Sudheesh, Suresh P.R. and Dileep M.J. v. Asha K.A. and Avinissery Grama Panchayat, Hindustan Petroleum Corporation Ltd., and Roy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** ## **WA.No. 1572 of 2016 ()** **---------------------------------(AGAINST THE JUDGMENT IN WP(C).NO. 20120/2016 DATED 08-07-2016) -------------------------** ## **3RD PARTY/APPELLANT(S):** **------------------------------------------** **1. SUDHEESH, AGED 45 YEARS, S/O. VELAYUDHAN, PAMPUMKADAN HOUSE, AVINISSERY P.O., PIN-680 306. THRISSUR DISTRICT.** **2. SURESH P.R.,AGED 47 YEARS, S/O. RAMAKRISHNAN, PAMPUMKADAN HOUSE, AVINISSRY P.O., PIN-680 306. THRISSUR DISTRICT.** **3. DILEEP M.J.,AGED 47 YEARS, S/O. JANARDHANAN, MALAYATIL HOUSE, AVINISSERY P.O, PIN-680 306. THRISSUR DISTRICT.** **BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENT(S)/WRIT PETITIONER AND RESPONDENTS 1 TO 3 :** **-----------------------------------------------------------------------------------------------** **1. ASHA K.A., AGED 37 YEARS, W/O. RAJU P.B., POOTHERY HOUSE, AVINISSERY P.O., THRISSUR DISTRICT, PIN-680 306.** **2. AVINISSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, AVINISSERY P.O.,** **THRISSUR DISTRICT, PIN-680 306.** **3. HINDUSTAN PETROLEUM CORPORATION LTD., REPRESENTED BY ITS SENIOR REGIONAL MANAGER, KOCHI LPG REGIONAL OFFICE, SEA PORT-AIR PORT ROAD, IRUMBANAM P.O., KOCHIN-682 380.** **2/-** **-2-** ## **W.A.NO.1572/2016** ## **4. ROY,** **MANUUMEL HOUSE, CHAGALA GATE ROAD, AVINISERY P.O., THRISSUR. PIN-680 306** **R1 BY ADV. SRI.A.RAJASIMHAN** **R2 BY ADV. SRI.LINDONS C.DAVIS** **R3 BY SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.N.RAVINDRAN & P.V.ASHA, JJ.** ## **W.A.No.1572 of 2016** ## **Dated this the 8[th] day of August, 2016** ## **JUDGMENT** ## P.N.Ravindran, J. The appellants have filed this appeal with the leave of this court which was granted as per order passed today on I.A.No.913 of 2016. In this appeal they canvass the correctness of the judgment delivered by a learned single Judge of this court on 8.7.2016 in W.P.(C) No.20120 of 2016. The brief facts of the case are as follows: 2. The first respondent herein, an unemployed woman, was appointed as LPG distributor at Thrissur by the Hindustan Petroleum Corporation Ltd. Ext.P1 dated 18.3.2015 is the letter of indent issued in that regard. The first respondent had in her application offered to provide the storage godown within the local limits of Avinissery Grama Panchayat namely in the lands situate in Sy.Nos.143/3 and 146/12 of Avinissery Village, Thrissur Taluk, Thrissur District. After the letter of indent was issued, she applied to the Secretary, Avinissery Grama Panchayat for a building permit. The lay out of the storage godown was approved by the Chief Town Planner, Thiruvananthapuram as per Ext.P3 proceedings dated 17.7.2015. One of the conditions stipulated therein namely condition No.10 was that if there are persons residing W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** adjacent to the proposed storage godown, their no objection certificate shall be obtained. The Municipality did not however deem it appropriate to impose such a condition when it issued the building permit evidenced by Ext.P2 on 22.8.2015. The said building permit was valid till 21.8.2016. It was issued subject to the condition that the construction should be in accordance with the Kerala Panchayat Building Rules, 2011. It was also stipulated that provision should be made for rain water harvesting. 3. The first respondent constructed a building in accordance with the said building permit. She thereafter applied for and obtained Ext.P4 No Objection Certificate from the Divisional Officer, Fire and Rescue Services, Ernakulam holding full additional charge of Divisional Officer, Fire and Rescue Services, Palakkad and the requisite license from the Deputy Chief Controller of Explosives, Ernakulam under the Gas Cylinder Rules, 2004 for storage of LPG cylinders. After obtaining the aforesaid license and permit, with a view to commence storage of LPG cylinders in the building constructed by her on the strength of Ext.P2 building permit, the first respondent submitted an application under the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. Along with the said application she had also produced the consent letters given by W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** neighbouring residents. When the application was not disposed of and was kept pending, she filed WP(C) No.39605 of 2015 in this court. By Ext.P10 judgment delivered on 23.12.2015, a learned single Judge of this court directed the Secretary, Avinissery Grama Panchayat to consider the application for license with notice to the writ petitioner (namely the first respondent in this appeal) within a period of two weeks. Thereafter the Panchayat insisted on the production of a consent to operate issued by the Kerala State Pollution Control Board. The first respondent thereupon applied for and obtained a consent to operate from the Kerala State Pollution Control Board, and a copy thereof is on record as Ext.P12 in the instant writ petition. The committee of the Panchayat which considered the first respondent's application for license rejected the application on the ground that it would affect the safety of the public. She had in the meanwhile filed WP(C) No.935 of 2016 in this court for an order directing the Secretary, Avinissery Grama Panchayat to grant the license to her within a specified time. While the said writ petition was pending, by Ext.P13 letter she was informed of the rejection of her application for license. She thereupon filed WP(C) No.5276 of 2016 in this court. The appellants herein got themselves impleaded as additional respondents 7, 8 and 9 in W.P.(C) No.935 of 2016 on the averment that they are W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** devotees of the Malayatil Rudhramala Bhagavathi Temple which is situate on the immediate south eastern boundary of the site of the storage godown. The relevant averments in that regard, contained in paragraph 2 of the affidavit filed in support of I.A.No.2234 of 2016, the application filed by the appellants herein to get themselves impleaded as additional respondents 7 to 9 in W.P.(C) No.935 of 2016, are extracted below: _“The writ petition is filed challenging the order passed by the 1[st] and 2[nd] respondents rejecting the application for license for conducting LPG godown and for other reliefes. Infact the 1[st] and 2[nd] respondents in the original petition after considering all the prevailing situations in the area and has rightly rejected the application for license. It is to be noted that the immediate south eastern boundary of the proposed site of godown shares with the property of Malayatil Rudhramala Bhagavathi Temple. In the said temple, the devotees are offering “Vedivazhipadu” every day by using Kathina. In addition to that during the festival season, it is usual crackers and colourful fireworks are being exploded. The said fire work is being conducted in the immediate eastern property, which was left by one Jayaprakash to the temple. The said matters are being suppressed from this court in the writ petition while assailing rejection order. The fire works in the temple are being done for the last ever so many years. The said matter was not brought to the_ W.A.No.1572 of 2016 :5: _attention of Fire and Rescue Department before getting no objection certificate. The people in the locality by raising the above thing made an association by name Janakeeya Koottayma and submitted several applications before the various authorities including the District Collector. In addition to that immediate neighbour on the south western comer of the godown property by name Sri.Manuumel Roy has not given no objection certificate. It is compulsory that while applying for license for conducting such dangerous and offensive trades, no objection of the neighbouring persons are high necessary. We are the devotes and neighbouring persons of the temple. If the license for conducting the gas godown is given, it would affect the long existing ritual of the temple . We are aggrieved persons in the subject and hence we may be impleaded as additional respondents 7 to 9 in the writ petition”._ 4. They contended that in the said temple devotees are offering vedivazhipadu everyday, that during the festival season there is also display of fire works and that fire works display is conducted in the property lying immediately to the east of the storage godown which was donated to the temple by Sri.Jayaprakash. It was contended that the writ petitioner had suppressed the said facts from this court. The appellants contended that they are also devotees. It was on these averments that they were allowed to come on record. W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** 5. On application filed by the petitioner in W.P.(C) No.935 of 2016, Smt.M.A.Zohra, learned counsel of this court was appointed as Advocate Commissioner to conduct a local inspection and to report whether the proposed storage godown for LPG cylinders is situated in a thickly populated area. The Advocate Commissioner was also directed to ascertain the distance between the godown and the other adjacent buildings. The Advocate Commissioner after notice to all the parties including the appellants herein conducted a local inspection on 6.12.2015. After inspection she submitted a report dated 9.2.2016 to the effect that the storage godown is situate in 28 cents of land forming part of a larger extent of land belonging to the first respondent herein, her husband Raju and his brother, that the said 28 cents of land is enclosed on all sides by a compound wall having a height of more than 2 meters and that there is an open space of 9.1 meters all around the storage godown building and between the godown building and its compound wall. The Advocate Commissioner also reported that the nearest house is the residence of Smt.Sindhu situated at a distance of 18 meters, that the residence of Sri.Janardhanan is situate 20 meters away from the godown, that the residence of Sri.Ramakrishanan is situate about 22 meters away from the godown and that previously a saw mill was functioning in the land W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** in which the storage godown has been constructed. The Advocate Commissioner further reported that the residence of Sri.Jayan is situate at a distance of 18 meters and that the other residences are at a distance of more than 25 to 30 meters. She had also reported that an anganwadi is situate 400 meters away from the property. As regards the temple, the Advocate Commissioner had reported as follows: “ _5. There is a small family temple on the south eastern direction of the Godown namely Malayattil Temple. The distance from the south eastern corner of the Godown’s compound wall to the temple’s compound wall is 14.2 Metres and from the Godown to the temple is more than 25 metres and 2 plots lie in between this temple and the enclosed godown premises. There are houses adjacent to this temple on the east, west and south and nearby locality on the north and the access is through a lane. The area is small and it is enclosed by compound walls with a gate on the north. There is no direct road access to this small temple with family deity and it is closed during inspection”._ 6. The Advocate Commissioner had also submitted a rough sketch showing the location and lie of the storage godown and the adjacent lands. As regards the temple, the Advocate Commissioner had reported that the temple is situate at a distance of 14.20 meters W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** away from the compound wall and 25 meters away from the premises of the storage godown and that two plots of land lie in between the temple and the enclosed godown premises. It is not in dispute that the temple is situate in a small plot of land having an area of approximately 7.5 cents. It is on the averment that the display of fire works during the annual festival and performance of vedivazhipadu in the Malyatil Rudhramala Temple will be affected that the appellants herein got themselves impleaded as respondents 7 to 9 in WP(C) No.935 of 2016. After considering the rival contentions, a learned single Judge of this court allowed WP(C) Nos.935 and 5276 of 2016 by setting aside the decision taken by the committee of the Panchayat on 12.1.2016 and directed the Secretary of the Avinissery Grama Panchayat, the competent authority under the rules to take an appropriate decision in the matter after considering the contentions raised by all the parties expeditiously and in any event within a period of two months from the date of receipt of a copy of the judgment. The learned single Judge held that the Secretary of the Panchayat being the competent authority, the committee of the Panchayat could not have taken a decision to reject the application. Reliance was placed on the decision of a Division bench of this court in _**Kadaplamattom Grama Panchayat v. Johny Roy** (2013 (3) KLT 1053)._ W.A.No.1572 of 2016 **==> picture [14 x 9] intentionally omitted <==** 7. It is not in dispute and the files disclose that all the persons who were parties to the writ petitions which were disposed of by Ext.P14 judgment had pursuant to Ext.P14 judgment appeared before the Secretary of the Grama Panchayat on 2.5.2016 and objected to the grant of a license. The files also disclose that the writ petitioner had made available before the Secretary, Avinissery Grama Panchayat, 13 consent letters given by the neighbouring land owners and that she had also submitted an affidavit duly attested by a Notary to the effect that the consent of Sri.Manuumel Roy, S/o Antony, a neighbouring resident could not be obtained for the reason that he is abroad and that his consent letter will be produced later. After considering all these materials, the Secretary, Avinissery Grama Panchayat issued Ext.P15 letter dated 6.5.2016 informing the writ petitioner that for the purpose of issuing the license she should produce a sanitary certificate and the consent letter of Sri.Manuumel Roy. It was challenging Ext.P15 that she filed the instant writ petition from which this writ appeal arises. After the said writ petition, namely WP(C) No.20120 of 2016 was filed, the District Medical Officer of Health, Thrissur issued a sanitary certificate dated 17.6.2016. The only issue that remained was the consent letter of Sri.Manuumel Roy. It was the case of the writ petitioner that as Sri.Manuumel Roy is a non-resident Indian, the W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** stipulation in Ext.P15 letter that his consent letter should be produced is impossibile of compliance. The stand of the Panchayat was that Chief Town Planner has in Ext.P3 proceedings approved the lay out for the godown subject to the condition that the consent of the neighbouring residents should be obtained. The Panchayat contended that it was because of the said stipulation that the writ petitioner was called upon to produce a consent letter from Sri.Manuumel Roy. The appellants herein were not made parties to the said writ petition. Though Sri.Manuumel Roy was impleaded as the third respondent, notice could not be served on him by special messenger for the reason that he was abroad. After considering the contentions raised by the Avinissery Grama Panchayat, the learned single Judge allowed WP(C) No.20120 of 2016 by judgment delivered on 8.7.2016 and directed the Secretary, Avinissery Grama Panchayat to grant the license applied for without insisting on the consent of Sri.Manuumel Roy. In issuing such a direction, the learned single Judge took into account the fact that the Kerala State Pollution Control Board has issued a consent to operate, the Divisional Fire Officer has also issued a consent and in such circumstances, as the distance rule has been complied with by the petitioner, there is no reason or justification to insist on the production of a consent letter from Sri.Manuumel Roy. W.A.No.1572 of 2016 **==> picture [19 x 9] intentionally omitted <==** It is relevant in this context to note that after Ext.P15 order was issued, respondents 1 and 2 therein filed W.A.Nos.1147 and 1150 of 2016 challenging Ext.P14 judgment of the learned single Judge in WP (C) Nos.935 and 5276 of 2016. At that point of time WP(C) No.20120 of 2016 from which this appeal arises was pending. After considering the contentions raised by the learned counsel for the Panchayat, a Division Bench of this court of which one of us (P.N.Ravindran, J.) was a member, dismissed the writ appeals in limine, by judgment delivered on 21.6.2016. It was thereafter that the judgment impugned in the instant writ appeal was delivered allowing WP(C) No.20120 of 2016. The said judgment is under challenge in this writ appeal, as stated earlier by respondents 7, 8 and 9 in WP(C) No.935 of 2016, who were not joined as parties in the instant writ petition. The main ground raised in the writ appeal is that Ext.P15 is an interlocutory order and not a final order and that even before the direction issued by the learned single Judge in Ext.P14 judgment was complied with and the application for license considered and disposed of on the merits, the writ petitioner has rushed to this court with WP(C) No.20120 of 2016. It is contended that as the appellants were parties to WP(C) No.935 of 2016, they ought to have been made parties to WP(C) No.20120 of 2016. It is contended that the learned single Judge ought to have W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** taken note of the fact that the appellants had objected to the license being issued, in view of the daily offerings of vedivazhipadu at the nearby temple as also the display of fire works during the annual festival of the temple. The appellants contend that the writ petitioner had suppressed the said facts in the writ petition. 8. We heard Sri.A.T.Anilkumar, learned counsel appearing for the appellants, Sri.A.Rajasimhan, learned counsel appearing for the first respondent/writ petitioner, Sri.Lindon C.Davis, learned counsel appearing for Avinissery Grama Panchayat and Sri.M.Gopikrishnan Nambiar, learned counsel appearing for Hindustan Petroleum Corporation Ltd. We have also gone through the pleadings and the materials on record. The writ petitioner is unemployed. She was appointed as an LPG distributor pursuant to the application submitted by her in response to an advertisement which was issued on 25.9.2015. She has in the writ petition averred that she has already started a show room within the local limits of Thrissur Corporation after obtaining the requisite license from the Thrissur Corporation. The dispute in this appeal relates to the grant of a license for the storage godown situate within the local limits of Avinissery Grama Panchayat in a parcel of land belonging to the writ petitioner, her husband and his brother. The appellants got themselves impleaded in an earlier writ W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** petition filed by the very same writ petitioner on the averment that as devotees of Malayatil Rudhramala Bhagavathy Temple they are interested in the subject matter of the writ petition. It was their contention that vedivazhipadu is conducted in the temple everyday and that during the festival season there is also display of fire works. It was contended that the temple is situated on the south eastern boundary of the site of the storage godown and that fire works display is being conducted in the immediate eastern property dedicated to the temple by one Jayaprakash. The report submitted by the Advocate Commissioner discloses that the temple is situate in a small parcel of land and that there are two residential buildings between the site of the storage godown and the temple. The temple is not situate adjacent to the site of the storage godown. The storage godown is situate in 28 cents of land forming part of a larger extent of land belonging to the petitioner, her husband Raju and his brother. The distance between the storage godown and the compound wall of the parcel of land where it is situate, is 9 meters. The temple is not situate on the immediate eastern side of the storage godown. Going by the sketch submitted by the Advocate Commissioner along with her report, it is evident that there is no vacant land on the eastern side of the larger parcel of land in which the storage godown is situate. It is thus evident W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** that the appellants have come to this court with a false plea that as devotees of a temple, where fire works display is being conducted everyday and during the annual festival, they are vitally interested in the subject matter of the dispute. They had also stated knowing it to be incorrect that the temple is situate adjacent to the site of the storage godown on its south eastern side. The temple is, as stated earlier, situate 25 meters away from the building proposed to be used as the storage godown. The distance from the compound wall of the larger parcel of land having an approximate extent of 75 to 80 cents and the compound wall of the small plot having an approximate area of 7.5 cents where the temple is situate is more than 14.2 meters. There are houses on the east, west, south and north of the temple. The access to the temple is through a narrow path way. The Advocate Commissioner has also reported that it is a family temple. It was found closed at 10AM on 6.12.2015. If as contended by the appellants, vedivazhipadu is being conducted every day in the temple, those in management of the temple should certainly be in possession of the requisite license and permission issued by the competent authority. If during the annual festival, there is display of fire works then also license for display of fire works should be obtained. The appellants have not produced any material to substantiate their claim that W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** vedivazhipadu is being conducted daily in that temple or that during annual festival there is display of fire works. The appellants have no case that they are residing in the locality. According to the writ petitioner, the appellants are residing more than a kilometre away from the site of the proposed storage godown. In such circumstances, we are of the considered opinion that the appellants were really not necessary parties and that their nonjoinder will not in any way vitiate the impugned judgment. 9. On the merits also, we are not persuaded to hold that the learned single Judge erred in interfering with the impugned order. It is evident from Ext.P15 that the Secretary of the Panchayat had decided to grant the license subject to compliance with two conditions. One being the production of a sanitary certificate and the other being the production of a consent letter from Sri.Manuumel Roy. The building permit was not granted subject to such a condition. As the person who issued Ext.P2 building permit, the Secretary of the Panchayat could not have in our opinion imposed a condition which was not incorporated at the time of issue of the building permit. Though it was contended before the learned single Judge that it was because of the stipulation in Ext.P3 that a consent letter from Sri.Manuumel Roy was insisted upon, the provisions of the Kerala Panchayath Raj (Issue of W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** License to Dangerous and Offensive Trades and Factories) Rules does not contain such a stipulation. If local authorities were to insist on consent letters being produced along with every application for a license, it will lead to a situation where no one will be able to apply for and obtain a license, unless the neighbouring residents or the neighbouring land owners give their consent. In our opinion, the insistence by the Panchayat that a consent letter from Sri.Manuumel Roy should be obtained, has become wholly irrelevant in view of the fact that the Kerala State Pollution Control Board and the competent authority under the Explosives Act have after due inspection and verification granted the requisite license and permission. If there had been any objection, the Kerala State Pollution Control Board would not have issued the consent to operate or the competent authority under the Gas Cylinder Rules namely the Deputy Chief Controller of Explosives would not have issued the requisite permission and license. We are also not persuaded to accept the contention raised by the appellants that Ext.P15 is not a final order but only an interlocutory order. Ext.P15 reflects the decision taken by the Secretary after the hearing held on 2.5.2016 to issue the license subject to compliance with the two conditions stipulated therein. The writ petitioner has already satisfied the first condition namely the production of a sanitary W.A.No.1572 of 2016 **==> picture [20 x 9] intentionally omitted <==** certificate. There is also no material to show that Sri.Manuumel Roy is residing adjacent to the site of the proposed godown. If he is residing elsewhere, and is not residing adjacent to the site of the proposed godown even the Town Planner cannot insist on the production of a consent letter from him. We accordingly hold that there is no merit in the instant writ appeal. The writ appeal fails and is accordingly dismissed. No costs. **P.N.RAVINDRAN JUDGE** **P.V.ASHA JUDGE** rkc