T. M. Jayaprakashan, Sakeena A. K., Roshitha K., K. P. Radhakrishnan, P. Jayanandan v. District Collector, Kathirur Grama Panchayath, Hindustan Petroleum Corporation Limited (HPCL) Retail Regional Office and Others

W.P.(C) No. 4318/2022 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 ## WP(C) NO. 4318 OF 2022 ## PETITIONER/S: - 1 T.M.JAYAPRAKASHAN S/O. KANARAN T. M., HOUSE NO.XVI 519, CHAITHANNYA, NEAR 4/1 BUS STOP, PONNIAM WEST, PIN – 670 641, THALASSERY TALUK, KANNUR DISTRICT. - 2 SAKEENA A. K. D/O. HYDROSE V. V., THANAI, NEAR 4/1 BUS STOP, PONNIAM WEST, PIN – 670 641, THALASSERY TALUK, KANNUR DISTRICT. - 3 ROSHITHA K. W/O. SANTHOSH KUMAR E. K., 'SOPANAM', HOUSE NO.XVI 519, CHAITHANNYA, NEAR 4/1 BUS STOP, PONNIAM WEST, PIN – 670 641, THALASSERY TALUK, KANNUR DISTRICT. - 4 K. P. RADHAKRISHNAN S/O. RAGHAVAN, LAKSHMI BHAVAN, PONNIAM WEST, WARD NO.14, HOUSE NO.XIV 340, THALASSERY TALUK, KANNUR DISTRICT - 670 641. - 5 P. JAYANANDAN S/O. GOVINDAN, SIVALAYAM, HOUSE NO.XIV, 349, NEAR 4/1 BUS STOP, P. O. WEST PONNIAM, THALASSERY TALUK, KANNUR DISTRICT - 670 641. - BY ADVS. U.K.DEVIDAS - K.K.ANILRAJ ## RESPONDENT/S: - 1 DISTRICT COLLECTOR, COLLECTORATE ROAD, THAVAKARA, KANNUR DISTRICT – 670 002. - 2 ADDITIONAL DIVISIONAL MAGISTRATE COLLECTORATE ROAD, THAVAKARA, KANNUR DISTRICT – 670 002. - 3 SHAMEER THAZHEPEEDIKAYIL S/O. KUNHIMOITHEEN, PINARAYI, THALASSERY TALUK, KANNUR DISTRICT - 670 741. - 4 SUMITHRA KRISHNA W/O. SURESH, 136/7, ANNA NAGAR, MELTHALAYATTIMUNAL, UDHAGAMANDALAM, NILIGIRI DISTRICT, TAMILNADU - 643 001. - 5 HINDUSTAN PETROLEUM CORPORATION LIMITED (HPCL) RETAIL REGIONAL OFFICE, WEST HILL CHUNGAM, KOZHIKODE DISTRICT – 673 005, REP. BY CHIEF REGIONAL MANAGER. W.P.(C) No. 4318/2022 : 2 : 6 KATHIRUR GRAMA PANCHAYATH, KATHIRUR THALASSERY, KANNUR DISTRICT – 670 642, REP. BY ITS SECRETARY. BY ADVS. R3 & R4 BY SRI. R.SUNIL KUMAR R5 BY SRI. M.GOPIKRISHNAN NAMBIAR A.SALINI LAL K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN R1 & R2 BY SMT RESHMI-K.M., SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON 31.01.2023 DAY DELIVERED THE FOLLOWING: W.P.(C) No. 4318/2022 : 3 : ## **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). No. 4318 of 2022 --------------------------------------------------------Dated this the 31[st] day of January, 2023. ## **JUDGMENT** This writ petition is filed by the petitioners, who are allegedly aggrieved by Exhibit P8 order and Exhibit P9 ‘No Objection Certificate’ (NOC) dated 10.11.2021 issued by the Additional District Magistrate, Kannur to M/s. Hindustan Petroleum Corporation Limited—respondent No.5 under Rule 144 of the Petroleum Rules, 2002 (‘Rules, 2002’ for short) for starting a retail petroleum outlet allotted to respondent No.4. 2. Brief material facts for the disposal of the writ petition are as follows: The petitioners, who are residents within the limits of the Kathirur Grama Panchayat, have filed Exhibit P1 complaint before the District Collector, Kannur stating that they are nearby residents of the proposed outlet for the past more than 25 years and therefore, if the NOC is given to the petroleum company, it will affect their safety, since the company is not maintaining the distance as required under the provisions of the Rules, 2002. Various other contentions are raised with respect to the inconvenience that may occur to the petitioners due to the W.P.(C) No. 4318/2022 : 4 : installation of the petroleum outlet. It is also the contention of the petitioners that O.S. No. 408 of 2019 is pending before the Munsiff’s Court, Thalassery against the respondents and the copy of the complaint and commission report are produced in the writ petition as Exhibits P4 and P5 dated 13.12.2019 and 31.12.2019. 3. In fact, the 4[th] respondent has earlier filed W.P.