Subhash R. and A.R. Arun v Government of India and others

1 WP(C) NO. 2673 OF 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ## **`WP(C) NO. 2673 OF 2024`** ## **`PETITIONERS`** - **`1 SUBHASH R., AGED 44 YEARS, S/O.RAMACHANDRAN NAIR, KAITHAKKUNNATHU HOUSE, ERATHU VADAKKU, PATTAZHY P.O., KOLLAM, PIN – 691522.`** - **`2 A.R. ARUN, AGED 44 YEARS, S/O. RAVEENDRAN NAIR, ASHA BHAVAN, ERATHU VADAKKU, PATTAZHY P.O., KOLLAM, PIN – 691522.`** ``` BY ADV RESMI A. ``` ## **`RESPONDENTS:`** - **`1 GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION, A7D WING, BLOCK 1-8, 2ND FLOOR, SASTHRI BHAVAN, NEW DELHI, PIN – 110001.`** - **`2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (DEVASWOM), KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN – 695033.`** - **`4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION ROAD, KAANKATHU MUKKU, KOLLAM, KERALA, PIN – 691013.`** - **`5 ADDITIONAL DISTRICT MAGISTRATE CIVIL STATION, KANKATHU MUKKU, KOLLAM, PIN – 691013.`** 2 WP(C) NO. 2673 OF 2024 - **`6 VILLAGE OFFICER, VILLAGE OFFICE, PATTAZHY, PATTAZHY P.O., KOLLAM, PIN – 691522.`** - **`7 ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION PUNALUR, KOLLAM, PIN – 691305.`** - **`8 ASSISTANT EXECUTIVE ENGINEER, KERALA ROAD FUND BOARD, 3RD FLOOR, SUNRISE AVENUE, KADAPPAKKADA P.O., KOLLAM, PIN – 691008.`** - **`9 ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, USHUS BUILDING, BIG BAZAR, KOLLAM-691 001, PIN – 691001.`** - **`10 DEPUTY CONTROLLER, OFFICE OF THE DEPUTY CONTROLLER, LEGAL METROLOGY DEPARTMENT, FLYING SQUAD LEGAL METROLOGY BHAVAN, RAILWAY STATION RD, KARBALA KOLLAM, PIN – 691001.`** - **`11 DEPUTY SUPERINTENDENT OF POLICE,`** - **`KOLLAM RURAL ADMINISTRATION, KOTTARAKARA KOLLAM, PIN – 691531.`** - **`12 STATION HOUSE OFFICER, POLICE STATION , MARKET ROAD, KUNNIKODE, KOLLAM, PIN – 691508.`** - **`13 REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM, PIN – 695001.`** - **`14 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN – 695003.`** - **`15 PATTAZHY GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, PATTAZHY, KOLLAM, REPRESENTED BY ITS SECRETARY, PIN - 691522`** - **`16 PATTAZHY KSHETHRA UPADESHAKA SAMITHI, PATTAZHY DEVI TEMPLE, PATTAZHY P.O.,`** - **`KOLLAM REPRESENTED BY ITS SECRETARY, PIN – 691522.`** - **`17 M/S. NAYARA ENERGY LIMITED, INFRA FUTURA BUILDING, 602,6TH FLOOR, OPP.BHARATHA, KAKKANAD, THRIKKAKARA,`** - **`ERNAKULAM REPRESENTED BY ITS AUTHORISED OFFICER, PIN – 682021.`** - **`18 MANJU RAHIM AGED 41 YEARS, W/O. RAHIM, CHARUVILA PUTHEN VEEDU, VALACODE P.O., PUNALUR, KOLLAM - 691 331, NOW RESIDING AT MATHYOTTU HOUSE, ERATHUVADAKKU, PATTAZHY, KOLLAM, PROPRIETRESS OF MATHIYOTTU FUELS, PIN – 691522.`** - **`19 RAHIM`** ``` AGED 43 YEARS, S/O. JALALUDEEN, ``` 3 WP(C) NO. 2673 OF 2024 ``` CHARUVILA PUTHEN VEEDU, VALACODE P.O., PUNALUR, KOLLAM NOW RESIDING AT MATHYOTTU HOUSE, ERATHUVADAKKU, PATTAZHY, KOLLAM, PIN - 691522, PIN – 691331. ``` ``` BY ADVS. SANTHOSH KUMAR G ELDHO PAUL TESSY JOSE(K/660/1995) ``` ## **`OTHER PRESENT:`** ``` SRI DAYASINDHU SREEHARI N.S - CGC ; SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI T. NAVEEN -STANDING COUNSEL - KERALA STATE POLLUTION CONTROL BOARD ; SRI G.SANTHOSH KUMAR- STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMIS- SION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 