Pacheeri Babu vs Pratheesh P
2022 Latest Caselaw 7166 Ker

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.

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

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

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.

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

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.

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

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.

(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.

(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:

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

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