M. Himachalam Babu, vs Union Of India,
2021 Latest Caselaw 3283 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.23519 OF 2020

ORDER:

One M. Himachalam Babu and twenty others filed this writ

petition under Article 226 of Constitution of India, to issue Writ of

Mandamus declaring the action of Respondent No.8 in issuing

„No Objection Certificate vide REVCSECOPARNOC/94/2019 dated

01.06.2020‟ to set-up Petroleum Retail Outlet of Respondent No.2

in the land belonging to Respondent No.12 situated in Survey

No.1/6 Puttur Village and Mandal Chittoor District as illegal,

irregular arbitrary unjustified and unsustainable violative of

Articles 14, 19(1)(g) and 21 of the Constitution of India, contrary to

Rules and Regulations under Petroleum Act, 1934 and set-aside

the same.

The first petitioner is a resident of Puttur Village and

Mandal, carrying on his activities in transport business. Similarly,

other petitioners are residents of villages which are in and around

Puttur. The Petitioner No.21/M/s. Bhanodaya Petroleum Products,

(IOCL) is a propriety concern having obtained dealership license in

the business of petroleum products, set-up a retail outlet in

Sy.No.7/13 and 7/5-B of Puttur Village and Mandal, Chittoor

District. Petitioner No.21/IOCL has been carrying out its business

in relation to petroleum products catering the needs of the general

public in the said area.

The petitioners came to know through an article published in

the District Edition of leading newspaper that, Respondent MSM,J WP.No.23519 of 2020

No.2/BPCL, a Public Sector Undertaking Oil Company entered into

an agreement with Respondent No.12/Puttur Fire Station to set-up

petroleum retail outlet in the land belonging to Puttur Fire Station,

situated in Sy.No.1 of Puttur Village and Mandal, Chittoor District.

It is contended that the proposed site for setting up a retail outlet

of Respondent No.2 is along the same side of the road within a

distance of 300 meters from 21st Petitioner retail outlet. Petitioner

No.21 submitted an application dated 04.11.2020 under Right to

Information Act to the respondents seeking information about

extent of land provided to Respondent No.12, proposals to set up

the retail outlet in the land belonging to Respondent No.12, FMB

copy, copy of No Objection Certificate (NOC) and proceedings of

NOC. Respondent No.10/Tahsildar vide R.T.I 226/20 dated

17.11.2020 submitted a reply stating that the land in an extent of

Ac.1-60 cents in S.No.1/5 belong to Respondent No.12. Further,

the proposals have been submitted to Respondent No.9 and

„No Objection Certificate‟ is not yet received from the office of

Respondent Nos. 6 & 9, a copy of FMB sketch is enclosed.

Respondent No.6 vide L.Roc.C4/RTI/343605/2020 dated

28.11.2020 provided a copy of „No Objection Certificate‟ issued by

Respondent No.8. However, Petitioner No.21 was not provided

with the enclosures based on which the said decision is taken.

Respondent No.8/Joint Collector issued „No Objection

Certificate vide REV-CSEOPAR(NOC)/84/2019 dated 01.06.2020

under Rule 144 of Petroleum Rules, 2002, at the instance of the

application filed by Respondent No.4/Territory Manager.

Respondent No.8 gave No Objection Certificate to set up the outlet MSM,J WP.No.23519 of 2020

in the premises of Respondent No.12 admeasuring an extent of

Ac.0-44 cents in Sy.No.1/6, Puttur Village and Mandal, Chittoor

District. The Fire Station is set up in the outskirts of Puttur in the

land admeasuring an extent of Ac.1-60 cents with an intention of

future expansion to accommodate more vehicles as and when the

town develops. However, ignoring the same, petroleum retail outlet

is proposed to be set up in the land belonging to Fire Station,

which is a government land, contrary to the purpose for which the

land was allotted to Respondent No.12. Respondent No.12 entered

into a lease agreement with Respondent No.2 on payment of rent of

Rs.80,000/- per month as against the usual amount of about

Rs.2,000/- per month. This action of the respondents in proposing

to set up the retail outlet in the government land for commercial

purpose is illegal, arbitrary, contrary to public interest and needs

judicial interference.

Rule 144 of the Petroleum Rules mandates that the District

Authority shall issue „No Objection Certificate‟ for setting up a

retail petrol outlet on a proposed site, after conducting due

enquiry. Such issuance of „No Objection Certificate‟ can be only

considering various aspects about feasibility of the location of the

proposed outlet. The proposed site is on the State Highway No.69

in Puttur Town and it has 30 meters road. There is a school

namely Sri Chaitanya School with considerably good strength of

students, situated opposite to proposed site which is less than 50

meters of distance. There is another institution namely Himaja

School and Junior College within a distance of 100 meters. There

is also a convention center with capacity of 1000 guests situated MSM,J WP.No.23519 of 2020

on the opposite side of the proposed site at a distance of 50 meters.

As per the new guidelines dated 07.01.2020 issued for setting up

of petrol pumps, retail outlet cannot be located within 50 meters

from schools, hospitals and residential areas. In case of constrains

in providing 50 meters distance, the retail outlet shall implement

additional safety measures as prescribed by Respondent No.3.

However, there are no such constraints and many other options

available to Respondent No.2 to set up the retail outlet in Puttur

Village and Mandal. On the other hand, there is burial ground on

the eastern side of the proposed site, particularly which deals with

inflammable products would be hazardous to the residents of that

locality. Rule 117 of the Petroleum Rules mandates precautions to

be taken against fire and prevent any fire, furnace or other source

of light or heat to be allowed in the service station. However, the

respondents did not consider the fire hazard that the proposed site

is prone to and possible damage thereof. The setting up of outlet in

the proposed site is hazardous to the students and also to the

public gatherings in convention center, keeping in view the

presence of a burial ground adjacent to the proposed site. The

residents of the locality are very much concerned about their safety

due to location of the proposed outlet. Without considering these

aspects during enquiry, the action of the respondents in issuing

„No Objection Certificate‟ for setting up the outlet in the proposed

site is contrary to the guidelines issued by Respondent No.1 as

arbitrary and sought to set-aside the same.

It is contended that, Sy.No.1 of Puttur Village and Mandal is

a cheruvu (water tank) in Puttur admeasuring an extent of MSM,J WP.No.23519 of 2020

Ac.92-00 cents which is catering the needs of Puttur Village. It is a

water body which is in existence since time immemorial. The

proposed site being adjacent to Puttur cheruvu in which Galeru

Nageri water tank storage for drinking purpose is provided and it is

not environmentally feasible location for setting up a petrol pump.

It is submitted that, Article 21 of the Constitution of India

embodies „Right to clean and healthy environment‟, Article 48-A

and Article 51-A(g) of the Constitution bestows the responsibility

on the State to protect the environmental degradation which

includes water bodies like lakes and ponds. It is submitted that,

any kind of spillage or unforeseen incident, will also lead to

drinking water contamination which is supplied to the people of

Puttur and have cascading effect on the ecology of the water body.

Aggrieved by the same, the present writ petition is filed.

Learned counsel for the petitioners placed reliance on the

judgment of the Apex Court in Hinch Lal Tiwari v. Kamala Devi

and others1 and based on the said judgment, contended that, very

establishment of petroleum outlet at the proposed place belonging

to the fire department is contrary to the principle laid down in the

above judgment.

Finally, it is contended that, a retail outlet is situated within

300 meters from the proposed site and the fundamental right to

conduct business guaranteed under Article 19(1)(a) of the

Constitution of India is violated, creating unhealthy competition

amongst the dealers, in-turn affecting the livelihood of Petitioner

No.21. To prevent such unhealthy competition, Indian Road

2001 Supp (1) SCR 23 MSM,J WP.No.23519 of 2020

Congress issued Guidelines for Access, Location And Layout Of

Roadside Fuel Stations And Service Stations, 2009, wherein

Guideline 4.6 stipulates that a minimum distance of 300 meters to

be maintained between two fuel stations. The oil companies have

given assurance of minimum business of 120 kl to the dealers and

contrary to that, Petitioner No.21 is able to sell out only 60 to 65 kl

in the fuel station, even after catering to the needs of the general

public. There is no necessity to establish another outlet in the

same vicinity when there is no sufficient demand, causing loss to

both the dealers in their business. The oil companies which are

instrumentalities of state cannot promote unhealthy competition

among the dealers under the garb of improving their profits. The oil

companies conventionally abide by the Indian Road Congress

guidelines which promote minimum distance between two fuel

stations. The action of the respondents according permission to set

up the outlet in the proposed site is in violation of Articles 19(1)(a)

and 21 of the Constitution of India, as illegal, arbitrary and

unreasonable. Therefore, sought the relief as stated supra.

Respondent No.6/District Collector, Chittoor, filed counter

affidavit denying material allegations, while admitting issue of „No

Objection Certificate‟ impugned in the writ petition, inter alia

contending that, „No Objection Certificate‟ was issued by

Respondent No.8 vide REV-CSEC0PAR(NOC)/94/2019 dated

01.06.2020 for setting up Retail Petrol Bunk in Sy.No.1-6 of Puttur

Village of Puttur Mandal which is vested with Fire Service

Department in accordance with G.O.Ms.No.850 Revenue (U)

Department dated 15.12.1988 and the same was incorporated by MSM,J WP.No.23519 of 2020

the Collector, Chittoor vide Proceedings R.Dis.No.13390/88 dated

31.12.1988 duly changing the classification from Puttur Tank

Poramboke to Fire Service Department Poramboke to an extent of

Ac.1-60 cents comprised in Sy.No.1/6 which is a part of Sy.No.1/1

out of an extent of Ac.138-10 cents. Since then the fire service

department became absolute owner of the property. The „No

Objection Certificate‟ was issued by the Joint Collector, Chittoor

and Respondent No.8 by following due procedure and the

petitioners are no way connected with the issue, since the

allotment of land in favour of fire service department was made

during the year 1988. The fire service department became the

absolute owner of the property and it is also part and parcel of

Government sector departments, the writ petitioners with a

malafide intention to make an obstruction in establishing a retail

petrol bunk. Respondent No.8 issued „No Objection Certificate‟

based on the report of the Tahsildar, wherein the Tahsildar

reported that, the land proposed for setting up of petroleum outlet

is in an extent of Ac.0-44 cents, situated in Sy.No.1/6 of Puttur

Village and Mandal and the distance is 50 meters from the petrol

bunk to Chaitanya School, 200 meters to Himaja Junior College,

30 meters distance to the Convention (GJN) Centre, 90 meters

distance to the burial ground and 21.4 meters of road width at the

petrol bunk leading road from Puttur to Chittoor. Hence, the same

cannot be said to be illegal.

It is further contended by Respondent No.6 that, as part of

enquiry before granting No Objection Certificate, a report is also

called from the Superintendent of Police, Chittoor, vide MSM,J WP.No.23519 of 2020

C.No.G2/4025/208/Petrol (NOC)/2019 dated 13.02.2020

recommending for issue of No Objection Certificate for establishing

BPCL Petrol retail outlet. The District Fire Officer, Chittoor has

enquired and submitted his report vide reference

No.2569/A2/2019 dated 19.01.2020 recommending for issue of

NOC for establishing BPCL petrol fuel station with fire conditions.

It is contended that the Revenue Divisional Officer, Chittoor

has enquired and submitted his report vide Roc.No.E/4608/2019

dated 11.02.2020 that the proposed land is alienated/transferred

in favour of Fire Service Department vide Collector proceedings

R.Dis.13390/88 dated 31.12.1988 to an extent of Ac.1-60 cents;

that there is no dispute over the subject land which is having

access from the main road, as the land in question was not

converted from agricultural land to non-agriculture purpose. It was

mentioned that the land stands in favour of Fire Service

Department Poramboke and changed classification from Tank

Poramboke to Fire Service Poramboke as per the Village Accounts

and therefore, the „No Objection Certificate‟ cannot be held to be

illegal, arbitrary and requested to dismiss the writ petition against

Respondent No.6.

Respondent No.11/District Fire Officer, Chittoor District,

filed separate counter affidavit while admitting about grant of lease

in favour of retail petrol bunk, as the land is vested on the Fire

Services Department alone and also admitted about issue of No

Objection Certificate on the basis of the reports obtained from

Superintendent of Police, Mandal Revenue Officer and Revenue MSM,J WP.No.23519 of 2020

Divisional Officer, and by strictly adhering to the procedure

prescribed under the Rules, permission was granted and thereby

the permission cannot be said to be illegal, arbitrary and requested

to dismiss the writ petition against Respondent No.11.

Respondent No.4/Territory Manager, Bharat Petroleum

Corporation Limited filed separate counter affidavit, denying

material allegations, inter alia contending that, the land where

petroleum outlet is proposed to be set up is vested on Fire Services

Department vide G.O.Ms.No.850 Revenue (U) Department dated

15.12.1988, through which classification was changed from Puttur

Tank Poramboke to Fire Services Department and leased out site of

an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Village and

Mandal, Chittoor District, on payment of monthly rent for setting

up petroleum outlet.

It is specifically contended that, the District Fire Officer,

Chittoor vide letter dated 30.07.2019 invited public sector oil

marketing committees to submit proposals for establishing a retail

outlet at Sy.No.1/5, Kalyanapuram, Puttur, Chitoor District, in an

area of 900 sq.mtrs. The proposals submitted by the oil marketing

companies by quoting the rent for the area and proposal of the

company was accepted. Thereafter, Respondent No.4 submitted an

application for issuance of „No Objection Certificate‟ and the „No

Objection Certificate‟ was granted. After issuance of „No Objection

Certificate‟, Respondent No.4 spent money and constructed the

retail outlet. Respondent No.4 also admitted in the counter

affidavit that, the retail outlet is established on the site, on the MSM,J WP.No.23519 of 2020

basis of the offer made by the Fire Service Department expressing

its desire to lease out the area for the purpose of establishment of

a retail outlet and Respondent No.4 offered the maximum rent

compared to other oil companies, Respondent No.4 was granted

permission to establish retail outlet.

Respondent No.4 submitted that, Sri Chaitanya School is

located at 90 meters away from the site of the retail outlet; Hinduja

Junior College is located at 120 meters away from the proposed

retail outlet. There are no schools or colleges or hospitals within a

distance of 50 meters from the retail outlet and the burial ground

is on the right side of the fire station and not adjacent to the retail

outlet.

The petitioners filed rejoinder to the counter affidavit filed by

Respondent No.6, reiterating the contentions, denying the specific

allegations made in the counter affidavit, while specifically

contending that, fire station has been set up in the land carved out

from the water course poramboke/tank poramboke land. The title

of the land in relation to tank, tank beds, ponds, water bodies

vests with the State Government. Further, the Andhra Pradesh

Water, Land and Trees Act, 2002 is enacted to promote water

conservation and Section 23 of the said Act imposed duty upon the

authority to preserve the water bodies. As per BSO 15 Para 4, Tank

Bed Poramboke, Water Course Poramboke are prohibited from

being allotted for making any constructions. Even as per Andhra

Pradesh Building Rules, 2017, Rule 54 of Chapter IV states that no

building/development activity shall be allowed in the bed of water MSM,J WP.No.23519 of 2020

bodies like river or nala and in the Full Tank Level (FTL) of any

lake, pond, cheruvu or kunta/shikam lands, unless and until it is

certified by the Irrigation Department and Revenue Department.

However, ignoring the said criteria, Respondent No.8 acted

completely in arbitrary manner and without application of mind,

granted NOC to set up petroleum retail outlet on the tank

poramboke land. It is also contended that, Tank Poramboke land

cannot be alienated and no constructions can be allowed to

happen which will affect the ecological balance of natural water

bodies and that, the act of Respondent No.8 in granting No

Objection Certificate to Respondent No.4 is violative of Articles 14

& 21 of the Constitution of India and requested to allow the writ

petition.

During hearing, Ms. Sodum Anvesha, learned counsel for the

petitioners would submit that, the land cannot be transferred from

one department to another, which is dealing with commercial

transactions, thus, the site transferred from one department

cannot be used for commercial purpose. Therefore, letting out the

site admeasuring an extent of Ac.0-44 cents in non-existing

Sy.No.1/6, Puttur Village and Mandal, Chittoor District, by

Respondent No.12/Puttur Fire Station to Respondent No.2/BPCL

is contrary to B.S.O 15(8). Apart from that, the retail outlet is

being established by Respondent No.2 within the radius of 50

meters to schools, convention centre, burial ground and water

tank, which is contrary to the guidelines issued by the Ministry of

Petroleum and contrary to Section 144 of Petroleum Rules.

MSM,J WP.No.23519 of 2020

Yet, another contention of the learned counsel for the

petitioners is that, the land is classified as „Tank Poramboke‟, all

the documents would clinchingly establish that it was tank

poramboke which cannot be alienated for commercial purpose and

it is contrary to B.S.O 15(8). Besides all the above contentions, the

specific contention raised by the learned counsel for the petitioners

is that, the petroleum outlet proposed to be established by

Respondent No.2 is just by the side of drinking water tank

admeasuring in an extent of Ac.0-44 cents in Sy.No.1/6, Puttur

Village and Mandal, Chittoor District, and part of it was given to

Puttur Fire Station, who in-turn is proposing to let out to

Respondent No.2 herein, thereby, there is every possibility of

emitting petroleum wastage, spilling of oil, which could

contaminate the drinking water and the water may become unfit

for consumption by the public. As establishment of retail

petroleum outlet just nearby burial ground where inflammables

are used for cremation of dead bodies, possibility of fire accidents

cannot be ruled out. Therefore, proposed establishment of

petroleum outlet in site admeasuring an extent of Ac.0-44 cents in

Sy.No.1/6, Puttur Village and Mandal, Chittoor District, which was

allotted to Puttur Fire Station is illegal and it is not only contrary

to the Board Standing Orders, but also causes serious health

hazard to the public. Thereby, issue of „No Objection Certificate‟ for

establishment of retail petroleum outlet by Respondent No.8 is

against the law and requested to declare the same as illegal,

arbitrary and set-aside the same.

MSM,J WP.No.23519 of 2020

Sri O. Manohar Reddy, learned Senior Counsel for

Respondent No.2/BPCL, while refuting the contentions of learned

counsel for the petitioners, drawn attention of this Court to

B.S.O 15(8), where the proposal is for transfer of land to

government department which are dealing with commercial

activities, but not against public utility services and the bar under

B.S.O 15(8) has no application. Apart from that, the schools,

colleges and other convention centers, are more than 50 mts away

to the land leased out by Respondent No.12 to Respondent No.2 for

establishment of petroleum outlet. Further, the burial ground and

the petroleum outlet are intervened by fire station and there is no

possibility of causing any damage to the petroleum outlet due to

use of inflammables for cremating the dead bodies in the burial

ground. Thereby, apprehension of these petitioners that there is a

possibility of causing damage to the public health is misplaced.

Finally, it is contended that the land is classified as fire station

poramboke, but not as tank poramboke, thereby, question of

spillage or letting out waste material from the petrol bunk into the

drinking water tank does not arise and the alleged contamination

of drinking water on account of establishment of petroleum outlet

is only apprehension of these petitioners, at the instance of

Petitioner No.21, who is running another outlet beyond 300 meters

from the present proposed outlet.

Finally, it is contended that, Respondent No.21 is a

competitor in business and a writ petition at the instance of

competitor in the business is not maintainable and he has no locus

standi to question the act of the Government.

MSM,J WP.No.23519 of 2020

Learned Government Pleader for Civil Supplies and learned

Government Pleader for Fire Services totally supported the act of

the respondents in toto, while submitting that, no schools, colleges

or educational institutions are available within the radius of 50

meters from the proposed petroleum retail outlet and no hospitals

are established within the radius of 50 meters. „No Objection

Certificate‟ was issued based on the representation from Tahsildar

and final report of Revenue Divisional Officer, after satisfying the

requirements, since the proposed outlet satisfied the regulations

and Section 144 of the Petroleum Rules, „No Objection Certificate‟

was issued and absolutely, there is no irregularity, illegality and

requested to dismiss the writ petition.

Ms. Sodum Anvesha, learned counsel for the petitioners and

Sri O. Manoher Reddy, learned Senior Counsel for Respondent

No.2 placed reliance on the judgments of Supreme Court and other

High Courts, which will be referred at appropriate stage, while

dealing with the issues raised by the parties before this Court.

Considering rival contentions, perusing the material

available on record, the points that arise for consideration are as

follows:

1. Whether grant of „No Objection Certificate‟ for establishment of retail petroleum outlet is violative of any of the guidelines issued by Ministry of Petroleum and Section 144 of Petroleum Rules. If so, whether „No Objection Certificate‟ issued by Respondent No. 8 be declared as illegal, arbitrary and set- aside the same?

MSM,J WP.No.23519 of 2020

2. Whether the establishment of retail petroleum outlet is within the „tank poramboke or „fire station poramboke‟, in an extent of Ac.0-44 cents in Sy.no.1/6 of Puttur and such establishment is permissible within the tank poramboke or fire station poramboke in terms of B.S.O.15(4) and B.S.O 15(8) of Andhra Pradesh Board Revenue Standing Orders?

3. Whether establishment of petroleum retail outlet is health hazard to the public and endangerous to the lives of public, as the proposed outlet is by the side of drinking water tank, burial/cremation ground. If so, whether grant of „No Objection Certificate‟ permitting Respondent No.2 to establish the retail petroleum outlet be declared as illegal, arbitrary and the permission be cancelled?

P O I N T Nos.1 & 2:

Before adverting to the contentions raised by the learned

counsel for the petitioners, it is appropriate to refer to the law laid

down by the Apex Court relating to power of this Court under

Article 226 of the Constitution of India to interfere with the

administrative decision of the State.

The jurisdiction of Court under Article 226 of Constitution of

India is limited and such power can be exercised only certain

circumstances which are enumerated in "West Bengal Central

School Service Commission v. Abdul Halim2" wherein the Apex

Court reiterated the following principles of judicial review.

"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision

(2019) 18 SCC 39 MSM,J WP.No.23519 of 2020

and calls for intervention Under Article 226 of the Constitution of India.

In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.

The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.

In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self- evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."

Keeping in view of scope of judicial review, various

contentions raised by both the parties, requires examination

legally.

MSM,J WP.No.23519 of 2020

The first and foremost contention of the learned counsel for

the petitioners is that, the land was transferred from Revenue

Department to Fire Service Department as per G.O.Ms.No.850

Revenue (U) Department dated 15.12.1988. The land in Sy.No.1,

Puttur Village and Mandal, Chittoor District, was sub-divided into

five parts, and transferred Ac.1-60 cents to Fire Service

Department. There is no dispute regarding transfer of Ac.1-60

cents to Fire Service Department (R-11) under G.O.Ms.No.850

Revenue (U) Department dated 15.12.1988 and the Collector,

Chittoor vide Proceedings R.Dis.No.13390/88 dated 31.12.1988

set-apart an extent of Ac.1-60 cents in Sy.No.1/5, Puttur Village

and Mandal, Chittoor District from „Puttur Tank Poramboke‟ into

„Fire Department Poramboke‟. Further, the Regional Fire Officer,

Southern Region, Anantapur is requested to ensure that the area

within Full Tank Level be raised above Full Tank Level, as

suggested by the Executive Engineer in the letter dated

05.11.1984.

Undisputedly, the land in Sy.No.1/1, Puttur Village and

Mandal, Chittoor District was classified as „Puttur Tank

Poramboke‟ and further, an extent of Ac.1-60 cents in Sy.No.1/5,

Puttur Village and Mandal, was reclassified as „Fire Services

Department Poramboke‟ and transferred to Respondent No.12.

B.S.O.22 (8) deals with Transfer of State Government lands

from one department to another. Clause (2) of B.S.O.22 is relevant

for the purpose for deciding the present controversy. According to

Clause (2), the land cannot be transferred to a Commercial MSM,J WP.No.23519 of 2020

Government Department. Respondent No.2 is not a Commercial

Government Department and it is only a public utility service.

However, the transfer of government land in favour of Respondent

No.2 is not an issue before this Court. But, the issue is whether

such land transferred to Respondent No.2 can be utilized for

commercial purpose by third party when it was leased out by

Respondent No.12 to Respondent No.2.

As seen from B.S.O.22(8)(2), prohibition is only against

transfer of land to a Commercial Government Department. Though

the land was transferred to Respondent No.12 which is not a

Commercial Government Department, the Fire Services

Department is using for commercial purpose, letting out to

Respondent No.2. Indirectly, Respondent No.12 intended to utilize

the site for commercial purpose, since retail petroleum outlet is

purely a commercial establishment. The land was transferred to

Respondent No.12 for its Fire Service activities and not for leasing

out commercial purpose. Therefore, indirectly Respondent No.12 is

using the site for commercial purpose by letting out the same to

Respondent No.2, on monthly rent of Rs.80,000/- which is

indirectly defeating the very purpose of Clause (2) of B.S.O.22(8).

Hence, the establishment of petroleum retail outlet by Respondent

No.2, obtaining lease from Respondent No.12 though not

prohibited, it is contrary to Clause (2) of B.S.O.22(8).

Sri O. Manoher Reddy, learned Senior Counsel for

Respondent No.2 contended that the prohibition is only against

transfer of government land in favour of Commercial Government MSM,J WP.No.23519 of 2020

Departments, but not against Respondent No.12/Fire Service

Department to Respondent No.2, which is not a Commercial

Government Department, but it is a public utility service. When

the land to an extent of Ac.1-60 cents is transferred to Respondent

No.12 for the purpose of establishing Fire Station and other allied

activities, the land cannot be leased out for commercial purpose.

Therefore, the contention of learned Senior Counsel is without any

substance and the same cannot be accepted, since the lease itself

defeats the very purpose of transfer of land to Respondent No.12.

The other contention of the learned counsel for the

petitioners is that, a petroleum retail outlet cannot be established

within 50 meters from schools, colleges, hospitals etc, as per the

guidelines issued by Indian Road Congress.

No doubt, the establishment of petroleum outlets are

governed by the guidelines issued by Central Pollution Control

Board vide B-11011/1/2019-20/AQM/10809 dated 07.01.2020.

Guideline No.H is relevant for the purpose of deciding the

controversy between the petitioners and Respondent No.2 and it is

extracted hereunder for better appreciation of the case.

"H. Siting criteria of Retail Outlets:

In case of siting criteria for petrol pumps new Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/dispensing units/vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws. In case of constrains in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case the distance between new retail outlet from schools, hospitals (10 beds and above) and residential area designated as per local laws shall be less than 30 meters. No high tension line shall pass over the retail outlet.

MSM,J WP.No.23519 of 2020

These guidelines are supplementary to all existing relevant Rules, Guidelines, Orders etc."

Thus, the above guidelines shall be strictly adhered to while

granting „No Objection Certificate‟ to establish new retail petroleum

outlet. As a part of enquiry, before issue of „No Objection

Certificate‟, a report was called from the Superintendent of Police,

Chittoor, and vide letter C.No.G2/4025/208/Petro(NOC)/2019

dated 13.02.2020, Superintendent of Police, Chittoor submitted a

report to the District Collector Chittoor, certifying as follows:

"The Inspector of Police, Puttur Urban PS has enquired with the neighbours of the proposed site and they stated that they do not have any objection for storage and selling of MS or HSD in the proposed site. There will not be traffic congestion, if the outlet is opened. It is not a busy center/junction. There are no electric, telephone cables passing through the land. It is not residential area. There is no school nearby. There is no hospital hereby. General public will not suffer any inconvenience because of this outlet opening at this site. Safe and security measures were also took by the Territory Manager (Retail) Bharat Petroleum Corporation Limited, Nellore, Retail Territory, 1st Floor, S.M. Towers, 24/1628, Dargamitta, Nellore in the proposed site."

Based on the above report, „No Objection‟ was reported by

the police for establishment of retail petroleum outlet.

The District Fire Officer, Chittoor District addressed a Letter

to the District Collector, Chittoor, vide Letter Rc.No.2569/A2/2019

dated 19.01.2020, stating that, as recommended by the Inspection

Committee, the District Fire Officer has no objection to issue

„Provisional No Objection Certificate‟ from Fire Point of view (Final

No Objection Certificate shall be obtained after completion of

construction and fulfilling of Fire Prevent Norms) for the proposed

storage of 15 KL of MS (Petroleum Class - A) and 20 KL HSD MSM,J WP.No.23519 of 2020

(Petroleum Class-B) in the above premises subject to the fulfilling

the following fire prevention precautionary measures as per OISD

Rules.

1. Shall provide 2 Nos. Foam extinguishers 9 liters capacity for 600 Meters each.

2. Shall provide 2 Nos. DCP Extinguishers of 5 Kg. Capacities at Generator Room.

3. Shall provide 2 Nos. Fire Points consisting of 12 Fire Buckets with dry sand in the premises.

4. Shall provide 2 Nos. of Co2 extinguishers of 4.5 kg capacity at Electrical mains fixed.

5. Shall provide 2 Nos. of D.C.P. extinguishers of 5 kg capacity in the office building if lubricants are stored/displayed.

6. The retail outlet shall easily approachable to fire appliances.

7. No Over head high tension lines shall pass through the compound

8. It should be seen that the cell phone users are requested to switch off the cell phones before entering the petrol pump premises by means of sign boards at conspicuous places.

9. Certain boards exhibiting the slogans such as not to carry matches, fuses or other appliances capable or producing ignition/explosion shall displayed at conspicuous places.

10. Care should be taken to prevent entry of petroleum products into drain/sewer/public road.

11. All the electrical fittings shall be protected properly with approved pattern to prevent short circuit and they must be flame proof.

12. All the Staff working in the premises shall well aware of the usage and maintenance of fire fighting equipment provided and they should be trained in first aid fire fighting courses.

13. If any spillage of fuel occurs immediately it shall covered with dry sand to be hung to a stand and cleared.

14. The vehicle engine shall stop during loading and unloading processes.

15. The customers shall stop engine of vehicles before refilling petroleum products.

16. Static charges shall dissipate while unloading.

17. No welding/cutting shall allowed within 30 meters from the storage area.

18. All the fire protection arrangements shall maintain in good working conditions as seen during inspection.

19. All the staff/occupants must know the correct method of operation of the fire fighting system installed.

20. Any loss of life of property due to non-functioning of fire safety measures and other installations shall be the responsibility of the management/owner.

21. All occupants/security personnel shall train to operate the fire safety equipments in case of emergency.

22. "No Smoking" boards should be displayed at various points.

23. The premises should always be kept clean and neat. No combustible wastes is allowed to accumulate in the premises.

24. Display of DOS and DONTS in case of fire and emergency telephone numbers in conspicuous places.

Based on the certificates, the Revenue Divisional Officer,

Chittoor, submitted a report in Lr.Roc.E/4608/2019 dated 11-02-

2020. In third paragraph of second page of the report, it is MSM,J WP.No.23519 of 2020

specifically stated by the Revenue Divisional Officer that, the

subject land is sub-divided as Sy.No.1/6 with an extent of

Ac.0-44 cents for the proposed petroleum retail outlet for storage of

15 KL of Motor Spirit and 20 KL of High Speed Diesel tank and

sales room for the motoring public on Karvetinagaram to Puttur

Road 9SH) and the proposed land in Sy.No.1/5 is recorded in the

webland records as Fire Service Department Poramboke. The

statements recorded are also placed on record to show that there is

no objection from the public for establishment of retail petroleum

outlet.

The main endeavour of the learned counsel for the

petitioners Ms. Sodum Anvesha is that, the transfer of tank

poramboke in favour of Respondent No.12/fire station in S.No.1/5

admeasuring an extent of Ac.1-60 cents is not for commercial

purpose, but, it is only for establishment of fire station, subject to

conditions in the proceedings referred above.

No doubt, it is to be examined whether an establishment of

petroleum outlet is in violation of any law. Undoubtedly, B.S.O

specifies that the land cannot be transferred to any commercial

government departments as per B.S.O 15(8). In fact, Respondent

No.12 is not carrying on any commercial activities, but leased out

the premises which is lying vacant without any use for the benefit

of the State. The enforceability of the Board Standing Orders was

considered by the Division Bench of the High Court of Andhra

Pradesh in Kanumuri Anji Raju v. State of Andhra Pradesh3,

candidly held that the Standing Orders are merely executive

1960 (2) An.W.R 272 (D.B) MSM,J WP.No.23519 of 2020

instructions issued for the guidance of officers who are to carry out

the policy of the Government. The said principle was reiterated by

the learned single Judge of the High Court of Andhra Pradesh in

Smt. C. Rajamma v. The District Collector4. Further, a learned

single Judge of this Court in Katta Rattamma v. Gannamaneni

Kotaiah5 held that the Standing Orders are only administrative

instructions and they do not have any statutory force, or force of

law. Therefore, standing orders are not having legal enforceability

and they are only guidelines for the purpose of administration.

Since, Board of Revenue Standing Orders are not a law

passed by the State Legislature or Parliament, passing an order in

violation of B.S.O 15 (8) cannot be held to be an order in violation

of law. Therefore, on the ground that the State violated

B.S.O.15(8), "No Objection Certificate" cannot be set-aside.

The main contention raised before this Court by the learned

counsel for the petitioners is that, land leased out to Respondent

No.2 by Respondent No.12 is adjacent to the water tank known as

Puttur Cheruvu which is being used for drinking water by the

public and that there is every possibility of letting out the effluents

from the petrol bunk and leakage of underground tanks, thereby,

the water is likely to be contaminated.

No doubt, Respondent No.2 obtaining the land on lease from

Respondent No.12, has to eradicate spillage or leakage from the

ground tanks, used for storage of High Speed Diesel and Motor

Spirit for sale of the same at the filling point. Either the petitioners

1995 (1) ALT 681

1975 (2) An.W.R 122 MSM,J WP.No.23519 of 2020

or the respondents did not disclose the distance between the tank

bund and proposed underground tanks to assess the possibility of

letting out the petroleum effluents into the tank or the possibility

of seepage due to leakage of petroleum products from underground

tanks into the water tank. While granting „No Objection Certificate‟,

the official respondents did not examine the possibility of seepage

or leakage of petroleum products from underground tank to the

drinking water tank situated in the same survey number, adjacent

to the premises where outlet is likely to be established. If, really,

there is any possibility of contamination of the drinking water,

which is hazardous to the public, grant of No Objection Certificate‟

is a serious threat to the lives of the public at large and it amounts

to violation of right to life guaranteed under Article 21 of the

Constitution of India.

Forests, tanks, ponds, hillock, mountain etc. are nature's

bounty. They maintain delicate ecological balance. They need to be

protected for a proper and healthy environment which enables

people to enjoy a quality life which is the essence of the guaranteed

right under Article 21 of the Constitution. The Government,

including the Revenue Authorities, having noticed that a pond is

falling in disuse, should have bestowed their attention to develop

the same which would, on one hand, have prevented ecological

disaster and on the other provided better environment for the

benefit of the public at large. Such vigil is the best protection

against knavish attempts to seek allotment in non-abadi sites.

(Vide Hinch Lal Tiwari v. Kamala Devi and others (referred

supra)) MSM,J WP.No.23519 of 2020

Therefore, the District Collector, Chittoor is directed to

examine the issue of possibility of leakage of petroleum products

from underground tank and seepage into the water tank adjacent

to the premises leased out to Respondent No.2 by Respondent

No.12 with the help of Technical Personnel and Environmental

Engineer, to find out whether. If, there is any possibility of

contamination of the water on account of letting out effluents into

the water tank by leakage or seepage of petroleum products from

the ground tank to water tank.

The other contention of the petitioners before this Court is

that, there is a burial ground near the site leased out by

Respondent No.12 to Respondent No.2. Since inflammables are

used for cremating dead bodies in the burial ground, there is any

amount of threat to the public life, as there is a possibility of

occurrence of fire accidents on account of use of inflammables.

Whereas, the respondents contended that the proposed outlet is on

one side of the fire station and burial ground is on the other side of

the fire station. Thus, the outlet of Respondent No.2 and burial

ground are intervened by the premises of more than Ac.115 cents

where a fire station is in existence. But, it is difficult for this Court

while exercising power under Article 226 of the Constitution of

India to examine whether there is any possibility of fire accidents

on account of use of inflammables in burial ground for cremation

of dead bodies, based on the distance between Respondent No.2

outlet and the burial ground. Therefore, the District Collector is

directed to examine this issue with the help of technical personnel,

including an Engineer from Pollution Control Board.

MSM,J WP.No.23519 of 2020

One of the contentions of the petitioners is that, Respondent

No.2 violated guidelines issued by Indian Road Congress, but,

Indian Road Congress is not a statutory authority and those

guidelines are not statutory in nature. Therefore, guidelines of

Indian Road Congress will have no statutory force. The same issue

was considered by the Madras High Court in S. Shanmugharaja v.

International Airport Authority (referred supra).

In Shailendra vs Smt.Saroj Bhatia6 Madhya Pradesh High

Court held as follows:-

" 12. Keeping in view the aforesaid judgment delivered by the Allahabad High Court in the case of Mahtab Ahmad (supra), this Court is of the considered opinion that the guidelines framed by the India Road Congress are not at all statutory guidelines and which can be enforced by this Court under Article 226 of the Constitution of India. Resultantly, the impugned order based upon the guidelines framed by the Indian Road Congress is accordingly quashed. In the present case, no other reason has been assigned by the respondent No.3 for denying the NOC to the petitioner and therefore, as this Court has quashed the impugned order, the petitioner and the respondent No.1 shall be free to establish a retail outlet as they have already obtained NOCs from various other authorities in accordance with law."

The Court finally concluded that, the guidelines of Indian

Road Congress are not binding, but the Ministry of Road Transport

and Highways has issued certain guidelines on "System

Improvement of Installation of Petrol/ Diesel /Gas Retail outlets

and Service Stations as well as access to private Properties along

National Highways through its Circular No. RW/NH-33023/19/99-

DO-III dated 31st August 2000 are binding on the State

Government. Therefore, violation of the guidelines issued by Indian

Road Congress is not a ground to interfere with the „No Objection

An unreported judgment of the Division Bench of Madhya Pradesh High Court dated 24.07.2015 made in Writ Appeal No.568 of 2014 MSM,J WP.No.23519 of 2020

Certificate‟ issued by the respondents for establishment of

petroleum retail outlet. At best, the Court has to examine whether

the respondents violated the guidelines issued by the Ministry of

Road Transport and Highways while issuing „No Objection

Certificate‟. In the absence of any contention, this Court is not

required to examine the guidelines issued by the Ministry of Road

Transport and Highways. In S. Shanmugharaja v. International

Airport Authority (referred supra), one of the contention before

the Madras High Court was that, wet land cannot be converted for

commercial purpose. The Madras High Court held that, it is not a

ground to deny No Objection Certificate.

One of the contentions raised by the learned counsel for the

petitioners is that, water bodies are to be protected by the

Government and they cannot be alienated even if they are dry.

Alienation of Ac.1-60 cents in favour of Fire Department is in

contravention of the law laid down by the Apex Court in Sarvepalli

Ramaiah v. District Collector, Chittoor7.

No doubt, the Apex Court held that, water bodies cannot be

alienated even if they are dry, and cultivation carried on dried bed

of water bodies does not denude land of its character as water

bodies.

If, this principle is applied to the present facts of the case,

allotment of Ac.1-60 cents to Respondent No.11 by the

Government vide G.O.Ms.No.850 Revenue (U) Department dated

15.12.1988 and change of classification of Ac.1-60 cents from tank

poramboke to fire station poramboke is impermissible. But, the

(2019) 4 Supreme Court Cases 500 MSM,J WP.No.23519 of 2020

question before this Court is not the validity of allotment of

Ac.1-60 cents for establishment of fire station as per

G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988. But,

the only dispute is about illegality of the No Objection Certificate

issued by the Joint Collector. Hence, this Court need not examine

the issue of validity of transfer and conversion of tank poramboke

into fire station poramboke, which was a part of Puttur Tank in

Sy.No.1 of Puttur Village and Mandal, Chittoor District. Therefore,

the law declared by the Apex Court needs no consideration and it

is not helpful to the petitioners to set-aside the No Objection

Certificate.