WP(C) NO. 2673 OF 2024 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioners, who are devotees of Goddess Bhadrakali of Pattazhy Devi Temple, which is a temple under the management of the Travancore Devaswom Board, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P48 No Objection Certificate dated 16.07.2021 issued by the 5[th] respondent Additional District Magistrate, to the 17[th] respondent. The petitioners have also sought for a writ of mandamus commanding the 9[th] respondent Environmental Engineer, Kerala State Pollution Control Board, to re-consider the proposal for revocation of the consent to establish the petroleum outlet at Pattazhy, as expeditiously as possible, within a time limit to be fixed by this Court; a writ of mandamus commanding the 3[rd] respondent Land Revenue Commissioner to act upon Ext.P40 complaint dated 24.12.2023 made by the petitioners; and restrain respondents 17 to 19 from establishing the proposed petroleum retail outlet in the land comprised in Resurvey No.419/17-2 in Pattazhy village. 2. On 01.02.2024, when this matter came for admission learned counsel for the petitioners sought time to address 5 WP(C) NO. 2673 OF 2024 arguments on the question of maintainability of this writ petition. In the order dated 01.02.2024, this Court noticed that Ext.P48 No Objection Certificate, which is under challenge in this writ petition, which was on record as Ext.P6 in WP(C) No.24300 of 2021, which was disposed of by the judgment dated 23.03.2022. The learned counsel for the petitioners submitted that a hearing by the concerned Environmental Engineer, Kerala State Pollution Control Board is scheduled on 06.02.2020. The learned Standing Counsel for the Kerala State Pollution Control Board sought time to get instructions. The learned counsel for the petitioners was directed to serve a copy of this writ petition to respective counsel, who appeared for respondents 17 to 19 in the previous round of litigation. 3. The order dated 01.02.2024 was followed by the order dated 28.02.2024. On 21.02.2024, when this matter came for consideration, learned Standing Counsel for the Kerala State Pollution Control Board submitted that based on the hearing conducted on 06.02.2024 an order is being issued by the competent authority. 4. On 28.02.2024, when the matter came for consideration, this Court passed the following order; 6 WP(C) NO. 2673 OF 2024 “The learned Standing Counsel has handed over a copy of petition dated 24.02.2024 filed by the Travancore Devaswom Board against Ext.P38 proceedings dated 29.10.2021 of the Additional District Magistrate, Kollam. 2. In Ext.P52 judgment dated 23.03.2022, this Court has made it clear that it is for the Travancore Devaswom Board or any person interested in Pattazhi Devi Temple to challenge that proceedings of the Additional District Magistrate before the appropriate forum. Therefore, the legal and factual contentions raised by both sides on the statutory violations were left open to be raised before the appropriate forum, before which a challenge against those proceedings is made (see paragraph 54). 3. Now, during the pendency of this writ petition, the Travancore Devaswom Board has filed a petition dated 24.02.2024 before the District Collector, Kollam against the aforesaid proceedings dated 29.10.2021 of the Additional District Magistrate. 