Shajida Shajahan vs The District Collector, Kottayam ...
2021 Latest Caselaw 14786 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
            THE HONOURABLE MR. JUSTICE T.R.RAVI
  THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                   WP(C) NO. 4656 OF 2021
PETITIONER:
          SHAJIDA SHAJAHAN
          AGED 53 YEARS
          W/O. P.A.SHAJAHAN, KOLLAMPARAMPIL HOUSE,
          MADAPPALLY VILLAGE, CHANGANASSERY, KOTTAYAM.
         BY ADVS.
         R.SUNIL KUMAR
         SMT.A.SALINI LAL
         SHRI.ARUN KRISHNA

RESPONDENTS:
    1     THE DISTRICT COLLECTOR, KOTTAYAM DIST
          COLLECTORATE, KOTTAYAM-686001.
    2    ADDITIONAL DISTRICT MAGISTRATE,
         COLLECTORATE, KOTTAYAM-686001.
    3    THE EXECUTIVE ENGINEER,
         PWD ROADS DIVISION, KOTTAYAM-686001.
    4    INDIAN OIL CORPORATION LIMITED,
         REP. BY ITS CHIEF REGIONAL MANAGER, TRIVANDRUM
         DIVISIONAL OFFICE, GROUND FLOOR, PREMIER PARK,
         INCHAKKAL BYE PASS ROAD, VALLAKKADAVU P.O.,
         THIRUVANANTHAPURAM.
         BY ADVS.
         SRI.M.GOPIKRISHNAN NAMBIAR
         SRI.K.JOHN MATHAI
         SRI.JOSON MANAVALAN
         SRI.KURYAN THOMAS
         SRI.PAULOSE C. ABRAHAM
         SRI.RAJA KANNAN
         SMT. DEEPA NARAYANAN,SR.GP.
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)No.4656 of 2021
                                          :-2-:

                         Dated this the 15th day of July, 2021

                                  JUDGMENT

This Writ petition has been filed seeking to quash Exhibit P4

order issued by the 2nd Respondent, whereby the request for a

non-objection Certificate for starting a petroleum retailing outlet

was rejected. There is also a prayer to quash Exhibit P5

Government order dated 16.10.2020, whereby it is ordered that

the norms/guidelines issued as per Government order dated

10.2.2020 for the purpose of access permission to fuel stations

was replaced by another set of guidelines.

2. Heard Smt.A.Salini Lal on behalf of the petitioner,

Sri.M.Gopikrishnan Nambiar, Standing counsel for the 4 th

Respondent and Smt.Deepa Narayanan, Senior Government

pleader on behalf of Respondents 1 to 3.

3. The petitioner had offered the property belonging to

her husband in Madappally village in Changanachery Taluk to the

4th Respondent, for the purpose of starting a petroleum outlet and

applied for allotment of an outlet in the said property. By Exhibit W.P.(C)No.4656 of 2021 :-3-:

P1 offer letter, the 4th Respondent accepted the proposal of the

petitioner. Under Rule 144 of the Petroleum Rules, a no objection

Certificate ('NOC', for short) has to be obtained from the 1 st

Respondent. The 4th Respondent submitted Exhibit P2 application

for NOC. The 4th Respondent had written to the District Police

Chief, the Tahsildar, Kottayam, the District Fire Officer, Kottayam

and the Executive Engineer of PWD(Roads), Kottayam to report

whether there are any negative aspects involved in allowing a

petroleum outlet in the petitioner's property.

4. The PWD Executive Engineer submitted a report stating

that the site does not comply with the IRC norms. The petitioner

filed W.P.(C) No. 23849 of 2019 before this Court. This Court by

an interim order, directed the District Collector to consider the

application for NOC without referring to IRC/MoRTH norms within

a period of 3 weeks. Even though the direction was issued to the

1st Respondent, the 2nd Respondent heard the matter and rejected

NOC on the ground that there were objections raised by the

neighbours. The petitioner challenged the order issued by the 2 nd W.P.(C)No.4656 of 2021 :-4-:

Respondent in W.P.(C) No.31531 of 2019. By Ext.P3 judgment,

this Court set aside the order issued by the 2 nd Respondent and

remanded the matter for re-consideration. The 2nd Respondent

sought a report from the 3rd Respondent, who reported that the

site does not comply with the conditions laid down in the latest

Government Order No.67/2020. The request for NOC was once

again rejected by the 2nd Respondent, as per Exhibit P4 order

dated 8.2.2021, for the reason that the site does not comply with

the requirements contained in Exhibit P5 Government order

issued on 16.10.2020.

5. It is the case of the petitioner that Exhibit P5 order is a

reproduction of the earlier MoRTH guidelines and that the said

guidelines cannot stand the scrutiny of law in the light of the

judgment of this Court in Mary Ulahannan vs. Union of India

reported in 2011(3)KLT 570. It is submitted by the Counsel for

the petitioner that, even though the above judgment was set

aside by a Division Bench of this Court, the judgment of the

Division Bench was set aside by the Hon'ble Supreme Court in the W.P.(C)No.4656 of 2021 :-5-:

judgment dated 2.4.2013 in Civil Appeal Nos.2784/2013 to

2792/2013. It is hence submitted that the law is now settled that

the State Government cannot frame Rules with regard to starting

of petroleum outlet. The petitioner hence prays that Exhibit P4

order may be set aside. The petitioner relies on the judgments of

this Court in W.P.(C)Nos.22093/2020 and 25329/2020, wherein

this Court had directed the 1st Respondent to reconsider the issue

and pass orders on the basis of the government orders that were

in force at the time of filing of the application. The petitioner

prays for a similar direction in this case also.

6. This Court, in Exhibit P3 judgment in W.P.(C) No.

31531 of 2019 filed by the petitioner herein, had considered the

rejection of the request for NOC on the earlier occasion, and

found that on the basis of the circular dated 18.8.2020 issued by

the Kerala State Pollution Control Board, in cases where the

applicant had obtained any other license prior to the circular

dated 24.2.2020, then the siting criteria mentioned in circular

dated 9.8.2004 will be applicable. This Court clearly found that W.P.(C)No.4656 of 2021 :-6-:

the grounds based on which NOC was declined earlier cannot

stand the scrutiny of law and hence directed a reconsideration of

the application. A bare reading of Exhibit P4 order will show that

the authority has issued the order without complying with the

specific direction contained in Exhibit P3 judgment. In paragraph

21 of Exhibit P3 judgment this Court had specifically found that

the circular of the Pollution Control Board which shall be

applicable was the circular dated 9.8.2004. As such, there is

absolutely no justification for rejecting the request for NOC on the

basis of Exhibit P5 Government order. Admittedly, Exhibit P3

judgment was not challenged by the Respondents and the same

has become final. The judgments in W.P.(C)Nos.22093/2020 and

25329/2020 are also rendered in similar circumstances. Reliance

placed in Exhibit P4 on Exhibit P5 Government order is hence not

justified. Exhibit P4 order is quashed. The 1 st and 2nd respondents

are directed to reconsider the request made by the petitioner for

NOC in the light of the specific findings and directions contained in

Exhibit P3 judgment and strictly in compliance with the W.P.(C)No.4656 of 2021 :-7-:

government orders that were in force at the time the application

was made. The order shall be issued within one month from the

date of receipt of a certified copy of this judgment.

All pending interlocutory applications are closed.

Sd/-

T.R.RAVI, JUDGE ami/ W.P.(C)No.4656 of 2021 :-8-:

APPENDIX OF WP(C) 4656/2021

PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 26.2.19.

EXHIBIT P2 COPY OF THE APPLICATION FILED BY THE 4TH RESPONDENT FOR GETTING NOC TO THE OUT LET AWARDED TO THE PETITIONER DATED 16.4.19.

EXHIBIT P3 COPY OF THE JUDGMENT IN W.P.(C) NO.31531/2019 DATED 11.2.2020.

EXHIBIT P4 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 8.2.2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5 COPY OF THE G.O.(M.S.)NO.67/2020 DATED 16.10.2020.