WA No.1048 of 2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WA NO. 1048 OF 2016
AGAINST THE JUDGMENT IN WPC 5725/2015 OF HIGH COURT OF KERALA
APPELLANTS/NO PARTIES IN THE W.P.(C)
1 PACHEERI BABU
AGED 46 YEARS
S/O.VELAYUDHAN, KOTTAMPARAMBA (HOUSE),CHITHRAM, CHELAMBRA (P.O),
MALAPPURAMDISTRICT.
2 SHEEJA
AGED 37 YEARS
W/O.PACHEERI BABU, KOTTAMPARAMBATH (HOUSE),CHITHRAM, CHELAMBRA
(P.O), MALAPPURAMDISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.SAJU.S.A
SRI.VINOD RAVINDRANATH
RESPONDENTS:
1 PRATHEESH P.
S/O.AYYAPPAN P., THADAYIL HOUSE, CHELEMBRA P.O, MALAPPURAM
DISTRICT, PIN - 673 634.
2 DISTRICT COLLECTOR
MALAPPURAM DISTRICT, PIN - 673 505.
3 CHIEF MANAGER
INDANE AREA OFFICE, INDIAN OIL CORPORATION LTD,2ND FLOOR, PMK
TOWER, WAYANAD ROAD,CALICUT - 673 020.
4 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT OF KERALA,
SECRETARIAT,TRIVANDRUM - 695 001.
BY ADVS.
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2 & R4
SRI.T.SETHUMADHAVAN (SR.)FOR R1
SRI.GOPIKRISHNAN NAMBIAR FOR R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.1048 of 2016 2
JUDGMENT
Dated this the 23rd day of June, 2022 SHAJI P.CHALY,J Instant appeal is filed by a third party to W.P.(C) No.5727/2015, on granting leave by this Court, challenging the judgment of the learned single Judge dated 3.3.2015, wherein the following reliefs were sought for by the writ petitioner/ 1st respondent :
i) Call for the records leading to exhibit P-10 order of the 1" respondent and quash the same by issuance of writ of certiorari or any other appropriate writ or order.
ii) Issue a writ of mandamus or any other appropriate writ or order or direction directing the 'respondent to issue NOC to the petitioner
iii) Issue a writ of mandamus or any other appropriate writ or order or direction permitting the petitioner to proceed with the construction of the godown in the light of Exhibits P-1 and P-2.
iv) Issue a writ of mandamus or any other appropriate writ or order or direction directing the 2nd respondent to extend the period for completing all the formalities till the disposal of the writ petition.
v) Grant such other relief as the petitioner prays for and this Hon'ble Court deems just and necessary in the circumstance of the case and allow the writ petition.
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2. The reliefs sought for in the writ petition was partly allowed by the learned Single Judge and quashed Exhibit P10 order of the District Collector, Malappuram
- the 2nd respondent, in the following manner:
"6. It is seen from the materials produced before this Court and in particular the contents of Ext.P8 that the property concerned herein was lying as a converted land for the past several years and that there was no cultivation in the said land it is certified that the said land was not fit for cultivation and no cultivation exists in the nearby lands as well and further that there were lots of improvements. It is also mentioned in Ext.P10 that even as per the entries in the data bank register, reclamation was effected much prior to the commencement of Act 28 of 2008. This being the position, the provisions of Act 28 of 2008 are not attracted to the case in hand, in view of the law declared by this Court in the decision reported in 'Jafarkhan v. Kochumarakkar' [2012 (1) KLT 491).
7. In such circumstances, the matter requires to be considered with reference to physical nature of the property as observed by the Full Bench decision in 'Praveen v. Land Revenue Commissioner' [2010 (2) KLT 617]. It has also made clear by this Court that, if the provisions of Act 28 of 2008 are not attracted then the property can be made use of even for industrial purposes as per the verdict passed in 'Sunil v. Killimangalam Panjal 5th Ward, Nellulpadaka Samooham [2012 (4) KLT 511].
