Kerala High Court
Abdul Jabbar vs Government Of India on 30 August, 2016
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939
WP(C).No. 28370 of 2016 (U)
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PETITIONER:
------------------
ABDUL JABBAR
POTTANEPARAMBU HOUSE,
HOUSE NO. 29/1665, MANANTHALATHAZHAM,
NELLIKODE AMSOM DESOM,
P.O NELLIKODE, KOZHIKODE DISTRICT, PIN 673 016.
BY ADVS.SRI.G.SHRIKUMAR (SR.)
SRI.ANUMOD B.NAIR
RESPONDENT(S):
-------------------
1. GOVERNMENT OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT
AND HIGHWAYS, PARIVAHAN BHAVAN, 1,
SANSAD MARG, NEW DELHI 110 001.
2. CORPORATION OF KOZHIKODE
OFFICE OF THE KOZHIKODE CORPORATION,
BEACH ROAD, MANANCHIRA, KOZHIKODE 673 032,
REPRESENTED BY ITS SECRETARY.
3. ADDITIONAL DISTRICT MAGISTRATE,
CIVIL STATION, KOZHIKODE 673 020.
4. VILLAGE OFFICER,
NELLIKODE VILLAGE, KOZHIKODE DISTRICT,
PIN 673 016.
5. HINDUSTAN PETROLEUM CORPORATION LTD.,
KOZHIKODE RETAIL REGION, ELATHUR,
KOZHIKODE- 673 303,
REPRESENTED BY ITS CHIEF REGIONAL MANAGER.
WP(C).No. 28370 of 2016 (U)
: 2 :
6. K.V.VENUGOPALAN
S/O.T.KESAVAN NAIR, VAISHAKHI, PATTERI CROSS ROAD,
KUTHIRAVATTAM P.O, KOZHIKODE DISTRICT, PIN 673 016.
7. K.SUJOTHI
W/O.K.V.VENUGOPALAN, VAISHAKHI, PATTERI CROSS ROAD,
KUTHIRAVATTAM P.O, KOZHIKODE DISTRICT, PIN 673 016.
8. SATHEESH KUMAR K.P
S/O.K.V.VENUGOPALAN, VAISHAKHI, PATTERI CROSS ROAD,
KUTHIRAVATTAM P.O, KOZHIKODE DISTRICT, PIN 673 016.
[DELETED]
[THE 8TH RESPONDENT IS DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE PETITIONER AS PER ORDER DATED 30/08/2016
IN IA.13932/16.]
R5-R7 BY ADV. SRI.R.SUDHISH
R5-R7 BY ADV. SRI.P.P.BALAN
R5-R7 BY ADV. SMT.M.MANJU
R1 BY ADV. SRI.T.V.VINU, CGC
R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
R BY SRI.M.GOPIKRISHNAN NAMBIAR
R BY SMT. A.C. VIDHYA, GOVERNMENT PLEADER
R BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-04-2017, ALONG WITH W.P.(C) NO. 32566/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 28370 of 2016 (U)
: 3 :
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1. COPY OF ORIGINAL PHOTOGRAPHS EVIDENCING THE PROPERTY OF
THE RESPONDENTS 6 TO 8 AND THAT OF THE RESIDENTIAL HOUSE OF THE
PETITIONER.
EXHIBIT P2. COPY OF THE NOTIFICATION NO.RW/NH-33023/19/99-DO-III DATED
24.7.13 ISSUED BY THE IST RESPONDENT.
EXHIBIT P3. COPY OF THE LAND LEASE AGREEMENT DATED 25.5.16 ENTERED
INTO BETWEEN THE 5TH RESPONDENT AND THAT OF RESPONDENTS 6 TO 8.
EXHIBIT P4. COPY OF THE SKETCH OF THE PROPERTY OWNED BY THE
RESPONDENTS 6 TO 8.
EXHIBIT P5. COPY OF THE AFFIDAVIT DATED 10.11.14 EXECUTED BY THE
RESPONDENTS 6 TO 8, SUBMITTED ALONG WITH THE APPLICATION FOR NOC.
EXHIBIT P5[a]. COPY OF THE PROCEEDING DATED 21.5.15 OF THE TAHSILDAR,
KOZHIKODE.
EXHIBIT P6. COPY OF THE NOC DATED 30.1.15 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P7. COPY OF THE BUILDING PERMIT NO. TP.4.BA[13012]/2016 DATED
5.4.16 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8. COPY OF THE REPRESENTATION DATED 5.8.16 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P9. COPY OF THE REPRESENTATION DATED 5.8.16 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P10: TRUE COPY OF THE ORDER DATED 05.10.2016 IN I.A. NO.
