Usha C. vs Indane
2021 Latest Caselaw 8478 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                    THE HONOURABLE SMT. JUSTICE P.V.ASHA

     MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                           WP(C).No.15197 OF 2020(Y)


PETITIONER:

               USHA C., AGED 50 YEARS
               RESIDING AT KOCHUPADITHETHIL, PATHIYOORKKALA,
               KEERIKKADU P.O. ALAPPUZHA.

               BY ADV. SRI.S.JATHIN DAS

RESPONDENTS:

      1        INDANE
               INDIAN OIL CORPORATION LTD., REGD, OFFICE G-9,
               ALI YAVAR JUNG MARG, BANDRA (EAST), MUMBAI 400 051.

      2        INDANE,
               INDIAN OIL CORPORATION LTD, PANAMPILLY AVENUE,
               PANAMPILLY NAGAR, COCHIN 682 036.

      3        *ADDL.R3.
               THE SECRETARY, CHITTAR GRAMA PANCHAYAT,
               CHITTAR, PATHANAMTHITTA - 689 663

      4        *ADDL.R4.
               THE TOWN PLANNER, OFFICE OF THE TOWN PLANNER,
               3RD FLOOR, MINI CIVIL STATION,
               PATHANAMTHITTA - 689 645.

               *(ADDITIONAL R3 AND R4 ARE IMPLEADED AS PER ORDER
               DATED 11/9/2020 IN I.A.1/2020 IN WP(C)).

               BY   ADV.   SRI.M.GOPIKRISHNAN NAMBIAR
               BY   ADV.   SRI.K.JOHN MATHAI
               BY   ADV.   SRI.JOSON MANAVALAN
               BY   ADV.   SRI.KURYAN THOMAS
               BY   ADV.   SRI.PAULOSE C. ABRAHAM
               BY   ADV.   SRI.RAJA KANNAN
               BY   ADV.   SRI.K.SHAJ

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.15197 OF 2020(Y)

                                      2




                            J U D G M E N T

Petitioner challenges Ext.P7 order by which

Ext.P1 letter of intent issued to the petitioner

allotting LPG godown is canceled on the ground that

petitioner could not get approval for the construction

of godown or find out alternate land suitable for the

godown even after the lapse of 24 months of issuance

of LOI. Ext.P1 Letter of intent was issued on

30.07.2018. According to petitioner she had entered

into a lease agreement for construction of the godown

in that property, which is 400 meters away from the

main road and took steps for getting permit for

construction of the godown. It is stated that as per

the official records the road to the leased property

was having 7 meters' width from the starting point to

end point. But she could not get approval from the

town planner. As per Ext.P4 letter, the town planner

rejected the application stating that sufficient width

of 7 meter was not available on all portions of the WP(C).No.15197 OF 2020(Y)

road as required under Rule 61(4) of Kerala Panchayath

Raj Building Rules 2011, under which 7 meters'

motorable road is a prerequisite. Aggrieved by Ext.P4

petitioner had approached this Court in W.P.

(C).No.21066 of 2019 and this Court disposed of the

writ petition with liberty to the petitioner to

approach the Panchayath with a request to survey and

measure the road. The Grama Panchayath thereafter

issued Ext.P6 letter informing her that the survey

records are not available and therefore it was not

possible to conduct the survey and to fix the width of

the road. It is stated that though the petitioner had

informed all those matters to respondents 1 and 2,

Ext.P7 order was issued on 30.07.2018 cancelling the

LOI with immediate effect. It was also stated that the

location is advertised with effect from 16.07.2020.

2. The additional 4th respondent-Town Planner

has filed a statement stating that under Rule 34(2)

Kerala Panchayath Building Rules, 2011 the LPG

Cylinder Storage Godwon falls under the category WP(C).No.15197 OF 2020(Y)

Group-1: Hazardous Occupancy. As per Rule 61(4) the

minimum clear width of access to a building as well as

the width of street giving access to the plot from the

main street shall be 7 meters and shall be motorable.

