IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 WP(C).No. 24256 of 2010(F) ---------------------------------------- PETITIONER(S): -------------------------- INAIAN OIL CORPORATION LIMITED, COCHIN LPG IMPORT TERMINAL, INDANE MOUND, NEAR VYPIN LIGHT HOUSE, PUDUVYPU.P.O., KOCHI-682 508, REPRESENTED BY ITS SENIOR MANAGER (LPG ENGINEERING) & PROJECT IN-CHARGE MR.MOHAN B.NAIR. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE ELAMKUNNAPUZHA GRAMA PANCHAYAT, MALIPPURAM.P.O-682 511, REPRESENTED BY ITS SECRETARY. 3. THE COCHIN PORT TRUST, WILLINGDON, ISLAND, COCHIN-9, REPRESENTED BY ITS SECRETARY. 4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS DEPARTMENT OF SHIPPING, CENTRAL SECRETARIAT, NEW DELHI-1. tss W.P.(C NO.24256/2010 *ADDL. R5 & R6 IMPLEADED. 5. K.S.MURALI, S/O.SUNDARAN RESIDING AT KANNAN VEETTIL HOUSE, PUTHUVYPU P.O., KOCHI TALUK, ERNAKULAM DISTRICT. 6. JAYAGHOSH M.B., CHAIRMAN, LPG. TERMINAL VIRUDHA JANAKEEYA SAMARA SAMITHY, MARAKKAPARAMBIL HOUSE, MALIPPURAM.P.O KOCHI TALUK, ERNAKULAM DISTRICT. *ADDITIONAL R5 TO R6 ARE IMPLEADED AS PER ORDER DTD. 7.7.11 IN IA. 9146/2011. R1 BY GOVT. PLEADER R2 BY ADV. SRI.S.SHANAVAS KHAN R3 BY ADVS. SRI.K.ANAND (A.201), SMT.LATHA KRISHNAN. R4 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R5 & R6 BY ADV.SRI.T.I.DANIEL, SRI.SHINDO VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.24256/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DTD. 23.6.2008 ADDRESSED TO THE PETITIONER BY THE DEPUTY SECRETARY OF THE 3RD RESPONDENT PORT. P2:- COPY OF THE DOCUMENT DTD. 5.7.2010 RELATING TO CLEARNACES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(a):- COPY OF THE DOCUMENT DTD. 21.5.2009 RELATING TO CLEARANCES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(b):- COPY OF THE DOCUMENT DTD. 29.10.2009 RELATING TO CLEARANCES, APPROVALS, CONSENT, NOC, REGISTRTION ETC. P2(c):- COPY OF THE DOCUMENT DTD. 28.7.09 RELATING TO CLEARANCES APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(d):- COPY OF THE DOCUMENT DTD. 9.12.09 RELATING TO CLEARNACES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(e):- COPY OF THE DOCUMENT DTD. 16.3.2010 RELATING TO CLEARANCES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(f):- COPY OF THE DOCUMENT DTD. 9.12.2009 RELATING TO CLEARANCES, 9.12.09 RELATING TO CLEARANCES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(g):- COPY OF THE DOCUMENT DTD. 25.2.2010 RELATING TO CLEARANCES, APPROVALS, CONSENT, NOC, REGISTRATION ETC. P2(h):- COPY OF THE DOCUMENT DTD. 3.11.2008 RELATING TO CLEARANCES, APPROVALS, CONSENT NOC, REGISTRATION ETC. P3:- COPY OF THE NOTICE DTD. 23.10.2009 ALONG WITH THE ORDER. P4:- COPY OF THE LETTER DTD. 2.11.2009 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT PANCHAYAT. P5:- COPY OF THE LETTER ADDRESSED BY THE PETITIONER TO THE PANCHAYAT DTD. 23.3.2010. P6:- COPY OF THE CERTIFICATE DTD. 16.3.2010 ISSUED BY THE COCHIN PORT. P7:- COPY OF THE GAZETTE NOTIFICATION DTD. 21.6.2006 ISSUED IN THIS REGARD BY THE CENTRAL GOVERNMENT. P8:- COPY OF THE SKETCH SHOWING THE AREA THUS NOTIFIED BY THE CENTRAL GOVERNMENT. tss W.P.(C) NO. 24256/2010 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE COMMUNICATION DTD. 12.3.2009 ISSUED BY MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE TO M/S. BHARAT PETROLEUM CORPORATION LIMITED. R2(a):- COPY OF THE COMMUNICATION DTD. 132.3.09 ISSUED BY MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COM ERCE TO M/S. BHARAT PETROLEUM CORPORATION LIMITED. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.24256 Of 2010 ---------------------- Dated this the 13th day of July, 2011. J U D G M E N T The writ petition is field seeking to quash Ext.P3 notice and to declare that Ext.P3 notice is void in law, being ultravires the provisions of the Kerala Municipality Building Rules and unconstitutional. The petitioner, namely, Indian Oil Corporation Limited, is a Government of India Company engaged in the business of refining and marketing of petroleum products. It is averred in the writ petition that for the purpose of establishment of an energy port at Cochin Port, facilitating establishment of energy related infrastructure which currently includes an LNG Terminal, a Crude Oil Tank Farm connected to the Single Buoy Mooring Point, Cochin Port allotted 283 acres of land. The petitioner further alleged that the said 283 acres of land belonging to the Cochin port at Puduvype has been declared as a Special Economic Zone (SEZ) with Cochin Port Trust as the developer. It is averred in the writ petition that the LPG Import Terminal Facility envisages establishment of facilities for storage and despatch of imported LPG. The Cochin Port Trust, as per ::2:: W.P.