Partly allowed

Mohammed Hussain M.K v. Town Planner Office of the Chief Town Planner

Kerala HC29 Jun 2016WP(C)/504/2016

Case brief

AI extract

What is this about?

Writ petitions challenging a stop memo issued by a Grama Panchayat regarding an LPG godown establishment. The court held that since the godown is beyond the objectionable distance, a No Objection Certificate from the adjoining owner is not required, and the stop memo cannot proceed. Petition in favour of the petitioner was allowed; petition against the neighbour was dismissed.

What did the court decide?

Stop memo issued by the Panchayat cannot be proceeded with as the godown is beyond the objectionable distance.

Mohammed Hussain M.K Vs Town Planner Office of the Chief… — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938

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WP(C).No. 504 of 2016 (K)

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PETITIONER(S):

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MOHAMMED HUSSAIN M.K., AGED 56 YEARS, S/O. KUNJIKOYA, MALIYAKKAL HOUSE, TALIKULAM P.O., PUTHIYANGADI, THRISSUR - 680 569.

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BY ADVS.SRI.RAJIT,

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SMT.V.VIJITHA.

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RESPONDENT(S):

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1. TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM - 695 033.

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2. INDIAN OIL CORPORATION LTD., PANAMPILLY NAGAR, COCHIN - 682 036, REPRESENTED BY ITS CHIEF AREA MANAGER.

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3. TALIKULAM GRAMA PANCHAYAT, TALIKULAM P.O., THRISSUR - 680 569.

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ADDL. R4 IMPLEADED

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4. RAHIDA, AGED 39 YEARS, W/O. ABDUL RAHMAN, UPPATTU HOUSE, THALIKULAM P.O., PUTHIYANGADI, THRISSUR DISTRICT-680 569.

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*** ADDL. R4 IS IMPLEADED AS PER ORDER DATED 29/06/2016 IN I.A. NO.6818/2016.**

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R1 BY GOVT. PLEADER SRI.P.M. SANEER. R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SRI.P.GOPINATH, SRI.P.BENNY THOMAS, SRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS. R3 BY ADV. SRI.K.I.SAGEER. BY ADV. SRI.G.SREEKUMAR (CHELUR).

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2016, ALONG WITH WP(C).NO.37991 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 504 of 2016 (K)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 - A TRUE COPY OF THE OBJECTION CERTIFICATE DTD. 21.08.2015 ISSUED BY THE DIVISIONAL OFFICER, PALAKKAD.

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P2 - A TRUE COPY OF THE CONSENT TO ESTABLISH ALONG WITH THE LOCATION PLAN.

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P3 - A TRUE COPY OF THE NO OBJECTION LETTER DTD. 27.02.2015.

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P4 - A TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 3RD RESPONDENT.

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P5 - A TRUE COPY OF THE ORDER NO. C2/6329/2015/D.DS DTD. 27.07.2015.

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P6 - A TRUE COPY OF THE JUDGMENT DTD. 11.11.2010 IN WPC NO.33984/2010.

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P7 - A TRUE COPY OF THE JUDGMENT DTD. 17.01.2014 IN WPC NO. 856/2014.

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P8 - A TRUE COPY OF THE JUDGMENT DTD. 02.09.2014 IN WPC NO. 23120/2014.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K. VINOD CHANDRAN, J.

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

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W.P.(C) Nos.37991/2015 & 504/2016

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

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Dated this the 29^th day of June, 2016

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J U D G M E N T

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Petitioners in both writ petitions have rival contentions with respect to Liquid Petroleum Gas (LPG) godown which is sought to be established by the petitioner in W.P.(C) No.504/2016 in a property adjoining the other petitioner's land, wherein she along with her family resides.

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Sri. Mohammed Hussain, the person who intends to establish the LPG godown, in his writ petition, has produced Ext.P1 No Objection Certificate from the office of the Divisional Officer, Fire and Rescue Services Department, Ext.P2 consent to establish the godown issued by the Kerala State Pollution Control Board, Ext.P3 approval from the Petroleum and Explosive Safety Organisation and Ext.P4 building permit of the Talikulam Grama Panchayat. The petitioner therein is concerned with Ext.P5 order passed by the Town Planner specifically condition No.10 which is extracted hereunder:

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W.P.(C) Nos.37991/2015 & 504/2016 - : 2 :-

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“10. ÈßVgß×í¿ çÉïÞGßçÈÞ¿í çºVKí µß¿AáK çÉïÞGßÈáUßW ÈßÜÕßW Õà¿áµ{áæICßW ¿ß ÕàGá¿ÎØíÅøáæ¿ ®X.².Øß. ÙÞ¼øÞçAIÄÞÃí.”

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The petitioner obviously does not have a No Objection Certificate (NOC) from his adjoining plot owner. Petitioner relies on Exts.P6 to Ext.P8 judgments to contend that there is no distance rule prescribed in any of the enactments as found by this Court and hence there cannot be any insistence for NOC.

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Smt. Rahida, the petitioner in W.P.(C) No. 37991/2015 on the other hand, contended that, there is a specific condition prescribed and in such circumstances, no reliance can be placed on the judgments produced by Sri. Mohammed Hussain. The specific contention raised is based on Rule 52 which speaks of the particulars of licence which are to be issued as per the forms specified under the rules. Form F under the Gas Cylinders Rule 2004 is the form in which the license has to be issued which has many conditions prescribed therein, which are mandatory as per the rules. The specific ground raised is based on condition 5 which is extracted hereunder:

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“The following distances shall be kept clear at all times, between any building, public place, public road or any adjoining property which may be built upon and the storage shed used for the storage of liquefied petroleum gas cylinder : ”

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W.P.(C) Nos.37991/2015 & 504/2016 - : 3 :-

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*Quantity of* *compressed gas in* *cylinder*		*Minimum distance to* *be kept clear*
	Kg.	Metres
0	100	-
101	2000	3
2001	3000	4
3001	4000	5
4001	6000	6
6001	8000	7
8001	10000	8
10001	12000	9
12001	20000	12
Over	20000	15

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Smt. Rahida's contention is that what would be applicable to

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Mohammed Hussain for establishment of his LPG godown is the distance rule as applicable, to the quantity of compressed gas between 12001 to 20,000 Kg, which is 12 meters. This has also to

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be applied from the boundary of the adjoining property. Relying on Ext.P8, it is contended that the LPG godown is erected within the objectionable distance.

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Ext.P1 produced in W.P.(C) 504/2016, indicates that the petitioner has been permitted storage of 12,000 Kg of LPG, at a time, in bottled cylinders. The distance rule as applicable under condition 5 of Form F under the rules of 2004 would be that between 10,001 to 12,000 Kg quantity which is 9 meters. A mere

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W.P.(C) Nos.37991/2015 & 504/2016 - : 4 :-

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look at Ext.P8 would indicate that the proposed godown is situated

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10.2 meters from its boundary; i.e. boundary of the adjoining property owned by Smt. Rahida.

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In such circumstances, the challenge against condition No.10 in Ext.P5 in W.P.(C) No.504/2016 would have to be sustained, since NOC as specified in the Rules would be required only if the godown is within the objectionable distance from the boundary of the adjoining property. As indicated by the sketch approved by the Pollution Control Board itself; appended along with Ext.P7 the godown is beyond the objectionable distance. There should be no impediment in granting license. In such circumstances, the stop memo issued by the Panchayat produced as Ext.R6(c) cannot be proceeded with. The Panchayat would be entitled to ensure that all other conditions and sanctions have been obtained by Mohammed Hussain before proceeding with the matter.

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W.P.(C).No.504/2016 stands allowed and W.P.(C) No.

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37991/2015 would stand dismissed. No costs.

Sd/-

K. VINOD CHANDRAN ,

Judge

al/-

Mohammed Hussain M.K v. Town Planner Office of the Chief Town Planner

Case brief

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Mohammed Hussain M.K v. Town Planner Office of the Chief Town Planner

Case brief

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