Madras High Court
Anil Kumar .T.V vs The District Collector on 14 August, 2023
W.P(MD)No.20228 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.20228 of 2022 and
WMP(MD) Nos.16488, 16489 & 14704 of 2022
Anil Kumar .T.V ... Petitioner
Vs
1.The District Collector,
District Collectorate,
Nagercoil,
Kanyakumari District.
2.The District Revenue Officer,
District Collectorate,
Nagercoil,
Kanyakumari District.
3.The Executive Officer,
Kollemcode Town Panchayat,
Kollemcode Post,
Kanyakumari District-629160.
4.The Tahsildar,
Tholayavattam,
Kanyakumari District-629171.
1/19
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W.P(MD)No.20228 of 2022
5.The Village Administrative Officer,
Kollemcode (A) Village,
Kollemcode Post,
Kanyakumari District-629160.
6.The District Environmental Engineer,
Tamilnadu Pollution Control Board,
No.318/46a, Water Tank Road,
Nagercoil,
Kanyakumari District-629001.
7.The Chief Divisional Retail Sales Manager,
Indian Oil Corporation Limited,
Madurai Divisional Office,
No.2, Race Course Road,
Chokkikulam,
Madurai-625002.
8.Subashini ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Declaration that the No
Objection certificate, issued by the Respondent Nos. 1-6 for the
purpose of setting up of Indian Oil Corporation Petroleum Retail
Outlet in R.Sy.No.418/6A2, Kollemcode Village in favour of the
eighth respondent and the subsequent license granted by the seventh
respondent for petroleum retail pump outlet as illegal and
consequentially forbear the eighth respondent from constructing
Petrol Retail Pump Outlet in the subject matter land.
2/19
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W.P(MD)No.20228 of 2022
For Petitioner :Ms.J.R.Annie Abinaya
For R1, R2, R4 & R5:Mr.G.V.Vairam Santhosh
Additional Government Pleader
For R6 :Mrs.Vijayakumari Natarajan
Standing Counsel
For R7 :Mr.K.Muraleedharan
For R8 :Mr.C.K.M.Appaji
ORDER
The petitioner, a resident of Kollamkodu Village has
filed this writ petition for a declaration that 'No Objection
Certificate', if any issued by the respondents 1 to 6 in favour of the
eighth respondent for setting up a Petroleum Retail Outlet in Survey
No.418/6A2, Kollankodu Village is illegal and also sought for a
consequential direction to the official respondents to forbear the
eighth respondent from constructing any Petroleum Retail Outlet in
the subject land.
2.The case of the petitioner is that the eighth respondent
has attempted to construct a Petroleum Retail Outlet within a radius
of 11 metres from the petitioner's house. Alleging that he has
submitted an application before the competent authority. Based on
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W.P(MD)No.20228 of 2022
the application of the eighth respondent, the District Revenue
Officer has issued a notice to the petitioner and other residents of
that area on 07.11.2020, calling upon them to offer their objections,
if any, under the Petroleum Rules, 2002. Accordingly, an enquiry
was conducted on 08.11.2020. The petitioner and other residents
have raised their objections. Thereafter, the respondents have not
intimated about the action taken on their objections. The petitioner
has repeatedly reminded the District Revenue Officer under the RTI
Act, wherein, it was stated that a decision has not been taken on the
application of the eighth respondent for opening the petrol retail
outlet in the above survey Number. As per the information provided
in the application submitted under the RTI Act, No Objection
Certificate was not issued to the eighth respondent. However, in the
month of February 2022, the eighth respondent commenced the
construction of the petrol outlet in the above said survey number.
Therefore, the petitioner has immediately approached this Court for
the reliefs as stated supra.
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W.P(MD)No.20228 of 2022
3.The learned counsel appearing for the petitioner by
referring the notification issued by the Ministry of Petroleum and
Natural Gas, dated 10.08.2018 and the guidelines issued by the
Petroleum Corporation for setting up of a new petrol outlets submits
that there shall not be any petroleum outlet, if there is any High
Tension lines are passing through the site and no petroleum outlet
shall be established within a radius of 30 metres from the residential
area. In this case, according to the learned counsel for the petitioner,
the petitioner's house situated within 11 metres from the proposed
petrol Pump and there are other houses also in existence within 30
metres radius. Without considering these significant guidelines, No
Objection Certificate was issued by the District Revenue Officer and
the Petroleum Corporation has also proceeded with granting further
permission to establish the petrol Pump. The learned counsel has
also relied upon the orders of the Honourable Division Bench of this
Court in WP(MD) No.19244 and 19830 of 2019 and 5690 of 2019,
dated 30.09.2019 & 05.08.2019 respectively.
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W.P(MD)No.20228 of 2022
4.The learned counsel appearing for the seventh
respondent submits that the claim of the petitioner is baseless and
meaningless. The seventh respondent Corporation has acted upon
based on the Certificate issued by the Competent authorities and
Indian Oil Corporation has also selected the location after taking
into consideration of all safety measures in the interest of the public.
