Allowed

Shajida Shajahan v. the District Magistrate

Kerala HC11 Dec 2020WP(C)/31531/2019

Case brief

AI extract

What is this about?

High Court at Ernakulam allowed a writ petition challenging the refusal of a No Objection Certificate (NOC) for a petrol outlet by the District Magistrate. The Court held the rejection unjustified as the site did not violate Pollution Control Board distance norms regarding residential areas, and police reports of law and order issues were not based on concrete inputs.

What did the court decide?

NOC refusal order set aside; 1st respondent directed to re-consider application within six weeks.

Shajida Shajahan Vs the District Magistrate — Specific Performance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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FRIDAY,THE 11TH DAY OF DECEMBER 2020/20TH AGRAHAYANA,1942 WP(C).No.31531 OF 2019(N)

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PETITIONER:

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SHAJIDA SHAJAHAN, AGED 52 YEARS, W/O.P.A.SHAJAHAN, KOLLAMPARAMPIL HOUSE, MADAPPALLY P.O., MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM-686 545.

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BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL

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RESPONDENTS:

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1 THE DISTRICT MAGISTRATE, OFFICE OF THE DISTRICT MAGISTRATE, COLLECTORATE, KOTTAYAM-686 001.

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2 THE ADDITIONAL DISTRICT MAGISTRATE KOTTAYAM, OFFICE OF THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOTTAYAM-686 001.

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3 MADAPPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MAAMOD P.O., KOTTAYAM 686 546.

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4 SECRETARY, MADAPPALLY GRAMA PANCHAYAT, MAAMOD P.O., KOTTAYAM 686 546.

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5 ABDUL LATHEEF, PEZHAKATHUMOOTIL, PERUMBANACHI P.O., KOTTAYAM-686 536.

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6 PRESIDENT, JYOTHI RESIDENCE ASSOCIATION, JYOTHI NAGAR, THENGANA, KOTTAYAM DISTRICT-686 536.

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7 THE DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM-686 001.

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8 INDIAN OIL CORPORATION LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, G-9, ALI YAVAR JUNG MARG, BANDRA(EAST), MUMBAI-400 051.

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9 VIKAR, REPRESENTING ST.THOMAS ORTHODOX CHURCH,PERUMPANACHI P.O., KOTTAYAM-686 536.

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R1,R2&R7 BY SR. G.P. SRI K.V. MANOJ KUMAR R3-R4 BY SRI.LAL GEORGE,SC. R5 BY ADV. SRI.ANIL D.KARTHA R5 BY ADV. SRI.ANANTHAKRISHNAN A. KARTHA R8 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R8 BY ADV. SRI.K.JOHN MATHAI R8 BY ADV. SRI.JOSON MANAVALAN R8 BY ADV. SRI.KURYAN THOMAS R8 BY ADV. SRI.PAULOSE C. ABRAHAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

W.P.(C) No.31531 of 2019

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Dated this the 11^th day of December, 2020

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The writ petition has been filed seeking to set

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aside Ext.P5 order of 1^st respondent-District Magistrate whereby the application of the petitioner seeking NOC for starting a petrol and diesel retail outlet in Madappally Village in Changanacherry Taluk, stands rejected.

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The petitioner states that she intended to start a Petrol and Diesel Retail Outlet of the 8^th respondent and obtained leasehold rights over 13.5 cents of land in ReSurvey No.124/1–4 of Madappally Village in Changanacherry Taluk in Kottayam District. The petitioner thereafter entered into an agreement with the 8^th respondent. Ext.P1 is the Letter of Intent dated 26.02.2019 issued by the Deputy General Manager of the 8^th respondent.

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The 8^th respondent submitted an application before

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the 1^st respondent for grant of NOC under the Petroleum Rules to start the petrol and diesel retail outlet as per Ext.P2. On receipt of Ext.P2, the 1^st respondent sought reports from various authorities. The 3^rd respondent-Grama Panchayat gave a recommendation in favour of the petitioner. Still, the 1^st respondent did not consider the application.

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The petitioner filed W.P.(C) No.23849/2019 before

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this Court and this Court as per Ext.P4 interim order directed the 1^st respondent to consider the petitioner's application. Thereupon, the 1^st respondent heard the petitioner and respondents 3 to 7. However, Ext.P5 order dated 9.10.2019 was passed by the 1^st respondent rejecting the application for NOC, citing objections raised by the 5^th respondent and on the basis of the additional report submitted by the 4^th respondent-Secretary to Grama Panchayat. The petitioner seeks to set aside Ext.P5.

