WP(C).Nos.33119 of 2018 & 42406 of 2018 (Ismail Hajee & Subaida v. District Collector, Additional District Magistrate, Chief Town Planner, Pallikkal Grama Panchayath, Subaida Puliyanchalil & Esaar Oil Limited)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **WP(C).No. 33119 of 2018** ## **PETITIONERS:** |**1**||**ISMAIL HAJEE**| |---|---|---| |||**AGED 61 YEARS**| |||**S/O.MOOSAKUTTY, THAZHATHERI HOUSE,**| |||**KUMMINIPARAMBA PO, 673638, MALAPPURAM DISTRICT**| |**2**||**SUBAIDA**| |||**AGED 1 YEARS**| |||**W/O. SAIDALAVI, AZHUVALAPPAIL HOUSE,**| |||**KUMMINIPARAMBA P. O, MALAPPURAM DISTRICT.**| |||**BY ADV. SRI.K.K.MOHAMED RAVUF**| |**RESPONDENTS**<br>**:**||| |**1**||**THE DISTRICT COLLECTOR**| |||**CIVIL STATION, MALAPPURAM DISTRICT, 676505**| |**2**||**THE ADDITIONAL DISTRICT MAGISTRATE**| |||**MALAPPURAM, CIVIL STATION, MALAPPURAM DISTRICT-**| |||**676 505**| |**3**||**THE CHIEF TOWN PLANNER**| |||**THIRUVANANTHAPURAM-695 001**| |**4**||**THE PALLIKKAL GRAMA PANCHAYATH**| |||**REPRESENTED BY ITS SECRETARY, PALLIKKAL P.O,**| |||**673 634, MALAPPURAM DISTRICT.**| |**5**||**SUBAIDA PULIYANCHALIL**| |||**W/O. MOHAMMEDKUTTY, RAHMAN MANZIL,**| |||**KUMMINIPARAMBA P.O, MALAPPURAM DISTRICT-673 638**| W.P.(C).Nos.33119 & 42406/18 2 **6 ADDL. R6. ESSAR OIL LIMITED, 6-B, 6TH FLOOR, NOEL FOCUS, SEAPORT- AIRPORT ROAD, CHITTETHUKARA, CSEZ P.O., KOCHI- 682 037, REPRESENTED BY ITS JOINT GENERAL MANAGER. -----------------------------------------ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 31/10/2018 IN IA 1/2018.** **BY ADVS. SRI.S.BIJU (KIZHAKKANELA) SRI.LINDONS C.DAVIS SMT.E.U.DHANYA SRI.C.UNNIKRISHNAN (KOLLAM) SRI.JOHNSON GOMEZ SRI.P.JAHANGEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2019, ALONG WITH WP(C).42406/2018, THE COURT ON 30.01.2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos.33119 & 42406/18 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **WP(C).No. 42406 of 2018** ## **PETITIONERS:** **SUBAIDA P.C., AGED 46 YEARS W/O. MOHAMMED KUTTY, RAHMAN MANZIL, KUMMINIPARAMBA P.O., MALAPPURAM, KERALA - 690509.** **BY ADVS. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA)** ## **RESPONDENTS:** |**1**|**PALLIKAL GRAMA PANCHAYAT,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PALLIKKAL P.O.,**| ||**MALAPPURAM DISTRICT - 673634.**| |**2**|**SECRETARY,**| ||**PALLIKKAL GRAMA PANCHAYATH, PALLIKKAL P.O.,**| ||**MALKAPPURAM DISTRICT-673634.**| |**3**|**THE CHIEF TOWN PLANNER,**| ||**OFFICE OF THE CHIEF TOWN PLANNER, SWARAJ**| ||**BHAWAN, NANTHANCODE, KOWDIAR P.O.,**| ||**THIRUVANANTHAPURAM - 695003.**| W.P.(C).Nos.33119 & 42406/18 4 **4 K.C.SAIDALAVI (SOUGHT TO BE IMPLEADED)** **BY ADVS. SRI.K.RAKESH SRI.P.JAHANGEER SMT.E.U.DHANYA SRI.LINDONS C.DAVIS** ## **OTHER PRESENT:** **GP K.M.RESMI AND GP PRINCY XAVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2019, ALONG WITH WP(C).33119/2018, THE COURT ON 30.01.2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos.33119 & 42406/18 5 ## **JUDGMENT** - 1.W.P.(C).No.33119 of 2018 is filed challenging Exhibit P15 order of the Chief Town Planner as well as Exhibit P16 No Objection Certificate issued by the Additional District Magistrate. The petitioner seeks to interdict the commissioning and functioning of a retail petroleum outlet on the basis of the No Objection Certificate granted to the 5[th] respondent in respect of the same. - 2.W.P.(C).No.42406 of 2018 is filed by the 5[th] respondent challenging the rejection of the application for D&O licence on the ground that W.P.(C).No. 33119/2018 is pending consideration before this Court. - 3.Heard the learned counsel for the petitioners, the learned Government Pleader, the learned counsel for the 4[th] respondent Panchayat as well as the learned counsel appearing for the petitioner in I.A.No.1/2019 who seeks to be impleaded as additional respondent in W.P.(C).No. 42406/2018. W.P.(C).Nos.33119 & 42406/18 6 ## **W.P.(C).No.33119 of 2018** 4.The contention of the learned counsel for the petitioner in W.P. (C).No.33119 of 2018 as against Exhibit P16 NOC is mainly on the ground that the NOC earlier granted had been set aside by this Court and the District Collector was directed to consider the issue. It is contended that the NOC now issued by the Additional District Magistrate is in violation of the specific direction issued by this Court to the District collector to consider the issue. Relying on a decision of the Apex Court in ## **Government of Andra Pradesh and others v. Gudepu** **Sailoo and others** [(2000) 4 SCC 625], the learned counsel for the petitioner would contend that even in a case where the power is vested in an inferior authority where there is a direction by this Court to a superior authority to consider the issue, orders can be passed only by the authority directed to consider the question and not by the authority empowered by the statute. - 5.Further, it is contended that the 5[th] respondent admittedly is in possession of 16.28 cents of land and no permit can be issued W.P.