Indian Oil Corporation Limited v. Additional District Magistrate, Collectorate Office, Alappuzha District; Shell India Markets Private Limited; P.A John; Rani John; Mathew George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** ## **WP(C) NO. 4377 OF 2022** ## **PETITIONER:** INDIAN OIL CORPORATION LIMITED REPRESENTED BY ITS DIVISIONAL RETAIL SALES HEAD, COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI 682 036 BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN NAYANPALLY RAMOLA E.K.NANDAKUMAR (SR.) ## **RESPONDENTS:** 1 ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE OFFICE, ALAPPUZHA DISTRICT - 688 001 2 SHELL INDIA MARKETS PRIVATE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, 2ND FLOOR, CAMPUS 4A, RMZ MILLENIA, NO. 143, DR M.G.R ROAD, KANDANCHAVADY, PERUNGUDI, CHENNAI - 600 096 3 P.A JOHN PUTHIYAPARAMBIL HOUSE, CMC.29, CHERTHALA, ALAPPUZHA 688 524 4 RANI JOHN PUTHIYAPARAMBIL HOUSE, CMC.29, CHERTHALA, ALAPPUZHA - 688 524 5 MATHEW GEORGE KANDATHIL BILLS COTTAGE , RAMA TEMPLE LANE, 2 WP(C) NO. 4377 OF 2022 SEA VIEW WARD, ALAPPUZHA - 688 012 BY ADVS. MADHU RADHAKRISHNAN SANTHOSH MATHEW – R3 & R4 ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL LEAH RACHEL NINAN MATHEW NEVIN THOMAS KARTHIK RAJAGOPAL KURIAN ANTONY MATHEW NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR SMT. MAHIMA SINGH – R2 SRI. ANGAD VARMA - R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4377 OF 2022 3 # **P.V.KUNHIKRISHNAN, J ------------------------------W.P.(C)No. 4377 of 2022** **-------------------------------Dated this the 11[th] day of March, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Call for the records leading upto the issuance of Exhibit P10 No Objection Certificate by the 1[st] Respondent and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction;_ _(ii) Declare that the 2[nd] Respondent has no right to establish a petrol pump in premises at 'Survey Nos. 198/1, 199/1 and 199/2 in Block No.33 of Kanjikuzhi Village of Cherthala Taluk, Alappuzha';_ _(iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper to grant in the facts and circumstances of the case.”[SIC]_ 2. This writ petition is filed by the Indian Oil Corporation Limited challenging Ext.P10 No Objection Certificate issued by the 1[st] respondent to the 2[nd] respondent. The facts are like this: WP(C) NO. 4377 OF 2022 4 The petitioner issued Ext.P1 advertisement intimating that it proposes to appoint dealers at several of its retail outlet locations and called for applications from interested parties. The 5[th] respondent was an applicant for the proposed retail outlet location of 'Kanjikuzhy – 11[th] Mile (NH66)'. The 5[th] respondent was selected as the successful applicant for the said dealership and Ext.P4 letter of intent was issued by the petitioner to the 5[th] respondent. As per the application submitted by the 5[th] respondent, the 5[th] respondent had offered to arrange the premises located at 'Survey Nos.198/1, 199/1 and 199/2 in Block No.33 of Kanjikuzhi Village of Cherthala Taluk, Alappuzha' owned by 3[rd] and 4[th] respondents for establishment of the retail outlet. The 5[th] respondent also submitted Exts.P2 and P3 offers for lease of land from the landowners-respondents 3 and 4. It is stated in the said offer that, if the 5[th] respondent is selected as a dealer, then the land of respondents 3 and 4 will be WP(C) NO. 4377 OF 2022 5 leased to the petitioner or 5[th] respondent, as directed by the petitioner. It is the case of the petitioner that subsequently, respondents 3 and 4 issued Ext.P6 offer for lease of the subject premises to the petitioner and Ext.P7 power of attorney in favour of the petitioner for obtaining statutory approvals for establishment of retail outlet. Pursuant to the issuing of Ext.P4 letter of intent, the petitioner filed Ext.P5 application for No Objection Certificate under Rule 144 of the Petroleum Rules, 2002, before the 1[st] respondent for establishing a retail outlet at the subject premises. After conducting the necessary inspections, the 1[st] respondent was pleased to issue Ext.P8 No Objection Certificate under Rule 144 of the Petroleum Rules 2002 to the petitioner. It is the case of the petitioner that, subsequently during the subsistence of the power of attorney, respondents 3 and 4 proceeded in parallel to take steps to enter into a lease agreement with a third