Philip John vs State Of Kerala
2021 Latest Caselaw 7727 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                  WP(C).No.12132 OF 2020(N)


PETITIONER:

              PHILIP JOHN,
              AGED 70 YEARS,
              S/O. YOHANNAN, THARAYIL VEEDU,
              KALLELIBHAGOM P.O.,
              KARUNAGAPPALLY, KOLLAM- 690 519

              BY ADVS.
              SRI.P.B.SAHASRANAMAN
              SRI.T.S.HARIKUMAR

RESPONDENTS:

     1        STATE OF KERALA,
              REPRESENTED BY ITS CHIEF SECRETARY,
              GOVERNMENT OF KERALA,
              THIRUVANANTHAPURAM - 695 001.

     2        UNION OF INDIA,
              MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
              REPRESENTED BY ITS SECRETARY,
              TRANSPORT BHAVAN 1,
              PARLIAMENT STREET,
              NEW DELHI-110 001.

     3        THE ADDITIONAL DISTRICT MAGISTRATE,
              COLLECTORATE,
              KOLLAM- 691 013.

     4        THE TERRITORY MANAGER (RETAIL),
              BHARAT PETROLEUM CORPORATION LIMITED,
              IRIMPANAM INSTALLATION,
              IRIMPANAM,
              KOCHI- 682 309.
 W.P.(C) No.12132/2020
                             :2:


ADDL.   5    V.N. DEVARAJAN,
             VALIYAPARAMBIL, GRAMAM,
             ENNAKKADU P.O.,
             CHENGANNUR,
             ALAPUZHA- 689 624.

             IS IMPLEADED AS PER ORDER DATED 01-07-2020 IN
             I.A.No.01/2020

             R4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
             R4 BY ADV. SRI.K.JOHN MATHAI
             R4 BY ADV. SRI.JOSON MANAVALAN
             R4 BY ADV. SRI.KURYAN THOMAS
             R4 BY ADV. SRI.PAULOSE C. ABRAHAM
             R5 BY ADV. SRI.R.SUNIL KUMAR
             R5 BY ADV. SMT.A.SALINI LAL
             R2 BY SRI P. VIJAYAKUMAR, ASGI
             R1-3 GOVERNMENT PLEADER SMT. DEEPA NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 05-03-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.P.(C) No.12132/2020
                                       :3:




                           N. NAGARESH, J.

          `````````````````````````````````````````````````````````````
                      W.P.(C) No.12132 of 2020

          `````````````````````````````````````````````````````````````
                Dated this the 5th day of March, 2021