He further submits that the competent authorities have issued No
Objection Certificate under the Petroleum Act, by taking into
consideration of the objections given by the petitioner and other
residents in that locality that there is no violation or deviation for
commissioning the Petroleum Retail Outlet. Moreover, number of
vehicles plying in that locality and the requirement for those
vehicles' operation has also been taken into consideration before
issuing the No Objection Certificate. He further submits that the
guidelines issued are not of statutory in force and it is only
recommendatory in nature. On this ground alone, the licence which
has already been granted in favour of the eighth respondent cannot
be interfered with.
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W.P(MD)No.20228 of 2022
5.The learned counsel appearing for the eighth
respondent is relying upon a detailed counter affidavit filed by him
and submits that
i. The subject property is situated in the isolated location of
Kollemcode Town, abutting Thirumannam-Kirathur Road. On
26.05.2020, the eighth respondent has preferred an application
before the seventh respondent for the grant of licence to run an
IOCL Petroleum Outlet in her property.
ii. The application of the eighth respondent was forwarded to the
District Revenue Officer, Kanyakumari District, the third
respondent herein for the grant of No Objection Certificate.
Consequently, the third respondent has made a field visit,
calling for objections, if any from the local men, by sending
notice, conducted public hearing on 18.11.2020. After
scrutinizing the written objections and after assessing ground
reality, No Objection Certificate was issued to the eighth
respondent.
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W.P(MD)No.20228 of 2022
iii. The third respondent while issuing No Objection Certificate
took into consideration of the following particulars:-
a) Possession of the site by the applicant is lawful and
authorization from land owner or lease holder ofr
developing premises under these Rules for storage of
Petroleum products:
b) Interest of public, specially the facilities like Schools,
Hospitals or Proximity to places of public assembly and
the mitigating measures, if any is provided:
c) Traffic density and impact on traffic;
d) Conformity of proposed to the local or area development
planning:
e) Accessibility of the site to the tenders in case of
emergency and preparedness of fire services for
combating the emergencies:
f) Genuineness of purpose
g) Any other matter pertinent to public safety:
h) To construct Blast Wall compound in the premises since
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W.P(MD)No.20228 of 2022
habitations are there from 100 meters as specified by
Fire & Rescue Department;
i) To install 2 Trally type from fire Extinguisher
j) To install lighting arrester in the premises.
Therefore, Rule 144 of Petroleum Rules, 2002 was
strictly adhered to.
iv. The house of the petitioner is located 40 meters away from the
proposed Petroleum Pump and other houses are located for
away from the proposed Petroleum Pump.
v. Under Clause 'H' of the Office Memorandum of the Central
Pollution Control Board, Delhi in B-13011/1/2019-20/AQM,
dated 07.01.2020, the siting criteria of retail outlet are detailed
below “In case of siting criteria for Petrol Pump new Retail
outlets shall not be located within a radial distance of 50
meters (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. In case of
constraints in providing 50 meters distance, the retail outlet
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W.P(MD)No.20228 of 2022
shall implement additional safety measures as prescribed by
PESO. In no case the distance between new retail outlet from
schools, Hospitals (10 beds and above) and residential area
designated as per local laws shall be less than 30 meters. No
high tension line shall pass over the retail outlet”. The
prohibited radial distance of 50 meters for establishing a new
retail outlet is applicable only to the residential area
designated as per local law. The eighth respondent's property
comprised in Survey No.418/6A2(Part), Kollemcode-A
Village is not classified as a residential area and thus there is
no impediment for opening the Petrol Bunk in the subject
property. The petitioner with an oblique motive to gain
advantage, misinterpreted the official memorandum of the
Central Pollution Control Board dated 07.01.2020 that the
retailed outlets shall not be located within 50 meters from
residential areas, has filed this writ petition.
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W.P(MD)No.20228 of 2022
6.The Executive Officer, Kollemcode Town Panchayat/
the third respondent herein has also filed a counter affidavit stating
that based on No Objection Certificate issued by the District
Revenue Officer and other authorities, the third respondent has
approved the building plan submitted by the eighth respondent.
7.This Court considered the rival submissions made by
the counsel on all sides and perused the materials placed on record.
8.The petitioner is a resident of Kollemcode Village and
he has constructed a house after obtaining necessary permission
from the local Planning authority. The eighth respondent was
intended to put up a Petroleum Retail outlet in S.No.418/6A2 of
Kollemcode Village, which according to the petitioner is within 11
metre radius from his residential house. Rule 144 of Petroleum
Rules, 2002 prescribed certain certificates, which needs to be
obtained from the District Revenue Officer and a standard proforma
is also issued to that effect. The District Authority, who has to issue
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W.P(MD)No.20228 of 2022
No Objection Certificate as required under Rule 144 of Petroleum
Rules has to consider the following aspects before issuing the
Certificate.
a) Possession of the site by the applicant is lawful and
authorisation from land owner or lease holder for
developing premises under these rules for storage of
petroleum products;
b) interest of public, specially the facilities like schools,
hospitals or proximity to places of public assembly and
the mitigating measures,if any, is provided;
c) traffic density and impact on traffic;
d) conformity of proposal to the local or area development
planning;
e) accessibility of the site to fire tenders in case of
emergency and preparedness fire services for combating
the emergencies;
f) genuineness of purpose.
g) Any other matter pertinent to public safety
The Central Pollution Control Board has also issued guidelines for
setting up a new Petroleum outlet by its memorandum dated
07.10.2020 and Clause H would be relevant and the same is
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W.P(MD)No.20228 of 2022
extracted as under:-
H. Siting criteria of Retail Outlets:-
In case of siting criteria for petrol pumps new Retails Outlets
shall not be located within a radial distance of 50 meters (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. In case of constraints in providing
50 meters distance, the retail outlet shall implement additional
safety measures as prescribed by PESO in no case the distance
between new retails outlet from schools, Hospitals (10 beds and
above) and residential area designated as per local laws shall be
less than 30 meters. No high tension line shall pass over the
retails outlet.
9.These guidelines were issued as a supplementary to the
existing guidelines and orders. The Division Bench of this Court in
WP(MD)No.5690 of 2019, dated 05.08.2009 in a similar issue has
held that the District Authority while issuing NOC has not made any
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W.P(MD)No.20228 of 2022
observations or findings as to how he has ascertained the
requirements of the proforma were satisfied. Ultimately, NOC in that
case was set aside and the matter was remitted back for fresh
consideration by the District Authority.
10.In the other Judgment of the Division Bench of this
Court in similar issue, this Court has held that No Objection
Certificate issued for setting up the petroleum outlet is nothing but
the verbatim replica of the proforma and nothing on record to show
as to how the factors mentioned therein have been satisfactorily
complied with to the satisfaction of the concerned authority. The
Division Bench has also held that there cannot be any mechanical
grant of NOC/approval/consents and each authorities have to
discharge the duties cast upon them under the statute.
11.The petitioner claims that he is a resident within 11
metres from the proposed Petroleum Retail outlet. The eighth
respondent claims that the petitioner's house is situated 40 metres
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W.P(MD)No.20228 of 2022
away from the petroleum outlet. As per the guidelines issued by the
Pollution Control Board, an establishment of a new Petroleum
Retails Outlet shall not be located within a radial distance of 50
meters from Schools, Hospitals (10 beds and above) and residential
areas designated as per local laws. In case of any constrains, the
retail outlet shall be established with an additional safety measures
as prescribed by Explosiveness Safety Order. That apart, there shall
not be any outlet within the radius of 30 meters from the residential
area designated as per local law. If there is any High Tension lines
passing through the outlet, there cannot be any permission for
setting up the outlet. These guidelines were also issued as a
supplementary to the existing relevant rules, guidelines and orders.
The authority, while issuing No Objection Certificate ought to have
considered these guidelines before issuing No Objection Certificate.
12.In this case, in view of the contradictory stand taken
by the petitioner and the eighth respondent with regard to the
distance of the petrol outlet from the residential area, this Court, by
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W.P(MD)No.20228 of 2022
order dated 31.10.2022 directed the Revenue Inspector to personally
visit the place and survey the land and to file a report before this
Court. As per the report filed, it appears that the petitioner's house is
situated within 11 meters from the proposed Petroleum retail outlet.
The petitioner's house also appears to be constructed with the
approval from the local Planning authority.
13.In view of the foregoing discussions, this writ
petition is allowed. No Objection Certificate issued by the District
Revenue Officer, dated 08.02.2022 is hereby set aside and the matter
is remitted back for fresh consideration by the District Revenue
Officer, Kanyakumari. No costs. Consequently, connected
Miscellaneous Petitions are closed.
14.08.2023
NCC :Yes/No
Index :Yes/No
Internet:Yes
vrn
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W.P(MD)No.20228 of 2022
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W.P(MD)No.20228 of 2022
To
1.The District Collector,
District Collectorate,
Nagercoil,
Kanyakumari District.
2.The District Revenue Officer,
District Collectorate,
Nagercoil,
Kanyakumari District.
3.The Executive Officer,
Kollemcode Town Panchayat,
Kollemcode Post,
Kanyakumari District-629160.
4.The Tahsildar,
Tholayavattam,Kanyakumari District-629171.
5.The Village Administrative Officer,
Kollemcode (A) Village,
Kollemcode Post,
Kanyakumari District-629160.
6.The District Environmental Engineer,
Tamilnadu Pollution Control Board,
No.318/46a, Water Tank Road,
Nagercoil, Kanyakumari District-629001.
7.The Chief Divisional Retail Sales Manager,
Indian Oil Corporation Limited,
Madurai Divisional Office,
No.2, Race Course Road,
Chokkikulam,Madurai-625002.
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W.P(MD)No.20228 of 2022
B.PUGALENDHI, J.
vrn
Order made in
W.P(MD)No.20228 of 2022 and
WMP(MD) Nos.16488, 16489 & 14704 of 2022
14.08.2023
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