Kerala High Court
Anil Kumar T.S vs Union Of India on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
WP(C).No.7038 OF 2021(S)
PETITIONER:
ANIL KUMAR T.S.
AGED 43 YEARS
S/O.SUKUMARAN, THOTTUNGAL, MUHAMMA PO,
ALAPPUZHA-688525.
BY ADVS.
SMT.K.K.PREETHA
SRI.TITUS MANI
SRI.BINNY THOMAS
SRI.R.K.PRASANTH
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF PETROLEUM,
NEW DELHI-110001.
2 THE DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, ALAPPUZHA-688001.
3 MUHAMMA GRAMA PANCHAYATH,
MUHAMMA PO, ALAPPUZHA-688525 , REPRESENTED BY ITS
SECRETARY.
4 THE INDIAN OIL AND PETROLEUM CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR, INDANE AREA
OFFICE, PANMPILLY AVENUE, PANMPILLY NAGAR,
KOCHI-682036.
5 KERALA STATE POLLUTION CONTROL BOARD,
PLAMOODU JUNCTION, PATTAM PALACE P.O.,
THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS
SECRETARY.
6 AJU JACOB MATHEW,
S/O. MATHEW, KALATHIL, AVALUKKUNNU PO, ARAYAD SOUTH,
ALAPPUZHA-688006.
WP(C).No.7038 OF 2021(S) 2
SRI.P.VIJAYAKUMAR, ASG FOR R1,
SRI. ARAVIND KUMAR BABU, SENIOR GOVERNMENT PLEADER
FOR R2,
SRI.M.GOPIKRISHNAN NAMBIAR FOR R4,
SRI.T.NAVEEN, STANDING COUNSEL FOR R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7038 OF 2021(S) 3
JUDGMENT
Dated this the 24th day of March 2021
SHAJI P.CHALY,J
Captioned writ petition is a Public Interest Litigation filed by a resident
within the limits of Muhamma Grama Panchayat, Alappuzha District, seeking a
writ of mandamus directing respondent Nos. 1 to 5 i.e., Union of India, the
District Collector, Alappuzha, the Muhamma Grama Panchayat , the Indian Oil
Corporation Ltd. and the Kerala State Pollution Control Board, to revoke the
permission granted for the allotment and construction of a retail petroleum
outlet on the Thanneermukkom roadside of Muhamma Grama Panchayat, in a
property belonging to the 6th respondent viz.,one Aju Jacob Mathew.
2. The paramount contention advanced by the petitioner is that the retail
outlet is situated close to CMS Lower Primary School, in which 650 students
are studying and if the petroleum retail outlet is permitted to be put up in the
property of the 6th respondent, the children of the school would be affected
materially. It is also pointed out, if any leakage is occurring, that will cause
danger to the students as well as there would be air pollution consequent to
the same and otherwise. In order to substantiate the said contention,
petitioner is relying upon Exhibit P1 circular of the Kerala State Pollution
Control Board dated 24.2.2020, by which following distance criteria is
prescribed;
"The following siting criteria for new retail outlets of petrol pumps
shall be followed:
1. For petrol pumps, new retail outlets shall not be located within a
radial distance of 50 metres (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.
2. In case of constraints in providing 50 metres distance, the retail
outlet shall implement additional safety measures as prescribed by
Petroleum and Explosives Safety Organization (PESO).
3. In no case the distance between new retail outlets from schools,
hospitals (10 beds and above) and residential area designated as per
local laws shall be less than 30 metres.
4. No high tension line shall pass over the retail outlet.
These guidelines are supplementary to all existing relevant Rules,
Guidelines, Orders etc."
3. It is in that background contended that the proposed outlet is situated
within the 50 metres radial distance from the school specified above. On the
other hand, the Indian Oil & Petroleum Corporation, the 4 th respondent, has filed
a detailed statement along with all requisite documents, basically contending
that the writ petition is filed very belatedly and in fact a 'No objection certificate'
was issued by the Additional District Magistrate, Alappuzha, evident from
Annexure - R4(a) on 27.7.2020 to establish the outlet. It was also submitted
that, after taking into account all pros and cons, the Kerala State Pollution
Control Board has issued Annexure R4(b) 'consent to establish' dated 24.8.2020
with appropriate conditions. That apart it is submitted that the Kerala State
Pollution Control Board has issued Annexure R4(c) circular dated 18.8.2020,
whereby the circular dated 24.2.2020 was modified partially varying siting
criteria for new retail outlets from the nearest residential building instead of
residential areas. It was also made clear that, if any requisite licence other than
the PCB consent is obtained by any applicant for establishing the petrol pump
prior to the date of the circular dated 24.2.2020, the siting criteria mentioned in
circular dated 9.8.2004 shall be applicable, which prescribes the distance criteria
categorising the industries, Red, Green, and Orange among Small, Medium, and
Large scale industries. So also it was pointed out in the circular dated 24.2.2020
that it was issued as a supplementary one to all existing relevant rules,
guidelines, orders etc.
4. Above all, it is pointed out that the Muhamma Grama Panchayat has
issued Annexure R4 (e) site approval and building permit dated 1.12.2020, thus
enabling the 6th respondent to carry out the construction of the petroleum outlet
in accordance with the permit conditions and satisfying the requirements of the
Kerala Panchayat Building Rules, 2019 and the Kerala Panchayat Raj Act, 1994.
So also Annexure R4(f) dated 23.2.2021 clearly shows that the Government of
India, Ministry of Commerce and Industry, Petroleum & Explosives Safety
Organisation (PESO), Chennai, has issued the license for storage of total 40.00
KL of various petroleum products incorporating requisite conditions and subject
to Rule148 of the Petroleum Rules in regard to the petroleum outlet in question.
5. The sum and substance of the contention advanced by the Indian Oil
Corporation Ltd is that the contention put forth by the petitioner that a
petroleum outlet is proposed to be put up in the property of the 6 th respondent,
is not at all true or correct and actually it was commissioned consequent to the
requisite orders issued by the Ministry of Commerce and Industry, Petroleum &
Explosives Safety Organisation (PESO), Chennai dated 23.2.2021.
6. We have heard learned counsel for petitioner Smt.Preetha.K.K., learned
Assistant Solicitor General Sri.P.Vijayakumar, learned Senior Government Pleader
Sri.Aravind Kumar Babu, learned standing counsel Sri.M.Gopikrishnan Nambiar
for the Indian Oil Corporation Ltd and learned standing counsel Sri.T.Naveen for
Kerala State Pollution Control Board, and perused the pleadings and materials on
record.
7. Petitioner has made the pleadings in the writ petition as if to appear
that the construction of the petroleum outlet is yet to start and therefore, sought
directions to revoke permission granted for the allotment and construction of
the retail petroleum outlet. In fact, the District Collector, in exercise of the
powers conferred under rule 144 of the Petroleum Rules,2002, constituted as per
section 29 of the Petroleum Act, 1934, as early as on 27.7.2020 granted the No
objection certificate . Apparently the consent to establish was also given by the
Pollution Control Board on 24.8.2020 and it was accordingly that the
constructions were carried out, after securing permit from the Muhamma Grama
Panchayat, evident from Annexure R4(e). Therefore, it can never be said that
any illegal constructions were carried out in the property of the 6 th respondent ,
however the constructions were carried out in accordance with the specifications
of the respective statutes as is specified above. It is also clear from Annexure
R4(f) dated 23.2.2021 that permission is granted by the Joint Controller of
Explosives, Government of India, to store the petroleum products in accordance
with the provisions of the Petroleum Rules, which is valid upto 31.12.2022. More
over the alleged violation of distance criteria is not established by the petitioner
apart from contending that the Lower Primary School is situated within a
distance of 50 meters. This we say because the pollution control board has
issued the consent to establish the outlet, which is a statutory function exercised
by the authority by virtue of the powers conferred under the environmental
statutes and therefore it can only be legally presumed that the power was
exercised in accordance with law. Same is the case with the No objection
certificate issued by the District Collector under the Petroleum Rules 2002 .
8. Taking into account all the above aspects, we are of the opinion that
petitioner has not made out a case to interfere under Article 226 of the
Constitution of India. We could not locate any illegality or arbitrariness on the
part of the respondents in carrying out the constructions to establish a retail
outlet in the property of the 6th respondent. Above all the distance rule provided
as per Exhibit P1 circular of the Pollution Control Board dated 24.2.2020 and
extracted above makes it clear that the provision is not peremptory but flexible
in nature, in order to contain the requirements and the inevitable circumstances
existing in the locality in question .
Needless to say, the writ petition fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CIRCULAR DATED 24.2.2020
ISSUED BY THE KERALA STATE POLLUTION
CONTROL BOARD, THE 5TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
9.1.2020 SUBMITTED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED NIL
ALONG WITH ITS ENGLISH TRANSLATION.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 10.2.2020
SUBMITTED BY THE HEAD MISTRESS, CMSLP
SCHOOL,MUHAMMA ALONG WITH ENGLISH
TRANSLATION.
EXHIBIT P5 TRUE COPY OF THE DIVISION BENCH DECISION
PASSED BY THE HON'BLE BOMBAY HIGH COURT
W.P.NO.4734/2004 DATED 31.3.2009.
EXHIBIT P6 TRUE COPY OF THE DECISION IN
W.P.NO.23546/2017 AND WMP NO.24702/2017 OF
THE HON'BLE MADRAS HIGH COURT DATED
13.8.2019.
RESPONDENTS' ANENXURES
ANNEXURE R4(a) TRUE COPY OF THE NO-OBJECTION CERTIFICATE
OF TEH 2ND RESPONDENT DATED 27.7.2020
ANNEXURE R4(b) TRUE COPY OF THE CONSENT TO ESTABLISH OF
THE 5TH RESPONDENT DATED 24.8.2020.
ANNEXURE R4(c) TRUE COPY OF THE KERALA STATE POLLUTION
CONTROL BOARD CIRCULAR DATED 18.8.2020
ANNEXURE R4(d) TRUE COPY OF THE KERALA STATE POLLUTION
CONTROL BOARD CIRCULAR DATED 09.08.2004
ANNEXURE R4(e) TRUE COPY OF THE SITE APPROVAL AND BUILDING
PERMIT DATED 1.12.2020 OF TEH 3RD
RESPONDENT.
ANNEXURE R4(e) TRUE COPY OF THE PESO LICENCE DATED
23.02.2021 OF TEH 1ST RESPONDENT TO THE 4TH
RESPONDENT.