(C).No.24256 Of 2010 Ext.P1 communication dated 23.6.2008, allotted an area of 15 hectors of land at Puduvype to the petitioner for setting up the LPG storage facility. Pursuant to Ext.P1 notification the petitioner took possession of the land. For the said purpose the petitioner also obtained the following statutory clearances. i) Environmental and CRZ clearances from the Ministry of Environment and Forests, Government of India. ii) Approval for layout and facilities by Petroleum and Explosives Safety Organisation (PESO), Nagpur. iii) Site appraisal Clearance from the Government of Kerala. iv) Consent to establish under Air and Water Act from the Kerala State Pollution Control Board. v) Recommendation for CRZ Clearance from the Kerala State Coastal Zone Management Authority. vi) NOC from Local Authority (Cochin Port Trust) for construction. vii) NOC from the Southern Naval Command. viii) Approval for site clearance from the Social Forestry Division, ministry of Forests and Wildlife, Government of Kerala. ix) Registration under the Contract Labour Act by Regional Labour Commissioner (Central). ::3:: W.P.(C).No.24256 Of 2010 True copies of the clearances, approvals, consent, NOC, Registration etc. are and marked as Exts.P2 to P2(h). 2. In 2009, the petitioner commenced construction of a compound wall. While the construction of the compound wall was going on, the petitioner received a notice issued by the 2nd respondent Panchayath informing the petitioner that the construction activity undertaken is in violation of the provisions of the Kerala Municipalities Act and Municipalities Building Rules and further directed to show cause why action should not be taken under the Act for the alleged violation of the Municipality Building Rules. Ext.P3 also directed the petitioner to stop all construction activities. Ext.P3 is under challenge. 3. The contention raised in the writ petition is that Rule 9 of the Kerala Municipality Building Rules exempts operational constructions of Major Ports from the Rules. According to the petitioner, Cochin Port Trust is a SEZ area in Puduvype, the property falls within the limits of Cochin Port Trust, which is a local authority under the Major Port Trust Act and that the petitioner has been permitted by the Port to set up the LPG ::4:: W.P.(C).No.24256 Of 2010 Import Terminal with allied facilities at the designated land allotted to them. The Cochin Port Trust issued a certificate dated 16.3.2010 certifying that the SEZ area at Puduvype falls under the limits of Cochin Port Trust. The administration, control and management of the Cochin Port Trust is governed by the provisions of the Major Port Trust Act. In Ext.P6 it is stated that the petitioner has been permitted by the Cochin Port Trust to set up the LPG Import Terminal with the allied facilities at the designated land allotted to them at Puduvype. 4. In the writ petition it is also contended that the Cochin Port Trust is a notified Port under the Major Port Trusts Act, 1963, enacted by the Parliament under Entry 27, List I of the VII Schedule to the Constitution of India with the power to legislate on matters relating to Major Ports falls within the legislative power of the Union of Parliament, that the Major Port Trusts Act, 1963, enacted in this regard regulates the entire administration, control and management of the Port and also stipulates the powers of the Port Trust and therefore, the State Legislature has no power to legislate on Major Port coming under Entry 27 of List ::5:: W.P.(C).No.24256 Of 2010 I. This contention and other contentions urged except the applicability of Rule 9 of the Kerala Municipality Building Rules does not arise for consideration in this writ petition. 5. It is the case of the petitioner that 15 hectors of land allotted to the petitioner by the Cochin Port Trust is within the port area. The activity for which the land was allotted is for the establishment of a LPG Import Terminal. According to the petitioner, the facilities for setting up the LPG Terminal is an operational activity exempted from the provisions of the Kerala Municipality Building Rules. The petitioner submits that the setting up of the LPG Import Terminal facilities within the port area is an operational construction of the Central Government for the operation, maintenance, development and execution of services provided by Major Ports. Therefore, Rule 9 of the Kerala Municipality Building Rules specifically exempts the operational construction undertaken by the petitioner from the provisions of the Kerala Municipality Building Rules. Learned Senior counsel for the petitioner also referred to Rule 2(ax) of the Kerala Municipality Building Rules which defines operation construction ::6:: W.P.(C).No.24256 Of 2010 and Sections 35(2)(b), 42(1)(b), 42(3), 42(3)(A) of the Major Port Trusts Act in support of the contention, that the petitioner has got every right to undertake every activity in the property allotted to them by the Cochin Port Trust. Sections 35 & 42 are pressed into service in support of their contention that the work undertaken by the petitioner is pursuant to the agreement entered into between the petitioner and the Cochin Port Trust. It is also pointed out that Section 42(1)(b) r/w Sections 42(3) and 42(3)(A) enables the Cochin Port Trust can either to undertake the setting up of the project directly or through other authorities like the petitioner. 