(C).Nos.33119 & 42406/18 7 in terms of Rule 34 and Rule 61 of the Kerala Panchayat Building Rules as has been done in the instant case. It is further stated that the NOC is issued without site verification and on the strength of the site plan and affidavit submitted by the 5[th] respondent. It is stated that on an inspection by the appropriate authorities, it would be evident that the site plan and the affidavit submitted by the petitioner are at variance with the actual lie of the property and that no permission is liable to be granted for the construction or functioning of retail petroleum outlet in the 5[th] respondent's property. It is stated that the site plan submitted by the petitioner would itself show that the petitioner has claimed the NOC obtained area is 1274 m[2] . It is stated that it is on the said incorrect factual premise that the NOC has now been granted. 6.The learned counsel appearing for the 5[th] respondent would contend that the direction contained in Exhibit P12 judgment was only for consideration of the issue by the District Collector. The District Collector had considered the issue, as directed by this Court, and taken a decision in the matter. It is W.P.(C).Nos.33119 & 42406/18 8 stated that it is in pursuance to the decision taken that the NOC had been issued by the Additional District Magistrate, as directed. It is further contended that all objections had been considered in detail and it is only after rectification of all defects noticed that the NOC had been issued. The further holding up of the opening of the outlet after receipt of all due permissions is totally unjustified, it is submitted. It is further contended that since all factual aspects have been ascertained by the statutory authorities, the challenge raised is totally without merits. ## 7.I have considered the contentions advanced. The operative part of Exhibit P12 judgment reads as follows:- “5. I have heard learned counsel for the petitioners, learned Government Pleader and the respective counsel appearing for respondents 3 and 4. Perused the documents on record and the pleadings put forth by the respective parties. 6.The discussion made above would make it clear that the issue revolves around Ext.P10 order. As is noticeable, Ext.P8 judgment was rendered by this Court, directing the 1[st] respondent i.e. the District Collector, Malappuram to take a decision after hearing all the respective parties. There is no case for the respondents that, in compliance with the direction issued by this Court to the 1[st] W.P.(C).Nos.33119 & 42406/18 9 respondent, 1[st] respondent has heard the matter. Apparently, Ext.P10 order is passed by the 2[nd] respondent. After filing of this writ petition by the petitioners, the mistake committed by the 1[st] and 2[nd] respondents was realized and Ext.P10 order is recalled, and a fresh notice is issued by the 1st respondent for a hearing and the parties are directed to appear before the 1[st] respondent on 23.04.2018. 7. In that view of the matter, I am of the considered opinion that, the reliefs sought for by the petitioners in the writ petition have become inconsequential and redundant. The parties are directed to appear before the 1[st] respondent on 23.04.2018 and the 1[st] respondent, after providing a hearing to all concerned, shall take a decision in accordance with law, at the earliest possible time, and at any rate, within two weeks from the date of hearing fixed i.e. on 23.04.2018. “ 8. It is stated that the District Collector had conducted a hearing and had heard all the parties. The District Collector found that there was minor discrepancies between the site plan and the lie of the land on the ground. The District Collector directed the 5[th] respondent to submit a site plan making proper alterations. The site plan was submitted on 11.5.2018, a further hearing was held on 14.5.2018 and all parties attended. The Taluk Surveyor was directed to re-align the boundaries of the property and another hearing was held on W.P.