The learned Single Judge held that the appellants will be entitled to cure the defects and submit a proper application; which shall be considered by the Secretary of the Grama Panchayat within a period of two months from the date of submission of such application, with approval from the Town Planner. 5. Feeling aggrieved by the judgment of the learned Single Judge, the appellants/respondents 4 and 5 are before this Court in this appeal. W.A.No.2338 of 2016 3 6. We heard the arguments of Adv.Sri.Saji Varghese, the learned Amicus Curiae, the 2[nd] appellant who appeared in person, learned Standing Counsel for Cherppu Grama Panchayat representing the 1[st] respondent and the learned Senior Government Pleader representing respondents 2 to 4. 7. The issue raised in this appeal relates to grant of licence to run a petroleum retail outlet by the 1[st] appellant for which the Indian Oil Corporation has granted a Letter of Indent and the Additional District Magistrate, Thrissur has granted a No Objection Certificate, in exercise of his powers under Rule 114 of the Petroleum Rules, 2002. 8. Based on the letter of indent and the No Objection Certificate, the 1[st] appellant submitted an application before the Grama Panchayat for D&O licence to run the petroleum retail outlet. In order to run the said outlet, the 1[st] appellant obtained on rental agreement 14 cents of land belonging to the 2[nd] appellant (who is her husband), situated in Chowalloor Village with an old concrete house having a plinth area of 360 Sq.Ft. W.A.No.2338 of 2016 4 Since it is a residential building, the 1[st] appellant was granted occupancy certificate under residential category. For that reason, the application made by the 1[st] appellant for D&O licence to run the petroleum retail outlet was rejected by Ext.P1 order dated 2.2.2013. 9. Ext.P1 order was under challenge before the Tribunal, which ended in dismissal by the order dated 12.3.2013, confirming the stand taken by the Grama Panchayat in Ext.P1, but granting liberty to the 1[st] appellant to seek permission for change of occupancy of the building in question. Accordingly the 1[st] appellant submitted an application for change of occupancy. Immediately thereafter she filed W.P.(C).No.9193 of 2013 contending that she is having a deemed licence from the Grama Panchayat to run the petroleum retail outlet in the property in question. The said writ petition was disposed of by Ext.P2 judgment dated 21.6.2013 by which the 1[st] appellant was directed to file a proper application for licence and the Grama Panchayat was directed to consider and pass appropriate orders W.A.No.2338 of 2016 5 thereon in accordance with law, after affording her an opportunity to cure the defect, if any. 10. Pursuant to the Ext.P2 judgment, the 1[st] appellant submitted an application dated 12.7.2013, which was found to be defective and as such the Grama Panchayat issued Ext.P3 communication dated 26.7.2013 requiring her to cure the defect and re-submit the application. Since the petroleum retail outlet proposed by the 1[st] appellant fall under hazardous occupancy under Rule 61 of the Kerala Panchayat Building Rules, as mandated under sub-rule (9) of of Rule 61 consultation with the District Collector and the Chief Town Planner are necessary to decide the location of the outlet and its layout. Accordingly the application submitted by the 1[st] appellant was forwarded to the District Town Planner. 11. The District Town Planner in Ext.P4 communication pointed out certain defects in the application and informed that unless those defects are cured the application cannot be forwarded to the Chief Town Planner for layout approval. A copy W.A.No.2338 of 2016 6 of Ext.P4 communication was also marked to the 1[st] appellant. Based on Ext.P4 communication issued by the District Town Planner, the Grama Panchayat issued Ext.P5 communication dated 18.12.2013 addressed to the 2[nd] appellant directing the appellants to cure the defects pointed out in Ext.P4 communication and thereafter resubmit the application. 12. The 2[nd] appellant challenged Ext.P5 communication by filing Appeal No.79 of 2014 before the Tribunal and obtained Ext.P6 order of stay. Thereafter the 1[st] appellant submitted Ext.P7 application before the Grama Panchayat to grant permission to open the petroleum retail outlet. 13. During the pendency of that appeal before the Tribunal, the 1[st] appellant filed C.C.No.140 of 2014 before the Consumer Disputes Redressal Forum, Thrissur seeking a direction to the Grama Panchayat to issue trade licence and obtained Ext.P8 order dated 26.3.2014 by which the Grama Panchayat was directed to issue deemed trade licence within a week. The said order was challenged by the Grama Panchayat by fling W.P.