Kerala High Court
Public Interest Protection ... vs State Of Kerala on 30 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939
WP(C).No. 37636 of 2017 (S)
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PETITIONER(S)/PETITIONER:
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PUBLIC INTEREST PROTECTION ASSOCIATION
MUNNAR-685612, REPRESENTED BY ITS GENERAL SECRETARY,
V.MOHAN KUMAR.
BY ADVS.SRI.P.RAMAKRISHNAN
SMT.PREETHI KESAVAN
SRI.T.C.KRISHNA
SRI.C.ANIL KUMAR
SMT.ASHA K.SHENOY
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2. THE SUB COLLECTOR,
DEVIKULAM, IDUKKI, PIN 686004
3. KANNAN DEVAN HILLS PLANTATIONS COMPANY PRIVATE LIMITED
KDHP HOUSE, MUNNAR-685612,
REPRESENTED BY ITS GENERAL MANAGER.
R1,R2 BY SR.GOVERNMENT PLEADER SRI.M.A. ASIF
R3 BY ADV. SRI.V.ABRAHAM MARKOS
R3 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R3 BY ADV. SRI.ISAAC THOMAS
R3 BY ADV. SRI.HARAN THOMAS GEORGE
R3 BY ADV. SRI.P.G.CHANDAPILLAI ABRAHAM
R3 BY ADV. SMT.RACHEL ABRAHAM
R3 BY ADV. SRI.JERIE RAMESH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 37636 of 2017 (S)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF REPRESENTATION DTD 3/10/2014 SUBMITTED BY
THE PETITIONER
EXHIBIT P2 TRUE COPY OF PROCEEDINGS DTD 18/5/2015 ISSUED BY THE 2ND
RESPONDENT
EXHIBIT P3 TRUE COPY OF PROCEEDINGS DTD 19/10/2016 OF THE 2ND
RESPONDENT
EXHIBIT P4 TRUE COPY OF SKETCH REFERRED TO IN PROCEEDINGS DTD
19/10/2016 OF THE 2ND RESPONDENT
EXHIBIT P5 TRUE COPY OF APPLICATION DTD 6/1/2017 SUBMITTED BY THE
3RD RESPONDENT
EXHIBIT P6 TRUE COPY OF REVISED PLAN SUBMITTED BY THE 3RD RESPONDENT
ALONG WITH EXHIBIT P5 APPLICATION
EXHIBIT P7 PHOTOGRAPHS OF THE AREA OF WORK SITE
EXHIBIT P8 PHOTOGRAPHS EVINCING DEPOSIT OF EARTH IN THE 3RD
RESPONDENTS PROPERTY.
EXHIBIT P9 TRUE COPY OF REPRESENTATION DTD 15/11/2017 SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT.
EXHIBIT P10 TRUE COPY OF LEASE DEED DATED 30.3.2005
EXHIBIT P11 TRUE COPY OF REPLY DATED 25.9.2010 RECEIVED FROM THE PUBLIC
INFORMATION OFFICER, CENTRAL SURVEY OFFICE,
THIRUVANANTHAPURAM.
EXHIBIT P12 TRUE COPY OF REPLY RECEIVED FROM THE PUBLIC INFORMATION
OFFICER, OFFICE OF THE ASSISTANT DIRECTOR OF RE-SURVEY.
RESPONDENT(S)' EXHIBITS
-----------------------
ANNEXURE R3(A) TRUE COPY OF THE LETTER DATED 30.3.20156 ISSUED BY THE
MLA-DEVIKULAM TO THE 3RD RESPONDENT
ANNEXURE R3(B) TRUE COPY OF THE 3RD RESPONDENT'S LETTER DATED
13.4.2015 ISSUED TO THE 2ND RESPONDENT.
ANNEXURE R3(C) TRUE COPY OF THE LETTER DATED 11.3.1998 OF THE
SECRETARY, KERALA SPORTS COUNCIL
ANNEXURE R3(D) TRUE COPY OF THE LETTER DATED 31.3.1998 ISSUED BY THE
3RD RESPONDENT'S PREDECESSOR TO THE SECRETARY, KERALA
SPORTS COUNCIL
WP(C).No. 37636 of 2017 (S)
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ANNEXURE R3(E) TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE
DEVIKULAM GRAMA PANCHAYAT DATED 10.2.2017
ANNEXURE R3(F) TRUE COPY OF THE ORDER DATED 3.11.2017 RENEWING THE
PERMIT EARLIER GRANTED FOR EARTH MOVEMENT.
ANNEXURE R3(G) TRUE COPY OF THE LETTER DATED 5.4.2016 ISSUED BY THE
ASSISTANT EXECUTIVE ENGINEER TO THE 3RD RESPONDENT.
ANNEXURE R3(H) TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED
15.9.2017 ISSUED BY THE ADM, IDUKKI.
// TRUE COPY //
P.A. TO JUDGE
sou.
Antony Dominic, Ag.CJ
&
Dama Seshadri Naidu, J
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W.P(C). No. 37636 of 2017
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Dated this the 11th day of December, 2017
J U D G M E N T
Antony Dominic, Ag.CJ The petitioner, a public interest litigant has filed this writ petition seeking to quash Ext.P3 to the extent it sanctions the establishment of a petrol/diesel filling station, office cum sales outlet, tea stall etc. in Munnar. Consequential directions are also sought for.
2. We heard the counsel for the petitioner, learned Government Pleader, learned senior counsel appearing for the third respondent.
3. We find that by Ext.P1, a representation was made to the Sub Collector, pointing out the heavy traffic congestion and the parking problem in Munnar area in general and particularly near the flower garden owned and managed by the Kerala Forest Development Corporation. This led to Ext.P2 proceedings of Sub Collector, Devikulam, whereby the third respondent was W.P(C).37636/17 2 permitted to develop the site mentioned therein as a parking ground subject to the conditions mentioned therein. These conditions inter alia included that there shall be no major earth work cutting and that the parking area should be operated on no profit no loss basis. Subsequently, Ext.P3 order was issued by the Sub Collector. In this order, reference was made to a proposal submitted by the third respondent, which included the parking area, toilets, petrol bunk, office cum sales outlet, tea stall and security post which spreads 45.56 Ares of land in survey No.55/6, 62/25pt of Kannandevan Hills Village. Based on the request from the public and also considering the proposal of the third respondent, the third respondent was permitted to develop the site subject to the following conditions:
"1. Free parking should be permitted for a minimum of 10 buses, 15 tempos, 50 cars/jeeps and 30 two wheelers up to a maximum of 4 hours per vehicle between 8.00 a.m. and 8.00 p.m. in the proposed parking area.
2. A parking fee of Rs.10/- per hour may be levied from vehicle owners who park the vehicle for more than the permitted four hours between 8.00 a.m. to 8.00 p.m.
3. Parking fee of Rs.10/- per hour may be levied from vehicle owners who park vehicles between 8.00 p.m. and 8.00 a.m. W.P(C).37636/17 3
4. Parking facility should be arranged for all types of vehicles ranging from bicycles to buses.
5. Parking facility should be given to the local population as well as must not be restricted to tourists.
6. The proposed facilities should be managed by the income from the sales outlet and tea/coffee shop by the KDHP Company.
7. Clean and separate toilet facilities for men and women should be arranged and normal user fee may be levied from the public for the maintenance of the same.
8. User fees are to be customer friendly and may be revised yearly subject to the control of the MLA, Devikulam and RDO, Devikulam."
4. Ext.P4 is referred to as the sketch of the area and subsequently by Ext.P5, a revised sketch was submitted by the third respondent, which was approved by respondents 1 and 2. It is in this background, the writ petition is filed, mainly complaining that substantial part of the parking area is now occupied by the petrol bunk and its ancillary facilities. It is yet another complaint of the petitioner that though Ext.P3 was issued making it clear that there shall not be any major earth work cutting, the work is proceeding in violation thereof.
