W.P.(C) Nos. 17184/2020 & 16318/2020 (Vyshak Sreekumar vs District Collector, Kottayam; Jose J. Nechikattu vs District Collector, Kottayam; others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.16318 OF 2020(L)** ## **PETITIONER:** **JOSE J.NECHIKATTU AGED 44 YEARS S/O. JOHN JOSEPH, NECHIKATTU HOUSE, PALA P.O KOTTAYAM, 686 575.** **BY ADVS. SRI.TOM JOSE (PADINJAREKARA) SRI.SHIBU JOSEPH SRI.AJITH VISWANATHAN** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR COLLECTORATE, KOTTAYAM 686 002.** - **2 ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOTTAYAM 686 002.** - **3 TAHSILDAR, MENACHILL TALUK, PALA P.O. KOTTAYAM 686 575.** - **4 VILLAGE OFFICER, MEENACHILL VILLAGE OFFICE, PALA P.O. KOTTAYAM 686 575.** - **5 MUNICIPALITY PALA, MUNICIPAL OFFICE, PALA P.O. KOTTAYAM, REPRESENTED BY ITS SECRETARY, 686 575.** - **6 THE DEPUTY GENERAL MANAGER (RS), INDIAN OIL CORPORATION LTD., MARKETING DIVISION, THIRUVANANTHAPURAM DIVISIONAL OFFICE, ENCHAKKAL BYE-PSS JUNCTION, THIRUVANANTHAPURAM 695 008.** W.P(C). Nos. 17184 & 16318 of 2020 2 |**7**|**MARTIN JOSEPH,**| |---|---| ||**AGED 44 YEARS**| ||**S/O. JOSEPH JOHN, NECHIKKATTU HOUSE, PALA P.O.**| ||**KOTTAYAM 686 575.**| |**8**|**JOSEPH GIL,**| ||**AGED 46 YEARS**| ||**S/O. JOSEPH, NECHIKATTU HOUSE,**| ||**PALAI P.O.**| ||**KOTTAYAM 686 575.**| **BY ADVS. SRI SUJITH MATHEW JOSE FOR R5 SRI M GOPIKRISHNAN NAMBIAR FOR R6 SR GP SRI SAIGI JACOB PALATTY SRI.GIKKU JACOB-R7-8** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.08.2020, ALONG WITH WP(C).17184/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). Nos. 17184 & 16318 of 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.17184 OF 2020(W)** ## **PETITIONER:** **VYSHAK SREEKUMAR AGED 23 YEARS S/O. SREEKUMAR RESIDING AT DASHARATHAM T C 18/1972-8 MANGAD LANE, THIRUMALA P.O. TRIVANDRUM 695 006.** **BY ADVS.** **SRI.TOM JOSE (PADINJAREKARA) SRI.SHIBU JOSEPH** ## **RESPONDENTS:** |**1**|**DISTRICT COLLECTOR**| |---|---| ||**COLLECTORATE , KOTTAYAM 686 002.**| |**2**|**ADDITIONAL DISTRICT MAGISTRATE,**| ||**COLLECTORATE , KOTTAYAM 686 002.**| |**3**|**TAHSILDAR,**| ||**MENACHILL TALUK, PALA P.O.**| ||**KOTTAYAM 686 575.**| |**4**|**VILLAGE OFFICER,**| ||**MEENACHILL OFFICE PALA P.O.**| ||**KOTTAYAM 686 575.**| |**5**|**MUNICIPALITY PALA,**| ||**MUNICIPAL OFFICE, PALA P.O.**| ||**KOTTAYAM REPRESENTED BY IT SECRETARY 686 575.**| |**6**|**THE DEPUTY GENERAL MANAGER (RS),**| ||**INDIAN OIL CORPORATION LTD., MARKETING DIVISION,**| ||**THIRUVANANTHAPURAM DIVISIONAL OFFICE,**| ||**ENCHAKKAL BYE PASS JUNCTION,**| ||**THIRUVANANTHAPURAM 695 008.**| W.P(C). Nos. 17184 & 16318 of 2020 4 **7 MARTIN JOSEPH, AGED 44 YEARS S/O. JOSEPH JOHN, NECHIKKATTU HOUSE, PALA P.O. KOTTAYAM 686 575. 8 JOSEPH GIL, AGED 46 YEARS S/O. JOSEPH JOHN, NECHIKKATTU HOUSE, PALAI P.O. KOTTAYAM 686 575. BY ADVS. SRI SUJITH MATHEW JOSE FOR R5 SRI M GOPIKRISHNAN NAMBIAR FOR R6 SR GP SRI SAIGI JACOB PALATTY SRI.GIKKU JACOB-R7-8** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.08.2020, ALONG WITH WP(C).16318/2020(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). Nos. 17184 & 16318 of 2020 5 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). Nos. 17184 & 16318 of 2020 -----------------------------------Dated this the 25[th] day of August, 2020 ## **JUDGMENT** The prayers in W.P(C) No.17184/2020 are as follows: - _“(i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing the Exhibit P13 order issued by the 2[nd] respondent,_ - _(ii) Issue a writ of mandamus or any other appropriate writ, direction or order,directing the 2[nd] respondent to issue NOC for erecting the petroleum outlet in Block No 80 in Re.Sy.No.169/23 of Meenachill Village._ - _(iii) Issue an order declaring that the property covered by Exhibit P1 is a garden land._ - _(iv) Issue such other order or directions as are necessary in the nature of this case.”_ 2. The prayers in W.P(C) No.16318/2020 are as follows: - _“(i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing the Exhibit P13 order issued by the 2[nd] respondent,_ - _(ii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the 2[nd] respondent to issue NOC to the petitioner for erecting the petroleum outlet is Block No 80 in Re.Sy.No.169/23 of Meenachill Village._ - _(iii) Issue an order declaring that the petitioner’s property covered by Exhibit P1 partition deed is a garden land which is evident from Exhibits P 4 and 6 to 9, and_ - _(iv) Issue such other order or directions as are necessary in the nature of this case.”