Alen Sabu v. District Collector, Ernakulam & Others

WP(C) NO. 8330 OF 2025 1 2025:KER:27337 **==> picture [58 x 57] intentionally omitted <==** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 27[TH] DAY OF MARCH 2025 / 6TH CHAITHRA, 1947** **WP(C) NO. 8330 OF 2025** ## **PETITIONER/S:** **ALEN SABU AGED 29 YEARS W/O SABU GEORGE, KUNNEL HOUSE, ARAKKUZHA P.O., MUVATTUPUZHA, ERNAKULAM, PIN - 686672** **BY ADVS. JACOB E SIMON R.LAKSHMI NARAYAN (SR.)(K/292/1989)** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030** - **2 THE ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN - 682030** - **3 THE TAHSILDAR MUVATTUPUZHA TALUK OFFICE, MINI CIVIL STATION, MUVATTUPUZHA, ERNAKULAM, PIN - 686673** - **4 THE VILLAGE OFFICER MUVATTUPUZHA VILLAGE OFFICE, MUVATTUPUZHA, ERNAKULAM, PIN - 686673** - **5 (&#42;(SUBSTITUTED) BHARAT PETROLEUM CORPORATION LTD IRIMPANAM INSTALLATION, SEAPORT AIRPORT ROAD, IRIMPANAM P.O., ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER ( &#42; INDIAN OIL CORPORATION LIMITED, KOCHI DIVISIONAL OFFICE, PANAMPILLY NAGAR AVE, CHERIYAKADAVANTHRA P.O., PANAMPILLY NAGAR,** WP(C) NO. 8330 OF 2025 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 **ERNAKULAM, KERALA - 682 036, REPRESENTED BY RETAIL SALES HEAD IS SUBSTITUTED AS 5TH RESPONDENT IN WP(C) 8330/2025 AS PER ORDER DATED 25.03.2025 IN IA.1/2025), PIN - 682309** ## **OTHER PRESENT:** ## **GP SRI B S SYAMANTHAK** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 8330 OF 2025 3 2025:KER:27337 **==> picture [58 x 57] intentionally omitted <==** ## **C.S.DIAS, J. --------------------------------------WP(C) No.8330 OF 2025** **----------------------------------------Dated this the 27[th] day of March, 2025** ## **JUDGMENT** The writ petition is filed to quash Ext.P8 letter, and direct the 1[st] respondent to issue a No-Objection Certificate (NOC) in favour of the 5[th] respondent Corporation, to commission a petroleum retail outlet in the petitioner's property. 2. The 5[th] respondent has issued a letter of intent to the petitioner to establish a petroleum retail outlet in her property. After that, the 5[th] respondent submitted an application to the 1[st] respondent for a NOC, as provided under Rule 144 of the Petroleum Rules. The 1[st] respondent called for reports from the statutory authorities. By Ext.P2 report, the Avoly Grama Panchayath has certified that there are no residential buildings within 50 meters from the proposed retail outlet. Similarly, by Ext.P3 report, the Fire and Rescue Department has issued a NOC. However, the 3[rd] respondent has submitted Ext.P6 report stating that WP(C) NO. 8330 OF 2025 4 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 there are no schools, hospitals, river, streams, canals, thodu or water sources, but there is a 'nilam' within 50 meters from the proposed outlet with no water source. Consequently, the 2[nd] respondent conducted physical inspection of the property and he was satisfied that the petitioners' property is 'purayidam'. Subsequently, the 1[st] respondent has sought for a clarification from the 4[th] respondent. By Ext.P7 report, the 4[th] respondent has stated that the petitioners' property is a 'converted purayidam' as per the Basic Tax Register (BTR) and there is no water source within 50 meters from the retail outlet. Even though the adjacent property is classified as 'nilam' in the BTR, the same is also converted land and there are buildings constructed in the property. After the receipt of all the reports, the 1[st] respondent has sent Ext.P8 communication to the petitioner reporting that, as wet land would also fall within the category of nilam and there is a wet land within 50 meters from the proposed outlet, the application for NOC cannot be considered. Ext.P8 letter is issued on a misinterpretation of the Central WP(C) NO. 8330 OF 2025 5 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 Pollution Control Board norms. The norms only stipulate that there should not be any water source or wet land within 50 meters from the petroleum retail outlet. Ext.P8 letter is erroneous and is issued without any application of mind. Hence, Ext.P8 letter may be quashed. 3. The 2[nd] respondent has filed a counter affidavit refuting the allegations in the writ petition. He has contended that, as per the addendum to the guidelines of the Central Pollution Control Board No.B-13011/1/201920/AQM dated 16.08.2021, a petroleum retail outlet shall not be located within a distance of 50 meters from the nearest point of a water body. Accordingly, a clarification was sought from the Kerala State Pollution Control Board regarding the applicability of the provisions of the Central Pollution Control Board guidelines in cases where a property is situated within 50 meters radius of the proposed retail outlet is recorded as 'nilam' in the revenue records, but is visibly dry land. In response to the said clarification, the Chief Environmental Engineer has stated that application can be considered based on the land WP(C) NO. 8330 OF 2025 6 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 category recorded in the revenue records. Additionally it was clarified that the application cannot be considered if land recorded as 'nilam' is treated as 'wet land'. The Pollution Control Board has also issued Ext.R2(b) letter stating that, it was not within their powers to state whether 'nilam' is 'wet land' or not. The petitioner's application has not been rejected, but is kept on the hold for clarification. Hence, the writ petition is to be dismissed. 4. Heard; the learned Senior Counsel for the petitioner, and the learned Additional Advocate General for the respondents 1 to 4 and the learned Standing Counsel for the 5[th] respondent. 5. The core of the dispute is regarding the interpretation of paragraph (a) of Ext.P9 guidelines issued by the Central Pollution Control Board, which reads as follows: “a) All the surface water bodies irrespective of utility shall be protected from any possible contamination. These include lakes, ponds, streams, rivers, wetlands, canals and creeks, as per revenue records. **Retail outlets shall not be located within a distance of 50 meters from the nearest point** WP(C) NO. 8330 OF 2025 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 **of water bodies.** In case of flood way is not defined, the distance shall be considered from firm banks/edge of river. The siting criterion is to be implemented for all new petrol pumps where construction by OMCs starts post the issuance of these guidelines”. 6. A plain reading of the above clause demonstrates that, retail outlets shall not be established within a distance of 50 meters from any water body. 7. The expression 'water body' has not been defined in Ext.P9 guidelines. Wikipedia states that a water body means any significant accumulation of water, which refers to oceans, seas, lakes, and includes smaller pools of water such as ponds and wetlands. 8. In the counter affidavit filed by the 2[nd] respondent, it is evident that the 3[rd] respondent has unambiguously stated that the petitioner's property is classified as 'purayidam' and the adjacent property is classified as 'nilam' in the BTR. It is no one's case that the adjacent property is a water body falling within the foul of Ext.P9 guidelines. Therefore, the clarification sought by the 1[st] respondent was unnecessary. WP(C) NO. 8330 OF 2025 8 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 9. Going by the mandate in Ext.P9 guidelines, the prohibition to commission a retail outlet is only when there is a water body within 50 meters from the proposed retail outlet. The said restriction is incorporated in the guidelines with an intention to avert contamination/pollution of the water body due to any seepage from the retail outlet. 10. In the case at hand, as the adjacent property is not a wetland and there is no water body, there is no prohibition to establish the retail outlet. The classification of the property by the State as 'purayidam' and 'nilam' is only for the purpose of paying land tax. [Read the decision of the Honourable Supreme Court in **RDO, Fort Cochin & others vs. Jalaja Dileep and another** (2015 (2) KHC 109)]. 11. In the above conspectus, I do not find any legal impediment in the 1[st] respondent proceeding with the application submitted by the 5[th] respondent for NOC, to establish the retail outlet in the petitioners' property. WP(C) NO. 8330 OF 2025 9 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:27337 In the light of the above discussions, especially in view of the counter affidavit of the 2[nd] respondent, I am inclined to allow the writ petition. Accordingly, I direct the 1[st] respondent to consider and dispose of the application submitted by the 5[th] respondent, in accordance with law, and as expeditiously as possible, as per the observations made in the judgment, at any rate, within one month from the date of production of a copy of this judgment. Sd/- **C.S.DIAS, JUDGE** rkc/27.03.25 WP(C) NO. 8330 OF 2025 10 2025:KER:27337 **==> picture [58 x 57] intentionally omitted <==** ## **APPENDIX OF WP(C) 8330/2025** **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE LETTER OF INTENT ISSUED BY THE 5TH RESPONDENT DATED 17.02.2024** - **Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED 07.08.2024 OF THE SECRETARY, AVOLY GRAMA PANCHAYAT** - **Exhibit P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT FIRE OFFICER, FIRE AND RESCUE DATED 26.04.2024** - **Exhibit P4 TRUE COPY OF THE REPORT OF THE MUVATTUPUZHA POLICE DATED NIL** - **Exhibit P5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 20.04.2024** - **Exhibit P6 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 05.06.2024** - **Exhibit P7 TRUE COPY THE REPORT OF THE 4TH RESPONDENT DATED 01.02.2025 SUBMITTED TO THE 1ST RESPONDENT** - **Exhibit P8 TRUE COPY OF THE LETTER DATED 20.02.2025 OF THE 1ST RESPONDENT TO THE PETITIONER,** - **Exhibit P9 TRUE COPY OF THE OFFICE MEMORANDUM ALONG WITH THE GUIDELINES OF THE CENTRAL POLLUTION CONTROL BOARD, DATED 16.08.2021** ## **RESPONDENT EXHIBITS** **EXHIBIT True copy of the letter dated 16.11.2024 of the R2(a) 2nd respondent to the Chief Environmental Engineer, Kerala State Pollution Control Board.** **EXHIBIT True copy of the letter dated 04.12.2024 to the R2(b) District Collector, Ernakulam.** **EXHIBIT True copy of the letter dated 28.10.2024 issued R2(c) by Environmental Engineer to the District Collector, Ernakulam.**