5. Having regard to the nature of the allegations levelled, this Court directed that a statement be filed by the W.P(C).37636/17 4 third respondent and accordingly, a statement has been filed on their behalf. In the statement, they have explained the facts leading to Ext.P3, about the site and the sanctions and permissions obtained by them. Reference was made also about the petrol bunk that is proposed to be hoisted in the site in question. The relevant portion of the statement filed by the third respondent is extracted below for reference :
"Facts leading to issue of Ext.P3.
3. It is respectfully submitted that the Site now being developed as Parking Lot with allied facilities is part of the lands held by the 3rd Respondent Company in Munnar. Munnar today being a major tourist attraction suffers from constant traffic congestion on account of lack of parking. The Member of Legislative Assembly (MLA)-Devikulam had vide letter dated 30.3.2015 written to the Managing Director of this Respondent Company requesting to arrange for Traffic Parking Area be developed in three locations across Munnar. True copy of the letter dated 30.03.2015 issued by the MLA - Devikulam to the 3rd Respondent Company is produced herewith and marked as Annexure R3(a). This Respondent had vide letter dated 13.4.2015, acting upon Annexure R3(a) letter, written to the 2nd Respondent Sub Collector had informed that while two locations could not be considered owning to orders of the Hon'ble Supreme Court of India the present site could be considered. True copy of the letter dated 13.4.2015 is produced herewith and marked as Annexure R3(b). It is pursuant to Annexures R3(a) and R3(b) letters that Exhibit P2 and subsequently Exhibit P3 proceedings came to be passed.
W.P(C).37636/17 5 About the Site:-
4. It is highly necessary that certain facts with respect to the lay of the land and with respect to its condition be brought on record. It is respectfully submitted that in the year 1998, the Kerala Sports Council had requested the Predecessor of this respondent M/s.Tata Tea Limited [now Tata Global Beverages Limited-TGBL] to lease 15 acres of land for constructing a High Altitude Training Centre at Munnar. Acting on the said request, 15 acres of land opposite to KSRTC Bus Depot, Munnar Town was leased to them for constructing the said Centre. For raising the height of the land, and levelling the site for construction of the said Centre, the Kerala Sports Council had requested this Respondent Company to allow an area for collection of soil required for earth filling. True copy of the letter dated 11.3.1998 issued by the Secretary, Kerala Sports Council the General Manager of this Respondent's Predecessor is produced herewith and marked as Annexure R3(c). The predecessor of this respondent had vide letter dated 31.3.1998 allotted the present land being developed as a car parking for taking the soil required by them. True copy of letter dated 31.3.1998 issued by the predecessor of this Respondent to the Secretary of the Kerala Sports Council is produced herewith and marked as Annexure R3(d). After removal of the soil by the Kerala Sports Council the present land was lying in a nearly flat but uneven condition, in disuse for the last nearly 20 years. It is for this reason that in Ext.P2 the Sub Collector mentions that some trees and shrubs are found but no major earth curring will be required.
Therefore, contrary to what is alleged in the writ petition, the only soil movement being carried out by this respondent after obtaining all necessary permissions, is for levelling the land to make it usable for parking.
Sanctions and Permissions:-
5. It is respectfully submitted that all works being carried out by this respondent for the purposes of W.P(C).37636/17 6 developing the parking lot and allied facilities are being done after obtaining due sanctions from the necessary authorities and in public interest. A combined reading of Exhibits P2 and P3 proceedings of the 3rd respondent would show that the parking facilities are to be developed, maintained and run by this respondent on no profit no loss basis managed by the income from the sales outlet and tea/coffee shop to be run by this respondent. It is pertinent to note that Exhibits P2 and P3 proceedings envisaged that while the parking facility should be maintained by this respondent without suffering loss it is pertinent to note that the authorities also directed that this respondent is duty bound to provide free parking, for up to 4 hours, for a minimum number of vehicles as quantified in Ext.P3 Order. A nominal fee is stipulated only for those vehicles which exceed four hours. It is respectfully submitted that in all probability, tourists who visited the said flower garden of the Kerala Forest Development Corporation are not likely to spend more than even 2 hours there and therefore this respondent is unlikely to obtain any income from the vehicles being parked. Therefore, in Exhibit P3 proceedings it was provided that the parking lot be maintained with the income from the outlets and tea/coffee shop run by this respondent company.
6. It is respectfully submitted that this respondent company has, in addition to the sanctions granted by the 2nd respondent vide Exhibits P2 and P3, obtained all necessary clearances and sanctions from the respective authorities which are required for setting up the parking lot and allied facilities, now under construction. True copy of the building permit issued by the Devikulam Grama Panchayat dated 10.02.2017 is produced herewith and marked as Annexure R3(e). True copy of the order dated 3.11.2017 renewing the permit earlier granted for earth movement from the site for the purpose of developing parking ground granted by the District Geologist, Idukki of the Mining and Geology Department is produced marked as W.P(C).37636/17 7 Annexure R3(f). The permission from District Geologist has renewed from time to time and is valid till 2.12.2017.
Petrol Bunk:-
7. This respondent company is in the ownership of a Petrol Bunk located in the heart of the Munnar town, in front of this respondent's company Munnar Workshop, on the National Highway. The Assistant executive Engineer, National Highway (R) Sub Division, Devikulam had vide letter dated 5.4.2016 written to the Manager of this respondent company stating that widening works were intended to be carried out in Munnar Town and that the fuel outlet owned by this respondent Company may be shifted to another location, as the present area was earmarked for putting up a Bus Bay. True copy of the letter dated 5.4.2016 issued by the Assistant Executive Engineer to this respondent is produced herewith and marked as Annexure R3(g). It is acting upon Annexure R3(g) request of the National Highways Department that this respondent Company has taken a considered decision to relocate the petrol bunk located in the heart of the Munnar Town to the present site, which being developed as a car parking area, would be beneficial to the users of the said facility as well. Permission has also be granted with respect to the same and true copy of the No Objection Certificate dated 15.9.2017 issued by the Additional District Magistrate (ADM), Idukki, granting clearances for setting up of the petrol bunk is produced and marked as Annexure R3(h).
8. The only variation, with respect to the petrol bunk when comparing Exhibits P4 and Exhibit P6 is that the petrol bunk had been moved, in its entirety, from the centre of the proposed parking lot to the edge of the road taking into account the direction given by the Bharat Petroleum Corporation Limited (BPCL), which runs the bunk. This is amply evident from a mere reading of Exhibit P5 request of this respondent company to the 2nd respondent Sub Collector."
W.P(C).37636/17 8
6. On considering the rival submissions made before us, in the light of the pleadings of the petitioner on the one hand and the third respondent on the other, we are inclined to think that it was mainly to address the parking problem near the flower garden owned and managed by the Kerala Forest Development Corporation in the Munnar-mattupetty road, a proposal was mooted by the public in general and respondents 1 and 2. It was as a culmination of that proposal that the third respondent was permitted to establish a vehicle parking area in the land in question. It was during that process, the third respondent had to shift the existing petroleum outlet operated by them and it was therefore, that they sought modification of the proposal and obtained permissions of the authorities to re- locate the petroleum outlet in the site in question. The statement filed by the third respondent also shows that on that basis, they have obtained sanctions and permissions that are required and it is only thereafter that they are proceeding with the work in question.
7. On the materials now available before us, we are not persuaded that any statutory violation could be pointed out by the petitioner entitling this Court to interfere with the work that W.P(C).37636/17 9 is undertaken by the third respondent on the strength of Ext.P3. On the other hand, if as stated by the petitioner, on completion of the project, it is found that the parking area does not accommodate the number of vehicles that are mentioned in Ext.P3 or orders issued thereafter, it is always open to respondent 1 and 2 to take such action as they deem necessary. In such circumstances, we do not find any reason to interfere with any of the orders issued.
The writ petition therefore fails and is accordingly dismissed.
Sd/-
Antony Dominic, Acting Chief Justice Sd/-
Dama Seshadri Naidu, Judge sou.13/12.