Juby Jacob vs State Of Kerala
2021 Latest Caselaw 13888 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
  TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                    WP(C) NO. 10982 OF 2021
PETITIONER:

         JUBY JACOB,
         AGED 35 YEARS
         W/O. BIJOY ALEX, RESIDING AT KOPPARA PARAMBIL
         HOUSE, NEERETTUPURAM KARA, NEERETTUPURAM P.O.,
         THALAVADY VILLAGE, KUTTANADU TALUK,
         ALAPPUZHA DISTRICT.

         BY ADVS.
         P.HARIDAS
         SRI.BIJU HARIHARAN
         SRI.P.C.SHIJIN
         SRI.RISHIKESH HARIDAS


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
         INDUSTRIES, NORTH BLOCK, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN-695001.
    2    THE APPELLATE AUTHORITY UNDER THE WATER
         (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974,
         AND THE AIR (PREVENTION AND CONTROL OF POLLUTION)
         ACT, 1981, REPRESENTED BY ITS SECRETARY, OFFICE
         OF THE AIR AND WATER APPELLATE AUTHORITY, 4TH
         FLOOR, KSRTC BUS TERMINAL, THAMPANOOR,
         THIRUVANANTHAPURAM, PIN-695014.
    3    KERALA STATE POLLUTION CONTROL BOARD,
         REPRESENTED BY ITS SECRETARY, OFFICE OF THE
         KERALA STATE POLLUTION CONTROL BOARD, PLAMOODU-
         THEKKAMOODU ROAD, PATTOM, THIRUVANANTHAPURAM,
         PIN-695004.
    4    BHARAT PETROLEUM CORPORATION LTD. (BPCL),
         REPRESENTED BY ITS TERRITORY MANAGER (RETAIL),
         BPCL IRUMPANAM INSTALLATION, IRUMPANAM, KOCHI,
         PIN-682309.
 WP(C) No.10982/2021
                            :2 :


     5     ABRAHAM KURUVILA
           AGED 56 YEARS
           S/O. ABRAHAM, RESIDING AT AMPRAYIL ANCHIL SAJO
           BHAVAN, NEERETTUPURAM KARA, NEERETTUPURAM P.O.,
           THALAVADY VILLAGE, KUTTANADU TALUK, ALAPPUZHA
           DISTRICT.
     6     ADDL.R6.PRASAD KUTTY M.A.C
           AGED 60 YEARS
           S/O.M.C. ABRAHAM, RESIDING AT MULACKEL HONEY
           COMB, NEERATTUPURAM PO, KERALA-689571
           (IS IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS
           PER ORDER IN IA.3/2021 DT. 06.07.2021)

           BY ADVS.
           P.B.SAHASRANAMAN
           S.PRASANTH
           T.S.HARIKUMAR
           K.ARJUN VENUGOPAL
           ASWIN KUMAR M J
           M. GOPIKRISHNAN NAMBIAR
           T. NAVEEN
           GOVT. PLEADER SRI. MANU RAJ

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 06.07.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.10982/2021
                                 :3 :




