Santhosh Kaidachira vs Anil Kumar P
2022 Latest Caselaw 6463 Ker

          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 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
                        WA NO. 662 OF 2022
  AGAINST THE ORDER IN WP(C) 28740/2012 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 8 & 9:

    1     SANTHOSH KAIDACHIRA,
          AGED 50 YEARS
          SHIVA GOVINDAN HOUSE, KAIDACHIRAYIL HOUSE, NETHALOOR,
          KARUKACHAL P.O, KOTTAYAM 686 540.
    2     UNNIKRISHNAN PARAMBATH,
          PARAMBATHU HOUSE, NETHALOOR, KARUKACHAL P.O,
          KOTTAYAM - 686 540.
          BY ADVS.
          K.RAMAKUMAR (SR.)
          G.RENJITH
          R.S.ASWINI SANKAR
          T.H.ARAVIND
          T.RAMPRASAD UNNI


RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 7:

    1     ANIL KUMAR P,
          AGED 42 YEARS
          SON OF K. PURUSHOTHAMAN NAIR, ELIKUZHIYIL,
          KALATHUKADAVU P.O, PLASSANAL, KOTTAYAM DISTRICT, PIN
          686 579.
    2     UNION OF INDIA,
          REPRESENTED BY THE SECRETARY TO THE MINISTRY OF
          PETROLEUM AND NATURAL GAS, SASTHRI BHAVAN, DR. RAJENDRA
          PRASAD ROAD, NEW DELHI 110 001.
    3     THE DISTRICT COLLECTOR,
          KOTTAYAM, O/O. THE ADDITIONAL DISTRICT MAGISTRATE,
          COLLECTORATE, KOTTAYAM- KUMILY ROAD, KOTTAYAM - 686
          002.
    4     THE ADDITIONAL DISTRICT MAGISTRATE,
          KOTTAYAM, O/O. THE ADDITIONAL DISTRICT MAGISTRATE,
          COLLECTORATE, KOTTAYAM- KUMILY ROAD, KOTTAYAM - 686
          002.
     5     THE NEDUMKUNNAM GRAMA PANCHAYAT,
          REPRESENTED BY ITS SECRETARY, OFFICE OF THE NEDUMKUNNAM
          GRAMA PANCHAYAT, NEDUMKUNNAM, KOTTAYAM DISTRICT, PIN
          686 542.
    6     THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
          REPRESENTED BY THE SENIOR REGIONAL MANAGER, REGISTERED
          OFFICE -17, JAMSHEDJI TATA ROAD, MUMBAI 400 020.
    7     THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
          REPRESENTED BY THE SENIOR REGIONAL MANAGER,
          ERNAKULAM NORTH P.O, KOCHI 682 018.
    8     CHAMPAKARA N.S.S. KARAYOGAM SAMYUKTHA SAMITHY,
          KARUKACHAL,
          REPRESENTED BY ITS SECRETARY, OFFICE OF THE CHAMPAKARA
          NSS KARAYOGAM SAMYUKTHA SAMITHY, KARUKACHAL P.O,
          KOTTAYAM 686 540.
          BY ADVS.
          LIJI.J.VADAKEDOM FOR R1
          MANU S., ASG OF INDIA FOR R2
          SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R3 & R4
          M.GOPIKRISHNAN NAMBIAR FOR R6 & R7



THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.662/2022                                 3




                                                                                   CR

                                       JUDGMENT

SHAJI P.CHALY,J

This appeal is preferred by respondents 8 & 9 in W.P.(C) No.28470/2012,

challenging the judgment of the learned single Judge dated 8 th March, 2022,

whereby the following reliefs sought for by the writ petitioner was allowed and

accordingly, directed the Additional District Magistrate, Kottayam - 4 th respondent in

the appeal to reconsider the application submitted by the writ petitioner under Rule

144 of the Petroleum Rules 2002 and pass appropriate orders in accordance with

law, as expeditiously as possible and at any rate within one month from the date of

receipt of a copy of the judgment:

(i) Issue a writ of certiorari or any other writ, order or direction quashing Exhibit P8-resolution of the 4th respondent-Nedumkunnam Grama Panchayat and Exhibit P11-Order of the 3rd respondent-Additional District Magistrate, Kottayam.

(ii) Issue a writ of mandamus or any other writ, order or direction directing the 3rd respondent to consider the application for no objection Certificate filed by the 5th respondent with respect to the site offered by the petitioner afresh.

