IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 6986 of 2011(W) --------------------------------- PETITIONER(S): ------------------- ANNIE KURUVILA, W/O. KURUVILA, AGED 49, ADIPUZHA HOUSE, MAMAKULAM, KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DIST. BY ADVS. SRI.C.S.MANILAL SRI.K.VIDYASAGAR SRI.S.NIDHEESH RESPONDENT(S): -------------------- 1. THE DISTRICT COLLECTOR, PATHANAMTHITTA-689 645. 2. THE ADDITIONAL DISTRICT MAGISTRATE, PATHANAMTHITTA-689 645. 3. THE VILLAGE OFFICER, KOTTANGAL, PATHANAMTHITTA-686 547. 4. THE INDIAN OIL CORPORATION, REP. BY SENIOR DIVISIONAL RETAIL SALES MANAGER, GROUND FLOOR, PREMIER PARK, INCHAKAL BYEPASS ROAD, VALLAKADAVU, THIRUVANANTHAPURAM-695 008. 5. A.V.JOSEPH,ADIPUZHA HOUSE, MAMAKULAM, KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, PIN-686 547. R1 TO R3 BY GOVT. PLEADER SRI. HANILKUMAR R4 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH R-5 BY ADV. SRI.P.V.CHANDRA MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.6986/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER OF THE INDIAN OIL COMPANY DATED 05/02/10 P2: COPY OF THE LETTER FORWARDED FROM THE COLLECTORATE DATED 11/05/2010. P3: COPY OF THE REPORT TOGETHER WITH MAHAZAR PREPARED BY THE VILLAGE OFFICER DATED 15/05/2010. P4: COPY OF THE ADVOCATE NOTICE. P5: COPY OF THE PLAINT IN O.S. NO.150/2008 P6: COPY OF THE PLAINT IN O.S. NO.149/2008. P7: COPY OF THE REPLY NOTICE OF THE OIL COMPANY DATED 07/07/10 P8: COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 24/07/2010. P9: COPY OF THE ORDER OF THE DISTRICT COLLECTOR DATED 24/01/2011. P10: COPY OF THE OPINION OF THE DISTRICT GOVERNMENT PLEADER DATED 21/12/2010. P11: COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR. P12: COPY OF THE ORDER OF THE VILLAGE OFFICER DATED 29/06/2010. P13: COPY OF THE SURVEY PLAN RPREPARED BY THE TAHASILDAR. P13: COPY OF THE SKETCH PREPARED BY THE SURVEYOR D. USHA (I.A. NO.13671/2011) P14: COPY OF THE SITE MEASUREMENT SKETCH OF THE PROPOSED PETROL PUMP AT CHUNKAPPARA. RESPONDENT'S EXHIBITS: R5(a):COPY OF COMPLAINT SUBMITTED BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA DATED 15/05/2008. R5(b):COPY OF REPLY DATED 17/07/2009. svs .....................2/-.... ...2... WPC. NO.6986/2011 R5(c):COPY OF THE GOOGLE MAP OF THE LOCALITY WITH BOUNDARIES. R5(d):COPY OF SALE DEED NO.653/1985 OF SRO, MALAPPALLY DATED 28/03/1985. R5(e):COPY OF SETTLEMENT DEED NO.650/1985 OF SRO, MALAPPALLY DATED 28/03/1985. R5(f):COPY OF COMMISSION APPLICATION IN O.S. NO.149/2008 OF MUNSIFF COURT, RANNI. /TRUE COPY/ P.A. TO JUDGE. svs P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.6986 of 2011 ----------------------------------------- Dated this the 1st day of September, 2011 JUDGMENT The petitioner, to whom the Indian Oil Corporation has issued a letter of intent for the establishment of a Kisan Seva Kendra at Chungapara in Pathanamthitta district, has filed this writ petition challenging Ext.P9 proceedings dated 24.1.2011 issued by the District Collector, Pathanamthitta declining to issue a No Objection Certificate under rule 144 of the Petroleum Rules, 2002 to the Senior Divisional Retail Sales Manager, Indian Oil Corporation Ltd., Thiruvananthapuram. The brief facts of the case are as follows. 2. Pursuant to a notification issued by the Indian Oil Corporation Limited, the petitioner applied for setting up a Kisan Seva Kendra at Chungappara in Pathanamthitta district. The petitioner was selected and Ext.P1 letter of intent dated 5.2.2010 was issued. The petitioner had in her application for appointment as dealer, stated that her husband owns 30 cents of land situate in Sy.No.468/3 of Kottangal Village, Mallappally Taluk in W.P(C).No.6986 of 2011 -:2:- Pathanamthitta district and that it forms part of a larger extent of land, 5 acres in extent, situate in the same survey field. After the letter of intent was issued, the Senior Divisional Retail Sales Manager, Indian Oil Corporation Limited, Thiruvananthapuram submitted an appliation dated 22.2.2010 to the District Collector, Pathanamthitta for a No Objection Certificate to establish a petroleum retail outlet in the said parcel of land. On receipt of the said application, the District Collector, Pathanamthitta forwarded it to (1) The Assistant Divisional Officer, Fire and Rescue Services, Pathanamthitta, (2) The District Supply Officer, Pathanamthitta, (3) Executive Engineer, PWD (Roads) Division, Pathanamthitta and (4) The Tahsildar, Mallappally, requesting all of them to enquire and report whether there is any objection in granting the No Objection Certificate applied for. Along with that application a copy of the layout of the proposed site was also enclosed. 3, On receipt of the said letter, the Village Officer submitted Ext.P3 report dated 15.5.2010 to the effect that the petitioner's husband owns the site of the proposed outlet. Nothing objectionable about the suitability of the site was stated therein. The other authorities referred to in Ext.P2 also submitted reports which did not contain anything adverse to the petitioner. While W.P(C).No.6986 of 2011 -:3:- matters stood thus, on the instructions of the 5th respondent herein, who is none other than the brother-in-law of the petitioner (petitioner's husband's younger brother), Ext.P4 notice was issued to the Senior Divisional Retail Sales Manager pointing out that two suits, O.S.No.150 of 2008 filed by the petitioner's husband and O.S.No.148 of 2008 filed by the 5th respondent are pending in the Court of the Munsiff of Ranni, that in the suit instituted by the 5th respondent the vacation Court has passed an ad interim order of injuction restraining the petitioner, her men and agents from committing acts of waste in the property and that in view of the order of injunction, permission should not be granted to establish a petroleum outlet. The Indian Oil Corporation thereupon caused Ext.P7 reply dated 7.7.2010 to be issued stating that there is no legal impediment in establishing a petroleum outlet in the land offered by the petitioner, that the dispute is in respect of the southern boundary of a large parcel of land about 5 acres in extent and as the petroleum outlet is to be located on the northern extremity there is no impediment in establishing a petroleum outlet. It appears a copy of Ext.P4 notice was sent to the Tahsildar, Mallappally and he called for a report from the Village Officer. The Village Officer submitted Ext.P8 report W.P(C).No.6986 of 2011 -:4:- wherein he inter alia stated that the site of the outlet is 77 metres away from the disputed boundary and 66 metres away from the Northern boundary (admitted boundary) of the land belonging to the petitioner's husband. The District Collector thereafter issued Ext.P9 proceedings declining to grant the No Objection Certificate on the short ground that in view of the pendency of two suits, the No Objection Certificate cannot now be issued and that steps to issue the No Objection Certificate can be taken after the suits are disposed of. Hence the writ petition challenging Ext.P9 and seeking the following reliefs:- 1. issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P9 and quash the same as illegal. 2. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to issue N.O.C. to the Petroleum outlet in the light of in the light of Ext.P3, P7 and P8 reports of the Village Officer and Ext.P10 letter of the District Government Pleader. The main contention raised by the petitioner is that the District Collector failed to take into account relevant facts including Ext.P11 sketch while declining the No Objection Certificate. 4. The 5th respondent has filed a counter affidavit wherein it W.P(C).No.6986 of 2011 -:5:- is contended that though under the gift deeds executed by his father he is entitled to 3.60 acres of land from out of a larger holding having an area of 8.47 acres, which originally belonged to his father, the land in his possession has an area of only 3.31 acres, that there is shortage of 29 cents and that the boundaries of his holding have been altered. It is stated that he has applied to the District Collector to cause a re-survey to be conducted so as to enable him to secure possession of 3 acres and 60 cents of land. Relying on the site plan it is contended that the site where the petitioner proposes to put up the petroleum outlet would fall within the land belonging to the fifth respondent and therefore, the No Objection Certificate prayed for should not be issued. 