                        JUDGMENT

~~~~~~~~~

Dated this the 6th day of July, 2021

The petitioner seeks to call for the records leading

to Appeal Nos.3, 4, 5 and 6 of 2021 before the 2 nd respondent

and to quash the same.

2. The petitioner filed this writ petition contending that

she, with an intention to start a Petroleum Retail Outlet in her

ancestral property, demolished a residential house situated

thereon and gave the land on lease to the 4 th respondent-

BPCL for a period of 19 years and 11 months. The 4 th

respondent agreed to appoint the petitioner as a Dealer of the

Outlet.

3. Ext.P1 Letter of Intent was issued by the 4 th

respondent. The Department of Fire and Safety issued Ext.P3

NOC. The Additional District Magistrate issued Ext.P4 NOC.

The Kerala State Pollution Control Board issued Ext.P5 WP(C) No.10982/2021

Consent to Establish. The petitioner would contend that the

5th respondent, who is a henchman of a nearby petroleum

outlet owner, filed OA No.101/2020 before the National Green

Tribunal challenging the establishment of the outlet. The

National Green Tribunal dismissed the OA as per Ext.P9

order. The 3rd respondent issued Ext.P12 Consent to Operate

thereafter. As regards construction of the outlet, the petitioner

has deemed permit, contends the petitioner.

4. Finally, after long legal fights resultant of the

motivated complaints made by the 5th respondent, the

petitioner commissioned Fuel Tank and unloaded fuel on

29.01.2021. The Legal Metrology Department calibrated the

equipment and the outlet was ready to function. In the

meantime, the 5th respondent filed a suit, but his application

for interim injunction was dismissed by the Court.

Suppressing all these facts, the 5 th respondent filed Exts.P15

to P15(b) appeals before the Air (Prevention and Control of

Pollution) Appellate Authority. The said Authority passed

Ext.P16 interim order interdicting the petitioner from filling of WP(C) No.10982/2021

fuel tanks and operating the Outlet. The petitioner filed

objections in all the appeals but the Appellate Authority is

neither vacating the interim order nor hearing the matter

finally. Hence, this writ petition.

5. The learned counsel for the petitioner urged that

Ext.P16 is illegal as the Appellate Authority has no power or

jurisdiction to pass interim orders in the nature of Ext.P16

either under Rule 11 of the Air (Prevention and Control of

Pollution) Appellate Authority Rules, 1999 or under Rule 11 of

the Water (Prevention and Control of Pollution) Appellate

Authority Rules, 1977. As regards distance restrictions,

Ext.P2 Circular alone is applicable and her Petroleum Outlet

need to maintain only three metres distance from the

dispensing unit or tank, to the nearest residential house.

Ext.P6 would not apply as the distance prescribed therein has

to be maintained only if the Outlet is in a residential zone

designated as per local laws. The counsel further urged that

the appeals are time barred. The respondents have not

challenged the Consent to Establish issued by the Pollution WP(C) No.10982/2021

Control Board.

6. The 5th respondent contested the writ petition filing

counter affidavit. The 5th respondent denied all material

allegations levelled by the petitioner in the writ petition. There

are a large number of residential houses within 100 metres of

the proposed Outlet. The counsel for the 5 th respondent

contended that the 5th respondent has a legal right to file

appeal against the Consent to Establish. The Appellate

Authority has jurisdiction to interfere in appeal and the

Authority is bound to protect the interest of the parties to the

appeal. The action of the Pollution Control Board authorities

in issuing Consent to Establish the Petroleum Outlet is highly

illegal and unsustainable, contended the counsel for the 5 th

respondent.

7. Heard the learned counsel for the petitioner, the

learned Government Pleader representing the 1 st respondent-

State, the learned Standing Counsel representing

respondents 3 and 4 and the learned counsel for the 5 th

respondent and additional 6th respondent. WP(C) No.10982/2021

8. When the writ petition was taken up today, the

learned counsel for the petitioner submitted that the petitioner

will be satisfied if a direction is given to the Appellate Authority

to finalise the appeals expeditiously and till such time, the

interim order passed by this court on 07.05.2021 may

continue to be in force.

In the circumstances, the writ petition is disposed of

directing the 2nd respondent-Appellate Authority to pass orders

on Appeal Nos.3, 4, 5 and 6 of 2021 as expeditiously as

possible. Till the Appellate Authority passes final orders in the

appeals, the interim order passed by this Court on 07.05.2021

will continue to remain in force.

Sd/-

N. NAGARESH, JUDGE

aks/14.08.2021 WP(C) No.10982/2021

APPENDIX OF WP(C) 10982/2021

PETITIONER'S EXHIBITS :

EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO.10129/2020 OF THE HON'BLE HIGH COURT OF KERALA DATED 22.5.2020.

EXHIBIT P8 TRUE COPY OF THE CONSENT VARIATION ORDER ISSUED BY THE 3RD RESPONDENT DATED 24.7.2020.

EXHIBIT P9 TRUE COPY OF THE ORDER OF NATIONAL GREEN TRIBUNAL SOUTHERN ZONE DATED 8.7.2020.

EXHIBIT P10 TRUE COPY OF THE CIRCULAR OF 3RD RESPONDENT DATED 24.2.2020.

EXHIBIT P11 TRUE COPY OF THE CIRCULAR OF 3RD RESPONDENT DATED 18.8.2020.

EXHIBIT P12 TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE 3RD RESPONDENT DATED 15.1.2021.

EXHIBIT P13 TRUE COPY OF THE PHOTOGRAPH OF PETITIONER'S PETROLEUM RETAIL OUTLET DATED NIL.

EXHIBIT P14 TRUE COPY OF THE FUEL INVOICE DATED 29.1.2021 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P15 TRUE COPY OF THE APPEAL NO.4/2021 FILED BY 5TH RESPONDENT BEFORE 2ND RESPONDENT DATED 15.12.2020.

EXHIBIT P15(A) TRUE COPY OF THE PETITION TO CONDONE DELAY FILED AS I.A.NO.5/2021 IN APPEAL NO.4/2021 FILED BY 5TH RESPONDENT BEFORE 2ND RESPONDENT DATED 4.1.2021. EXHIBIT P15(B) TRUE COPY OF THE STAY PETITION TO FILED AS I.A.NO.6/2021 IN APPEAL NO.4/2021 FILED BY 5TH RESPONDENT BEFORE 2ND RESPONDENT DATED 4.1.2021.

EXHIBIT P1 TRUE COPY OF THE LETTER OF INTENT ISSUED TO THE PETITIONER BY 4TH RESPONDENT DATED 26.3.2019.

EXHIBIT P2 TRUE COPY OF THE CIRCULAR NO.PCB/TAC/18/2004 ISSUED BY THE 3RD RESPONDENT DATED 9.8.2004.

WP(C) No.10982/2021

EXHIBIT P3 NO OBJECTION CERTIFICATE BY DEPARTMENT OF FIRE AND SAFETY DATED 25.7.2019.

EXHIBIT P4 TRUE COPY OF THE NO OBJECTION CERTIFICATE OF THE ADDL. DISTRICT MAGISTRATE ALAPPUZHA DATED 20.12.2019. EXHIBIT P5 TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 6.2.2020.

EXHIBIT P6 TRUE COPY OF THE CIRCULAR ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD DATED 7.1.2020.

EXHIBIT P18 TRUE COPY OF THE REPROT OF THE TAHSILDAR, KUTTANADU DATED 19.11.2019 EXHIBIT P19 TRUE COPY OF THE REPORT OF RDO, ALAPPUZHA DATED 23.11.2019 EXHIBIT P16 TRUE COPY OF THE ORDER OF INJUNCTION PASSED BY THE 2ND RESPONDENT DATED 5.3.2021.

EXHIBIT P17 TRUE COPY OF THE OBJECTIONS FILED BY PETITIONER AGAINST EXHIBIT P15 DATED 22.3.2021.

EXHIBIT P17(A)        TRUE COPY OF THE OBJECTIONS FILED BY
                      PETITIONER    AGAINST     P15(A)    DATED
                      22.3.2021.
EXHIBIT P17(B)        TRUE COPY OF THE OBJECTIONS FILED BY

PETITIONER AGAINST EXHIBIT P15(B) DATED 22.3.2021.

EXHIBIT P18 TRUE COPY OF THE REPORT OF THE TAHSILDAR, KUTTANADU DT 19.11.2019 EXHIBIT P19 TRUE COPY OF THE REPORT OF RDO, ALAPUZHA DT 23.11.2019