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Akhil Louiz, Rep. by his Power of Attorney holder & mother Shine George, Kochi v/s District Collector, Ernakulam & Others

    WP(C). No. 2735 of 2022

    Decided On, 13 April 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE N. NAGARESH

    For the Petitioner: Shiju Varghese, Advocate. For the Respondents: P.S. Appu, G.P.



Judgment Text

1. The petitioner has approached this Court seeking to set aside Ext.P18 proceedings and to direct the 1st respondent to issue NOC as requested in Ext.P5.

2. The petitioner states that he is the owner in possession of 2.41 Ares of land in Moothakunnam Village. The petitioner submitted an application on 25.11.2020 before the 1st respondent for issuance of a No Objection Certificate to install and operate a Consumer Pump Facility with three dispensing pumps for refilling of his fishing boats and generators. The petitioner has been issued with the facility offer letter by M/s. Reliance Industries Limited to install pump.

3. On receipt of the application, the 1st respondent- District Collector forwarded the same to the 2nd respondent- Additional District Magistrate. The 3rd respondent submitted a report stating that the land in question does not fall in puramboke. The 1st respondent, however, directed the 3rd respondent to conduct a further enquiry on the nature of the land. The 3rd respondent thereupon caused enquiry through the Village Officer and obtained Ext.P10 report. Ext.P10 report also stated that the land does not include puramboke.

4. The petitioner states that the 4th respondent-Taluk Surveyor conducted a survey of the property and submitted Ext.P16 report dated 22.11.2021 to the 2nd respondent stating that prumboke has been encroached. The petitioner was called for an enquiry on 28.12.2021. The petitioner submitted all relevant documents. To the surprise and predicament of the petitioner, the 2nd respondent, as per Ext.P18, rejected Ext.P5 application for NOC on the ground that a portion of the property consists of 'puramboke' as reported in Ext.P16.

5. The petitioner states that Ext.P18 order is not a speaking order. The petitioner has been regularly remitting land tax for 2.41 Ares of land covered by Exts.P1 and P2. The land is well bounded without any boundary dispute. The petitioner was issued Ext.P13 Jetty licence by the Port Conservator. Ext.P13 would show that there is no dispute on the boundary of the petitioner's land which abuts the river. The petitioner has obtained all requisite licences and permissions from all competent statutory authorities. Therefore, the rejection of the request of the petitioner for issuance of NOC is highly arbitrary and unreasonable.

6. The 2nd respondent filed a Statement. The 2nd respondent stated that this Court in Ext.P17 judgment directed the District Collector to consider the grievance of the petitioner. Though all other authorities recommended in favour of the petitioner, one K.P. Appukuttan, a neighbour of the petitioner, raised objection that the fuel storage tank is proposed to be installed at a distance of 4 metres from his house which is close to the kitchen of his residence. The Tahsildar subsequently reported that proposed land for installation of the diesel dispensing pump includes 'puramboke' area and as such the layout plan cannot be considered. The writ petition is therefore without any merit and is liable to be dismissed, contended the Government Pleader representing the respondents.

7. I have heard the counsel for the petitioner and the Government Pleader representing the respondents.

8. The petitioner submitted application for NOC to install pump on 25.11.2020. Ext.P1 document would show that the petitioner is the owner of the property having an extent of 2 Acres and 41 square metres. Ext.P2 is the land tax receipt dated 23.10.2020 in respect of the property, which also shows the extent as 2 Ares and 41 square metres. The Village Officer has given Possession Certificate dated 11.01.2021 as per Ext.P3. Ext.P6 is the facility offer letter issued by the petroleum company. The Port Conservator has issued Jetty Licence to construct Jetty in front of the property, to facilitate dispensation of diesel from the pump.

9. However, NOC has been denied to the petitioner on the basis of Ext.P16 report which alleges that a portion of the proposed sale dispensation unit is sought to be constructed in puramboke. It has to be noted that by Ext.P13 the Port Conservator has issued licence to the petitioner, which would indicate that the petitioner has valid ownership documents in respect of the property.

10. Ext.P12 document would show that there is a river flowing on the western side of the petitioner's property, which river is the western boundary of the petitioner. The pleadings and documents would further show that the petitioner has been regularly paying tax for 2.41 Ares of property covered by Exts.P1 and P2. So far, nobody has raised a boundary dispute. The impugned orders have been passed by the respondents solely depending upon the subsequent report of the Taluk Surveyor. While passing orders on the application submitted by the petitioner for NOC, the respondents have not properly appreciated the facts of the case.

11. Ext.P1 is the title deed by which the petitioner purchased 2 Ares and 41 m of the land. Ext.P2 receipt issued by the Land Revenue Department would show that the petitioner has been remitting land tax for 2 Ares and 41 m of land. Ext.P3 Possession Certificate issued by the Village Officer would also indicate that the property in question is possessed by the petitioner. Ext.P1 sale deed also would show that the western boundary of the petitioner's property is river. Ext.P4 location sketch issued by the Village Officer would also show that the river boundary of the petitioner's property, on its western side.

12. The Tahsildar as per Ext.P8 reported that there is no puramboke included in the land in question. The Village Officer also inspected the property and reported that the land is a garden land and no puramboke is included in the piece of land in question. The Taluk Surveyor as per Ext.P16 observed that 1.33 Ares of land is not in the possession of the petitioner. The conclusions of the Taluk Surveyor goes against Exts.P1, P2, and P4 recor

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ds. In the circumstances, this Court is of the considered opinion that the 2nd respondent should reconsider the matter taking into account the afore documents also. In the facts of the case, the writ petition is disposed of directing the 2nd respondent to reconsider the application for grant of NOC submitted by the petitioner taking into consideration Exts.P1, P2 and P3 documents also. To enable the 2nd respondent to consider the matter afresh, Ext.P18 order is set aside. The 2nd respondent shall take a decision afresh on the application submitted by the petitioner within a period of two months after giving an opportunity of hearing to the petitioner.
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