5. I heard Sri.Anil Narendran, learned counsel appearing for the petitioner, Sri.Hanil Kumar, learned Government Pleader appearing for respondents 1 to 3, Sri.E.K.Nandakumar, learned standing counsel appearing for the Indian Oil Corporation and Sri.P.V.Chandramohan, learned counsel appearing for the 5th respondent. I have also gone through the pleadings and the materials on record. The fact that the father of the petitioner's husband and the 5th respondent owned a parcel of land approximately 8.50 acres in extent and the fact that under the gift W.P(C).No.6986 of 2011 -:6:- deeds executed by him, the petitioner's husband is entitled to 5 acres and the 5th respondent is entitled to 3.60 acres is not in dispute. The only dispute between the parties is as regards the location and lie of the land belonging to the 5th respondent. The 5th respondent has no case that the petitioner's husband does not own 5 acres of land. Shorn of details the contention of the 5th respondent is that the site of the proposed petroleum outlet would take in a portion of the land over which he claims title. The Village Officer who inspected the lands belonging to the petitioner and the 5th respondent, after the 5th respondent caused a notice to be issued to the Tahsildar objecting to the establishment of a petroleum outlet, has reported that the site of the proposed outlet is 77 metres away from the disputed boundary, namely the southern boundary of the holding belonging to the petitioner's husband, which separates the land belonging to him and the 5th respondent. That apart, Ext.P15 sketch produced by the petitioner along with I.A.No.13671 of 2011 discloses that the site of the proposed petroleum outlet is far away from the boundary separating the two parcels of land. Therefore, the mere fact that a dispute is pending between the petitioner and the 5th respondent as regards the boundaries separating their respective properties W.P(C).No.6986 of 2011 -:7:- cannot in my opinion be a reason to hold that till such time as the suits are disposed of finally, the No Objection Certificate cannot be issued. The Indian Oil Corporation will certainly not wait till the suits are disposed of finally so as to enable the petitioner to put up a petroleum outlet. In all probability the Corporation will cancel the letter of intent. That apart, it is settled law that if a person builds on the land of another and is evicted from the land, he can at the option of the owner of the land either demolish the structure and take away the materials or claim compensation for the building. Therefore, the mere fact that the petitioner is permitted to put up a petroleum outlet will not defeat the rights, if any, of the 5th respondent over the site of that outlet, if ultimately he were to succeed in the suit instituted by him. In this context it is relevant to note that the petitioner's husband has instituted a suit to fix the southern boundary of his holding. The suit instituted by the 5th respondent is not to fix the northern boundary of his holding, but to evict his brother from a building standing in the land allotted to his share. The Village Officer has in Ext.P8 report stated that the site of the proposed outlet is 77 metres away from the disputed boundary. Since the petitioner's husband owns a parcel of land, 5 acres in extent, even assuming that the W.P(C).No.6986 of 2011 -:8:- boundary is shifted to a new point, it will be nowhere near the site of the proposed petroleum outlet. I therefore, find no reason why the mere pendency of the two suits, which has nothing to do with the establishment of a petroleum outlet, should stand in the way of the District Collector from issuing the No Objection Certificate. I am therefore, of the opinion that the petitioner is entitled to succeed. I accordingly allow the writ petition, quash Ext.P9 and direct the District Collector to pass fresh orders on the application dated 22.2.2010 submitted by the Senior Divisional Retail Sales Manager, Indian Oil Corporation, Trivandrum, ignoring the pendency of the two suits, expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before him. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.6986 of 2011 ---------------------------- JUDGMENT 1st September, 2011