(C).Nos.33119 & 42406/18 10 23.5.2018. On that date also, detailed hearing was conducted and all the aspects of the matter were considered. After hearing the parties and considering all the documents as proposed, the District collector held that the discrepancy in the site plan has been rectified by the revised site plan. It was further found that the encroachment on to the road puramboke had also been avoided and rectified. After considering the entire aspects of the matter, the District Collector recalled the earlier NOC issued by the Additional District Magistrate and decided to grant fresh NOC in tune with the revised site plan. The Additional District Magistrate was directed to issue NOC in terms of the revised site plan and the 5[th] respondent was directed to secure fresh building permit in terms of the revised plan. On the basis of the said decision of the Additional District Magistrate, the revised site plan was approved by the Chief Town Planner and NOC was issued by the Additional District Magistrate on 21.6.2018. 9. The contention of the petitioner that the decision was not taken by the District Collector as directed by this Court is, W.P.(C).Nos.33119 & 42406/18 11 therefore, totally unsustainable. It is apparent from a reading of the proceedings of the District Collector that the entire factual aspects of the matter had been considered by the District Collector and a final decision to the effect that the NOC is liable to be granted in terms of the revised site plan has been taken by the District Collector himself. Going by the provisions of the Petroleum Rules, the authority to issue NOC is available with the Additional District Magistrate as well. It appears that the issuance of NOC has been entrusted by the District Collector to the Additional District Magistrate, since the Additional District Magistrate is issuing such certificates of No Objection. In view of the specific directions contained in Exhibit P12 judgment, I am of the opinion that the issuance of the NOC by the Additional District Magistrate cannot be held to be an infraction of the directions contained in Exhibit P12. I notice that a decision has been taken by the District Collector, as directed by this Court and the ADM had only issued the NOC on the directions of the District Collector. In the above view of the matter, the main thrust of the challenge as against the NOC issued to the 5[th] respondent has to fail. W.P.(C).Nos.33119 & 42406/18 12 10.With regard to the contentions raised as to discrepancies in the area of the plot as well, it is pointed out by the learned counsel appearing for the 5[th] respondent that the 5[th] respondent has not claimed to be in possession of any area in excess of 16.28 cents, either in his application or in any proceedings before any of the respondents. I am of the opinion that the exact area for which the NOC is granted as well as the question whether 7.5m distance is available from all the boundaries to the dispensing unit of the proposed petrol pump is maintained, are factual issues which have to be ascertained by the appropriate authorities while issuing the permissions and licences as required under law. An assertion that it may not be possible to leave the required distance from the boundary walls on all sides is not a ground on which a permission granted by the Chief Town Planner or the NOC issued by a competent authority under the Petroleum Rules can be invalidated by this Court. It is for the concerned respondents to see that the requirements of law are properly complied with. I find no sustainable grounds raised by the petitioner to justify the setting aside of Exhibits P13 or P16 W.P.(C).Nos.33119 & 42406/18 13 orders of the Chief Town Planner and the Additional District Magistrate respectively. In the above view of the matter, the challenge in W.P.(C).No. 33119/2018 fails. The writ petition is accordingly dismissed. ## **W.P.(C).No.42406/2018** In W.P.(C).No.42406/2018, the only prayer raised is against Exhibit P12 order rejecting the application preferred by the petitioner for numbering the building on the ground that W.P. (C).No.33119/2018 is pending. Since the said writ petition is dismissed, the request of the petitioner, which is referred to in Exhibit P12, is liable to be considered without any further delay. The 1[st] respondent Panchayat will consider the application dated 15.12.2018 preferred by the petitioner within ten days, after conducting all site inspections, with notice to the petitioner, if such inspections have not already been conducted. It is made clear that the petitioner shall comply with all the conditions of the NOC and the permits granted to him in accordance with law. 14 W.P.(C).Nos.33119 & 42406/18 The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.33119 & 42406/18 15 ## **APPENDIX OF WP(C) 33119/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPLICATION DATED 30/10/2017 SUBMITTED BY ESSAR OIL AND GAS PRIVATE LIMITED TO THE 1ST RESPONDENT.