Kerala High Court
Arun Antony vs State Of Kerala on 23 May, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
WP(C) No.21337/2023
2025:KER:34922
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
WP(C) NO. 21337 OF 2023
PETITIONER:
ARUN ANTONY
AGED 34 YEARS
SON OF ANTONY, KACHAPPALLY HOUSE, R.S.ROAD,
PRAKESH P.O, NEELIVAYAL,
IDUKKI DISTRICT, PIN - 685609
BY ADVS.
PEEYUS A.KOTTAM
HRITHWIK D. NAMBOOTHIRI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 ADDITIONAL DISTRICT MAGISTRATE IDUKKI
THODUPUZHA - PULIYANMALA ROAD, PAINAVU P.O, IDUKKI
DISTRICT, KERALA, PIN - 685603
3 DISTRICT COLLECTOR IDUKKI
THODUPUZHA - PULIYANMALA ROAD, PAINAVU P.O, IDUKKI
DISTRICT, KERALA, PIN - 685603
WP(C) No.21337/2023
2025:KER:34922
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4 M/S. NAYARA ENERGY LTD.
COCHIN DIVISIONAL OFFICE INFRA FUTURA BUILDING,
NO.602, 6TH FLOOR, OPP.BHARATH MATA COLLEGE,
THRIKKAKARA, REPRESENTED BY TERRITORY SALES
MANAGER- RETAIL BD, PIN - 682021
OTHER PRESENT:
SRI.ASHWIN SETHUMADAHAVAN-SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.05.2025, THE COURT ON 23.05.2025 DELIVERED
THE FOLLOWING:
WP(C) No.21337/2023
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J U D G M E N T
The petitioner is the owner of the property having an extent
of 21.59 Ares in Sy.Nos. 356/7-2-1 and 356/7-3-1 of Vathikuddy
Village in Idukki District. The petitioner purchased the property
from one Mrs.Lucy Antony who acquired it as per Ext.P6 Patta
dated 31/8/2011 issued in land assignment proceedings in LA
3433/93/53/11 in Form No.6 of the Kerala Land Assignment
(Regularisation of Occupations of Forest Lands prior to 1/01/1977)
Special Rules, 1993 (for short, the Special Rules, 1993). The
petitioner wanted to start a Petroleum Class A & B retail outlet in
the above-mentioned property. The 4th respondent, as per Ext.P2
proceedings, appointed the petitioner as franchisee for the
Petroleum Class A & B retail outlet to be set up in the property
mentioned above. Thereafter, the 4th respondent applied to the 2nd
respondent for issuing a No Objection Certificate (NOC) for
starting a Petroleum Class A & B retail outlet. The 2 nd respondent
rejected the application as per Ext.P4 on the ground that the
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predecessor in the interest of the petitioner acquired the property
under the Special Rules, 1993 and that the said property can only
be used for agriculture and building one's own residential house
or small shops. While rejecting the application, the 2 nd respondent
relied on Ext.P5 Government Order, which interpreted the term
'shop sites' in the Special Rules, 1993 as 'small shops'. This writ
petition has been filed with a prayer to quash Exts.P4 and P5 and
for directions to the 2nd respondent to issue NOC for the
establishment of a Petroleum Class A & B Outlet in the
petitioner's property.
2. The 3rd respondent filed a counter-affidavit opposing
the prayer in the writ petition. It is contended that since the
petitioner acquired the land in question as per the proceedings
under the Special Rules, 1993, no petroleum outlet could be set
up therein, and hence, the 2 nd respondent rightly rejected the
application.
3. I have heard Sri. Peeyus A. Kottam, the learned
counsel for the petitioner and Sri.Ashwin Sethumadhavan, the
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learned Senior Government Pleader.