14834/2016 IN W.P.(C) NO. 22930/2016 OF THE LEARNED DIVISION BENCH OF
THIS HONOURABLE COURT.
EXHIBIT P11: TRUE COPY OF THE REPORT DATED 19.01.2017 AS APPEARING IN
MANORAMA NEWS. COM.
EXHIBIT P12: TRUE COPY OF REPORT DATED 17.01.2017 AS APPEARING IN
MANORAMA NEWS. COM.
EXHIBIT P13: TRUE COPY OF REPORT DATED 16.01.2017 AS APPEARING IN
MANORAMA NEWS. COM.
WP(C).No. 28370 of 2016 (U)
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EXHIBIT P14: TRUE COPY OF THE REPORT DATED 19.01.2017 AS APPEARING IN
MANORAMA NEWS. COM.
RESPONDENT(S)' EXHIBITS:
EXHIBIT R5(a): COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT
DATED 10.08.2016 IN W.P.(C) NO. 22930 OF 2016.
EXHIBIT R5(b): COPY OF THE RECENT PHOTOGRAPHS VISUALIZING THE PRESENT
STAGE OF THE CONSTRUCTION WORK.
EXHIBIT R5(c): COPY OF THE PHOTOGRAPHS DO NOT VISUALIZE THE ACTUAL VIEW
OF THE PLOT UNDER REFERENCE.
EXHIBIT R5(d): COPY OF THE REQUISITE PERMISSION FROM THE MINISTRY OF
ROAD TRANSPORT AND HIGHWAYS DATED 11.11.2015 WITH PLANS.
EXT.R6(a): COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT DATED
08.09.2016 IN W.P.(C) NO. 22930 OF 2016.
EXT.R5(e):COPY OF THE LETTER OF THE EXECUTIVE ENGINEER, PWD DATED
12.10.2015 ALONG WITH INSPECTION REPORT AND SITE PLAN.
EXT.R5(f): COPY OF THE RELEVANT PAGE OF VOTERS LIST PREPARED FOR THE
KERALA ASSEMBLY ELECTION OF THE YEAR 2016 PERTAINING TO KUNNAMANGALAM
CONSTITUENCY.
EXT.R5(g): COPY OF THE RELEVANT PAGE OF VOTERS LIST PREPARED FOR THE
KERALA ASSEMBLY ELECTION OF THE YEAR 2014 PERTAINING TO KUNNAMANGALAM
CONSTITUENCY.
EXT.R5(h): COPY OF THE PHOTOGRAPH TO VISUALIZE THE PRESENT STAGE OF THE
CONSTRUCTION WORK.
EXT.R5(i): COPY OF THE AGREEMENT OF LEASE EXECUTED BETWEEN THE 5TH
RESPONDENT AS LESEE AND RESPONDENTS 6 AND 7 AS LESSORS DATED
25.05.2016.
EXT.R5(j): COPY OF THE ORDER OF THE ADDITIONAL MUNSIFF-II, KOZHIKODE
DATED 21.06.2016 IN I.A. NO. 2404 OF 2016 IN O.S. NO. 420 OF 2016.
EXT.R6(b): COPY OF THE PHOTOCOPY OF THE APPROVED PLAN ISSUED BY THE 2ND
RESPONDENT, THE CORPORATION OF KOZHIKODE.
WP(C).No. 28370 of 2016 (U)
: 5 :
'CR'
DAMA SESHADRI NAIDU, J.
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W.P. (C) Nos. 28370 & 32566 of 2016
------------------------------------------
Dated this the 7th day of April, 2017.
JUDGMENT
Introduction:
The petitioners in both the writ petitions claim to reside next to the sixth and the seventh respondent's property, where the fifth respondent-Corporation intends to establish a retail petroleum outlet. The petitioners assert that the Corporation has been trying to establish the retail outlet with utter disregard to the safety norms and in gross violation of the Building Rules. Has the 5th respondent, a Public-Sector Undertaking, been establishing the retail outlet violating the law?
2. Because both the writ petitions raise common issues against the same respondents, I have decided to dispose them of together under a common judgment.
Facts:
3. Respondents 6 and 7 own a piece of property in Nellikode W.P.(C.) Nos. 28370 & 32556 of 2016 -2- Ward of Kozhikode Corporation. They leased it out that property for 30 years to the 5th respondent, the Hindustan Petroleum Corporation Ltd., ('the Corporation") for establishing a petroleum retail-outlet.
4. The sole petitioner in W.P.(C) No. 28370 of 2016 and the three petitioners in W.P.(C) No. 32566 of 2016 are the neighbours:
they allegedly live next to the property leased out to the Corporation. These neighbours filed the writ petitions questioning the Corporation's establishing its retail outlet on the leased property. Their grievance stems from what is said to be the Corporation's violating the safety norms.
5. Ext.P2 in W.P.(C) No. 28370 of 2016 contains the guidelines issued by the Ministry of Road Transport and Highways, Government of India. Those guidelines fix the procedural parameters on how to establish, say, a retail petroleum-outlet. Guideline 4.5 of Ext.P2 concerns urban structures; it mandates that the intersection with any category of the road (despite the carriage width) must be 100 mtrs., from the retail outlet intended to be established. The Corporation has violated this guideline, maintain the petitioners. Their other, and more W.P.(C.) Nos. 28370 & 32556 of 2016 -3- important, grievance is that the Corporation has been violating the building rules as found in the Kerala Municipality Rules. Submissions:
Petitioners':
6. In the above factual background, Sri P.P. Balan, the learned Senior Counsel for the petitioner in W.P. No.28370 of 2016, has initially contended that the Corporation has not maintained, as seen from the sanctioned plan, 100 mtrs., distance from the existing intersection of the road nearby. Therefore, the Corporation's establishing the retail outlet violates guideline 4.5.2 of Ext.P2.
7. Taking me through the Kerala Municipality Building Rules, 1999, ("the Building Rules") the learned Senior Counsel, initially, elaborated on the provisions; especially, the definitional distinction of a building in its myriad forms. "Building" as defined in Rule 2(l), according to the learned Senior Counsel, is all encompassing. Later, he has drawn my attention to Rule 30 of the Rules. Reading that rule with Rule 59, the learned Senior Counsel would contend that the retail outlet proposed to be established by the Corporation is a hazardous W.P.(C.) Nos. 28370 & 32556 of 2016 -4- building or structure. So the Corporation must follow strict safety- measures, including the distance norm.
8. Asserting that Rule 2 and Rule 30 (3) (m) Group I (2) read together, there is no room for any dispute that the entire retail outlet, including the storage tank, is to be compendiously called a building. The learned Senior Counsel has further drawn my attention to Rule 59 (3) to hammer home his contention that the distance ought to be 7.5 metres from the nearest boundary in any direction.
9. Eventually, when queried about the impact of Petroleum Rules 1976 on the distance norm, the learned Senior Counsel has asserted that the Corporation cannot disregard the distance norms prescribed in the Building Rules under an excuse that the Petroleum Rules prescribe a different norm. According to him, the provisions must be read harmoniously.
10. The learned Senior Counsel has submitted that the distance norm of 1.5 meters specified in Form 14 applies to the class-C fuels as has been defined under Section 2 (bbb) of the Petroleum Act. In elaboration, he has submitted that Rule 138 prescribes the method and W.P.(C.) Nos. 28370 & 32556 of 2016 -5- manner of storing Class-C petroleum in bulk. So the learned Senior Counsel would contend that the distance norm of 1.5 meters applies to Class-C fuels alone.
11. Summing up his submissions, the learned Senior Counsel has elaborated on the volatility of the substance sought to be stored by the Corporation and the paramount safety of the people around the establishment. Thus, he has urged this Court to allow the writ petition, to prevent the Corporation from establishing the petroleum retail outlet in the petitioner's neighbourhood.
12. Sri Harikumar G, the learned counsel for the petitioners in W.P.(C) No. 32566 of 2016, has adopted the learned Senior Counsel's arguments. In addition, he has asserted that the structure is generic in its semantic sense and includes both the projection above and below the ground level. Sri Harikumar has also submitted that the very building plan submitted by the Corporation shows the storage tank as part of the building.
Respondents 5 to 7:
13. Per contra, Sri G. Shrikumar, the learned counsel for the W.P.(C.) Nos. 28370 & 32556 of 2016 -6- respondents 5 to 7, has strenuously contended that the Corporation, a public-sector undertaking, has taken all precautions and followed both the Building Rules and the Petroleum Rules scrupulously, especially on the safety measures. According to him, there is no deviation. To begin with, he has contended that the petitioners have been set up by the Corporation's business rivals and that none of the petitioners resides in a neighbourhood to the leased property.
14. In elaboration, Sri Shrikuamr has submitted that expansive as the definition of 'building' under Rule 2 of the Building Rules is, by no stretch can it be said that an underground storage tank is a structure, much less a building, under clause (l) of Rule 2.
