IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN

MONDAY, THE 19TH MARCH 2007 / 28TH PHALGUNA 1928

WP(C).No. 5956 of 2006(H)

----------------------------------

PETITIONERS:
--------------------

1. M/S.RELIANCE INDUSTRIES LTD.,

A&P ARCADE, SAHODARAN AYYAPPAN ROAD,
KADAVANTHRA, REPRESENTED BY ITS STATE COMMERCIAL
MANAGER & AUTHORIZED SIGNATORY, SRI.B.S.RAJAGOPAL.

2. T.N.VISWANATHAN, AGED 58,

S/O.NARAYANAN EZHUTHACHAN,
AISWARYA, MICRO WAVE STATION ROAD,
MISSION QUARTERS, TRICHUR-680 001.

BY ADV. SRI.P.GOPINATH

RESPONDENTS:
---------------------

1. THE COMMISSIONER OF LAND REVENUE,

PUBLIC OFFICE BUILDING,
MUSEUM JUNCTION,
TRIVANDRUM.

2. THE DISTRICT COLLECTOR,

TRICHUR.

3. THE VILLAGE OFFICER,

CHIYYARAM,
THIRUSSUR DISTRICT.

4. MR.PAUL ALUKKA,
(A.V.PAUL), S/O.VARGHESE,
ALUKKA HOUSE, AVENUE ROAD,
TRICHUR.

5. MR.LAL JOHN,
S/O.LATE JOHN KURIEN,
ATHAPPALLY HOUSE, MANDUPALLAM JUNCTION,
KARIACHIRA POST, TRICHUR-680 005.

* ADDL. R6 AND R7 ARE IMPLEADED

6. BABY KURIAN, AGED 40 YEARS, SON OF

LATE JOHN KLURIEN, ATHAPPALLY HOUSE,
MANDUPALLAM JUNCTION, KURIACHIRA POST,
THRISSUR 680006.
W.P.(C) NO. 5956/2006

7. MANY JOHN, AGED 33 YEARS, SON OF

JOHN KURIEN, ATHAPPALLY HOUSE,
MANDUPALLAM JUNCTION, KARIACHIRA POST,
THRISSUR 680 006 ARE IMPLEADED AS ADDL.R6 AND R7 AS PER
ORDER DT. 29.3.06.

BY ADV. SRI.V.GIRI
SRI.G.SREEKUMAR (CHELUR)
BY GOVERNMENT PLEADER SMT.LAKSHMI RANI.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

ON 12/01/2007, ALONG WITH WPC NO. 7064 OF 2006 AND CONNECTED CASES
THE COURT ON 19.3.2007 DELIVERED THE FOLLOWING:
W.P.(C) NO.5956/2006

APPENDIX
PETITIONER'S EXHIBITS

EXT.P1:- COPY OF THE NO- OBJECTION CERTIFICATE FROM THE DISTRICT

MAGISTRATE UNDER THE PETROLEUM RULES.

EXT.P2:- COPY OF THE BUILDING PERMIT ISSUED BY THE TRICHUR CORPORATION.

EXT.P3:- COPY OF THE REGISTERED LEASE DEED EXECUTED BY THE OWNER'S OF THE
LAND.

EXT.P4:- COPY OF THE ORDER NO.B.1/30380/05/D.DIS DT.28.12.05 PASSED BY THE

DISTRICT COLLECTOR.

EXT.P5:- COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DT. FEBRUARY
17.056.

EXT.P6:- COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT.

EXT.P7:- COPY OF THE NO- OBJECTION CERTIFICATE ISSUED BY THE 4TH

RESPONDENT.

EXT.P8:- COPY OF THE SKETCH OF THE LAND IN QUESTION ALSO SHOWING THE
LANDS OWNED BY RESPONDENT 4 & 5.

EXT.P9:- COPY OF THE CERTIFICATE ISSUED BY THE STATE BANK OF INDIA, TRICHUR
BRANCH TO THE PETITIONER.

EXT.P10:- COPY OF THE APPEAL FILED BY THE RESPONDENT 4 AND 5 BEFORE THE 1ST
RESPONDENT.

EXT.P11:- COPY OF THE RELEVANT EXTRACT FROM G.O.(MS) NO.232/85/LAD.

DT.31.10.85 OF THE GOVERNMENT OF KERALA.

EXT.P12:- COPY OF THE ORDER ISSUED BY THE CHIEF TOWN PLANER.

EXT.P13:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS
OWNED BY RESPONDENTS 4 & 5 .

EXT.P14:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS
OWNED RESPONDENTS 4 & 5.

EXT.P15:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS
OWNED BY RESPONDENT 4 & 5.

EXT.R4(a):- COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE

COMMISSIONER OF LAND REVENUE.

EXT.R4(bn):- COPY OF THE AFFIDAVIT AND APPLICATION FOR STAY FILED ALONG
WITH EXT.R4(a).

EXT.R4(c):- COPY OF THE GOVERNMENT ORDER NO.GO(MS) 28/89/LD DT.4.4.89.

EXT.R4(d):- COPY OF THE DETAILED TOWN PLANNING SCHEME.

EXT.R4(c):- COPY OF THE ORDER OF THE THRISSUR CORPORATION DT.22.4.05.

EXT.R4(f):- COPY OF THE ORDER OF THE GOVERNMENT PASED ON 9.6.05.

 THOTTATHIL B. RADHAKRISHNAN, J.

========================

WP (C) Nos.5956 of 2006 – H, 7064 of 2006 – N,

7148 of 2006 –A, 8090 of 2006 – K

and 9811 of 2006 –H.

========================

Dated this the 19th day of March, 2007.

JUDGMENT

The subject matter of these writ petitions is a proposed

petroleum outlet and the issues raised, are intricately

connected. Hence these matters are consolidated and heard.

Therefore, this common judgment.

2. The 2nd petitioner in WP (C) No. 8090 of 2006 and

in WP (C) No. 5956 of 2006 is the managing partner of the 1st

petitioner in WP (C) No. 8090 of 2006, a firm, which is a

franchisee of the 1st petitioner in WP (C) No. 5956 of 2006, an

authorised petroleum marketer, hereinafter referred to as

“Reliance”. He is one among the co-owners of the land on

which the petroleum outlet is proposed.

WPC.5956/06 & con.cases -: 2 :-

3. By Ext. P4 in WP (C) No. 5956 of 2006, the

District Collector granted permission, hereinafter, “KLU

Permission”, for short, to the franchisee’s managing

partner and his co-owners, under the Kerala Land

Utilisation Order, 1987, hereinafter, the “KLU Order”, for

short, to convert the wet lands to provide the site for the

proposed petroleum outlet. The Land Revenue

Commissioner, hereinafter, the “Commissioner”, for short,

entertained an appeal filed by respondents 4 & 5 and

others, who are stated to be neighbours, against that order

and passed Ext. P6 order staying the operation of the KLU

Permission. WP (C) No. 5956 of 2006 is filed by Reliance

and the franchisee’s managing partner (one of the co-

owners of the land) challenging Ext. P6 order of the

Commissioner.

4. WP (C) No. 7064 of 2006 is filed by a neighbour

challenging Exts. P5 & P6 therein, the decision of the Chief

Town Planner approving the layout of the petroleum outlet

WPC.5956/06 & con.cases -: 3 :-

and that of the Government granting zonal exemption from

the Town Planning Scheme.

5. WP (C) No. 7148 of 2006 is filed by respondents

4 & 5 in WP (C) No. 5956 of 2006 seeking to quash the

aforesaid Government Order granting zonal exemption.

6. After this court admitted WP (C) No. 5956 of

2006 on 28.02.2006, the 5th respondent therein moved an

appeal dated 06.03.2006 before the Commissioner against

the decision of the Additional District Magistrate –

hereinafter, the “ADM” – granting No Objection Certificate

(hereinafter, “NOC”, for short) under the Petroleum Rules.

The Commissioner stayed that decision of the ADM and

ordered status quo to be maintained. WP (C) No.8090 of

2006 is filed by the franchisee and its managing partner

challenging that order of the Commissioner, which is

Ext.P8 in that case. An order prohibiting the

Commissioner from proceeding with that appeal is also

WPC.5956/06 & con.cases -: 4 :-

sought for.

7. WP (C) No.9811 of 2006 is filed by another

neighbour challenging Ext. P3 NOC granted by the ADM

and against which the Commissioner entertained an

appeal, as stated above. He also seeks a direction to the

Controller of Explosives not to grant licence to Reliance

and the franchisee under the Petroleum Rules, for the

proposed outlet.

8. When these matters, except the last among

them, were being heard, it was noticed that the power of

the Commissioner to sit in appeal over the decision of the

ADM under the Petroleum Rules is an issue arising for

decision and therefore, to facilitate expediency, it was

agreed that the rights of parties to prosecute the appeals,

against the NOC and the KLU Permission, before the

Commissioner could be given up without prejudice to

comprehensive contentions on facts on the merits of the

WPC.5956/06 & con.cases -: 5 :-

NOC and the KOU Permission in these writ petitions. This

was recorded in my order dated 21.03.2006 and the files,

including those relating to the appeals before the

Commissioner and those relating to grant of the NOC and

the KLU Permission have been called for and obtained. It is

in this context that WP (C) No.9811 of 2006 challenging

Ext. P3 NOC granted by the ADM is filed thereafter and

entertained.

9. On the basis of the pleadings and the arguments

advanced, the following issues arise for decision:

A. Is the Land Revenue Commissioner an appellate

authority over the decision of the ADM, to issue

NOC under the Petroleum Rules?

B. Is the decision of the ADM issuing NOC under the

Petroleum Rules liable to be set aside?

C. Are the decision of the Chief Town Planner

WPC.5956/06 & con.cases -: 6 :-

approving the layout of the petroleum outlet and

that of the Government granting zonal exemption

from the Town Planning Scheme, liable to be set

aside?

D. Is the decision of the District Collector granting

KLU Permission to the franchisee’s managing

partner and his co-owners, under the KLU Order,

liable to be interfered with?

E. Is the Controller of Explosives to be directed to

desist from granting licence, for the outlet in

question, to Reliance and the franchisee, under the

Petroleum Rules?

Issue A: Is the Land Revenue Commissioner an

appellate authority over the decision of the ADM, to

issue NOC under the Petroleum Rules?

10. Rule 144 of the Petroleum Rules, 2002 reads as

WPC.5956/06 & con.cases -: 7 :-

follows:

“144. No-objection certificate. – (1) Where

the licensing authority is the Chief Controller or the
Controller, as the case may be, an applicant for a
new licence other than a licence in Forms III,XI,XVII,
XVIII or XIX shall apply to the District Authority with
two copies of the site-plan showing the location of
the premises proposed to be licensed for a certificate
to the effect that there is no objection, to the
applicant receiving a licence for the site proposed
and the District Authority shall, if he sees no
objection, grant such certificate to the applicant who
shall forward it to the licensing authority with his
application Form IX.”

Per this Rule, the authority to issue certificate is the

District Authority and the Chief Controller or the

Controller may refer to the District Authority, any

application for licence, received without NOC. Rule 144

(5) shows the legislative intent that the NOC be issued

expeditiously. Even if the District Authority is of the

opinion that the licence applied for should not be

WPC.5956/06 & con.cases -: 8 :-

granted, there is no absolute embargo, in the sense that

licence could then be granted only with the sanction of

the Central Government.

11. By virtue of Rule 2 (1) (x), “District Authority”

means –

(a) in towns having a Commissioner of Police, the

Commissioner or a Deputy Commissioner of Police;

(b) in any other place, the District Magistrate.

Rule 2 (1) (xi) provides that “District Magistrate” means

and includes an Additional District Magistrate and in

the States of Punjab and Haryana and in the Karaikal,

Mahe and Yenam areas of the Union Territory of

Pondicherry, also includes a Sub-divisional Magistrate.

12. Chapter VII dealing with licences, to which

Rule 144 belongs, provides Rule 154 affording right to

appeal in situations enumerated therein. It does not

WPC.5956/06 & con.cases -: 9 :-

provide a right of appeal against the grant of NOC,

which could have been provided, were it intended. Sub-

rule 2 of Rule 154 provides for an appeal against any

order of the District Authority refusing to grant or

cancelling an NOC. Therefore, there is an implied but

clear exclusion of an appeal against the grant of NOC.

The Rules, by themselves, therefore, provide the

conclusion that no appeal is provided against the grant

of NOC.

13. Petroleum Rules are statutory rules. When

the appropriate District Authority, identifiable by virtue

of Rules 2 (1) (x) and 2 (1) (xi) thereof, acts under Rule

144, he is discharging statutory functions under those

Rules. A decision granting NOC, cannot be interfered

with by the Commissioner for the simple but strong

reason that no right of appeal is conferred under the

Petroleum Rules or the Petroleum Act against the grant

of NOC. Those who have filed the appeal before

Commissioner have not shown before me any statutory

WPC.5956/06 & con.cases -: 10 :-

provision, by way of primary legislation or subordinate,

providing any such appellate power with the

Commissioner or any other authority. Nor have I been

able to see any. In the absence of any such provision, the

decision of the ADM granting NOC under the Petroleum

Rules is not appealable and no such appeal lies before

the Commissioner.

14. There is one more aspect. Rules 144, 2 (1) (x)

and 2 (1) (xi), read together would show that the

Authority to decide on a request for NOC is legislatively

chosen. Rule 161 provides that every authority, other

than the Central Government, acting under Chapter VII,

shall perform its duties subject to the control of the

Central Government. Even in the matter of exercise of

their powers as Executive Magistrates, the District

Magistrate, ADM or SDM, are not authorities

subordinate to the Commissioner. Therefore any

assumption of authority to sit in appeal, on the ground

that those officers, having regard to their other duties

WPC.5956/06 & con.cases -: 11 :-

and responsibilities, may be revenue officials under the

control of the Commissioner, would be wholly

misconceived.

15. For the aforesaid reasons, it is held that the

Land Revenue Commissioner has no power to entertain

any appeal against the grant of NOC by the District

Authority under Rule 144 of the Petroleum Rules, 2002.

As a consequence, Ext. P8 in WP (C) No.8090 of 2006 is

liable to be quashed and the Land Revenue

Commissioner cannot proceed with the appeal in which

that order has been issued.

Issue B: Is the decision of the ADM issuing NOC

under the Petroleum Rules liable to be set aside?

16. The Petroleum Act, 1934 is an enactment to

consolidate and amend the law relating to the import,

transport, storage, production, refining and blending of

petroleum. Among other things, it classifies petroleum into

WPC.5956/06 & con.cases -: 12 :-

different classes on the basis of “flash point”, as defined in

section 2(c) of that Act. Section 4 enjoins on the Central

Government to make rules for the import, transport and

storage of petroleum. Section 3 provides prohibition against

import, transport and storage of petroleum, save in

accordance with the rules made under Section 4. Sub-sections

(1) and (2) of Section 5 make similar provision regarding

production, refining and blending. Sections 14, 21 and 22 in

Chapter II authorise making of rules to govern inspection,

sampling and tests. Section 29(1) provides the Central

Government with authority to make ancillary rules. The

Petroleum Rules, 2002 are made by the Central Government

in exercise of the aforesaid authority. Classified into twelve

chapters, with five schedules, including statutory forms, the

Petroleum Rules are extensive. The scientific knowledge

required for managing the arena of petroleum industry,

including storage and supply, have gone into the making of

those Rules. The Petroleum Act clearly prohibits activities

relating to petroleum, except in accordance with the Rules

made under that Act. The Petroleum Rules are therefore

WPC.5956/06 & con.cases -: 13 :-

exhaustive. Hence, while it has to be ensured that those Rules

are scrupulously followed, subject to the limited and

regulated power in Rule 201, to exempt, it is also totally

impermissible to take into consideration anything not

provided for by those Rules, while deciding the issue of grant

or renewal of licence under those Rules. This includes the

arrival at a decision as to whether there is any objection to

the grant of NOC.

17. When an applicant for a new licence applies to the

District Authority, with two copies of the site plan, as enjoined

by Rule 144, showing the location of the premises proposed to

be licensed, for NOC, the District Authority shall grant such

certificate, “if he sees no objection”. The nature of authority

so exercised by the District Authority is to ensure that the

application conforms and satisfies the requisites for the grant

of licence under the Petroleum Rules. Even if NOC is not

refused, the power vests with the Central Government to

allow issuance of licence. Therefore, for the District Authority

to see, or not, any objection to grant NOC, that authority has

WPC.5956/06 & con.cases -: 14 :-

to confine his evaluation of the facts to be with reference to

the Petroleum Rules only. Nothing more, nothing less.

18. The aforesaid conclusion is also inescapable from

the point of view of the rights of the parties, as may be

referable to Part III of the Constitution. Right to life of the

immediate neighbour and those in the neighbourhood of a site

proposed for a petroleum outlet is sacrosanct and would fall

within Article 21. That right also includes the right to potable

water and the right against pollution. The rights of such

persons to property fall away from the pale of Part III and

would be within the gaze of Article 300A and governed by

statues and other laws. Article 19(1) (g) guarantees the right

to, among other things, carry on any occupation, trade or

business. That right is available to a citizen aspiring to deal

with petroleum. Being that material, it is put under statutory

control of the State by virtue of the Petroleum Act and the

Petroleum Rules, which also provide comprehensive

provisions as to licensing. While they would amount only to

reasonable restrictions on the fundamental right under Article

WPC.5956/06 & con.cases -: 15 :-

19(1) (g), of the applicant for licence, they provide the

necessary checks and balances between the fundamental

right to life of those in the neighbourhood and the

fundamental right of an intending licensee, to occupation,

trade or business, in the societal existence of the Nation,

under the canopy of constitutional governance and Rule of

Law.

19. So much so, comprehensive statute laws, including

rules, being available to regulate petroleum licensing, the

Authority to grant licence in terms of Rule 144 of the

Petroleum Rules shall grant NOC, unless he sees an objection

referable to the Petroleum Act and/or Petroleum Rules. A

person who has been refused NOC has a right of appeal under

Rule 154(2) of the Petroleum Rules. If the District Authority

intimates the Chief Controller or the Controller, as the case

may be, that licence sought for, should not, in his opinion, be

granted, such licence shall not be issued without the sanction

of the Central Government.

WPC.5956/06 & con.cases -: 16 :-

20. Reverting to the facts, no ground is pointed out by

the objecting neighbours, with reference either to the

Petroleum Act or the Petroleum Rules to sustain the

challenge to the NOC. So much so, the decision of the ADM,

issuing NOC under the Petroleum Rules, stands. The

challenge against it is repelled.

Issue C: Are the decision of the Chief Town Planner

approving the layout of the petroleum outlet and that

of the Government granting zonal exemption from

the Town Planning Scheme, liable to be set aside?

21. As per G.O.(Rt.)2268/05/LSGD dated 9-6-2005

(Ext.P6 in WP(C).No.7064/2006), the Government granted

zonal exemption for the petroleum outlet from the Town

Planning Scheme, subject to the conditions laid down therein.

By Order dated 14-7-2005, Ext.P5 in the said writ petition, the

Chief Town Planner approved the layout plan of the petroleum

outlet. These decisions are challenged principally on the

ground that there is no power with the Government to grant

WPC.5956/06 & con.cases -: 17 :-

individual exemptions from the zoning made by the Town

Planning Scheme.

22. On 22-4-2005, Thrissur Corporation issued Ext.P3

in WP(C).No.7064/2006 by which Reliance was informed that

petrol filling station can be permitted in residential area as a

restricted user but the site in question is included in area to

be acquired for residential use, as per the master plan under

the Detailed Town Planning Scheme for Kannankulangara,

hereinafter, “KDTPS”, for short. Therefore, the cause for

Reliance/franchisee moving the Government leading to the

issuance of the impugned decisions of the Government and

the Chief Town Planner regarding the KDTPS was the stand

of the Corporation that the KDTPS enjoins that the area in

question has to be acquired for residential use. In

O.P.No.5139/1994, a learned Judge of this Court had

opportunity to consider the effect of the Town Planning

Scheme in question, namely, KDTPS. It was noticed that in

spite of KDTPS being available, Thrissur Urban Development

Authority had no idea or funds for acquisition of the lands

WPC.5956/06 & con.cases -: 18 :-

covered by KDTPS at any point of time and the fact remains

that no acquisition steps were taken within the three years

period as provided by Section 33 of the Town Planning Act,

1108 (hereinafter referred to as the “Town Planning Act”)

under which the Scheme is framed. It is accordingly held

that it was not, therefore, open to the Development Authority

to invoke the restrictions in that Act and reject the request to

grant licence for constructions. After referring to the earlier

decision of this Court in the case of G.C.D.A. v.

Dr.M.Chandrasekhar [1994 (1) KLJ 512] and in Kunniyil

Hassan and another v. Secretary, Corporation of Calicut

and another [ILR 1997(1) Kerala 619], this Court directed

that the application for permission to construct building shall

be considered and permit issued without reference to any

such objection. The decision in O.P.No.5139/1994 was

followed by this Court in WP(C).No.30253/2004. I am in

complete agreement with the views expressed in those

judgments. Therefore, the mere assertion of the Thrissur

Corporation in Ext.P3 in WP(C).No.7064/2006 that the

building permit cannot be issued because it is included in an

WPC.5956/06 & con.cases -: 19 :-

area to be acquired for residential use, as per the KDTPS,

does not have any legal sanction and the same will not stand.

23. Now, the question is whether, if the application for

building permit could not have been refused on the ground

that the area in question was to be acquired for residential

use as per KDTPS, would Reliance or the franchisee require

any zonal exemption for the petroleum outlet. This question

arises because the issuance of the impugned decisions by the

Government and the Chief Town Planner were only on

account of Reliance or franchisee applying for such orders in

the light of the stand of the Corporation that building permit

cannot be granted because the site is part of the area to be

acquired for residential use, as per the KDTPS. As noticed

above, even the decision of the Corporation in Ext.P3 in WP

(C).No.7064/2006 is that a petrol filling station can be

permitted in a residential area as a restricted use.

24. This leads to certain arguments addressed on the

basis of the terms of the KDTPS. It was contended on behalf

WPC.5956/06 & con.cases -: 20 :-

of the persons challenging the impugned decisions that in

“Residential Use Zone”, only petrol filling stations engaging

not more than five workers would be permitted as a restricted

use. This contention is met by the learned counsel appearing

for the Reliance and franchisee that a proper interpretation of

the relevant provision in the KDTPS would show that such

restriction on the number of workers is only regarding auto-

garages and not for petrol filling stations. Advertence to the

KDTPS is necessary to resolve the said controversy.

25. Ext.P2 in WP(C).No.7064/2004 is a copy of KDTPS.

Clause 10.c.(1) of KDTPS deals with Residential Use Zone. It

reads as follows:

“(1) RESIDENTIAL USE ZONE

i. Uses permitted:

All residential buildings, including one or two

multi-family dwellings, apartment house and
flats, parks and playgrounds incidental to the
residential uses, public utility buildings such
WPC.5956/06 & con.cases -: 21 :-

as Water Supply, Drainage and electric

installations of a minor nature and small
service industries of non-nuisance character
engaging not more than 3 workers with
power limited to 3 H.P. or 6 workers without
power. Convenient shops such as vegetable
shops, groceries, pan-shops etc. will be
normally permitted.

ii. Uses restricted:

The following shall be permitted by the

responsible authority with the approval of the
Chief Town Planner:

Minor educational buildings, small

neighbourhood libraries and reading rooms,
community halls, police and fire stations,
small post offices, telegraph offices, small
banks, hostels, dormitories, small eating
houses not exceeding 150 sq.M floor, small
professional or commercial offices and clinics
of floor area not exceeding 100 sq.M., petrol
filling stations, small auto garages, engaging
not more than 5 workers and other non-
nuisance type service industries engaging not
more than 10 workers with power limited to
WPC.5956/06 & con.cases -: 22 :-

10 H.P. 20 workers without power and new

areas or buildings for religious uses.

Uses Prohibited:

All other uses not mentioned above.”

26. The restricted uses permitted in Residential Use

Zone can be permitted by the responsible authority with the

approval of the Chief Town Planner. Restricted uses which

can be permitted are enlisted in Clause 10.c.(1)(ii). A reading

of that clause, quoted above, would show that every item of

such restricted use gets an independent treatment in the

mode of presentation of that clause. The words “engaging not

more than 5 workers” occurring after the notation “,” after

the words “small auto garages” characterize only the small

auto garages and cannot be extended to take within its sweep,

petrol filling stations occurring before the notation “,” that

precedes the words “small auto garages”. The term “petrol

filling station” is also not prefixed by any adjective like

“small”. If the argument that the condition as to engagement

WPC.5956/06 & con.cases -: 23 :-

of not more than 5 workers is applicable to petrol filling

stations also is accepted, there is no reason why it should not

apply to all categories of uses enlisted as restricted uses

before the words “small auto garages”. If that were so,

educational buildings, police and fire stations, small post

offices, telegraph offices, small banks etc. could be run in a

residential area only with 5 workers. Therefore, the

reasonable and rational way to read the words “engaging not

more than 5 workers”, in the context of the notation “,”

occurring after the words “small auto garages” in Clause

10.3.(1)(ii) is that small auto garages, for being permitted as a

restricted use in a Residential Use Zone, would be only those

which engage not more than 5 workers. Such restriction

cannot be imported to the petrol filling stations. I may also at

once notice that in KDTPS, petrol filling stations are

permitted also in commercial zones, as restricted use, where

again I do not find it being prefixed with the adjective “small”.

Under such circumstances, I have no hesitation to conclude

that petrol filling station is a restricted use that can be

permitted in a residential use zone in terms of KDTPS

WPC.5956/06 & con.cases -: 24 :-

provided it is permitted by the responsible authority with the

approval of the Chief Town Planner. Therefore, the impugned

decisions of the Government and the Chief Town Planner

could have not the legal effect of granting any zonal

exemption, but amounts the only to the decision of the Chief

Town Planner in terms of Clause 10.c.(1)(ii) approving the

grant of permission by the responsible authority, which

approval has to precede the permission by the responsible

authority. Hence, on the basis of the impugned decisions of

the Chief Town Planner, the Municipal Corporation and the

Thrissur Development Authority are empowered and enjoined

in law to issue building permit to Reliance or the franchisee,

as the case may be. The question of the Government or the

Chief Town Planner exceeding jurisdiction and granting zonal

exemption to an individual does not arise in these cases and

therefore, the impugned decisions do not fall within the law

laid in the decisions of this Court in Shasthri Nagar Colony

Welfare Committee v. Calicut Development Authority

[2006 (1) KLT 294] or of the Division Bench of this Court in

Suresh Kumar v. Raveendran (ILR 2005 (4) Kerala

WPC.5956/06 & con.cases -: 25 :-

769]. The result of the aforesaid discussion is that the

impugned decisions of the Government and the Chief Town

Planner do not amount to granting the Reliance or the

franchisee any exemption from the KDTPS and the net result

of those decisions is only that the Chief Town Planner has

granted approval to the responsible authority to permit

Reliance/franchisee to put the land in question to use as a

petrol filling station. By the force of this judgment, the said

impugned decisions of the Government and the Chief Town

Planner (Exts.P6 and P5 in WP(C).No.7064/2006) will stand

trimmed and read down to the said effect and would not be

worth anything more.

Issue D: Is the decision of the District Collector

granting permission to the franchisee’s managing

partner and his co-owners, under the KLU Order, liable

to be interfered with?

27. Before proceeding to consider the merits of the

contentions on the basis of facts and the files which have been
WPC.5956/06 & con.cases -: 26 :-

called for in view of what is stated in paragraph 8 above, I

deem it appropriate to notice an issue of law that cropped up

during arguments.

28. Admittedly, the area in question is covered by the

KDTPS, a Scheme issued under the Town Planning Act. The

provisions of the Town Planning Act and a Scheme thereunder

provide a complete control over the lands to which the

Scheme relates, in so far as the nature of use to which those

lands can be put to, is concerned. The variation or revocation

of the Scheme can be only in terms of the Town Planning Act

and as already noticed, going by the decisions of this Court,

with which I am in complete agreement, the variation or

revocation can be only of the Scheme and there cannot be any

tinkering with the Scheme by the Government or any other

authority, on a case to case basis. The mere fact that the

acquisitions have not been made in accordance with the

Scheme does not take away the effect of the Scheme as far as

zoning on the basis of the use is concerned, though in the

absence of acquisition, it may not be open to the Municipal

WPC.5956/06 & con.cases -: 27 :-

authorities to refuse permit to build, but such constructions

have to be only in accordance with the zoning regulations in

the Scheme. If this is the effect of a Scheme, in the context of

the Town Planning Act, it can be immediately noticed that the

KDTP, except to the extent it provides for a Green Strip Area,

does not visualise or authorise the use of any other area

exclusively for planting trees and cultivation of cash crops. It

may be laudable that every available space should be utilised

for planting trees and making such similar cultivation which

would empower the environment and improve the quality of

the living environs. But any compulsion to put to exclusive

use for any agricultural operation, any part of the Residential

Use Zone or any other zone classified under a Town Planning

Scheme, apparently creates a contradiction. Going by the

terms of the KLU Order, which is issued under the Essential

Commodities Act,1967, the paramount object sought to be

achieved by that piece of subordinate legislation is to ensure

that agricultural operations and cultivations, as are made

compulsory by the KLU Order, are carried out to ensure

availability of essential commodities. The KLU Order deals

WPC.5956/06 & con.cases -: 28 :-

with utilisation of land for the purpose of cultivation of food

crops which includes the various items listed in Clause 2(b) of

that Order. If a particular area is exclusively under the

residential or commercial zone under the Town Planning Act

and Scheme, it does not reconcile to say, in the same breath,

that there can be no such user because the land is an

agricultural land to which KLU Order also applies.

29. The Town Planning Act is referable to Entry 20 of

List III in the Seventh Schedule in the Constitution, relating

to economic and social aims. Profitable reference can be

made in this regard to the decision of the Apex Court in

Maneklal Chhotalal v. M.G.Makwana (AIR 1967 SC

1373). Essential Commodities Act has, for its object, the

control of the production, supply and distribution in trade, of

essential commodities and is covered by Entry 33 of List III.

[See Municipal Corporation of Delhi v. Shiv Shanker

[1971 (1) SCC 442]. So much so, the Essential Commodities

Act and the Town Planning Act are referable to different

entries in the Concurrent List in the Seventh Schedule.

WPC.5956/06 & con.cases -: 29 :-

Reconciling the said two legislations in the backdrop of the

objects sought to be achieved by such legislations, it can be

easily noticed that it is not the intention of the Legislature to

enforce the provisions of the Essential Commodities Act or

any order issued thereunder in derogation of the legal effect

of the legislations relatable to Town Planning. If the Town

Planning Scheme lawfully notified in terms of Town Planning

Act enjoins on a citizen who owns or holds an item of land to

put that land only to a particular use in terms of that Act and

Scheme thereunder, he cannot also be compelled under the

Essential Commodities Act or any order issued thereunder,

including the KLU Order to put the said piece of land to a

particular use which would contradict his entitlement to use

the said land in terms of the Town Planning Act and the

Scheme. In this view of the matter, the KLU Order issued

under the Essential Commodities Act can have an impact in

an area covered by a Town Planning Scheme under the Town

Planning Act, if at all, only to the extent of those lands which

are identified as green strip areas or such other areas which

are exclusively earmarked in the Town Planning Scheme for

WPC.5956/06 & con.cases -: 30 :-

being put to use for cultivation. So much so, an area which is

a Residential Use Zone or for that matter, any area other than

the Green Strip Area under the KDTPS cannot be subjected to

the KLU Order. Hence, no permission under the KLU Order

is necessary for any activity of construction or use of any land

in the Residential Use Zone or any other zone in the KDTPS,

other than the Green Strip Area and the grant of permission

under the KDTPS, for such land, cannot be made dependent

upon any sanction under the KLU Order.

30. Be that as it may, adverting to File D.Dis-

30380/05/B1 of the Revenue Department in the District

Collector's Office, it can be seen that pages 14 and 15 of that

file contain the report of the Village Officer, countersigned by

the Additional Tahsildar. That report as well as the report of

the RDO at page 9 in that file would show that though the

land in question is shown in the revenue documents as wet

land “ (nilam)”, the same is barren without any

cultivation and cannot be put for cultivation. It is recorded

that the land adjacent to its west is filled up and there are
WPC.5956/06 & con.cases -: 31 :-

residential houses built in the immediate vicinity of the plot in

question. The RDO, on inspection, also found that the land on

the east is also barren and the land on the south is a coconut

garden and the land on the north is the public road. It is also

a matter of record that the objectors include persons who had

given written consent to the conversion of the land in

question. The files also contain the consent letters. However,

in the counter-affidavit filed by respondents 4 and 5 in WP(C).

No.5956/2006 they attempt to resile from their consent by

stating that consent for the conversion was given on the basis

that the conversion is only for residential use.

31. Clause 6 of the KLU Order enjoins that no holder of

any land, which has been under cultivation with any food crop

for a continuous period of three years immediately before the

commencement of the KLU Order, shall convert or attempt to

convert or utilise or attempt to utilise such land for the

cultivation of any other food crop or for any other purpose

except under and in accordance with the terms of a written

permission given by the Collector. This is the provision under

WPC.5956/06 & con.cases -: 32 :-

which the impugned order under the KLU Order was issued

by the Collector granting written permission imposing certain

terms on the owner of the land for conversion of the land. On

the basis of the materials on record, as already noticed, the

District Collector came to the conclusion that the land in

question can be permitted to put to use as sought for by the

owner. Jurisdictionally, such order need not depend upon the

consent of the neighbour. It also does not depend upon the

objection of the local authority. This is because the paramount

object sought to be achieved by the KLU Order issued under

the Essential Commodities Act is to ensure that those lands

which are put to use for the agricultural purpose of

cultivation of food crops which are enumerated in Clause 2(b)

of that Order are put to such use. The facts of the case in

hand disclose that the lands in question and the neighbouring

lands are not being cultivated and the neighbouring lands are

either left barren or converted to residential plots or coconut

gardens etc. It would not be out of context to refer to the

photographs produced along with the reply affidavit in WP(C).

No.5956/2006 which will disclose the existing buildings and

WPC.5956/06 & con.cases -: 33 :-

construction activities, as also the conversion of the utility of

the lands in the locality. Going by the materials on record, it

is abundantly clear that the Collector was fully justified in

issuing the impugned order under KLU Order and there

would not have been any reason for the appellate authority to

interfere with the said decision. I have considered the

materials with particular reference to the files and have come

to the aforesaid conclusion because of the consensus on the

basis of which these matters have been heard as stated in

paragraph 8 above.

Issue E: Is the Controller of Explosives to be

directed to desist from granting licence, for the outlet

in question, to Reliance and the franchisee, under the

Petroleum Rules?

32. Having regard to the findings under Issues A to D,

I do not find any ground to issue any direction to the

Controller of Explosives to desist from granting the licence for

the petroleum outlet in question. Issue E is, therefore,

WPC.5956/06 & con.cases -: 34 :-

answered against the objectors.

33. In the result,

(i) Ext.P6 in WP(C).No.5956/2006 is vacated and the

appeal in which that order was issued by the Land Revenue

Commissioner would stand disposed of by this judgment

rejecting the same and confirming the order issued by the

District Collector under the KLU Order,

(ii) WP(C).No.7064/2006 challenging the decisions of

the Government and the Chief Town Planner (Exts.P6 and P5

therein) and WP(C).No.7148/2006 are dismissed, subject to

what is stated in paragraph 26 above.

(iii) WP(C).No.8090/2006 is allowed quashing Ext.P8

decision of the Land Revenue Commissioner staying the

decision of the ADM granting NOC under the Petroleum

Rules.
WPC.5956/06 & con.cases -: 35 :-

(iv) WP(C).No.9811/2006 is dismissed affirming Ext.P3

NOC granted by the ADM under the Petroleum Rules.

No costs.

THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/-