(C). W.A.No.2338 of 2016 7 No.10504 of 2014 before this Court. In the said writ petition this Court directed the Grama Panchayat to raise objection to Ext.P8 interim order before the Consumer Disputes Redressal Forum and the said Forum was directed to pass final orders. Pursuant to the said direction, the Consumer Disputes Redressal Forum by Ext.P10 order dated 13.2.2015 dismissed the said complaint as not maintainable after imposing a cost of 5,000/- payable to the₹ Grama Panchayat. 14. The Tribunal by Ext.P9 order dated 24.5.2014 disposed of Appeal No.79 of 2014 by which the Secretary of the Grama Panchayat was directed to issue fresh notice to the appellants specifically mentioning the defects regarding noncompliance of Rule 61 of the Kerala Panchayat Building Rules and on receipt of the same the 1[st] appellant shall furnish fresh application with plan curing the defects and thereafter the Secretary of the Panchayat shall proceed with the application submitted by her, in accordance with law. W.A.No.2338 of 2016 8 15. A reading of Ext.P9 order passed by the Tribunal in Appeal No.79 of 2014 would make it explicitly clear that the specific contention raised the appellants as to non-applicability of sub-rule (9) of Rule 61 of the Kerala Panchayat Building Rules, in view of the No Objection Certificate issued by the Additional District Magistrate in exercise of his powers under Rule 144 of the Petroleum Rules, was specifically repelled by the Tribunal while dismissing that appeal. In the absence of any challenge made against Ext.P9 order, the said finding of the Tribunal has attained finality. 16. In terms of the direction contained in Ext.P9 order of the Tribunal, the Grama Panchayat issued a communication dated 23.3.2015 to the appellants to resubmit the application after curing the defects. The appellants challenged the said communication before the Tribunal by filing Appeal No.403 of 2015. By Ext.P11 order the Tribunal allowed Appeal No.403 of 2015 and modified notice dated 23.3.2015 issued by the Grama Panchayat to the extent indicated therein. The appellants are W.A.No.2338 of 2016 9 directed to produce documents showing the eligibility of the licensee and the location plan as required in the notice dated 23.3.2015 and on receipt of the same the Secretary of the Grama Panchayat has to issue an order allowing the request of the appellants. A reading of Ext.P11 order would show that, though the appellants raised contentions regarding non-applicability of sub rule (9) of Rule 61 of Kerala Panchayat Building Rules, the Tribunal has not entertained the said contention in view of the findings in Ext.P9 order on that issue, which has attained finality. 17. Since Ext.P11 order of the Tribunal was an ex parte order, the Grama Panchayat filed I.A.No.60 of 2016 seeking an order to set aside the same. The said application was rejected by Ext.P12 order dated 17.2.2016. Subsequent to Ext.P12 the 1[st] appellant submitted Ext.P13 application before the Grama Panchayat for issuance of D&O licence. According to the Grama Panchayat the said application was submitted without curing any defects already noticed, including the change of occupancy as pointed out in Ext.P1 notice. It was in such circumstances, W.A.No.2338 of 2016 10 challenging Exts.P11 and P12 orders of the Tribunal, the Grama Panchayat approached this Court in W.P.(C).No.21629 of 2016. 18. The appellants herein who are respondents 4 and 5 in that writ petition filed counter affidavit contending, inter alia, that in view of the No Objection Certificate issued by the Additional District Magistrate in exercise of his powers under Rule 144 of the Petroleum Rules the Grama Panchayat cannot insist layout approval in terms of sub rule (9) of Rule 61 of the Kerala Panchayat Building Rules. In the said counter affidavit they would also make reference to O.S.No.2469 of 2012 filed by the nearby petroleum retail outlet dealers, the complaint filed by the appellants before the Kerala Minority Commission as N.C.O.P.No.525 of 2015, etc. 19. Based on a complaint filed by the 2[nd] appellant before the campaign 'Sutharya Keralam' he was issued with Ext.R5(h) communication dated 2.6.2015 of the District Town Planner in which it has been stated that the existing construction in the property in question is in conformity with the rules and as such, if W.A.No.2338 of 2016 11 an application is made along with detailed plan, necessary records and certificates approval can be granted for such construction. Therefore, the appellants would contend that they are entitled for licence to run petroleum retail outlet in the building in question and there is absolutely no illegality or irregularity in Exts.P11 and P12 orders passed by the Tribunal. 20. After considering the rival contentions the learned Single Judge rightly found that the contention raised by the appellants regarding non-applicability of sub rule (9) of Rule 61 of the Kerala Panchayat Building Rules was answered by the Tribunal in detail and rejected in Ext.P9 order dated 24.5.2014 and as such, the appellants cannot now again raise that question before this Court. 21. Relying on the judgment of this Court in **Mary Ulahannan v. Union of India (2011 (3) KLT 570)** it was contended that in view of the provisions under the Petroleum Rules, 2002 framed by the Central Government under List I of the Seventh Schedule to the Constitution; Entry 53, Entry 33 of W.A.No.2338 of 2016 12 List III, the power of the State legislature to legislate on the very same subject is taken away and as such no restriction on construction of a petroleum retail outlet can be imposed under Rule 61 of the Kerala Panchayat Building Rules. 22. In **Mary Ulahannan's** case (supra) this Court was dealing with the competency of the State Government in issuing a circular stipulating certain norms fixing the minimum viability limits, etc. for opening a new petroleum retail outlet in the State. Such restrictions imposed by the State Government were interfered with by this Court on the ground of no such power being vested in the executive Government in the State. 23. The principle laid down in the said decision has no application to the factual matrix of the case on hand, inasmuch as, 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 Kerala Panchayat Building Rules, 2011. The said Act and the Rules regulate the constructions carried on within the jurisdiction of a Local Self W.A.No.2338 of 2016 13 Government Institutions and regulate its user as defined under various categories from 'residential' to 'hazardous occupancy'. The said provisions also regulate carrying on trade and business within such defined areas, all of which come under the broad category of Local Self Government which the State has exclusive power to legislate upon under List II of the Seventh Schedule to the Constitution. 24. Therefore as rightly held by the learned Single Judge 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 made thereunder are concerned. At any rate, the appellants are estopped from raising such a contention as to non-applicability of Rule 61 of the Kerala Panchayat Building Rules, in view of the specific finding of the Tribunal in Ext.P9 order in Appeal No.79 of 2014, which has attained finality. W.A.No.2338 of 2016 14 25. Therefore, without fulfilling the statutory mandate of sub rule (9) of Rule 61 of the Kerala Panchayat Building Rules the application submitted by the 1[st] appellant for D&O licence for the petroleum retail outlet cannot be processed. It was in such circumstances that, the learned Single Judge by the impugned judgment interfered with Ext.P11 order of the Tribunal to the limited extent as stated in para.17 of the judgment, making it clear that the request made by the appellants can be allowed only after such satisfaction as required under the respective statutes. Accordingly the appellants were permitted to cure the defects and submit a proper application; which shall be considered by the Grama Panchayat within a period of two months from the date of submission of such application, with the approval from the Town Planner. 26. The reasoning of the learned Single Judge in the impugned judgment is perfectly legal, which warrants no interference in this appeal. W.A.No.2338 of 2016 15 27. In the result, the writ appeal fails and the same is accordingly dismissed. 28. It is for the appellants to submit a proper application in terms of the judgment of the learned Single Judge within a period of one month from the date of this judgment; which shall be considered by the Secretary of the respondent Grama Panchayat within a period of two months thereafter, with the approval from the Town Planner. We place on record the valuable services rendered by the learned Amicus Curiae in assisting the Court in this matter and also placing the facts on behalf of the appellants. ## Sd/- **MOHAN M.SHANTANAGOUDAR, CHIEF JUSTICE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge