Santosh Kumar v. Bharat Petroleum Corporation Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944** **WP(C) NO. 30875 OF 2021** **PETITIONER:** SANTHOSH KUMAR, AGED 42 YEARS S/O. SUBBA BELCHADA BAJAL , BAJAL HOUSE, PAVOOR, MANJESWAR, KASARGODE. BY ADVS. R.SUNIL KUMAR A.SALINI LAL 1 DISTRICT COLLECTOR, KASARAGOD DISTRICT, COLLECTORATE, VIDYA NAGAR, KASARAGOD-671 123 2 THE ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD DIST, COLLECTORATE, VIDYA NAGAR, KASARAGOD671 123 3 BHARAT PETROLEUM CORPORATION LTD., REP. BY ITS CHIEF REGIONAL MANAGER, 3RD FLOOR, CEEKEY TOWERS, VANDIPETTA, KANNUR ROAD, NADAKKAVU WEST, CALICUT 673 9011. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS RAJA KANNAN ## **RESPONDENTS:** ## **OTHER PRESENT:** GP AMMINIKUTTY K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2023, THE COURT ON 14.03.2023 DELIVERED THE FOLLOWING: W.P.(C).30875/2021 2 ## **JUDGMENT** Dated this the 14[th] day of March, 2023 The Bharat Petroleum Corporation Limited/3[rd] respondent had issued Ext. P1 letter of intent to the petitioner, offering a retail outlet dealership in the land owned by the petitioner comprised in Sy. No. 81/13B2 and 81/13 BPT in Kadambar Village, Manjeshwar Taluk, Kasargod District. The petitioner having accepted the offer, the 3[rd] respondent submitted an application for No Objection Certificate before the 1[st] respondent, as mandated under Rule 144 of the Petroleum Rules. Thereupon, the 1[st] respondent caused inquiries to be conducted through the District Police Chief, District Supply Officer, Meenja Grama Panchayath, Fire and Rescue Services, Kannur, and the Revenue Divisional Officer. The Public Works Department raised objection, pointing out that establishment of the proposed petroleum retail outlet will not be in violation of the PWD norms. The Revenue Department raised an objection, since some of the neighbours are opposed W.P.(C).30875/2021 3 establishment of a petroleum retail outlet near to their residence. Objections of the Public Works Department and Revenue authorities was found to be unsustainable as per the judgment in W.P.(C) No. 17082 of 2021 filed by the petitioner. The challenge in this writ petition is against rejection of the application for NOC on the premise that the land in question was originally allotted to the petitioner's predecessor in interest for residential purpose and being an assignee of the original patadar, the petitioner cannot put the property to use for any purpose other than construction of the residential house. 2. Learned counsel for the petitioner contended that the reasoning in Ext.P3 order of rejection is unsustainable in view of Ext. P6 judgment rendered under similar circumstances. It is contended that the scope of enquiry for the purpose of issuance of NOC under Rule 144 of the Petroleum Rules is confined to the evaluation of the facts with reference to the Petroleum Rules only. In support of this contention, reliance is placed on the decision of this Court in **Reliance Industries** W.P.(C).30875/2021 4 **Limited** v. **Commissioner of Land Revenue** (2007(2) KLT 850). 3. Learned Standing Counsel for the 3[rd] respondent adopted the contentions of the petitioner and submitted that, following **Reliance Industries Limited** (supra), various Benches of this Court had interfered with the rejection of No Objection Certificates by the District Magistrates. The consistent stand taken by courts is that the question whether the land is utilized for purposes other than the one for which it is originally assigned is beyond the scope of inquiry under Rule 144. 4. Learned Government Pleader submitted that, based on the application submitted by the 3[rd] respondent, an inquiry was conducted on 18.11.2021. The petitioner had stated before the 1[st] respondent that he had purchased the land as per registered document No. 1557 of 2019 of SRO, Manjeshwar. The said land had been classified as Government land and was subsequently assigned for residential purpose as per DR No. 279/59. A perusal of the assignment order (Ext. W.P.(C).30875/2021 5 P4) would show that assignment is for the specific purpose of constructing a house. As per Clause 5, if the assignee fails to complete the house or fails to occupy the house within one year, the Government has a right to take over the land. As per Clause 9, once Government takes the land to its custody and the assignment is cancelled, the assignee is not entitled for any relief. The above clauses make it abundantly clear that the land can be utilized only for the purpose of constructing houses and any deviation from that purpose would result in cancellation of the assignment. Therefore, the present application for establishing a petroleum retail outlet in the land is in deviation of the purpose of assignment. It is further submitted that the judgment in W.P.(C). No. 1026 of 2021 (Ext. P6), relied on by the petitioner, has been stayed by the Division Bench in W.A. No. 8 of 2022 Ext.R1(a). 5. Replying to the contentions of the learned Government Pleader, the counsel for the petitioner submitted that the land was assigned by the Madras Government way back in the year 1959 under the Government Grants Act, W.P.(C).30875/2021 6 1895. The assignment being much prior to the introduction of the Kerala Land Assignment Act and Rules, and there being no specific bar under the Government Grants Act, 1895, the bar under Rule 3 of the Kerala Land Assignment Rules against utilization of the land for purposes other than the purpose of assignment, will not apply. The question whether, lands specifically assigned for cultivation, or house sites or beneficial enjoyment of adjoining land or for other specific or special purposes under the Kerala Government Land Assignment Act, 1960 the Rules thereunder, (Rule of 1964)can be utilized for any other purpose has been conclusively answered by a Division Bench in **Raphy John** v. **Land Revenue Commissioner** (2022 (3) KLT 679). After elaborate consideration of the relevant provisions, including the precedents, the Division Bench held that Tahsildars are vested with the powers to cancel orders of assignment/patta, if the rules and conditions in the order of assignment/patta are violated. Referring to Rule 27 (2)(f) of the Minor Mineral Concession Rules (Kerala), 2015, it is held that quarry W.P.(C).30875/2021 7 operators are not entitled, as of right, to secure a quarrying lease, if the lands are assigned for any special purpose by the Department of Land Revenue and no exemption is granted under Rule 24 of 1964 Rules. It is pertinent to note that Ext. P6 judgment, in W.P.(C) No. 1026 of 2021, was challenged and considered in the batch of writ appeals. The consideration at paragraphs 160 to 164 being contextually relevant is extracted hereunder; “160. Insofar as W.A.No.8/2022 filed by the Additional District Magistrate, Idukki and others challenging the judgment of the learned single Judge in W.P.(C) No.1026/2021 dated 05.10.2021 is concerned, it was in regard to the application submitted by the writ petitioner therein under R.144 of the Petroleum Rules, 2002, which was rejected by the learned Magistrate stating that the land in question was assigned for special purposes and cannot be used for establishing MS/HSD retail outlet. The paramount contention advanced by the writ petitioner is that the title deeds are conveyed by virtue of the Assignment Order since consideration is accepted by the Government. Further, it was contended that there is no restriction/limitation or condition in the patta, which is a document of title issued by the statutory authority, that the said land cannot be utilised for any other purpose. In our view, the Order of Assignment and patta are issued with specific conditions as regards assignment of land for cultivation and, therefore, by W.P.(C).30875/2021 8 virtue of the provisions of Kerala Land Assignment Rules, 1964, when the conditions are violated, the authorities are vested with powers to resume the land. 161. It is true that the issue in W.A.No.8/2022 is in respect of the power exercised by the Additional District Magistrate under R.144 of the Petroleum Rules, 2002 and whether the land assigned under the rules for cultivation is a subject matter to be considered under R.144. Rr.144 and 152(1)(i) and (ii) of the Petroleum Rules, 2002, deal with eligibility for licence and suspension and cancellation of licence respectively. It refers to the site on which petroleum is stored and does include the right to store petroleum on the site. In our view, one can have a right to do something on the land when there is a lawful origin for that right. 162. Here is a case where the site in question was assigned in favour of the original assignee for personal cultivation, and therefore, it cannot be used for any other purpose. Learned single Judge has allowed the Writ Petition by judgment dated 05.10.2021 on the basis of the decision in _Reliance Industries Ltd. v. Commissioner of Land Revenue_ (2007 (2) KLT 850) and held that the authority under R.144 of the Petroleum Rules, 2002 is entitled only to act in terms of the provisions of Petroleum Rules. But, there the question considered was as to whether the KLU order issued under the Essential Commodities Act, 1955 can have an impact in an area covered by the Town Planning Scheme under the Town Planning Act. However, when Rr.144 and 152 of the Petroleum Rules, 2002 are read conjointly, it is clear that the suitability of the site proposed is a matter to be considered by the authority, and therefore, it cannot be said that the stand adopted by the Additional District Magistrate that a “No Objection Certificate” cannot be issued since, the land was assigned to the original W.P.(C).30875/2021 9 assignee for personal cultivation, is bad or illegal.” The Division Bench having held that the District Magistrate is conferred with the power to consider the suitability of the site proposed, taking into account the purpose of assignment of the land, the challenge on the premise that, consideration under Rule 144 should be confined to the provisions under the Petroleum Rules, is not sustainable. 6. Having held so, I find merit in the contention of the counsel for the petitioner that, assignment in the instant case being under the erstwhile Government Grants Act, 1895, much prior to the introduction of the Kerala Government Land Assignment Act of 1960, the question whether the bar under Rule 3 of the Kerala Land Assignment Rules would apply, ought to be considered by the 1[st] respondent. As no such consideration is seen effected in Ext. P3, the impugned order is set aside for the limited purpose of considering whether the bar under Rule 3 of the Kerala Land Assignment Rules would apply to petitioner's land. W.P.(C).30875/2021 10 In the result, Ext. P3 order is quashed. The first respondent is directed to reconsider the application for No Objection Certificate submitted by the 3[rd] respondent and take a fresh decision, after affording an opportunity of hearing to the 3[rd] respondent and the petitioner. The reconsideration shall be confined to the question whether, utilization of petitioner's land for purposes other than construction of residential house is legally barred under the provisions of the Government Grants Act, 1895. The decision, after reconsideration in the manner directed above, shall be taken within one month of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** sb W.P.(C).30875/2021 11 ## **APPENDIX OF WP(C) 30875/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|COPY OF THE OFFER LETTER ISSUED BY THE 3RD| ||RESPONDENT TO THE PETITIONER DATED 3.9.2019.| |Exhibit P2|COPY OF THE APPLICATION FILED BY THE 3RD| ||RESPONDENT FOR GETTING NOC TO THE OUT LET| ||AWARDED TO THE PETITIONER DATED 9.10.2019.| |Exhibit P3|COPY OF THE REJECTION ORDER OF THE 2ND| ||RESPONDENT DATED 30.11.2021.| |Exhibit P4|COPY OF THE ASSIGNMENT ORDER NO. DR NO.| ||279/59 ALONG WITH ENGLISH TRANSLATION DATED| ||NIL.| |Exhibit P5|COPY OF THE APPENDIX ISSUED FROM TALUK OFFICE| ||DATED 27.09.2017.| |Exhibit P6|COPY OF THE JUDGMENT IN W.P.C NO 1026/21 DT.| ||5/10.21.| |RESPONDENT EXHIBITS|| |Annexure R1 (a)|A TRUE COPY OF THE INTERIM ORDER DATED| ||13.01.2022|