Paul Jimmy vs Bharath Petroleum Corporation ...
2023 Latest Caselaw 9029 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                     WP(C) NO. 22655 OF 2021
PETITIONER:


          PAUL JIMMY,
          AGED 24 YEARS, THOTTUPURAM HOUSE,
          THEKKUMBHAGOM P.O., THODUPUZHA,
          IDUKKI 685 585.

         BY ADVS.
         K.JAJU BABU (SR.)
         M.U.VIJAYALAKSHMI
         BRIJESH MOHAN
         ASADU AHMMED CHULLINTE

RESPONDENTS:


    1     BHARATH PETROLEUM CORPORATION LTD.
          BHARAT BHAVAN 4 & 6 CURRIMBHOY ROAD,
          BALLARD ESTATE MUMBAI 400001,
          REPRESENTED BY ITS TERRITORY MANAGER (RETAIL)
          ERNAKULAM RETAIL TERRITORY OFFICE,
          IRIMANAM INSTALLATION, SEA FORT AIRPORT ROAD,
          ERNAKULAM. 682 309.

    2     THE TERRITORY MANAGER (RETAIL),
          BHARAT PETROLEUM CORPORATION LTD,
          ERNAKULAM RETAIL TERRITORY OFFICE,
          IRIMPANAM, INSTALLATION,
          SEA PORT AIRPORT ROAD,
          ERNAKULAM 682 309.

    3     THE KERALA STATE POLLUTION CONTROL BOARD,
          PATTOM, THIRUVANANTHAPURAM 695 004,
          REPRESENTED BY ITS MEMBER SECRETARY.

    4     THE ENVIRONMENTAL ENGINEER,
          KERALA STATE POLLUTION CONTROL BOARD,
          DISTRICT OFFICE (ERNAKULAM -II),
          PERUMBAVOOR, ERNAKULAM 683 542.
 W.P.(C) No.22655 of 2021
                              2


    5     SRI. LEO PAUL,
          NELLIPPILLIL HOUSE, ADOOPARAMBU,
          MUVATTUPUZHA P.O., ERNAKULAM - 686 661.

          BY ADVS.
          T.NAVEEN, STANDING COUNSEL
          M.GOPIKRISHNAN NAMBIAR
          K.M.ANEESH
          K.JOHN MATHAI
          JOSON MANAVALAN
          KURYAN THOMAS
          PAULOSE C. ABRAHAM
          RAJA KANNAN
          K.SANTHOSH KUMAR (KALIYANAM)
          ADARSH KUMAR
          BIJU VARGHESE ABRAHAM
          DILEEP CHANDRAN
          SHASHANK DEVAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.22655 of 2021
                                 3




                         JUDGMENT

Dated this the 23rd day of August, 2023

The petitioner approached this Court seeking to quash

Exts.P11 and P24 and to declare that Exts.P14 to P17 Circulars

are not applicable as far as starting of the Petroleum Outlet of the

petitioner sanctioned as per Exts.P1 to P8 is concerned.

2. The petitioner proposes to start a Retail Petroleum

Outlet. A Consent to Establish was issued to the petitioner as per

Ext.P8, by the Kerala State Pollution Control Board. Later, based

on a complaint preferred by the 5th respondent, the Consent was

withdrawn as per Ext.P13. Ext.P11 is the Consent Revoke

Intention notice. By Ext.P24, the Environment Engineer affirmed

that the Consent Revoke Order issued as per Ext.P13 is still in W.P.(C) No.22655 of 2021

existence. The petitioner challenges Exts.P11 and P24.

3. When this matter is taken up today, it is submitted at

the Bar that the Hon'ble Apex Court in Civil Appeal Nos.494 of

2022 and connected cases (Indian Oil Corporation Limited v.

V.B.R. Menon and others [2023(7) SCC 368]) has held that a

Consent to Establish or a Consent to Operate is not necessary for

a Petroleum Retail Outlets. The Hon'ble Apex Court held as

follows:

"46. What is important for us to note is that in the directions/guidelines issued by the CPCB dated 30.04.2020 and 07.03.2016 resply the automobile fuel outlets have been classified as "green" which may be exempted from consent management. The learned Solicitor General submitted that it is only after due consideration and deliberations that the CPCB issued the said directions. The NGT itself in para 66 of its impugned order has noted that the oil industry is characterized as "green category" and the CTE and CTO was not required. It appears to us that the apprehension on the part of the NGT that the installation of VRS may not be strictly monitored by the State Pollution Control Boards, led the NGT to issue directions to the CPCB & State Pollution Control Boards to issue a circular making it mandatory for obtaining the CTE and CTO as a condition precedent for establishing new petroleum outlets. What has been argued before us and also on the basis of the materials on record, we are convinced that it is not necessary to make obtaining of CTE and CTO mandatory. We would like to impress upon W.P.(C) No.22655 of 2021

the CPCB to ensure that its guidelines referred to above are scrupulously followed and once the guidelines are scrupulously adhered to, no direction to obtain CTE and CTO for starting/operating a RO is warranted. We are at one with the learned counsel appearing for the respective appellants that asking the existing ROs to obtain CTO is something very unreasonable and may lead to various difficulties. Even directing the ROs that may come up in future to obtain the CTE and CTO would be cumbersome and time consuming and thus we do not find it reasonable."

