Kerala High Court

Muhammed C vs The District Collector, ... on 9 November, 2021

W. A. No. 1463 of 2021       -1-


           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                      WA NO. 1463 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 27651/2020 OF HIGH COURT OF
                       KERALA, ERNAKULAM
APPELLANT/S:

           MUHAMMED C.
           AGED 74 YEARS
           S/O. KUNHALAVI, CHALAKKALAKATH HOUSE, KOZHIPURAM,
           PALLIKKAL P.O, MALAPPURAM DISTRICT.
           BY ADV C.M.MOHAMMED IQUABAL


RESPONDENT/S:

    1      THE DISTRICT COLLECTOR, MALAPPURAM
           MALAPPURAM, MALAPPURAM P.O, PIN - 676505.
    2      THE ADDITIONAL DISTRICT MAGISTRATE
           MALAPPURAM P. O., PIN - 676505.
    3      THE TAHSILDAR
           KONDOTTY TALUK OFFICE, KONDOTTY P.O., MALAPPURAM
           DISTRICT, PIN - 673638.
    4      THE VILLAGE OFFICER
           PALLIKKAL VILLAGE OFFICE, PALLIKKAL P.O,
           MALAPPURAM DISTRICT, PIN - 673634.
    5      THE REGIONAL FIRE OFFICER
           FIRE AND RESCUE SERVICES, PALAKKAD DISTRICT, PIN
           - 678001.
    6      THE KERALA STATE POLLUTION CONTROL BOARD
           PATTOM P.O, THIRUVANANTHAPURAM, PIN - 695004,
           REPRESENTED BY ITS CHAIRMAN.
    7      PALLIKKAL GRAMA PANCHAYATH
           PALLIKKAL P.O, MALAPPURAM DISTRICT, PIN - 673634,
           REPRESENTED BY ITS SECRETARY.
    8      BHARAT PETROLEUM CORPORATION LTD.
           3RD FLOOR, C.K.TOWERS, VANDIPETTA, NADAKAVU
           (WEST), CALICUT - 673011, REPRESENTED BY ITS
           GENERAL MANAGER.
 W. A. No. 1463 of 2021             -2-


    9       IBRAHIM
            S/O. KUTTYAMMU, KALLUNGAL HOUSE, PALLIKKAL P.O,
            MALAPPURAM DISTRICT, PIN - 673634.
   10       RAGUL K.
            S/O. BABU RAJ K., RADHA NIVAS, KOLATHARA P.O.,
            KOZHIKODE DISTRICT, PIN - 673685.
OTHER PRESENT:

            SRI. TEK CHAND SR GP, FOR R1 TO R4
            SRI.T.NAVEEN, SC, KPCB
            SRI.M.GOPIKRISHNAN NAMBIAR,
            SRI. R.SUNIL KUMAR,
            SRI.K.T.SHYAMKUMAR


     THIS    WRIT    APPEAL   HAVING      COME   UP    FOR    ADMISSION   ON
09.11.2021,    THE    COURT   ON    THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W. A. No. 1463 of 2021              -3-




                           JUDGMENT

S. Manikumar, C.J.

Instant writ appeal has been filed challenging the judgment

dated 16.09.2021 in W. P. (C) No. 27651 of 2020, by which a learned

Single Judge dismissed the writ petition, filed for the following relief:-

"Call for the records leading up to Ext. P6 NOC and quash the same by issuance of a writ of certiorari or any other appropriate writ, order or direction."

2. Short facts leading to the writ petition are as hereunder:-

According to the petitioner/appellant, he is residing in R.S.No.

104/12 in Block No. 10 of Pallikkal Grama Panchayath, adjacent to

Mr. Ibrahim, the 9th respondent.

Appellant has submitted that Mr. Ibrahim, along with Mr. Ragul,

the 10th respondent, proposed to start a petroleum retail outlet of

Bharat Petroleum Corporation Ltd., the 8 th respondent, in their

property.

It is a pure residential area and two petrol pumps are situated

near to this property. Even though the petitioner and other residents

have filed objections before the District Collector, Malappuram, the 1 st

respondent, and other respondents, the 1st respondent issued Ext. P6

NOC to start the petroleum outlet.

3. After hearing the parties, considering the statutory provisions

and various decisions, writ court, by judgment dated 16.09.2021 in W.

P. (C) No. 27651 of 2020, dismissed the writ petition as hereunder:-

"6. The short point to be decided in this case is whether the petitioner is entitled for hearing and whether No Objection Certificate from the petitioner is necessary for passing orders by the 1st respondent District Collector, while invoking the powers under Rule 144 of the Petroleum Rules. It will be better to extract Rule 144 of the Petroleum Rules:

"144. No-objection certificate.--(1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new licence other than a licence in Forms III, XI, XVII, XVIII or XIX shall apply to the District Authority with two copies of the site-plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who shall forward it to the licensing authority with his application Form IX.

(2) Every certificate issued by the District Authority under sub-rule (1) shall be accompanied by a copy of the plan of the proposed site duly endorsed by him under his official seal.

(3) The Chief Controller or the Controller, as the case may be, may refer an application not accompanied by certificate granted under sub-rule (1) to the District Authority for his observations.

(4) If the District Authority, either on a reference being made to him or otherwise, intimates, to the Chief Controller or the Controller, as the case may be, that any licence which has been applied for should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government.

(5) The District Authority shall complete his inquiry for issuing no objection certificate (NOC) under sub- rule (1) and shall complete the action for issue or refusal of the NOC, as the case may be, as expeditiously as possible but not later than three months from the date of receipt of application by him."

7. It is true that in Rule 144(5) an inquiry is mentioned.

The scope of inquiry by the District authority is considered by this Court in Reliance Industries case (supra). Relevant portion of the judgment is extracted hereunder:

"16. The Petroleum Act, 1934 is an enactment to consolidate and amend the law relating to the import, transport, storage, production, refining and blending of petroleum. Among other things, it classifies petroleum into different classes on the basis of "flash point", as defined in S.2(c) of that Act. S.4 enjoins on the Central Government to make rules for the import, transport and storage of petroleum. S.3 provides prohibition against import, transport and storage of petroleum, save in accordance with the rules made under S.4. Sub-ss. (1) and (2) of S.5 make similar provision regarding production, refining and blending. Ss. 14, 21 and 22 in Chapter II authorise making of rules to govern inspection, sampling and tests. S.29(1) provides the Central Government with authority to make ancillary rules. The Petroleum Rules, 2002 are made by the Central Government in exercise of the aforesaid authority. Classified into twelve chapters, with five

schedules, including statutory forms, the Petroleum Rules are extensive. The scientific knowledge required for managing the arena of petroleum industry, including storage and supply, have gone into the making of those Rules. The Petroleum Act clearly prohibits activities relating to petroleum, except in accordance with the Rules made under that Act. The Petroleum Rules are therefore exhaustive. Hence, while it has to be ensured that those Rules are scrupulously followed, subject to the limited and regulated power in R.201, to exempt, it is also totally impermissible to take into consideration anything not provided for by those Rules, while deciding the issue of grant or renewal of licence under those Rules. This includes the arrival at a decision as to whether there is any objection to the grant of NOC.

17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by R.144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate, "if he sees no objection". The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less."

Moreover this Court also, in judgment dated 30.05.2017 in W.P.

(C).No.9081 of 2017, considered this point. Relevant portion is extracted hereunder:

"As noted above, Ext.P6 proceeds on the basis that the application of the petitioner is liable to be rejected since the neighbouring property owners have raised objections to the establishment of the outlet. Identical issues arose before this Court in Ext.P7 case, wherein

this Court took the view that the no objection certificate applied for shall be granted notwithstanding the protest of the local people, if the applicant is otherwise eligible. The said judgment has been followed by this Court in W.P.(C).No.3827 of 2017. In the light of Ext.P7 judgment as also the judgment rendered by this Court in W.P. (C).No.3827 of 2017, the impugned order is liable to be set aside."

8. In the light of the above authoritative judgment of this Court, according to me, No Objection Certificate or a hearing of the petitioner is not mandatory in the light of the facts and circumstances of this case. No other points are raised by the petitioner. Therefore, I find no reason to interfere with the impugned order.

The writ petition fails and hence it is dismissed."

4. Being aggrieved, instant writ appeal is filed.

5. Mr. C. M. Mohammed Iquabal, learned counsel for the

appellant, submitted that Exhibit P6 NOC has been issued without

conducting any inquiry as contemplated in Rule 144 (5) of the

Petroleum Rules, 2002, and without considering Exhibit P3 circular

dated 24.02.2020 issued by the Kerala State Pollution Control Board.

6. Inviting our attention to Exhibit P3 circular dated 24.02.2020

issued by the Kerala State Pollution Control Board, learned counsel

for the appellant submitted that no new petrol pump retail outlet shall

be located within a radial distance of 50 meters (from fill point /

dispensing units / vent pipe whichever is nearest) from schools,

hospitals and residential areas designated as per local laws.

7. He further submitted that as per the circular, in no case, the

distance between new retail outlet from schools, hospitals and

residential area designated as per the local laws shall be less than 30

meters.

8. Bharat Petroleum Corporation Ltd., 3rd floor, C. K. Towers,

Vandipetta, Calicut, represented by its General Manager, respondent

No. 8, has filed a counter affidavit in the writ petition.

9. Relevant portion of the same reads thus:-

"6. Further, the petitioner has attempted to mislead this Hon'ble Court, by placing selective reliance on Ext. P3 Circular dated 24.02.2020 issued by the 6th respondent. Ext. P3 Circular provides that new retail outlets shall not be located within a radial distance of 50 metres from schools, hospitals (10 beds and above) and residential areas designated as per local laws. However, vide Circular dated 18.08.2020, the 6th respondent has clarified, in no uncertain terms, that the aforesaid criteria shall not applicable in the case of retail outlets that had obtained any requisite license other than PCB consent, for establishing the retail outlet, prior to issuance of Ext. P3 Circular. The retail outlet

in question, had obtained approval from the PESO for construction of the petrol pump, as early as on 19.06.2019. Further, No-Objection Certificate from the Fire & Rescue Services Department was issued in favour of the retail outlet on 24.07.2019. In view of the above, Ext. P3 Circular dated 24.02.2020 is inapplicable to the subject retail outlet since requisite approvals were obtained from statutory authorities prior to the date of issuance of Ext. P3 Circular. Resultantly, the retail outlet has obtained the requisite Consent to Establish from the 6 th respondent on 18.01.2021. Needless to say, the petitioner herein is attempting to sit in appeal over the wisdom of statutory authorities on the basis of unfounded allegations."

10. From the counter affidavit of the 8 th respondent, it could be

deduced that as per Exhibit R8(a) circular of the Kerala State Pollution

Control Board dated 18.08.2020, the criteria mentioned in Ext. P3

circular dated 24.02.2020, shall not applicable in the case of the retail

outlet in question, which had obtained approval from PESO for

construction of the petrol pump, as early as on 19.06.2019.

11. Moreover, we do find that the appellant has substantiated

any statutory right, enabling the appellant to object the NOC on the

ground that consent of the nearby residents is necessary. In W. P. (C)

No. 9081 of 2017 dated 30.05.2017, it is held that the no objection

certificate applied for shall be granted, not withstanding the protest of

the local people, if the applicant is otherwise eligible, which decision