IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
WA NO. 662 OF 2022
AGAINST THE ORDER IN WP(C) 28740/2012 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 8 & 9:
1 SANTHOSH KAIDACHIRA,
AGED 50 YEARS
SHIVA GOVINDAN HOUSE, KAIDACHIRAYIL HOUSE, NETHALOOR,
KARUKACHAL P.O, KOTTAYAM 686 540.
2 UNNIKRISHNAN PARAMBATH,
PARAMBATHU HOUSE, NETHALOOR, KARUKACHAL P.O,
KOTTAYAM - 686 540.
BY ADVS.
K.RAMAKUMAR (SR.)
G.RENJITH
R.S.ASWINI SANKAR
T.H.ARAVIND
T.RAMPRASAD UNNI
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 7:
1 ANIL KUMAR P,
AGED 42 YEARS
SON OF K. PURUSHOTHAMAN NAIR, ELIKUZHIYIL,
KALATHUKADAVU P.O, PLASSANAL, KOTTAYAM DISTRICT, PIN
686 579.
2 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF
PETROLEUM AND NATURAL GAS, SASTHRI BHAVAN, DR. RAJENDRA
PRASAD ROAD, NEW DELHI 110 001.
3 THE DISTRICT COLLECTOR,
KOTTAYAM, O/O. THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, KOTTAYAM- KUMILY ROAD, KOTTAYAM - 686
002.
4 THE ADDITIONAL DISTRICT MAGISTRATE,
KOTTAYAM, O/O. THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, KOTTAYAM- KUMILY ROAD, KOTTAYAM - 686
002.
5 THE NEDUMKUNNAM GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE NEDUMKUNNAM
GRAMA PANCHAYAT, NEDUMKUNNAM, KOTTAYAM DISTRICT, PIN
686 542.
6 THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY THE SENIOR REGIONAL MANAGER, REGISTERED
OFFICE -17, JAMSHEDJI TATA ROAD, MUMBAI 400 020.
7 THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY THE SENIOR REGIONAL MANAGER,
ERNAKULAM NORTH P.O, KOCHI 682 018.
8 CHAMPAKARA N.S.S. KARAYOGAM SAMYUKTHA SAMITHY,
KARUKACHAL,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE CHAMPAKARA
NSS KARAYOGAM SAMYUKTHA SAMITHY, KARUKACHAL P.O,
KOTTAYAM 686 540.
BY ADVS.
LIJI.J.VADAKEDOM FOR R1
MANU S., ASG OF INDIA FOR R2
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R3 & R4
M.GOPIKRISHNAN NAMBIAR FOR R6 & R7
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.662/2022 3
CR
JUDGMENT
SHAJI P.CHALY,J This appeal is preferred by respondents 8 & 9 in W.P.(C) No.28470/2012, challenging the judgment of the learned single Judge dated 8 th March, 2022, whereby the following reliefs sought for by the writ petitioner was allowed and accordingly, directed the Additional District Magistrate, Kottayam - 4 th respondent in the appeal to reconsider the application submitted by the writ petitioner under Rule 144 of the Petroleum Rules 2002 and pass appropriate orders in accordance with law, as expeditiously as possible and at any rate within one month from the date of receipt of a copy of the judgment:
(i) Issue a writ of certiorari or any other writ, order or direction quashing Exhibit P8-resolution of the 4th respondent-Nedumkunnam Grama Panchayat and Exhibit P11-Order of the 3rd respondent-Additional District Magistrate, Kottayam.
(ii) Issue a writ of mandamus or any other writ, order or direction directing the 3rd respondent to consider the application for no objection Certificate filed by the 5th respondent with respect to the site offered by the petitioner afresh.
W.A.No.662/2022 4
2. Brief material facts for the disposal of the appeal are as follows; the writ petitioner was allotted a dealership for starting a new petroleum retail outlet at Nethaloor, Kottayam District as per Ext P1 Letter of Intent issued by the Hindustan Petroleum Corporation Limited - the 6th respondent in the appeal in the site offered by the writ petitioner. Thereafter, the 6 th respondent through the Senior Regional Manager of Hindustan Petroleum Corporation Limited, Ernakulam - the 7 th respondent, submitted an application seeking No Objection Certificate as contemplated under rule 144 of the Petroleum Rules, 2002 before the 3 rd respondent District Collector. The District Collector, Kottayam as per Exhibit P2 letter sought for a report from the District Police Chief, Kottayam, Executive Engineer, PWD Roads Division, Kottayam, the Assistant Divisional Officer, Fire and Rescue, Kottayam, the Tahsildar, Changanacherry and the Secretary - Nedumkunnam Grama Panchayat, in order to consider the application for No Objection Certificate; and accordingly Exhibits P3, P3 (a) and P4 to P7 reports are submitted by the said authorities.