party for setting up a retail outlet of the 2[nd] respondent WP(C) NO. 4377 OF 2022 **==> picture [6 x 10] intentionally omitted <==** in the same premises. Thereafter, the 1[st] respondent issued Ext.P10 No Objection Certificate under Rule 144 of the Petroleum Rules, 2002, in favour of the 2[nd] respondent for the very same subject premises, without appreciating the fact that, No Objection Certificate under Rule 144 for the subject premises had already been issued by the 1[st] respondent in favour of the petitioner vide Ext.P8. Aggrieved by Ext.P10 NOC, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner, the learned counsel for the 2[nd] respondent, the learned counsel for respondents 3 and 4 and the learned Government Pleader also. 4. The counsel for the petitioner reiterated his contentions in the writ petition. The counsel mainly raised two points. According to the petitioner, when once an NOC under Rule 144 of the Petroleum Rules is issued by the 1[st] respondent, the same authority has no jurisdiction to issue a second NOC. It is the WP(C) NO. 4377 OF 2022 7 submission of the petitioner that there is no application of mind by the 1[st] respondent while issuing the second NOC. It is also contended by the counsel that, as per Rule 150 of the Petroleum Rules, the cancellation of No Objection Certificate can be done only after giving notice to the licensee. No opportunity is given to the petitioner before issuing Ext.P10 NOC and by issuing Ext.P10, in effect, Ext.P8 NOC is cancelled by 1[st] respondent. 5. On the other hand, the counsel appearing for respondents 3 and 4 submitted that the petitioner was not taking any steps to start the retail outlet for a long time. Respondents 3 and 4 gave the consent on 21.12.2018 to the petitioner. The counsel also submitted that Rule 150 has no application at all because there is no license issued to the petitioner. As far as the 1[st] point is concerned, the counsel submitted that NOC is only a document for getting the licence. The counsel takes me through Rule 144 of the WP(C) NO. 4377 OF 2022 8 Petroleum Rules, 2002, which states about the documents to be submitted. The counsel also submitted that the intention of NOC is only to show whether the possession of the site by the applicant is lawful. The counsel also takes me through the judgment of the Apex Court in _**C. Albert Morris v. K. Chandrasekaran and others**_ [2006 (1) SCC 228]. 6. This Court considered the contentions of the petitioner and the respondents. Admittedly there are two NOCs. Exts.P8 and P10 are the NOCs. It is the case of the petitioner that, Ext.P10 is issued without giving notice to the petitioner and such an NOC can not be issued when Ext.P8 NOC is in existence. The purpose of issuing NOC is clear from Rule 144 of the Petroleum Rules. NOC is one of the documents to be produced while applying for licence. Simply because Ext.P8 NOC is issued to the petitioner, there is no prohibition on the part of the 1[st] respondent in issuing WP(C) NO. 4377 OF 2022 9 Ext.P10 NOC because the purpose is only to show that the possession of the site by the applicant is lawful. This point is considered by the Apex Court in _**Albert Morris's case** (supra)._ It will be better to extract paragraphs 43 and 44 of the above judgment: _“43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in the case of M.C. Chockalingam v. V. Manickavasagam litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this Rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi v. Himatlal Jamnadas Dani wherein this Court held that the act of holding over after the expiration of the term_ WP(C) NO. 4377 OF 2022 10 _does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the landlord under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1) (i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed. We have already rejected the contention of Mr. L.N. Rao that the appellant tenant is a statutory tenant for the reasons recorded earlier. The lease deed is very clear as to what was leased. The lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed etc. It is, therefore,_ WP(C) NO. 4377 OF 2022 11 _not in dispute that the lease of land is not covered by the statute, The Pondicherry Buildings (Lease and Rent Control) Act, 1969 in force extending protection to tenants._ _44. We now come to the last contention of Mr. L.N. Rao that the first respondent is not entitled to maintain the writ petition as the proceedings initiated by him before the Collector for cancellation of the No Objection Certificate are pending. The said submission cannot be accepted. While granting NOC, the Collector is not concerned about the ownership of the land. He is concerned about the location of the land and its suitability as a place for storage of petroleum. Rule 144 deals with the grant of NOC does not contemplate an enquiry into the ownership of the land nor does it require the Collector to enquire into the nature of the right claimed by the person who has applied for the NOC. We, therefore, uphold the judgment and final order passed by the Division Bench dated 7.10.2003 in Writ Appeal Nos. 1149 and 2140 of 2002 for the reasons given by us in this judgment.”_ In the light of the above decision, I think there is nothing wrong on the part of the 1[st] respondent in issuing No Objection Certificate. As far as Rule 150 of the Petroleum Rules, 2002 is concerned, that is not at all applicable in the facts and circumstances of the case WP(C) NO. 4377 OF 2022 12 because, admittedly there is no licence issued to the petitioner. Rule 150 is applicable in a situation when a licence is issued and thereafter NOC is considered. Therefore, the two contentions raised by the petitioner is unsustainable and there is no merit in this writ petition. Therefore this writ petition is dismissed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 4377 OF 2022 13 ## **APPENDIX OF WP(C) 4377/2022** ## PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ADVERTISEMENT DATED 25-11-2018 ISSUED BY THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE NOTARIZED AFFIDAVIT FOR OFFER OF LAND DATED 21-12-2018 ISSUED BY 3RD RESPONDENT EXHIBIT P3 A TRUE COPY OF THE NOTARIZED AFFIDAVIT FOR OFFER OF LAND DATED 21-12-2018 ISSUED BY 4TH RESPONDENT EXHIBIT P4 A TRUE COPY OF THE LETTER OF INTENT DATED 09-09-2019 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR NO OBJECTION CERTIFICATE UNDER RULE 144 OF THE PETROLEUM RULES 2002 DATED 14-10-2019 SUBMITTED BY PETITIONER TO THE 1ST RESPONDENT (WITHOUT ENCLOSURES) EXHIBIT P6 TRUE COPY OF THE LETTER DATED 28-112019 ISSUED RESPONDENTS 3 AND 4 TO PETITIONER (ALONGWITH TYPED COPY) EXHIBIT P7 A TRUE COPY OF THE POWER OF ATTORNEY DATED 27-05-2020 ISSUED BY RESPONDENTS 3 AND 4 IN FAVOUR OF THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 30-06-2020 UNDER RULE 144 OF THE PETROLEUM RULES 2002 BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 0303-2021 ISSUED BY THE RESPONDENTS 3 14 WP(C) NO. 4377 OF 2022 AND 4 TO THE PETITIONER. EXHIBIT P10 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 11-10-2021 ISSUED UNDER RULE 144 OF THE PETROLEUM RULES 2002 BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT RESPONDENTS EXHIBITS: EXHIBIT R3(1) EXHIBIT R3(1) TRUE COPY OF THE COMMUNICATION DATED 5-12-2020 SENT BY THE SECRETARY OF KANJIKUZHI GRAMA PANCHAYATH TO THE SENIOR DIVISIONAL (RETAIL SALES) MANAGER OF M/S.INDIAN OIL CORPORATION LIMITED. EXHIBIT R3(1)(A) TRUE COPY OF THE LETTER DATED 25-012021 ISSUED BY THE RESPONDENTS 3 AND 4 TO THE PETITIONER. EXHIBIT R3(2) TRUE COPY OF THE LETTER OF INTENT DATED 28-12-2020 ISSUED BY THE 2ND RESPONDENT TO SHRI.SANJU SAJU. EXHIBIT R3(3) TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THESE RESPONDENTS AND SHRI.SANJU SAJU ON 13TH DECEMBER 2020. EXHIBIT R3(4) TRUE COPY OF THE COMMUNICATION DATED 23-9-2021 SENT BY THE ENVIRONMENTAL ENGINEER OF POLLUTION CONTROL BOARD TO THE DISTRICT COLLECTOR, ALAPPUZHA. EXHIBIT R3(5) TRUE COPY OF THE COMMUNICATION DATED 30-7-2021 SENT BY THE NATIONAL AUTHORITY OF INDIA TO THE 2ND RESPONDENT. EXHIBIT R3(6) TRUE COPY OF THE NO OBJECTION WP(C) NO. 4377 OF 2022 15 CERTIFICATE ISSUED BY THE REGIONAL FIRE OFFICER, FIRE & RESCUE SERVICE TO THE 2ND RESPONDENT. EXHIBIT R3(7) TRUE COPY OF THE BUILDING PERMIT DATED 2-11-2021 ISSUED BY THE KANJIKUZHI GRAMA PANCHAYATH TO THE 3RD AND 4TH RESPONDENTS AND SHRI.SANJU SAJU. EXHIBIT R3(8) TRUE COPY OF THE RETAILER SUPPLY AGREEMENT DATED 8-12-2021 ENTERED INTO BETWEEN THE 2ND RESPONDENT AND KUDILIL FUELS REPRESENTED BY SHRI.SANJU SAJU. EXHIBIT R3(9) A TRUE COPY OF THE LETTER OF INTENT DATED 31-12-2021 ISSUED BY THE 2ND RESPONDENT TO SHRI.SANJU SAJU. EXHIBIT R3(10) PHOTOGRAPHS EVIDENCING THE CURRENT STAGE OF CONSTRUCTION. //TRUE COPY// PA TO JUDGE