Allowed

Sunny Francis v. Additional District Magistrate

Kerala HC16 Dec 2021WP(C)/18339/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging an Additional District Magistrate's order rejecting a No Objection Certificate (NOC) application. The Court held that the Magistrate exceeded its jurisdiction by rejecting the application based on Land Assignment Rules rather than strictly within the parameters of Rule 144 of the Petroleum Rules, 2002. The impugned order was quashed, and

What did the court decide?

The impugned order (Exhibit P8) was set aside. The Additional District Magistrate was directed to reconsider the application for the No Objection Certificate within six weeks after giving an opportuni

Sunny Francis Vs Additional District Magistrate — Service and Employment | 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 MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 16TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA,

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1943

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WP(C) NO. 18339 OF 2020

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PETITIONERS:

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1 SUNNY FRANCIS AGED 59 YEARS PULIKKAL HOUSE, KATTAPPANA P.O., KATTAPANA KARAYIL IDUKKI TALUK, IDUKKI DISTRICT - 685 508.

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2 JOSE K.C. S/O.CHERIYAN, KIZHAKKETHALAKKAL HOUSE, KANCHIYAR P.O., IDUKKI DISTRICT - 685 511 BY ADV S.SUJIN

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ADV.N.N. SUGUNAPALAN (SR.)

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RESPONDENTS:

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1 ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, IDUKKI-685 6012

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2 DISTRICT COLLECTOR COLLECTORATE, IDUKKI - 685 601.

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3 STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001

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4 NAYARA ENERGY LTD. 6B, 6TH FLOOR, NOEL FOCUS, SEAPORT-AIRPORT ROAD, CHTTETHUKARA, CSEZ PO., KOCHI - 682 037. REP. BY ITS DIVISIONAL MANAGER - RETAIL.

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BY ADV.VIDYA KURIAKOSE, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C).No.18339/2020

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.18339 of 2020

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Dated this the 16^th day of December, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P8.

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ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to consider Exhibit P4 application and take a decision after hearing the petitioners.

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iii. To issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case.

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This writ petition is filed mainly challenging Ext.P8

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order of the Additional District Magistrate, rejecting the application of the petitioners for No Objection Certificate for starting a petroleum retail outlet.

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Heard the learned Senior Counsel Sri.N.N. Sugunapalan, as instructed by Sri.S.Sujin and the learned Government Pleader.

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When this writ petition came up for consideration,

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W.P.(C).No.18339/2020

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the learned Senior Counsel raised a short point. According to the learned Senior Counsel, the District Magistrate has no jurisdiction to go beyond his powers, which is clearly mentioned in Rule 141 of the Petroleum Rules. The learned Senior Counsel relied on the judgment of this Court dated 05.10.2021 in W.P.(C). No.1026 of 2021. It will be better to extract the relevant portion of the judgment:

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“6. I considered the contentions of the petitioner and the respondents. Ext.P13 is an order passed by the 2nd respondent in an application submitted by the 1st respondent for No Objection under Rule 144 of the Rules. It will be better to extract Rule 144 of the Rules.

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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 Form 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 in Form IX.

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[Note. — The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence.]

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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

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W.P.(C).No.18339/2020

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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 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 sub-rule (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 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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PROFORMA

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NO OBJECTION CERTIFICATE (See rule 144)

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No...................

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Date................

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Subject:-No objection certificate

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With reference to the application No...... .dated........submitted by..........and in pursuance

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W.P.(C).No.18339/2020

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of rule 144 of the Petroleum Rules, 2002, there is no objecton for granting licence under the Petroleum Rules, 2002 to Shri/Smt./M/s...........address.........for storage of petroleum products in their premises at Survey No......../Gat No......./Khasra No...........Plot No............Village..........Taluka/Tehsil......... District... .State.. ......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 authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products;

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(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;

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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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Signature of the district authority issuing no objection certificate with his office seal (in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police and for any other place the District Magistrate)

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Note.— The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence.)”

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The point to be decided while submitting an application for No Objection under Rule 144 of the

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W.P.(C).No.18339/2020

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Rules, is considered by this Court in Reliance Industries Ltd's case (supra). Paragraph No.17 of the above judgment is extracted hereunder :

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“17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by R.144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate,'if he sees no objection '. The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less.

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This Court, in the above judgment clearly stated that the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less. It will be beneficial to extract Rule 161 of the Petroleum Rules also.

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"161. Executive control over authorities . -Every authority other than the Central Government, acting under this Chapter, shall perform its duties subject to the control of the Central Government:

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Provided that nothing in this rule shall be deemed to affect the powers of executive control of the Chief Controller over the officer subordinate to him."

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Rule 161 of the Rules says that every authority other than the Central Government acting under this Chapter, shall perform its duties, subject to the control of the Central Government. From the above Rule also, it is clear that the State Government has

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W.P.(C).No.18339/2020

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no control over the issuance of licence in a petroleum retail outlet. They can only see whether a No Objection can be given and that also, within the four corners mentioned in Rule 144 of the Petroleum Rules. Whether there is any violation of Land Assignment Rules or whether there is any violation of any other Government Order is an independent jurisdiction to the authority concerned as per the Land Assignment Act and Rules. If any such proceedings are WP(C) NO. 1026 OF 2021 10 initiated against the petitioner by the statutory authorities, the petitioner has got statutory remedies. If such points are considered by the 2nd respondent while considering an application for NOC under Rule 144, it will prejudice the interest of the petitioner because, there is no statutory appeal against an order passed under Rule 144. The 2nd respondent has to consider an application for NOC invoking the powers within the four corners of Rule 144 of the Petroleum Rules. I think, Ext.P13 order is not in accordance to law. It is a fact that all other authorities granted NOC and that is mentioned in Ext.P13 itself. According to me, it is a matter to be reconsidered by the 2nd respondent. Therefore, this writ petition is allowed.

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Ext.P13 is set aside.

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The second respondent is directed to reconsider the matter, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment.”

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W.P.(C).No.18339/2020

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I perused Ext.P8 order passed by the Additional District Magistrate. Relevant portion of that order is extracted hereunder:

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“പെ�ട്ര�ോളിയം ഔട ് ട പെ�റ ് റ തുടങ്ങുന്നതിന് ഉട്ര�ശിക്കുന്ന സ്ഥ�ം 1964 പെ� ഭൂമി �തിവ് ചട്ടങ്ങൾ പ്രകോരം �ട്ടയം നൽകിയിട്ടുളള ഭൂമി ആയതിനോലും ഇപ്രകോരം �ട്ടയം നൽകിയിട്ടുളള ഭൂമിയിൽ കൃഷി, ഗൃഹനിർമ്മോണം beneficial enjoyment എന്നിവയ ് മോത്രമോയി �ട്ടയം അനുവദിക്കുന്നതിനോലും ടി ഭൂമിയിൽ പെ�ട്ര�ോളിയം ഔട ് പെ�റ ് തുടങ്ങുന്നതിന് വ്യവസ്ഥയില്ലോത് ിനോലും പെ�ട്ര�ോളിയം ഔട ് പെ�റ ് തുടങ്ങുന്നതിനുളള അട്ര�ക്ഷ നിരസിച്ചു. പെകോണ ് ട സൂചന (7) പ്രകോരം ജില്ലോ കളക്ടർ, ഇടുക്കി ഉത്തരവോയിട്ടുളളതോണ്. ട്രമൽ സോഹചര്യത്തിൽ ഉടുമ്പൻട്രചോ� തോലൂക്കിൽ അണക്കര വിട്രല്ലജിപെ� ബ്ട്രളോക ് ക നമ്പർ 73 ൽ റീ സർട്രവ നമ്പർ 508/3-2 ൽപെ�ട്ട വസ്തുവിൽ പെ�ട്ര�ോളിയം ഔട ് ട പെ�റ ് റ തുടങ്ങുന്നതിന് ഡിവിഷണൽ മോട്രനജർ, നയരോ ഏനർജി �ിമിറ്റഡ്, പെകോച്ചിൻ ഡിവിഷണൽ ഓഫീസ് സമർപ്പിച്ച അട്ര�ക്ഷ നിരസിച ് ഉത്തരവോകുന്നു”

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According to me, the Additional District Magistrate

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has committed a mistake in passing such an order. The Additional District Magistrate has to pass orders strictly in accordance to Rule 144 of the Petroleum Rules in the light of the judgment of this Court dated 05.10.2021 in W.P.(C). No.1026 of 2021. I am of the view that the matter is to be remanded to the Additional District Magistrate for reconsideration. It is true that an appellate remedy is

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W.P.(C).No.18339/2020

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available to the petitioners under Rule 154(2) of the Petroleum Rules. But it is conceded by the learned Government Pleader that as on today, the appellate authority is not constituted. In such situation, according to me, the impugned order can be set aside by this Court invoking the powers under Article 226 of the Constitution of India.

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Therefore, this writ petition is allowed in the following manner:

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Ext.P8 order is set aside.

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The 1^st respondent is directed to reconsider the matter in the light of the observation of this Court in judgment dated 05.10.2021 in W.P.(C). No.1026 of 2021, after giving an opportunity of hearing to the petitioners, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.18339/2020

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APPENDIX OF WP(C) 18339/2020

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`PETITION`	`ER`	`EXHIBITS`
`EXHIBIT`	`P1`	`TRUE COPY OF THE` `DATED 14.05.2018` `KATTAPPANA.`	`DOCUMENT NO.1453/2018` `OF THE SRO,`
`EXHIBIT`	`P2`	`TRUE COPY OF PATT` `ISSUED TO MATHEW`	`A DATED 23.06.2002` `MATHAI.`
`EXHIBIT`	`P3`	`TRUE COPY OF THE` `07.06.2019 ISSUED` `OFFICER, PUTTADY.`	`TAX RECEIPT DATED` `BY THE VILLAGE`
`EXHIBIT`	`P4`	`TRUE COPY OF THE` `DATED 08.11.2008.`	`APPLICATION FOR NOC`
`EXHIBIT`	`P5`	`TRUE COPY OF THE` `11.11.2019 OF THE` `PLANNER, IDUKKI`	`SANCTION ORDER DATED` `DISTRICT TOWN`
`EXHIBIT`	`P6`	`TRUE COPY OF THE` `OF THE ASSISTANT` `PUBLIC WORKS DEPA` `NEDUMKANDAM.`	`NOC DATED 13.03.2019` `EXECUTIVE ENGINEER,` `RTMENT, SUB DIVISION,`
`EXHIBIT`	`P7`	`TRUE COPY OF THE` `THE DISTRICT COLL` `OBTAINED UNDER TH` `INFORMATION ACT,`	`COMPUTER PRINTOUT OF` `ECTOR'S DECISION` `E RIGHT TO` `2005.`
`EXHIBIT`	`P8`	`TRUE COPY OF THE` `OF THE 1ST RESPON`	`ORDER DATED 03/2020` `DENT.`

Sunny Francis v. Additional District Magistrate

Case brief

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Sunny Francis v. Additional District Magistrate

Case brief

What is this about?

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