Kerala High Court
Jerin J. Royees vs The Secretary on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 08TH DAY OF APRIL 2021/18TH CHAITHRA, 1943
WP(C).No.1060 OF 2021(F)
PETITIONER:
JERIN J. ROYEES, AGED 26 YEARS,
S/O. ROYEES JOHN, THIRUNILATHUVELIYIL,
THAIKATTUSSERY, ALAPPUZHA.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS:
1 THE SECRETARY, THYCATTUSSERY
GRAMA PANCHAYATH, THYCATTUSSERY P.O.,
CHERTHALA, ALAPPUZHA-688 528.
2 THYCATTUSSERY GRAMA PANCHAYATH,
REP. BY ITS SECRETARY, THYCATTUSSERY P.O.,
CHERTHALA, ALAPPUZHA-688 528.
ADDL. 3 SCHOOL MANAGEMENT COMMITTEE(CMC),
GOVERNMENT U.P.SCHOOL, THYKKATTUSSERY,
REPRESENTED BY IT'S CHAIRMAN ABIMON S.,
AGED 44 YEARS, S/O.SANKARAN, RESIDING AT
MADATHICHIRA, KUTTANCHALU,
THYKKATTUSSERY P.O., CHERTHALAI 688 526.
(ADDL.R3 IS IMPLEADED AS PER ORDER DATED
08.04.2021 IN I.A.NO.1/2021)
R1-R2 BY ADV. SHRI.C.K.SAJEEV, SC
R3 BY ADV. NIDHI BALACHANDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08.04.2021, ALONG WITH WP(C).3346/2021(P), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.1060 & 3346 0f 2021
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 08TH DAY OF APRIL 2021/18TH CHAITHRA, 1943
WP(C).No.3346 OF 2021(P)
PETITIONERS:
1 SCHOOL MANAGEMENT COMMITTEE (CMC),
GOVERNMENT U.P. SCHOOL, THYKKATTUSSERY,
REPRESENTED BY ITS CHAIRMAN ABIMON S.,
AGED 44 YEARS, S/O. SANKARAN, RESIDING AT
MADATHICHIRA, KUTTANCHALU,
THYKKATTUSSERY (P.O), CHERTHALAI - 688 526.
2 SEEMA V.S., VADAKKE CHARANTHARA,
THYKKATTUSSERY P.O., CHERTHALAI - 688 526.
3 RAJI S., KARIPPASSERY,
THYKKATTUSSEY P.O.,CHERTHALAI - 688 526.
BY ADVS.
SRI.NIDHI BALACHANDRAN
SRI.SABU GEORGE
RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY
IT'S SECRETARY, DEPARTMENT OF ENVIRONMENT,
FORESTS & CLIMATE CHANGE,
INDIRA PARYAVARAN BHAVAN,
JOR BAGH ROAD, NEW DELHI - 110 003.
2 THE SECRETARY, DEPARTMENT OF PETROLEUM
AND NATURAL GAS, NEW DELHI - 110 002.
3 DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
C2-IIIRD FLOOR, CGO COMPLEX, KAKKANAD,
ERNAKULAM - 682 037.
4 STATE OF KERALA REPRESENTED BY
IT'S CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
WP(C) No.1060 & 3346 0f 2021
:3 :
5 SECRETARY TO GOVERNMENT,
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001
6 SECRETARY GOVERNMENT, DEPARTMENT OF
GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
7 SECRETARY GOVERNMENT, DEPARTMENT OF
ENVIRONMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
8 LAND REVENUE COMMISSIONER,
REVENUE COMPLEX, PUBLIC OFFICE BUILDING,
MUSEUM, THIRUVANANTHAPURAM -33.
9 THE DIRECTOR GENERAL, KERALA FIRE AND
RESCUE SERVICES HEADQUARTERS,
FIRE FORCE JUNCTION, PULIMOODU P.O.,
THIRUVANANTHAPURAM - 695 001.
10 THE REGIONAL FIRE OFFICER,
FIRE & RESCUE SERVICES, KOTTAYAM (P.O.),
KOTTAYAM DISTRICT - 686 001.