8. In the above circumstances, this Court finds that the course and proceedings finalized by the 1st respondent leading to Ext.P10 are not correct or sustainable and it is liable to be intercepted. Exts.P10 stands set aside. There will be a direction to the 1st respondent to issue 'NOC' applied for in respect of the property concerned herein, for setting up the LPG Godown WA No.1048 of 2016 4 within 'one month' from the date of receipt of a copy of this judgment. It is for the petitioner to proceed with further steps before the 2nd respondent on the strength of the NOC to be issued by the 1 st respondent, subject to the satisfaction of the requirements as per the 'letter of allotment' given by the 2 nd respondent. 'Status quo' shall be maintained till such time.
The writ petition stands allowed. No costs."
3. It is thus challenging the legality and correctness of the directions, the appeal is filed. The appellants are husband & wife and their case is that the 1 st respondent/writ petitioner has started construction of a godown to store gas cylinders in Re-Sy No.70/14 and 71/23( mistakenly shown as 71/14) of Chelembra Village, Malappuram District. The case of the appellants is that the plot, where the writ petitioner proposed to construct the godown, is near to the residential house of the appellants and if a godown is established in the proposed plot, the same will affect the peaceful existence and habitation of the appellants in the residential house.
4. According to the appellants, the District Collector, Malappuram as per Exhibit P5 proceedings dated 6.1.2014 held that the No Objection Certificate could not be given to the 1 st respondent for establishing a godown in the plot. It is further submitted that the District Collector came to such a conclusion mainly on two grounds; (1) the land, wherein the godown is proposed to be established, is a paddy field as per the revenue records and; (2) the persons residing near to WA No.1048 of 2016 5 the plot have raised objections in granting No Objection Certificate on the ground that if the godown is established, it will affect the peaceful existence in the locality. Therefore, it is submitted that the directions given by the learned single Judge is without taking into account the factual situations and the provisions of the Gas Cylinders Rules, 2004.
5. The judgment of the learned single Judge is assailed primarily contending that the learned single Judge has failed to take note of the fact that the residential house of the appellants is situated within 4 metres of the proposed godown, apart from the other residential houses situated in the area. That apart it is contended that the appellants have not given any consent to establish the godown and the writ petitioner is not entitled to establish the godown under the provisions of the Gas Cylinders Rules, 2004.
6. The sum and substance of the contention of the appellants is that the District Collector has realised the situation and has passed Exhibit P5 order cancelling the permission granted as per Exhibit P1 order for utilisation of the 24 cents of property for different purposes other than paddy cultivation. Therefore, it is contended that interference with the judgment of the learned single Judge is required.
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7. We have heard learned counsel for appellant Sri.K.C.Kiran, learned Senior Counsel Sri.T.Sethumadhavan for the 1st respondent/writ petitioner, learned Senior Government Pleader Sri.K.P.Harish, learned counsel Sri.M.Gopikrishnan Nambiar & Sri.Paulose for the Chief Manager, Indian Oil Corporation Limited, and perused the pleadings and materials on record.
8. In fact, the facts projected by the appellants in the writ petition is not in accordance with the true facts available from the documents produced along with the writ petition. Apparently, the writ petitioner has submitted an application before the District Collector, Malappuram seeking permission for utilisation of an extent of 24 cents of property situated in Re-Sy No.70/14 & 71/23 in Block No.2 of Chelembra Village, Tirurangadi Taluk for construction of a building for a gas agency under the provisions of the Kerala Land Utilisation Order, 1967. The said application was allowed as per Exhibit P1 order dated 12.4.2013 by the District Collector by incorporating several conditions. On the basis of Exhibit P1 order, Exhibit P2 permit dated 30.4.2013 was granted by the Secretary of the Chelembra Grama Panchayat for construction of a building in the aforesaid survey numbers in terms of the Kerala Panchayat Building Rules 2011.
9. As per Exhibit P3, Divisional Fire Officer issued a No Objection Certificate for construction of the godown for storage of gas cylinders. It seems about 40 residents of the locality has filed a complaint dated 12.4.2013 before the District WA No.1048 of 2016 7 Collector objecting the permission given for construction of the godown and the District Collector, as per Exhibit P5 order, has cancelled Exhibit P1 order granted by his predecessor in office for conversion of the paddy field for construction of the godown. Being aggrieved by the said order, the writ petitioner, as he is a member of the Scheduled Caste community, approached the Kerala State Commission for Scheduled Castes and Scheduled Tribes and the Commission as per Exhibit P8 order dated 4.11.2014 disagreed with the Exhibit P5 order passed by the District Collector and directed the District Collector to re-consider the matter irrespective of the objections raised by the residents of the locality. Thereupon, the writ petitioner has submitted Exhibit P9 petition dated 13.5.2014 before the District Collector, Malappuram and the District Collector, in compliance of the directions issued by the Commission, has passed Exhibit P10 order dated 18.1.2015 stating that in view of section 5(3) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, permission for conversion of the land for public purpose can be granted by the State Level Committee constituted as per the Act, 2008 and that the District Collector has no authority to permit filling up of land for commercial purpose. By holding so, the District Collector has dismissed the request made by the writ petitioner as per Exhibit P9. It is thus challenging the legality and correctness of Exhibit P10 order that the 1 st respondent in the appeal has filed the writ petition.
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10. The learned single Judge, after taking into account the aforesaid facts and circumstances, has arrived at the conclusion that the District Collector as per Exhibit P1 has exercised his powers under the Kerala Land Utilisation Order, 1967 and granted permission for utilisation of the paddy field for other purposes to the writ petitioner; that therefore the provisions of Act 2008 would not apply; and that Exhibit P2 building permit was granted by the local authority on 30.4.2013 consequent to Exhibit P1 order. It is also indicated that, without having regard to Exhibit P1 permission granted by the District Collector, on the basis of the complaint filed by the residents of the locality Exhibit P1 order was cancelled. It was further found by the learned single Judge that the approach made by the District Collector in passing Exhibit P10 order and rejecting the request made by the writ petitioner relying upon the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, cannot be sustained in view of the judgments rendered by this Court in Jafarkhan v. Kochumarakkar [2012 (1) KLT 491)] and the Full Bench judgment of this Court in Praveen v. Land Revenue Commissioner'[2010 (2) KLT 617]. It was accordingly that Exhibit P10 order of the District Collector was quashed and directions were issued.
12. Having gone through the facts as deliberated above, we find that the "Non Objection Certificate" that is specified in Exhibit P5 order is nothing but Exhibit P1 permission granted by the District Collector under the Kerala Land WA No.1048 of 2016 9 Utilisation Order, 1967. It is evident that Exhibit P5 order is not one issued under the provisions of the Gas Cylinders Rules, 2004 and it is quite clear and explicit that it is passed on the basis of the complaint filed by the residents of the area dated 6.12.2013, by which Exhibit P1 permission granted under the Kerala Land Utilisation Order, 1967 is cancelled.
13. We have gone through the provisions of the Kerala Land Utilisation Order, 1967 and we could not locate any power conferred on the District Collector to review the permission granted by the District Collector by passing a subsequent order on the basis of the complaint filed by residents of the locality on the ground that if a godown is established in the property, it would seriously affect the peaceful life of the people residing in the area. In our considered view Exhibit P5 order is misconstrued by the learned counsel for the appellants as a No Objection Certificate in contemplation of rule 48 of the Gas Cylinders Rules, 2004, which reads thus:
"48. No Objection Certificate.-- (1)An applicant for a new licence in Form G, for a CNG dispensing station shall apply to the District Magistrate with two copies of site plan showing the location of the premises proposed to be licensed under these rules for a certificate to the effect that there is no objection to the applicant's receiving a licence for a CNG dispensing station at the site proposed, and the District Magistrate, if satisfied, shall grant no objection certificate to the applicant who shall forward it to the Chief Controller or Controller with his application.WA No.1048 of 2016 10
(2) Every certificate issued by the District Magistrate under sub-rule (1) above shall be accompanied by a copy of the plan of the proposed site duly endorsed by him under official seal.
(3) The Chief Controller or Controller may refer an application not accompanied by a certificate granted under sub-rule (1) to the District Magistrate for his observation.
(4) If the District Magistrate, either on a reference being made to him or otherwise, intimates to the Chief Controller or Controller that any licence which has been applied for should not, in his opinion, granted, such licence shall not be issued without the sanction of the Central Government.
14. According to the learned counsel for appellants, there is no provision for securing a No Objection Certificate in the matter of construction of a godown. We fully agree with the said submission made by the learned counsel for appellants because rule 48 applies only in the case of CNG and not for LPG . In fact the person granted with a letter of appointment by an Oil Company has to secure necessary licence in contemplation of rule 50 of the Rules, 2004, which reads thus:
"50. Grant of licence--(1) A licence under these rules may be granted by the Chief Controller or Controller on payment of the fees specified in Schedule V.
(2) A licence under sub-rule (1) shall be granted if the provisions of these rules are complied with by the applicant.WA No.1048 of 2016 11
(3) Every licence granted under these rules shall be subject to the conditions specified therein.
15. In our considered opinion, the contentions put forth by the appellants misconstruing Exhibit P5 as an order passed under rule 48 of the Gas Cylinders Rules, 2004, is due to a pure misconception of facts. In Exhibit P5 order, the District Collector has referred to the subject "Gas Cylinders Rules"", however, it is clear from the said order that it was in regard to the subject matter of permission granted for conversion of the paddy land for other purposes.
16. As we have pointed out above, the permission under the Kerala Land Utilisation Order, 1967 was granted to the writ petitioner by the then District Collector as per Exhibit P1 order as early as on 12.4.2013. However, without understanding the implications of the provisions of the Kerala Land Utilisation Order, 1967, as per Exhibit P5 order, the District Collector has cancelled the same on the basis of the complaint submitted by the residents of the locality. It is significant to note that Exhibit P6 is an order passed by the Controller of Explosives, South Circle, Chennai dated 24.12.2013 apparently in an application submitted by the writ petitioner for grant of licence. The said order is relevant to the context, which reads thus:
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17. Therefore, taking into account the said aspect and the facts and circumstances projected by us above it is clear that the writ petitioner has correctly applied for licence to the Chief Controller of Explosives in contemplation of rule 50 of the Gas Cylinders Rules, 2004. Even though strenuous contentions are raised that there is no power for the District Collector to grant any No Objection Certificate as per the Gas Cylinders Rules, 2004 for conducting a godown, we are of the opinion that such submission is made by the learned counsel for the appellants on the mistaken impression that Exhibit P5 order is passed by the District Collector on the basis of an application submitted by the writ petitioner seeking No Objection Certificate under the Gas Cylinders Rules, 2004.
18. On a deeper analysis of the documents, pleadings and arguments advanced by respective counsel, we have no hesitation to hold that Exhibit P5 order passed by the District Collector has got nothing to do with the No Objection Certificate referred to in the Gas Cylinders Rules, 2004. Moreover, even though the Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force in the year 2008, the Kerala Land Utilisation Order, 1967 still continued to be in force so far as concerning the permission to be secured from the District Collector for utilisation of the paddy field for other purposes other than paddy cultivation and agricultural operations. It was only w.e.f. 30.12.2017 by amendment of the Act, 2008, section 27A was incorporated in the Act, 2008 so as to confer power on the authority under the Act, 2008 to consider such applications for utilisation of unnotified paddy fields for other WA No.1048 of 2016 14 purposes other than paddy cultivation and agricultural operations.
19. Therefore bearing in mind the said legal position, the findings rendered by the District Collector in Exhibit P10 order that only the State Level Committee has the power to grant permission for filling up of land for public purpose, cannot be sustained under law, especially due to the fact that the construction of a godown by a private entrepreneur is not a public purpose in contemplation of the provisions of Act 2008. Thus, taking into account the aforesaid factual and legal aspects ; bearing in mind the proposition of law laid down by this Court in the judgments relied upon by the learned single Judge, and for our own reasons departed from the findings rendered by the learned Single Judge, we are of the undoubted opinion that the appellants have not made out any case for interference with the judgment of the learned single Judge, there being no jurisdictional error or other legal infirmities justifying us to do so.
Needless to say, the writ appeal fails, accordingly, it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE