IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

TH MONDAY, THE 27 DAY OF JANUARY 2025 / 7TH MAGHA, 1946 WP(C) NO.44541 OF 2024 PETITIONER:

HIRENIZA.S., AGED 44 YEARS, W/O.MUHAMED BASHEER, ASIF MANZIL, PADA NORTH, KARUNAGAPPALLY, KOLLAM, PIN – 690 518.

BY ADVS.

M.U.VIJAYALAKSHMI K.JAJU BABU (SR.)

BRIJESH MOHAN RESPONDENTS:

1 INDIAN OIL CORPORATION LIMITED, COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR.P.O, KOCHI, REPRESENTED BY THE DIVISIONAL RETAIL SALES HEAD, PIN – 682 036.

2 KAYAMKULAM MUNICIPALITY, KAYAMKULAM, ALAPPUZHA, REPRESENTED BY ITS SECRETARY, PIN – 690 502.

3 THE SECRETARY, KAYAMKULAM MUNICIPALITY, KAYAMKULAM, ALAPPUZHA, PIN – 690 502.

4 THE DISTRICT TOWN PLANNER, TOWN PLANNING OFFICE, ALAPPUZHA, PIN – 688 013.

5 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, NANTHANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM (IMPLEADED AS PER ORDER DATED 27.1.25 IN I.A.No.1 OF 2025)

BY ADVS.

M.GOPIKRISHNAN NAMBIAR SHRI.T.R.RAJAN, SC, KAYAMKULAM MUNCIPALITY NITHIN GEORGE RITHU JOSE(K/2314/2023)

SRI.JAIJU BABU, SR.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner is an entrepreneur, who approached this Court, being aggrieved by the denial of NOC to her by the 2^nd respondent Municipality for running a Petroleum Retail Outlet sanctioned by the 1^st respondent. After obtaining sanction, the petitioner approached the 2^nd and 3^rd respondents for NOC, but the same was rejected as per Ext.P5 issued by the 3^rd respondent on the reason that, as per the approved Master Plan for the Kayamkulam Municipality, the activity sought to be commenced by the petitioner is included in Residential Mixed Zone and therefore, the same cannot be granted. This writ petition is submitted by the petitioner in such circumstances, challenging the same. It was contended by the petitioner that, as per Ext.P9, the activity of the petitioner is permitted, and therefore, Ext.P5 requires to be interfered with.

2. A statement has been submitted by the 4^th respondent, wherein it is averred that, as per Zoning Regulations, the fuel filling stations are included in Uses Restricted-II in Residential Zone. Therefore, the concurrence of the Chief Town Planner, the additional 5^th respondent herein is required. In the statement submitted by the 3^rd respondent also the same contentions have been reiterated. In the counter affidavit filed by the 3rd respondent, it is also stated that, there exists another fuel filling station nearby and therefore, in public interest, NOC was not issued to the petitioner.

3. I have heard Sri.Jaiju Babu, learned Senior Counsel appearing for the petitioner, Sri.Nithin George, learned counsel for the 1^st respondent and Sri.T.R.Rajan, learned standing counsel appearing for respondents 2 and 3 and Smt. K.Amminikutty, learned Government Pleader for the 4^th respondent.

4. The only question that arises for consideration here is whether any interference is required in Ext.P5, in as much as the same was issued by the 3^rd respondent declining the request made by the petitioner for issuance of NOC. One of the main objections raised by the respondents is that, as per the Master Plan for the 2^nd respondent Municipality, a copy of which is produced as Ext.P9, the fuel filling station is included in the Uses Restricted-II, as far as the residential mixed zones are concerned. In this case, it is not a disputed aspect that, this is a residential mixed zone and therefore, the clause referred to in Ext.P9 are applicable. However, it is evident from Ext P9 that, fule filling station is permissible after obtaining concurrence from the Chief Town Planner, the additional 5^th respondent. As rightly pointed out by the learned standing counsel for the Municipality as well as the Government Pleader in this case, no such concurrence of the Chief Town Planner has been obtained so far.

5. In such circumstances, it is only proper that th