2. Brief material facts for the disposal of the appeal are as follows; the writ

petitioner was allotted a dealership for starting a new petroleum retail outlet at

Nethaloor, Kottayam District as per Ext P1 Letter of Intent issued by the Hindustan

Petroleum Corporation Limited - the 6th respondent in the appeal in the site offered

by the writ petitioner. Thereafter, the 6 th respondent through the Senior Regional

Manager of Hindustan Petroleum Corporation Limited, Ernakulam - the 7 th

respondent, submitted an application seeking No Objection Certificate as

contemplated under rule 144 of the Petroleum Rules, 2002 before the 3 rd

respondent District Collector. The District Collector, Kottayam as per Exhibit P2

letter sought for a report from the District Police Chief, Kottayam, Executive

Engineer, PWD Roads Division, Kottayam, the Assistant Divisional Officer, Fire and

Rescue, Kottayam, the Tahsildar, Changanacherry and the Secretary -

Nedumkunnam Grama Panchayat, in order to consider the application for No

Objection Certificate; and accordingly Exhibits P3, P3 (a) and P4 to P7 reports are

submitted by the said authorities.

3. All the statutory authorities have expressed their no objection in granting

the No Objection Certificate in contemplation of the Petroleum Rules, 2002, evident

from Exhibit P3(a) & Exhibits P4 to P7. Thereafter, the District Collector, Kottayam

has referred the matter to the Additional District Magistrate, Kottayam for taking

appropriate decision. While so,the appellants herein filed a complaint before the

Grama Panchayat - the 5th respondent in the appeal, stating that if the proposed

outlet is permitted to be started, there is a chance of causing obstruction to the

rites and rituals like the offerings, fireworks and other rituals conducted at

Nethalloor Devi Temple, which is situated near the proposed site. On the basis of

the said complaint, the Grama Panchayat convened a meeting of its committee and

by Exhibit P8 resolution, decided to revoke the no objection given by it to the

District Collector. Thereafter, on the basis of Exhibit P8 resolution of the Grama

Panchayat, revoked the No Objection Certificate initially granted, and consequently

the Additional District Magistrate - the 4 th respondent in the appeal, by Exhibit P11

order, rejected the application for No Objection. In the above background facts, the

writ petition was filed challenging Exhibit P8 resolution of the Grama Panchayat and

Exhibit P11 order passed by the Additional District Magistrate.

4. From the record of proceedings, it is clear that in spite of pendency of the

writ petition from the year 2012, none of the respondents have filed counter

affidavits. The learned single Judge, after considering the entire facts and

circumstances, has arrived at the conclusion that merely because a complaint is

filed by third parties, the no objection given by the Panchayat for grant of 'No

Objection Certificate' under rule 144 of the Petroleum Rules, 2002, cannot be

sustained. It was also found that merely because a resolution was passed by the

Grama Panchayat to withdraw the No Objection Certificate, that itself is not a

reason for the Additional District Magistrate to reject the application submitted

under rule 144 of the Petroleum Rules, 2002 and it was accordingly that the reliefs

were granted and the directions were issued.

5. At the outset we record that, at the time of hearing, learned counsel

appearing for the Petroleum Corporation has produced an order of the Additional

District Magistrate, Kottayam dated 25.4.2022, whereby we are convinced that in

accordance with the directions contained in the judgement of the learned single

Judge, an NOC is issued by the Additional District Magistrate, Kottayam in

accordance with rule 144 of the Petroleum Rules, 2002.

6. We have heard learned Senior counsel for the appellants Sri.K.Ramkumar,

assisted by Adv.Renjith. G., learned counsel for writ petitioners/1 st respondent

Sri.Liji J. Vadakkedom, Assistant Solicitor General Sri.S.Manu for the Union of India,

learned Senior Government Pleader Sri.K.P.Harish for the officials of the State and

Sri.Gopikrishnan Nambiar & Sri.Paulose C. Abraham for the Petroleum Corporation

and perused the pleadings and material on record.

7. The contention advanced by the learned Senior Counsel for the appellants

is that the judgment of the learned single Judge will have far reaching

consequences on the functioning of the entire local bodies in the State. It is

submitted that the learned single Judge has failed to notice the relevant and salient

provisions of the Kerala Panchayat Raj Act imposing on them the responsibility of

maintaining the safety and environmental protection to the residents, which cannot

be deviated by the District Administration. It is further submitted that the learned

single Judge erred in law in holding that the Panchayat has no say in the

establishment of a petroleum outlet within its areas, particularly near a water

source. That apart it is contended that the learned single Judge has failed to notice

that the Grama Panchayats under the Scheme of the Constitution of India have a

special responsibility to protect the residents from hazards and threat to the

environment and water resources as part of which the Panchayat objected to the

establishment of the retail outlet in a hazardous area. That apart it is contended

that the proposed outlet is near to a temple where explosives are used daily as part

of its rituals and festivals, which may pose a threat, safety and well being of the

people around the area particularly the devotees.

8. The sole question emerging for consideration is whether any interference

is required to the judgment of the learned single Judge ? In fact rule 144 of the

Petroleum Rules, 2002 deals with 'No Objection Certificate' and for the purpose of

starting a petroleum retail outlet the District Magistrate is vested with powers to

consider the application and take a decision in accordance with law. It was on the

basis of the application submitted by the Petroleum Corporation for and on behalf

of the writ petitioner, the District Collector has called for reports from various

statutory authorities and later transmitted the records to the Additional District

Magistrate, Kottayam for consideration of the application finally. In the meanwhile,

a complaint was filed by the appellants before the Grama Panchayat stating that if

the retail outlet is started, it would interfere with the rites and rituals performed in

the nearby temple and it was on the basis of the said complaint, the Panchayat has

taken a decision to withdraw the No Objection Certificate issued by it at the request

of the District Collector on the application submitted by the Petroleum Corporation

for compliance of rule 144 of the Rules, 2002.

9. The primary question arising for consideration is whether the Panchayat is

vested with powers to pass a resolution in the matter of establishment of the retail

petroleum outlet ? The fact remains, the issue with respect to the permission for

construction of factories and installation of machinery is guided by section 233 of

the Kerala Panchayat Raj Act, 1994. Sub-section (1) thereto specifies that,

no person shall, without the permission of the Village Panchayat and except in

accordance with the conditions specified in such permission, -

(a) construct or establish any factory, workshop or workplace in which it is

proposed to employ steam power, water power or other mechanical power, or

electrical power; or

(b) install in any premises any machinery or manufacturing plant driven by

any power as aforesaid, not being machinery or manufacturing plant

exempted by the provisions of the Act or the rules made there under.

Sub-section (2) makes it clear that, an application for permission under sub-section

(1) shall be submitted to the Village Panchayat addressed to the Secretary in such

form and with such details as prescribed. Section 233 was amended as per Act 14

of 2018 and has introduced a detailed procedure in order to consider the

application submitted for establishment permit.

10. On an analysis of the provisions of section 233 of Kerala Panchayat Raj

Act, 1994, as it originally stood and after the amendment by Act 14 of 2018, it is

clear that there is a clear cut and definite procedure prescribed for considering an

application for establishment permit and to take a decision on the same. In order

to implement the provisions of section 233, the State Government has introduced

the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and

Factories) Rules, 1996 and as per rule 3 of the Rules, 1996, the Government is

vested with powers to specify in the First Schedule appended to the Rules, the

matters which in the opinion of the Government are likely to be offensive or

dangerous to human life, health or property.

11. The said rule was amended as per G.O.(P) No.80 of 2017, by which

provisions are incorporated under the Rules enabling the Secretary to conduct due

inspection in accordance with the procedure prescribed thereunder and submit a

report to the Grama Panchayat in order to consider the application for

establishment permit and the trade licence contemplated under section 232 of the

Kerala Panchayat Raj Act, 1994.

12. Taking into account the provisions discussed above, it is categoric and

clear that in order to consider the application for establishment permit, the Act and

the Rules have prescribed a definite procedure and therefore, the Panchayat is not

at liberty to pass a general resolution not to grant any No Objection Certificate for

starting a retail Petroleum outlet.

13. In that view of the matter, the learned single Judge was right in

quashing Exhibit P8 resolution passed by the Grama Panchayat. We are also of the

undoubted opinion that when there is a clear statutory mechanism provided in

order to tackle any application for establishment of a factory or installation of

machinery, the Authority prescribed under the Act and the Rules are duty bound to

follow the procedure. Merely because a complaint was filed by the appellants, the

Panchayat cannot pass a resolution to withdraw the No Objection given since it is

in absolute violation of the procedure contained under law to deal with applications

for establishment permit and trade licence. Considering the subject issue as

aforesaid and taking into account rule 144 of the Petroleum Rules, 2002, we are of

the considered opinion that power is vested with the District Magistrate under the

Rules, 2002 independent of the powers enjoyed by the other statutory authorities.

14. In the case on hand, when the Panchayat has passed a resolution

withdrawing the Non Objection issued by it, the Additional District Magistrate,

Kottayam without assigning any reason, has dismissed the application filed by the

Petroleum Corporation, seeking No Objection Certificate under rule 144 of the

Petroleum Rules, 2002; which action cannot be sustained under law being arbitrary

and illegal. Moreover, we doubt the locus standi of the appellants to object to the

establishment of a retail outlet without any statutory right vested on them to raise

such an objection. It is equally important to note that when all the statutory

authorities like Police, Fire & Safety, Tahsildar etc. have issued the No Objection

Certificate, it has to be legally presumed that such certificates were issued after

conducting due site visit and taking into account the security parameters provided

under law, and also in accordance with law.

15. Taking into account the above legal and factual circumstances, we are of

the opinion that the learned single Judge was right in quashing Exhibit P8

resolution passed by the Grama Panchayat and Exhibit P11 order passed by the

Additional District Magistrate, declining No Objection Certificate under rule 144 of

the Rules, 2002.

16. Upshot of the above discussion is that the appellants have not made out

any case for interference with the judgment of the learned single Judge, there

being no error in exercising the discretion or other legal infirmities in an intra court

appeal filed under section 5 of the Kerala High Court Act, 1958.

Needless to say, appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                      SHAJI P.CHALY

smv                                                        JUDGE