Kerala High Court
Suresh Kumar vs The District Collector on 9 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 09TH DAY OF MARCH 2021/18TH PHALGUNA, 1942
WP(C).No.25329 OF 2020(M)
PETITIONER:
SURESH KUMAR, AGED 53 YEARS,
S/O. DHARMAJAN, ARAMPATTUMAKYIL,
VAYALA, ELACKAD, KOTTAYAM
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
KOTTAYAM DIST, COLLECTORATE,
KOTTAYAM 686 001.
2 ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, KOTTAYAM 686 001.
3 HINDUSTAN PETROLEUM CORPORATION LTD.,
REPRESENTED BY ITS CHIEF REGIONAL MANAGER,
COCHIN RETAIL REGIONAL OFFICE,
EERNAKULAM NORTH P.O, P.B NO. 1601,
COCHIN 682 018.
ADDL. 4 REGIONAL FIRE OFFICER,
FIRE STATION, PADANOBADOM JUNCTION,
KOTTAYAM 686 001.
ADDL. 5 THE EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD,
NEAR STAR JUNCTION, KOTTAYAM-686 001 .
(ADDITIONAL R4 AND R5 IMPLEADED AS PER ORDER
DATED 26.11.2020 IN I.A.1/2020 IN WPC 25329/20)
W.P.(C) No.25329/2020
:2:
R3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R3 BY ADV. SRI.K.JOHN MATHAI
R3 BY ADV. SRI.JOSON MANAVALAN
R3 BY ADV. SRI.KURYAN THOMAS
R3 BY ADV. SRI.PAULOSE C. ABRAHAM
R3 BY ADV. SRI.RAJA KANNAN
ADDL R5 BY SRI ARUNKUMAR A., SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.25329/2020
:3:
JUDGMENT
~~~~~~~~~
Dated this the 9th day of March, 2021
Petitioner is aggrieved by the order passed by the
1st respondent-District Collector, declining NOC to start a
Petroleum Retail Outlet on the site in issue.
2. The petitioner states that he took on lease 25.94
Ares of property in Survey No.15 of Velloor Village in Kottayam
District, to start a Dealership/Petroleum Retail Outlet of the 3 rd
respondent-Hindustan Petroleum Corporation Limited. The 3 rd
respondent offered the dealership to the petitioner. The 3 rd
respondent submitted Ext.P2 application dated 28.02.2019 to
the 1st respondent-District Collector seeking NOC to the outlet.
The 4th respondent sought reports from the District Police
Chief, the Tahsildar, the District Fire Officer and the Executive
Engineer, PWD (Roads).
3. The Executive Engineer, PWD reported that there
are two road intersections near the site, which would be
W.P.(C) No.25329/2020
against the IRC norms. The petitioner challenged the said
communication filing W.P.(C) No.21175/2019. This Court
directed the District Collector to consider the application for
NOC without referring to IRC/MORTH norms. The 1 st
respondent-District Collector, however, passed Ext.P9 order
declining grant of NOC.
4. The petitioner would contend that there is no
adverse impact due to the presence of mobile tower, KSEB
transformer and welding workshop near the site. The only
drawback is the 11 KV Electric line. The petitioner can very
well shift the electric line paying the prescribed fee to the
Electricity Board. The petitioner will be taking safety measures
as directed by the Petroleum and Explosives Safety
Organisation and the said Organisation will allow the outlet
only on taking such safety measures. The 1 st respondent
ought not have disallowed the NOC for the said reason.
Therefore, Ext.P9 is liable to be quashed and respondents 1
and 2 are liable to be directed to issue NOC to the petitioner
under Rule 144 of the Petroleum Rules.
W.P.(C) No.25329/2020
5. The learned Government Pleader pointed out that
while issuing NOC, the 1st respondent-District collector has to
take into consideration various factors. The District Police
Chief reported that the establishment of a fuel outlet on the site
will be dangerous due to existence of mobile tower and
transformer near the site. In fact, none of the authorities, from
whom reports were called for, gave their concurrence to permit
the petitioner to start Petroleum Retail Outlet at the site.
