Muhammed Rafeeq v. Vengola Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** ## **WP(C).No.19213 OF 2020(B)** ## **PETITIONER:** **MUHAMMED RAFEEQ, AGED 28 YEARS S/O.HAMEED KOMU, KADAVIL HOUSE, PONJASSERRY P.O., PERUMBAVOOR, ERNAKULAM, PIN - 683 547.** **BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA KUM.K.S.SREEREKHA SRI.NABIL KHADER** ## **RESPONDENTS:** |**1**|**VENGOLA GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, VENGOLA P.O.,**| ||**PERUMBAVOOR, PIN- 683 554.**| |**2**|**THE SECRETARY, VENGOLA GRAMA PANCHAYATH**| ||**VENGOLA P.O., PERUMBAVOOR, PIN - 683 554.**| |**3**|**BHARATH PETROLEUM CORPORATION LTD.**| ||**REPRESENTED BY ITS TERRITORY MANAGER - RETAIL,**| ||**BPCL, IRUMPANAM INSTALLATION, KOCHI - 682 309.**| |**4**|**ADDL.R4.ELDHO.N.PAUL**| ||**S/O PAUL, RESIDING AT NAMMANARIL HOUSE,**| ||**KIZHAKKAMBALAM, ERNAKULAM**| ||**ADDL R4 IMPLEADED AS PER ORDER DATED 07-10-**| ||**2020 IN IA 1/2020.**| WPC No. 19213 of 2020 2 **R3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R3 BY ADV. SRI.K.JOHN MATHAI R3 BY ADV. SRI.JOSON MANAVALAN R3 BY ADV. SRI.KURYAN THOMAS R3 BY ADV. SRI.PAULOSE C. ABRAHAM R3 BY ADV. SRI.RAJA KANNAN R4 BY ADV. R.SUNIL KUMAR R4 BY ADV. SMT.A.SALINI LAL BY ADV. SRI. C.A. NAVAS, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-10-2020, THE COURT ON 03-11-2020 DELIVERED THE FOLLOWING:** WPC No. 19213 of 2020 3 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.19213 of 2020** ## **-----------------------------------------------** ## **Dated this the 3rd day of November, 2020** ## **J U D G M E N T** The third respondent has issued letter of intent in favour of additional fourth respondent for establishing a petroleum retail outlet. It is stated by the petitioner that thereupon, the third respondent has approached the second respondent for building permit to construct the structures required for running the petroleum outlet. According to the petitioner, the third respondent is contemplating to establish the petroleum outlet otherwise than in accordance with the Building Rules and the petitioner has, therefore, preferred a representation before the second respondent to afford him an WPC No. 19213 of 2020 4 opportunity of hearing before granting the building permit sought for by the third respondent. Ext.P1 is the representation preferred by the petitioner before the second respondent in this regard. This writ petition is instituted thereupon, alleging that the second respondent is not considering Ext.P1 representation. The petitioner also prays for a direction to the second respondent to afford him an opportunity of hearing on the application preferred by the third respondent for grant of building permit. 2. When the writ petition came up for admission, the learned Standing Counsel for the third respondent sought time and filed a counter affidavit in the matter. Among others, it is contended by the third respondent in the counter affidavit that the pleadings of the petitioner as regards the alleged violation of the Building Rules attributed against the third respondent are vague; that the petitioner is a close relative of WPC No. 19213 of 2020 5 one Mr.Komu who is running a petroleum outlet in the vicinity of the proposed petroleum outlet and that the writ petition is instituted for the purpose of protecting the commercial interests of the said person. 3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the third respondent. 4. The learned Standing Counsel for the third respondent reiterated the stand taken by the third respondent in the counter affidavit, and contended that this Court shall not entertain a writ petition of this nature. The learned Standing Counsel has relied on the decision of the Apex Court in **Bharat Singh v. State of Haryana,** AIR 1988 SC 2181, in support of the proposition that the writ petition which lacks the basic pleadings is liable to dismissed _in limine_ . 5. Per contra, the learned counsel for the petitioner submitted, placing reliance on the decisions of this WPC No. 19213 of 2020 6 Court in **Saina and others v. Konderi and others,** 1984 KLT 428 and **Mariamma v. Thomas,** 2003 KHC 32 that a citizen has a right to institute a writ petition with a view to ensure effective implementation of the municipal laws, such as Buildings Rules and he need not have to establish personal injury to sustain the proceedings. 6. True, in the light of the decisions cited by the learned counsel for the petitioner, specific personal injury may not be required to be established in matters of this nature. But this being a proceedings akin to a public interest litigation instituted under Article 226 of the Constitution, it is trite that the Court must ensure that a person who is approaching the Court for relief is acting bona fide and not for any personal gain or private motives [See **Mythri Residents Association v. Secretary, Tripunitura Municipality,** 2019(4)KLT 3053]. 7. Paragraph 8 of the counter affidavit filed by the third WPC No. 19213 of 2020 7 ## respondent reads thus: “At the further outset, it is submitted that the petitioner is put up by a rival petroleum retail dealer, whose outlet is situated at a short distance away from the proposed outlet of this respondent. The petitioner is a relative of one Mr.Komu, who is the dealer of nearby IOCL outlet, M/s. Kadavil Fuels. This is evident from the fact that Mr.Komu, who had filed WPC 15917 of 2020 before this Hon’ble Court, has the same address as that of the petitioner herein. It is settled law that, in the absence of a statutory violation, rivals in trade have no right to object and cannot be held to be an ‘aggrieved person’ in the eyes of the law. From the averments raised in the writ petition, it is evident that there is absolutely no substantiation of any statutory violation. Therefore, the present writ petition is nothing but a guised attempt of the petitioner to ensure that the commercial interests of his relative who is a rival dealer are not prejudicially affected. On this ground alone, the present writ petition is liable to be dismissed.” Even though the petitioner has filed a detailed reply affidavit to the counter affidavit filed by the third respondent, the specific averment made by the third respondent in paragraph 8 as regards his close relationship with Mr.Komu, who is running the nearby petroleum outlet has not been disputed by him in the counter affidavit. In the circumstances, the averments made WPC No. 19213 of 2020 8 by the third respondent in the counter affidavit are to be taken as admitted. If that be so, I have no doubt that this is a case where this Court should decline relief to the petitioner. The writ petition is, therefore, dismissed. **Sd/P.B.SURESH KUMAR JUDGE** ds 29.10.2020 WPC No. 19213 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 14/09/2020 BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2** **THE COPY OF THE JUDGMENT IN WPC NO.18661/2020 OF THIS HON'BLE COURT DATED 11/09/2020.** **EXHIBIT P3** **THE COPY OF THE JUDGMENT IN MARIAMMA VS THOMAS (2003 KHC 32)** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3 (a)** **TRUE COPY OF THE COMMUNICATION OF THE SENIOR TOWN PLANNER DATED 3.9.2020** **EXHIBIT R3(b)** **TRUE COPY OF THE LETTER DATED 7.9.2020 ISSUED BY THE 3RD RESPONDENT**