(C) No. 17058 of 2021 before this Court seeking a direction to the District Collector to consider the application submitted under Rule 144 of the Rules, 2002 and the same was disposed of by Exhibit P6 judgment dated 17.08.2021 directing the respondents to consider and pass appropriate orders on the application for NOC. Pursuant to the same, Exhibit P8 order was passed and Exhibit P9 NOC was issued to the Petroleum Company. It is further submitted that even though various contentions are raised in the complaint with respect to the illegality in starting the proposed outlet, the said aspects were not considered by the District Collector in order to arrive at a conclusion before granting the ‘No Objection Certificate’. 4. It is also contended that a mandatory distance of 9 meters is to be maintained from the underground tank which is not available in the property in question and therefore, they seek interference with Exhibit P8 order and Exhibit P9 NOC issued by the Additional District Magistrate. W.P.(C) No. 4318/2022 : 5 : 5. The fifth respondent Oil Company has filed a detailed counter affidavit refuting the allegations. The prime contention advanced by the Company is that neither any public law element nor violation of any rights of the petitioners is involved, let alone fundamental rights in the subject matter of the writ petition and therefore, the petitioners have not made out a case for invoking the power under Article 226 of the Constitution of India. It is further contended that the petitioners have no locus standi to file a writ petition. 6. That apart, it is contended that this Court has, time and again, laid down the proposition that the neighbouring residents do not have the right to object to the establishment of a retail outlet, if all the necessary sanctions and permissions have been obtained according to law. Therefore, the contention of the Petroleum Company is that all requisite licences and clearances are secured from all the respective statutory authorities and therefore, the contentions advanced by the petitioners, contrary to the same, are baseless and unfounded. It is also stated that an outlet would be commissioned only after getting necessary statutory approvals from various Departments, including a ‘No Objection Certificate’ from the district authority and licence from the Petroleum and Explosives Safety Organization (PESO) under the Rules, 2002, the consent to W.P.(C) No. 4318/2022 : 6 : establish from the State Pollution Control Board, No Objection Certificate from the Fire and Rescue Department and other clearances from all competent authorities. 7. With respect to the facts of the case, it is submitted that in November, 2015, the Company had advertised for retail outlets at various locations in Kerala and the 4[th] respondent has been selected as a successful candidate for the instant location under the Scheduled Caste category. It was on the basis of a letter of intent issued to the 4[th] respondent for establishing the retail outlet, steps were taken to secure necessary clearances from all the statutory authorities. The 5[th] respondent has produced Exhibit R5(a) consent to establish issued by the Pollution Control Board dated 23.01.2020 and Exhibit R5(b) initial approval dated 01.02.2022 issued by PESO. It is also pointed out that the petroleum outlet, after securing all clearances from the aforesaid statutory authorities and others, has been commissioned on 15.03.2022. 8. The third respondent has filed a counter affidavit in line with the counter affidavit filed by the Petroleum Company and has also produced Exhibit R3(a) licence issued by the Ministry of Commerce and Industry, Petroleum and Explosives Safety Organisation, Government of India and Ext.R3(b) invoice for the purchase of high speed diesel respectively from the petroleum W.P.(C) No. 4318/2022 : 7 : company to demonstrate that already the business is commenced. 9. I have heard the learned counsel for the petitioners Sri.U.K. Devidas, learned Standing Counsel for the Petroleum Company Sri. Gopikrishnan Nambiar assisted by Smt. Ramola, Smt. A. Shalini Lal for the party respondent, learned Senior Government Pleader Smt. Reshmi K.M for the State officials, and perused the pleadings and material on record. 10. The sole question to be considered is whether any manner of interference is required to Exhibit P8 order and Exhibit P9 No Objection Certificate dated 10.11.2021 issued by the Additional District Magistrate under Rule 144 of the Rules, 2002. 11. On a perusal of Exhibit P8 order, it is clear that the District Magistrate has taken into account the contentions advanced by the petitioners with respect to the pendency of O.S. No. 408 of 2015 before the Munsiff’s Court, Thalassery against the setting up of the petroleum outlet. It is also taken note that the petitioners have raised objections against the grant of ‘No Objection Certificate’. However, the District Magistrate has found that none of the objections raised by the local residents will stand as per the Rules, 2002. It is also evident from Exhibit P8 order that permission is granted for the construction of storage tanks and petroleum outlet by imposing several conditions. The petitioners have no case W.P.(C) No. 4318/2022 : 8 : that any of the conditions contained in Exhibit P8 order dated 10.11.2021 is violated by the Petroleum Company or the party respondents. 12. Rule 144 of the Rules, 2002 empowers the District Magistrate to issue a ‘No Objection Certificate’ on the basis of the application for licence submitted under chapter VII of the Rules, 2002. Rule 144(1) specifies that 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. Various other parameters are prescribed under the sub-Rules thereto. 13. The petitioners do not have a case that neither the Petroleum Company nor the retail dealer has secured the ‘No Objection Certificate’ in violation of the parameters fixed under Rule 144 of the Rules, 2002. It is quite clear and evident from sub-Rule (1) of Rule 144 of the Rules, 2002 that the district authority has to W.P.(C) No. 4318/2022 : 9 : identify as to whether there is an objection to the proposed site in question. It is clear from Exhibit P8 order that the District Magistrate has visited the site and was convinced that the site is suitable for putting up the petroleum installations. 14. The learned Standing Counsel for the Petroleum Company has invited my attention to the judgment of a learned single Judge of this Court in _**Reliance Industries Ltd. v. Commissioner of Land Revenue**_ [2007(2) KLT 850] which considered the manner in which the application for NOC is to be dealt with by the district authority. So also, my attention was invited to a Division Bench judgment of this Court in _**Muhamed C**_ ## _**v. District Collector, Malappuram & others**_ [judgment dated 09.11.2021 W.A. No. 1463 of 2021 reported in MANU/KE/2804/2021] (to which I am party), wherein it was found that unless and until a statutory right is established to object to the NOC, such objections cannot be sustained under law. It is also held therein that the statute does not prescribe any criteria to secure a No Objection Certificate from a neighboring property owner. ## 15. In **C. Albert Morris v. K. Chandrasekaran** , (2006) 1 SCC 228], the Apex Court had occasion to consider the issue and held that while granting NOC, the Collector is not concerned about the ownership of the land; that he is concerned about the location W.P.(C) No. 4318/2022 ## : 10 : of the land and its suitability as a place for storage of petroleum; and that Rule 144 which 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 NOC. ## 16. The Andhra Pradesh High Court, in _**Vijaya Oil Company**_ ## _**v. Vijayawada Guntur Tenali Urban Development Authority**_ _**and Ors**_ [2007(1) ALT 398, had occasion to consider the issue visa-vis Rule 151 of the Petroleum Rules, 1976 and it is held thus: “26. ...It is needless to say that when an authority exercised statutory power, the authority is guided by the provisions of the concerned statute and the Rules made thereunder and even if an element of discretion marginally may have to be given while exercising such powers to such competent authority, the same to be within the permissible limits and such action must stand to reason. Here is a case where the Company in question had obtained all the approvals inclusive of the 'No Objection Certificate' and at this distant point of time on the ground that certain objections had been raised, either on the ground of health hazard or on the ground of environmental problem, fire safety problem and the other like problems, which are more or less general in nature, the first respondent is not justified in making such impugned order. It is true that the impugned order is a lengthy order but devoid of any statutory infraction or violation. Hence, this Court is satisfied that the discretion was not exercised in right perspective by the first respondent while making the impugned order and in view of the same, this Court is of the considered opinion that even if the language of Rule 151 W.P.(C) No. 4318/2022 : 11 : of 1976 Rules is taken into consideration, this Court is of the considered opinion that the writ petitioner is bound to succeed.” 17. Having evaluated the rival submissions, I am of the considered opinion that except making blunt statements in the writ petition, the petitioners have not established any case that they have a statutory right to object to the issuance of NOC and seek cancellation of the same and the order passed by the district authorities. Even though it is stated in the writ petition that a distance of 9 meters is to be maintained from the neighbouring property to put up the petroleum installations, the learned counsel could not point out any specific rule with respect to the same. Even if contentions other than statutory requirements are raised by any objector, the authority is duty bound to confine his findings to the matters entrusted under law. Therefore, merely because the neighbours have objected on the ground of not maintaining adequate distance from the boundary, the authority was right in ignoring the same, since there is no prescription under law to adhere to any distance rule by the company and the dealer. 18. I also find that, apart from the ‘No Objection Certificate’ under Rule 144 of the Rules, 2002, the Petroleum Company/dealer has secured necessary clearances/licences from all the respective statutory authorities before the outlet was put into operation. W.P.(C) No. 4318/2022 : 12 : Therefore, considering the facts and circumstances, and the law, I do not think, the petitioners have made out any case of arbitrariness or illegality or other legal infirmities justifying interference of this Court under Article 226 of the Constitution of India. Needless to say, writ petition fails and accordingly, it is dismissed. sd/- **SHAJI P. CHALY, JUDGE.** Rv W.P.(C) No. 4318/2022 : 13 : ## **APPENDIX OF WP(C) 4318/2022** |PETITIONERS’EXHIBITS:|| |---|---| |Exhibit P1|TRUE COPY OF THE COMPLAINT DATED NIL FILED BY| ||THE PETITIONERS AND OTHERS.| |Exhibit P2|TRUE COPY OF THE LAWYER NOTICE DATED| ||25.11.2019.| |Exhibit P3|TRUE COPY OF THE REPLY LAWYER NOTICE DATED| ||02.12.2019.| |Exhibit P4|TRUE COPY OF THE PLAINT DATED 13.12.2019 IN| ||O.S.NO.408/2019 ON THE FILES OF THE MUNSIFF| ||COURT, THALASSERY.| |Exhibit P5|TRUE COPY OF THE COMMISSION REPORT DATED| ||31.12.2019 IN O.S.NO.408/2019 ON THE FILES OF| ||THE MUNSIFF COURT, THALASSERY.| |Exhibit P6|TRUE COPY OF THE JUDGMENT DATED 17.08.2021 IN| ||WPC NO.17058 OF 2012 BY THE HON'BLE COURT.| |Exhibit P7|TRUE COPY OF THE OBJECTION DATED 10.09.2021| ||BEFORE THE SECOND RESPONDENT.| |Exhibit P7(a)|TRUE COPY OF THE OBJECTION DATED 30.09.2021| ||BEFORE THE SECOND RESPONDENT.| |Exhibit P8|TRUE COPY OF THE ORDER DATED 10.11.2021 IN| ||ORDER NO.DCKNR/8284/2019 PASSED BY SECOND| ||RESPONDENT.| |Exhibit P9|TRUE COPY OF THE NO OBJECTION CERTIFICATE| ||DATED 10.11.2021 PASSED BY THE SECOND| ||RESPONDENT.| |Exhibit P10|TRUE COPY OF THE APPLICATION FOR NO OBJECTION| ||CERTIFICATE DATED 02.08.2019 FILED BY THE FIFTH| ||RESPONDENT.| |RESPONDENTS’EXHIBITS:|| |Exhibit R3(A)|COPY OF THE PESO LICENSE DATED 14.3.22.| |Exhibit R3(B)|COPY OF THE BILL SHOWING THE PURCHASE OF FUEL.| |Exhibit R5(a)|TRUE COPY OF THE CONSENT TO ESTABLISH DATED| ||24.1.2020 ISSUED BY THE KERALA STATE POLLUTION| ||CONTROL BOARD.| |Exhibit R5 (b)|TRUE COPY OF THE INITIAL APPROVAL DATED| ||1.2.2022 ISSUED BY PESO| True Copy PS to Judge. rv