Therefore, it would be perfectly just and legal for the 1 st
respondent to decline NOC. The 1 st respondent has to take
into consideration public safety also. The writ petition is
therefore without any force or merit and is liable to be
dismissed, contended the learned Government Pleader.
6. I have heard the learned counsel for the petitioner
and the learned Government Pleader appearing for
respondents 1, 2, 4 and 5. I have also heard the learned
Standing Counsel appearing for the 3rd respondent.
7. Ext.P9 order of the 1st respondent will show that the
District Police Chief has reported that nearby residents and the
W.P.(C) No.25329/2020
public have no objection for the establishment of the Retail
Outlet and there is no issue of any law and order problem. The
District Police Chief, however, noted that there is a mobile
tower and KSEB transformer near the site and therefore there
is a risk of fire. The Tahsildar reported that apart from the
mobile tower and transformer, there is a workshop also near
the proposed site. Out of the 30 residents, none except two
has any objection in starting the fuel outlet there.
8. Ext.P9 would further disclose that the Municipal
Council has issued NOC for construction of Petroleum Retail
Outlet in accordance with the Kerala Municipal Building Rules.
The Executive Engineer, PWD informed that application for
PWD NOC has been returned since there are road
intersections near the site. The Regional Fire Officer reported
that the mobile tower, transformer and houses are outside the
site in question and there is no objection in granting NOC on
fire safety angle.
9. In spite of these reports, the 1 st respondent rejected
the application for NOC filed under Rule 140 of the Petroleum
W.P.(C) No.25329/2020
Rules. A perusal of Ext.P9 would show that the 1st respondent
has not properly analysed the reports received by him to arrive
at his own conclusion.
10. When Rule 144 of the Petroleum Rules casts a
statutory duty on the 1st respondent to consider applications for
NOC to establish Petroleum Fuel Outlets, the 1 st respondent is
not expected to seek NOC from other officers for the purpose
of issuing NOC under the Petroleum Rules. The 1 st respondent
may call for reports from various authorities, but the decision
shall be of the 1st respondent and that too after properly
appreciating the reports. In Ext.P9, such appreciation is
absent.
11. The concern of the 1st respondent seems to be the
threat of fire due to the existence of a mobile tower and a
KSEB transformer near the site. The Regional Fire Officer has
issued Ext.P8 pointing out that there is no objection as regards
the site in the fire safety angle except for the 11 KV electric line
passing through. Similarly, the issue of applicability of IRC
norms was found by this Court in favour of the petitioner. In
W.P.(C) No.25329/2020
Ext.P9, the 1st respondent has not considered the impact of the
judgment of this Court. The petitioner has expressed
willingness to shift the 11 KV electric line paying the prescribed
fee. This fact is also not properly considered by the 1 st
respondent.
12. Ext. P9 is hence bad for non-application of mind.
Ext.P9 is therefore set aside. The 1st respondent is directed to
reconsider the application for NOC submitted by the 3 rd
respondent on the basis of Government Orders existing as on
the date of application. Orders in this regard shall be passed
within a period of one month. It is made clear that nothing
stated in this judgment shall be taken as pronouncement on
merits, of the application for NOC submitted by the 3 rd
respondent.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/10.03.2021
W.P.(C) No.25329/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER
EXHIBIT P2 COPY OF THE APPLICATION FILED BY THE 3RD
RESPONDENT FOR GETTING NOC TO THE OUTLET
AWARDED TO THE PETITIONER
EXHIBIT P3 COPY OF THE REPORT OF THE EXECUTIVE
ENGINEER PWD DATED 06-07-2019
EXHIBIT P4 COPY OF THE JUDGMENT IN W.A NO 1234/20
EXHIBIT P5 COPY OF THE REPORT SUBMITTED BY THE
TAHSILDAR DATED 17-09-2019
EXHIBIT P6 COPY OF THE REPORT OF THE DISTRICT FIRE
OFFICER DATED 13-05-2019
EXHIBIT P7 COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT ON 1/11/2019
EXHIBIT P8 COPY OF THE REPORT OF THE REGIONAL FIRE
OFFICER DATED 3/1/2020 ALONG WITH REPORT
EXHIBIT P9 COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT DATED 13/10/2020
ncd