                            JUDGMENT

~~~~~~~~~

The petitioner, who is a resident of Mararithottam,

has filed this writ petition seeking to quash Ext.P3 NOC

granted to the BPCL under Rule 144 of the Petroleum Rules,

2002; to direct the 1st respondent to consider Ext.P6

representation and to direct the 3 rd respondent to consider

Ext.P5 representation made by the petitioner.

2. The petitioner states that the 4th respondent has

obtained Ext.P3 NOC from the 3rd respondent for location of

Petroleum Retail Outlet in the land in Re-Survey No.180/2,

Block 14, Kallelibhagam Village, Karunagappally Taluk.

While issuing Ext.P3 NOC, the 3 rd respondent has ignored

the IRC Guidelines. In the application submitted by the 4 th W.P.(C) No.12132/2020

respondent, a sketch was attached. All roads were not

shown in the sketch. A road has been shown as a pathway.

The 3rd respondent accepted the application and the sketch

as such and issued NOC.

3. The petitioner would further submit that the

residents in the area have submitted Ext.P5 mass petition to

the 3rd respondent against establishment of the Petroleum

Retail Outlet in the thickly populated area. The

representation of the petitioner and the local residents has

been ignored. The 4th respondent has no right to use the site

at Mararithottam for locating the Petroleum Retail Outlet.

4. The 3rd respondent filed a counter affidavit. After

receiving the application for NOC, reports were called for by

the 3rd respondent from District Police Chiefs, Tahsildar,

District Fire Officer, Executive Engineer (PWD-Roads) and

District Supply Officer. The District Police Chief reported that

there is no complaints in respect of establishment of

Petroleum Retail Outlet. The District Supply Officer reported

that NOC can be granted for starting the new petroleum W.P.(C) No.12132/2020

outlets. The Executive Engineer, PWD (Roads) reported that

the measurement of buffer strip must be 12.0 x 3.0 m. at the

time of construction and on that condition, NOC can be

issued. The Regional Fire Officer reported that there is no

objection in granting NOC to the proposed Petroleum Retail

Outlet, in the fire protection point of view.

5. Still, as there were some objections, a hearing

was conducted on 23.07.2019. After hearing, a letter was

sent to the Environmental Engineer of the Pollution Control

Board seeking his report. The Environmental Engineer

reported that the petroleum outlet unit comes under Green

Category and there is no objection in granting NOC. In the

circumstances, issuance of NOC to the 4 th respondent is

justified, stated the 3rd respondent.

6. The 5th respondent filed a counter affidavit. The 5 th

respondent pointed out that the petitioner is residing within

the limits of Panmana Grama Panchayat and he is not

affected by the establishment of Petroleum Retail Outlet at

the proposed location. The petitioner is hand in glove with W.P.(C) No.12132/2020

one Vijayan alias Maithanam Vijayan who is a competitor,

running a petrol pump nearby the locality. The said Vijayan

had earlier filed writ petition through one Sathyadevan, but

failed to obtain an interim stay. Subsequently, W.P.(C)

No.33692/2019 was filed in which an interim order was

passed. Later, when the interim order was vacated, the said

writ petition was withdrawn. Subsequently, one Sudhakaran

filed another W.P.(C) (Temp) No.204/2020. No interim order

was passed in the said writ petition. Thereafter, the said

Vijayan filed OS No.64/2020 before the Munsiff's Court,

Karunagapally. Later, OP(C) No.855/2020 was filed by the

said Vijayan before this Court. In the said OP(C) also,

interim order was declined. Thereafter, one Satheesan filed

W.P.(C) No.7167/2020. The said writ petition was disposed

of directing the Pollution Control Board to consider his

representation.

7. The 5th respondent contended that he belongs to

Scheduled Caste and litigations after litigations are initiated

against the proposed Petroleum Retail Outlet with the sole W.P.(C) No.12132/2020

intention of defeating the desire of the petitioner to establish

a Petroleum Retail Outlet.

8. Heard the learned counsel for the petitioner,

learned Government Pleader for respondents 1 to 4 and the

counsel appearing for the 5th respondent.

9. The legal ground urged by the petitioner is that

while issuing the NOC under Rule 144 of the Petroleum

Rules, 2002, the IRC Guidelines have not been followed.

The establishment of Petroleum Retail Outlet at the proposed

site would violate the IRC Guidelines and will give rise to

environmental as well as safety issues. It is to be noted that

the IRC Guidelines were followed by respondents 1 and 3 in

view of Ext.P1 GO dated 22.10.2019. However,

subsequently, the Government of India withdrew the IRC

Guidelines as per Notification No.28, effective from

01.12.2019.

10. As far as the complaint of the residents relating to

environmental issues, the 3rd respondent, before issuing the

NOC, had conducted hearing and all concerned were heard. W.P.(C) No.12132/2020

A reference was made to the Pollution Control Board and the

Environmental Engineer of the Pollution Control Board

reported that the Petroleum Retail Outlet comes under Green

Category and there is no objection in granting NOC to the

proposed petroleum outlets.

In the circumstances of the case, this Court finds

that the concerns expressed by the petitioner is devoid of

factual foundation and there is no reason to interfere with

Ext.P3 NOC issued by the 3 rd respondent. The writ petition

therefore fails and it is accordingly dismissed.

Sd/-

N. NAGARESH, JUDGE aks/04.03.2021 W.P.(C) No.12132/2020

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.46/2019/PWD, DATED 22.10.2019 ISSUED BY THE IST RESPONDENT.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.16/2020/PWD, DATED 10.2.2020 ISSUED BY THE IST RESPONDENT.

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE NOC ISSUED AS PER ORDER NO.DCKLM/4049/2019/M7 DATED 27.11.2019 BY THE 3RD RESPONDENT.

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE SKETCH OF THE LAND AND NEARBY AREAS SUBMITTED BY THE 4TH RESPONDENT OF THE SITE IN QUESTION OF MARARITHOTTAM.

EXHIBIT P5              TRUE    PHOTOSTAT   COPY     OF    THE
                        REPRESENTATION    MADE     BY     THIS
                        PETITIONER TO THE 3RD      RESPONDENT,
                        DATED 8.6.2020.

EXHIBIT P6              TRUE    PHOTOSTAT   COPY     OF    THE
                        REPRESENTATION    MADE     BY     THIS
                        PETITIONER TO THE IST      RESPONDENT,
                        DATED 8.6.2020.

EXHIBIT P7              TRUE PHOTOSTAT COPY OF THE SAID ORDER
                        IN SPECIAL LEAVE TO APPEAL (C) NO
                        12084/2020, DATED 16.11.2020
 W.P.(C) No.12132/2020





RESPONDENTS' EXHIBITS:

EXHIBIT R5(a):          COPY     OF    THE     JUDGMENT      IN
                        WPC.NO.33692/2019.

EXHIBIT R5(b):          COPY OF THE PLAINT IN O.S.NO.64/20

EXHIBIT R5(c):          COPY     OF     THE    JUDGMENT      IN
                        WPC.NO.7167/20.

EXHIBIT R5(d):          COPY     OF    THE     JUDGMENT      IN
                        WPC.NO.10531/2020.



SR