National Green Tribunal
A.Vijayan vs District Collector on 1 July, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.6:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.167 of 2020 (SZ)
IN THE MATTER OF
A. Vijayan
S/o. Ayyakutty,
Carol & Bharat Villai,
Vijayapuram,
Kirathoor Post,
Kanyakumari District.
...Applicant(s)
Versus
The District Collector
Kanyakumari District,
Nagercoil and Ors.
....Respondent(s)
For Applicant(s): None.
For Respondent(s): Dr. D. Shanmuganathan for R1 to R3.
Mr. S. Sai Sathya Jith for R6
Mr. Abdul Saleem and
Mr. S. Saravanan for R4 & R5.
Mr. C. Godwin and
Mr. A. Maheshnath for R7.
Judgment Pronounced on: 01st July, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.167/2020 (SZ) 01st July 2022. Mn.
Page 1 of 37 Item No.6:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.167 of 2020 (SZ)
IN THE MATTER OF
A. Vijayan
S/o. Ayyakutty,
Carol & Bharat Villai,
Vijayapuram,
Kirathoor Post,
Kanyakumari District.
...Applicant(s)
Versus
1. The District Collector
Kanyakumari District,
Nagercoil.
2. The District Revenue Officer
Collectorate Office,
Kanyakumari District,
Nagercoil.
3. The Revenue Divisional Officer
Vilavancode Taluk,
Thuckalay,
Kanyakumari District.
4. The Deputy General Manager
Indian Oil Corporation Limited,
Southern Region,
Indian Oil Bhavan,
No. 139, Mahatma Gandhi Road,
Nungambakkam High Road,
Chennai - 600 034.
5. The Divisional Manager
Indian Oil Corporation,
Kappallur, Madurai.
6. The District Environment Engineer
Tamil Nadu Pollution Control Board,
Water Tank Road,
Nagercoil, Kanyakumari District.
Page 2 of 37
7. Antony Vijayan
S/o. Singarajan,
Kalingarajapuram,
Vallavilai,
Kollemcode Post,
Kanyakumari District.
....Respondent(s)
For Applicant(s): None.
For Respondent(s): Dr. D. Shanmuganathan for R1 to R3.
Mr. S. Sai Sathya Jith for R6
Mr. Abdul Saleem and
Mr. S. Saravanan for R4 & R5.
Mr. C. Godwin and
Mr. A. Maheshnath for R7.
Judgment Reserved on: 28th March, 2022.
Judgment Pronounced on: 01st July, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes/No Whether the Judgment is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The above application was filed by the applicant alleging that Respondents No.4 & 5 had floated tender for establishing the Petroleum Retail Outlet in Re Survey No.657/7 and 657/8A of Kollencode Village, Vilavancode Taluk, Kanyakumari District which was owned by the 7th Respondent who is the successful bidder for establishing the Petroleum Retail Outlet.
Page 3 of 372. According to the applicant, the place for Petroleum Retail Outlet was selected against the siting criteria provided by the CPCB by their Circular dated 16.01.2020. It is situated within 8 Meters from the residential house of the applicant. They have not obtained necessary permission for construction of the Petroleum Retail Outlet from the local body and other authorities. There is every possibility of emission of toxic materials from the fuel station at the time of loading and unloading and refuelling process which will have impact on the environment and affect the health of the people. The International Agency for Research on Cancer and the United States Environmental Protection Agency observed that the Petroleum Retail Outlet and immediate surrounding is affected by emission stemming from the evaporated fuels which are unburnt fuel, during fuel loading and unloading operation, refuelling and liquid spillages. The maximum distance of influence is nearly 100 meters, even though the average distance of contamination is around 50 meters. Airborne organic components of petroleum such as Benzene, increase a risk of cancer. Due to liquid spillage, mainly health of the children is affected. Apart from headache, nausea, eye irritation and dizziness, it will impact the residents due to contamination of liquid unburnt petroleum within 50 meters radius. Within 50 meters radius of the proposed Petroleum Retail Outlet, many residential houses and matriculation schools are situated.
3. The applicant submitted a representation dated 04.03.2020 by registered post to the respondents enlightening the above facts. Only the 6th Respondent gave reply dated 12.06.2020 confirming the safety measure distance is 50 meters. The other respondents neither initiated any action nor sent any reply instead the 7th Respondent was in hasty to get permission for running the Petroleum Retail Outlet with the aid of Respondents No.1 to 3 and in this connection, Respondents No.5 & 6 are shouldering to get permission and install the retail outlet in violation of the said guideline. Respondents No.1 to 6 are bound to safeguard the health of the citizen including the applicant and his family.
Page 4 of 374. It is further alleged in the application that the applicant herein filed a writ petition before the Hon‟ble High Court of Madras at Madurai Bench as W.P. (MD) No.8606 of 2020 to issue a writ of mandamus directing the Respondents No.1 to 6 restraining the establishment of Petroleum Retail Outlet within 50 meters in Re Survey No.657/7 and 657/8A of Kollencode Village, Vilavancode Taluk, Kanyakumari District adjacent to the applicant‟s residential house, on the basis of the guidelines given by the CPCB dated 16.01.2020. On 04.08.2020, the Hon‟ble High Court of Madras at Madurai Bench dismissed the said writ petition with observation that the writ petitioner/applicant herein has option of moving the National Green Tribunal, since the applicant alleged the involvement of pollution being caused on account of establishing the Petroleum Retail Outlet within the safety distance provided.
5. That prompted the applicant to file this application seeking following interim as well as main relief:-
"Interim Relief:
(i) An interim injunction restraining the respondents 1 to 6 from permitting the 7th Respondent to establish the petroleum retail outlet in Re survey No. 675/7 and 675/8A of Kollencode village, Vilavancode Taluk of Kanyakumari District
(ii) And pass such further order or orders as this Hon‟ble Tribunal may deem fit and proper in these circumstances of the case.
Main Relief:-
(i) Directing the respondents 1 to 6 not to permit the 7th respondent to establish the petroleum retail outlet of the guidelines of Central Pollution Control Board dated 16.01.2020 within 50 metres radius from the applicant‟s residential house situated at Re survey No. 675/7 and 675/8A of Kollencode village, Vilavancode Taluk of Kanyakumari District
(ii) Grant permanent injunction restraining the 7th respondent not to establish petroleum outlet in Re survey No. 675/7 and 675/8A of Kollencode village,Vilavancode Taluk of Kanyakumari District.
(iii) To pay the cost."
6. As per order dated 07.09.2020, this Tribunal admitted the matter and appointed a Joint Committee comprising of (i) the District Collector, Kanyakumari District or a Senior Officer not below the rank of Assistant Collector or Revenue Divisional Officer, as designated by the District Collector, (ii) a Senior Officer/Scientist designated by the Chairman of Tamil Nadu State Pollution Control Board to inspect the area in question Page 5 of 37 and submit a factual as well as action taken report, if there is any violation found. The Joint Committee was directed to ascertain as to whether there was any violation regarding the siting criteria as per the guidelines provided by the Central Pollution Control Board in respect of the establishment of the new petroleum outlets near residential area. The Joint Committee was also directed to give notice to the parties as far as possible so as to secure their presence at the time of inspection. The Tamil Nadu Pollution Control Board was designated as the nodal agency for co- ordination and for providing all necessary logistics for this purpose.
7. The 7th Respondent filed reply statement contending that the 5th respondent, Indian Oil Corporation had called for applications under Rural Development Scheme for the category of other backward classes for establishment of a Petroleum outlet in Kollencode Village Vilavankode Taluk on 25.11.2018. The 7th Respondent submitted his application along with others and he was selected as a successful bidder and award letter dated 05.04.2019 was issued in favour of the 7th Respondent for establishing the petroleum outlet in Kollencode village. The 5th respondent forwarded the award letter to the 2nd respondent/ District Revenue officer, Kanyakumari District to ascertain the feasibility of the site and for No Objection Certificate for establishing Petroleum Outlet in Survey Nos. 675/7 and 8A of Kollenkode B Village, Killiyoor Taluk. The 2nd respondent called for reports from the Superintendent of Police - Nagercoil, the Sub Collector - Padmanabhapuram, Tahsildar - Killiyoor Taluk, and the Divisional Fire officer - Nagercoil and received reports from them and also from the Tamil Nadu Pollution Control Board and issued a „No Objection Certificate' dated 15.06.2020 to the 5th respondent for establishing the petroleum outlet in Survey Nos. 675/7 and 8A of Kollenkode B Village, Killiyoor Taluk. The Petroleum and Explosives Safety Organization, Government of India had issued license for establishment of Petroleum Outlet to the 7th respondent on 31.08.2020. The 7th respondent had spent about Rs.70 lakhs including Rs.50 lakhs loan obtained from Federal Bank and established the Petroleum outlet and the same had commenced business on 01.10.2020. He denied the allegation that the petroleum outlet is situated within 8 meters from the Page 6 of 37 residential house of the applicant and no consent was obtained from the nearby residents and other departments including the Local Authority. The house of the applicant is more than 30 meters away from the outlet. The Survey No.675 Kollenkode B Village is having an area of 5 acres and 80 cents. There are 4 houses including the house of the applicant in the entire 5 Acres and 80 cents and three house owners have given consent affidavit for establishing the petroleum outlet. The house of the applicant is located 8 meters from the compound wall of the petroleum outlet. Apart from this 10 feet lane is passing through between the compound wall of the applicant and the compound wall of the 7th respondent property. The area in which the Petroleum outlet is established is neither classified as residential area nor commercial area by the Local Authority. He denied the allegation that within the distance of 50 meters radius of the petroleum outlet, many residential houses and Matriculation School is situated. There was no school, hospital and residential complex situated within the radius of 50 meters from the petroleum outlet. They installed VRS, even though the same is not required since the sale of petroleum products from this outlet is less than 5 loads per month. A mass representation dated 15.03.2020 by the locals were made to the authorities welcoming the establishment of petroleum outlet in Kollenkode B village. The local body has issued a certificate that the area in which the petroleum outlet is established is not classified as residential area or commercial area which was produced along with the counter. As per CPCB guidelines, new petrol pumps cannot be established within 50 meters radius of a school, hospital or residential area and there was no school, hospital and residential complex situated within 50 meters radius from the Petroleum outlet. The applicant has filed this application because of his business rivalry at the instance of the nearby petrol pump owner and as such, there is no bonafide on the part of the applicant in filing the application and as such, the application is not maintainable. So, he prayed for accepting their contentions and dismissal of the application.
Page 7 of 378. Respondents No.4 & 5 filed reply statement contending that the application is not maintainable and the applicant has no bonafides in filing the application. They denied most of the allegations made in the application. The subject retail outlet is located in the unclassified Zone/Area which is neither a residential nor a commercial zone as designated by the local authority as stipulated in the Office Memorandum of the Central Pollution Control Board. There were no schools or hospitals located within the 200 metres distance from the subject retail outlets, which is evident from the Proceedings of the Kollencode Local Authority in its Letter bearing Na. Ka. No. 52/2020/B1 dated 20.03.2020. The subject retail outlet is established in conformity with siting criteria prescribed by the Central Pollution Control Board in Clause "H" of the Office Memorandum No.B-13011/1/2019- 20/AQM/10802-10847 dated 07.01.2020 which reads as follows:-
"H. Siting criteria of retail Outlets:
In case of siting criteria for petrol pumps new Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/dispensing units/vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws. In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case the distance between new retail outlet from schools, hospitals (10 beds and above) and residential area designated as per local laws shall be less than 30 meters. No high tension line shall pass over the retail outlet."
9. It is clear from the above clause that the new Retail Outlets shall not be located within a radial distance of 50 meters from schools, hospitals and residential areas designated as per local laws. However, in the present case, no hospitals, schools are located within 200 metres and the said area is also classified by the local authority as "Unclassified Zone/Area". So, there was no violation whatsoever in establishing the subject Retail Outlet by this Respondent. The Government of Tamil Nadu had issued G.O. Ms. No. 1730, Rural Development and Local Administration Department dated 24.07.1974, wherein urban areas are classified into six zones and zoning regulations on use of land and building were prescribed. As per the Appendix on Use Zone Regulations, S.No.11 of Zone 1(b) i.e., Mixed Residential use zone, wherein operation of Petrol filling and Service Page 8 of 37 Stations are permitted. Apart from the above, the Government of Tamil Nadu enacted the Tamil Nadu Combined Development and Building Rules, 2019, wherein the construction and operation of fuel filling stations i.e., petroleum retail outlet in both residential and commercial zones are permitted and the relevant provision is reads as follows:
"33. Zoning Regulations:
The Zoning Regulations shall comprise of Residential use zone, Commercial use zone, Industrial use zone, Special and Hazardous use zone, Institutional use zone, Open Space and Recreational use zone, Urbanisable use zone and Agricultural use zone and the activities permissible in each use zone are provided in Annexure - XVIII.
Annexure - XVIII [See rule 33] Zoning Regulations Residential use zone (1) In this zone buildings or premises shall be permitted only for the following purposes and accessory uses. Permissible non residential activity shall be limited to one in a sub-division.
xxi) Fuel filling stations, and automobile service stations with installation not exceeding 30 HP.
Commercial use zone (1) In this zone, buildings or premises shall be permitted only for the following purposes and accessory uses:
iii) Fuel filling stations, automobile service stations and workshops with installation not exceeding 50 HP".
10. It is further contended that prior to establishment of the subject retail outlet, all necessary prior permissions/licenses were obtained from the competent authorities and necessary safety measures were duly undertaken in order to avoid any harm to the public. The District Revenue Officer and PESO issued "No Objection Certificates" for the subject retail outlet. Further, the District Revenue Officer, Kanyakumari had sought clearance from the Tamil Nadu Pollution Control Board for the subject outlet, however, the Tamil Nadu Pollution Control Board has replied that "Automobile Fuel Outlets" are exempted from the purview of Consent Management. So, there was no flouting of any rules in setting up of Retail Outlet by the respondent. In respect of vapour emission and harmful effects, they proposed to install PV Valve (Pressure Vacuum Valve) in all MS Tanks to avoid escape of vapours. Further, it is in practice that "Sealed Parcel Decantation System" with camlock coupling will be installed where vapour emission or oil leakage is very minimal. All these efforts to safeguard of environment are being taken up while installing a new retail outlet by the respondent without any default. The Page 9 of 37 emission of vapours will be harmful only if they exceed threshold limit. Such high vapour emissions are expected only in 100 KL and above MS selling Retail Outlets. This respondent is coming up with Vapour Recovery System (VRS) at all such Retail Outlets as per the guidelines issued by the Ministry of Petroleum and Natural Gas (MOPNG). Thus mere installation of a retail outlet will not create air pollution/water pollution. The District Revenue Officer, Kanyakumari had issued NOC for setting up of retail outlet after careful consideration of facts and also with personal visit to the site. The retail outlet is set up by following all the norms/rules as prescribed by the Central Pollution Control Board (CPCB) by way of an Office Memorandum in B-13011/1/2019 20/AQM/10802 - 10847 dated 07.01.2020. They obtained all the necessary clearances from the statutory authorities before the establishment and operation respectively of the present project as mandated under law. There was no environmental violation committed by them and they are making all necessary steps to protect environment and avoid any damage being caused to the environment as apprehended by the applicant. The applicant had approach the Tribunal with vested interest and there was no public or environment interest involved in the present case. So, they prayed for dismissal of the application.
11. The District Collector filed reply in the form of report in tune with report submitted by the Joint Committee. He had reiterated the contention of the report submitted by the Joint Committee and as such, we are not further reiterating the same. It is further mentioned therein that the site in question is not classified as „residential area‟ or „commercial area‟ as informed by the Executive Officer, Kollenkode Town Panchayat vide their letter dated 20.03.2020 as furnished by the unit. According to the District Collector, NOC was issued only after considering all the aspects and there is no violation committed in issuing the NOC.
12. The Joint Committee has filed the report after conducting inspection of the area on 23.10.2020 pursuant to the order issued by this Tribunal and made the following observations and recommendations:-
"Joint Committee Report submitted to Hon'ble National Green Tribunal (SZ) with respect to its order dated 07/09/2020 in O.A. No. 167 of 2020 (SZ) filed Page 10 of 37 by Thiru. A. Vijayan, Slo Avyakutty, Carol & Bharat Villai, Vijayapuram, Kirathoor Post, Kanyakumari District xxx xxx xxx Accordingly, the joint committee comprising of the Sub Collector, Padmanabhapuram, Kanniyakumari District as nominated by the District Collector, Kanniyakumari District and the District Environmental Engineer, Tamilnadu Pollution Control Board, Nagercoil had inspected the petrol pump site at Survey No. 675/7 & 675/8A, Kollencode 'B' Village, Killiyoor Taluk, Kanyakumari District on 23/10/2020 in the presence of Thiru. K. Chandar, Senior Manager (Retail Sales), Indian Oil Corporation Limited, Madurai Division, Thiru. A. Vijayan (Applicant), Slo Ayyakutty, Carol & Bharat Villai, Vijayapuram, Kirathoor Post, Kanyakumari District and Thiru. Antony Vijayan (Respondent unit), S/O Singarajan, Kalingarajapuram, Vallavilai, Kollencode Post, Kanyakumari District and the following observations were made.
Observation of the Joint committee:
1. The proposed petroleum retail outlet owned by Thiru. Antony Vijayan obtained dealership with IOCL and the site was located at Kirathoor, Kollencode 'B' Village, Killiyoor Taluk, Kanyakumari District.
2. The unit has installed 2 Nos. of underground storage tanks of capacity 20 KL each (one for Diesel and other for Petrol storage).
3. The unit has provided necessary fire fighting equipments.
4. The unit has installed 2 Nos. of fuel dispensing equipment.
5. The site of the unit is surrounded by the following topography.
North - Residences South - Residence & Coconut Farm East - Road connecting Nithiravillai & Kollencode & Residence West - Vacant land & a residence
6. The total area of the site is 1103 sq.m.
7. The boundary of the residence located in the North, South & East, is at a distance of about 18 m, 13.51 m & 17.7 m from the fuel dispensing unit respectively.
8. The siting criteria as specified by the CPCB in O.M. No. B- 13011/1/2019-20/AQM/10809 dated 07/01/2020 has issued guidelines for setting up new petrol pump in compliance of Hon'ble NGT order dated 18/01/2019 in O.A. No.86/2019: Gyanprakhash @ Pappu Singh Vs Gol & ors in which the siting criteria states that New Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/dispensing units/vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws.
In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case the distance between new retail outlet from schools, hospitals (10 beds and above) and residential area designated as per local laws shall be less than 30 meters. No high tension line shall pass over the retail outlet.
As per CPCB letter No. B-29016/ROGW/IPC-VI/2020-21 dated 30.04.2020 enclosed in Annexure II with the list of non-industrial operations states that the Automobile fuel outlets (only dispensing) facility is exempted from the purview of Consent Management.
9. No high tension TNEB line passes over the proposed site and only a TNEB Transformer is located to the eastern side of the unit site on the other side of the existing road.
Page 11 of 3710. The unit has obtained approval/permission from the Dy. Controller of Explosives, Petroleum and Explosive Safety Organisation (PESO) vide letter dated 31.08.2020 for storage of petroleum Class A in bulk - 20 KL and petroleum Class B in tank - 20 KL as furnished by the unit.
11. The District Revenue Officer and Additional District Magistrate, Kanniyakumari District vide letter no. R.Dis. C1 / 36835 / 2019 dated 15.06.2020 has issued No Objection Certificate for the storage of petroleum products at Survey No. 675/7, 675/8 (Part), Kollencode B Village, Killiyoor Taluk, Kanyakumari District as furnished by the unit.
Recommendation of the Joint Committee
1. The area of the site is not classified as residential (or) commercial areas as informed by Executive Officer, Kollencode Town Panchayat vide his letter dated 20/03/2020 as furnished by the unit."
13. The applicant filed objection to the Joint Committee report stating that on the North, South and West are covered with the residential houses and the boundary of the residence located on the North, South and East is at distance of about 18m, 13.51m and 17.7 m from the fuel dispensing unit respectively. It was also revealed from the boundary on three sides that it is clustered with residential houses. Residential area is defined as "a land used in which housing predominates, as opposed to industrial area and commercial areas. This includes single family houses." The Panchayat Act did not define residential area. Hence, the classification of residential area is outside the jurisdiction of the panchayat. The Pollution Control Board guidelines provides the OMCs must ensure that new petrol pumps shall be located atleast 50 m away from the residential area. Consent Management is misconstrued and misapplied by the authority and oil marketing company. Consent for establishment and Consent for Operation are to be issued on getting NOC from the adjacent residents within 50 meters. So, he prayed for accepting their objections.
14. The matter was originally reserved for Judgement and it was reopened for the purpose of getting further details, as this Tribunal found that these details are required for proper adjudication as per order dated 10.02.2022.
15. After the case was reopened, on the basis of the queries raised by this Tribunal, Respondents No.4 & 5 filed additional reply statement contending that in the order reopening the matter dated 10.02.2022, this Tribunal felt that it is necessary to ascertain as to whether the condition of tender notice issued by the OMCs and the applications filed by them for Page 12 of 37 permission before the various authorities, whether anything was mentioned about the compliance of guidelines provided by IRC Circular No.12-2009 to ascertain as to whether there was any violation committed by them in this regard. Though the same is not applicable to the facts of this case and it is not related to any environmental issue, this Tribunal has no jurisdiction to interfere with the same. However, in compliance with the above direction, the respondents filed documents as directed and the same was considered by this Tribunal by order dated 08.03.2022 wherein it was observed as follows:-
"Further, they are also directed to file a statement regarding the applicability of the IRC Rules irrespective of the decision that has been relied on by them as to whether it is situated in the National Highway or in the State Highway and whether the tender condition contains this clause."
16. The reply statement and written arguments submitted by them be treated as part of additional statement. The applicant has not raised in the pleading or made any averment in the application in respect of violation of IRC Circular. The IRC is merely a guidelines issued by the IRC which is only a society registered under the Society Registration Act. So, those guidelines are not statutory in nature. IRC Guidelines mostly recommended practice for access permission for fuel stations, private properties, along the highways. The said retail outlet was established in Re Survey No.657/7 and 657/8A of Kollencode Village, Vilavancode Taluk, Kanyakumari District and the 7th Respondent had obtained necessary permission from the competent authority such as initial PESO license, local body, revenue department as per the prevailing rules and in accordance with law. The subject retail outlet is located on State Highway, however IRC Norms were not notified in State of Tamil Nadu, at the time of establishment of the retail outlet and as such, it was not applicable for the subject retail outlet. The subject retail outlet meets all safety norms as per PESO as well as CPCB for establishment of retail outlet. They would take care all safety norms and distance in establishing and operating the retail outlet. All due precautions and efforts will be made in dealing with the petroleum vapour as being done at thousands of retail outlets across the country. They reiterated the ill motive on the part of the applicant in filing the application. So, they prayed for dismissal of the application.
Page 13 of 3717. The applicant was not present since long time, heard the learned counsel appearing for respondents.
18. This case was taken along with Original Application Nos.22 of 2021 (SZ), 118 of 2021(SZ) and 176 of 2020 (SZ), as the common issue was in respect of establishment of Petroleum Retail Outlet in violation of the CPCB norms, but decided to be disposed of by separate Judgment, considering the nature of facts and circumstances raised in each case.
19. The learned counsel appearing for the State Pollution Control Board argued that their role is very limited, as it is not coming within the Consent mechanism under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, as Petroleum Retail Outlets were exempted as per the Circular issued by the CPCB. Further, since it is not a residential area, the distance criteria is not applicable as provided under the Circular relied on by the applicant. They will abide by any directions issued by this Tribunal in this regard.
20. The learned counsel appearing for the State Department argued that No Objection Certificate was issued after obtaining detailed reports from the Village Panchayat, Tahsildar, Sub Collector and the Pollution Control Board and making inspection of the site by the Revenue Divisional Officer who is the person to grant NOC and only on satisfaction that the siting criteria and other aspects are fulfilled, they have granted the NOC.
21. The learned counsel appearing for Respondents No.4, 5 & 7 argued that there was no violation of any of the environmental laws. There was no school/hospital situated within 50 meters from the petroleum retail outlet. The property is having an extent of more than 5 Acres and there are four residential houses including the house of the applicant situated in that property and the 7th Respondent had purchased the portion of the property and intended to establish a petroleum retail outlet, as in view of increase of use of vehicles, establishment of Petroleum Retail Outlet in that area is required in public interest. They have obtained all necessary permission and NOC. Except the applicant, other three house owners Page 14 of 37 have given consent and all safety measures have been provided to control the apprehended pollution that is likely to be caused on account of the operation of the petroleum retail outlet. Further, the IRC Rules are not applicable to this, as it was not adopted by the State Government. Further, it was only a guideline issued by a society which is not having any statutory force. The guidelines issued by the CPCB is also not having statutory force, as it was issued as required under Section 5 of the Environment (Protection) Act, 1986. In support of this, they have relied on the decision reported in Dr. B.L. Wadehra Vs. Union of India & Ors. (1996) 2 SCC 594, E. Tech Projects Private Limited Vs. State of Chhattisgarh 2018 SCC Online Chh 369, Gulf Goans Hotels Company Limited & Anr. Vs. Union of India & Ors. (2014) 10 SCC 673, Santhiyagu Vs. Union of India & Ors. reported in Original Application No.66 of 2016 dated 05.05.2017 of the National Green Tribunal, Principal Bench, New Delhi and Vijay Singh & Ors. Vs. State of U.P. & Ors. 2004 SCC Online ALL 1656.
22. The learned counsel appearing for Respondents No.4, 5 & 7 further argued that even as per the clarification issued by the CPCB dated 29.01.2021, the direction issued dated 07.01.2020 will not apply to petroleum retail outlets that have obtained initial PESO approval and have commenced construction prior to 07.01.2020. There is already a statute viz., Tamil Nadu Combined Development and Building Rules, 2019 enacted by the Government of Tamil Nadu published in Tamil Nadu Gazette on 04.02.2019, the establishment and operation of the Petroleum Retail Outlets were permitted in residential area without any restriction. Hence, the CPCB guidelines contrary to the above statute is not applicable as regards the State of Tamil Nadu is concerned. Further, the zoning regulations and the land classification issued by the State of Tamil Nadu vide G.O. (Ms.) 1730 Rural Development and Local Administration Department dated 24.07.1974 gave certain classification and in mixed residential use zone, operation of the petrol filling and service stations are permitted. Since it is not classified as „residential area‟ as per the local laws, the CPCB guideline is not applicable.
Page 15 of 3723. We have considered the pleadings, reports and written submissions made by the learned counsel for the parties and also perused the documents available on record.
24. The points that arose for consideration are:-
i. Whether there was any violation of the siting criteria committed in establishing the disputed Petroleum Retail Outlet in the disputed area?
ii. Whether the applicant is entitled to get any of the reliefs claimed in the application?
iii. If at all the disputed Petroleum Retail Outlet is permitted to continue in that area, what are all the further directions (if any) to be issued by this Tribunal to protect environment applying the "Precautionary Principle"?
iv. Relief and costs. POINTS:-
25. The grievance in this application is regarding establishment of Petroleum Retail Outlet by the 4th Respondent through 7th Respondent in Re Survey No.657/7 and 657/8A of Kollencode Village, Vilavancode Taluk, Kanyakumari District without a distance of 8 meters from the residential house of the applicant.
26. It is seen from the application that the applicant has filed a writ petition before the Hon‟ble High Court of Madras at Madurai Bench as W.P. (MD) No.8606 of 2020 against the establishment of this Petroleum Retail Outlet adjacent to the applicant‟s residential house against the guidelines issued by the CPCB dated 07.01.2020, but the same was dismissed by the Hon‟ble High Court, leaving open the right of the writ petitioner to approach the National Green Tribunal and accordingly, the present application was filed.Page 16 of 37
27. In this case, there is no school/hospital/residential complex situated within a distance of 50 meters, according to the 7 th Respondent and they were providing necessary VRS though it is not mandatory, considering the quantity that is likely to be sold from that unit.
28. Before going into the facts of the case and discuss about the facts and findings to be issued, we feel it appropriate to consider the circular issued and the precedents and the statutes relied on by the parties.
29. In the decision reported in St. Philomena Convent High School, Nashik through its Principal Sister Fatima Vs. Union of India through the Secretary, Ministry of Petroleum & Ors. reported in (2009) 111 Bom LR 1593 = (2009) 4 MhLJ 255, it has been held that when a particular distance has been provided under the Rules for establishment of Petrol Pump, then that must be strictly adhered to and no relaxation can be made in this regard. That was a case where there was a provision in the DCR that the minimum distance from the petrol pump to school must be 91.5 meters from the nearest gate of the school and in that case, it was observed that "the welfare of the students cannot be sacrificed on the altar of the developmental interest of the adjoining owner. An adjoining owner is free to develop his land in accordance with law. But when he chooses to house a hazardous establishment like a petrol filling station, the law steps in and tells him what distances must be maintained, if the safety of young children in schools is not to be compromised. Such a restriction is reasonable." and the relaxation granted by the Commissioner in that case was not proper and that was set aside and remitted to the Municipal Commissioner to reconsider the decision.
30. In the decision reported in Aditya N Prasad & Ors. Vs. Union of India & Ors. in Original Application No. 147 of 2016 (PB), the Principal Bench of National Green Tribunal, New Delhi by order dated 28.09.2018 observed that there is a possibility of pollution being caused on account of emission of fumes coming from the petroleum products which may contain Benzene, Toluene, Ethyl benzene and Xylene which are toxic in nature and if it is mixed with the ambient air, it may have impact on human Page 17 of 37 health and there is a necessity to provide Vapour Recovery System (VRS) to control the emission rate or to minimize the emission rate and directed the Oil Marketing Companies to install VRS with certain guidelines issued by the CPCB and this was confirmed by the Hon‟ble Apex Court in the appeal filed by the Oil Marketing Companies except granting time for implementing the directions.
31. In the decision reported in K.N. Shanmugam Vs. The Commissioner of Police, Trichy City Police Office, Tiruchirapalli & Ors. [W.P. (MD) No.5690 of 2019] dated 05.08.2019, the Hon‟ble High Court of Madras at Madurai Bench observed that before issuing NOC for establishment of Petroleum Retail Outlets under Rule 144 of the Petroleum Rules, 2002, the authorities must conduct an enquiry to ascertain various aspects, including whether the possession of the site is lawful, whether the interest of the public and the facilities like schools, hospitals, etc. are affected, the impact on traffic, conformity to local or area development planning, accessibility to site to fire tenders, other matter pertinent to public safety etc. and it must be reflected in the NOC issued and if there is no discussion and reasons given, then it cannot be said to be a valid order passed under Rule 144 (5) of the Petroleum Rules, 2002 and the NOC granted by the authority was set aside and the matter was remitted to the authorities for fresh consideration and for passing appropriate reasoned order. Based on that, further enquiry was conducted and the NOC granted earlier was cancelled by the issuing authority viz., Commissioner of Police, Thiruchirapalli by proceedings dated 10.02.2020.
32. The same view has been reiterated by the Hon‟ble High Court of Madras at Madurai Bench in W.P. (MD) Nos.19244 and 19830 of 2019 (Karthik Santhanam Vs. The Commissioner of Police, Trichy City Police, Thiruchirapalli & Ors.) dated 30.09.2019 and set aside the NOC granted and it was remitted to the authorities and on the basis of the remission order, the Commissioner of Police - Thiruchirapalli cancelled the NOC earlier granted for establishment of new Petroleum Retail Outlet.Page 18 of 37
33. Rule 144 of the Petroleum Rules, 2002 deals with the issuance of NOC wherein procedures have been provided and under Rule 144 (5) of the said Rules, the authority has to complete the enquiry of issuing NOC under Sub Rule 1 and complete the action for issue or refusal of NOC as the case may be as expeditious as possible but not later than 3 months from the date of the application.
34. Based on the said Rules, the Hon‟ble High Court of Madras at Madurai Bench observed that enquiry is not an empty formality and it must contain reasons for granting the same, but a different view was taken by the First Bench of the Hon‟ble High Court of Madras in W.P. No.4321 of 2020 and 2951 of 2022 (St. Mary's Matriculation Higher Secondary School, Sriperumbudur Vs. Secretary, Ministry of Petroleum, New Delhi & Ors.) dated 21.06.2022, wherein it was held that if it is reflected in the NOC granted regarding the reports obtained from various authorities to satisfy the things to be considered and it was answered as per the format given in Rule 144 (7) of the said Rules as amended from 10.08.2018, then it will be sufficient. Further, in that decision, it was held that the Code of Regulators for Play Schools, 2015 will be applicable to establishment of Play Schools and not in respect of establishment of Petroleum Retail Outlet, as it was governed by another special statute.
35. In the decision reported in E. Tech Projects Private Limited Vs. State of Chhattisgarh 2018 SCC Online Chh 369, the Hon‟ble High Court of Chhattisgarh observed that whether any direction issued against the statutory provision by way of an official memorandum will have any statutory background and certain guidelines issued by the CPCB in the year 2003 was not statutory in nature and as such, it will not give any effect too.
36. In the decision reported in Gulf Goans Hotels Company Limited & Anr.
Vs. Union of India & Ors. (2014) 10 SCC 673, the Hon‟ble Apex Court observed that the guidelines cannot be enforced unless shown to have acquired the force of law. To acquire such force of law, the guidelines concerned must satisfy minimum elements of law i.e. they must inter alia Page 19 of 37 possess a certain form, possessed by other laws in force encapsulate a clear mandate and disclose a specific purpose. Further, such guidelines claim to be a law need some authentication and must be notified or made public in order to bind citizens. Certain guidelines were issued by the Central Government on the executive side in 1983 - 1986 in respect of siting criteria was held to be contrary to the CRZ Notification and it cannot have any statutory force. The same view has been reiterated by this Bench in Original Application No.66 of 2016 (SZ) [Santhiyagu Vs. Union of India & Ors.] dated 05.05.2017 and the NOC granted was not bonafide if it is against the law prevails and the guidelines issued by the Board cannot be said to be a rigid and have to be relaxed on the basis of the technological advancement and scientific improvements in respect of various aspects. That was a case where the establishment of STP was challenged on the ground of siting criteria and considering the circumstances, the Tribunal also observed that the same cannot be said to be inflexible rule if the evident shows that on account of the technological advancement, there is no possibility of any pollution being caused and relaxation of siting criteria cannot be said to be invalid.
37. Regarding the validity of the executive orders, the learned counsel for the respondents also relied on the decision reported in Vijay Singh & Ors. Vs. State of U.P. & Ors. 2004 SCC Online ALL 1656 and Dr. B.L. Wadehra Vs. Union of India & Ors. (1996) 2 SCC 594.
38. The CPCB Guidelines were issued on the basis of the directions given by the Principal Bench of National Green Tribunal, New Delhi in Original Application No.31 of 2019(PB) (K. Sathyadevan Vs. Union of India & Ors.) and Original Application No.86 of 2019 (PB) (Gyanprakhash @ Pappu Singh Vs. Union of India & Ors.). In those two cases, the question regarding installation of VRS and also setting up of new Petroleum Retail Outlet was considered and the Tribunal by Order dated 01.04.2019, directed the matter to be finalized in consultation with the Ministry of Petroleum and Natural Gas, the siting guidelines, preventive measures and monitoring requirement and the timelines and feasibility report has to be finalized within three months. It is on that basis, further report was filed dated 08.07.2019, on the basis of the Expert Committee appointed Page 20 of 37 with the members of the CPCB, Ministry of Petroleum and Natural Gas, IIT Kanpur, NEERI, Indian Institute of Petroleum and others and finalized the guidelines on the following subjects which was extracted in Para (6) of the order which reads as follows:-
"A. Containment and treatment of spillages from fuelfilling operations at petrol pumps.
1. Petrol pumps located in areas with high groundwater table shall have secondary containment by way of double walled tanks or concrete protection walls so as to minimize groundwater and soil contamination. Ground water level of less than 4m shall be considered for such provision, to be verified from online data being reported by State/ Central Ground Water Board/ Authority. In such case, measures taken by Oil Marketing Company shall be placed in public domain and in case of contradictory view, view of State/ Central Ground Water Board/ Authority will prevail.
2. All new retail outlets shall have underground tanks and its ancillary components such as pipes, flexible connectors, pumps, fittings etc. protected from leaks due to corrosion by adopting materials conforming to IS standards with required protective coating as applicable.
3. Any major spillage of Petrol, Diesel, Lube Oil (more than 1 barrel- 165 litres) occurs at fueling station, concerned OMC shall report to State Pollution Control Board, PESO and District Administration under intimation to CPCB within 24 hours of occurrence.
OMCs will be held liable for Environmental
Compensation
Operation (imposed
of such Retail by beSPCBs/PCCs)
Outlet shall and
stopped immediately.
assessment of environmental damage (depending on extent of contamination in soil and groundwater) and site remediation. Consultant/ Expert agency appointed by OMCs for damage assessment and site remediation shall have minimum national/ international experience of 07 years in this field. Various approved methods shall be considered for cleaning underground contaminants.Page 21 of 37
Operation of retail outlet shall not be resumed till corrective measures to contain and stop spillages are implemented to the satisfaction of PESO and concerned SPCB.
4. All DUs shall have Auto Cut off Nozzles which shuts dispensation of fuel if its level in customer fuel tank reaches full capacity.
5. Breakaways to be installed for all the hoses of dispensing units to reduce spillage in the event of customer vehicles moves away with nozzle still in the fueling position.
6. Two pane swivels shall be installed for all the dispensing units for better positioning of nozzle while refueling so that it does not fall off accidently.
7. In pressurized dispensation, all dispensing units shall be installed with shear valves to cut the fuel flow from pipe line immediately upon accidental knocking of dispensing units from its position.
8. In pressurized system all Submersible Turbine Pumps (STPs) are to installed with mechanical leak detectors and in the event of pipeline leaks STPs shall stop pumping fuel from underground tanks.
9. Emergency stop button switch shall be provided on the Multi- Product Dispenser (MPD) to stop the dispensation in case of emergency.
10. Automation system shall be installed at all new retail outlets to alert in case of tank leak by way of auto gauging system.
11. All Retail Outlets shall provide overfill alarm through automation.
12. Measures for spill containment in fill point chambers and forecourt area shall be implemented as prescribed by PESO.
B. Check on leakages (Leakage Detection System) from underground storage tanks so as to prevent groundwater and soil contamination
1. All new retail outlets will have automation system installed which will provide reports on volume balance after every day operation and records shall be maintained.
2. Manual gauging shall be done once in a month and compare the same with Automatic Tank Gauging for accuracy.4 Page 22 of 37
3. Daily MS and HSD loss shall not exceed MoPNG prescribed limits. In case of leakage beyond such limits, matter shall be got analyzed by OMCs and further action shall be taken for ascertaining the reasons of losses. In case of leakage resulting in soil / groundwater contamination:
a. Concerned OMC shall report to State Pollution Control Board, PESO and District Administration under intimation to CPCB within 24 hours of occurrence. Operation of such Retail Outlet shall be stopped immediately.
b. Fuel shall be removed immediately from underground storage tank to prevent further release to environment. Measures to prevent explosion due to vapors released due to leakage as recommended by PESO shall be implemented immediately.
c. OMCs will be held liable for Environmental Compensation (imposed by SPCBs/PCCs) and assessment of environmental damage ( depending on extent of contamination in soil and groundwater) and site remediation. Consultant/ Expert agency appointed by OMCs for damage assessment and site remediation shall have minimum national/ international experience of 07 years in this field. Various approved methods shall be considered for cleaning underground contaminants.
d. Operation of retail outlet shall not be resumed till corrective measures to contain and stop leakages are implemented to the satisfaction of PESO and concerned SPCB.
4. All underground tanks and pipelines shall be subjected to test for leaks every 5 years.
C. Policy towards Treatment and disposal of sludge removed from underground tanks during cleaning: Sludge shall be collected, stored and disposed as per Rule 8 of Hazardous Waste (Management and Transboundary) Rules, 2016 and amendments thereof and records shall be maintained.
D. Installation, Operation and maintenance of Vapour Recovery System
1. All new retail outlets set up with sale potential of 300KL MS per month and setting up in cities with population more than 1 5 Page 23 of 37 lakh will be provided with VRS. VRS should be functional by the time of sale of MS touch 300 KL per day. In case of failure of installation of VRS, Environment Compensation will be levied equivalent to the cost of VRS and this will further increase proportionate to the period of non-compliance.
2. Any new retail outlet set up in cities having population more than 10 lakh and having sale potential of 100 KL MS per month will be provided with VRS. VRS should be functional by the time of sale of MS touch 100 KL per day. In case of failure of installation of VRS, Environment Compensation will be levied equivalent to the cost of VRS and this will further increase proportionate to the period of non-compliance.
3. In case of Stage II YRS, dispensers shall be provided with flexible cover flap or other alternate system for proper covering of filling tank and therefore proper recovery of vapors.
4. OMCs are responsible for maintammg installed YRS systems. They have to maintain periodic inspections for AIL regulator as prescribed by Legal Metrology. Proper record shall be maintained.
5. Working of dispenser shall be interlinked with VRS functioning. Online system shall be developed within 06 months to monitor status of operation of VRS. In case of non-operation of VRS, the same shall be automatically reported to concerned OMC. YRS shall be brought into operation immediately within 24 hrs and in any case within 72 hrs failing which sale of MS shall be stopped from the fuelling station. Proper records of operation of YRS shall be maintained.
6. Work zone monitoring for Total VOC and Benzene shall be conducted by OMCs for petrol pumps selling more than 300 KL/ month and more than 10 lakh population (in first phase) by E(P)Act, 1986 approved labs once in a year to check compliance with OHSAS norms and report shall be submitted to SPCB. In addition, pilot study shall be conducted by OMCs through expert institutions for online monitoring of voes.
E. Ground water and soil quality monitoring within petrol pump selling more than 300 KL/ month and more than 10 lakh population shall be conducted by OM Cs once in two years through E(P)Act, 1986 approved labs for the following parameters from the nearest source and report submitted to SPCB:
I. Total petroleum hydrocarbons II. BTEX Ill. Ethanol IV. Methyl Tertiary Butyl Ether 6 Page 24 of 37 IV. PAH Enforcement agencies including SPCB can collect samples in and around petrol pump to check contamination.
F. Measures for protection of Worker's Health
1. All workers engaged at retail outlets are being covered under ESL OMC dealers shall implement the personal protectiveequipment (PPE) as per labor laws.
2. IEC (Information Education Communication) activities should be organized by OMC dealers for workers at regular intervals in order to sensitize them about harmful impacts of VOC emissions.
G. Audit of all protection measures and monitoring system implemented at petrol pumps: PESO shall conduct audit of tanks and fuel equipments including pipes, overfill protection equipments and alarm system on annual basis and maintain records.
H. Siting criteria of Retail Outlets: New retail Outlets shall not be located within a radial distance of 50 meters (from fill point/ dispensing units/ underground storage tanks/ vent pipe whichever is nearest) from schools and hospitals (10 beds and above). In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case the distance between new retail outlet and sensitive areas shall be less than 30 meters. No high tension line shall pass over the retail outlet.
2. Feasibility study of new petrol pumps: MoPNG in the meeting convened by CPCB on February 08, 2019 in compliance of order follow18.1.2019 dated guidelinesOA for No. setting 86/2019:up of petrol pumps."
Gyanprakhash @ Pappu Singh vs Uol informed that the any new outlet proposed to be set up by oil marketing company is after conducting feasibility study.
39. After considering those aspects, the applications were disposed of with the followingAs directions:-
regard to preventive measures for minimizing pollution, all new"11. In view petrol of the above, pumps shall the Expert have VRSCommittee as per CPCBhavingplan, alreadyand, gone shall into the matter, finalization of timelines as contemplated in the report, if not yet done, may be done within one month from today which will be the responsibility of the Secretary, MoPNG and the Chairman, CPCB. Further action in terms of the report may be ensured. We may also add that a safe distance from the residential areas must be maintained for any new outlet to be set up which may also be specified within one month, keeping in view the health and safety of the inhabitants."Page 25 of 37
40. It is on that basis, the CPCB had issued the guideline dated 07.01.2020 with respect to the siting criteria. It is also seen from the report that a draft guideline was issued and objections were called for from the different stakeholders and only after consideration of the objections, the same has been finalized. It was also published in the website of the CPCB and it was directed to be implemented by all the State Pollution Control Boards/Pollution Control Committees and it can be treated as a direction under Section 18 (1) of the Water (Prevention and Control of Pollution), 1974 and Air (Prevention and Control of Pollution) Act, 1981 issued by the CPCB and also under Section 3 & 5 of the Environment (Protection) Act, 1986 applying the „Precautionary Principle‟.
41. In the decision reported in A. Packrisamy Vs. The Joint Chief Controller of Explosive, Chennai & Ors. (W.P. No.43434 of 2016) dated 24.09.2021, the Single Bench of the Hon‟ble High Court of Madras considered the facts to be considered for the purpose of considering the question of issuance of NOC, in which, it was relied on the guidelines issued by the CPCB in respect of locations and it was observed in that decision that while granting the NOC and license for running the Petroleum Retail Outlet, the authorities must ensure that subject to the satisfaction, the person running Retail Outlet may flout the instructions and regulations. However, the competent authority while granting the NOC/license and after commencement of business have to conduct inspections frequently and thereby ensure that the guidelines are followed and health issues of the persons residing nearby are protected. It was also observed that the National Green Tribunal which was dealing with these issues passed several orders and the CPCB had also issued directions which are to be implemented by the State Pollution Control Boards/Pollution Control Committees. Further, it was also observed that such a development should not affect the health of the children, sick and old age people. In the decision, it was reiterated regarding the Right to Life as fundamental right and health of the children has to be protected in all circumstances and any hazardous in these aspects on account of installation of Petroleum Retail Outlets nearby schools, residential areas, old age homes and hospitals are to be seriously viewed. The Competent Authority cannot mechanically Page 26 of 37 adopt the rules and regulations and grant NOC. Such an approach would result in non-application of mind with reference to the issue which is bound to be considered in the interest of general public. In that case, it was also directed that further inspection will have to be conducted, the objections regarding the public and persons residing nearby have to be considered and then appropriate orders will have to be passed. So, that also gives an implication that the guidelines issued by the CPCB in respect of siting criteria and precautionary methods to be adopted are to be considered by the authorities before granting the NOC.
42. In view of the above discussions, the following findings have been arrived at by this Tribunal to be considered while considering the case in hand.
a. As regards the CPCB Circular dated 07.01.2020 is concerned, since it was issued on the basis of the Expert Committee appointed as directed by the National Green Tribunal applying the „Precautionary Principle‟, it will have statutory force, as it was published in the website of the CPCB and it was circulated among the State PCBs/Pollution Control Committees and it was made known to the public and the directions issued by the Principal Bench of National Green Tribunal, New Delhi in Original Application Nos.31 and 86 of 2019 on the basis of the report submitted by the Joint Committee was not challenged and it has become final and that will have to be adhered to by the Oil Marketing Companies and also the statutory authorities while considering the question of NOC being granted.
b. The authorities who are vested with the power to grant NOC are expected to consider the objections of the public and also give reason as to why they are granting permission after answering the objections and it should not be mechanically issued and there must be application of mind by the authorities while granting the NOC.
c. As regards the distance criteria for other schools (other than play schools) and regarding the applicability of Code of Regulations for Play Schools, 2015 issued by the State of Tamil Nadu is concerned, that will subject to the directions to be issued by the Hon‟ble High Page 27 of 37 Court of Madras in the pending matters, as that question has not become final and only interim orders have been passed by the Hon‟ble High Court in some cases. But in the subsequent decision of the Hon‟ble High Court of Madras in St. Mary's Matriculation Higher Secondary School, Sriperumbudur Vs. Secretary, Ministry of Petroleum, New Delhi & Ors. in W.P. No.4321 of 2020 and 2951 of 2022, it was observed that it will apply only for establishment of play school near Petroleum Retail Outlet and not for establishment of Petroleum Retail Outlets.
d. As regards the applicability of IRC Circular No.12-2009 are concerned, in view of the latest notification issued by the State of Tamil Nadu i.e. G.O. (Ms.) No.25 dated 24.02.2022 that will have applicability only from that date of notification and it cannot be applied retrospectively and the applicability of IRC Rules will be subject to the final decision to be taken in the Writ Appeal [W.A. No.1187 of 2020] pending before the Hon‟ble High Court of Madras.
43. Clause H of the Office Memorandum No.B-13011/1/2019-20/AQM/ 10802-10847 dated 07.01.2020 reads as follows:-
"H. Siting Criteria of Retail Outlets:
In case of siting criteria for petrol pumps new Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/dispensing units/vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws. In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by PESO. In no case, the distance between new retail outlet from schools, hospitals (10 beds and above) and residential area designated as per local laws shall be less than 30 meters. No high tension line shall pass over the retail outlet."
44. There was a contention raised by the Oil Marketing Companies that the distance criteria is available only if it was declared as a residential area. It may be mentioned here if the local law does not provide for any residential area, then the purpose of the guidelines issued applying the „Precautionary Principle‟ will become redundant.
Page 28 of 3745. In some cases, residential area has not been classified by the zoning regulations and certain areas are kept as non-planning area. There is no clarity in the guidelines given in such cases and what should be the distance criteria to be adopted for the purpose of establishing new Petroleum Retail Outlet and this is being likely used in their favour by the Oil Marketing Companies and that will affect the very purpose of the providing siting criteria for establishment of such Petroleum Retail Outlet. So, under such circumstances, we feel that it is necessary to direct the CPCB to revisit that issue and come with some clarifications in the form of notification in addition to the circular already issued dated 07.01.2020 and subsequent circular issued in this regard based on the various directions issued by the National Green Tribunal (both Principal Bench and Central Zone Bench) as to what should be the distance criteria should be adopted where no residential areas have been classified in the local laws or in case where there is non-planning areas under the local laws, then what should be the distance criteria to be adopted for establishment of new Petroleum Retail Outlet.
46. Further, even in areas which are classified as Commercial Zone/Mixed Zone, whether any minimum distance criteria will have to be provided taking into account the environmental impact of establishment such petroleum units. So, we direct the CPCB to revisit the siting criteria on the basis of the observations made and come with a proper notification/office memorandum and publish the same in accordance with law so as to make it enforceable to the stakeholders and the statutory authorities.
47. Further, we are not in agreement with the submissions made by the learned counsel appearing for the Oil Marketing Companies that when there is no restriction in the Building Rules or other rules or under the Town and Country Planning Act and the rules framed there under, no further restrictions can be issued by the other authorities or Tribunal. But this has not been accepted by the Hon‟ble Apex Court in the decision reported in Mantri Tech Zone Private Limited Vs. Forward Foundation & Ors. (2019) 18 SCC 494 where it has been observed that the National Green Tribunal has got power to impose additional restrictions applying the Page 29 of 37 „Precautionary Principle‟ to protect environment and also in view of the observations made by the Hon‟ble Apex Court dealing with the power of National Green Tribunal to entertain the Suo Motu case on the basis of the newspaper report and letter petition in Municipal Corporation of Greater Mumbai Vs. Ankita Sinha & Ors. reported in AIR 2021 SC 5147.
48. It may also be mentioned here that the relaxation of 30 meters provided in the guidelines issued by the CPCB is an exception to the general rule of 50 meters and the exemption can be applied only sparingly and it cannot be applied as a general rule which will over ride the purpose of the siting criteria itself. Even when they are adopting the lesser distance rule of 30 meters, they must give reason as to why it is being carried out instead of fixing the distance of 50 meters.
49. Even if as per the Building Rules, 2019 relied on by the learned counsel appearing for the Oil Marketing Companies that if there is a road of 15 meters abutting the place where the petrol pump will have to be established will be treated as a commercial area, if it is not otherwise notified under any of the rules. Even then that will make only this as a permissible activity but it will not absolve the siting criteria in locating the units, as the siting criteria has been provided for the purpose of protecting the interest of the public against the probable danger being caused on account of establishment of such institutions. Even the zonal regulations and the permissibility granted also only will give indication that certain type of activities are permitted in different zones classified under the Building Rules, 2019 and that also will not restrict the applicability of the distance rule, if it was directed to be implemented as per the directions of the National Green Tribunal, as the direction of the National Green Tribunal were issued applying the „Precautionary Principle‟ and it will have over ride effect over any other existing local laws as it is being used to protect environment.
50. It is seen from the Joint Committee that there are residential houses situated on the North, South and East side of the Petroleum Retail Outlet within a distance of 18 m, 13.51 m and 17.7 m respectively and there is no school, hospital (having capacity of 10 beds and above) are situated in that Page 30 of 37 area. It was not classified as „residential area‟ or „commercial area‟ as per the local body rules. Since the NOC was issued on the basis of the existing siting criteria as taken as „residential area‟ and after considering the objections filed by some of the local people, we feel that that there is no necessity to restrain the Respondents No.4 & 7 from conducting the Petroleum Retail Outlet in that area. However, since the CPCB Guidelines provided that if the Petroleum Retail Outlet has to be established less than 50 meters, but within 30 meters certain additional measures to be provided as suggested by the PESO.
51. In Original Application No.118 of 2021 (SZ), this Tribunal had directed the PESO to impose additional conditions, if the siting criteria applied is less than 50 meters and applying the „Precautionary Principle‟ and also the safety of the public, we feel that a direction can be issued to the PESO to inspect the area in question along with the State Pollution Control Board and impose additional safety measures to be carried out by the 4th Respondent through 7th Respondent and if any additional safety measures were directed to be carried out, then the Respondents No.4 & 7 are directed to implement the same in its letter and spirit to protect environment and also remove the apprehension of the applicant and nearby residents and that will meet the ends of justice.
52. So, we feel that the application can be disposed of with the following directions:-
a. As regards the CPCB Circular dated 07.01.2020 is concerned, since it was issued on the basis of the Expert Committee appointed as directed by the National Green Tribunal applying the „Precautionary Principle‟, it will have statutory force, as it was published in the website of the CPCB and it was circulated among the State PCBs/Pollution Control Committees and it was made known to the public and the directions issued by the Principal Bench of National Green Tribunal, New Delhi in Original Application Nos.31 and 86 of 2019 on the basis of the report submitted by the Joint Committee was not challenged and it has become final and that will have to be Page 31 of 37 adhered to by the Oil Marketing Companies and also the statutory authorities while considering the question of NOC being granted. b. The authorities who are vested with the power to grant NOC are expected to consider the objections of the public and also give reason as to why they are granting permission after answering the objections and it should not be mechanically issued and there must be application of mind by the authorities while granting the NOC. c. As regards the distance criteria for other schools (other than play schools) and regarding the applicability of Code of Regulations for Play Schools, 2015 issued by the State of Tamil Nadu is concerned, that will subject to the directions to be issued by the Hon‟ble High Court of Madras in the pending matters, as that question has not become final and only interim orders have been passed by the Hon‟ble High Court in some cases and also the order passed by the Hon‟ble High Court of Madras in W.P. No.4321 of 2020 and 2951 of 2022 dated 21.06.2022 mentioned above.
d. As regards the applicability of IRC Circular No.12-2009 are concerned, in view of the latest notification issued by the State of Tamil Nadu i.e. G.O. (Ms.) No.25 dated 24.02.2022 that will have applicability only from that date of notification and it cannot be applied retrospectively and the applicability of IRC Rules will be subject to the final decision to be taken in the Writ Appeal [W.A. No.1187 of 2020] pending before the Hon‟ble High Court of Madras. a. In some cases, residential area has not been classified by the zoning regulations and certain areas are kept as non-planning area. There is no clarity in the guidelines given in such cases and what should be the distance criteria to be adopted for the purpose of establishing new Petroleum Retail Outlet and this is being likely used in their favour by the Oil Marketing Companies and that will affect the very purpose of the providing siting criteria for establishment of such Petroleum Retail Outlet. So, under such circumstances, we feel that it is necessary to direct the CPCB to revisit that issue and come with some clarifications in the form of notification in addition to the circular already issued dated 07.01.2020 and subsequent circular issued in this regard based on the various directions issued by the Page 32 of 37 National Green Tribunal (both Principal Bench and Central Zone Bench) as to what should be the distance criteria should be adopted where no residential areas have been classified in the local laws or in case where there is non-planning areas under the local laws, then what should be the distance criteria to be adopted for establishment of new Petroleum Retail Outlet b. Further, even in areas which are classified as Commercial Zone/Mixed Zone, whether any minimum distance criteria will have to be provided taking into account the environmental impact of establishment such petroleum units. So, we direct the CPCB to revisit the siting criteria on the basis of the observations made and come with a proper notification/office memorandum and publish the same in accordance with law so as to make it enforceable to the stakeholders and the statutory authorities.
e. The PESO as well as the authority issuing NOC under the Petroleum Rules, 2002 are directed to consider the dictum laid down by the Hon‟ble High Court of Madras in A. Packrisamy Vs. The Joint Chief Controller of Explosive, Chennai & Ors. (W.P. No.43434 of 2016) dated 24.09.2021 in its letter and spirit and conduct proper enquiry as directed by the Hon‟ble High Court of Madras at Madurai Bench in several cases while granting the license and NOC under Rule 131 and 144 of the Petroleum Rules, 2002 and the order passed in W.P. No.4321 of 2020 and 2951 of 2022 dated 21.06.2022 by the Hon‟ble High Court of Madras cited supra.
f. We are not restraining the Respondents No.4 & 7 from running the disputed Petroleum Retail Outlet, as it has already been established and started functioning.
g. The PESO and the State Pollution Control Board are directed to inspect the area in question and impose additional safety measures to be carried out by the Respondents No.4 & 7 in order to protect environment as well as remove the apprehension of the residents regarding safety measures and if any additional safety measures were suggested, then the Respondents No.4 & 7 are directed to carry out the same in its letter and spirit.
53. The points are answered accordingly.
Page 33 of 3754. In the result, the Original Application is allowed in part and disposed of with the following directions:-
(i) As regards the CPCB Circular dated 07.01.2020 is concerned, since it was issued on the basis of the Expert Committee appointed as directed by the National Green Tribunal applying the „Precautionary Principle‟, it will have statutory force, as it was published in the website of the CPCB and it was circulated among the State PCBs/Pollution Control Committees and it was made known to the public and the directions issued by the Principal Bench of National Green Tribunal, New Delhi in Original Application Nos.31 and 86 of 2019 on the basis of the report submitted by the Joint Committee was not challenged and it has become final and that will have to be adhered to by the Oil Marketing Companies and also the statutory authorities while considering the question of NOC being granted.
(ii) The authorities who are vested with the power to grant NOC are expected to consider the objections of the public and also give reason as to why they are granting permission after answering the objections and it should not be mechanically issued and there must be application of mind by the authorities while granting the NOC.
(iii) As regards the distance criteria for other schools (other than play schools) and regarding the applicability of Code of Regulations for Play Schools, 2015 issued by the State of Tamil Nadu is concerned, that will subject to the directions to be issued by the Hon‟ble High Court of Madras in the pending matters, as that question has not become final and only interim orders have been passed by the Hon‟ble High Court in some cases and also the order passed by the Hon‟ble High Court of Madras in W.P. No.4321 of 2020 and 2951 of 2022 dated 21.06.2022 mentioned above.Page 34 of 37
(iv) As regards the applicability of IRC Circular No.12-2009 are concerned, in view of the latest notification issued by the State of Tamil Nadu i.e. G.O. (Ms.) No.25 dated 24.02.2022 that will have applicability only from that date of notification and it cannot be applied retrospectively and the applicability of IRC Rules will be subject to the final decision to be taken in the Writ Appeal [W.A. No.1187 of 2020] pending before the Hon‟ble High Court of Madras.
(v) In some cases, residential area has not been classified by the zoning regulations and certain areas are kept as non-
planning area. There is no clarity in the guidelines given in such cases and what should be the distance criteria to be adopted for the purpose of establishing new Petroleum Retail Outlet and this is being likely used in their favour by the Oil Marketing Companies and that will affect the very purpose of the providing siting criteria for establishment of such Petroleum Retail Outlet. So, under such circumstances, we feel that it is necessary to direct the CPCB to revisit that issue and come with some clarifications in the form of notification in addition to the circular already issued dated 07.01.2020 and subsequent circular issued in this regard based on the various directions issued by the National Green Tribunal (both Principal Bench and Central Zone Bench) as to what should be the distance criteria should be adopted where no residential areas have been classified in the local laws or in case where there is non-planning areas under the local laws, then what should be the distance criteria to be adopted for establishment of new Petroleum Retail Outlet
(vi) Further, even in areas which are classified as Commercial Zone/Mixed Zone, whether any minimum distance criteria will have to be provided taking into account the environmental impact of establishment such petroleum Page 35 of 37 units. So, we direct the CPCB to revisit the siting criteria on the basis of the observations made and come with a proper notification/office memorandum and publish the same in accordance with law so as to make it enforceable to the stakeholders and the statutory authorities.
(vii) The PESO as well as the authority issuing NOC under the Petroleum Rules, 2002 are directed to consider the dictum laid down by the Hon‟ble High Court of Madras in A. Packrisamy Vs. The Joint Chief Controller of Explosive, Chennai & Ors. (W.P. No.43434 of 2016) dated 24.09.2021 in its letter and spirit and conduct proper enquiry as directed by the Hon‟ble High Court of Madras at Madurai Bench in several cases while granting the license and NOC under Rule 131 and 144 of the Petroleum Rules, 2002 and the order passed in W.P. No.4321 of 2020 and 2951 of 2022 dated 21.06.2022 by the Hon‟ble High Court of Madras cited supra.
(viii) We are not restraining the Respondents No.4 & 7 from running the disputed Petroleum Retail Outlet, as it has already been established and started functioning.
(ix) The PESO and the State Pollution Control Board are directed to inspect the area in question and impose additional safety measures to be carried out by the Respondents No.4 & 7 in order to protect environment as well as remove the apprehension of the residents regarding safety measures and if any additional safety measures were suggested, then the Respondents No.4 & 7 are directed to carry out the same in its letter and spirit.
(x) Considering the circumstances, parties are directed to bear their respective costs in the Original Application.
Page 36 of 37(xi) The Registry is directed to communicate this order to the official respondents, State Pollution Control Board, Central Pollution Control Board both New Delhi and Regional Office at Chennai and PESO for their information and compliance of directions.
55. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.167/2020 (SZ) 01st July 2022. Mn.
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