Shajida Shajahan v. District Collector, Kottayam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** ## **WP(C) NO. 4656 OF 2021** ## **PETITIONER:** **SHAJIDA SHAJAHAN AGED 53 YEARS W/O. P.A.SHAJAHAN, KOLLAMPARAMPIL HOUSE, MADAPPALLY VILLAGE, CHANGANASSERY, KOTTAYAM.** **BY ADVS.** **R.SUNIL KUMAR SMT.A.SALINI LAL SHRI.ARUN KRISHNA** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, KOTTAYAM DIST COLLECTORATE, KOTTAYAM-686001.** - **2 ADDITIONAL DISTRICT MAGISTRATE, COLLECTORATE, KOTTAYAM-686001.** - **3 THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KOTTAYAM-686001.** - **4 INDIAN OIL CORPORATION LIMITED,** **REP. BY ITS CHIEF REGIONAL MANAGER, TRIVANDRUM DIVISIONAL OFFICE, GROUND FLOOR, PREMIER PARK, INCHAKKAL BYE PASS ROAD, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN** **SMT. DEEPA NARAYANAN,SR.GP.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.4656 of 2021 :-2-: Dated this the 15[th] day of July, 2021 ## **J U D G M E N T** This Writ petition has been filed seeking to quash Exhibit P4 order issued by the 2[nd] Respondent, whereby the request for a non-objection Certificate for starting a petroleum retailing outlet was rejected. There is also a prayer to quash Exhibit P5 Government order dated 16.10.2020, whereby it is ordered that the norms/guidelines issued as per Government order dated 10.2.2020 for the purpose of access permission to fuel stations was replaced by another set of guidelines. 2. Heard Smt.A.Salini Lal on behalf of the petitioner, Sri.M.Gopikrishnan Nambiar, Standing counsel for the 4[th] Respondent and Smt.Deepa Narayanan, Senior Government pleader on behalf of Respondents 1 to 3. 3. The petitioner had offered the property belonging to her husband in Madappally village in Changanachery Taluk to the 4[th] Respondent, for the purpose of starting a petroleum outlet and applied for allotment of an outlet in the said property. By Exhibit ## W.P.(C)No.4656 of 2021 :-3-: P1 offer letter, the 4[th] Respondent accepted the proposal of the petitioner. Under Rule 144 of the Petroleum Rules, a no objection Certificate ('NOC', for short) has to be obtained from the 1[st] Respondent. The 4[th] Respondent submitted Exhibit P2 application for NOC. The 4[th] Respondent had written to the District Police Chief, the Tahsildar, Kottayam, the District Fire Officer, Kottayam and the Executive Engineer of PWD(Roads), Kottayam to report whether there are any negative aspects involved in allowing a petroleum outlet in the petitioner's property. 4. The PWD Executive Engineer submitted a report stating that the site does not comply with the IRC norms. The petitioner filed W.P.(C) No. 23849 of 2019 before this Court. This Court by an interim order, directed the District Collector to consider the application for NOC without referring to IRC/MoRTH norms within a period of 3 weeks. Even though the direction was issued to the 1[st] Respondent, the 2[nd] Respondent heard the matter and rejected NOC on the ground that there were objections raised by the neighbours. The petitioner challenged the order issued by the 2[nd] ## W.P.(C)No.4656 of 2021 :-4-: Respondent in W.P.(C) No.31531 of 2019. By Ext.P3 judgment, this Court set aside the order issued by the 2[nd] Respondent and remanded the matter for re-consideration. The 2[nd] Respondent sought a report from the 3[rd] Respondent, who reported that the site does not comply with the conditions laid down in the latest Government Order No.67/2020. The request for NOC was once again rejected by the 2[nd] Respondent, as per Exhibit P4 order dated 8.2.2021, for the reason that the site does not comply with the requirements contained in Exhibit P5 Government order issued on 16.10.2020. 5. It is the case of the petitioner that Exhibit P5 order is a reproduction of the earlier MoRTH guidelines and that the said guidelines cannot stand the scrutiny of law in the light of the judgment of this Court in **Mary Ulahannan vs. Union of India** reported in **2011(3)KLT 570** . It is submitted by the Counsel for the petitioner that, even though the above judgment was set aside by a Division Bench of this Court, the judgment of the Division Bench was set aside by the Hon'ble Supreme Court in the W.P.(C)No.4656 of 2021 :-5-: judgment dated 2.4.2013 in Civil Appeal Nos.2784/2013 to 2792/2013. It is hence submitted that the law is now settled that the State Government cannot frame Rules with regard to starting of petroleum outlet. The petitioner hence prays that Exhibit P4 order may be set aside. The petitioner relies on the judgments of this Court in W.P.(C)Nos.22093/2020 and 25329/2020, wherein this Court had directed the 1[st] Respondent to reconsider the issue and pass orders on the basis of the government orders that were in force at the time of filing of the application. The petitioner prays for a similar direction in this case also. 6. This Court, in Exhibit P3 judgment in W.P.(C) No. 31531 of 2019 filed by the petitioner herein, had considered the rejection of the request for NOC on the earlier occasion, and found that on the basis of the circular dated 18.8.2020 issued by the Kerala State Pollution Control Board, in cases where the applicant had obtained any other license prior to the circular dated 24.2.2020, then the siting criteria mentioned in circular dated 9.8.2004 will be applicable. This Court clearly found that ## W.P.(C)No.4656 of 2021 :-6-: the grounds based on which NOC was declined earlier cannot stand the scrutiny of law and hence directed a reconsideration of the application. A bare reading of Exhibit P4 order will show that the authority has issued the order without complying with the specific direction contained in Exhibit P3 judgment. In paragraph 21 of Exhibit P3 judgment this Court had specifically found that the circular of the Pollution Control Board which shall be applicable was the circular dated 9.8.2004. As such, there is absolutely no justification for rejecting the request for NOC on the basis of Exhibit P5 Government order. Admittedly, Exhibit P3 judgment was not challenged by the Respondents and the same has become final. The judgments in W.P.(C)Nos.22093/2020 and 25329/2020 are also rendered in similar circumstances. Reliance placed in Exhibit P4 on Exhibit P5 Government order is hence not justified. Exhibit P4 order is quashed. The 1[st] and 2[nd] respondents are directed to reconsider the request made by the petitioner for NOC in the light of the specific findings and directions contained in Exhibit P3 judgment and strictly in compliance with the W.P.(C)No.4656 of 2021 :-7-: government orders that were in force at the time the application was made. The order shall be issued within one month from the date of receipt of a certified copy of this judgment. All pending interlocutory applications are closed. Sd/- **T.R.RAVI, JUDGE** ami/ W.P.(C)No.4656 of 2021 :-8-: ## **APPENDIX OF WP(C) 4656/2021** **PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 26.2.19. EXHIBIT P2 COPY OF THE APPLICATION FILED BY THE 4TH RESPONDENT FOR GETTING NOC TO THE OUT LET AWARDED TO THE PETITIONER DATED 16.4.19. EXHIBIT P3 COPY OF THE JUDGMENT IN W.P.(C) NO.31531/2019 DATED 11.2.2020. EXHIBIT P4 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 8.2.2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF THE G.O.(M.S.)NO.67/2020 DATED 16.10.2020.**