11 THE DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT,
COLLECTORATE, ALAPPUZHA - 688 001.
12 THE DISTRICT FIRE OFFICER,
FIRE & RESCUE SERVICES,
ALAPPUZHA - 688 011.
13 THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, ALAPPUZHA - 688 001.
14 CENTRAL POLLUTION CONTROL BOARD,
REPRESENTED BY ITS MEMBER SECRETARY,
PARIVESH BHAWAN, EAST ARJUN NAGAR,
DELHI - 110 032.
15 KERALA STATE POLLUTION (CORRECTED)*
CONTROL BOARD, REPRESENTED BY
ITS BOARD SECRETARY, PATTOM,
THIRUVANANTHAPURAM - 695 004.
WP(C) No.1060 & 3346 0f 2021
:4 :
16 THE DISTRICT OFFICER, (CORRECTED)*
KERALA STATE POLLUTION CONTROL BOARD,
AMC/X/501, THATHAMPALLY, ALAPPUZHA - 688 013.
17 INDIAN OIL CORPORATION LTD.,
REPRESENTED BY IT'S CHIEF REGIONAL MANAGER,
COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE,
PANAMPILLY NAGAR, KOCHI - 682 036.
18 THYKKATTUSSERY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,
THYKKATTUSSERY P.O., CHERTHALAI,
ALAPPUZHA - 688 528.
19 JERIN J ROYEES, THIRUNILLATHUVELIYIL,
THYKKATTUSSERY, ALAPPUZHA - 688 528.
CORRECTED ADDRESS OF R15 & R16
*15 KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS MEMBER SECRETARY,
PATTOM, THIRUVANANTHAPURAM - 695 004.
*16 THE DISTRICT ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
AMC/X/501, THATHAMPALLY, ALAPPUZHA 688 013.
(THE ADDRESS OF R15 AND R16 IS SUO MOTU
CORRECTED AS PER THE ORDER DATED 11.02.2021 IN
WP(C)NO.3346/2021)
R1-R2 BY SRI.P.VIJAYAKUMAR, ASGI
R3-R13 BY SR. G.P. SMT.DEEPA NARAYANAN
R15-R16 BY SRI.T.NAVEEN, SC
R17 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R17 BY ADV. SRI.K.JOHN MATHAI
R17 BY ADV. SRI.JOSON MANAVALAN
R17 BY ADV. SRI.PAULOSE C. ABRAHAM
R17 BY ADV. SRI.RAJA KANNAN
R18 BY ADV. SRI.C.K.SAJEEV
R19 BY ADV. SMT.A.SALINI LAL
R19 BY ADV. SRI.R.SUNIL KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-04-2021, ALONG WITH WP(C).1060/2021(F), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.1060 & 3346 0f 2021
:5 :
JUDGMENT
~~~~~~~~~
Dated this the 8th day of April, 2021
[WP(C) Nos.1060 & 3346 0f 2021]
Both these writ petitions relate to establishment of a
Retail Petroleum Outlet in Thaikkattussery Grama Panchayat
in Alappuzha District. The petitioner in WP(C) No.1060/2021
is the dealer selected by Indian Oil Company Ltd. for starting
the outlet. The 1st petitioner in WP(C) No.3346/2021 is a
School Management Committee and petitioners 2 and 3 are
parents of students studying in the School. They are
aggrieved since the outlet is proposed to come up near the
School.
2. The Indian Oil Corporation issued Ext.P1 Letter of
Intent to the petitioner in W.P.(C) No.1060/2021 to start a
Petroleum Retail Outlet at 9.87 Ares of land in Re-Survey
No.36/10A2-2 of Thaikkattussery Village. The Indian Oil
WP(C) No.1060 & 3346 0f 2021
Corporation made an application and the District Authority
issued Ext.P2 No Objection Certificate dated 09.10.2020,
under Rule 144 of the Petroleum Rules, to start the outlet. The
petitioner made Ext.P3 application to Thaikkattussery Grama
Panchayat for issuance of building permit. The Panchayat
forwarded the application to the District Town Planner. The
District Town Planner, as per Ext.P6, approved the
application.