Learned counsel for the petitioners relied on another

judgment of the Apex Court in Jitendra Singh v. Ministry of

Environment8, where the Apex Court held that allotment of local

ponds to private industrialists for industrial purposes is violative of

Article 21 of the Constitution of India and concluded that the

scheme of allowing destruction of existing water bodies and

providing for replacements, exhibits a mechanical application of

environmental protection. Although it might be possible to

superficially replicate a water body elsewhere, however, there is no

guarantee that the adverse effect of destroying the earlier one

would be offset. Destroying the lake would kill the vegetation

around it and would prevent seepage of groundwater which would

affect the already low watertable in the area. The people living

around the lake would be compelled to travel all the way to the

alternative site. Many animals and marine organisms present in

the earlier site would perish, and wouldn‟t resuscitate by merely

Civil Appeal No.5109 of 2019 dated 25.11.2019 MSM,J WP.No.23519 of 2020

filling a hole with water elsewhere. Further, the soil quality and

other factors at the alternate site might not be conducive to growth

of the same flora, and the local environment would be altered

permanently. The respondents‟ reduction of the complex and

cascading effects of extinguishing natural water bodies into mere

numbers and their attempt to justify the same through

replacement by geographically larger artificial water bodies, fails to

capture the spirit of the Constitutional scheme and is, therefore,

impermissible.

The State is under obligation to protect the ecology and

improve environment and safeguard forests and wild life. The

State shall endeavor to protect and improve the environment and

to safeguard the forests and wild life of the country -- Vide Article

48-A of the Constitution of India.

Article 51A deals with fundamental duties. According to

Article 51A(g), it shall be the duty of every citizen of India to protect

and improve the natural environment, including forests, lakes,

rivers and wild life, and to have compassion for living creatures.

Thus, Article 48-A and Article 51A(g) obligates the State to protect

environment and make every endeavor to protect lakes, rivers etc.,

to maintain the ecology balances. Since the ownership and control

over material resources of the community are lies with the State,

such resources are to be distributed as best to sub-serve the

common good - Vide Article 39(b) of the Constitution of India.

The vacant lands, lakes, rivers etc., are under the direct

control of the State and the State has to maintain those rivers,

lakes, tanks as stated above by applying the doctrine of public MSM,J WP.No.23519 of 2020

trust and right to life. It is for the State to allot such lands in

various circumstances being the custodian of the property of the

public. The doctrine of public trust was considered by the Apex

Court in "M.C.Mehta v. Kamal Nath9" (Citation is not correct)

where the Himachal Pradesh State Government had leased out a

protected forest area on the bank of river beas to motels, for

commercial purposes, the Supreme Court held that the State is

more responsible for maintaining natural resources. Similarly, the

Apex Court in "Subhash Kumar v. State of Bihar10" held that

right to life is a fundamental right which includes the right of

enjoyment of pollution free water and air for full enjoyment of life.

At the same time, in the guise of sustainable development, the

State cannot allow the properties to whomsoever the State likes.

While allowing the public property to the third parties, the

State has to keep in mind its consequences on the environment

and the obligation of the State under the Constitution of India to

keep up the heritage and culture. The 42nd amendment to the

constitution of India added Article 48A and 51A(g) which comes

under the directive principle of State policy and the fundamental

duties respectively. The Supreme Court of India in "Sachidanand

Pandey v. State of West Bengal11" stated that the Court is bound

to bear in mind the above said articles whenever a case related to

environmental problem is brought to the court. In "Damodar Rao

v. S.O. Municipal Corporation12" the Apex Court held that the

environmental pollution and spoliation which is slowly poisoning

(1997) 1 SCC 388

1991 AIR 420

AIR 1987 SC 1109

AIR 1987 AP 171 MSM,J WP.No.23519 of 2020

and polluting the atmosphere should also be regarded as

amounting to violation of Article 21 of the Constitution of India.

Similar question came up for consideration before the Apex

court in "Intellectuals Forum, Tirupathi v. State of A.P.13")

wherein the Division Bench of the Apex Court has considered the

allotment of tanks known as „Avilala Tank‟ and „Peruru Tank‟,

which are situated in the suburbs of Tirupathi Town, which is a

world renowned popular pilgrim centre to housing board for

construction of residential houses to the public, but a social

spirited person approached the court for judicial remedy before

this Court challenging the allotment of land by G.O.Ms. No.181

Rev. dated 15.3.1991 alienating an extent of 150 acres of land

which belongs to the tank bed area of Peruru tank to Tirumala

Tirupathi Devasthanam (in short, TTD) and to Housing Board etc.,

were challenged. The Writ Petition No.7955 of 1994 was filed

assailing G.O.Ms.No.181, dated 15.3.1991 in respect of alienation

of Peruru tank bund land to TTD and Writ Petition No.8650 of

1994 was filed assailing G.O.Ms.No.84-Revenue Department, dated

28.1.1994 in respect of alienation of Avilala tank bed area land to

A.P. Housing Board. The High Court dismissed the writ petitions

on various grounds and aggrieved by the order of this Court, the

public spirited person approached the Supreme Court. The Apex

Court, after considering the facts and circumstances of the case,

concluded that alienation of tank bund land vide G.O. Ms.No.84,

dated 28.1.1994 is in violation of Articles 48A and 51A(g) of the

(2006) 3 SCC 549 MSM,J WP.No.23519 of 2020

Constitution of India, after considering the doctrine of „sustainable

development‟ and observed as follows :

"On realizing the importance of restoration of tank basins towards conservation of water and recharging of ground water, increase the storage capacity of tanks, renovating the tank bunds as well as feeder channels, TUDA has taken over 30 tanks in its operational area for taking up the improvements. Proposals include removal or eviction of encroachments, desilting of tank basins, clearing of jungle, strengthening of tank bunds, excavation of boundary trenches, widening and excavation of feeder channels, construction of boundary pillars and compound walls along the tank boundary. Block plantation, programmes for development as landscaped parks and water based entertainment units for the benefit of the public in off shore areas of the tanks have been proposed wherever feasible and viable. Towards protection of environment, provision for treatment system is also made in the project to take care of entry of drainage/sullage into the tank storages. Block plantation on all on- shore areas of tank have been taken up as a part of Neeru Meeru programme to prevent erosion of soils and entry of encroachments which will have long term positive environment results."

But, appointed an expert committee to examine the issue

and after careful perusal of expert committee‟s report, it was

accepted to some extent, but, in the interest of protecting

environment and social development, this Court placed reliance in

the case of "M.C.Mehta v. Kamal Nath (referred supra), wherein

the Apex Court in para 35 held as under :

"The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibility, who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not for the Courts. If there is a law made by Parliament or the State Legislatures, the Courts can serve as an instrument for determining legislative intent in the MSM,J WP.No.23519 of 2020

exercise of powers of judicial review under the Constitution. But, in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resource and convert them into private ownership or commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the Courts find it necessary, in good faith, for the public and in public interest to encroach upon the said recourses."

On the basis of the principle in "M.C.Mehta v. Kamal Nath

(referred supra)" the Supreme Court held that the responsibility of

the state to protect the environment is now a well-accepted notion

in all countries. It is this notion that, in international law, gave

rise to the principle of "state responsibility" for pollution emanating

within one‟s own territories [Corfu Channel Case, ICJ Reports

(1949)4].

The Apex Court also referred the declaration of environment

and development passed during the Earth Summit at 1992 to

which India is also a party, adopted the notion of sustainable

development principle i.e., in order to achieve sustainable

development, environmental protection shall constitute an integral

part of the development process and cannot be considered in

isolation from it.

The Apex Court in the case of "Essar Oil v. Halar Utkarsh

Samiti14" was pleased to expound on this. Their Lordships held :

"This, therefore, is the sole aim, namely, to balance economic and

social needs on the one hand with environmental considerations

on the other. But in a sense all development is an environmental

2004(2)SCC 392, para 27 MSM,J WP.No.23519 of 2020

threat. Indeed, the very existence of humanity and the rapid

increase in population together with the consequential demands to

sustain the population has resulted in the concreting of open

lands, cutting down of forests, filling up of lakes and the pollution

of water resources and the very air that we breathe. However there

need not necessarily be a deadlock between development on the

one hand and the environment on the other. The objective of all

laws on environment should be to create harmony between the two

since neither one can be sacrificed at the altar of the other."

A similar view was taken by the Apex Court in "Indian

Council for Enviro-Legal Action v. Union of India15" where their

Lordships said : "While economic development should not be

allowed to take place at the cost of ecology or by causing

widespread environmental destruction and violation; at the same

time the necessity to preserve ecology and environment should not

hamper economic and other developments. Both development and

environment should go hand in hand, in other words, there should

not be development at the cost of environment and vice versa, but

there should be development while taking due care and ensuring

the protection of the environment."

Here, in the present case, the conversion of water body i.e

tank poramboke into fire station poramboke is not a question to

apply, though the law is not in dispute. Viewed from any angle,

this Court need not examine the legality of the allotment of Ac.1-60

cents to Respondent No.11 by the State under G.O.Ms.No.850

Revenue (U) Department dated 15.12.1988 and that, on allotment,

1996 (5) SCC 281, Para 31 MSM,J WP.No.23519 of 2020

land of an extent of Ac.1-60 cents in Sy.No.1/6 became fire station

poramboke thereby lost it‟s original classification. However, this

Court already made an observation that question as to

contamination of water and possibility of fire accident in the earlier

paragraphs and issued the directions to the District Collector to

inspect and take appropriate action.

The Field Measurement Book of Sy.No.1/1 produced before

this Court clearly shows that the proposed petroleum retail outlet

is adjacent to the water tank.

There is any amount of discrepancy in identification of the

property with reference to survey number. Originally, Sy.No.1/1

consisted of land of an extent of Ac.138-10 cents. Thereafter,

G.O.Ms.No.850 dated 15.12.1988, land in an extent of Ac.1-60

cents in S.No.1/5 is carved out from original extent of Ac.138-10

cents, changing the classification as „Fire Service Department

Poramboke‟ and allotted the same to Respondent No.12. But, in

Respondent No.8/Joint Collector „No Objection Certificate‟, for the

land of an extent of Ac.0-44 cents, Survey No.1/6, Puttur, Chittoor

District, is mentioned.

At one stage, survey number is mentioned as „1/6‟ and at

another stage as „1/5‟. In the letter addressed by Revenue

Divisional Officer, Chittoor to The District Collector, Chittoor vide

Lr.Roc.E/4608/2019 dated 11.02.2020, it is mentioned as follows:

"........remaining portion of the land which is in possession of the Fire Department., and is sub-divided it as Sy.No.1/6 with an extent of 0.44 cents for the proposed petroleum retail outlet MSM,J WP.No.23519 of 2020

..........and the proposed land in Sy.No.1/5 is recorded in the webland as follows:

      Sl.No.         Sy.No       Extent                Classification
      1              1/5         1.60 cents            Poramboke

Thus, it is clear that, from Ac.138-10 cents, only Ac.1-60

cents is carved out assigning the survey number as „1/5‟ and

allotted to Fire Service Department. If the original sub-division

proceedings are accepted, the subject land is in S.No.1/5, but not

in S.No.1/6. The official respondents created lot of confusion to

identify the property with reference to sub-division of Sy.No.1/6.

In fact, as per the sub-division proceedings, no other extent is

carved out assigning Sy.No.1/6.

The petitioners claimed writ of mandamus to declare the

action of the respondents, more particularly, Respondent No.8 in

issuing „No Objection Certificate‟ dated 01.06.2020 for setting up

petroleum retail outlet of Respondent No.2 in the land of

Respondent No.12/Puttur Fire Station in Survey No.1/6, Puttur

Mandal, Chittor District.

However, in the counter affidavits, respondents specifically

asserted that, „NOC‟ dated 01.06.2020 was issued by the Joint

Collector, Chittoor in terms of Rule 144 of the Petroleum Rules,

2002 at the instance of application submitted by Respondent

No.4/Territory Manager, BPCL, to set up a petroleum retail outlet

in an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Town, Chittoor

District.

It is further averred that land admeasuring an extent of

Ac.1-60 cents in Sy.No.1/6 was allotted to Fire Station

Department. The Fire Station is set up in the outskirts of Puttur in MSM,J WP.No.23519 of 2020

the land admeasuring an extent of Ac.1-60 cents with an intention

of future expansion to accommodate more vehicles as and when

the town develops.

Similarly, Respondent No.6 also specifically asserted that,

Respondent No.8 issued „NOC‟ dated 01.06.2020 for establishment

of petroleum retail outlet in the site allotted to fire station

department in accordance with G.O.Ms.No.850 Revenue (U)

Department dated 15.12.1988 and the same was incorporated by

the Collector, Chittoor vide Proceedings R.Dis.No.13390/88 dated

31.12.1988 duly changing the classification from Puttur Tank

Poramboke to Fire Service Department Poramboke to an extent of

Ac.1-60 cents comprised in Sy.No.1/6 which is a part of Sy.No.1/1

out of an extent of Ac.138-10 cents. The report submitted by the

Revenue Divisional Officer also discloses that, „NOC‟ was issued to

set up petroleum outlet in an extent of Ac.0-44 cents in Sy.No.1/6

of Puttur Village and Mandal, Chittoor District.

As seen from the material on record, more particularly, the

Proceedings R.Dis.No.13390/88 dated 31.12.1988 of the District

Collector, out of Ac.138-10 cents in Sy.No.1/1, only Ac.1-60 cents

in Sy.No.1/5 was allotted to Fire Station Department and classified

as Fire Service Department Pormboke, sub-dividing the land in

Sy.No.1/1 as Sy.No.1/1 and Sy.No.1/5. No proceedings were

issued subsequent to these proceedings subdividing the land in

Sy.No.1/5 which was allotted to Fire Station Department, classified

as Fire Station Poramboke. But, the respondents issued „NOC‟ for

setting up petroleum retail outlet of Respondent No.4 on its

application. When the Fire Station Department is allotted Ac.1-60 MSM,J WP.No.23519 of 2020

cents in Sy.No.1/5, in the absence of further sub-division,

question of leasing out the land of an extent of Ac.0-44 cents in

Sy.No.1/6, which is not in existence as on date, does not arise.

Therefore, grant of „NOC‟ for establishment of petroleum outlet in

an extent of Ac.0-44 cents in Sy.No.1/6 of Puttur Village and

Mandal is illegal and arbitrary and Fire Station

Department/Respondent No.12 is incompetent to lease out the

land which was allotted to it by the Government vide

G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988.

Apart from that, the Endorsement in R.T.I Application

No.226/2020 dated 17.11.2020 issued by the Tahsildar‟s office,

Puttur, it is specifically stated that the land of an extent of Ac.1-60

cents in Sy.No.1/5 has been handed over to Fire Department,

Puttur. The FMB of the village annexed to it also would disclose

that Fire Station Poramboke is only in Sy.No.1/5. But, Sy.No.1/6

is also shown beyond Sy.No.1/5. It is an admitted fact that, only

an extent of Ac.1-60 cents in Sy.No.1/5 was allotted to the Fire

Station Department, but not the land in Sy.No.1/6 of Puttur

Village. Therefore, the question of leasing out Ac.0-44 cent sof land

in Sy.No.1/6 by Fire Station Department is without any authority

under law. Even, in the „NOC‟ dated 01.06.2020 issued by

Respondent No.8/Joint Collector, it is clear that, Respondent No.4

agreed to set up petroleum outlet at Survey No.1/6 / Gate No. an

extent 0-44 cents / Khasra No. - Plot No. - Village Puttur

Taluka/Tehsil Puttur Mandal, District Chittoor, Andhra Pradesh.

Thus, the respondents failed to prove that land in Sy.No.1/6

was allotted to Fire Station Department i.e. Respondent No.11, MSM,J WP.No.23519 of 2020

while admitting that Ac.1-60 cents in Sy.No.1/5 was allotted to

Fire Station Department and classified as Fire Station Poramboke

vide Proceedings R.Dis.No.13390/88 dated 31.12.1988 duly

changing the classification from Puttur Tank Poramboke to Fire

Service Department Poramboke.

It is also not on record that the land in Sy.No.1/5 is again

sub-divided by following necessary procedure, setting apart land in

Ac.0-44 cents for setting up petroleum retail outlet. In the absence

of any proof that, Ac.0-44 cent was separated from Ac.1-60 cents

in Sy.No.1/5 allotted to fire station department/Respondent No.11,

by following necessary procedure for sub-division, it is difficult to

accept the contention of the respondents that the land in

Sy.No.1/6 forms part of the land allotted to fire station

department.

Apart from that, in G.O.Ms.No.119 dated 28.03.2017 the

State issued the Andhra Pradesh Building Rules, 2017 (for short

"Rules)) and imposed certain restrictions on building activity in the

vicinity of certain areas. Rule 3 (a) of the Rules deals with "Water

Bodies", which reads as follows:

(a) Water Bodies

(i) No building / development activity shall be allowed in the bed of water bodies like river or nala and in the Full Tank Level (FTL) of any lake, pond, cheruvu or kunta / shikam lands. Unless and otherwise stated, the area and the Full Tank Level (FTL) of a Lake / Kunta shall be reckoned as measured and as certified by the Irrigation Department and Revenue Department.

(ii) The above water bodies and courses shall be maintained as Recreational/Green Buffer Zone and no building activity shall be carried out within:

(1) 50m within the limits of the Local Authorities. The boundary of the river shall be as fixed and certified by the Irrigation Department and Revenue Department.

(2) 30m from the FTL boundary of Lakes / Tanks / Kuntas of area 10Ha and above.

MSM,J WP.No.23519 of 2020

(3) 9m from the FTL boundary of Lakes / Tanks / Kuntas of area less than 10Ha / shikam lands;

(4) 9m from the defined boundary of Canal, Vagu, Nala, Storm Water Drain of width more than 10m.

(5) 2m from the defined boundary of Canal, Vagu, Nala, Storm Water Drain of width up to 10m.

In view of these guidelines, raising any construction within

the limits prescribed therein is prohibited. Though, G.O.Ms.No.119

dated 28.03.2017 was issued by the Municipal Administration and

Urban Development Department, still, the same can be applied,

with a view of protect the environment and ecology and to see that

no further damage is being caused to the water bodies. Therefore,

within 50 meters from the water bodies, no construction be laid.

But, here, Respondent No.4 intended to set up petroleum outlet

which is totally contrary to the Andhra Pradesh Building Rules,

2017. In view of the law laid down by the Apex Court in the

judgments referred supra and the Andhra Pradesh Building Rules,

2017, the proposed construction of petroleum outlet within 50

meters from the outer bund of the tank is impermissible.

Accordingly, the point is answered.

P O I N T NO.3

The main contention of the respondents is that, the

petitioners are not the residents of Puttur Village or surrounding

area where the petroleum outlet is established, more particularly,

Petitioner No.21 has no locus standi to file the petition, being a

rival businessman dealing with the same business.

As seen from the cause title of the writ petition, the

residential addresses of the petitioners is as follows:

MSM,J WP.No.23519 of 2020

S.No Name of the Residential area/locality petitioner 1 M. Himachalam Babu Kavamma Temple Street, Puttur 2 N. Gopi Krishna Swami Street, Puttur 3 G. Kannaya Vinayakapuram, Puttur 4 S. Balaji Cherlopalle Village, Puttur Mandal 5 M.Thangarajan Gallapalli Village, Puttur Mandal 6 P. Hema Kumar Bazaar Street, Puttur 7 P. Lokanatham Konapagunta village, Puttur Mandal 8 T. Gurunatham Kunapagunta Village, Puttur Mandal 9 M. Sadhguna Lakshminagar, Puttur 10 G. Prasad Vinayakapuram, Puttu 11 P. Subramanyam Sayudhayat Village, Puttur Mandal 12 M. Vasu Kalyanapuram, Puttu 13 K. Thulasi Adivi, Puttur Mandal 14 S. Hari Prasad Cherlopalle Village, Puttur Mandal 15 S. munuswamy Vinayakapuram Village, Puttur Mandal 16 M. Kannayya Vinayakapuram Village, Puttur Mandal 17 M. Ramesh Reddy Jandyayan Street, Puttur 18 Lakshmaiah K. Nagaram, Puttur 19 R. Prakash Arantamma Colony, Puttur 20 P. Purushottam Konapagunta Village, Puttur Mandal 21 M/s. Bhanodaya Lakshmi Nagar, Puttur Petroleum Products, IOCL

There is an apprehension with regard to water getting

contaminated and that is to be examined by the authorities as

directed in the earlier paragraphs. Petitioner No.21/M/s.

Bhanodaya Petroleum Products (IOCL) is a rival business

establishment.

Sri O. Manoher Reddy, learned Senior Counsel contended

that, it is settled law that a rival businessman has no locus standi

in support of his/her contention placed reliance on the judgment

of the Apex Court in Jasbhai Motibhai Desai v. Roshan Kumar

and others16, where the Apex Court held that Rules did not confer

any substantive right on rival in cinema trade, apart from option,

in common with rest of public, to lodge objection in response to

notice published under Rule 4 of Bombay Cinema Rules, 1954 and

as no explanation was given for not preferring any objection to

AIR 1976 SC 578 MSM,J WP.No.23519 of 2020

grant „No Objection Certificate‟ before District Magistrate or

Government and the appellant did not fall within category of such

persons who had special interest in locality, he had not sustained

injury to any legally protected interest and did not suffer any legal

grievance, therefore, appellant was not person aggrieved and he

had no locus standi to challenge grant of No Objection Certificate.

In view of the principle laid down by the Apex Court in the

judgment referred supra, Petitioner No.21 is incompetent to

question the „No Objection Certificate‟ issued by the Joint

Collector/Respondent No. 8 as he has no locus standi and question

of sufferance of injury does not arise and it does not amount to

violation of fundamental right guaranteed under Article 19(1) of the

Constitution of India, since certain exceptions are carved out to

such right and it is not an absolute right, but subject to restriction

under Clause (6) of Article 19 of the Constitution of India. The

same was considered by the Madras High Court in

S. Shanmugharaja v. International Airport Authority (referred

supra) and by applying the same principle, I find no illegality in

issuing No Objection Certificate, but subject to directions referred

above.

Accordingly, the Point No.3 is answered against Petitioner

No.21 and in favour of Respondent No.8/Joint Collector.

In any view of the matter, in view of G.O.Ms.No.119 dated

28.03.2017 and the law laid down by the Apex Court in judgments

referred supra, it is the duty of the State to protect the water

bodies. But the State itself is violating the directions issued by the MSM,J WP.No.23519 of 2020

Apex Court and guidelines issued in G.O.Ms.No.119 dated

28.03.2017, which is impermissible under law. Hence, the „No

Objection Certificate‟ dated 01.06.2020 is set-aside, while directing

Respondent No.6/District Collector to re-examine the issue

whether the land is in Sy.No.1/6 or Sy.No.1/5 belonging to the

Fire Station Department; assess the environmental impact and

upon re-examination, the Joint Collector shall pass reasoned order

while granting „No Objection Certificate‟, since the Joint Collector

did not take into consideration the additional aspects.

In the result, writ petition is allowed, setting-aside the

„No Objection Certificate‟ dated 01.06.2020, while directing

Respondent No.6/District Collector to re-examine the issue

whether the land is in Sy.No.1/6 or Sy.No.1/5 belonging to the

Fire Station Department; assess the environmental impact,

whether construction is in accordance with Andhra Pradesh

Building Rules, 2017 and upon re-examination, the Joint Collector

shall pass reasoned order. No costs.

Consequently, miscellaneous applications pending if any,

shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.09.2021

SP