4. The learned counsel for the petitioner submitted that
the property in question was acquired by the petitioner's
predecessor as per a valid Pattayam issued in accordance with
the provisions of the Special Rules, 1993 and Rule 3 of the said
Rules permits the utilization of the assigned land as shop site and
therefore, rejection of the petitioner's NOC request by the 2 nd
respondent and the interpretation of the term shop sites as small
shops in Ext.P5 is illegal and unsustainable. The learned counsel
further submitted that the rejection of the petitioner's application
for NOC based on Ext.P5 cannot be justified as the Special Rules,
1993, do not explicitly limit the establishment of shops to small
shops only. The learned counsel also submitted that Ext.P5 is
nothing but an expression of opinion and it will not get the colour
of statute or rules. On the other hand, the learned Senior
Government Pleader submitted that Ext.P5 Government Order
does not water down the ambit of Rule 3 of the Special Rules,
1993, but it only explains the word 'shop sites' therein. The
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learned Government Pleader further submitted that the
petroleum outlet proposed to be put up by the petitioner on his
property does not fall either under the term 'shop sites' found in
Rule 3 of the Special Rules, 1993 or small shops found in Ext.P5
Government Order. The learned Government Pleader also
submitted that the status of land assigned under the Special
Rules, 1993, remains as forest land even after assignment, and
the provisions of Section 2 of the Forest (Conservation) Act, 1980,
are applicable to the said land.
5. The Forest (Conservation) Act, 1980, was enacted with
a view to checking further deforestation, which ultimately results
in ecological imbalance. Section 2 of the said Act deals with
restrictions on the dereservation of forest or use of forest land for
non-forest purpose. It says that no State Government or other
Authority shall make, except with prior approval of the Central
Government, any order directing that any reserved forest or any
portion thereof shall cease to be reserved or that any forest land
or any portion thereof may be used for any non-forest purpose.
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The Supreme Court in T.N.Godavarman Thirumulkpad v. Union of
India and Others [(1997) 2 SCC 267] while noting that Forest
(Conservation) Act, 1980 was enacted to curb the deforestation
which results in an ecological imbalance, indicated that the
provisions incorporated to conserve forests and for other
connected matters "must apply to all forests irrespective of the
nature of ownership or classification". The applicability of the
Forest (Conservation) Act, 1980, to the forest lands occupied prior
to 1/1/1977 came up for consideration before a Full Bench of this
Court in Nature Lovers Movement v. State of Kerala and Others
(2000 KHC 847). The constitutional validity of the Special Rules,
1993, was also considered by the Full Bench in the said decision.
The Full Bench held that the provisions in the Forest
(Conservation) Act, 1980 have no retrospective operation; they
operate only prospectively, and hence it shall not affect the forest
land divested before the coming into force of the Act as per
Special Rules, 1993. The constitutional validity of the Special
Rules, 1993, was also upheld. The decision of the Full Bench was
confirmed by the Supreme Court in Nature Lovers Movement v.
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State of Kerala and Others [(2009) 5 SCC 373]. Therefore, the
learned Government Pleader cannot be heard to contend that the
status of the land assigned as per the Special Rules, 1993 would
remain as forest land and the provisions of Section 2 of the Forest
(Conservation) Act, 1980 are applicable to the said land.
6. As per Ext.P4 order, the 2nd respondent rejected the
petitioner's request for NOC on the sole ground that in Ext.P5 GO,
the Government have given an interpretation to the term 'shop
sites' found in Rule 3 of Special Rules, 1993 as 'small shops'. For
an easy reference, Rule 3 of the Special Rules, 1993 is extracted
hereunder.
"3. Purpose for which lands may be assigned: The lands under
these Rules may be assigned on registry for purpose of
personal cultivation or for house sites or for shop sites as the
case may be."
The term 'shop sites' referred to in Rule 3 is not defined
anywhere. A reading of Rule 3 above would show that the
intention of the legislature was to assign the land either for
personal cultivation or for the house site or for shop sites and
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nowhere is it limited that the house should be small or big one or
shops to be constructed in the shop site is to be with such and
such specifications. The term 'small shop' is also not defined
anywhere. If the intention of the legislature was to limit the
assignment for the purpose of the construction of small shops
only, it should have been specifically stated so in Rule 3 itself.
When the Special Rules, 1993, do not limit the shop in the
assigned property as a small shop, the Government cannot, by
Ext.P5 Government Order, restrict the usage of the assigned land
only for small shops without amending the Rules. Ext.P5 is only
an expression of opinion and does not have the force of law. The
interpretation given in Ext.P5 is against the spirit of the Special
Rules, 1993. As stated already, the 2nd respondent refused to
give NOC to the petitioner's petroleum outlet only for the reason
that in Ext.P5 it was clarified that shop sites in Rule 3 should be
read as small shops. Hence, Ext.P4 order passed by the 2 nd
respondent rejecting the petitioner's request for NOC on the basis
of the interpretation given to the term 'shop sites' in Ext.P5
Government Order is unsustainable in law and is liable to be set
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aside. The 2nd respondent has to consider whether the proposed
petroleum outlet would fall within the term 'shop sites' in Rule 3,
ignoring the interpretation given to it vide Ext.P5, and take a
fresh decision on the request of the petitioner for NOC.
7. For the reasons stated above, Ext.P4 order is set
aside. The 2nd respondent is directed to reconsider the
petitioner's request for NOC in accordance with law, and in the
light of the observations made in the judgment and pass an order
after hearing the petitioner within a period of two months from
the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
2025:KER:34922
APPENDIX OF WP(C) 21337/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED
23.06.2023 SHOWING PAYMENT OF PROPERTY
TAX IN THE NAME OF THE PETITIONER FOR
THE YEAR 2023-2024
Exhibit P2 TRUE COPY OF THE LETTER OF INTENT ISSUED
BY 4TH RESPONDENT TO THE PETITIONER
DATED 16/10/2021
Exhibit P3 THE TRUE COPY OF THE APPROVAL BEARING
PRIOR APPROVAL NO. A/P/SC/KL/14/4557
DATED 25/01/2022 GIVEN BY THE JOINT
CHIEF CONTROLLER OF EXPLOSIVES
Exhibit P4 TRUE COPY OF THE ORDER BEARING
NO.DCIDK/5203/2021-E2 DATED 17.11.2022
ISSUED BY THE 2ND RESPONDENT ADDITIONAL
DISTRICT MAGISTRATE, IDUKKI REFUSING TO
ISSUE NOC TO THE PETITIONER'S PETROLEUM
OUTLET
Exhibit P5 THE TRUE COPY OF THE GOVERNMENT ORDER
DATED 16.11.2009 PUBLISHED IN G.O (MS)
NO.450/2009/REVENUE
Exhibit P6 THE TRUE COPY OF PATTA NO. 3315 ISSUED
IN THE NAME OF PETITIONER'S PREDECESSOR-
IN-INTEREST LUCY ANTONY DATED 31.08.2011
ALONG WITH ORDER OF ASSIGNMENT ON
REGISTRY
Exhibit P7 TRUE COPY OF THE NOC ISSUED BY THE
EXECUTIVE ENGINEER, PWD ROADS DIVISION,
IDUKKI DATED 27/11/2021
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Exhibit P8 TRUE COPY OF THE CONSENT TO ESTABLISH
BEARING CONSENT NO.
