Muhammed C vs The District Collector
2021 Latest Caselaw 19396 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                   WP(C) NO. 27651 OF 2020
PETITIONER:

          MUHAMMED C.
          AGED 73 YEARS
          S/O.KUNHALAVI, CHALAKKALAKATH HOUSE, KOZHIPURAM,
          PALLIKKAL P.O, MALAPPURAM DISTRICT.

          BY ADV C.M.MOHAMMED IQUABAL

RESPONDENTS:

    1     THE DISTRICT COLLECTOR
          MALAPPURAM, MALAPPURAM P.O, PIN - 676505.

    2     THE ADDITIONAL DISTRICT MAGISTRATE,
          MALAPPURAM, PIN - 676505.

    3     THE TAHSILDAR,
          KONDOTTY TALUK, 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.
 W.P.(C).No.27651/2020

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    8      BHARAT PETROLEUM CORPORATION LTD,
           3RD FLOOR, C.K.TOWERS, VANDIPETTA,
           NADAKAVU(WEST), CALICUT - 673011, REPRESENTED
           BY ITS GENERAL MANAGER.

    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.

           BY ADVS.
           SRI.K.T.SHYAMKUMAR
           SRI.M.GOPIKRISHNAN NAMBIAR
           SRI.R.SUNIL KUMAR
           SMT.A.SALINI LAL
           SRI.K.JOHN MATHAI
           SHRI.HARISH R. MENON
           SRI.JOSON MANAVALAN
           SRI.KURYAN THOMAS
           SRI.PAULOSE C. ABRAHAM
           SRI.RAJA KANNAN
           SMT.ROMILA, SC
           SMT.A.SALINI LAL, SC


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.27651/2020

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                     P.V.KUNHIKRISHNAN, J.
                       -------------------------------
                     W.P.(C).No.27651 of 2020
               ----------------------------------------------
           Dated this the 16th day of September, 2021


                             JUDGMENT

The petitioner is residing in the residential house

situated in R.S.No.104/12 in Block No.10 of Pallikkal Grama

Panchayath. The 9th respondent herein is the adjacent property

owner. He along with the 10th respondent proposed to start a

petroleum retail outlet of the 8th respondent in their property.

The specific case of the petitioner is that it is a pure

residential area and two petrol pumps are situated near to this

property. The case of the petitioner is that even though the

petitioner and other residents filed objection before the 1 st

respondent and other respondents, the 1st respondent issued

Ext.P6 No Objection Certificate to start the petroleum outlet

without considering their grievance. Aggrieved by the same,

this writ petition is filed with following prayers:

i. 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.

ii. Pass any other appropriate writ, order or direction W.P.(C).No.27651/2020

which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.

2. Heard the counsel for the petitioner, Government

Pleader, Standing Counsel for the 7 th respondent Panchayath,

Standing Counsel for the 8th respondent and the counsel

appearing for respondents 9 and 10.

3. The counsel for the petitioner reiterated his

contention in the writ petition. The counsel takes me through

Ext.P5 order passed by the Additional District Magistrate. In

the second page of that order, it is stated that the Additional

District Magistrate obtained No Objection Certificate from

neighbours. Thereafter the counsel takes me through Ext.P9

report of the Tahsildar, Kondotty, to the District Collector

dated 30.07.2020, which is dated before Ext.P5 order. In

Ext.P9, the distance between the house of the petitioner and

to the proposed site is mentioned as 4 meters. According to

the petitioner, without a No Objection Certificate from the

petitioner or without giving an opportunity of hearing to the

petitioner, the 1st respondent passed Ext.P5 order and

therefore, Ext.P5 order is unsustainable. The counsel for the

petitioner also takes me through Rule 144(5) of the Petroleum W.P.(C).No.27651/2020

Rules, 2002, in which an inquiry is contemplated. The counsel

submitted that the petitioner already submitted a

representation. Even without considering the same and

without giving an opportunity of hearing, the 1 st respondent

issued Exts.P5 and P6. According to the petitioner, the

statutory mandate to conduct the inquiry mentioned in Rule

144(5) is flouted by the 1 st respondent. Therefore the counsel

submitted that Ext.P5 is unsustainable.

4. The Standing Counsel for the 8 th respondent

Company submitted that the petitioner submitted the

objection after Ext.P5 order and therefore, it cannot be said

that the Additional District Magistrate has not given an

opportunity of hearing to the petitioner. The counsel also

relied on the judgment of this Court in Reliance Industries

Ltd v. Commissioner of Land Revenue [2007 (2) KLT

850] in which the scope of inquiry by the District Magistrate

is dealt in detail.

5. The counsel for respondents 8 and 9 submitted that

the point raised by the petitioner is covered by the judgment

of this Court in W.P.(C).No.9081 of 2017, in which it is stated

that No Objection Certificate from the neighbours is not W.P.(C).No.27651/2020

necessary if the applicant is otherwise eligible.

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) W.P.(C).No.27651/2020

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 W.P.(C).No.27651/2020

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 W.P.(C).No.27651/2020

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 W.P.(C).No.27651/2020

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.

Sd/-

                                            P.V.KUNHIKRISHNAN
JV                                                 JUDGE
 W.P.(C).No.27651/2020





                APPENDIX OF WP(C) 27651/2020

PETITIONER EXHIBITS
EXHIBIT P1        THE TRUE COPY OF THE BASIC TAX RECEIPT

ISSUED BY PALLIKKAL GRAMA PANCHAYATH DATED 27.1.2020.

EXHIBIT P2 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 1ST RESPONDENT DATED 23.11.2020.

EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR OF THE 6TH RESPONDENT POLLUTION CONTROL BOARD DATED 24.2.2020.

EXHIBIT P4 THE TRUE COPY OF THE OBJECTION FILED BEFORE THE 3RD RESPONDENT DATED 30.11.2020.

EXHIBIT P5 THE TRUE COPY OF THE REPORT OF THE 2ND RESPONDENT DATED 31.10.2020.

EXHIBIT P6 THE TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 31.10.2020. EXHIBIT P7 THE TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 15.1.2020 EXHIBIT P8 THE TRUE COPY OF THE CIRCULAR OF THE 6TH RESPONDENT DATED 9.8.2004 EXHIBIT P9 THE TRUE COPY OF THE REPORT OF THE TAHSILDAR, KONDOTTY DATED 30.7.2020 EXHIBIT P10 THE TRUE COPY OF THE OFFICE MEMORANDUM OF CENTRAL POLLUTION CONTROL BOARD DATED 7.1.2020 EXHIBIT P11 TRUE COPY OF HTE MODIFIED DIRECTION ISSUED BY THE CENTRAL POLLUTION CONTROL BOARD DATED 07.03.2016 EXHIBIT P12 THE TRUE COPY OF HTE PHOTOGRAPHS OF HTE PROPOSED SITE RESPONDENT EXHIBITS EXHIBIT R8 A A TRUE COPY OF THE CIRCULAR DATED 18/8/2020 EXHIBIT R8 B A TRUE COPY OF THE APPROVAL DATED 19/6/2019 ISSUED BY PESCO EXHIBIT P8 C A TRUE COPY OF THE NOC DATED 24/7/2019 ISSUED BY THE FIRE AND RESCUE SERVICES DEPARTMENT (WITHOUT ENCLOSURES) EXHIBIT R8 D A TRUE COPY OF THE CONSENT DATED 18/1/2021 ISSUED BY THE 6TH RESPONDENT W.P.(C).No.27651/2020