Prabhakumari vs State Of Kerala
2021 Latest Caselaw 20626 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                   WP(C) NO. 17820 OF 2021
PETITIONER:

          PRABHAKUMARI
          AGED 51 YEARS
          W/O LATE MURALEEDHARAN,
          SRUTHI BHAVAN, PATTAZHI VILLAGE, NADUTHERY,
          PATHANAPURAM TALUK, KOLLAM DISTRICT.
          BY ADVS.
          V.PHILIP MATHEW
          GIBI.C.GEORGE
          AMAL PARTHASARADHY
          E.RADHAKRISHNAN

RESPONDENTS:

    1     STATE OF KERALA
          DEPARTMENT OF PUBLIC WORKS, KERALA GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM-695001.
    2     THE DISTRICT COLLECTOR
          COLLECTORATE,
          CIVIL STATION, KOLLAM-691013.
    3     THE ADDITIONAL DISTRICT MAGISTRATE
          CIVIL STATION, KOLLAM-691013.
    4     KERALA STATE POLLUTION CONTROL BOARD
          PATTOM P.O, THIRUVANANTHAPURAM-695004.
          REPRESENTED BY ITS SECRETARY.
    5     THE ASSISTANT ENVIRONMENTAL ENGINEER
          KERALA STATE POLLUTION CONTROL BOARD, DISTRICT
          OFFICE, BIG BAZAR, KOLLAM-691001.
    6     THE EXECUTIVE ENGINEER
          PWD (ROADS), PWD OFFICE, BEACH ROAD, KOLLAM-
          691001.
    7     THE DISTRICT TOWN PLANNER
          OFFICE OF THE DISTRICT TOWN PLANNER, MUNICIPAL
          BUILDING, KOLLAM-691001.
    8     PATTAZHY GRAMA PANCHAYAT
          PATTAZHY P.O, KOLLAM DISTRICT-691522, REPRESENTED
          BY ITS SECRETARY.
    9     THE SECRETARY
          PATTAZHY GRAMA PANCHAYAT, PATTAZHY P.O, KOLLAM
          DISTRICT-691522.
 W.P.(C).No.17820/2021

                            2


    10    NAYARA ENERGY LTD.
          6B, 6TH FLOOR, NOEL FOCUS, SEAPORT-AIRPORT
          ROAD, CHITTETHUKARA, CSEZ P.O, KOCHI-682037,
          REPRESENTED BY ITS JOINT DIVISIONAL MANAGER.
    11    MANJU RAHIM
          W/O RAHIM, CHARUVILA PUTHEN VEEDU, VALACODE
          P.O, PUNALUR, KOLLAM DISTRICT-691331.
    12    RAHIM
          CHARUVILA PUTHEN VEEDU, VALACODE P.O, PUNALUR,
          KOLLAM DISTRICT-691331.
          BY ADVS.
          N.UNNIKRISHNAN
          S.K.PREMRAJ
          NEEMA NOOR MOHAMED
          NAVAS JAN A.

OTHER PRESENT:

          SRI.T.NAVEEN, SC(KPCB)
          SMT.RASHMI.K.M, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.17820/2021

                                       3




                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                     W.P.(C).No.17820 of 2021
               ----------------------------------------------
             Dated this the 05th day of October, 2021


                               JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of certiorari or other appropriate writ or order quashing Exhibit P3 No objection certificate issued by the 3rd respondent to the 9th respondent for starting a Petroleum outlet in the property situated in Re-Survey No.419/17-2 in Pattazhy Village, Pathanapuram Taluk, Kollam District.

i(a). Issue a writ of certiorari or other appropriate writ or order quashing Exhibit R8 (A) building permit issued to the 10th respondent.

ii. Issue a writ of certiorari or other appropriate writ or order quashing Exhibit P4 Consent to establish issued by the 5 respondent to respondents 10 and

11. iii. Issue a writ of certiorari or other appropriate writ or order quashing Exhibit P6 Lay out approval and usage of plot granted by the 7 th respondent to respondents 10 and 11 for constructing Petroleum outlet in the property situated in Re Survey No.419/17-2 in Pattazhy Village, Pathanapuram W.P.(C).No.17820/2021

Taluk, Kollam District.

iv. Issue a writ of mandamus or other appropriate writ or order directing respondents 3 and 8 to consider and pass orders on Exhibit P7 and P8 representations respectively submitted by the petitioner within a time limit to be specified by this Honble Court.

2. The petitioner is a resident of Pattazhy in Kollam

District. The petitioner is highly aggrieved by Ext.P3 No

Objection Certificate issued by the 3rd respondent to the 10th

respondent for starting a petroleum outlet in the property of

respondents 11 and 12. It is the case of the petitioner that the

distance between the proposed site and her residence is less

than 30 meters and it violates Ext.P5 guidelines. It is the

further case of the petitioner that the Pattazhy Devi Temple is

situated adjacent to the proposed site. The petitioner

submitted that it is situated less than 100 meters away from

proposed site. These aspects were not considered by the

District Magistrate while issuing the No Objection Certificate.

There are other contentions also raised by the petitioner. The

petitioner also challenged the building permit issued to

respondents 11 and 12 by the local Panchayat. The petitioner

submitted that there is no licence under Sections 232 and 233 W.P.(C).No.17820/2021

of the Panchayat Raj Act and therefore respondents 11 and 12

cannot continue with the construction. It is also contended

that as per Rule 144(5) of the Petroleum Rules, the District

Magistrate has to dispose the matter within three months. It

is the specific case of the petitioner that the application for No

Objection Certificate was on 14.10.2020 and the order was

passed on 16.07.2021. On these grounds the petitioner

challenged Ext.P3 No Objection Certificate and also the

building permit issued to respondents 11 and 12, as evident by

Ext.R8(a).

3. Heard the counsel for the petitioner, Government

Pleader and the respective Standing Counsel for respondents

4, 5, 8 and 9. I also heard the counsel appearing for

respondents 11 and 12.

4. The short point raised by the petitioner is that the

3rd respondent has not considered the grievance raised by the

petitioner in this writ petition while issuing Ext.P3 No

Objection Certificate. I perused Ext.P3 No Objection

Certificate issued by the 3rd respondent. I don't want to make

any observation about the same. If the petitioner has got any

further grievance about the issuance of Ext.P3, the petitioner W.P.(C).No.17820/2021

can submit a representation before the 3rd respondent

narrating the same and the 3 rd respondent will consider the

same in accordance to law, after giving an opportunity of

hearing to the petitioner and respondents 11 and 12. As far as

the challenge against Ext.R8(a) is concerned, the petitioner

has got a statutory remedy against the same and the petitioner

is free to challenge the same in accordance to law.

Therefore, without making any observation about the

merit of the case, this writ petition is disposed in the following

manner:

1. The petitioner is free to file a representation

before the 3rd respondent narrating the

grievance raised in this writ petition, within

two weeks from the date of receipt of a copy of

this judgment.

2. Once such a representation is received, the 3 rd

respondent will consider the same after giving

an opportunity of hearing to the petitioner and

respondents 10 to 12. The 3 rd respondent will

also hear the other affected parties also.

3. The 3rd respondent will complete the above W.P.(C).No.17820/2021

exercise, as expeditiously as possible, at any

rate, within three weeks from the date of

receipt of the representation.

4. The petitioner is free to challenge Ext.R8(a)

before the appellate authority in accordance to

law.

5. All the contentions of the petitioner in this writ

petition are left open.

6. Petitioner is free to produce a copy of this

judgment along with a copy of this writ

petition before the 3rd respondent for

compliance.

Sd/-

P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.17820/2021

APPENDIX OF WP(C) 17820/2021

PETITIONER EXHIBITS Exhibit P1 COPY OF G.O(MS) NO.67/2020/PWD DATED 16.10.2020 CONTAINING GUIDELINES FOR ACCESS PERMISSION TO FUEL STATITONS. Exhibit P2 PHOTOGRAPH SHOWING THE PROPERTY OF RESPONDENTS 11 AND 12 AND THE LIE OF THE PWD.

Exhibit P3 COPY OF NO OBJECTION CERTIFICATE DATED 16.07.2021 ISSUED BY THE 3RD RESPONDENT FOR STARTING PETROLEUM OUTLET.

Exhibit P4 COPY OF CONSENT TO ESTABLISH DATED 19.03.2021 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO RESPONDENTS 10 AND 11.

Exhibit P5 COPY OF MEMORANDUM DATED 07.01.2020 ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD ALONG WITH GUIDELINES FOR SETTING UP OF NEW PETROL PUMPS. Exhibit P6 COPY OF ORDER NO TCKLM/229/2021/C DATED 27.07.2021 PASSED BY THE 7TH RESPONDENT APPROVING LAYOUT/USAGE. Exhibit P7 COPY OF REPRESENTATION DATED 15/08/2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P8 COPY OF REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE 9TH RESPONDENT.

Exhibit P9 COPY OF RECEIPT DATED 31.08.2021 ISSUED FROM THE OFFICE OF THE PATTAZHI GRAMA PANCHAYAT.

Exhibit P10 COPIES OF 2 PHOTOGRAPHS SHOWING THE PUBLIC PROTEST AGAINST PETROLEUM OUTLET.

Exhibit P11 COPY OF THE LETTER DATED 24.08.2021 FROM MAHESH CHANDRAN R, OFFICER ON SPECIAL DUTY IN THE OFFICE OF MINISTER OF STATE FOR EXTERNAL AFFAIRS TO THE SECOND RESPONDENT.

Exhibit P12 COPY OF RESOLUTION NO.1(1) DATED 7.9.2021 PASSED BY THE 8TH RESPONDENT PANCHAYAT.

W.P.(C).No.17820/2021

Exhibit P13 COPY OF NEWSPAPER REPORT WHICH APPEARED IN MATHRUBHUMI DAILY DATED 6.9.2021.

RESPONDENTS' EXHIBITS EXHIBIT R8(A) A TRUE COPY OF BUILDING PERMIT NO.A2.3081/2020 DATED 09.08.2021 ISSUED TO THE 10TH RESPONDENT EXHIBIT R8(B) A TRUE COPY OF LETTER NO.A/P/SC/KL/14/4330 DATED 24.03.2021 ISSUED TO THE 10TH RESPONDENT