Nisha Shibu vs. Malayattoor- Neelesshwaram Grama Panchayat
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 8TH DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 WP(C) NO. 290 OF 2021 PETITIONER: NISHA SHIBU AGED 40 YEARS, W/O. SHIBU, PULIKACHALIL HOUSE, CHAMMINI, MALAYATTOOR, ERNAKULAM DISTRICT - 683587. BY ADVS. SHASHANK DEVAN SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN RESPONDENTS: 1 MALAYATTOOR- NEELEESHWARAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NILEESHWARAM P.O, ERNAKULAM DISTRICT - 683574. 2 INDIAN OIL CORPORATION LIMITED REPRESENTED BY DEPUTY GENERAL MANAGER(RETAIL STALES), COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O, KOCHI, ERNAKULAM DISTRICT - 682036. 3 THE PRESIDENT MALAYATTOOR-NEELESHWARAM GRAMA PANCHAYATH, NILEESHWARAM P.O, ERNAKULAM DISTRICT - 683574. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.MOHANDAS (ERNAKULAM) SRI.K.JOHN MATHAI SRI.K.SUDHINKUMAR SRI.JOSON MANAVALAN SRI.S.K.ADHITHYAN SRI.KURYAN THOMAS SRI.SABU PULLAN SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SRI.GOKUL D. SUDHAKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 290 OF 2021 2 JUDGMENT This writ petition is filed seeking the following prayers: “(i) call for the records leading up to issuance of exhibit P9; and quash the same by issuance of a writ of certiorari or such other writ, order or direction as arbitrary, irrational, untenable, illegal and unconstitutional; (ii) declare that the petitioner need not obtain NOC from PWD with regards the operationalization of the subject matter petroleum outlet; (iii) declare that the petitioner is entitled to FTE&O license as per exhibit P7 as well as such other license/certificate as per the relevant deeming provisions under the Kerala Panchayat Act and therefore issue a writ of mandamus or such other order or direction directing the 1st respondent to hand over physical copies of the same to the petitioner within a period as this Hon'ble Court deems fit.”
Heard the learned counsel for the petitioner, the learned counsel appearing for respondents 1 and 3 as well as the learned counsel appearing for the 2nd respondent.
It is submitted by the learned counsel for the petitioner that the petitioner had sought for No Objection Certificate under Rule 144 of the Petroleum Rules and he was issued with Ext.P1 dated 09.12.2019. One of the conditions provided in Ext.P1 was to the effect that the petitioner should obtain NOC from the PWD as per G.O.(M.S.)
WP(C) NO. 290 OF 2021 3 No.46/2019/PWD dated 22.10.2019. It is also provided that the NOC shall be subject to the final judgment of the Apex Court in pending SLPs. The learned counsel for the petitioner submits that the Government Orders made mention of in Ext.P1 stands set aside by this Court in its judgment dated 05.08.2021 in W.P.(C).No.18524/2020. It is further submitted that in the said batch of writ petitions, it was specifically ordered that where District Authorities have granted NOC subject to the conditions producing NOC from the PWD, the said condition is declared as null and void.
A counter affidavit has been placed on record by respondents 1 and 3. It is admitted therein that the matter stands covered by Ext.R1(B) judgment of this Court in W.P.(C). No.18542/2020 and connected cases. However, it is submitted that in view of the directions of this Court, the petitioner has to approach the District Authority and obtain a new permit without Clause 11 as contained in Ext.P1 and if such a permit is produced before the Panchayat, the Panchayat is ready and willing to issue the license.
Having considered the contentions advanced and in view of
WP(C) NO. 290 OF 2021 4 Ext.R1(B) judgment, which is produced along with the counter affidavit, I am of the opinion that the contention raised in the counter affidavit to the effect that a further NOC has to be produced by the petitioner without the objectionable clauses therein is completely unsupported by any logic or law. Since Ext.R1(B) is a judgment rendered by this Court and since the Government Orders based on which the PWD NOC was required stand set aside in Ext.R1(B), I am of the opinion that Clause 11 in Ext.P1 also requires to be set aside.
In the above view of the matter, this writ petition is ordered directing that Ext.P1 shall have full force and shall be complied with by respondents 1 and 2 without the offending clauses at Clause 11 and 12 of the conditions provided therein. Respondents 1 and 3 shall take further appropriate steps for issuance of license on the basis of Ext.P1, in accordance with law, at the earliest.
This writ petition is ordered accordingly. ANU SIVARAMAN JUDGE NP
WP(C) NO. 290 OF 2021 5 APPENDIX OF WP(C) 290/2021 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE NOC DATED 09.12.2019,ALONG WITH THE PROCEEDINGS ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM. EXHIBIT P2OF THE NOC DATED 27.08.2020 FROM THE OFFICE OF THE REGIONAL FIRE OFFICER. EXHIBIT P3OF THE CONSENT TO OPERATE DATED 29.07.2020 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P4OF LICENSE DATED 28.01.2020 FOR STORAGE OF PETROLEUM ISSUED BY THE DEPUTY CONTROLLER OF EXPLOSIVES ON BEHALF OF JOINT CHIEF CONTROLLER OF EXPLOSIVES. EXHIBIT P5OF THE LAY-OUT AND USAGE OF PLOT PERMISSION ORDER DATED 05.02.2020 ISSUED BY THE OFFICE OF THE CHIEF TOWN-PLANNER. EXHIBIT P6OF THE BUILDING PERMIT DATED 10.03.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P7OF THE APPLICATION DATED 12.08.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT SEEKING FOR THE ISSUANCE OF FTE AND O LICENSE EXHIBIT P8OF THE LETTER GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT DATED 24.09.2020. EXHIBIT P9OF THE COMMUNICATION DATED 28.09.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P10OF THE JUDGMENT DATED 04.04.2018 IN WP(c) NO. 5734/2018. EXHIBIT P11OF THE SANITARY CERTIFICATE DATED 18.08.2020 ISSUED BY THE HEALTH INSPECTOR,
WP(C) NO. 290 OF 2021 6 PRIMARY HEALTH CENTER, MALAYATTOOR. EXHIBIT P12OF THE SAID GST REGISTRATION CERTIFICATE ISSUED ON 14.08.2020. RESPONDENT'S/S EXHIBITS: Exhibit R1(A)OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 12/08/2021 Exhibit R1(B)OF THE JUDGMENT DATED 05/08/2021 IN W.P(C) 18542/2020
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