Dismissed

Philip John v. State of Kerala

Kerala HC30 Mar 2021WA/542/2021

Case brief

AI extract

What is this about?

Two judges of the Kerala High Court dismissed the appellant's writ appeal challenging a No Objection Certificate granted for a petroleum retail outlet. They held that the pertinent IRC guidelines had been withdrawn by the Central Government and the lower court acted within its discretion relying on safety reports.

What did the court decide?

The writ appeal is dismissed; the No Objection Certificate granted by the District Authority remains valid.

Philip John Vs State of Kerala — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943

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WA.No.542 OF 2021

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[AGAINST THE JUDGMENT DATED 05-03-2021 IN WP(C) NO.12132/2020(N)OF THE LEARNED SINGLE JUDGE]

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APPELLANT/PETITIONER:

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PHILIP JOHN, AGED 70 YEARS, S/O. YOHANNAN, THARAYIL VEEDU, KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM - 690 519.

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BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.

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2 UNION OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, REPRESENTED BY ITS SECRETARY, TRANSPORT BHAVAN 1, PARLIAMENT STREET, NEW DELHI-110 001.

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3 THE ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOLLAM - 691 013.

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4 THE TERRITORY MANAGER (RETAIL), BHARAT PETROLEUM CORPORATION LIMITED, IRIMPANAM INSTALLATION, IRIMPANAM, KOCHI - 682 309.

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5 V.N. DEVARAJAN, VALIYAPARAMBIL, GRAMAM, ENNAKKADU P.O., CHENGANNUR, ALAPUZHA - 689 624.

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WA.542/2021

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R1 & R3 BY ADV. T.K.ARAVINDAKUMAR BABU, SENIOR GOVERNMENT PLEADER R4 BY ADV. SRI. M. GOPIKRISHNAN NAMBIAR R5 BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

Dated this the 30^th day of March, 2021

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S. Manikumar, CJ

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Instant writ appeal is filed challenging the judgment dated 5.3.2021 in W.P.(C). No.12132 of 2020, by which, the writ court declined to interfere with the grant of NOC, issued by the Additional District Magistrate, Kollam, respondent No.3.

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Short facts leading to the filing of instant appeal are as follows:

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Appellant has filed the writ petition challenging the order dated 27.07.2019 [Exhibit.P3], directing issuance of No-objection certificate granted to the 4^th respondent, to establish a petroleum retail outlet. It is contended that while considering an application under Section 140 of the Petroleum Rules, 2002, respondent No.3, the Additional District Magistrate, Kollam, is bound to consider the safety standards prescribed by Indian Road Congress (IRC:12-2016). It is also the case of the appellant that he is residing within 50 (fifty) metres radius from the site to which

NOC was issued.

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Appellant has further stated that though specific averments were made in paragraphs 10 and 11 of the writ petition, there is no specific denial of such facts in the counter affidavits. Respondents 4 and 5 do not get any right to start a petroleum outlet in the subject property, if the application submitted does not disclose the above facts and they were not even looked into by respondents 1 to 3, even after filing of the writ petition. There is no denial of such specific facts. Had there been a specific

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denial, the appellant would have taken an Advocate Commission to establish the said fact.

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When the impugned judgment was rendered, the writ court relied on the counter affidavits of respondents 3 and 5 and the documents, which were tailor made by the respondents to suit their needs. Not even a local inspection was conducted or a report obtained. The writ court ought to have directed the authorities to consider Exhibit P5 representation by the 1^st respondent, so as to invoke its powers under Rule 150 to cancel the NOC already granted.

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It is also stated that distance rule was incorporated in the IRC

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guidelines for establishment of petroleum outlet, considering the concern

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for the environment and public safety, and the same cannot be allowed to

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be diluted for the benefit of a single petroleum outlet owner to make financial benefit. The damage that would cause to the environment and general public, including the appellant, is more compared to the injury the party respondents suffer.

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It is further stated by the appellant that if the petroleum retail outlet is commenced and the environment is damaged, the harm caused cannot be repaired at all. According to the appellant, the balance of convenience is in his favour, who is residing within 50 meters from the site where the retail unit is to be installed.

