Muhammed C. v. District Collector, Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** ## **WP(C) NO. 27651 OF 2020** ## **PETITIONER:** MUHAMMED C. AGED 73 YEARS S/O.KUNHALAVI, CHALAKKALAKATH HOUSE, KOZHIPURAM, PALLIKKAL P.O, MALAPPURAM DISTRICT. BY ADV C.M.MOHAMMED IQUABAL ## **RESPONDENTS:** |1|THE DISTRICT COLLECTOR| |---|---| ||MALAPPURAM, MALAPPURAM P.O, PIN – 676505.| |2|THE ADDITIONAL DISTRICT MAGISTRATE,| ||MALAPPURAM, PIN – 676505.| |3|THE TAHSILDAR,| ||KONDOTTY TALUK, KONDOTTY P.O, MALAPPURAM DISTRICT,| ||PIN – 673638.| |4|THE VILLAGE OFFICER,| ||PALLIKKAL VILLAGE OFFICE, PALLIKKAL P.O,| ||MALAPPURAM DISTRICT, PIN – 673634.| |5|THE REGIONAL FIRE OFFICER| ||FIRE AND RESCUE SERVICES, PALAKKAD DISTRICT, PIN -| ||678001,| |6|THE KERALA STATE POLLUTION CONTROL BOARD,| ||PATTOM P.O, THIRUVANANTHAPURAM, PIN - 695004,| ||REPRESENTED BY ITS CHAIRMAN.| |7|PALLIKKAL GRAMA PANCHAYATH| ||PALLIKKAL P.O, MALAPPURAM DISTRICT, PIN - 673634,| ||REPRESENTED BY ITS SECRETARY.| **2** ## **W.P.(C).No.27651/2020** 8 BHARAT PETROLEUM CORPORATION LTD, 3RD FLOOR, C.K.TOWERS, VANDIPETTA, NADAKAVU(WEST), CALICUT - 673011, REPRESENTED BY ITS GENERAL MANAGER. 9 IBRAHIM, S/O. KUTTYAMMU, KALLUNGAL HOUSE, PALLIKKAL P.O, MALAPPURAM DISTRICT, PIN – 673634, 10 RAGUL K, S/O. BABU RAJ K, RADHA NIVAS, KOLATHARA P.O, KOZHIKODE DISTRICT, PIN – 673685. BY ADVS. SRI.K.T.SHYAMKUMAR SRI.M.GOPIKRISHNAN NAMBIAR SRI.R.SUNIL KUMAR SMT.A.SALINI LAL SRI.K.JOHN MATHAI SHRI.HARISH R. MENON SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SMT.ROMILA, SC SMT.A.SALINI LAL, SC **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.27651/2020** **3** **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).No.27651 of 2020 ---------------------------------------------Dated this the 16[th] day of September, 2021** ## **JUDGMENT** The petitioner is residing in the residential house situated in R.S.No.104/12 in Block No.10 of Pallikkal Grama Panchayath. The 9[th] respondent herein is the adjacent property owner. He along with the 10[th] respondent proposed to start a petroleum retail outlet of the 8[th] respondent in their property. The specific case of the petitioner is that it is a pure residential area and two petrol pumps are situated near to this property. The case of the petitioner is that even though the petitioner and other residents filed objection before the 1[st] respondent and other respondents, the 1[st] respondent issued Ext.P6 No Objection Certificate to start the petroleum outlet without considering their grievance. Aggrieved by the same, this writ petition is filed with following prayers: - _i._ Call for the records leading up to Ext. P6 NOC and quash the same by issuance of a Writ of Certiorari or any other appropriate writ, order or direction. - _ii._ Pass any other appropriate writ, order or direction **4** ## **W.P.(C).No.27651/2020** which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time. 2. Heard the counsel for the petitioner, Government Pleader, Standing Counsel for the 7[th] respondent Panchayath, Standing Counsel for the 8[th] respondent and the counsel appearing for respondents 9 and 10. 3. The counsel for the petitioner reiterated his contention in the writ petition. The counsel takes me through Ext.P5 order passed by the Additional District Magistrate. In the second page of that order, it is stated that the Additional District Magistrate obtained No Objection Certificate from neighbours. Thereafter the counsel takes me through Ext.P9 report of the Tahsildar, Kondotty, to the District Collector dated 30.07.2020, which is dated before Ext.P5 order. In Ext.P9, the distance between the house of the petitioner and to the proposed site is mentioned as 4 meters. According to the petitioner, without a No Objection Certificate from the petitioner or without giving an opportunity of hearing to the petitioner, the 1[st] respondent passed Ext.P5 order and therefore, Ext.P5 order is unsustainable. The counsel for the petitioner also takes me through Rule 144(5) of the Petroleum **5** ## **W.P.(C).No.27651/2020** Rules, 2002, in which an inquiry is contemplated. The counsel submitted that the petitioner already submitted a representation. Even without considering the same and without giving an opportunity of hearing, the 1[st] respondent issued Exts.P5 and P6. According to the petitioner, the statutory mandate to conduct the inquiry mentioned in Rule 144(5) is flouted by the 1[st] respondent. Therefore the counsel submitted that Ext.P5 is unsustainable. 4. The Standing Counsel for the 8[th] respondent Company submitted that the petitioner submitted the objection after Ext.P5 order and therefore, it cannot be said that the Additional District Magistrate has not given an opportunity of hearing to the petitioner. The counsel also relied on the judgment of this Court in **Reliance Industries Ltd v. Commissioner of Land Revenue [2007 (2) KLT 850]** in which the scope of inquiry by the District Magistrate is dealt in detail. 5. The counsel for respondents 8 and 9 submitted that the point raised by the petitioner is covered by the judgment of this Court in W.P.(C).No.9081 of 2017, in which it is stated that No Objection Certificate from the neighbours is not **W.P.(C).No.27651/2020** **6** necessary if the applicant is otherwise eligible. 6. The short point to be decided in this case is whether the petitioner is entitled for hearing and whether No Objection Certificate from the petitioner is necessary for passing orders by the 1[st] respondent District Collector, while invoking the powers under Rule 144 of the Petroleum Rules. It will be better to extract Rule 144 of the Petroleum Rules: _“_ 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 licence other than a licence in Forms 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 licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who shall forward it to the licensing authority with his application Form IX. (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 under his official seal. (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) **W.P.(C).No.27651/2020** **7** to the District Authority for his observations. (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 licence which has been applied for should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government. (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. _”_ 7. It is true that in Rule 144(5) an inquiry is mentioned. The scope of inquiry by the District authority is considered by this Court in **Reliance Industries case** ( _supra_ ). Relevant portion of the judgment is extracted ## hereunder: _“16._ The Petroleum Act, 1934 is an enactment to consolidate and amend the law relating to the import, transport, storage, production, refining and blending of petroleum. Among other things, it classifies petroleum into different classes on the basis of "flash point", as defined in S.2(c) of that Act. S.4 enjoins on the Central Government to make rules for the **W.P.(C).No.27651/2020** **8** import, transport and storage of petroleum. S.3 provides prohibition against import, transport and storage of petroleum, save in accordance with the rules made under S.4. Sub-ss. (1) and (2) of S.5 make similar provision regarding production, refining and blending. Ss. 14, 21 and 22 in Chapter II authorise making of rules to govern inspection, sampling and tests. S.29(1) provides the Central Government with authority to make ancillary rules. The Petroleum Rules, 2002 are made by the Central Government in exercise of the aforesaid authority. Classified into twelve chapters, with five schedules, including statutory forms, the Petroleum Rules are extensive. The scientific knowledge required for managing the arena of petroleum industry, including storage and supply, have gone into the making of those Rules. The Petroleum Act clearly prohibits activities relating to petroleum, except in accordance with the Rules made under that Act. The Petroleum Rules are therefore exhaustive. Hence, while it has to be ensured that those Rules are scrupulously followed, subject to the limited and regulated power in R.201, to exempt, it is also totally impermissible to take into consideration anything not provided for by those Rules, while deciding the issue of grant or renewal of licence under those Rules. This includes the arrival at a decision as to whether there is any objection to the grant of NOC. 17. When an applicant for a new licence applies to **W.P.(C).No.27651/2020** **9** 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. _”_ Moreover this Court also, in judgment dated 30.05.2017 in W.P.(C).No.9081 of 2017, considered this point. Relevant portion is extracted hereunder: _“_ As noted above, Ext.P6 proceeds on the basis that the application of the petitioner is liable to be rejected since the neighbouring property owners have raised objections to the establishment of the outlet. Identical issues arose before this Court in Ext.P7 case, wherein this Court took the view that the no objection certificate applied for shall be granted notwithstanding the protest of the local people, if the applicant is otherwise eligible. The said judgment has **10** ## **W.P.(C).No.27651/2020** been followed by this Court in W.P.(C).No.3827 of 2017. In the light of Ext.P7 judgment as also the judgment rendered by this Court in W.P. (C).No.3827 of 2017, the impugned order is liable to be set aside. _”_ 8. In the light of the above authoritative judgment of this Court, according to me, No Objection Certificate or a hearing of the petitioner is not mandatory in the light of the facts and circumstances of this case. No other points are raised by the petitioner. Therefore, I find no reason to interfere with the impugned order. The writ petition fails and hence it is dismissed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **W.P.(C).No.27651/2020** **11** ## **APPENDIX OF WP(C) 27651/2020** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|THE TRUE COPY OF THE BASIC TAX RECEIPT| ||ISSUED BY PALLIKKAL GRAMA PANCHAYATH| ||DATED 27.1.2020.| |EXHIBIT P2|THE TRUE COPY OF THE REPRESENTATION| ||SUBMITTED BY THE PETITIONER AND OTHERS| ||BEFORE THE 1ST RESPONDENT DATED| ||23.11.2020.| |EXHIBIT P3|THE TRUE COPY OF THE CIRCULAR OF THE| ||6TH RESPONDENT POLLUTION CONTROL BOARD| ||DATED 24.2.2020.| |EXHIBIT P4|THE TRUE COPY OF THE OBJECTION FILED| ||BEFORE THE 3RD RESPONDENT DATED| ||30.11.2020.| |EXHIBIT P5|THE TRUE COPY OF THE REPORT OF THE 2ND| ||RESPONDENT DATED 31.10.2020.| |EXHIBIT P6|THE TRUE COPY OF THE ORDER ISSUED BY| ||THE 1ST RESPONDENT DATED 31.10.2020.| |EXHIBIT P7|THE TRUE COPY OF THE REPORT OF THE 4TH| ||RESPONDENT DATED 15.1.2020| |EXHIBIT P8|THE TRUE COPY OF THE CIRCULAR OF THE| ||6TH RESPONDENT DATED 9.8.2004| |EXHIBIT P9|THE TRUE COPY OF THE REPORT OF THE| ||TAHSILDAR, KONDOTTY DATED 30.7.2020| |EXHIBIT P10|THE TRUE COPY OF THE OFFICE MEMORANDUM| ||OF CENTRAL POLLUTION CONTROL BOARD| ||DATED 7.1.2020| |EXHIBIT P11|TRUE COPY OF HTE MODIFIED DIRECTION| ||ISSUED BY THE CENTRAL POLLUTION| ||CONTROL BOARD DATED 07.03.2016| |EXHIBIT P12|THE TRUE COPY OF HTE PHOTOGRAPHS OF| ||HTE PROPOSED SITE| |RESPONDENT EXHIBITS|| |EXHIBIT R8 A|A TRUE COPY OF THE CIRCULAR DATED| ||18/8/2020| |EXHIBIT R8 B|A TRUE COPY OF THE APPROVAL DATED| ||19/6/2019 ISSUED BY PESCO| |EXHIBIT P8 C|A TRUE COPY OF THE NOC DATED 24/7/2019| ||ISSUED BY THE FIRE AND RESCUE SERVICES| ||DEPARTMENT (WITHOUT ENCLOSURES)| |EXHIBIT R8 D|A TRUE COPY OF THE CONSENT DATED| ||18/1/2021 ISSUED BY THE 6TH RESPONDENT| ## **W.P.(C).No.27651/2020** **12**