_ 3. Heard Sri.Tom Jose Padinjarekkara, learned counsel appearing for the petitioners in these two cases, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for W.P(C). Nos. 17184 & 16318 of 2020 6 respondent Nos.1 to 4, Sri.Sujith Mathew Jose, learned Standing Counsel for the Pala Municipality appearing for R5, Sri.M.Gopikrishnan Nambiar, learned Standing Counsel for the Indian Oil Corporation appearing for R6 and Sri.Gikku Jacob, learned advocate appearing for contesting respondent Nos.7 & 8. 4. Sri.Tom Jose Padinjarekkara, learned counsel appearing for the petitioner has made submissions in tune with the pleadings in W.P(C). Per contra, Sri.Gikku Jacoab, learned advocate appearing for contesting respondent Nos. 7 & 8 has also made submissions in tune with the pleadings in the counter affidavit filed by the parties. 5. The petitioner in W.P(C) No.17184/2020 has made application in the Schedule Caste category for selection to run an authorised retail petroleum outlet of the respondent Indian Oil Corporation and the said petitioner has already received offer letter from the respondent Indian Oil Corporation. The petitioner in W.P(C) No.17184/2020 has secured consent for leasing out the landed property owned and possessed by the petitioner in W.P(C) No.16318/2020. As per the procedural norms, such an applicant has to secure No Objection Certificate from the Additional District Magistrate concerned in terms of Rule 144 of the Petroleum Rules, W.P(C). Nos. 17184 & 16318 of 2020 7 2002 framed under provisions contained in the Petroleum Act, 1934. The said application for NOC has been formerly submitted on behalf of the said petitioner by the Deputy General Manager of the respondent Indian Oil Corporation in terms of the abovesaid provision and the said application for NOC on behalf of the petitioner in W.P(C) No.17184/2020 has now been rejected by the 2[nd] respondent Additional District Magistrate, on the grounds enumerated therein, by the impugned Ext.P13 order dated 23-062020 issued by the 2[nd] respondent. Since there are certain adverse findings in the impugned Ext.P13 order that the subject property is a paddy land as per the settlement survey records etc, the petitioner in W.P(C) No.16318/2020, who is the land owner, has also challenged the said impugned Ext.P13 order. Exhibits P5 to P13 in W.P(C) No.17184/2020 are the same documents marked as Exts.P3 to P13 in W.P(C) No.16318/2020. 6. The 2[nd] respondent Additional District Magistrate has passed the impugned Ext.P13 order dated 23-06-2020 rejecting the plea for NOC to run the petroleum outlet in terms of Rule 144 of the Petroleum Rules, 2002. The plea for grant of NOC has been opposed by contesting respondent Nos. 7 & 8 in these W.P(C)s, who are the W.P(C). Nos. 17184 & 16318 of 2020 8 first cousins of the petitioner in W.P(C) No.16318/2020. Certain other objectors have also raised objections as can be seen from reading of Ext.P13. The main grounds of rejection as enumerated in the impugned Ext.P13 order are that though the property has been clearly shown as 'purayidam/dry land' in the Basic Tax Register and though the property has not been included in the land data bank prepared as per the provisions of State Act 28 of 2008, as 'paddy land or nilam', the settlement survey records would show that the subject property has been described as 'paddy land' in some of the earlier settlement survey records. Further it is also stated that though a site inspection by the Executive Engineer of the Public Works Department (Road Section) was highly imperative and necessary, more so particularly, in the light of the directions issued by this Court in Ext.P12 judgment. Since the time limit stipulated by this Court in Ext.P12 judgment had expired, such inspection cannot be conducted and presumably the ground cited in relation thereto in Ext.P13 is that because of the lack of inspection, the necessary and relevant facts could not be properly ascertained. Further certain objections raised by the nearby school authority for running the petroleum pump in the subject property and certain other objections W.P(C). Nos. 17184 & 16318 of 2020 9 are also dealt within Ext.P13. 7. After hearing both sides, this Court is of the considered view that the impugned Ext.P13 order is liable for interdiction, mainly on the ground that the said reliance made by the 2[nd] respondent Additional District Magistrate in Ext.P13 to reject the plea for NOC on the ground that the subject property has been shown as ‘paddy land’ in the earlier settlement survey records though it is clearly shown as 'garden land/purayidam' in all the revenue records like BTR, Land Data Bank etc, has been made without taking into account the dictum laid down by this Court in decisions as in _**Indira P.S and others v. Sub Collector of Fort Kochi and others [2020 (4) KHC 33]**_ . Further the stand of Additional District Magistrate to reject the plea for NOC as the inspection by the Executive Engineer, PWD could not be conducted on account of the expiry of the time limit stipulated by this Court in Ext.P12 judgment etc, cannot be countenanced, for the reasons to be stated hereinafter. In the light of the orders proposed to be passed by this Court in these petitions there is no necessity for this Court to get into any other issues raised in these writ proceedings. 8. Sri.Gikku Jacob, learned Advocate appearing for contesting W.P(C). Nos. 17184 & 16318 of 2020 10 respondents 7 & 8 would strongly urge that the impugned order as per Ext.P13 passed under Rule 144 of the Petroleum Rules, 2002 is appealable in terms of Rule 154(2) of the said Petroleum Rules, 2002 and that therefore since both the petitioners have an efficacious alternate statutory appellate remedy, they should be relegated to such remedy and that this Court may not entertain this writ proceedings. Another objection raised by the contesting respondents is to the effect that the formal applicant who has sought for NOC as per the procedural norms is a Deputy General Manager of the respondent Indian Oil Corporation and that therefore these petitioners may not have a _locus standi_ to challenge an order in the nature of Ext.P13. 9. After hearing both sides, this Court is not in a position to countenance the abovesaid preliminary objections raised by contesting respondent Nos.7 & 8. The findings in the impugned Ext.P13 order as if the subject property should be treated as paddy land going by the earlier settlement survey records etc, would have far reaching consequences on the applicant in W.P(C)No.16318/2020. It is almost the admitted case of all that there is no dispute that the subject property has been consistently described W.P(C). Nos. 17184 & 16318 of 2020 11 as 'garden land/purayidam' in the revenue records like BTR and has not been included in the land data bank prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as 'paddy land or nilam'. Series of documents have been produced by the above petitioners to show that the said property has been consistently described as 'garden land/purayidam'. The dictum laid down by this Court in _**Indira P.S and others v. Sub Collector of Fort Kochi and others**_ [2020 (4) KHC 33] has not been taken into consideration by the 2[nd] respondent while passing the impugned Ext.P13 order. Issues arising out of Kerala Conservation of Paddy Land and Wetland Act, 2008 which is a state enactment are rather complex and has many nuances and dimensions. It may be quite difficult for an appellate authority constituted under the Central Petroleum Rules, 2002 to adjudicate into the niceties of such issues. 10. Moreover, it has been held by this Court in decisions as in _**Reliance Industries Ltd. and others v. The Commissioner of Land Revenue [2007 (2) KLT 850]**_ para No.17 that consideration for grant of NOC in terms of the abovesaid provisions contained in the Petroleum Rules, 2002 should be strictly confined W.P(C). Nos. 17184 & 16318 of 2020 12 to the matters arising out the Petroleum Rules and no other issue. The dictum laid down by this Court in _**Reliance Industries’s case**_ (supra) [2007 (2) KLT 850] has also not been taken into account by the 2[nd] respondent Additional District Magistrate by passing the impugned Ext.P13 order. 11. In the light of these aspects, if the aboveasid submissions of the contesting respondent 7 & 8 are accepted and the parties are relegated to approach the appellate authority constituted under the Central Petroleum Rules, 2002, it may be very difficult task of the appellate authority to get into these issues arising out of a state enactment and that too in relation to the state enactment regulating Conservation of Paddy Land Wetland Act, 2008. Moreover, in the light of dictum laid down by this Court in _**Reliance Industries’s case**_ (supra) [2007 (2) KLT 850], the appellate authority cannot be blamed if it takes a stand that the said issue relating to matters arising out of the said state enactment regulating Kerala Conservation of Paddy Land and Wetland Act, 2008 etc, is not a matter in which the said appellate authority may deal with etc. Further a reading of the impugned Ext.P13 order would show that the inspection in this case was done by the Executive Engineer, W.P(C). Nos. 17184 & 16318 of 2020 13 Public Works Department (Road Section). But that the inspection report was not obtained by the 2[nd] respondent Additional District Magistrate and that since the time limit stipulated by this Court in Ext.P12 judgment is over, it was not possible to get the inspection report, etc. 12. It is also seen from a reading of Ext.P13, the 2[nd] respondent ADM has conducted a site inspection himself. In spite of a conduct of a site inspection by the 2[nd] respondent Additional District Magistrate the said officer has observed in Ext.P13 about the lacuna in not getting the inspection report from the Executive Engineer, Public Works Department (Road Section). Thus it is clear from a reading of Ext.P13 that the non-furnishing of the inspection report by the Executive Engineer, PWD was a serious lacuna, but that the same became _fait accompli_ on account of the expiry of the time limit stipulated by this Court in Ext.P12 judgment. Therefore there cannot be any dispute that the non-availability of the inspection report of the Executive Engineer of the Public Works Department, was a serious omission on the part of the 2[nd] respondent and therefore crucial and relevant aspects of the matter has not been taken into consideration by the 2[nd] respondent. The so called reason given by W.P(C). Nos. 17184 & 16318 of 2020 14 the 2[nd] respondent that inspection report of the Executive Engineer, PWD could not be obtained on account of the expiry of the time limit stipulated in Ext.P12 judgment, is no excuse at all and all what the 2[nd] respondent had to do was to request the office of the Advocate General and the learned Government Pleader concerned to ensure the filing of a formal application for seeking time extension in the writ proceedings that culminated in Ext.P12 judgment. The 2[nd] respondent has no case that such a course was adopted and that time extension was refused by this Court in the matter in Ext.P12. In matters of this nature this Court is quite liberal in granting time extension especially when the request is _bonafide_ and it is on account of factors beyond the control of the respondent officer concerned. Hence it is only to be held that the non-availability of the inspection report of the Executive Engineer, PWD as referred to in Ext.P13 is also a matter which would clearly disclose that crucial and relevant aspects of the matter has not been taken into consideration by the 2[nd] respondent while passing Ext.P13 order. 13. Hence in the light of these aspects, merely for making available the report of the inspection, there is no point in relegating the parties to the appellate authority concerned. This is all the more W.P(C). Nos. 17184 & 16318 of 2020 15 so in view of the fact that the first issue relating to the applicability of the dictum of this Court laid down in _**Indira's case**_ (supra) is a matter which has to be considered by this Court. In view of these aspects the abovesaid preliminary objections raised by Sri.Gikku Jacob, learned counsel appearing for contesting respondent Nos.7 & 8 will stand overruled. 14. Now coming to the matters involved in the impugned Ext.P13 order, it is to be noted that it is a case of the petitioners that going by the documents produced in W.P(C) No.17184/2020 Ext.P5 would show that the subject property has not been included in the land data bank as 'paddy land or nilam' (the documents hereinafter referred are with reference to W.P(C) No.17184/2020). Exhibit P6 is the copy of the land tax receipt issued by the competent revenue officials concerned, which would show that the subject property is purayidam/garden land. Exhibit P7 is the possession certificate in respect of the subject property which would also show the property has been described as purayidam/garden land. Exhibit.P8 is the land acquisition mahazar prepared on behalf of the notified Collector in terms of the provisions contained in the Land Acquisition Act, 1894, whereby a portion of the larger extent of property concerned was W.P(C). Nos. 17184 & 16318 of 2020 16 acquired and in Ext.P8 mahazar also it is clearly shown by the competent revenue officials concerned that the property is garden land/purayidam. 15. The petitioners would assert that when the State Government had acquired the part of the property pursuant to Ext.P8 the compensation is ordered to the property owner concerned reckoning the property as garden land. After acquisition, the property has been included in the encumbrance certificate as per Ext.P9, wherein also it is shown as garden land/purayidam. Exhibit P9 is the subdivision statement of the subject property issued in the year 2005, wherein also it has been shown as garden land/purayidam. 