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Before the writ court, the appellant has sought for the following reliefs:

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i. To issue a writ of certiorari calling for the records leading to Exhibit-P3 and quash the No Objection Certificate No. DCKLM/4049/2019/M7 dated 27.11.2019 granted under Rule 144 of the Petroleum Rules, 2002;

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ii. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order directing the first respondent to consider Exhibit P6

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representation made by the petitioner challenging Exhibit P3 NOC, within a reasonable time which this Court deems it fit and necessary in the circumstances of the case and till such time, the 4^th respondent be restrained from continuing with the construction of the Retail Outlet;

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iii. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order directing the 3^rd respondent to consider Exhibit P5 representation in accordance with the IRC:12-2009 and after hearing the petitioner and other affected persons within a reasonable time which this Court deems think fit and necessary in the circumstances of the case;”

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After considering the pleadings and submissions, by the impugned

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judgment, writ court dismissed the writ petition, holding thus:

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“9. The legal ground urged by the petitioner is that while issuing the NOC under Rule 144 of the Petroleum Rules, 2002, the IRC Guidelines have not been followed. The establishment of a Petroleum Retail Outlet at the proposed site would violate the IRC Guidelines and will give rise to environmental as well as safety issues. It is to be noted that the IRC Guidelines were followed by respondents 1 and 3 in view of Ext.P1 GO dated 22.10.2019. However, subsequently, the Government of

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India withdrew the IRC Guidelines as per Notification No.28, effective from 01.12.2019.

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As far as the complaint of the residents relating to environmental issues, the 3rd respondent, before issuing the NOC, had conducted a hearing and all concerned were heard.

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A reference was made to the Pollution Control Board and the Environmental Engineer of the Pollution Control Board reported that the Petroleum Retail Outlet comes under Green Category and there is no objection in granting NOC to the proposed petroleum outlets. In the circumstances of the case, this Court finds that the concerns expressed by the petitioner are devoid of factual foundation and there is no reason to interfere with Ext.P3 NOC issued by the 3^rd respondent. The writ petition therefore fails and it is accordingly dismissed.”

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Aggrieved by the rejection of the reliefs sought for, appellant has

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preferred the instant appeal raising the following grounds:

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“A. Right to safety established by IRC guidelines is to protect the life of the people. The same cannot be violated by making false statements of facts. Any action done on the basis of false reports based on incorrect facts is illegal and arbitrary. The purpose of Rule 150 of the Petroleum Rules, 2002 will be defeated if no action is taken on the

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applications made to them.

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B. Truth must always prevail. If the statements made in paragraphs 10 and 11 are true as per IRC guidelines, the NOC ought not to have been issued at all. In such circumstances, the court below ought to have gone much deeper or directed the 1^st respondent to consider Exhibit P6 representation, which is still pending consideration.

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C. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. It is the settled principle of law that protection of the environment would have precedence over the economic interest. The precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment. [ M.C.Mehta v. Union of India (AIR 2004 SC 4016)]

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On the above grounds, Mr. P. B. Sahasranaman, learned counsel for the appellant, made submissions. Emphasis was laid on the IRC:12-2016 guidelines.

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Placing reliance on the judgment of this Court in W.A. No.27 of

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2020 and connected appeals dated 5.3.2020, learned counsel for the respondents submitted that IRC:12-2016 Guidelines have been withdrawn

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and the effectiveness of the same has been considered and decided.

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By way of reply, Mr. P.B. Sahasranaman, learned counsel for the appellant, submitted that in the judgment dated 5.3.2020, this Court has considered the case of NOCs already issued and in the case on hand,

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NOC has been issued after the judgment and without considering the distance.

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Heard the learned counsel for the parties and perused the pleadings and material on record.

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Exhibit-P3 is the No Objection Certificate dated 27.11.2019, issued by the 3^rd respondent Additional District Magistrate, Kollam to the

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4^th respondent, under Rule 144 of the Petroleum Rules, 2002, to establish

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a petroleum outlet and it reads thus:

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“NO OBJECTION CERTIFICATE

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(See rule 144 of Petroleum Rules, 2002)

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No. DCKLM/4049/2019/M7

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Dated : 27/11/2019

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With reference to the application No. TM EKM/ NOC/Mararithotttam dated 03/04/2019 submitted Territory Manager (Retail) Bharat Petroleum Corporation

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Limited and in pursuance of Rule 144 of the Petroleum Rules, 2002, there is no objection for granting licence under the Petroleum Rules, 2002 to M/s. Territory Manager (Retail) Bharat Petroleum Corporation Limited, Irimpanam Installation, Irimpanam, Cochin - 682309 for storage of Petroleum products in their premises at Re- Survey No.180/2 Block No.14 Village Kallelibhagam Taluk, Karunagappally District, Kollam State Kerala as shown in the site plan duly endorsed and enclosed herewith.

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(1) The following particulars have been considered while issuing this No Objection Certificate that,-

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(a) Possession of the site by the applicant is lawful and authorization from land owner or leaseholder for developing premises under these rules for storage of petroleum products.

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(b) Interest of the public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any is provided.

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(d) conformity of proposal to the local or area development planning.

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(e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies.

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(f) genuineness of purpose.

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(g) any other matter pertinent to public safety.

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(h) The buffer strip should be constructed as per the conditions given by PWD (Roads) Department. Buffer ship (12 x 3 mts)

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(j) Conditions of Pollution Control Board should be followed as well as final NOC should be obtained from the Board.

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Sd/Additional District Magistrate Kollam”

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In exercise of the powers conferred by Sections 4, 5, 14, 21 and

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22 and sub-section (1) of Section 29 of the Petroleum Act, 1934 (30 of

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1934), the Central Government have framed the Petroleum Rules, 2002, and published vide Notification G.S.R.204(E) dated 13.3.2002. Rule 144 which deals with issuance of No Objection Certificate is reproduced:

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“ 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 license other than a license 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 license for the site proposed and the District Authority shall, if he sees no objection, grant such certificate in the proforma specified in sub-rule(7), to the applicant who shall forward it to the licensing authority with his application Form IX.

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(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.

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(3) The Chief Controller or the Controller, as the case may be, may refer an application not accompanied by a

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certificate granted under sub-rule (1) to the District Authority for his observations.

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(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 license which has been applied for should not, in his opinion, be granted, such license shall not be issued without the sanction of the Central Government.

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(5) The District Authority shall complete his inquiry for issuing NO OBJECTION CERTIFICATE (NOC) under subrule (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.

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(6) Where the location of storage of petroleum is within the notified area of a Port or Airport under the control of the State, or establishment of Indian Space Research Organisation or Department of Atomic Energy, NO OBJECTION CERTIFICATE from the District Authority referred to in sub-rules (1) to (5) shall not be required:

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Provided that consent for establishment of petroleum storage from the competent authority of the concerned notified area or head of the establishment, as the case may be, is obtained.

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(7) The district authority shall issue a no objection certificate in the following proforma , namely.....................”

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In W.A. No.27 of 2020 and a batch of writ appeals, after

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considering the rival submissions, this Court ordered thus:

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“5. During the course of hearing of the above appeals, learned counsel for the appellants submitted that IRC guidelines, relied on by the State Government for grant of No Objection Certificate, have been withdrawn by the Central Government by Notification No.28. Taking note of the withdrawal of IRC guidelines, on 23.1.2020, in W.A. No.86 of 2020 and connected cases, we passed the following order :

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“W.A. Nos. 86, 87, 88, 89, 92, & 95 of 2020

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Admit. Mr. N. Manoj Kumar, learned Special Government Pleader, takes notice for respondents 1 to 4. Sri. P. Gopinatha Menon, learned Senior Counsel, takes notice for the 5^th respondent.

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W.P.(C) No. 18093 of 2019 & W.A. Nos. 27, 49, 58, 69, 70, 86, 87, 88, 89, 92, & 95 of 2020

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W.P.(C) No. 18093 of 2019 is filed by Kerala State SC/ST Petroleum Dealers Association seeking a direction to respondents 1, 2 and 4 to desist from permitting erection of a petroleum retail outlet in a forbidden and impermissible land belonging to the 3^rd respondent in Sy. No. 23/1-1 of Kidangoor Village in Kottayam District on the State Highway 32 in Kidangoor-Koodalloor road, violating the Exts.P1 and P2 norms evolved by the Government of India and Ext.P3 judgment of the Hon'ble Supreme Court.

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Pending disposal of W.P.(C) No. 18093 of 2019, the petitioner seeks for an interim direction to the second respondent not to grant NOC to the first respondent to establish a petroleum outlet in a forbidden and impermissible land belonging to the third respondent in Sy. No. 23/1-1 of Kidangoor Village in Kottayam District on the State Highway 32 in Kidangoor-Koodalloor road.

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Instant writ appeals are filed challenging the judgment of the writ court which considered the inclusion of IRC guidelines and MORTH norms in the matter of considering the request for grant of 'No Objection Certificate' (NOC) as per Rule 144 of the Petroleum Rules, 2002 and dismissed the writ petitions subject to the observations made in paragraph 21 of the judgment, which reads thus:

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“21. Coming to the applicability of MORTH Norms, as noted, the case of the State is not consistent. In one counter affidavit, the stand taken is that it applies only to the fuel stations along the National Highways and in the other, the stand taken is that it applies to all roads in the State. When a specific question was put in this regard, the learned Government Pleader was unable to give a satisfactory answer as regards the said inconsistency. The learned Government Pleader was also unable to give a satisfactory answer as regards the doubt expressed by the court as to the applicability of the guidelines issued by the Ministry of Road Transport and Highways, Government of India for the roads in the State other than National Highways, over which the said Ministry has no control. The learned Government Pleader was also unable to explain why the MORTH Norms were not made part of the PWD Manual while the IRC Guidelines have been incorporated into the PWD Manual. Ext.P4 communication in W.P.(C)

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No.29807 of 2016, issued by the Ministry of Road Transport and Highways, Government of India indicates beyond doubt that MORTH Norms are intended to be applied only for establishment of fuel stations, private properties, rest area complexes and such other facilities along the National Highways. In the absence of any other materials, I am inclined to hold that MORTH Norms were not intended to apply to fuel stations along roads other than National Highways. If that be so, rejection of applications for No-objection certificates in respect of petroleum outlets other than those proposed to be established along the National Highways based on the said guidelines which are not intended to be applied for the same, would be arbitrary.”

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Today, when the matter came up for hearing, inviting the attention of this Court to the decision of Indian Roads Congress in IRC: 12-2009 in the Notification No. 28, Mr. P. Gopinatha Menon, learned Senior counsel appearing for the Bharat Petroleum Corporation Limited, and Mr. R. Sunil Kumar, learned counsel appearing for the appellants submitted that when the guidelines issued by the IRC have been withdrawn, NOCs already granted should be allowed to operate.

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Learned counsel appearing for the appellants submitted that the rivals claimants have filed writ petitions seeking stay of NOCs already granted. Learned Senior Government Pleader submitted that such rival claimants have no locus standi to challenge the NOC.

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Be that as it may, the guidelines are withdrawn by Notification No.28, relevant portion of which reads thus:

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“Notification No.28

Subject : Withdrawal of IRC:12-2016 “Unified Guidelines for Access Permission to Fuel Stations, Private properties, Rest Area Complexes and Such Other Facilities Along National Highways (Fourth Revision)” effective from 1^st December, 2019)

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The IRC : 12-2016 “Unified Guidelines for Access Permission to Fuel Stations, Private Properties, Rest Area Complexes and such Other Facilities Along National Highways (Fourth Revision)” stands withdrawn with immediate effect.'

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It is ordered that NOCs already granted by the competent authority should be given effect to.

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In order to avoid multiplicity of proceedings and taking note of the decision in IRC: 12-2009 as per Notification No. 28 withdrawing the guidelines, we deem it fit to grant interim stay of the operation of the impugned judgment in the writ appeals and accordingly do so.

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Post on 27.01.2020.”

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Subsequently, the said order was made applicable to some other appeals also.

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Inasmuch as IRC guidelines have been issued by an association/society registered under the Societies Registration Act, we directed the State Government to respond to the grounds made in the writ appeals. Reverting, Mr. N. Manoj Kumar, learned Special Government Pleader

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submitted that Government have issued GO.(MS) No.16/2020/PWD dated 10.2.2020, and framed guidelines for ensuring safety of roads and traffic and Norms and specifications have also been framed. For brevity, G.O. (M.S) No.16/2020/PWD dated 10.2.2020 is extracted :

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“GOVERNMENT OF KERALA

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Abstract

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Public Works Department-ensuring safety of Roads and traffic Guidelines-orders issued.

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PUBLIC WORKS (H) DEPARTMENT

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G.O.(M.S)No.16/2020/PWD Dated,Thiruvananthapuram, 10.2.2020

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Read 1. G.O. (M.S) No.46/2019/PWD dated 22.10.2020

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Letter No.CE/Roads/PLG/16382 dated 06.02.2020 from Chief Engineer, PWD (Roads)

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O R D E R

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As per the GO read as 1^st paper above, sanction was accorded for including IRC 12-2016 in the PWD Manual (Revised 2012) as appendix along with the other codes mentioned in the Manual. The IRC 12-2016 “Unified Guidelines for access permission to fuel stations” has been withdrawn as per the notification No.28, effective from 1^st December, 2019 by the Government of India.

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The Chief Engineer, PWD (Roads), as per the letter read as 2^nd paper above has requested to issue necessary guidelines and specifications for ensuring the safety of the

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roads and traffic and stipulated norms for the same purpose on roads of PWD.

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Government have examined the matter in detail and are pleased to approve the stipulated norms and specifications appended herewith for ensuring the safety of roads and traffic in Kerala.

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The G.O. Read as 1^st paper above stands cancelled.

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Necessary amendments will be made in the PWD Manual accordingly.

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(By order of the Governor) ANAND SINGH SECRETARY”

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Mr. M. Gopikrishnan Nambiar, learned standing counsel for Bharat Petroleum Corporation and Mr. N. Manoj Kumar, learned Special Government Pleader for the State submitted that Government have incorporated IRC norms in the PWD Manual. G.O.(M.S) No.16/2020/PWD dated 10.2.2020 has been issued subsequent to the disposal of writ petitions. IRC guidelines for road safety has been withdrawn on 1.12.2019. Had the withdrawal of IRC guidelines been brought to the notice of the writ court, this common judgment dismissing the writ petitions for not satisfying IRC guidelines would not have been passed.

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Pursuant to the interim directions granted in the writ petitions, some of the appellants have been issued with No Objection Certificates. Subsequently, writ petitions have been

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dismissed. Though interim order merges with the final judgment, correctness of the said judgment is carried on in the instant appeals and judgment is reversed, the litigant is entitled to be protected and entitled to the benefits arising out of the interim order. Thus, we are of the view that the writ petitioners/appellants, who have obtained No Objection Certificate from competent authority shall continue with the the benefits of the interim order.

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We are not expressing anything on those applications which are rejected or still pending with the competent authority. Common judgment in W.P(C). No.29005 of 2019 and connected cases dated 19.12.2019 is set aside. All the writ appeals are allowed, as indicated above.”

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Though Mr. P.B. Sahasranaman, learned counsel for the appellant, submitted that in the instant case, NOC has been granted after the judgment in the batch of Writ Appeals, that does not effect any change in the status of the IRC:12-2016 guidelines, which have been already withdrawn. If only the guidelines exist and have the force of law, the same can be pressed into service.

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This Court already took note of the fact that the guidelines

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have been issued by an association/society, registered under the Societies

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Registration Act. That apart, the guidelines have been withdrawn as per Notification No.28, effective from 1^st December, 2019, by the Government of India.

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We have considered the rival contentions addressed at the Bar. In our considered opinion, the sole eminent question raised by the appellant is with respect to the legality of the No Objection Certificate granted by the District Authority under Rule 144 of the Petroleum Rules, 2002. It is clear from the counter affidavit filed by the District Authority before the writ court that pursuant to the direction of this Court in regard to the objection raised by the appellant that all the parties were heard and entire materials were taken into account before taking a decision in regard to the issuance of NOC under Rule 144 of the Petroleum Rules, 2002. In fact, the 3^rd respondent has called for a report from the Fire and Safety authority, Pollution Control Board, and the revenue authorities, before arriving at a conclusion as to the legality and correctness of the NOC. Exhibit-P3 dated 27.11.2019 issued by the 3^rd respondent further makes it clear that the issues raised by the appellant were surrounded by various factual circumstances and the 3^rd respondent has arrived at the

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conclusions by relying on the materials provided by the concerned statutory authorities.

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The factual contentions raised by the appellant in the writ petition are disputed by the respondents and, therefore, there would have been sufficient reliable and cogent materials before the writ court to arrive at a different conclusion than the one arrived at by the statutory authority. To put it otherwise, the appellant has not produced any materials before this Court, in order to interfere with the decision of the 3^rd respondent in the matter of grant of NOC.

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Materials on record disclose that sufficient precautionary assessments and safety surveys were made by the statutory authorities in regard to the establishment of the petroleum outlet and installation of the accessories thereto. Above all, the legal question raised with respect to the IRC guidelines vis-a-vis installation of petroleum outlets is not necessitated, since it is withdrawn by the Government of India on and with effect from 1^st December, 2019.

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Taking into account all the above aspects and going through the impugned judgment, we are convinced that the learned single Judge had

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considered all the issues raised by the appellant in its intrinsic worth and

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arrived at the right conclusion based on the records available before it.

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Upshot of the above discussion is that the appellant has not made out a case for interference with the judgment of the learned single Judge dated 5.3.2021 in W.P.(C) No.12132 of 2020, there being no illegality in the matter of exercise of its discretionary jurisdiction.

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In the result, this writ appeal fails, and accordingly dismissed.

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Sd/S. Manikumar Chief Justice

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Sd/Shaji P. Chaly Judge

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sou & krj

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//TRUE COPY//

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P.A. TO C.J.

Philip John v. State of Kerala

Case brief

What is this about?

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Philip John v. State of Kerala

Case brief

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