15. Drawing my attention to the First Schedule under Article 5 of the Petroleum Rules, Sri Shrikumar would contend that the Corporation must maintain a distance of 1.5 metres from any point of the marked boundary of the premises in the approved plan. He has also drawn my attention to Rule 2 to emphasise that the storage shed and tank have been separately defined. According to him, the storage shed with projected structures is a building but not a tank which is subterranean. W.P.(C.) Nos. 28370 & 32556 of 2016 -7-
16. Sri Shrikumar has also submitted that Rule 59(9) is categoric in its impact that the location and construction of petrol tank shall be governed by the Petroleum Rules, but not the Municipality Building Rules. He has, however, in the alternative, submitted that even if we assumed that both hold the field, the Corporation has complied with the distance norms as has been provided even in the Building Rules.
17. Form-14, according to Sri Shrikuamr, is issued under Article 5 of the First Schedule dealing with the requirements affecting the petroleum in tank or tanks. It is for fueling motor conveyances, which, according to him, is nothing but Class B fuel--the petroleum included.
18. Summing up his submissions, the learned counsel has submitted that the Corporation has already completed the construction and is all set to make the retail outlet operational. Thus, he urges this Court to dismiss the writ petition.
19. Heard Sri P.P. Balan, the learned Senior Counsel for the petitioner in W.P. (C) No.32566 of 2016, Sri Harikumar G, the learned counsel for the petitioners in W.P. (C) No.28370 of 2016, and Sri G. Shrikumar, the learned counsel for the respondents 5 to 7, besides W.P.(C.) Nos. 28370 & 32556 of 2016 -8- perusing the record.
Statutory Stipulations:
Kerala Municipality Act & Kerala Municipality Building Rules:
20. Section 2 (l) of the Kerala Municipality Act ("the Act") defines "building" to mean "any structure for whatsoever purpose and of whatsoever material constructed," its every part included, whether used for human habitation or not. Foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, or affixures, or enclosures, too, count. The building may mean even signs and outdoor display structures.
21. "Hazardous building" is inclusively defined in Rule 30 (3) (m) Group I (2) of the Kerala Building Rules: It shall include any building or part of a building used for the storage, handling, manufacturing, or processing of highly combustible, explosive, poisonous, irritant, corrosive, toxic, or noxious materials or products, or any products or materials producing dust.
22. Under sub-clause (ii) of the same Rule, "Hazardous building"
is further defined to include buildings and yards used for storing and W.P.(C.) Nos. 28370 & 32556 of 2016 -9- handling hazardous and highly inflammable liquids. Petroleum is one such liquid. Under sub-clause, "automobile fuel filling stations" stands explicitly mentioned.
23. The provisions further examined, we can see sub-rule (9) of Rule 59 mandating that the location or construction of a petrol tank and vent pipe shall be governed by the Petroleum Rules, 1976. Sub- Rule (10), however, prescribes the distance parameters:
The retail dispensing unit of a petrol filling-station shall be installed at a distance of 7.5 metres from any point of the marked boundary of its premises.
24. On the other hand, under sub-rule (11), the kiosk or sales office shall have a minimum open-space of 1.00 metre "from the plot boundaries other than that abutting the street." The Petroleum Act & The Petroleum Rules:
25. Section 2 (bbb) defines "petroleum Class C." It is petroleum having a flash-point of sixty-five degrees centigrade and above but below ninety-three degree centigrade. Rule 138 (1) of the Petroleum Rules prescribes that storage of exempted petroleum Class-C in bulk shall be stored in a tank constructed of iron or steel or any other W.P.(C.) Nos. 28370 & 32556 of 2016 -10- material approved in writing by the Chief Controller. The remaining part of Rule 138 sets out the other parameters how petroleum Class-C should be stored. Sub-Rule (5) provides for the distance norm: A distance of not less than 1.5 metres shall be kept clear between the protected works and the edge of such enclosure wall or pit.
26. Article 5 of the Petroleum Rules, on the hand, deals with storing "petroleum in tank or tanks, for "fueling motor conveyances." It refers to Form No. XIV. Of the conditions attached to that Form, Condition No.2 reads thus:
Every tank shall be outside any building and placed in a masonry or concrete pit and packed around with sand, earth or clay so that no air space is left between the tank and the masonry or concrete pit, and the tank is not visible, such a masonry or concrete pit shall not be obligatory if the tank is a welded one and tested up to pressure of 0.25 kg. per square centimeter and is buried and is on a private, leased or rented land and no part of the tank is less than 1.5 metres from any point of the marked boundary of the premises in the approved plan attached hereto.
