Partly allowed

Suresh Kumar v. the District Collector

Kerala HC9 Mar 2021WP(C)/25329/2020

Case brief

AI extract

What is this about?

Writ petition challenging the District Collector's order declining NOC for a Petroleum Retail Outlet. Court set aside the order for non-application of mind and directed fresh reconsideration within one month.

What did the court decide?

Impugned order Ext.P9 set aside. Respondent 1 directed to reconsider NOC application within one month based on existing Government Orders. No finding on merits of the NOC application.

Suresh Kumar Vs the District Collector — Landlord and Tenant | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶4

TUESDAY, THE 09TH DAY OF MARCH 2021/18TH PHALGUNA, 1942

¶5

WP(C).No.25329 OF 2020(M)

¶6

PETITIONER:

¶7

SURESH KUMAR, AGED 53 YEARS, S/O. DHARMAJAN, ARAMPATTUMAKYIL, VAYALA, ELACKAD, KOTTAYAM

¶8

BY ADVS.

¶9

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

¶10

RESPONDENTS:

¶11

1 THE DISTRICT COLLECTOR, KOTTAYAM DIST, COLLECTORATE, KOTTAYAM 686 001.

¶12

2 ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOTTAYAM 686 001.

¶13

3 HINDUSTAN PETROLEUM CORPORATION LTD., REPRESENTED BY ITS CHIEF REGIONAL MANAGER, COCHIN RETAIL REGIONAL OFFICE, EERNAKULAM NORTH P.O, P.B NO. 1601, COCHIN 682 018.

¶14

ADDL. 4 REGIONAL FIRE OFFICER, FIRE STATION, PADANOBADOM JUNCTION, KOTTAYAM 686 001.

¶15

ADDL. 5 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, NEAR STAR JUNCTION, KOTTAYAM-686 001 .

¶16

(ADDITIONAL R4 AND R5 IMPLEADED AS PER ORDER DATED 26.11.2020 IN I.A.1/2020 IN WPC 25329/20)

¶17

W.P.(C) No.25329/2020

¶18

: 2 :

¶19

R3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R3 BY ADV. SRI.K.JOHN MATHAI R3 BY ADV. SRI.JOSON MANAVALAN R3 BY ADV. SRI.KURYAN THOMAS R3 BY ADV. SRI.PAULOSE C. ABRAHAM R3 BY ADV. SRI.RAJA KANNAN ADDL R5 BY SRI ARUNKUMAR A., SC

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

W.P.(C) No.25329/2020

: 3 :

J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 9^th day of March, 2021

¶26

Petitioner is aggrieved by the order passed by the

¶27

1^st respondent-District Collector, declining NOC to start a Petroleum Retail Outlet on the site in issue.

¶28

The petitioner states that he took on lease 25.94 Ares of property in Survey No.15 of Velloor Village in Kottayam District, to start a Dealership/Petroleum Retail Outlet of the 3^rd respondent-Hindustan Petroleum Corporation Limited. The 3^rd respondent offered the dealership to the petitioner. The 3^rd respondent submitted Ext.P2 application dated 28.02.2019 to the 1^st respondent-District Collector seeking NOC to the outlet. The 4^th respondent sought reports from the District Police Chief, the Tahsildar, the District Fire Officer and the Executive Engineer, PWD (Roads).

¶29

The Executive Engineer, PWD reported that there

¶30

are two road intersections near the site, which would be

¶31

W.P.(C) No.25329/2020

¶32

: 4 :

¶33

against the IRC norms. The petitioner challenged the said communication filing W.P.(C) No.21175/2019. This Court directed the District Collector to consider the application for NOC without referring to IRC/MORTH norms. The 1^st respondent-District Collector, however, passed Ext.P9 order declining grant of NOC.

¶34

The petitioner would contend that there is no adverse impact due to the presence of mobile tower, KSEB transformer and welding workshop near the site. The only drawback is the 11 KV Electric line. The petitioner can very well shift the electric line paying the prescribed fee to the Electricity Board. The petitioner will be taking safety measures as directed by the Petroleum and Explosives Safety Organisation and the said Organisation will allow the outlet only on taking such safety measures. The 1^st respondent ought not have disallowed the NOC for the said reason. Therefore, Ext.P9 is liable to be quashed and respondents 1 and 2 are liable to be directed to issue NOC to the petitioner under Rule 144 of the Petroleum Rules.

¶35

W.P.(C) No.25329/2020

¶36

: 5 :

¶37

The learned Government Pleader pointed out that while issuing NOC, the 1^st respondent-District collector has to take into consideration various factors. The District Police Chief reported that the establishment of a fuel outlet on the site will be dangerous due to existence of mobile tower and transformer near the site. In fact, none of the authorities, from whom reports were called for, gave their concurrence to permit the petitioner to start Petroleum Retail Outlet at the site. Therefore, it would be perfectly just and legal for the 1^st respondent to decline NOC. The 1^st respondent has to take into consideration public safety also. The writ petition is therefore without any force or merit and is liable to be dismissed, contended the learned Government Pleader.

¶38

I have heard the learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1, 2, 4 and 5. I have also heard the learned Standing Counsel appearing for the 3^rd respondent.

¶39

Ext.P9 order of the 1^st respondent will show that the District Police Chief has reported that nearby residents and the

¶40

W.P.(C) No.25329/2020

¶41

: 6 :

¶42

public have no objection for the establishment of the Retail Outlet and there is no issue of any law and order problem. The District Police Chief, however, noted that there is a mobile tower and KSEB transformer near the site and therefore there is a risk of fire. The Tahsildar reported that apart from the mobile tower and transformer, there is a workshop also near the proposed site. Out of the 30 residents, none except two has any objection in starting the fuel outlet there.

¶43

Ext.P9 would further disclose that the Municipal Council has issued NOC for construction of Petroleum Retail Outlet in accordance with the Kerala Municipal Building Rules. The Executive Engineer, PWD informed that application for PWD NOC has been returned since there are road intersections near the site. The Regional Fire Officer reported that the mobile tower, transformer and houses are outside the site in question and there is no objection in granting NOC on fire safety angle.

¶44

In spite of these reports, the 1^st respondent rejected the application for NOC filed under Rule 140 of the Petroleum

¶45

W.P.(C) No.25329/2020

¶46

: 7 :

¶47

Rules. A perusal of Ext.P9 would show that the 1^st respondent has not properly analysed the reports received by him to arrive at his own conclusion.

¶48

When Rule 144 of the Petroleum Rules casts a statutory duty on the 1^st respondent to consider applications for NOC to establish Petroleum Fuel Outlets, the 1^st respondent is not expected to seek NOC from other officers for the purpose of issuing NOC under the Petroleum Rules. The 1^st respondent may call for reports from various authorities, but the decision shall be of the 1^st respondent and that too after properly appreciating the reports. In Ext.P9, such appreciation is absent.

¶49

The concern of the 1^st respondent seems to be the threat of fire due to the existence of a mobile tower and a KSEB transformer near the site. The Regional Fire Officer has issued Ext.P8 pointing out that there is no objection as regards the site in the fire safety angle except for the 11 KV electric line passing through. Similarly, the issue of applicability of IRC norms was found by this Court in favour of the petitioner. In

¶50

W.P.(C) No.25329/2020

¶51

: 8 :

¶52

Ext.P9, the 1^st respondent has not considered the impact of the judgment of this Court. The petitioner has expressed willingness to shift the 11 KV electric line paying the prescribed fee. This fact is also not properly considered by the 1^st respondent.

¶53

Ext. P9 is hence bad for non-application of mind. Ext.P9 is therefore set aside. The 1^st respondent is directed to reconsider the application for NOC submitted by the 3^rd respondent on the basis of Government Orders existing as on the date of application. Orders in this regard shall be passed within a period of one month. It is made clear that nothing stated in this judgment shall be taken as pronouncement on merits, of the application for NOC submitted by the 3^rd respondent.

¶54

Writ petition is disposed of as above.

¶55

Sd/-

¶56

N. NAGARESH, JUDGE

¶57

aks/10.03.2021

¶58

W.P.(C) No.25329/2020

¶59

: 9 :

¶60

APPENDIX

¶61

PETITIONER'S EXHIBITS:

¶62

EXHIBIT P1	COPY OF THE O RESPONDENT TO	FFER LETTER ISSUED BY THE 3RD THE PETITIONER
EXHIBIT P2	COPY OF THE RESPONDENT FO AWARDED TO THE	APPLICATION FILED BY THE 3RD R GETTING NOC TO THE OUTLET PETITIONER
EXHIBIT P3	COPY OF THE ENGINEER PWD D	REPORT OF THE EXECUTIVE ATED 06-07-2019
EXHIBIT P4	COPY OF THE JU	DGMENT IN W.A NO 1234/20
EXHIBIT P5	COPY OF THE TAHSILDAR DATE	REPORT SUBMITTED BY THE D 17-09-2019
EXHIBIT P6	COPY OF THE OFFICER DATED	REPORT OF THE DISTRICT FIRE 13-05-2019
EXHIBIT P7	COPY OF THE RESPONDENT ON	LETTER ISSUED BY THE 3RD 1/11/2019
EXHIBIT P8	COPY OF THE OFFICER DATED	REPORT OF THE REGIONAL FIRE 3/1/2020 ALONG WITH REPORT
EXHIBIT P9	COPY OF THE RESPONDENT DA	ORDER PASSED BY THE 2ND TED 13/10/2020

¶63

ncd

Suresh Kumar v. the District Collector

Case brief

What is this about?

What did the court decide?

Suresh Kumar v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Francis Vadakkel Vs the Government of Kerala

Aruvipuram Sree Narayana Dharma Paripanala Yogam Vs Prof. M.K.Sanoo

The Kuttippuram Grama Panchayath Vs Welfare Services Ernakulam

Samuel Varghese Vs State of Kerala

K.P.Haridas Vs the Dakshina Bharat Hindi Prachar Sabha

Deepa George Vs Suresh Kumar