Kerala High Court
Ajmal K.V vs The Kadalundy Grama Panchayat
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939
WP(C).No. 13701 of 2017 (K)
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PETITIONER :
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AJMAL K.V.,
PANAYULLAKANDY HOUSE, IRINGATH.P.O.,
PAYYOLI (VIA), KOZHIKODE DISTRICT-673 523.
BY SRI.K.P.DANDAPANI,SENIOR ADVOCATE
ADV. SRI.MILLU DANDAPANI
RESPONDENT(S):
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1. THE KADALUNDY GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, (P.O) KADALUNDI,
KOZHIKODE DISTRICT-673 581
2. THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
SCIENCE AND TECHNOLOGY DEPARTMENT, SHASTRI BHAVAN,
PATTOM, TRIVANDRUM-695 004,
REPRESENTED BY ITS MEMBER SECRETARY.
3. HINDUSTAN PETROLEUM CORPORATION LIMITED,
HAVING ITS REGISTERED OFFICE AT 17, JAMSHADJI TATA ROAD,
MUMBAI-400 120, THROUGH ITS REGIONAL OFFICE,
KOZHIKODE RETAIL REGION, ELATHUR, KOZHIKODE-673 303,
REPRESENTED BY ITS REGIONAL MANAGER.
R1 BY ADVS. SRI.VINOD SINGH CHERIYAN
SRI.T.M.KHALID
R2 BY ADV. SRI.PRAKASH C.VADAKKAN. J., SC, KCZMA
R3 BY SRI.M.GOPIKRISHNAN NAMBIAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 13701 of 2017 (K)
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE LETTER DATED 07/02/2015 ISSUED BY THE 3RD RESPONDENT
P2 COPY OF THE LETTER OF INTENT(LOI) DATED 13/3/2015 ISSUED BY THE 3RD
RESPONDENT
P3 COPY OF THE LEASE DEED DATED21/4/2015 EXECUTED BY MR.MUHAMMED
JAMSHEER IN FAVOUR OF THE PETITIONER FOR APERIOD OF 30 YEARS.
P4 COPY OF THE NOC DATED 01/06/2015 ISSUED BY THE DISTRICT COLLECTOR,
KOZHIKODE UNDER RULE 144 OF THE PETROLEUM RULES, 2002.
P5 COPY OF THE CONSENT BEARING NO.PCB/KKD/DO/ICE/5015/2015 DATED
29/4/2015
P6 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT PANCHAYAT DATED
27/6/2015
P7 COPY OF THE COASTAL ZONE NOTIFICATION ISSUED BY THE MINISTRY OF
ENVIRONMENT AND FOREST DATED 06/01/2011 WHICH WAS PUBLISHED AS
S.O 19(E) IN GAZETTE OF INDIA, EXTRAORDINARY,PART II, SECTION 3, SUB
SECTION (II)
P7(A) COPY OF THE AMENDMENT NOTIFICATION PUBLISHED AS S.O. 114(E) DATED
03/10/2001
P8 COPY OF THE TECHNICAL REPORT ALONG WITH ACOVERING LETTER
ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, SCIENCE AND
TECHNOLOGY DEPARTMENT.
P9 COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED
18/02/2016
P9(A) COPY OF THE DECISION TAKEN BY THE 2ND RESPONDENT ON 21/12/2015
P10 COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 27/05/2016
P11 COPY OF THE COMMUNICATION BEARING NO.5349A1/16/KCZMA DATED
13/02/2017
P11(A) COPY OF THE DECISION TAKEN ON 03/12/2016
2/-
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WP(C).No. 13701 of 2017 (K)
P12 COPY OF THE RELEVANT PAGES OF THE MINUTES OF 58TH MEETING IN
WHICH THE 1ST RESPONDENT HAS ISSUED CRZ CLEARANCE FOR MARINE
DIESEL OUTLET WHICH WAS DEPICTED AS AGENDA ITEM NO.58.3.8
P13 COPY OF THE RELEVANT PAGES OF THE CRZ CLEARANCE ISSUED BY THE
1ST RESPONDENT FOR CONSTRUCTION OF A DIESEL MARINE RETAIL
OUTLET IN NEENDAKARA VILLAGE IN ITS 50TH MEETING WHICH IS
INCLUDED AS AGENDA ITEM NO.50.4.4.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
K.VINOD CHANDRAN, J.
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W.P.(C) No. 13701 of 2017 (K)
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Dated this the 12th day of July, 2017
JUDGMENT
The petitioner is concerned with the dealership of a marine retail outlet for fishing boats in a location called the Chaliyam-Marine, at Kozhikode. The petitioner was successful under a public notification for establishment of marine retail outlet as seen from Ext.P1. A letter of intent was issued by the oil company seen at Ext.P2. The petitioner took on lease a property as evidenced by Ext.P3 coming near to the high tide line of Kadalundi river for establishment of the petroleum outlet and also obtained 'no objection certificate' from the District Collector as is seen from Ext.P4. The consent to establish from the Pollution Control Board is evidenced as Ext.P5. On the petitioner approaching the respondent Panchayat for building permit, the same was responded to by Ext.P6, which is challenged herein.
2.As per Ext.P6 three objections were raised and the petitioner is concerned in the writ petition only with the first objection, i.e., the sanction of Kerala Coastal Zone W.P.(C) No. 13701 of 2017 (K) 2 Management Authority (KCZMA) having not been submitted. The petitioner submits that the other two objections are rectified by him and the necessary documents are submitted before the Panchayat.
3.The learned counsel appearing for the respondent Panchayat, based on the counter affidavit submits that, ithe approval of KCZMA is a requirement since the petitioner's site comes within the CRZ III area as notified under the Coastal Zone Regulation Notification of 2011. No development activities are permitted within the prohibited distance and hence there could be no constructions allowed, is the contention of the respondent Panchayat.
4.The learned counsel for the petitioner contends that there is an exemption as far as petroleum outlets are concerned as available in the Notification of 2011, which is produced at Ext.P7. The petitioner had approached the Kerala Coastal Zone Management Authority [for short, KCZMA] for permission, which was declined as per Ext.P9. An application was filed against Ext.P9, but that also stood rejected; the decision of which is seen from Ext.P11(a). The W.P.(C) No. 13701 of 2017 (K) 3 appellate authority, though found that the exemption is available, declined the permission without any reasonable ground.
5.The learned standing counsel appearing for the KCZMA would seek to sustain the order of the authority.
6.In Ext.P7 notification at paragraph No.8, norms for regulation of activities permissible under the notification has been specified under CRZ III. Sub clause (e) of Clause iii permits "facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure- II'. Annexure-II lists out petroleum and chemical products permitted for storage in CRZ categories except CRZ-I(A), which includes liquid petroleum gas and high speed diesel at item No.(ii) and (vi).
7. As has been contended by the petitioner; there is absolutely no reason seen from Ext.P9 order dated 18.02.2016 of the KCZMA. In fact it is quiet contrary to the technical report on the construction of petrol pump as produced at Ext.P8(2). The Joint Director had indicated that W.P.(C) No. 13701 of 2017 (K) 4 the area is in a 'No Development Zone of CRZ III', but as per clause 8 III A (iii) (e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II is permissible in NDZ or CRZ III especially for supply of fuel to fishing boats.
8.It is quiet unfortunate that the appellate authority rejected the approval without any valid grounds. It is seen from Ext.P11 that "the appellate authority had noticed that the proposed construction is at a distance of 17 m from HTL of river, the area is in No Development Zone of CRZ III. As per clause 8 III A (iii) (e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure II; is permissible in No Development Zone of CRZ III especially for supply of fuel to fishing boats'. But, however, without assigning any reason to explain the departure from the exemption granted, the permission has been declined. In such circumstance, the orders at Ext.P9 and P11 would stand set aside. The KCZMA shall immediately issue a consent to the petitioner.
9.It is declared that the petitioner is entitled to get a consent W.P.(C) No. 13701 of 2017 (K) 5 from KCZMA, since the activity of establishment of a petrol pump for the purpose of catering to the fishing boats is an exempted activity under the CRZ Notification of 2011. The local authority, need not wait for the consent from the KCZMA and shall proceed with the consideration of the application dehors such consent since this Court has declared that the petitioner is eligible for the same.
10.It is also made clear that the petitioner shall deal with only those products that has been referred to in Annexure-II of Ext.P7. The other defects as noticed by the local authority shall be rectified by the petitioner.
The writ petition is allowed. No costs.
Sd/-
K.VINOD CHANDRAN JUDGE AMV/15/07/2017