It is stated that petitioner's application was

rejected as per Ext.P6 letter after conducting site

inspection when the width was found to be 5.8m, 6m,

6.4m and 6.6m respectively on certain points as

permission could not be granted to the petitioner due

to lack of 7 meter's width on all points. It is

stated that the town planner does not have any

authority to grant any relaxation.

3. Panchayath has also filed a counter affidavit

stating that permit can be issued only on production

of permit from the Regional Town Planner. It is stated

that the construction falls under category of Group I

buildings which is prone to danger and therefore

permission from the Town Planner under 61(1) and No

Objection Certificate from Fire and Rescue Department

as per Rule 61 (7) Kerala Panchayath Building Rules, WP(C).No.15197 OF 2020(Y)

2011 are required.

4. Respondents 1 and 2 filed a counter affidavit

stating that petitioner had undertaken that the

candidature can be rejected in the event of her

inability to provide an all-weather motorable approach

road in accordance with the condition fixed therein.

It is stated that there should be unhindered movement

of LPG Cylinder truck for running the business of LPG

distributorship. It is for this purpose that approach

road has been insisted for a godown. It is stated that

the petitioner was already asked to provide approach

road to the land for godown in accordance with

eligibility requirement within a period of 4 months

from the date of issuance of LOI, failing which it was

informed that allotment would be cancelled along with

forfeiture of 10% of the amount deposited for

conducting the field verification of credentials in

accordance with Ext.R1(b) brochure on unified

selection guidelines and that Ext.P7 was issued since

the petitioner failed to carry out the undertaking in WP(C).No.15197 OF 2020(Y)

Ext.R1(a). It is stated that respondents cannot wait

further as sufficient time was already granted to the

petitioner. It is also stated that there are 6 other

applicants who were found eligible for very same

location and process has already been initiated for a

redraw of lots to select an applicant from among the

eligible hands.

5. Even though the learned counsel for the

petitioner submitted that in case sufficient time is

given petitioner who is a person with disability would

be able to find out another location, it is seen that

the letter of intent was issued as early as in 2018

and even now, petitioner could not find out any other

location. In the aforesaid circumstances, petitioner

cannot be granted any relief in the writ petition.

The writ petition is dismissed.

Sd/-

P.V.ASHA, JUDGE AS WP(C).No.15197 OF 2020(Y)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER OF INTENT (LOI) DATED 30.7.2018 ALLOTTED BY THE RESPONDENTS TO THE PETITIONER.

EXHIBIT P2 TRUE COPY OF DISABILITY CERTIFICATE DATED 22.8.1990 ISSUED BY THE SUPERINTENDENT, MEDICAL BOARD, ALAPPUZHA.

EXHIBIT P3 TRUE COPY OF DISABILITY CERTIFICATE DATED 1.10.2001 ISSUED BY THE DISTRICT SOCIAL WELFARE OFFICER, ALAPPUZHA.

EXHIBIT P4 TRUE COPY OF LETTER DATED 04.07.2019 ISSUED BY THE TOWN PLANER TO THE PETITIONER.

EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 14.11.2019 IN WPC NO. 21066/2019 OF THIS HONBLE COURT.

EXHIBIT P6 TRUE COPY OF LETTER DATED 25.2.2020 ISSUED BY THE CHITTAR GRAMA PANCHAYAT.

EXHIBIT P7 TRUE COPY OF LETTER DATED 16.07.2020 ISSUED BY THE RESPONDENTS COMMUNICATING THE CANCELLATION OF LOI.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE AFFIDAVIT CUM UNDERTAKING (APPENDIX PIB) DATED 04.07.2018.

EXHIBIT R1(B) TRUE COPY OF THE RELEVANT EXTRACTS OF THE BROCHURE ON UNIFIED SELECTION GUIDELINES FOR SELECTION OF LPG DISTRIBUTORS.