Ravi, S/O Omal; Prakash; Sasikumar.K.R. v. Arun Das and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938** ## **W.P(C).No.12291 of 2015 (J)** **------------------------------------** **PETITIONER(S):-** **-------------** **1. RAVI, S/O OMAL, PANKIMALAYIL, VANGOLA.P.O, ERNAKULAM DISTRICT.** **2. PRAKASH.P.O.,** **PARANKIMALAYIL, VANGOLA.P.O, ERNAKULAM DISTRICT.** **3. SASIKUMAR.K.R.,** **KANNIMOLATHU HOUSE, VENGOLA.P.O, ERNAKULAM DISTRICT.** **BY ADVS.SRI.K.BALACHANDRAN (MANGALATH) SRI.RAJESH NAIR SRI.BIJOY CHANDRAN** **RESPONDENT(S):-** - **---------------** **1. ARUN DAS, S/O DASAN, MANINGATHARA HOUSE, WEST VENGOLA.P.O, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 566** **2. VENGOLA GRAMA PANCHAYAT,** - **VENGOLA, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 566, REPRESENTED BY ITS SECRETARY.** **3. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, KERALA STATE, PIN-695 001** **4. CONTROLLER OF EXPLOSIVES, O/O. THE CONTROLLER OF EXPLOSIVES, NO.140, RUKMINI LAXMIPATI ROAD, EGMORE, CHENNAI-600008.** **5. DIVISIONAL OFFICER,** - **O/O. THE DIVISIONAL OFFICER, FIRE AND RESCUE SERVICE, ERNAKULAM, PIN - 682 011.** **6. DISTRICT MEDICAL OFFICER OF HEALTH, O/O.THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM, PIN 682 011.** **7. CHIEF TOWN PLANNER, O/O. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, PIN - 695 001.** **- 2 -** **WP(C).No. 12291 of 2015 (J)** ## *** ADDITIONAL 8TH RESPONDENT IMPLEADED:** **--------------------------------------** **Addl. 8. HINDUSTAN PETROLEUM CORPORATION LIMITED, KOCHI LPG REGIONAL OFFICE, SEAPORT-AIRPORT ROAD, IRUMPANAM PO., KOCHI - 682 309, REPRESENTED BY ITS SENIOR REGIONAL MANAGER.** *** ADDITIONAL 8TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 10.06.2015 IN I.A.NO.7535/15.** **R1 BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN R4 BY CENTRAL GOVT. COUNSEL SRI.P.L.VENUKUMAR. BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R5 TO R7 BY SR.GOVERNMENT PLEADER SRI.RENIL ANTO. R8 BY ADV.SRI.M.GOPIKRISHNAN NAMBIAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-09-2016, ALONG WITH W.P.(C) NO.9614/2016-B, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.12291 of 2015 (J)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1:**|**PHOTO GRAPH SHOWING THE RESIDENTIAL HOUSE OF THE**| ||**1ST PETITIONER AND THE SITE OF THE PROPOSED LPG GODOWN OF**| ||**THE 1ST RESPONDENT.**| |**EXT.P2:**|**COPY OF THE ORDER DATED 12.12.2014 OF THE 3RD RESPONDENT**| ||**TRIBUNAL.**| |**EXT.P3:**|**COPY OF BUILDING PERMIT DATED 14.01.2015 ISSUED BY THE**| ||**2ND RESPONDENT PANCHAYAT.**| |**EXT.P4:**|**COPY OF SITE APPROVAL DATED 24/31.07.2013 OF THE**| ||**4TH RESPONDENT.**| |**EXT.P5:**|**COPY OF APPROVAL OF SITE DATED 20.11.2013 ISSUED BY THE**| ||**6TH RESPONDENT.**| |**EXT.P6:**|**COPY OF CERTIFICATE DATED 30.09.2013 OF THE 5TH RESPONDENT.**| |**EXT.P7:**|**COPY OF PROCEEDINGS DATED 23.9.2013 OF THE 7TH RESPONDENT,**| ||**WITH ENGLISH TRANSLATION.**| |**EXT.P8:**|**COPY OF REPRESENTATION DATED 30.3.2015 SUBMITTED BEFORE THE**| ||**4TH RESPONDENT WITH COPY TO ALL OTHER CONCERNED**| ||**RESPONDENTS.**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**EXT.R1(a)**|**COPY OF THE LETTER OF INTENT NO.GVK/RGGL/LOI DATED**| ||**14.12.2011 ISSUED BY THE SENIOR REGIONAL MANAGER,**| ||**HINDUSTAN PETROLEUM CORPORATION LTD.**| |**EXT.R1(b)**|**COPY OF THE ORDER DATED 31.10.2012 IN APPEAL NO.396/2012**| ||**ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT**| ||**INSTITUTION, THIRUVANANTHAPURAM.**| |**EXT.R1(c)**|**COPY OF THE LETTER NO.KLRO/GVK/LPG DATED 05.06.2013 ISSUED**| ||**BY THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM**| ||**CORPORATION LTD.**| |**EXT.R1(d)**|**COPY OF THE MASS REPRESENTATION DATED 18.07.2013 SUBMITTED**| ||**BY THE LOCAL RESIDENTS TO THE PANCHAYAT AND THE RECEIPT**| ||**ISSUED BY THE PANCHAYAT.**| |**EXT.R1(e)**|**TRUE COPY OF THE ORDER NO.G/SE/KL/06/70 (G4 1977)**| ||**DATED 06.10.2015 OF THE PETROLEUM AND EXPLOSIVES SAFETY**| ||**ORGANIZATION (PESO).**| **WP(C).No.12291 of 2015 (J) - 2 -** **EXT.R1(f) COPY OF THE CONSENT VIDE FILE NO.PCB.EKM/DO2/IAE/346/2015 DATED 27.10.2015 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.R1(g) COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AND THE RECEIPT SHOWING ACCEPTANCE OF THE APPLICATION.** **Vku/-** **[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------------------------------W.P.(C) Nos.12291 of 2015-J & 9614 of 2016-B ----------------------------------------------------------------Dated this the 28[th] day of September, 2016 ## **JUDGMENT** The issue raised in both the writ petitions is of the establishment of a Liquefied Petroleum Gas [for brevity “LPG”] godown within the jurisdiction of the Vengola Grama Panchayat. The petitioners in W.P.(C) No.12291 of 2015 objected to the same. The 1[st] respondent in the said case, who is the petitioner in the other writ petition [W.P(C) No.9614 of 2016], is the person who obtained a Letter of Intent from the additional 8[th] respondent-Corporation and attempted the establishment of the godown. The parties are referred to from their status in W.P.(C) No.12291 of 2015 and so are the documents; unless otherwise specifically mentioned. 2. The establishment of the LPG godown is said to be intended in a thickly populated harijan colony, wherein the members belonging to the Scheduled Caste community are residing. The 1[st] respondent, who has obtained the distributorship of the Corporation is also a member of the said community and the establishment of the WP(C) No.12291 of 2015 & - 2 - 9614 of 2016 godown was offered under a specific scheme titled “Rajiv Gandhi Gramin LPG Vitrak” [for brevity “RGGLV”]. The dealership in the respondent-Panchayat was reserved for the members of the Scheduled Caste community and the 1[st] respondent, who was an unemployed graduate and a member of the Scheduled Caste community, had been granted the said distributorship. 3. Initially the Panchayat had rejected the application for building permit, which was challenged before the Tribunal for Local Self Government Institution [for brevity “the Tribunal”]. The Tribunal directed the respondent-Panchayat to forward the application for the approval of the Chief Town Planner. The lay-out plan was sent to the Chief Town Planner, as per the directions of the Tribunal; but in the meanwhile the open yard required for the storage of 6000 kilograms of LPG in cylinders was enhanced from 6 meters to 10 meters. In such circumstance, the 1[st] respondent identified another property which had a clear space of 10 meters around the proposed godown. The lay-out having been approved by the Town Planner, the Panchayat rejected the application again, on the ground of the local WP(C) No.12291 of 2015 & - 3 - 9614 of 2016 people having complained about the health hazards which would be caused if the godown is established in the area. 4. The 1[st] respondent challenged the said order before the Tribunal, which disposed of the appeal filed, by Exhibit P2 order. In Exhibit P2, the Tribunal found, from the records, that the 1[st] respondent was granted a distributorship by the 8[th] respondent and issued with a Letter of Intent; based on which a building permit was applied for and the lay-out of the plan was approved by the Town Planner. The District Medical Officer of Health [for brevity “DMO(H)] had also issued a No Objection Certificate [for brevity “NOC”] on conditions. Considering the fact that all the statutory formalities were complied with, the Panchayat was directed to issue building permit as per the lay-out approved by the Town Planner, lifting condition No.5, within a period of one month starting from the date of disposal of the appeal. Condition No.5 was with respect to consent from the neighbouring property owners. The Tribunal specifically found that there was no requirement for obtaining such NOC from the nearby property owners and relied on a decision of this Court in W.P.(C) WP(C) No.12291 of 2015 & - 4 - 9614 of 2016 No.856 of 2014 dated 17.01.2014 [Faseela v. Chief Town Planner and Others]. 5. The order of the Tribunal was challenged by the petitioners before this Court along with Exhibits P5 to P7. Exhibit P5 is the NOC of the DMO(H), Exhibit P6 the certificate issued by the Fire & Rescue Services and Exhibit P7 the order of the Chief Town Planner. Initially there was a stay granted, vide order dated 10.04.2015. The same was modified by interim order dated 28.05.2015, permitting the 1[st] respondent to continue the process of getting sanction which was not proceeded with by the authorities for reason of the pendency of the writ petition. It was also ordered that the commencement of the agency shall be only after obtaining further orders in the writ petition. 6. The 1[st] respondent has filed a counter affidavit, in which the Letter of Intent has been produced as Exhibit R1(a). Subsequently, on the basis of the order issued by this Court, the 1[st] respondent approached the various authorities and obtained Exhibit R1(e) license from the Deputy Controller of Explosives and Exhibit WP(C) No.12291 of 2015 & - 5 - 9614 of 2016 R1(f) Consent to Establish issued by the Pollution Control Board. With the above sanctions, the 1[st] respondent also approached the Panchayat with Exhibit R1(g) application for D&O Licence. 7. Based on the above permissions and sanctions, the 1[st] respondent also made a prayer before this Court to direct the Panchayat to consider the application after hearing the petitioners as well as the 1[st] respondent. This Court, vide: interim order dated 23.11.2015, directed such consideration and also specifically indicated in the order that “if the first respondent has obtained all necessary permit, he shall be permitted to operate the LPG godown in accordance with the conditions therein”. On the basis of the order, the 1[st] respondent was before the Panchayat, which passed Exhibit P10 order based on Exhibit P11 resolution produced in W.P.(C) No.9614 of 2016; the documents in which are now referred to, but the status of the parties as referred to earlier. 8. The 1[st] respondent, in the writ petition filed by him, challenged Exhibit P10 order and Exhibit P11 resolution passed by the Panchayat. The 1[st] respondent contends that he has obtained all WP(C) No.12291 of 2015 & - 6 - 9614 of 2016 the sanctions and permissions required and the licence issued by the Deputy Chief Controller of Explosives was also after conducting an inspection of the storage shed constructed, which was found to be as per the approval granted by the Joint Chief Controller of Explosives, Chennai by communication dated 24,07.2013 and in compliance with the provisions of the Gas Cylinders Rules, 2004. The petitioner also rely on Exhibit P14, which was a communication issued to the petitioners on the basis of a representation submitted before the Deputy Chief Controller of Explosives. 9. The petitioners at the outset contend that the 1[st] respondent had not impleaded them before the Tribunal and, hence, denied them an opportunity to make submissions before the Tribunal. Further it is contended that, under Section 233 of the Kerala Panchayat Raj Act, 1994, in considering establishment of an industry the Panchayat Council has to necessarily consider the various factors projected therein which, _inter alia_ , includes density of population and nuisance which would be occasioned by reason of such establishment. WP(C) No.12291 of 2015 & - 7 - 9614 of 2016 10. The learned Counsel for the 1[st] respondent, however, would contend that the safety standards having been verified as provided by the various statutes by the various authorities, there would be no necessity for consideration of the same by the Panchayat Council and, hence, the Panchayat has to necessarily issue the D&O Licence for establishment of the unit. It is also contended that the resolution passed by the Panchayat, based on which the application was rejected, as is evident from Exhibit P11, speaks only of three reasons for the rejection; being (i) shortage of drinking water (ii) diminution in land value and (iii) the prospects of marriage into the community being rendered bleak; none of which can be sustained by this Court. 11. With respect to the contention that the petitioners were not impleaded before the Tribunal or heard before the direction was issued to grant the building permit, it has to be noticed that the petitioners does not have any contention of any violation of the Kerala Panchayat Building Rules, 2011, having been occasioned in the construction of the building. The building permit was also issued WP(C) No.12291 of 2015 & - 8 - 9614 of 2016 on the basis of the lay-out approval granted by the Chief Town Planner. The petitioners do not also have any contention against the lay-out approval of the Town Planner. The deletion of one of the conditions in such approval was only on the basis of there being no requirement of obtaining such a NOC from the nearby residents. The petitioners before this Court also does not point out any specific provision which require the NOC to be obtained from the nearby residents before the consideration of an establishment of a LPG godown by the statutory authorities. In such circumstance, the mere fact that the petitioners were not impleaded or heard by the Tribunal does not militate against the request made by the 1[st] respondent for establishment of a LPG godown from the statutory authorities. A remand at this stage to the Tribunal, on that ground, would also be an empty formality and a futile exercise. 12. Further, it is to be noticed that the 1[st] respondent has obtained all licences and sanctions for establishment of a LPG godown; which documents were referred to hereinabove. It is also to be noticed that the safety standards required under the Gas WP(C) No.12291 of 2015 & - 9 - 9614 of 2016 Cylinders Rules, 2004 is ensured, before the Deputy Chief Controller of Explosives issued a licence. The Pollution Control Board has also granted a Consent to Establish and a NOC has been issued by the DMO(H). In such circumstances, this Court is called upon only to look into the grounds on which the refusal of the D&O Licence was made by the Panchayat Council. 13. It is not clear as to how an establishment of LPG godown would cause drinking water shortage, especially since there is no question of consumption of water involved in the operation of the godown. The further ground taken, of diminution of land value and the diminution of prospects of marriage, also cannot be countenanced since those are imaginary and irrelevant and also extraneous in a consideration by the Panchayat under Section 233 of the Kerala Panchayat Raj Act. It is also to be noticed that the ground of diminution of land value and bleak prospects of proposals with respect to the residents therein are mere apprehensions; which do not have any basis and are extraneous reasons, which do not regulate the decision to grant or reject a D&O Licence for the WP(C) No.12291 of 2015 & - 10 - 9614 of 2016 establishment of a LPG godown. In such circumstances, this Court is inclined to hold that the 1[st] respondent in W.P.(C) No.12291 of 2015, who is the petitioner in W.P.(C) No.9614 of 2016, is entitled to a D&O Licence. W.P.(C) No.12291 of 2015 would, hence, stand dismissed. 14. Exhibit P10 order in W.P.(C) No.9614 of 2016 would stand set aside. The grounds raised by the Panchayat Council for rejection of the D&O Licence, as found in the resolution of Exhibit P11, are declared to be extraneous grounds and not of any consequence in the grant of D&O Licence. The Secretary of the Panchayat is, hence, directed to issue D&O Licence within a period of three weeks from the date of receipt of a certified copy of this judgment. W.P.(C) No.9614 of 2016 would stand allowed. Ordered accordingly. Parties are left to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]