3. All the statutory authorities have expressed their no objection in granting the No Objection Certificate in contemplation of the Petroleum Rules, 2002, evident from Exhibit P3(a) & Exhibits P4 to P7. Thereafter, the District Collector, Kottayam has referred the matter to the Additional District Magistrate, Kottayam for taking W.A.No.662/2022 5 appropriate decision. While so,the appellants herein filed a complaint before the Grama Panchayat - the 5th respondent in the appeal, stating that if the proposed outlet is permitted to be started, there is a chance of causing obstruction to the rites and rituals like the offerings, fireworks and other rituals conducted at Nethalloor Devi Temple, which is situated near the proposed site. On the basis of the said complaint, the Grama Panchayat convened a meeting of its committee and by Exhibit P8 resolution, decided to revoke the no objection given by it to the District Collector. Thereafter, on the basis of Exhibit P8 resolution of the Grama Panchayat, revoked the No Objection Certificate initially granted, and consequently the Additional District Magistrate - the 4 th respondent in the appeal, by Exhibit P11 order, rejected the application for No Objection. In the above background facts, the writ petition was filed challenging Exhibit P8 resolution of the Grama Panchayat and Exhibit P11 order passed by the Additional District Magistrate.
4. From the record of proceedings, it is clear that in spite of pendency of the writ petition from the year 2012, none of the respondents have filed counter affidavits. The learned single Judge, after considering the entire facts and circumstances, has arrived at the conclusion that merely because a complaint is filed by third parties, the no objection given by the Panchayat for grant of 'No Objection Certificate' under rule 144 of the Petroleum Rules, 2002, cannot be W.A.No.662/2022 6 sustained. It was also found that merely because a resolution was passed by the Grama Panchayat to withdraw the No Objection Certificate, that itself is not a reason for the Additional District Magistrate to reject the application submitted under rule 144 of the Petroleum Rules, 2002 and it was accordingly that the reliefs were granted and the directions were issued.
5. At the outset we record that, at the time of hearing, learned counsel appearing for the Petroleum Corporation has produced an order of the Additional District Magistrate, Kottayam dated 25.4.2022, whereby we are convinced that in accordance with the directions contained in the judgement of the learned single Judge, an NOC is issued by the Additional District Magistrate, Kottayam in accordance with rule 144 of the Petroleum Rules, 2002.
6. We have heard learned Senior counsel for the appellants Sri.K.Ramkumar, assisted by Adv.Renjith. G., learned counsel for writ petitioners/1 st respondent Sri.Liji J. Vadakkedom, Assistant Solicitor General Sri.S.Manu for the Union of India, learned Senior Government Pleader Sri.K.P.Harish for the officials of the State and Sri.Gopikrishnan Nambiar & Sri.Paulose C. Abraham for the Petroleum Corporation and perused the pleadings and material on record.
7. The contention advanced by the learned Senior Counsel for the appellants is that the judgment of the learned single Judge will have far reaching W.A.No.662/2022 7 consequences on the functioning of the entire local bodies in the State. It is submitted that the learned single Judge has failed to notice the relevant and salient provisions of the Kerala Panchayat Raj Act imposing on them the responsibility of maintaining the safety and environmental protection to the residents, which cannot be deviated by the District Administration. It is further submitted that the learned single Judge erred in law in holding that the Panchayat has no say in the establishment of a petroleum outlet within its areas, particularly near a water source. That apart it is contended that the learned single Judge has failed to notice that the Grama Panchayats under the Scheme of the Constitution of India have a special responsibility to protect the residents from hazards and threat to the environment and water resources as part of which the Panchayat objected to the establishment of the retail outlet in a hazardous area. That apart it is contended that the proposed outlet is near to a temple where explosives are used daily as part of its rituals and festivals, which may pose a threat, safety and well being of the people around the area particularly the devotees.
8. The sole question emerging for consideration is whether any interference is required to the judgment of the learned single Judge ? In fact rule 144 of the Petroleum Rules, 2002 deals with 'No Objection Certificate' and for the purpose of starting a petroleum retail outlet the District Magistrate is vested with powers to W.A.No.662/2022 8 consider the application and take a decision in accordance with law. It was on the basis of the application submitted by the Petroleum Corporation for and on behalf of the writ petitioner, the District Collector has called for reports from various statutory authorities and later transmitted the records to the Additional District Magistrate, Kottayam for consideration of the application finally. In the meanwhile, a complaint was filed by the appellants before the Grama Panchayat stating that if the retail outlet is started, it would interfere with the rites and rituals performed in the nearby temple and it was on the basis of the said complaint, the Panchayat has taken a decision to withdraw the No Objection Certificate issued by it at the request of the District Collector on the application submitted by the Petroleum Corporation for compliance of rule 144 of the Rules, 2002.
9. The primary question arising for consideration is whether the Panchayat is vested with powers to pass a resolution in the matter of establishment of the retail petroleum outlet ? The fact remains, the issue with respect to the permission for construction of factories and installation of machinery is guided by section 233 of the Kerala Panchayat Raj Act, 1994. Sub-section (1) thereto specifies that, no person shall, without the permission of the Village Panchayat and except in accordance with the conditions specified in such permission, -
(a) construct or establish any factory, workshop or workplace in which it is W.A.No.662/2022 9 proposed to employ steam power, water power or other mechanical power, or electrical power; or
(b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the provisions of the Act or the rules made there under.
Sub-section (2) makes it clear that, an application for permission under sub-section (1) shall be submitted to the Village Panchayat addressed to the Secretary in such form and with such details as prescribed. Section 233 was amended as per Act 14 of 2018 and has introduced a detailed procedure in order to consider the application submitted for establishment permit.
10. On an analysis of the provisions of section 233 of Kerala Panchayat Raj Act, 1994, as it originally stood and after the amendment by Act 14 of 2018, it is clear that there is a clear cut and definite procedure prescribed for considering an application for establishment permit and to take a decision on the same. In order to implement the provisions of section 233, the State Government has introduced the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 and as per rule 3 of the Rules, 1996, the Government is vested with powers to specify in the First Schedule appended to the Rules, the matters which in the opinion of the Government are likely to be offensive or dangerous to human life, health or property.
W.A.No.662/2022 10
11. The said rule was amended as per G.O.(P) No.80 of 2017, by which provisions are incorporated under the Rules enabling the Secretary to conduct due inspection in accordance with the procedure prescribed thereunder and submit a report to the Grama Panchayat in order to consider the application for establishment permit and the trade licence contemplated under section 232 of the Kerala Panchayat Raj Act, 1994.
12. Taking into account the provisions discussed above, it is categoric and clear that in order to consider the application for establishment permit, the Act and the Rules have prescribed a definite procedure and therefore, the Panchayat is not at liberty to pass a general resolution not to grant any No Objection Certificate for starting a retail Petroleum outlet.
13. In that view of the matter, the learned single Judge was right in quashing Exhibit P8 resolution passed by the Grama Panchayat. We are also of the undoubted opinion that when there is a clear statutory mechanism provided in order to tackle any application for establishment of a factory or installation of machinery, the Authority prescribed under the Act and the Rules are duty bound to follow the procedure. Merely because a complaint was filed by the appellants, the Panchayat cannot pass a resolution to withdraw the No Objection given since it is in absolute violation of the procedure contained under law to deal with applications W.A.No.662/2022 11 for establishment permit and trade licence. Considering the subject issue as aforesaid and taking into account rule 144 of the Petroleum Rules, 2002, we are of the considered opinion that power is vested with the District Magistrate under the Rules, 2002 independent of the powers enjoyed by the other statutory authorities.
14. In the case on hand, when the Panchayat has passed a resolution withdrawing the Non Objection issued by it, the Additional District Magistrate, Kottayam without assigning any reason, has dismissed the application filed by the Petroleum Corporation, seeking No Objection Certificate under rule 144 of the Petroleum Rules, 2002; which action cannot be sustained under law being arbitrary and illegal. Moreover, we doubt the locus standi of the appellants to object to the establishment of a retail outlet without any statutory right vested on them to raise such an objection. It is equally important to note that when all the statutory authorities like Police, Fire & Safety, Tahsildar etc. have issued the No Objection Certificate, it has to be legally presumed that such certificates were issued after conducting due site visit and taking into account the security parameters provided under law, and also in accordance with law.
15. Taking into account the above legal and factual circumstances, we are of the opinion that the learned single Judge was right in quashing Exhibit P8 resolution passed by the Grama Panchayat and Exhibit P11 order passed by the W.A.No.662/2022 12 Additional District Magistrate, declining No Objection Certificate under rule 144 of the Rules, 2002.
16. Upshot of the above discussion is that the appellants have not made out any case for interference with the judgment of the learned single Judge, there being no error in exercising the discretion or other legal infirmities in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958.
Needless to say, appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE