Thomas Tom v. Indian Oil Corporation Ltd.

WP(C) NO. 1026 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** ## **WP(C) NO. 1026 OF 2021** ## **PETITIONER/S:** THOMAS TOM AGED 35 YEARS S/O. THOMAS ZACHARIA, VELLOOKKUNNEL HOUSE, CHINNAKKANAL, IDUKKI. BY ADVS. DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR **RESPONDENT/S:** 1 INDIA OIL CORPORATION LTD. COCHIN DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P. O., ERNAKULAM - 682 036., REPRESENTED BY ITS DEPUTY GENERAL MANAGER. 2 ADDITIONAL DISTRICT MAGISTRATE KUYILIMALA, PAINAV P. O., IDUKKI - 685 603. 3 DISTRICT COLLECTOR KUYILIMALA, PAINAV P. O., IDUKKI - 685 603. 4 ADDL R4, THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 ADDL R4 IS IMPLEADED AS PER ORDER DATED 16-02-2021 IN IA 2/2021 IN WP(C)1026/2021. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SMT.DEEPA NARAYANAN, SR.GOVERNMENT PLEADER, SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1026 OF 2021 2 **P.V.KUNHIKRISHNAN, J -------------------------------------------W.P.(C.) No.1026 of 2021 -------------------------------------Dated this the 5[th] day of October, 2021** ## **JUDGMENT** The above writ petition is filed mainly challenging Ext.P13 order passed by the Addl. District Magistrate, Idukki, by which an application for NOC (No Objection Certificate) from the 1[st] respondent is rejected. The brief facts are like this. The petitioner is a successful allottee to establish and run a retail outlet of Petrol and Diesel in Chinnakkanal Panchayat and it was allotted by the 1[st] respondent, Indian Oil Corporation under the Kisan Seva Kendra Dealership scheme. The property offered by the petitioner for establishing the outlet, is a property with an extent of 15 cents comprised in Survey No.20/1 of Chinnakkanal Village, Udumbanchola Taluk, Idukki District. The above property is standing in the name of Eon Energies, Suryanelli, Chinnakanal, a partnership firm in which the petitioner is also a partner. It is the case of the petitioner that the predecessor-in-interest of the property WP(C) NO. 1026 OF 2021 3 of the petitioner obtained the same as assigned by the Government, vide proceedings in LA No. 36/1964 issued by the Special Tahsildar, Nedumgandam. The 2[nd] respondent, the Addl.District Magistrate dismissed the No Objection Certificate noting that the property in which the outlet is going to be started, is a property obtained as per Land Assignment Act and it cannot be used for any other purpose. It is further stated that it can be used only for cultivation and beneficial enjoyment. Aggrieved by Ext.P13 order, this writ petition is filed. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent and the learned Government Pleader. 3. The counsel for the petitioner reiterated his contentions in the writ petition. The counsel submitted that the area where the proposed outlet is going to start is an area, where there is no petrol pump. The public has to travel about 30 kms to reach a petrol pump. There is a public interest also, as far as the establishment of this outlet is concerned. The counsel submitted that the duty of the Addl.District WP(C) NO. 1026 OF 2021 4 Magistrate, while considering an application for no objection is clearly narrated in Rule 144 of the Petroleum Rules, 2002 (for short “the Rules”). The counsel also relied the judgment of this Court in **Reliance Industries Ltd. v. Commissioner of Land Revenue** [2007 (2) KLT 850]. The counsel submitted that the 2[nd] respondent went beyond the jurisdiction, while passing Ext.P13 order. The counsel submitted that Ext.P13 order is unsustainable. 4. The learned Government Pleader submitted that, the property can be used only for cultivation and beneficial enjoyment. That is why Ext.P13 order is passed. The Government Pleader also takes me through Ext.P16 Government Order passed by the Government. The Government Pleader also submitted that Ext.P16 is passed by the Government based on a direction from this Court. The Government Pleader submitted that there is nothing to interfere in Ext.P13 order. 5. The learned Standing Counsel for the 1[st] respondent also supported the case of the petitioner. The Standing Counsel takes me through Rule 161 of the Rules. The WP(C) NO. 1026 OF 2021 5 counsel submitted that the District Magistrate has no jurisdiction to go beyond the four corners of Rule 144 of the Rules. 6. I considered the contentions of the petitioner and the respondents. Ext.P13 is an order passed by the 2[nd] respondent in an application submitted by the 1[st] respondent for No Objection under Rule 144 of the Rules. It will be better to extract Rule 144 of the 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 license other than a license in Form 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 license for the site proposed and the District Authority shall, if he sees no objection, grant such certificate in the proforma specified in sub-rule (7), to the applicant who shall forward it to the licensing authority with his application in Form IX. [Note. — The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence.] (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. WP(C) NO. 1026 OF 2021 6 (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) 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 license which has been applied for should not, in his opinion, be granted, such license 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. (6) Where the location of storage of petroleum is within the notified area of a Port or Airport under the control of the state, or establishment of Indian Space Research Organisation or Department of Atomic Energy, NO OBJECTION CERTIFICATE from the District Authority referred to in sub-rules (1) to (5) shall not be required: Provided that consent for establishment of petroleum storage from the competent authority of concerned notified area or head of the establishment, as the case may be, is obtained. (7) The district authority shall issue a no objection certificate in the following proforma, namely:- ## PROFORMA ## NO OBJECTION CERTIFICATE (See rule 144) WP(C) NO. 1026 OF 2021 7 No................... Date................ Subject:-No objection certificate With reference to the application No...... .dated........submitted by..........and in pursuance of rule 144 of the Petroleum Rules, 2002, there is no objecton for granting licence under the Petroleum Rules, 2002 to Shri/Smt./M/s...........address.........for storage of petroleum products in their premises at Survey No......../Gat No......./Khasra No...........Plot No............Village..........Taluka/Tehsil......... District... .State.. ......as shown in the site plan duly endorsed and enclosed herewith. (1) The following particulars have been considered while issuing this no objection certificate, that- (a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b) interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning; (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f) genuineness of purpose. (g) any other matter pertinent to public safety; WP(C) NO. 1026 OF 2021 8 Signature of the district authority issuing no objection certificate with his office seal (in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police and for any other place the District Magistrate) Note.— The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence.)” 7. The point to be decided while submitting an application for No Objection under Rule 144 of the Rules, is considered by this Court in **Reliance Industries Ltd's** case (supra). Paragraph No.17 of the above judgment is extracted hereunder : “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. 8. This Court, in the above judgment clearly stated that the District Authority to see, or not, any objection to WP(C) NO. 1026 OF 2021 9 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. It will be beneficial to extract Rule 161 of the Petroleum Rules also. "161. **Executive control over authorities** . -Every authority other than the Central Government, acting under this Chapter, shall perform its duties subject to the control of the Central Government: Provided that nothing in this rule shall be deemed to affect the powers of executive control of the Chief Controller over the officer subordinate to him." 9. Rule 161 of the Rules says that every authority other than the Central Government acting under this Chapter, shall perform its duties, subject to the control of the Central Government. From the above Rule also, it is clear that the State Government has no control over the issuance of licence in a petroleum retail outlet. They can only see whether a No Objection can be given and that also, within the four corners mentioned in Rule 144 of the Petroleum Rules. Whether there is any violation of Land Assignment Rules or whether there is any violation of any other Government Order is an independent jurisdiction to the authority concerned as per the Land Assignment Act and Rules. If any such proceedings are WP(C) NO. 1026 OF 2021 10 initiated against the petitioner by the statutory authorities, the petitioner has got statutory remedies. If such points are considered by the 2[nd] respondent while considering an application for NOC under Rule 144, it will prejudice the interest of the petitioner because, there is no statutory appeal against an order passed under Rule 144. The 2[nd] respondent has to consider an application for NOC invoking the powers within the four corners of Rule 144 of the Petroleum Rules. I think, Ext.P13 order is not in accordance to law. It is a fact that all other authorities granted NOC and that is mentioned in Ext.P13 itself. According to me, it is a matter to be reconsidered by the 2[nd] respondent. Therefore, this writ petition is allowed. 1) Ext.P13 is set aside. - 2) The second respondent is directed to reconsider the matter, as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment. Sd/- ## **P.V.KUNHIKRISHNAN** **JUDGE** SKS WP(C) NO. 1026 OF 2021 11 ## **APPENDIX OF WP(C) 1026/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTIFICATION BY THE FIRST RESPONDENT DATED NIL. EXHIBIT P2 TRUE COPY OF THE LETTER OF INTENT ISSUED BY THE FIRST RESPONDENT DATED 22.11.2019. EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.1221/2018 OF SRO, RAJAKUMARI DATED 28.07.2018. EXHIBIT P4 TRUE COPY OF THE L.A.NO.36/1964 DATED 15.09.1965. EXHIBIT P5 TRUE COPY OF THE RESOLUTION DATED 15.09.2018. EXHIBIT P6 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 29.02.2020. EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 15.09.2020 BY THE EXECUTIVE ENGINEER, PWD. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 09.03.2020 ISSUED BY REGIONAL FIRE OFFICER, ERNAKULAM. EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 04.04.2020 ISSUED BY THE DISTRICT SUPPLY OFFICER, IDUKKI. EXHIBIT P10 TRUE COPY OF THE DECISION OF THE CHINNAKKANAL GRAMA PANCHAYATH DATED 05.09.2020. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 29.09.2020 ISSUED BY HARRISON MALAYALAM LIMITED TO THE SECOND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 29.09.2020 ISSUED BY MONTFORT SCHOOL TO THE SECOND RESPONDENT. EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS DATED 24.11.2020 INITIATED BY THE SECOND RESPONDENT. EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS OF THE FIRST RESPONDENT DATED 15.09.2017. EXHIBIT P15 TRUE COPY OF THE POLICY CIRCULAR ISSUED BY THE FIRST RESPONDENT DATED 2/11/2004 EXHIBIT P16 TRUE COPY OF THE G.O(MS) NO.269/2019 REVENUE DEPARTMENT DATED 22/8/2019.