** - **EXHIBIT P2** **TRUE COPY OF THE RELEVANT PAGES OF LETTER OF ALLOTMENT DATED 29/9/2017** **EXHIBIT P3** **TRUE COPY OF THE CONSENT DATED 17.3.2018 ISSUED BY THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, MALAPPURAM.** - **EXHIBIT P4** **TRUE COPY OF THE SITE PLAN ISSUED BY THE VILLAGE OFFICER, PALLIKKAL** - **EXHIBIT P5 TRUE COPY OF THE LAY OUT PRODUCED BY THE 5TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF MEASUREMENT TAKEN BY THE ASSIST ENGINEER, PWD ROAD SECTION, KONDOTTY.** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 4/5/2018 ISSUED BY THE EXECUTIVE ENGINEER PWD ROAD SECTION, MANJERI TO THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE REPORT DATED 27.2.2018 OF THE VILLAGE OFFICER, PALLIKKAL** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 21/2/2018 IN WP(C) NO 5860/2018 OF THIS HON'BLE COURT.** - **EXHIBIT P10** **TRUE COPY OFORDER NO. E1-127653/2017 DATED 6/3/2018 OF THE 2ND RESPONDENT.** W.P.(C).Nos.33119 & 42406/18 16 - **EXHIBIT P11** **TRUE OCPY OF THE ORDER NO. E1127653/2017 DATED 7/3/2018 OF THE 2ND RESPONDENT.** - **EXHIBIT P12** - **TRUE COPY OF THE JUDGMENT DATED 12.4.2018 IN WP(C) NO. 11722/2018 OF THIS HON'BLE COURT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 8.6.2018 PASSED BY THE 1ST RESPONDENT.** **EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS DATED 2.38.2018 OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.** - **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 31.8.2018 OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM** - **EXHIBIT P16 TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE 2ND RESPONDENT DTED 21.6.2018** - **EXHIBIT P17 TRUE COPY OF THE LETTER DATED 11.4.2018 OF THE ASSISTANT ENGINEER, PWD ROAD SECTION, KONDOTTY** - **EXHIBIT P18 TRUE COPY OF THE LETTER NO. NA/P 16559 DATED 23.5.2018 OF THE PETROLEUM MINISTRY.** - **EXHIBIT P19 TRUE PHOTOGRAPHS SHOWING THE CONSTRUCTION OF BUILDING BY THE 5TH RESPONDENT.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 A** A TRUE COPY OF THE APPLICATION DATED 07/06/2016 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT. **EXHIBIT R1 B** A TRUE COPY OF THE AMENDED PLAN SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT. W.P.(C).Nos.33119 & 42406/18 17 **EXHIBIT R1 C** **EXHIBIT R1 D** **EXHIBIT R1 E** **EXHIBIT R1 F** **EXHIBIT R1 G** **EXHIBIT R1 H** **EXHIBIT R1 I** A TRUE COPY OF THE CONSENT DATED 15/12/2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGIONAL OFFICER FIRE AND RESCUE SERVICES, PALAKKAD. A TRUE COPY OF THE PERMIT DATED 28/06/2018 ISSUED BY THE 4TH RESPONDENT. A TRUE COPY OF THE APPLICATION FOR BUILDING NUMBER SUBMITTED BEFORE THE 4TH RESPONDENT. A TRUE COPY OF THE ORDER DATED 19/12/2018 PASSED BY THE 2ND RESPONDENT. A TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, PALLICKAL. A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PALLICKAL. W.P.(C).Nos.33119 & 42406/18 18 ## **APPENDIX OF WP(C) 42406/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF THE LETTER OF ALLOTMENT DATED 29.09.2017 ISSUED TO THE PETITIONER.** - **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 21.02.2018 IN WPC NO.5860/2018.** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 12.04.2018 IN WPC NO.11772/2018.** **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 08.06.2018 PASSED BY THE DISTRICT COLLECTOR, MALAPPURAM.** - **EXHIBIT P4 A A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 21.06.2018 ISSUED BY THE ADM, MALAPPURAM.** - **EXHIBIT P5 A TRUE COPY OF THE CONSENT DATED 15.12.2018 ISSUED BY THE KERAL STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P5 A A TRUE COPY OF THE CERTIFICATE ISSUED BY THE REGIONAL OFFICER FIRE AND RERSCUR SERVICES, PALAKKADU.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER NO.C1/6985/2018/D.DIS DATED 02.08.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P6 A A TRUE COPY OF THE ORDER DATED 31.08.2018 PASSED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE CONSTRUCTION PERMIT DATED 28.06.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P8 A TRUE COPY OF THE APPLICATION FOR BUILDING NU BER SUBMITTED BEFORE THE 2ND RESPONDENT.** W.P.(C).Nos.33119 & 42406/18 19 **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT P11** **EXHIBIT P11 A** **EXHIBIT P12** **A TRUE COPY OF THE NOTICE INDICATING THE INAUGURATION OF THE PETITIONER'S RETAIL OUTLET.** **PHOTOGRAPHS INDICATING THE COMPLETED STRUCTURE OF THE PETITIONER'S PETROLEUM RETAIL OUTLET.** **A TRUE COPY OF THE RELEVANT PAGES OF THE WR(C) NO.33119/2018.** **A TRUE COPY OF THE CASE STATUS REPORT PUBLISHED IN THE WEBSITE OF THE HIGH COURT OF KERALA.** **A TRUE COPY OF THE ORDER DATED** **19.12.2018 PASSED BY THE 2ND RESPONDENT.** True copy PS to Judge