PCB/IDK/ICE/G2IIDU916095/2021 DATED
17.01.2022
Exhibit P9 THE TRUE COPY OF THE NOC DATED
07/01/2022 ISSUED BY THE REGIONAL FIRE
OFFICER, ERNAKULAM FOR COMMENCING THE
PETROLEUM OUTLET IN THE PETITIONER'S
PROPERTY
Exhibit P10 THE TRUE COPY OF THE EXTRACT OF THE
MINUTES OF THE 35TH MEETING OF KERALA
STATE SINGLE WINDOW CLEARANCE BOARD
(KSSWCB) CHAIRED BY CHIEF SECRETARY HELD
ON 19.05.2023
Exhibit P11 TRUE COPY OF THE ORDER OF THE NATIONAL
GREEN TRIBUNAL, SOUTHERN ZONE, CHENNAI
IN APPLICATION NO.258/2014 DATED
14.03.2016
Exhibit P12 TRUE COPY OF THE APPLICATION DATED
02.03.2023 UNDER RIGHT TO INFORMATION
ACT 2005, FOR OBTAINING THE COPY OF THE
NOC AND COPY OF THE PROCEEDINGS DATED
14.08.2014 BEARING NO E2-
17277/2013/K.DIS
Exhibit P13 TRUE COPY OF THE REPLY DATED 21.03.2023
FOR THE PETITIONER'S EXT-P12 APPLICATION
Exhibit P14 TRUE COPY OF THE NOC ALONG WITH
PROCEEDINGS OF THE 2ND RESPONDENT
DATED /09/2016 BEARING NO E2-
17443/2016/K.DIS
Exhibit P15 TRUE COPY OF THE LOCATION SKETCH FOR
SY.NO. 356/7-2-1, 356/7-3-1 OF VATHIKUDY
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VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT
Exhibit P16 TRUE COPY OF THE PHOTOGRAPHS OF A
COMMERCIAL GREEN CARDAMOM DRYER UNIT IN
SY.NO 356/18-1 OF VATHIKUDY VILLAGE,
IDUKKI TALUK, IDUKKI DISTRICT, WHICH IS
90.10 METERS AWAY FROM THE PETITIONER
PROPERTY
Exhibit P17 TRUE COPY OF THE PHOTOGRAPHS OF A 3
STORIED COMMERCIAL-CUM-RESIDENTIAL
BUILDING IN SY.NO 356/18-1 OF VATHIKUDY
VILLAGE IDUKKI TALUK, IDUKKI DISTRICT,
WHICH IS 100 METERS AWAY FROM THE
PETITIONER'S PROPERTY
Exhibit P18 TRUE COPY OF THE PHOTOGRAPHS OF A
COMMERCIAL HARDWARE SHOP IN SY.NO
359/18, 23 AND 24 OF VATHIKUDY VILLAGE
IDUKKI TALUK, IDUKKI DISTRICT, 300
METERS AWAY FROM THE PETITIONER PROPERTY
RESPONDENT EXHIBITS
EXHIBIT R3(a) True copy of the judgement dated
PETITIONER EXHIBITS
Exhibit P19 THE TRUE COPY OF EXTRACTS OF THE MINUTES
OF THE 36TH KERALA STATE SINGLE WINDOW
CLEARANCE BOARD (KSSWCB) CHAIRED BY THE
CHIEF SECRETARY HELD ON 20.10.2023
RESPONDENT EXHIBITS
EXHIBIT R3(b) TRUE COPY OF COMMUNICATION NO.
15744/D3/2013/F and CSD DATED 06.05.2015
ALONG WITH GO(RT) NO. 371/2015/F and CSD
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DATED 21.11.2015 AND THE MINUTES OF THE
MEETING DATED 24.04.2015 CONVENED BY THE
CHIEF SECRETARY TO GOVERNMENT TO DISCUSS
ISSUES RELATED TO THE IMPLEMENTATION OF
SINGLE WINDOW CLEARANCE SYSTEM FOR
ISSUING NOC TO NEW PETROLEUM OUTLETS.
PETITIONER EXHIBITS
Exhibit P20 THE TRUE COPY OF EXTRACTS OF THE MINUTES
OF THE 37TH MEETING OF KERALA STATE
SINGLE WINDOW CLEARANCE BOARD (KSSWCB)
CHAIRED BY THE CHIEF SECRETARY HELD ON
26.02.2024