4. The learned Standing Counsel for the Travancore Devaswom Board to make available for the perusal of this Court the files relating to the aforesaid petition dated 24.02.2024, on the next posting date.” 5. The petitioners have filed I.A No.1 of 2024 for accepting Ext.P52 document, which was followed by I.A.No.2 of 2024 to accept Exts.P53 to P55 as additional documents. The petitioners have also filed I.A.No.3 of 2024 seeking an order to amend the writ petition by correcting relief No.1, as follows; 7 WP(C) NO. 2673 OF 2024 “issue a writ of mandamus or any such writ order or direction to the 14[th] respondent to take adequate steps to protect the customs and rituals in Pattazhy Devi Temple” instead of setting aside Exhibit P-48 No Objection Certificate dated 16.07.2021.” 6. Today, when this matter is taken up for consideration the learned counsel for the petitioners seeks permission to withdraw this writ petition, without prejudice to the right of the petitioners to file a fresh writ petition with appropriate pleadings and reliefs. 7. As already noticed in the order dated 01.02.2024, Ext.P48 No Objection Certificate, which is under challenge in this writ petition, was already on record as Ext.P6 in W.P.(C)No.24300 of 2021. That writ petition was disposed of by the judgment dated 23.03.2023. A copy of that judgment is on record as Ext.P52. 8. In **Ramesh v. State of Kerala [1992 1 KLT 268]** a Division Bench of this Court held that the principles of res judicata will apply to proceedings under Article 226 of the Constitution of India. In **Direct Recruitment Class H Engineering Officers Association v. State of Maharashtra [(1990) 2 SCC 715]** the Apex Court held that the principles of constructive res judicata will also apply to proceedings under Article 226 of the Constitution of India. 8 WP(C) NO. 2673 OF 2024 In such circumstances, this writ petition is dismissed as withdrawn; based on the submission made by the learned Counsel for the petitioners; however, without prejudice to the right of the petitioners to file a fresh writ petition with appropriate pleadings and reliefs, subject to the law laid down by the Apex Court and this Court in the decisions referred to supra. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** Skk//30.03.2024 9 WP(C) NO. 2673 OF 2024 ## **`APPENDIX OF WP(C) NO.2673/2024`** ## **`’ PETITIONERS EXHIBITS:-`** ``` EXHIBIT P- 1A TRUE COPY OF CONSENT DATED 19.03.2021 ISSUED BY THE 9TH RESPONDENT TO 18TH RE- SPONDENT ``` ``` EXHIBIT P- 2A TRUE COPY OF NOTICE DATED 22.11.2021 ISSUED BY 9TH RESPONDENT TO 18TH RESPOND- ENT ``` ``` EXHIBIT P- 3A TRUE COPY OF RELEVANT PAGES OF JUDGE- MENT OF THIS HON'BLE COURT IN WP.C.NO.24300 OF 2021 DATED 23.03.2022 ``` - **`EXHIBIT P- 4 A TRUE COPY OF JUDGEMENT OF THIS HON'BLE COURT IN WP.C.NO.16457 OF 2023 DATED 02.11.2023`** - **`EXHIBIT P- 5 A TRUE COPY OF OFFICE MEMORANDUM ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD DATED 07.01.2020`** - **`EXHIBIT P- 6 AS EVIDENT TO THIS SUBMISSION, A TRUE COPY OF RENT AGREEMENT DATED 03.02.2023`** - **`EXHIBIT P- 7 A TRUE COPY OF APPLICATION UNDER RIGHT TO INFORMATION ACT, SUBMITTED BY THE 1ST PETITIONER BEFORE THE 9TH RESPONDENT DATED 06.05.2023`** - **`EXHIBIT P- 8 A TRUE COPY OF MINUTES OF THE HEARING HELD ON 30.04.2022 AT THE OFFICE OF THE 9TH RESPONDENT DATED 16.05.2022`** - **`EXHIBIT P- 9 A TRUE COPY OF REPLY DATED 25.05.2023 GIVEN UNDER RIGHT TO INFORMATION ACT,2005 BY 9TH RESPONDENT TO 1ST PETITIONER`** - **`EXHIBIT P- 10 A TRUE COPY OF COMPLAINT DATED 06.12.2021 SUBMITTED BY THE PETITIONERS IN WP.C.24300 OF 2021 BEFORE THE 9TH RESPONDENT`** - **`EXHIBIT P- 11 A TRUE COPY OF REPLY DATED 09.08.2022 ISSUED BY 15TH RESPONDENT TO THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT, 2005`** - **`EXHIBIT P- 12 A TRUE COPY OF COMPLAINT DATED 10.04.2023 SUBMITTED BY THE 1ST PETITIONER BEFORE`** 10 WP(C) NO. 2673 OF 2024 ``` THE 15TH RESPONDENT UNDER RIGHT TO INFOR- MATION ACT, 2005 ``` ``` EXHIBIT P- 13A TRUE COPY OF REPLY DATED 25.04.2023 GIVEN BY THE 15TH RESPONDENT TO 1ST PETI- TIONER ``` ``` EXHIBIT P- 14A TRUE COPY OF CIRCULAR DATED 25.11.2021 ISSUED BY THE 9TH RESPONDENT ``` ``` EXHIBIT P- 15 ``` - **`A TRUE COPY OF REPLY DATED 27.11.2023 GIVEN BY THE 9TH RESPONDENT TO THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT`** ``` EXHIBIT P- 16 ``` - **`A TRUE COPY OF THE INFORMATION DATED 29.05.2023 ISSUED BY THE 9TH RESPONDENT TO THE 1ST PETITIONER`** ``` EXHIBIT P- 17A TRUE COPY OF COMPLAINT DATED 11.01.2024 SUBMITTED BY THE PETITIONERS IN WP.C.24300 OF 2021 BEFORE 15TH RESPONDENT ``` ``` EXHIBIT P- 18A TRUE COPY OF BTR DATED NIL ISSUED BY THE 6TH RESPONDENT ``` - **`EXHIBIT P- 19 A TRUE COPY OF REPLY DATED 28.04.2023 GIVEN BY THE 6TH RESPONDENT TO THE 1ST PETITIONER`** - **`EXHIBIT P- 20 A TRUE COPY OF APPLICATION DATED 09.09.2023 UNDER RIGHT TO INFORMATION ACT SUBMITTED BY THE 1ST PETITIONER BEFORE 9TH RESPONDENT`** - **`EXHIBIT P- 21 AS EVIDENT TO THIS SUBMISSION, A TRUE COPY OF APPLICATION UNDER RIGHT TO INFORMATION ACT,2005 SUBMITTED BY THE 1ST PETITIONER DATED 31.05.2023 BEFORE THE 15TH RESPONDENT`** - **`EXHIBIT P- 22 A TRUE COPY OF REPLY GIVEN BY THE 15TH RESPONDENT TO THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT,2005 DATED 09.06.2023`** - **`EXHIBIT P- 23 A TRUE COPY OF APPLICATION DATED 08.07.2023 SUBMITTED BY 1ST PETITIONER BEFORE THE 15TH RESPONDENT`** - **`EXHIBIT P- 24`** ``` A TRUE COPY OF APPLICATION DATED 31.05.2023 SUBMITTED BY THE 1ST PETI- TIONER BEFORE THE 15TH RESPONDENT UNDER RIGHT TO INFORMATION ACT ``` 11 WP(C) NO. 2673 OF 2024 ``` EXHIBIT P- 25A TRUE COPY OF INFORMATION DATED GIVEN BY THE 15TH RESPONDENT TO THE 1ST PETITIONER DATED 09.06.2023 ``` ``` EXHIBIT P- 26TRUE COPIES OF PHOTOGRAPHS DATED 25.05.2023 SHOWING THE 'S' CURVED ROAD IN FRONT OF PROPOSED PETROL PUMP IN PATTAZHY ``` - **`EXHIBIT P- 27 A TRUE COPY OF RTI APPLICATION DATED 22.06.2023 SUBMITTED BY THE 1ST PETITIONER BEFORE PWD KERALA`** - **`EXHIBIT P- 28 A TRUE COPY OF REPLY DATED 28.06.2023 GIVEN BY THE CHIEF ENGINEER OF PWD KERALA`** - **`EXHIBIT P- 29`** - **`A TRUE COPY OF RTI APPLICATION DATED 30.06.2023 SUBMITTED BY THE 1ST PETITIONER BEFORE 7TH RESPONDENT`** - **`EXHIBIT P- 30 A TRUE COPY OF REPLY DATED 24.07.2023 GIVEN BY THE 7TH RESPONDENT TO THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT`** - **`EXHIBIT P- 31 A TRUE COPY OF APPLICATION SUBMITTED THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT DATED 30.06.2023 BEFORE THE 8TH RESPONDENT`** - **`EXHIBIT P- 32 A TRUE COPY OF REPLY UNDER RIGHT TO INFORMATION ACT GIVEN BY THE 8TH RESPONDENT TO 1ST PETITIONER DATED 15.07.2023`** - **`EXHIBIT P- 33 A TRUE COPY OF COMPLAINT DATED 21.07.2023 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 8TH RESPONDENT`** - **`EXHIBIT P- 34 A TRUE COPY OF REPLY DATED 19.07.2023 GIVEN BY THE 8TH RESPONDENT TO 1ST PETITIONER`** - **`EXHIBIT P- 35 A TRUE COPY OF COMPLAINT DATED 28.03.2023 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 11TH RESPONDENT`** - **`EXHIBIT P- 36 A TRUE COPY OF COMPLAINT DATED 11.01.2024 SUBMITTED BY THE PETITIONERS BEFORE THE 12TH RESPONDENT`** - **`EXHIBIT P- 37 A TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED 05.10.2021 IN WP.C.17820 OF 2021`** 12 WP(C) NO. 2673 OF 2024 - **`EXHIBIT P- 38`** ``` A TRUE COPY OF PROCEEDINGS OF THE 5TH RE- SPONDENT DATED 29.10.2021 ``` - **`EXHIBIT P- 39`** ``` A TRUE COPY OF COMPLAINT FILED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT DATED 12.11.2021 ``` - **`EXHIBIT P- 40 A TRUE COPY OF COMPLAINT DATED 24.12.2023 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT`** - **`EXHIBIT P- 41 A TRUE COPY OF LETTER DATED 24.04.2023 SENT BY THE 10TH RESPONDENT TO THE 1ST PETITIONER`** - **`EXHIBIT P- 42 A TRUE COPY OF COMPLAINT DATED 09.05.2023 SUBMITTED BY THE 1ST PETITIONER TO THE 10TH RESPONDENT`** - **`EXHIBIT P- 43 A TRUE COPY OF LETTER DATED 03.07.2023 SENT BY THE 1ST PETITIONER TO THE PUBLIC INFORMATION OFFICER OF PESO ERNAKULAM OFFICE`** - **`EXHIBIT P- 44 A TRUE COPY OF REPLY DATED 19.07.2023 SENT BY THE PUBLIC INFORMATION OFFICER OF PESO ERNAKULAM OFFICE TO THE 1ST PETITIONER`** - **`EXHIBIT P- 45`** - **`A TRUE COPY OF THE REQUEST DATED 08.06.2022 SENT BY THE CONCERNED ENVIRONMENTAL ENGINEER OF 9TH RESPONDENT TO THE STANDING COUNCIL OF THE 9TH RESPONDENT`** - **`EXHIBIT P- 46 A TRUE COPY OF LEGAL OPINION DATED 24.06.2022 GIVEN BY THE STANDING COUNCIL OF 9TH RESPONDENT TO THE ENVIRONMENTAL ENGINEER OF 9TH RESPONDENT`** - **`EXHIBIT P- 47 A TRUE COPY OF PERMIT DATED 24.03.2021 ISSUED BY THE 1ST RESPONDENT TO THE 17TH RESPONDENT`** - **`EXHIBIT P- 48 A TRUE COPY OF NO OBJECTION CERTIFICATE DATED 16.07.2021 ISSUED BY 5TH RESPONDENT TO 17TH RESPONDENT`** - **`EXHIBIT P- 49 A TRUE COPY OF NO OBJECTION CERTIFICATE DATED 03.02.2021 ISSUED BY 13TH RESPONDENT TO THE 17TH RESPONDENT`** 13 WP(C) NO. 2673 OF 2024 ``` EXHIBIT P- 50 ``` ``` A TRUE COPY OF THE COMPLAINT DATED 14.04.2022 SUBMITTED BY THE 1ST PETI- TIONER BEFORE THE SUB GROUP OFFICER OF TRAVANCORE DEVASWOM BOARD ``` ``` EXHIBIT P- 51 ``` ``` A TRUE COPY OF LETTER DATED 18.01.2024 ISSUED BY THE CHIEF ENVIRONMENTAL ENGI- NEER OF REGIONAL OFFICE KERALA STATE POL- LUTION CONTROL BOARD TO 9TH RESPONDENT ``` ``` EXHIBIT P- 52A TRUE COPY OF JUDGMENT IN WP.C.24300/2021 OF THIS HON'BLE COURT DATED 23.03.2022 ``` ``` EXHIBIT P- 53A TRUE COPY OF THE PROCEEDINGS OF DIS- TRICT TOWN PLANNER, KOLLAM DATED 27.07.2021 WITH LEGIBLE COPY ``` ``` EXHIBIT P- 54 ``` ``` A TRUE COPY OF RTI APPLICATION DATED 10.02.2024 SUBMITTED BY THE 1ST PETI- TIONER BEFORE THE 6TH RESPONDENT ``` - **`EXHIBIT P- 55`** ``` A TRUE COPY OF REPLY GIVEN BY THE 6TH RE- SPONDENT TO THE 1ST PETITIONER DATED 21.02.2024 ```