Manoj K.G. v. The District Collector, Kottayam District and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943 WP(C) NO. 15637 OF 2021** ## **PETITIONER:** MANOJ K.G. AGED 42 YEARS, S/O GOPINATHAN, MAYABHAVAN, ANIKKAD WEST, KOTTAYAM BY ADVS. R.SUNIL KUMAR A.SALINI LAL ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR, KOTTAYAM DISTRICT CLLECTORATE, KOTTAYAM-686001 2 ADDITIONAL DISTRICT MAGISTRATE COLLECTORATE, KOTTAYAM-686001 3 INDIAN OIL CORPORATION LIMITED REPRESENTED BY ITS CHIEF REGIONAL MANAGER, TRIVANDRUM DIVISIONAL OFFICE, GROUND FLOOR, PREMIER PARK, INCHAKKAL BYE PASS ROAD, VALLAKKADAVU P.O., THIRUVANANTHAPURAM – 695 021 4 REGIONAL FIRE OFFICER OFFICE OF FIRE AND RESCUE, KOTTAYAM-686574 5 EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, KOTTAYAM- 686 538 BY ADVS. WP(C) NO.15637/2021 2 SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15637/2021 3 ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------W.P.(C)No.15637 of 2021** **-------------------------------------Dated this the 27[th] day of September 2021** ## **JUDGMENT** ## **The above writ petition is filed with following** ## **prayers:** _“i) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 1[st] respondent to issue No Objection Certificate to the petitioner's site notwithstanding the objection of the neighbours and the report of the 4[th] respondent within 2 weeks._ _ii) To issue a writ of mandamus or any other appropriate writ order or direction, directing the 1[st] respondent to consider and pass order on Exbt.P-2 notwithstanding the objection of the neighbours and the report of the 4[th] respondent within 2 weeks._ _iii) Pass such other orders as this Hon'ble court deems fit and proper in the facts and circumstances of the case.”_ ## **2. The grievance of the petitioner is that** **the 1[st] respondent is not considering the** **application for No Objection Certificate(NOC) under Rule 144 of the Petroleum Rules, stating that the 4[th] respondent has not given favourable report and** WP(C) NO.15637/2021 4 **the neighbours raised objections. Ext.P1 is the letter of intent issued by the 3[rd] respondent in favour of the petitioner. Ext.P2 is the application submitted by the 3[rd] respondent to the 1[st] respondent for arranging No Objection Certificate. Ext.P3 is the sketch produced before the 4[th] respondent. It is the case of the petitioner that the application for NOC is not considered by the 1[st] respondent. Hence this writ petition is filed.** **3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing counsel for the 3[rd] respondent.** **4. The learned counsel for the petitioner reiterated his contentions in this writ petition. The learned counsel submitted that the only problem raised by the 1[st] respondent for not processing the NOC is that there is some defect pointed out by the Fire and Safety officer in the sketch submitted by the petitioner. The learned counsel submitted that Ext.P3 is the corrected sketch submitted by the** WP(C) NO.15637/2021 5 **petitioner. The learned counsel also pointed out that, as evident by Exts.P6 and P7, in similar situations the NOC was issued by the District Magistrate. The learned counsel also submitted that the 1[st] respondent says that there is objection from the neighbours. The learned counsel submitted that, in the light of Exts.P9 to P11 judgments of this Court, the neighbours NOC is not relevant, if the application is otherwise in order. The learned counsel also submitted that the contention in the statement filed before this Court to the effect that the Company has not complied the norms issued by the Pollution Control Board will also not stand in the light of the decisions of this Court in** _**Reliance Industries Ltd. and others v. The Commissioner of Land Revenue**_ **[2007(2)KHC 346] and** _**Mary Ulahannan v. Union of India and Others**_ **[2011 (2) KHC 792].** **5. The learned Government Pleader takes me through the statement filed by the 2[nd] respondent. The learned Government Pleader relied on Paragraph** WP(C) NO.15637/2021 6 ## **Nos.3 and 4 of the statement.** **6. I have considered the contentions of the petitioner and the learned Government Pleader. As far as the error in the sketch submitted by the company is concerned, it is now submitted by the petitioner that Ext.P3 corrected sketch is already submitted before the 1[st] respondent. Therefore, that defect is already cured. Whether a transformer is objectionable or not is to be decided by the 1[st] respondent in the light of Exts.P6 and P7 photographs also. In the statement filed in this case, it is stated that the proposed petroleum outlet does not comply the norms issued by the Pollution Control Board vide circular No.PCB/HO/HOW/Rules 9/7/2019 dated, 24.02.2020 and hence not recommended for No Objection Certificate for the proposed petroleum outlet. This Court considered the jurisdiction of the District Magistrate in** _**Reliance Industries's**_ **case(** _**supra**_ **) and in** _**Mary Ulahannan's**_ **case (** _**supra**_ **)** _**.**_ **It will be better to extract the relevant portion of the above** WP(C) NO.15637/2021 7 ## **judgments. In paragraph No.17 of** _**Reliance**_ ## _**Industries's**_ **case(** _**supra**_ **), this Court observed like** ## **this:** _“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.”[Emphasis supplied]_ ## **7. Similarly in paragraph No.12 of** _**Mary**_ ## _**Ulahannan's**_ **case (** _**supra**_ **), this Court observed** ## **like this:** _“12. The ultimate authority to grant the licence on the basis of the NOC to be given by the District Authority is the Chief Controller of Explosives. The District Authority, while considering an application for issuance of NOC under the Petroleum Rules has necessarily to consider the credentials in the light of the State Rules, with reference to the provisions of the Act / Rules /Norms/ Orders, if any, issued by the_ WP(C) NO.15637/2021 8 _Central Government or as prescribed by the Central Government. If a person is entitled to have a retail outlet on the basis of the NOC issued by the Central Government, the eligibility is not liable to be watered down by the State Government or by any authorities under the State, with reference to any norm/ yardstick, which is detrimental to the parties concerned. The very fact that, the Rules do not contemplate any stipulation as to any requirements, such as 'Distance Rule' or 'Quantum Rule' (as now proposed to be implemented by the State, through the Minutes / circulars, with reference to be sale out put of the nearby dealer). No such stipulation can be prescribed / implemented, virtually affecting the business prospects of others concerned, who are having vested rights under Art.19(1)(g) and other relevant provisions of the Constitution of India. Absence of any such provision in the Act / Rules, as well as the absence of any norms in this regard, itself is a pointer to suggest that the legislative wisdom of the Union did not find it necessary to impose any restrictions / conditions with regard to the trading rights of the citizens, which hence is not liable to be re-written at the hands of the States. This Court finds support in this regard from the judgment already passed by this Court as reported in 2007(2)KHC 346:ILR 2007(2) Ker.193:2007(2)KLT 850 (M/s.Reliance Industries Limited v. Commissioner of Land Revenue).”_ ## **8. In the light of the above principles laid** **down by this Court, I think the insistence of compliance of the circular of the Pollution Control Board is a matter to be looked in to by the 1[st]** WP(C) NO.15637/2021 9 **respondent in the light of the above dictum laid down by this Court. As far as the neighbours objection is concerned, this Court already considered this point in detail in Exts.P9 to P11 judgments. The 1[st] respondent will consider the same while passing final orders.** **Therefore, this writ petition is disposed in the following manner:** **i) The 1[st] respondent will consider Ext.P2 application for NOC in the light of the observations in this judgment, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment.** **ii) The petitioner will produce a copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance.** **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) NO.15637/2021 10 ## **APPENDIX OF WP(C) 15637/2021** PETITIONER EXHIBITS - EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 19.08.2020 - EXHIBIT P2 COPY OF THE APPLICATION FILED BY THE 3RD RESPONDENT FOR GETTING NOC TO THE OUT LET AWARDED TO THE PETITIONER DATED 21.12.2020 - EXHIBIT P3 COPY OF THE CORRECTED SITE PLAN PRODUCED BEFORE THE 4TH RESPONDENT - EXHIBIT P4 COPY OF THE INITIAL APPROVAL OF PESO DATED 22.02.21 - EXHIBIT P5 COPY OF THE CIRCULAR OF THE POLLUTION CONTROL BOARD DATED 24.02.20 - EXHIBIT P6 COPY OF THE PHOTOGRAPH SHOWING A PETROL PUMP AT CHANGANASSERY-VAZHOOR ROAD AT PAREPPALLY JUNCTION - EXHIBIT P7 COPY OF THE PHOTOGRAPH SHOWING A PETROL PUBMP UNDER CONSTRUCTION AT PONKUNNAMPALA ROAD AT KOORALI JUNCTION - EXHIBIT P8 COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 24.03.2021 - EXHIBIT P9 COPY OF THE JUDGMENT IN W.P. (C)NO.30818/2015 DATED 13.10.2015 - EXHIBIT P10 COPOY OF THE JUDGMENT IN WP(C)NO.9081/2017 DATED 30.05.2017 - EXHIBIT P11 COPY OF THE JUDGMENT IN WP(C)NO.19140/2020 DATED 23.09.2020 RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE