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2017 DIGILAW 453 (KER)

Biji Francis v. State of Kerala

2017-03-02

A.M.BABU, P.R.RAMACHANDRA MENON

body2017
JUDGMENT : P.R.RAMACHANDRA MENON, J. 1. Interference declined by the learned Single Judge, in respect of the challenge raised against Ext.P10 order passed by the Chief Town Planner and Ext.P13 order passed by the Government with regard to the request made by the petitioner/appellant for running an LPG agency allotted by the fifth respondent, is the subject-matter of challenge in this appeal. 2. Heard Sri.T.A.Shaji, the learned Senior Counsel appearing for the appellant, Sri.M.Gopikrishnan Nambiar, the learned Standing Counsel appearing for the fifth respondent Company and the learned Government Pleader appearing on behalf of the respondents 1 to 3. 3. The sequence of events shows that the appellant came to be identified by the fifth respondent Company for allotment of LPG distributorship. Ext.P1 is the 'Letter of Intent' issued by the fifth respondent. For running the godown, the property having an area of 19.17 Ares was identified. It is stated that the appellant has obtained clearance from all sectors, including Ext.P3 NOC issued by the Divisional Officer, Fire and Rescue Services. It is stated that necessary licence from the Local Authority in respect of the 'hazardous occupancy' is to be obtained, besides obtaining necessary clearance from the Pollution Control Board adding that steps in this regard are being pursued. At the same time, the appellant had to obtain 'Layout approval' and necessary proceedings were filed before the second respondent in this regard. Observing that the property was not having a pathway of requisite width, in terms of Rule 61 (4) of the Kerala Panchayat Building Rules, approval came to be turned down as per Ext.P10; which was sought to be challenged by approaching the Government as per Ext.P11, in terms of Rule 152 of the Kerala Panchayat Building Rules. Since no timely action was taken, the appellant approached this Court by filing WP(C) No.14255/2016, which was disposed of as per Ext.P12 judgment dated 8.4.2016, directing the first respondent/Government to consider and finalize the said proceedings within a time frame. It was pursuant to said verdict, that the matter was considered by the Government, leading to Ext.P13 order dated 4.6.2016. 4. It was pursuant to said verdict, that the matter was considered by the Government, leading to Ext.P13 order dated 4.6.2016. 4. It is relevant to note that the defect pointed out by the Chief Town Planner was sought to be cured by the appellant, by procuring the nearby property situated along the side of the pathway leading to the property in question (having an extent of 6.07 Ares, which belongs to Marikkal Sree Bhagavathi temple), by way of a registered lease executed for a period of 15 years. A copy of the lease deed has been produced along with the writ petition as Ext.P7. However, the Government, while passing Ext.P13 order, observed that as per the existing provisions, it was not possible to consider 'lease' and further that the 'lease' could be cancelled at any time and hence the layout approval could not be granted. It was challenging Ext.P10 and Ext.P13, that the petitioner approached this Court by filing WP(C) No.20667/2016. After hearing, the learned Single Judge declined interference with the stand taken by the Chief Town Planner and the Government, in so far as there was no challenge with regard to the Rule position. This, in turn, is under challenge in this appeal. 5. There is no dispute with regard to the Rule which stipulates that the pathway leading to the property should be having a width of 7 meters'. The stipulation in this regard is very vital, in so far as the item to be stored in the premises is 'LPG cylinders', which involves a high security risk. The main purpose of providing pathway of adequate width, is to ensure that in case of any emergency, the Fire and Rescue Authorities could rush in with all necessary infrastructure to deal with the situation, meeting the need of the hour. It is not for mere access to the vehicles carrying the cylinders coming in and going out or for the convenience of the customers. The pathway leading to the property should be kept clear always, without causing any vehicle to be parked or blocking the access. The entire access of 7 meters should be thrown open at all times and as such, even if the nearby property is taken on lease it has to be ensured that the purpose is served at all times. Scrutiny has to be made in the said background. 6. The entire access of 7 meters should be thrown open at all times and as such, even if the nearby property is taken on lease it has to be ensured that the purpose is served at all times. Scrutiny has to be made in the said background. 6. There is a clause in Ext.P7 lease deed, that although it is executed for a period of 15 years, it is possible to be terminated by either side, on issuing one month's notice. It was in the said circumstance, that the Government observed in Ext.P13, that it could not be treated as a valid and acceptable document to grant 'layout approval' which stand has been upheld by the learned Single Judge. We do not find anything wrong in this regard. 7. The learned Senior Counsel appearing on behalf of the appellant, submits that steps are being taken to modify the relevant clause, which now stands adverse to the interest of the petitioner/appellant and that a minimum tenure will be caused to be incorporated therein, so as to safeguard the interest of all concerned. It is also stated that the appellant will confine the relief only to the said extent, adding that appropriate provision could be incorporated in the approval to be given and that it could be added in the licence to be issued (based on such approval) as part of the conditions to be complied with. 8. In the above circumstances, the appeal is disposed of without prejudice to the rights and liberty of the appellant to have a proper lease deed executed, satisfying the above requirements in accordance with law and to have it presented before the second respondent for fresh consideration. On submission of the relevant proceedings in this regard, the matter shall be considered afresh by the second respondent in accordance with law, after affording an opportunity of being heard to the appellant and others concerned, if any. The proceedings shall be finalised at the earliest, at any rate, within 'one month' from the date of production of the relevant deed as above. Ext.P10 and Ext.P13 will stand modified to the said extent. The appellant shall also produce a copy of the judgment along with a copy of the appeal containing a full text of the proceedings before the second respondent for further steps. The writ appeal is disposed of as above.