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Respondents 3 and 4 filed counter affidavits. Respondents 3 and 4 stated that based on the proceedings

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dated 21.05.2019 of the District Magistrate, Kottayam, the matter was considered by the Panchayat in its meeting held on 26.06.2019 and it was decided to issue formal NOC of the Panchayat for the Retail Outlet. Thereafter, the Panchayat received a mass petition from Jyothi Residence Association on 07.07.2019 against starting of petrol and diesel retail outlet. The petitioner alleged that there are several residential buildings and St. Thomas Orthodox Church located in the immediate vicinity of the plot where the petitioner proposes to start fuel outlet. A petition was submitted by the St. Thomas Orthodox Church and its parishioners. There is no merit in the writ petition filed by the petitioner and it is liable to be dismissed, contended respondents 3 and 4.

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The 5^th respondent opposed the writ petition filing counter affidavit. The 5^th respondent stated that NOC was rejected not only for non-compliance of Panchayat Building Rules and objections raised by the neighbours, but on various grounds also. The Government of Kerala has

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withdrawn the recognition given to IRC norms as per Government Order dated 10.02.2020. But, the said Government Order approve and stipulate norms and specifications to be followed for ensuring safety of the roads and traffic while granting NOC for new retail outlets.

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The 5^th respondent stated that there is only a distance of 450 m. from an intersection with the Changanacherry – Kattappana PWD Road. There is a road opposite to the proposed site which is evidently within 300 m. from the proposed site. Therefore, the plot is not suitable to house a petrol and diesel retail outlet. The Kerala State Pollution Control Board, as per Ext.R5(b), has stipulated that petroleum outlets shall not be located within a radial distance of 50 m. from residential building and in no case it shall be less than 30 m. The proposed outlet of the petitioner violates this distance rule also. As per Ext.R5(c)-Office Memorandum of the Central Pollution Control Board also, no NOC can be granted for setting up a petrol pump within a minimum distance of 50 m. from residential houses.

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The 8^th respondent-Indian Oil Corporation Limited filed a counter affidavit. The 8^th respondent pointed out that a building permit need not be submitted along with an application for NOC. Local bodies accept building permit applications for petroleum outlets only along with an NOC issued by the District Collector. Possibility of law and order problems and the safety issues due to fireworks at nearby church and religious places are completely unfounded. There is no legal impediment in starting petroleum fuel outlets near places of worship. The mere fact that neighbouring plot owners object establishment of petroleum outlet, also cannot be a reason to decline NOC.

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The counsel for the petitioner submitted that the guidelines of Pollution Control Board do not prescribe any distance rules. Ext.R5(c)-Office Memorandum of the Central Pollution Control Board only states that new retail outlets shall not be located within a radial distance of 50 m. from schools, hospitals and residential areas designated as per local laws. The area where the petrol and diesel retail outlet

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is proposed, is not in a designated residential area. Therefore, Ext.R5(c)-Office Memorandum of the Central Pollution Control Board will not apply.

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The learned counsel for the petitioner further pointed out that in the judgment in W.P.(C) Nos.30818/2015 and 9081/2017, this Court has categorically held that objections raised by the neighbours of the property where petroleum outlet is sought to be established, by itself cannot be a reason to decline NOC.

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The learned Standing Counsel for the Panchayat referred to Exts.R3(a) and R3(b) and submitted that the local residents and parishioners have raised strong objection to the establishment of petroleum fuel outlet at the proposed site. The proposed site is not suitable for starting petroleum fuel outlet in view of Section 47 of the Panchayat Building Rules.

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The learned counsel for the 5^th respondent pointed out that due to the intersection with MDR within 450 metres from the proposed site, no NOC can be granted to the

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petitioner. The proposed location of the petitioner's petroleum outlet does not satisfy the sighting criteria. In view of Ext.R5(c), no petroleum outlets can be permitted, if there are residential houses within a radial distance of 50 m. The house of the 5^th respondent is hardly 1 m. away. The distance of 50 m. should be from residential buildings and need not be from designated residential areas, in view of Ext.R5(b).

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The learned Government Pleader appearing for respondents 1 and 2 stated that the petitioner has an alternate remedy under Section 154(2) of the Petroleum Act and the petitioner can file an appeal to the Government represented by the Land Revenue Commissioner. It is not the objections of the neighbours alone, but the possibility of law and order problem has also worked with the District Collector in rejecting the application for NOC. Respondents 1 and 2 are bound to consider the impact of the proposed petroleum outlet on traffic. The writ petition is therefore without any merit and it is liable to be dismissed, contended

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the learned Government Pleader.

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The learned Standing Counsel appearing for the 8^th respondent, on the other hand, submitted that the issue of pollution cannot be now raised because the 8^th respondent has already received No Objection Certificate/Consent from the Pollution Control Board. As the consent from the Pollution Control Board has already been received, Exts.R4(a) and R4(b) cannot be relied on to reject the application for NOC. The learned counsel for the 8^th respondent urged that Ext.P5 rejection is illegal and unsustainable. The 1^st respondent is therefore liable to be compelled to issue NOC to the 8^th respondent.

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I have heard the learned counsel for the petitioner, learned Standing Counsel for the Panchayat, learned counsel for the 5^th respondent, learned Standing Counsel for the 8^th respondent and learned Government Pleader appearing for respondents 1, 2 and 7.

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The challenge in the writ petition is against Ext.P5 order of the 1^st respondent-District Magistrate refusing to

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issue NOC for establishing a petrol and diesel retail outlet. From Ext.P5 proceedings, it is seen that the Regional Fire Officer, Fire and Rescue Department, has given a report that the Department has no objection in starting the petroleum fuel outlet at the place in question. The 3^rd respondentGrama Panchayat has also issued Ext.P3 letter dated 28.06.2019 stating that the Panchayat has no objection. But, the 1^st respondent noted that through a subsequent letter Ext.R3(d) dated 02.08.2019, the Panchayat has informed that the drawings submitted by the petitioner do not satisfy Building Rules. The Panchayat has informed the 1^st respondent that the deficiencies have not been made good by the petitioner and therefore building permit has not been given.

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The 1^st respondent has also noted a report of the District Police Chief pointing out objections raised from certain quarters and the likelihood of law and order issues. The report of the Tahsildar pointed out a civil appeal in respect of starting of the petroleum fuel outlet, pending in

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District Court. A report of the Executive Engineer, PWD, stated that application has been returned as the establishment of the petrol and diesel retail outlet would affect vehicular traffic as per IRC/MORTH norms.

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Although the District Magistrate took note of all the afore reports, NOC has been declined on the ground that the house of the 5^th respondent stands adjacent to the proposed plot where the petroleum fuel outlet is to be established and it will adversely affect the health of the persons residing there. The further ground on which the 1^st respondent has declined NOC is that the District Police Chief and Secretary to the 5^th respondent-Grama Panchayat have made objections.

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As regards the reason given by the 1^st respondent as to the existence of houses nearby and threat to the health of the persons residing in those houses, it is to be noted that as per the Circular dated 09.08.2004 of the Pollution Control Board, new retail outlets shall not be located within a radial distance of 50 metres (from Fill point/dispensing units/vent

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pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws and in no case shall be less than 30 metres. The Pollution Control Board is the statutory authority competent to decide whether establishment of a petroleum fuel outlet could cause health hazard to the nearby residents. The proposed petroleum fuel outlet is not coming within any designated residential areas and therefore the 50 metre distance restriction provided by Circular dated 09.08.2004 of the Kerala State Pollution Control Board will not apply.

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It is true that the Kerala State Pollution Control Board has issued a subsequent Circular dated 24.02.2020, modifying the siting criteria for new petroleum retail outlets and has stated that the distance should be from the nearest residential building. However, in Ext.R5(b) Circular dated 18.08.2020, the Kerala State Pollution Control Board has made it clear that if any requisite licence other than the PCB consent is obtained by the applicant for establishing the petrol pump prior to the date of the Circular dated

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24.02.2020, then the siting criteria mentioned in Circular dated 09.08.2004 shall be applicable. Therefore, NOC cannot be denied based on health hazard to neighbours, under Circular dated 24.02.2020 of the Pollution Control Board.

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From Ext.P5 proceedings itself, it is evident that the Regional Fire Officer has granted permit/NOC on 25.06.2019. In view of the above, the Circular of the Pollution Control Board applicable would be the Circular dated 09.08.2004, as per which the 50 metre radial distance has to be measured from the nearest designated residential area. The proposed petroleum fuel outlet is not coming within the prohibited distance of any designated residential area. Therefore, the District Magistrate was not justified in declining NOC on the ground of health hazard to the nearby residents.

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The further reason given by the 1^st respondentDistrict Magistrate for refusing NOC, is that the District Police Chief has pointed out about the complaints by local residents

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and the likelihood of law and order issues, if a petroleum fuel outlet is coming up in the area. This Court has held in the judgment in W.P.(C) No.19140/2020 that consent of neighbouring property owners is not required for grant of NOC. Complaints submitted by local residents cannot be a reason to decline NOC, if the applicant is otherwise legally entitled to it.

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From complaints filed by local residents, there cannot be a presumption of law and order problem. The presumption of law and order issues will have to be based on concrete inputs/information in respect of such issues. Possible law and order issues cannot be a reason to deny NOC or licence to an entrepreneur to start a petroleum fuel outlet or for that matter any other industry, if the person proposing to start such venture complies or is willing to comply with all legal requirements. From the pleadings in this writ petition, it is not discernible as to based on what inputs, the District Police Chief has arrived at the conclusion on law and order issues.

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As regards the objections subsequently raised by the Grama Panchayat, the petitioner can still make good the requirements of Building Rules compliance, by submitting revised building plan. The learned Standing Counsel for the 8^th respondent would submit that NOC from District Magistrate should precede application for building permit to the Grama Panchayat.

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In the circumstances, the grounds based on which the 1^st respondent has declined NOC cannot stand the scrutiny of law. Ext.P5 is therefore set aside. The 1^st respondent is directed to re-consider the application for NOC in accordance with law and pass orders thereon within six weeks.

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Writ petition is disposed of as above.

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Sd/- N. NAGARESH, JUDGE

aks/03.12.2020

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE LETTER OF INTENT DATED 26.02.2019 ISSUED BY THE DEPUTY GENERAL MANAGER (RETAIL SALES) OF INDIAN OIL CORPORATION LTD. EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED 16.04.2019 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P3 A TRUE COPY OF LETTER NO.A4-2958/2019 DATED 28.06.2019 ISSUED BY THE SECRETARY, MADAPPALLY GRAMA PANCHAYAT. EXHIBIT P4 A TRUE COPY OF THE INTERIM ORDER DATED 03.09.2019 IN WPC NO.23849/2019. EXHIBIT P5 A TRUE COPY OF THE ORDER NO.DCKTM/4220/2019-H3 DATED 09.10.2019. EXHIBIT P6 A TRUE COPY OF THE LETTER NO.A3344/2019 DATED 03.07.2019 ISSUED BY THE FOURTH RESPONDENT. EXHIBIT P7 A TRUE COPY OF THE AMENDED PLAN SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE RECEIPT ISSUED BY THE FOURTH RESPONDENT. EXHIBIT P9 A TRUE COPY OF THE REPORT NO.A43444/19 DATED 23.09.2019 BY THE 4TH RESPONDENT.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R3(a) PHOTOSTAT COPY OF THE MASS PETITION DATED 07.07.2019.

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EXHIBIT R3(b) PHOTOSTAT COPY OF THE MASS PETITION DATED 03.07.2019. EXHIBIT R3(c) PHOTOSTAT COPY OF THE REPORT PREPARED IN THAT REGARD EXHIBIT R3(d) PHOTOSTAT COPY OF THE LETTER DATED 02.08.2019. EXHIBIT R3(e) PHOTOSTAT COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER EXHIBIT R5(a) A TRUE COPY G.O(MS) NO. 16/2020/PWD DATED 10-02-2020. EXHIBIT R5(b) TRUE COPY OF THE CIRCULAR NO. PCB/HO/HOW/RULES9/7/2019 DATED 18-082020 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT R5(c) TRUE COPY OF THE OFFICE MEMORANDUM NO.B-13011/1/2019-20/AQM/0802-10847 DATED 07-01-2020.

Shajida Shajahan v. the District Magistrate

Case brief

What is this about?

What did the court decide?

Shajida Shajahan v. the District Magistrate

Case brief

What is this about?

What did the court decide?

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