3. The petitioner states that on 07.01.2021, the
Secretary to Grama Panchayat issued Ext.P7 letter to the
petitioner stating that the Panchayat Committee has refused
to allow the application for building permit, since there is a
school near to the site. The petitioner seeks to quash Ext.P7
and to direct the Panchayat to issue building permit to the
petitioner.
4. The 1st respondent-Secretary to the Grama
Panchayat filed a counter affidavit. The 1 st respondent stated
that there arose a hue and cry from the local public and from
the School Management Committee of the Government UP
WP(C) No.1060 & 3346 0f 2021
School, against the proposed petrol pump. The School is
situated very near to the plot where the petrol pump is
proposed. On 06.01.2021, the Panchayat Committee passed
a resolution not to grant building permit to the petitioner. The
1st respondent contended that the petitioner has alternative
efficacious remedy to redress his grievances under the Kerala
Panchayat Raj Act.
5. The School Management Committee and two
parents filed WP(C) No.3346/2021 challenging Ext.P10
Consent to Establish issued by the Kerala State Pollution
Control Board (KPCB) and Ext.P12 NOC issued by the District
Authority.
6. The petitioner in WP(C) No.1060/2021 contended
that the Grama Panchayat is not competent to reject
application for building permit on the ground of possible
pollution. It is for the Environmental Engineer of PCB to
decide the pollution aspect. The fundamental right of the
petitioner to engage in any trade or business or to follow any
occupation, cannot be deprived of by a resolution of the
WP(C) No.1060 & 3346 0f 2021
Panchayat Committee.
7. The petitioners in WP(C) No.3346/2021 contended
that the PCB cannot fix the date and mode of implementation
of the directions in Ext.P3 Guidelines. Ext.P10 Consent to
Operate issued by the PCB is bad in law. The hearing
conducted by the District Collector is a mockery. Rule 144 of
the Petroleum Rules contemplates an enquiry before grant of
NOC, which was not made. The School is situated in 21 cents
of property. A well, which is the only source of drinking water
to the school children, is within 10 metres of the proposed
Petroleum Retail Outlet. Unloading and storage of petrol at
the site would cause serious pollution causing potential health
risk. In the circumstances, the proposed Petroleum Retail
Outlet should not be permitted to operate anywhere near the
School, contended the counsel for the petitioners in W.P.(C)
No.3346/2021.
8. I have heard the learned counsel for the petitioners
in both the writ petitions, the learned Assistant Solicitor
General of India representing the Union of India, the learned
WP(C) No.1060 & 3346 0f 2021
Government Pleader representing governmental authorities,
the learned Standing Counsel for the IOCL and PCB and the
learned counsel for the Grama Panchayat.
9. The District Town Planner, Alappuzha has
approved the lay out plan and granted permission for usage of
plot for Petroleum Retail Outlet as per Ext.P6 order in WP(C)
No.1060/2021, subject to conditions imposed therein. As
regards pollution aspects, the District Town Planner has
stated that the Grama Panchayat should ensure that NOC
from the Pollution Control Board is obtained. The PCB has
issued Consent to Establish, on 22.09.2020.
10. However, the Grama Panchayat has passed a
resolution on 07.01.2021 holding that building permit need not
be granted to the petitioner for the reason that there are
objections from the public, that there is a petition against
establishing the outlet pending in the High Court and that the
construction of the Petroleum Retail Outlet is against the
circular of National Green Tribunal. None of these reasons
justifies the decision of the Grama Panchayat to reject the
WP(C) No.1060 & 3346 0f 2021
application for building permit. An application for building
permit has to be considered by the Grama Panchayat on its
own merit. Objections from certain quarters by itself cannot be
a justifiable reason for rejection, unless the application suffers
from any statutory lacuna.
11. The pendency of writ petition relating to the
Petroleum Retail Outlet before this Court also cannot be
reason for rejection of an application for building permit. The
PCB, which is the competent authority statutorily obligated to
ensure environmental protection and to implement pollution
control measures, has issued Consent to Establish the outlet.
