LEON v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** ## **WP(C).No. 6954 of 2017** ## **PETITIONER/S:** ## **LEON** **AGED 51 YEARS, S/O.PATHROSE 6/429,PUTHEVEEDU, AMMAN KOVIL, ANCHUTHENGU P.O., ANCHUTHENGU PANCHAYATH - 695309.** ## **BY ADV. SRI.KARTHIK BHAVADASAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REP.BY SECRETARY TO THE GOVERNMENT,THIRUVANANTHAPURAM - 695001.** - **2 DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION ROAD,KUNDAPPARANAKUNNU,THIRUVANANTHAPURAM-695043.** - **3 ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, KUNDAPPARANAKUNNU,THIRUVANANTHAPURAM695043.** - **4 THE SECRETARY ANCHUTHENGU GRAMA PANCHAYAT,ANCHUTHENGU P.O., THIRUVANANTHAPURAM-695 309.** - **5 KERALA COASTAL ZONE MANAGEMENT AUTHORITY SASTHRA BHAVAN PATTOM,THIRUVANANTHAPURAM - 695004.** - **6 SRI.JOSEPH @ PALISA OUSEPH, AGED 50 YEARS,S/O.MARIYA SELVAN, MARY JESPIN LAND, MAMPALLY, ANCHUTHENGU, KADAKKAVUR VILLAGE,THIRUVANANTHAPURAM - 695 309.** - **7 THE BHARATH PETROLEUM CORPORATION LTD REPRESENTED BY TERRITORY MANAGER (RETAIL),AMBALAMUGHAL, COCHIN - 682302.** - **8 KERALA PUBLIC WORKS DEPARTMENT REP BY CHIEF ENGINEER, PUBLIC OFFICE,MUSEUM P.O., THIRUVANANTHAPURAM - 695033.** **WP(C).No. 6954 of 2017** **2** **9 ADDL.R9-SUB INSPECTOR OF POLICE, ANCHUTHENGU, THIRUVANANTHAPURAM-695604.( ADDL R9 IMPLEADED AS PER ORDER DATED 16.07.2018 IN IA NO.11443/2018)** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.M.P.PRAKASH, SC, KCZMA SRI.N.N.SUGUNAPALAN (SR.) SRI.P.VISWANATHAN SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.M.P.PRAKASH SC KCZMA SRI.N.N.SUGUNAPALAN (SR.) SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) SRI.S.SUJIN** ## **OTHER PRESENT:** **SR.GP B VINOD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6954 of 2017** **3** ## **JUDGMENT** The prayers in this writ petition are as follows: “i. To call for the records leading to Exhibit P2 certificate and P5 order and quash the same by issuing the writ of certiorari. ii. To issue a writ of mandamus to the 2[nd] and 4[th] respondent to take action in accordance with law to prevent the illegal activities carried on by the 6[th] respondent.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3, 8 and 9, the learned counsel appearing for 4[th] respondent, the learned Standing Counsel for the 5[th] respondent and the learned Senior Counsel appearing for the 6[th] respondent as well as the learned Standing Counsel for the 7[th] respondent. 3. The learned counsel for the petitioner submits that the 6[th] respondent is conducting a retail petroleum outlet of the 7[th] respondent Corporation illegally without obtaining licence from the 4[th] respondent. It is stated that as per the Coastal Regulation Zone norms, the site of the outlet of the 6[th] respondent falls under category III and no development is permissible thereon. It is stated that Ext.P2, No **WP(C).No. 6954 of 2017** **4** Objection Certificate had been issued by the concerned authorities without considering the violation of the CRZ notification. It is stated that Ext.P5 report of the Science and Technology Department was also issued without considering the CRZ regulations and the fact that the outlet was being run without proper licence from the Panchayath. The petitioner relies on Ext.P7 reply given by the 4[th] respondent Panchayath to the effect that no permission had been granted by the Panchayath to the 6[th] respondent to conduct the retail petroleum outlet. 4. The learned counsel for the petitioner submits that the functioning of the retail petroleum outlet, which is in violation of the CRZ norms as well as without obtaining a D&O licence from the Panchayath is liable to be interdicted. 5. A detailed counter affidavit has been filed on behalf of the 6[th] respondent, wherein it is submitted that Ext.P2, NOC was issued by the District Collector in 2010 and that the entire issue of the legality of the said NOC had been considered in detail by this Court in an earlier writ petition ie., W.P.(C) No.7197 **WP(C).No. 6954 of 2017** **5** of 2011, where the NOC was challenged by the rival petroleum dealer. After considering the entire factual aspects of the matter, this Court in a decision reported in _**Mary Ulahannan v. Union of India (2011(3) KLT 570)**_ the validity of the NOC granted to the 6[th] respondent had been upheld. This Court had held that rival operators, who were already engaged in retail petroleum operations are not entitled to challenge the NOC granted for setting up of retail outlets. The judgment of the learned Single Judge was later approved by a Division Bench of this Court and the judgment in W.A is produced as Ext.R6(b). 6. The 4[th] respondent has also placed a counter affidavit on record. The contentions of the learned counsel for the 4[th] respondent essentially support the contentions of the writ petitioner. It is stated that the 4[th] respondent had not granted any licence or permission to the 6[th] respondent to conduct a retail petroleum outlet in the premises in question. It is stated that a stop memo had been issued to the 6[th] respondent on 29.9.2016 and Ext.R4(b) communication was issued by the 4[th] respondent to the Sub Inspector of **WP(C).No. 6954 of 2017 6** Police, Anchuthengu, seeking enforcement of the stop memo. It is contended that the petrol pump is functioning in the property ignoring the stop memo issued by the Panchayath. The learned counsel appearing for the Panchayath would also submit that the 6[th] respondent, who is duty bound to obtain a D&O licence in terms of the rules, cannot rely on a deemed licence in respect of a particular financial year to contend that he is entitled to operate the pump even thereafter. The Learned counsel appearing for the 4[th] respondent further submits that the 6[th] respondent contention that he had a deemed licence since he had made Ext.R6(m) application for D&O license on 28.7.2016 is absolutely untenable in view of the fact that Ext.R6(o) communication had been issued by the Panchayath stating that his application was defective since required documents had not been produced along with the same. The learned counsel would also contend that the Panchayath had rejected the application for D&O licence on the ground that the 6[th] respondent's retail outlet violates the CRZ norms and rejection was intimated to the 6[th] respondent by communication dated **WP(C).No. 6954 of 2017** **7** 2.11.2016. The learned counsel for the 4[th] respondent also relies on a decision of a full bench of this Court in _**Abdul Kharim and Another v. Pazhayakunummel Grama Panchayath and Another (2018(5) KHC 643)**_ in support of the contention that in a case where the application itself was found to be defective and the defects were intimated to the applicant, no deemed licence can be relied on. It is further contended that even if such a deemed licence was in operation, the said licence would be applicable only for the financial year in question and unless the same is renewed, the outlet cannot function without a D&O licence. 7. The learned Counsel appearing for the 9[th] respondent as well as the learned counsel appearing for the 4[th] respondent would contend that the issue of the legality of Ext.P2 NOC stands concluded by Ext.R6(a) judgment. It is further contended that no reason is stated in the writ petition as to why Ext.P2 No objection Certificate granted in 2010 is being challenged by the petitioner at this distance in time. It is stated that the grievance of the petitioner is also not discernible from the pleadings in the writ **WP(C).No. 6954 of 2017** **8** petition and as such, the writ petition itself is not maintainable. 8. I have considered the contentions advanced. The prayer in the writ petition only raises a challenge to Ext.P2, No objection Certificate as well as Ext.P5 report. Ext.P5 is a report of the Science and Technology Department on an objection preferred by the petitioner in W.P.(C) No. 7197 of 2011, which was considered along with other cases in Ext.R6(a) judgment. The legality of Ext.P2 NOC, which was granted as early as on 24.11.2010 has been considered by this Court in Ext.R6(a) judgment. Ext.R6(a) considers the locus standi of rival operators to question the issue of No objection Certificates to fresh operators. Reserving the rights of the petitioners in those writ petitions to approach the Committee being setup to address the grievances of existing operators, the challenge against the NOC had been dismissed by this Court. The said finding was upheld by the Division Bench of the this Court as well. The learned counsel for the petitioner challenges the selfsame NOC and also the report with regard to the violations of the Coastal **WP(C).No. 6954 of 2017** **9** Zone Regulations, which is issued on a complaint made by the petitioner in an earlier writ petition. The challenge is raised in 2017 ie., seven long years after the NOC has been granted and after the retail petroleum unit has started functioning. I am of the opinion that the issue with regard to the grant of NOC cannot be considered by this Court at this distance of time, on pleadings raised by the petitioner in the writ petition. 9. With regard to the claim of the 6[th] respondent that it had a deemed licence, it appears from the materials produced by the 6[th] respondent that an application for D&O licence had been preferred on 28.7.2016. No orders had been rendered on the said application within the 30 days time as provided in the provisions of the Kerala Panchayath Raj Act. In the above view of the matter, I am of the opinion that the contention raised by the learned counsel for the 4[th] respondent that no deemed licence has come into existence cannot be accepted. Ext.R6(o) direction for production of documents issued after the time limit ie., on 24.9.2016 cannot be relied upon to contend that **WP(C).No. 6954 of 2017** **10** Ext.R6(q) order of rejection is one issued within time. This is in view of the fact that no communication had been given to the 6[th] respondent pointing out any defect in his application within the period of 30 days as prescribed in the statute. With regard to the further contention of the learned counsel for the 4[th] respondent that the 6[th] respondent does not have a valid D&O licence as on today, I am of the opinion that this is not a matter which arises for consideration in this writ petition, in view of the prayers sought for in the writ petition, which are confined to legality of Exts.P2 and P5. Leaving open the contentions of the parties on the necessity of the D&O licence and the legality of any action to be taken by the 4[th] respondent in the issue, the writ petition is dismissed. ## **Sd/-** ## **ANU SIVARAMAN** sab ## **JUDGE** **WP(C).No. 6954 of 2017** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO 2ND AND 3RD RESPONDENT DATED 07.02.2017.** **EXHIBIT-P2: TRUE COPY OF THE "NO OBJECTION CERTIFICATE" ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT-P3: TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT BY SMT.SASIKALA DATED 18.8.2010 AGAINST THE ISSUANCE OF EXHIBITP2 TO OPERATE THE RETAIL OUTLET. EXHIBIT-P3(A): TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT DATED 29.9.2010 AGAINST THE ISSUANCE OF EXHIBIT P2 TO OPERATE THE REAIL OUTLET. EXHIBIT-P4: TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 24.11.2010. EXHIBIT-P5: TRUE COPY OF THE REPORT BY THE SCIENCE AND TECHNOLOGY DEPARTMENT VIDE LETTER NO.057/ENV/2011/CZMA DATED 16.3.2011. EXHIBIT-P6: TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT AS TO NOT TO GRANT PERMISSION TO THE 6TH RESPONDENT TO CONDUCT THE PETROL PUMP. EXHIBIT-P7: TRUE COPY OF THE REPLY BY THE 4TH RESPONDENT DATED 18.07.2016 TO THE PETITIONER. RESPONDENT'S/S EXHIBITS: EXHIBIT R6(A).** TRUE COPY OF THE JUDGMENT DATED 23/5/2011 IN WPC NO.7197/2011. **EXHIBIT R6(B).** TRUE COPY OF THE JUDGMENT DATED 10/11/2011 IN WA NO.1092/2011. **EXHIBIT R4(A)** THE TRUE PHOTOCOPY OF STOP MEMO NO A2.3285/16 DATED 29.9.2016 **EXHIBIT R4(B)** THE TRUE PHOTOCOPY OF THE COMMUNICATION NO A2.3765/16 DATED 1.12.2016 **WP(C).No. 6954 of 2017** **12** **EXHIBIT R6 (C)** TRUE COPY OF THE BUILDING PERMIT NO A3/2793/2010 DATED 21.5.2010 ISSUED BY THE 4TH RESPONDENT **EXHIBIT R 6 (D)** TRUE COPY OF THE NOC DATED 20.5.2010 ISSUED BY THE DIVISIONAL OFFICER,FIRE & RESCUE SERVICES. **EXHIBIT R6 (E) EXHIBIT R6 (F) EXHIBIT R6(G)** TRUE COPY OF THE BUILDING TAX RECEIPT DATED 24.2.2011 ISSUED BY THE 4TH RESPONDENT PANCHAYATH. TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 14.3.2011 ISSUED BY THE 4TH RESPONDENT PANCHAYATH TRUE COPY OF THE APPLICATION FOR LICENSE SUBMITTED BY THE 6TH RESPONDENT DATED 28.4.2011 **EXHIBIT R6 (H) EXHIBIT R6 (I) EXHIBIT R6 (J) EXHIBIT R6 (K) EXHIBIT (I)** TRUE COPY OF THE RECEIPT DATED 28.4.2011 ISSUED BY THE 4TH RESPONDENT PANCHAYATH TRUE COPY OF THE REPORT DATED 10.5.2010 OF THE OVERSEER OF THE 4TH RESPONDENT PANCHAYATH TRUE COPY OF THE COMMUNICATION DATED 5.3.2011 OF THE 4TH RESPONCENT PANCHAYATH TO THE CHAIRMAN, KCZMA TRUE COPY OF THE EXPLOSIVE LICENSE DATED 16.7.2015 ISSUED BY THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVE. TRUE COPY OF NOTICE DATED 20.7.2016 ISSUED BY THE 4TH RESPONDENT PANCHAYATH **EXHIBIT R6 (M) EXHIBIT R6 (N) EXHHIBIT R6(O) EXHIBIT R6 (P)** TRUE COPY OF THE LICENSE RENEWAL APPLICATION DATED 28.7.2016 SUBMITTED BY THE 6TH RESPONDENT TRUE COPY OF THE RECEIPT DATED 28.7.2016 ISSUED BY THE 4TH RESPONDENT PANCHAYATH TRUE COPY OF THE LETTER DATED 24.9.2016 ISSUED BY THE4TH RESPONDENT PANCHAYATH TRUE COPY OF COMMUNICATION DATED 29.9.2016 ISSUED BY THE 4TH RESPONDENT PANCHAYATH TO THE 6TH RESPONDENT **EXHIBIT R6(Q)** TRUE COPY OF REPLY DATED 14.10.2016 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT PANCHAYATH **EXHIBIT R6(R)** TRUE COPY OF THE RECEIPT DATED 14.10.2016 ISSUED BY THE 4TH RESPONDENT PANCHAYATH **EXHIBIT R6(S)** TRUE COPY OF THE COMMUNICATION DATED 2.11.2016 ISSUED BY THE 4TH RESPONDENT PANCHAYATH **EXHIBIT R6(T)** TRUE COPY OF THE EXPLANATION DATED 16.11.2017 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 4TH RESPONDENT PANCHAYATH