6. The State of Kerala and the Panchayath filed separate counter affidavits. According to the contesting respondents, the petitioner started construction without conducting any detailed study with respect to the environmental impact that would be caused by the project, that the area in which the construction is carried out is a thickly populated area and which will cause danger to the local inhabitants. It is contended that the petitioner failed to prefer an application before the Panchayath ::7:: W.P.(C).No.24256 Of 2010 seeking permission to start the construction of the compound wall which is mandatory as per Rule 97 of the Kerala Municipality Building Rules, 1999. The crux of the contention raised by the contesting respondents is that the construction carried out by the petitioner is illegal and therefore the Panchayath issued stop memo directing the petitioner to show cause as to why action should not be taken against Ext.P3 notice. They have also issued directions not to continue the work carried on in the premises. According to the contesting respondents, the petitioner is not entitled to commence or carry out construction activities in the premises without obtaining building permit. In short, the contesting respondents took the stand that the petitioner will not come under the exempted category and Rule 9 of the Kerala Municipality Building Rules is not attracted. In the counter affidavit filed by the State Government it is stated that the what are exempted as per Rule 9 of the Rules are only the operational activities carried on by major ports and that the petitioner is neither a major port nor has undertaken any activity for and on behalf of major ports and therefore they cannot claim exemption ::8:: W.P.(C).No.24256 Of 2010 under Rule 9 of the Kerala Municipality Building Rules. 7. The learned Senior Counsel for the petitioner submits that the project, namely, LPG Import Terminal facility, is a requirement of major ports and that the project is an activity of the Cochin Port Trust which is one of the Major Ports in India and which is being carried out through the petitioner by allotment of the property and assigning the work by bipartite agreement between the parties. In short, the learned counsel submits that the petitioner has undertaken the project which is one of the major operational activity of the Cochin Port Trust. 8. The short question posed for determination in this writ petition is as to whether the petitioner is duty bound to approach the Panchayath for the issuance of a building permit. The definite stand taken by the petitioner is that their activity is exempted from the provisions of the Kerala Municipality Building Rules. Therefore, they have commenced the construction without approaching the Panchayath. Panchayath on noticing the commencement of the construction, straight away issued Ext.P3 notice. In Ext.P3 notice itself, the Panchayath directed the ::9:: W.P.(C).No.24256 Of 2010 petitioner not to continue the construction without obtaining permit. The question raised is as to whether the activity undertaken by the petitioner is exempted under the provisions of the Kerala Municipality Building Rules. Without affording an opportunity to the petitioner to state their case, the Panchayath, in fact, decided the issue by issuing Ext.P3 notice taking the stand that it is not permissible for the petitioner to make constructions within the port area without permission from the Panchayath. In the facts and circumstances of the case, if the contention of the petitioner is sustainable they need not approach the Panchayath nor apply for a building permit. In such circumstances, the Panchayath ought to have heard the petitioner before issuing Ext.P3 notice. The Panchayath, being a local authority, shall consider the contention of the petitioner as to whether Rule 9 of the Kerala Municipality Building Rules is attracted in this case. If Rule 9 is attracted, the petitioner need not apply for building permit and if Rule 9 is not applicable, they are not justified in making construction without obtaining building permit. ::10:: W.P.(C).No.24256 Of 2010 9. In these circumstances, Ext.P3 notice is quashed. There will be a direction to the 2nd respondent Panchayath to issue notice to the petitioner fixing the date of hearing and pass orders in accordance with law, after considering the contentions of the petitioner. The petitioner is at liberty to file a detailed objection raising all the contentions available to them for the purpose of deciding the question of exemption under Rule 9 of the Kerala Municipality Building Rules. All other contentions raised in the writ petition are left open. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-