The Panchayat cannot reject an application for building permit
on the ground that the construction will violate Circulars of the
National Green Tribunal, when the competent authority has
given statutory consent. The Panchayat Committee cannot
act as an adjudicatory body over the statutory authorities
under the PCB.
12. The case discloses a disturbing trend in Kerala
followed by democratically elected bodies, in passing
WP(C) No.1060 & 3346 0f 2021
resolutions on subjects which are beyond their constitutional
and statutory reach. Democracy is not just rule of majority.
All constitutional and statutory bodies are bound by the
Constitution of India and are expected to act within the
Statutory boundaries fixed by legislatures. A constitutional
democracy is not one enforcing majority dictation. A
constitutional democracy is one where all act within the
framework of the Constitution and the laws. A citizen is
entitled to exercise his fundamental and statutory rights,
uninhibited by the desire or dictates of majority, howsoever
appealing the majority opinion may be. The Grama
Panchayat Committee committed impropriety in passing a
resolution in respect of a matter which is to be governed by
statutory instruments.
13. The contention of the learned counsel for the
petitioners in W.P.(C) No.3346/2021 is that as per Ext.P4
circular, new retail outlets shall not be located within a radial
distance of 50 metres from schools, hospitals and residential
areas designated as per local laws. As the retail outlet now
WP(C) No.1060 & 3346 0f 2021
proposed falls within this prohibited distance, the Pollution
Control Board ought not have issued Consent to Establish.
But, it may be noted that the Pollution Control Board issued
Circular dated 18.08.2020 wherein it has been stated that if
any requisite licence other than PCB consent is obtained by
the applicant for establishing the petrol pump prior to the date
of the Circular dated 24.02.2020, the siting criteria mentioned
in the Circular dated 09.08.2004 shall be applicable. The
petitioner had obtained Ext.P1 Letter of Intent on 21.03.2019.
14. The contention of the petitioner that No Objection
Certificate obtained by the petitioner from 10 th and 11th
respondents in W.P.(C) No.3346/2021 cannot be treated as
licence, for the purpose of Ext.P6 Circular dated 18.08.2020,
does not appear to be correct. In Ext.P6, the PCB has used
the term "any requisite licence other than the PCB consent" in
a broad sense. Therefore, any consent which is having
statutory flavour, without which a petroleum outlet cannot be
established should be taken as a licence for the purpose of
Circular dated 18.08.2020 of the PCB. Principles governing
WP(C) No.1060 & 3346 0f 2021
statutory interpretation cannot always be applied to interpret
Circulars and executive instructions.
15. The arguments of the petitioner in W.P.(C)
No.3346/2021 based on Ext.P8 minutes are not supported by
facts. The contention that there is no whisper of granting
Consent for the outlet in Ext.P8 minutes and hence the
hearing conducted on 26.11.2020 is a mockery, in view of
subsequent issuance of consent, can also not be accepted
because Ext.P8 minutes cannot be treated as an adjudicatory
decision and Consent to Operate is to be given or refused
based on prescribed principles.
16. The argument based on Rule 144 of the Petroleum
Rules that the District Collector ought to have made an
enquiry before issuing NOC, would not be of any help to the
petitioner since there is nothing on record to show that the
District Collector has not made any enquiry. Ext.P8 does not
suffer from non-application of mind.
In the facts and circumstances of the case, W.P.(C)
No.1060/2021 is disposed of setting aside Ext.P7
WP(C) No.1060 & 3346 0f 2021
communication and directing the respondents therein to
reconsider the application for building permit submitted by the
petitioner and grant permit to the petitioner, if the petitioner is
otherwise eligible for the same. W.P.(C) No.3346/2021 is
found to be devoid of any merits and is hence dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/03.04.2021
WP(C) No.1060 & 3346 0f 2021
APPENDIX OF WP(C) 1060/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 5TH
RESPONDENT TO THE PETITIONER DATED
21/03/2019.
EXHIBIT P2 COPY OF THE NO OBJECTION CERTIFICATE ISSUED
BY THE DISTRICT COLLECTOR DATED 09/10/2020.
EXHIBIT P3 COPY OF THE APPLICATION FOR BUILDING PERMIT
DATED 12/10/2020.
EXHIBIT P4 COPY OF THE RECEIPT DATED 12/10/2020.
EXHIBIT P5 COPY OF THE CASH RECEIPT DATED 12/10/2020.
EXHIBIT P6 COPY OF THE ORDER OF THE DISTRICT TOWN
PLANNER DATED 15/12/2020.
EXHIBIT P7 COPY OF THE LETTER ISSUED BY THE 1ST
RESPONDENT DATED 07/01/2021.
EXHIBIT P8 COPY OF THE GUIDELINES OF THE CENTRAL
POLLUTION CONTROL BOARD.
EXHIBIT P9 COPY OF THE CIRCULAR ISSUED BY THE STATE
POLLUTION CONTROL BOARD DATED 24/02/2020.
EXHIBIT P10 COPY OF THE CONSENT TO ESTABLISH ISSUED BY
THE POLLUTION CONTROL BOARD DATED
22/09/2020.
EXHIBIT P11 COPY OF THE CIRCULAR DATED 18/08/2020 OF THE
POLLUTION CONTROL BOARD.
EXHIBIT P12 COPY OF THE CIRCULAR DATED 09/08/2004 OF THE
POLLUTION CONTROL BOARD.
RESPONDENTS' EXHIBITS
EXHIBIT R1 RESSOLUTION NO.II OF THE 2ND RESPONDENT
PANCHAYATH COMMITTEE DATED 19-01-2021.
WP(C) No.1060 & 3346 0f 2021
APPENDIX OF WP(C) 3346/2021
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION DATED
04.07.2019 SUBMITTED BY THE HEADMISTRESS,
GOVERNMENT U.P. SCHOOL, THYKKATTUSSERY ON
BEHALF OF THE SCHOOL MANAGEMENT COMMITTEE
BEFORE 11TH RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 08.07.2019
RECEIVED FROM THE 16TH RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE OFFICE MEMORANDUM
DATED 7.1.2020 BY THE 14TH RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE CIRCULAR NO.
PCB/HO/HOW/RULES/7/2019 DATED 24.02.20
ISSUED BY THE 15TH RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED
10.07.20 SUBMITTED BY THE CHAIRMAN OF THE
SCHOOL MANAGEMENT COMMITTEE BEFORE THE
11TH RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE CIRCULAR NO.
PCB/HO/HOW/RULES/9/7/2019 DATED 18/8/2020
ISSUED BY THE 15TH RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE CIRCULAR NO.
PCB/TAC/18/2004 DATED 9/4/2004 ISSUED BY
THE 15TH RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE MINUTES OF THE MEETING
CONVEYED ON 26/11/20 BY THE 16TH
RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE COMPLAINT DATED 8/1/21
SUBMITTED BY THE HEADMISTRESS BEFORE THE
16TH RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE CONSENT TO OPERATIVE
ISSUED ON 22/9/2020 BY THE 16TH
RESPONDENT TO THE 19TH RESPONDENT..
WP(C) No.1060 & 3346 0f 2021
EXHIBIT P11 A TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER DATED 27.1.21 SUBMITTED BY THE
PETITIONER BEFORE THE 15TH RESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE ORDER NO.
DCALP/7134/2019-N4 DATED 9/10/20 ISSUED
BY THE 11TH RESPONDENT.
EXHIBIT P13 A TRUE COPY OF THE APPEAL FILED BY THE
HEADMISTRESS OF THE SCHOOL ON BEHALF OF
THE 1ST PETITIONER BEFORE THE 8TH
RESPONDENT DATED 27.1.21.
EXHIBIT P14 A TRUE COPY OF THE APPEAL FILED BY THE
HEADMISTRESS OF THE SCHOOL ON BEHALF OF
THE 1ST PETITIONER BEFORE THE 9TH
RESPONDENT DATED 27.1.21.
EXHIBIT P15 A TRUE COPY OF THE COMMUNICATION DATED
NIL ISSUED BY THE PUNJAB POLLUTION
CONTROL BOARD.
EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 22.7.19 OF
THE NATIONAL GREEN TRIBUNAL IN OA 31/19
AND OA 86/19.
ncd