4. Thereafter, the Apex Court gave the following

directions:-

"48. In view of the aforesaid, we dispose of the Civil Appeal No. 2039 of 2022 in the following terms:-

(a) The CPCB shall ensure that all the retail petroleum outlets located in different cities having population of more than 10 lakh and having turn over of more than 300 KL/Month shall install the VRS mechanism within the fresh timeline as prescribed in its Circular dated 04.06.2021. To put it in other words, the CPCB shall ensure that the directions issued by the NGT as contained in para 69(i) and (ii) of the impugned order is fully complied with. It shall be the legal obligation of all the State Pollution Control Boards to ensure that the directions issued by the NGT in regard to the installation of the VRS mechanism is complied with within the fresh timeline as prescribed by the CPCB.

(b) We set aside the directions issued by the NGT in the impugned order as contained in para 69(iii) and (iv). Instead, we direct the CPCB to instruct all the State Pollution Control Boards to ensure that the guidelines issued by it vide the W.P.(C) No.22655 of 2021

Office Memorandum dated 07.01.2020 are strictly adhered to. If there is breach of any of the guidelines issued by the CPCB vide Office Memorandum dated 07.01.2020, then the concerned State Pollution Control Board shall proceed against the erring outlet in accordance with law at the earliest."

5. Going through the judgment of the Hon'ble Apex Court,

it is evident that a Consent to Establish or Consent Operate is not

necessary in the case of a Retail Petroleum Outlets. Therefore,

the Consent Revocation Order passed by the Pollution Control

Board will have no effect. At the same time, the Hon'ble Apex

Court has held that the Pollution Control Board shall ensure that

the Petroleum Retail Outlets are functioning in tune with the

Guidelines issued in the Office Memorandum dated 07.01.2020

and it should be ensured that the Petroleum Retail Outlets strictly

adhere to the provisions contained therein.

6. In view of the judgment of the Apex Court, no further

orders are necessary in the writ petition. It is made clear that

Consent Revocation Order issued on the petitioner will have no W.P.(C) No.22655 of 2021

effect. At the same time, the Pollution Control Board will be at

liberty to ensure that the petitioner's Petroleum Retail Outlet is

functioning adhering to the Guidelines issued by the Central

Pollution Control Board.

The writ petition is disposed of as above.

Sd/-

N. NAGARESH JUDGE ams W.P.(C) No.22655 of 2021

APPENDIX OF WP(C) 22655/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION DATED 25.11.2018 ISSUED BY THE 2ND RESPONDENT INVITING APPLICATIONS FOR SELECTION AND APPOINTMENT OF RETAIL DEALER BETWEEN MUVATTUPUZHA AND ADOOPARAMBU.

Exhibit P2 TRUE COPY OF THE APPLICATION FOR RETAIL OUTLET DEALERSHIP SUBMITTED BY THE PETITIONER ON 21.12.2018.

Exhibit P3 TRUE COPY OF THE AFFIDAVIT DATED 01.12.2018 OF THE LAND OWNER AGREEING TO GIVE THE LAND ON LEASE.

Exhibit P4 TRUE COPY OF THE LETTER OF INTENT DATED 24.03.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

Exhibit P5 TRUE COPY OF THE APPROVAL DATED 0-

1.06.2020 FORWARDED BY THE PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION (PESO), TO THE CORPORATION Exhibit P6 TRUE COPY OF THE NOC VIDE NO. DI-

2719/2020 DATED 09.06.2020 ISSUED BY THE REGIONAL FIRE OFFICER, FIRE AND RESCUE SERVICES, ERNAKULAM.

Exhibit P7 TRUE COPY OF THE NO OBJECTION CERTIFICATE VIDE NO. 56/2020 DATED 5.12.2020 ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE , ERNAKULAM.

Exhibit P8 TRUE COPY OF THE CONSENT TO ESTABLISH THE OUTLET ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER ON 19.06.2020.

Exhibit P9            TRUE   COPY   OF   THE    COMPLAINT  DATED
                      12.01.2021    SUBMITTED     BY   THE   5TH
 W.P.(C) No.22655 of 2021

RESPONDENT BEFORE THE POLLUTION CONTROL BOARD, PERUMBAVUR.

Exhibit P10        TRUE   COPY   OF   THE  COMPLAINT  DATED
                   22.03.2021    SUBMITTED   BY   THE   5TH

RESPONDENT BEFORE THE POLLUTION CONTROL BOARD, PERUMBAVUR.

Exhibit P11 TRUE COPY OF THE CONSENT REVOKE INTENTION NOTICE DATED 08.04.2021 FORWARDED BY THE 4TH RESPONDENT TO THE PETITIONER. Exhibit P12 TRUE COPY OF THE REPLY TO EXT. P11 SUBMITTED BY THE PETITIONER ON 217.4.2021 BEFORE THE 4TH RESPONDENT.

Exhibit P13 TRUE COPY OF THE CONSENT REVOKE ORDER DATED 21.06.2021 GRANTED BY THE 4TH RESPONDENT TO THE PETITIONER.

Exhibit P14 TRUE COPY OF THE CIRCULAR VIDE NO.PCB/HO/HOW/RULES9/7/2019 DATED 24.2.2020 OF THE 3RD RESPONDENT.

Exhibit P15 TRUE COPY OF THE AMENDED CIRCULAR VIDE NO./PCB/HO/HOW/RULES 9/7/2019 DATED 18.08.2020 OF THE 3RD RESPONDENT. Exhibit P16 TRUE COPY OF THE CLARIFICATION/CIRCULAR VIDE NO. PCB/HO/HOW/RULES9/7/2019 DATED 04.02.2201 OF THE 3RD RESPONDENT.

Exhibit P17        TRUE COPY OF THE MODIFIED CIRCULAR VIDE
                   NO.     PCB/HO/HOW/RULES9/7/2019    DATED
                   21.4.2021    PUBLISHED    BY    THE   4TH
                   RESPONDENT.
Exhibit P18        TRUE COPY OF THE ORDER DATED 29.1.2021 IN

I.A. NO. 1/2020 IN O.S. 40.406/2020 PASSED BY THE MUNSIFF COURT, MUVATTUPUZHA.

Exhibit P19 TRUE COPY OF THE ORAL JUDGMENT IN WPC NO.

2331/2019 DATED 15.01.2201 OF THE HONBLE HIGH COURT OF BOMBAY.

W.P.(C) No.22655 of 2021

Exhibit P20 TRUE COPY OF THE COUNTER AFFIDAVIT (WITHOUT EXHIBIT IN WPC NO. 16756/2021 FIELD BY THE 5TH RESPONDENT DATED 6.9.2021.

Exhibit P21 TRUE COPY OF THE REPORT DATED 17.9.2021 SUBMITTED BY THE CHIEF ENVIRONMENTAL ENGINEER TO THE MEMBER SECRETARY OF THE 2ND RESPONDENT.

Exhibit P22 TRUE COPY OF THE JUDGMENT DATED 9.9.2021 IN WPC N 16756 OF 2021 OF THIS HONBLE COURT.

Exhibit P23 TRUE COPY OF THE NOTICE NO.

PCB/EKM/DO2/GEN-CF/05/13 DATED 28.9.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P24 TRUE COPY OF THE ORDER NO.

PCB/EKM/DO2/GEN-CF/05/13 DATED 7.10.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P25 TRUE COPY OF THE CIRCULAR NO. B-

13011/12019-20/AQM/0809 DATED 7.1.2020 ISSUED BY ADDITIONAL DIRECTOR, AQM DIVISION OF THE 3RD RESPONDENT.

Exhibit P26 TRUE COPY OF THE ORDER IN ORIGINAL APPLICATION NO. 86/2019 DATED 18.01.2019 ISSUED BY THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI.

Exhibit P27 TRUE COPY OF THE ORDER DATED 22.7.2019 IN O.A. NO. 86/2019 OF THE NATIONAL GREE TRIBUNAL.

Exhibit P28 TRUE COPY OF THE JUDGMENT DATED 4.5.2021 IN WPC NO. 8456/2201 OF THIS HONBLE COURT.

RESPONDENT'S EXHIBIT W.P.(C) No.22655 of 2021

Exhibit R5 A TRUE COPY OF THE SITE PLAN PERTAINING TO THE PROPOSED SUBJECT MATTER OUTLET SUBMITTED BY THE WRIT PETITOINER BEFORE THE 3RD RESPONDENT AUTHORITIES, OBTAINED BY MEANS OF RTI APPLICATION BEFORE THE VILLAGE OFFICE, MUVATTUPUZHA.