16. The contesting respondents 7 & 8 have taken up the plea before the 2[nd] respondent that the subject property has been described as 'nilam/paddy land' in the earlier survey settlement records. The 2[nd] respondent has taken the view that the subject property has been treated as 'nilam/paddy land' going by the earlier survey settlement records and that this is one of the main ground of rejection in the impugned Ext.P13 order. 17. In this regard, this Court has considered such issues in the W.P(C). Nos. 17184 & 16318 of 2020 17 case in _**Indira P.S and others v. Sub Collector of Fort Kochi and others**_ [2020 (4) KHC 33], wherein it has been held that the description in the vital statutory document like BTR prepared as per Rule 4 of the Kerala Land Tax Rules cannot be disturbed merely because of the respondent officers find subsequently that there are some old records like the old settlement register, which show the description of the property otherwise and that the said approach of the respondent officers is to say the least arbitrary and against the statutory provisions and therefore it is illegal and ultra vires. 18. It will be profitable to refer to para Nos.6 to 10 of the said judgment of this Court in _**Indira's case**_ (supra) which reads as follows. _6. After having heard both sides, this Court is of the considered view that the statutory primacy should be given to the Basic Tax Register, which is the statutory document prepared in terms of the provisions contained in Rule 4 of the Kerala Land Tax Rules, 1972 framed under the provisions of Sec.5 of the Kerala Land Tax Act, 1961._ _7. Section 5 of the Kerala Land Tax Act deals with 'Charge of land tax' and Sub-Sec.2 thereof mandates that basic tax charged on any land shall be paid by the land holder concerned etc,. “Land Holder” has been defined in Sec.3(3) of the Land Tax Act as follows:_ - “(3) “land holder” means,- - (a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant; - (b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such W.P(C). Nos. 17184 & 16318 of 2020 18 kanam tenant; - (c) in relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land; - (d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him.” _8. Section 4 of the Act further mandates that the arrangement under the Kerala Land Tax Act, 1961 shall be general revenue settlement and notwithstanding anything contained in any enactment, grant, deed or other transaction, the arrangement made herein for the levy of the basic tax shall be deemed inter alia to be general revenue settlement of the State. Section 20 of the said Act confers power on the State Government to frame rules. In exercise of the power under Sec. 20 of the abovesaid Act, the Kerala Land Tax Rules, 1972 has been statutorily framed. Rule 4 of the Kerala Land Tax Rules, 1972, mandates that a register called Basic Tax Register shall be maintained in all Village and Taluk Offices. By virtue of combined effect of Secs.3 (3) , 4 and 5 etc., the land tax is to be collected from the land holder concerned as defined in Sec.3(3)(a). For that purpose, Basic Tax Register has to be maintained in all Village and Taluk Offices as per Rule 4. By virtue of the non obstante clause in Sec.4 of the Act, notwithstanding anything in any other enactment, grant, deed or other transaction the arrangement made as per the said Kerala Land Tax Act for the levy of basic tax shall be deemed inter alia to be general revenue settlement of the entire State. Different tax rates are prescribed for garden land and paddy land etc,. The name of the land holder and the nature of the property are thereafter duly recorded in the BTR, after such due process. Therefore the Basic Tax Register as envisaged in Rule 4 of the Kerala Land Tax Rules, 1972 is a vital statutory document and hence the entries in such a vital statutory document like the BTR cannot be simply ignored by the competent revenue officials concerned, so as to proceed adversely as against the parties like the petitioners merely on the ground that the old settlement register shows the description of the property_ W.P(C). Nos. 17184 & 16318 of 2020 19 _otherwise. The said approach of the respondents is against the scheme of the statutes as framed in the Kerala Land Tax Act, 1961 and the Kerala Land Tax Rules, 1972._ _9. That apart, it is the admitted case of the resp0ndents that it is after due survey and inspection of the subject property that the land was earlier classified as 'garden land' or 'purayidam', which is clearly recorded in the Basic Tax Register in relation to the subject property. Therefore, the said description in the vital statutory document like BTR as per Rule 4 cannot be disturbed merely because of the respondents find subsequently that there are some old records like the old settlement register, which show the description of the property otherwise. The said approach of the respondents is to say the least arbitrary and against the statutory provisions and therefore it is illegal and ultra vires._ _10. In that view of the matter it is ordered that the directions in Ext.P6 stop memo are illegal, ultra vires and unenforceable and it is also ordered that the stop memo as per Ext.P6 will stand set aside and quashed._ 19. A mere cursory reading of the impugned Ext.P13 order would make it clear like the day light that the 2[nd] respondent has not taken into consideration the abovesaid curial and relevant aspects borne out from the dictum laid down by this Court in decisions as in _**Indira 's case**_ (supra) [2020 (4) KHC 33]. This is all the more so since there does not appear to be any serious dispute as can be seen from reading of Ext.P13 order that the subject property has been consistently shown as 'garden land/purayidam' in the Basic Tax Register and other records mentioned hereinabove. Hence the nonconsideration of the abovesaid dictum laid down by this court in _**Indira's case**_ (supra) by the 2[nd] resp0ndent in rendering Ext.P13 W.P(C). Nos. 17184 & 16318 of 2020 20 order, would vitiate the same and is liable for interdiction at the hand of this Court in exercising powers of judicial review in the present public law proceedings. Further the excuse projected by the 2[nd] respondent that on account of the expiry of the time limit stipulated by this Court in Ext.P12 judgment, the inspection report of the Executive Engineer, PWD could not be obtained, cannot be countenanced at all. The said stand would have been understandable if the 2[nd] respondent had approached this Court and sought for time and such time extension has been rejected by this Court. That is not the factual scenario in the instant case. Then the 2[nd] respondent himself would state that the nonfurnishing of the report of the Executive Engineer of the Public Works Department is something serious. So the matter will have to be interdicted so that proper inspection is effectuated with notice to all the parties concerned by the Executive Engineer, PWD and copies of the inspection report are given to all the parties concerned, so that such issues regarding ascertainment of the correct and relevant facts are beyond the pale of any factual disputations by these rival parties. Certain other issues are also dealt within the impugned Ext.P13 order like the objections W.P(C). Nos. 17184 & 16318 of 2020 21 raised or on behalf of a school authority in the nearby locality etc. Those aspects need not be dealt with by this Court and in the light of the remit that is proposed by this Court and all such issues could be effectively considered by the 2[nd] respondent after hearing all the parties concerned and the objectors concerned. Further it is also profitable to refer para No.17 of the judgment of this court in _**Reliance Industries Ltd. and others v. The Commissioner of Land Revenue [2007 (2) KLT 850],**_ which reads as follows: _“17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by Rule 144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate, “if he sees no objection”. The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less.”_ 20. The abovesaid dictum laid down by this Court in _**Reliance Industries's case**_ (supra) [2007 (2) KLT 850] para No.17 has also not been properly taken into account by the 2[nd] respondent while taking a decision as per Ext.P13. Still further it is also relevant to note that when the contesting respondents 7 & 8 had previously approached this Court to challenge the proposed action in the W.P(C). Nos. 17184 & 16318 of 2020 22 establishment of the petroleum pump, this court has rendered Ext.P12 judgment dated 10-12-2019 in W.P(C) No.18528/2019, wherein it has been categorically directed in the penultimate paragraph of Ext.P12 judgment that the 2[nd] respondent should hear the petitioners therein as well as the 1[st] respondent before issuing NOC under Rule 144 of the Petroleum Rules, 2002 and after specifically verifying or causing to be verified the nature, lie and attributes of the property in question and whether it is included in the data bank as 'paddy land' or is described as one in the BTR and revenue records and issue appropriate orders thereon, as expeditiously as is possible and within the time limit mentioned in the said judgment. Therefore matters should have been considered by the 2[nd] respondent strictly in terms of the dictum laid down by this Court in para No.17 of _**Reliance Industries's case**_ (supra) and in the light of the specific parameters laid down by this Court in the penultimate paragraph of Ext.P12 judgment, that has been done in the instant case. Therefore this aspect would also warrant interdiction by this Court in judiciary proceedings. The penultimate paragraph of the Ext.P12 judgment, reads as follows: _“In the afore perspective, I order this writ petition and direct the 2nd respondent - District Collector, to hear the_ W.P(C). Nos. 17184 & 16318 of 2020 23 _petitioners as well as the 1st respondent before issuing a No Objection Certificate under Rule 144 of the Petroleum Rules, after specifically verifying or causing to be verified the nature, lie and attributes of the property in question and whether it is included in the Data Bank as a "paddy land" or is described as one in the BTR and Revenue Records and issue appropriate orders thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.”_ 21. It is made clear that this Court has only examined the decision making process and has not entered into the merits of the controversy in any manner. In the light of these aspects this Court is constrained to take the view that the matter would require serious reconsideration at the hands of the 2[nd] respondent Additional District Magistrate and for effectuating such a remit the impugned Ext.P13 order dated 23-06-2020 will stand set aside and quashed. The application for NOC under Rule 144 of the Petroleum Rules, 2002 referred to in Ext.P13 will stand remitted to the 2[nd] respondent Additional District Magistrate for consideration and decision afresh. 22. The 2[nd] respondent will immediately ensure that the Executive Engineer, Public Works Department (Road Section) should forthwith conduct a inspection of the subject property with due notice to the petitioners in these two cases, contesting respondents 7 & 8, the authorised representative of the Indian Oil Corporation, the W.P(C). Nos. 17184 & 16318 of 2020 24 authorised representative of the 5[th] respondent Pala Municipality and objectors mentioned in Ext.P13. 23. The learned Senior Government pleader is requested to ensure that strict instructions should be given to the Executive Engineer, PWD (Road Section) to ensure that the inspection is expeditiously conducted without any further delay, so that the comprehensive inspection report in the matter is submitted by the said Executive Engineer to the 2[nd] respondent Additional District Magistrate within four weeks from the date of receipt of a certified copy of this judgment. In the said inspection the Executive Engineer, Public Works Department will ascertain the factual aspects required to be ascertained by the 2[nd] respondent Additional District Magistrate and any other relevant matters that may be brought to the notice of the said officer by the petitioners in these cases, contesting respondents 7 & 8 and any objectors etc. Copies of the inspection report should be given to the petitioners in these two cases, contesting respondents 7 & 8, other objectors concerned, the respondent Indian Oil Corporation and the respondent Pala Municipality etc, immediately after the submission of the inspection report. W.P(C). Nos. 17184 & 16318 of 2020 25 24. Thereafter the parties will be at liberty to give the written submissions in the matter before the 2[nd] respondent Additional District Magistrate, who will then afford reasonable opportunity of being heard to the petitioners in these two cases, contesting respondents 7 & 8, respondent Indian Oil Corporation, the resp0ndent Pala Municipality and the objectors concerned, though their authorised representatives or counsel if any, and then should advert to and consider the submissions of all the parties concerned and then take a decision in the matter on issuance of NOC in terms of Rule 144 of the Petroleum Rules, 2002, without much delay preferably within a outer time limit of four weeks from the date of receipt of the inspection report to be submitted by the Executive Engineer of the Public Works Department. While doing so, the 2[nd] respondent would take into account the dictum laid down by this Court in the judgment in _**Indira P.S and others v. Sub Collector of Fort Kochi and others**_ [2020 (4) KHC 33], R _**eliance Industries Ltd. and others v. The Commissioner of Land Revenue**_ [2007 (2) KLT 850] as well as the specific directions and orders passed by this Court in the penultimate paragraph of Ext.P12 judgment. W.P(C). Nos. 17184 & 16318 of 2020 26 25. The petitioners will produce certified copies of this judgment along with copies of the memorandum of the W.P(C) with all the Exhibits before the 2nd respondent Additional District Magistrate as well as before the Executive Engineer, Public Works Department (Road Section) concerned mentioned in Ext.P13, for necessary information and further action. 26. The learned Senior Government Pleader is also requested that the office of the Advocate General will forward copies of the judgment to both the 2nd respondent Additional District Magistrate and the abovesaid Executive Engineer, Public Works Department (Road Section) concerned for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS W.P(C). Nos. 17184 & 16318 of 2020 27 ## **APPENDIX OF WP(C) 16318/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE PARTITION DEED NO. 509/2005 OF SRO, MEENACHIL DATED 15.02.2005.** **EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE RUBBER BOARD DATED 13.10.2011 FOR GRANTING SUBSIDY FRO REPLANTING THE RUBBER. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL FIELD OFFICER DATED 15.07.2019. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE BASIC TAX RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 13.05.2019. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 11.02.2019. EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE MAZHAR ISSUED BY THE LAND ACQUISITION OFFICER DATED 28.12.2005. EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE LETTER ISSUED BY THE TEAM LEADER NRDS DATED 30.10.2006. EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE S.R.O. MEENACHIL DATED 10.10.2006. EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE SUBDIVISION STATEMENT FOR THE YEAR 2005 OBTAINED BY THE PETITIONER. EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT DATED 17.06.2019. EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE REPORT SUBMITTED BY THE DEPUTY TAHSILDAR DATED 11.07.2019.** W.P(C). Nos. 17184 & 16318 of 2020 28 **EXHIBIT P12** **TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 10.12.2019 IN WPC NO. 18528/2019.** **EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE ORDER DATED 23.06.2020 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R8(a) TRUE COPY OF THE APPLICATION DATED 16/5/2019 FILED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT** **EXHIBIT R8(b) TRUE COPY OF THE PLAINT IN O.S.NO.159/2011 BEFORE THE MUNSIFF'S COURT, PALA DATED 8/7/2011** **EXHIBIT R8(c) TRUE COPY OF THE PLAINT IN O.S NO.31/2013 BEFORE THE MUNSIFFS COURT, PALA DATED 28/2/2013** **EXHIBIT R8(d) TRUE COPY OF THE COUNTER AFFIDAVIT DATED 31/10/2019 FILED BY THE 3RD RESPONDENT IN WPC NO.18528/2019** W.P(C). Nos. 17184 & 16318 of 2020 29 ## **APPENDIX OF WP(C) 17184/2020** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**THE TRUE PHOTOSTAT COPY OF THE**| |---|---| ||**APPLICATION DATED 24/12/2018 SUBMITTED**| ||**BY THE PETITIONER BEFORE THE IOC.**| |**EXHIBIT P2**|**THE TRUE PHOTOSTAT COPY OF THE**| ||**AFFIDAVIT OF CONSENT OF JOSE J**| ||**NECHIKATTU TO THE PETITIONER DATED**| ||**24/12/2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE OFFER LETTER ISSUED TO**| ||**THE PETITIONER BY THE IOC DATED**| ||**22/03/2019.**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER DATED**| ||**16/05/2019 DGM SALES IOC OF THE**| ||**TRIVANDRUM DIVISION SUBMITTED A LETTER**| ||**DATED 16/05/2019 TO THE 1ST RESPONDENT**| ||**DISTRICT COLLECTOR, KOTTAYAM.**| |**EXHIBIT P5**|**THE TRUE PHOTOSTAT COPY OF THE**| ||**CERTIFICATE ISSUED BY THE AGRICULTURAL**| ||**FIELD OFFICER, KRISHI BHAVAN, PALA**| ||**STATING THE PETITIONERS PROPERTY IS NOT**| ||**INCLUDED IN THE DATA BANK PREPARED**| ||**UNDER KERALA CONSERVATION OF PADDY LAND**| ||**AND WETLAND ACT, 2008 DATED 15.07.2019.**| |**EXHIBIT P6**|**THE TRUE PHOTOSTAT COPY OF THE BASIC**| ||**TAX RECEIPT ISSUED BY THE 4TH**| ||**RESPONDENT IN RESPECT OF THE PROPERTY**| ||**DATED 13.05.2019.**| |**EXHIBIT P7**|**THE TRUE PHOTOSTAT COPY OF THE**| ||**POSSESSION CERTIFICATE ISSUED BY THE**| ||**4TH RESPONDENT DATED 11.02.2019.**| |**EXHIBIT P8**|**THE COPY OF THIS RELEVANT PORTION OF**| ||**THE MAZHAR DATED 20.12.2005 ISSUED BY**| ||**THE LAND ACQUISITION OFFICER.**| |**EXHIBIT P9**|**THE TRUE PHOTOSTAT COPY OF THE**| ||**SUBDIVISION STATEMENT FOR THE YEAR**| ||**2005.**| W.P(C). Nos. 17184 & 16318 of 2020 30 |**EXHIBIT P10**|**THE TRUE PHOTOSTAT COPY OF THE REPORT**| |---|---| ||**SUBMITTED BY THE 4TH RESPONDENT TO THE**| ||**3RD RESPONDENT DATED 17.06.2019.**| |**EXHIBIT P11**|**THE TRUE PHOTOSTAT COPY OF THE REPORT**| ||**SUBMITTED BY THE DEPUTY TAHSILDAR DATED**| ||**11.07.2019.**| |**EXHIBIT P12**|**THE TRUE PHOTOSTAT COPY OF THE JUDGMENT**| ||**DATED 10.12.2019 IN WPC NO. 18528/2019.**| |**EXHIBIT P13**|**THE TRUE PHOTOSTAT COPY OF THE ORDER**| ||**DATED 23.06.2020 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**RESPONDENT'S/S**|**EXHIBITS:**<br> **NIL**|