(italics supplied)
27. Now, we will examine the rival contentions in the above statutory backdrop.
Issues:
(1) In its establishing the fuel station on the property next to the W.P.(C.) Nos. 28370 & 32556 of 2016 -11- petitioners', has the Corporation violated the Guideline 4.5.1 issued by the Ministry of Road Transport and Highways?
(2) Has the Corporation contravened any safety--especially, distance--
norms prescribed in the Kerala Municipality Building Rules? Discussion:
Are the Petitioners Neighbours?
28. The Corporation would have us take that the petitioners are not neighbours --they do not live next to the property where the retail outlet is being established. Though they have property, it maintains, the petitioners live elsewhere. Ext.P1 photograph filed by the petitioners is inconclusive. The Corporation has filed voters' list showing the petitioner with a different address at a far-off place. But I believe it requires more than a voters' list of the yester years to conclude that the petitioners are living in a different place. So, I can neither conclude nor even infer that the petitioners are not living nearby. Their owing property undisputed, I shall reckon, for adjudication, that they live next to the property in issue.
29. The Corporation further maintains that the petitioners have W.P.(C.) Nos. 28370 & 32556 of 2016 -12- been set up by business rivals. It asserts that, earlier, many other people, masquerading as neighbours, have approached various authorities and also filed writ petitions, but to no avail. Because none of the petitioners was, admittedly, a party to those attempts, I decline to draw any adverse conclusions based on that allegation. Issue No.1: Is any Guideline Violated?
30. The Ministry of Road Transport and Highways, the Government of India, issued what are termed as "guidelines/norms for access permission to fuel stations, private properties, rest area complexes and such other facilities along the National Highways." Guideline No.4.5 holds that to provide safe length for the weaving traffic, fuel stations along the National Highways shall be at a minimum distance from an intersection (gap in the central median be treated as an intersection) as per the table given under that guideline. The guideline 4.5.1 deals with Non-Urban (Rural stretches), and Guideline 4.5.2 with urban stretches. Class B(i) of that guideline prescribes that the distance of the retail outlet from an intersection in an urban area with a population over one lakh is 100 metres.
W.P.(C.) Nos. 28370 & 32556 of 2016 -13-
31. As seen from Ext.R5(e)/3 sanctioned plan of the proposed fuel station, the Highway is described as Calicut bypass road. It is a long stretch. To the left of the fuel station is an intersection leading to Cyber Park, 300 metres away. To the right is a road, another intersection, 350 metres away. These are the distances mentioned in the sanctioned plan, going by which I see no intersection within 100 metres from the fuel station.
32. Indeed, the petitioners did assert that there is an intersection within the prohibited distance. The necessary proof lacking, I cannot but conclude that the fuel station does not violate the distance- guideline. On the other hand, it is by now well-established that a guideline has no statutory force, especially, giving a cause of action to a third party against its violation. But, at the same time, the authority that issued the guidelines may enforce them.
33. The authorities while granting permission, I reckon, must have noted the existing intersections. Only after satisfying themselves that the Corporation's proposal violated no guideline, I presume, have the authorities granted the permission. Given the presumption of W.P.(C.) Nos. 28370 & 32556 of 2016 -14- correctness attached to the official acts, absent countervailing evidence, I am constrained to conclude that the fuel station does not violate the distance norms.
Issue No.2: Does the Corporation's Fuel Station Violate the Building Rules?
34. Both the learned counsel for the petitioners spent much of their energy to convince the Court that the Corporation's fuel station violates the Building Rules. Section-2(l) of the Act defines "building" expansively. The nature of structure or the materials it is made of make no difference. Even a human habitation is not a pre-condition. The building encompasses foundations, plinth, walls, floors, roofs, even projections, affixtures, or enclosures. Rule-30 of the Rules, among other things, defines "hazardous building." Going by Rule 30(3)(m) Group I (2) of the Rules, a structure used for storing any combustible material or product--which petroleum is--must be termed as a hazardous building. Sub-Clause 2 is explicit, for it includes a building storing inflammable liquids to be a hazardous structure. "Automobile fuel filling station" stands explicitly mentioned. W.P.(C.) Nos. 28370 & 32556 of 2016 -15-
35. Now, once we conclude that the fuel station is a building, and a hazardous building at that, we may have to examine what distance norms govern a hazardous building. Rule 59(9) mandates that the location or construction of a petrol tank shall be governed by the Petroleum Rules, 1976, which we will refer to later. Rule 59 (10), however, prescribes the distance parameters: "The retail dispensing unit" of a petrol filling station must be installed 7.5 metres away "from any point of the marked boundary of its premises."
36. The petitioners lay frontal thrust on Rule 59 (10) of the Rules. They assert that the distance must be 7.5 metres from the edge of the property. In other words, the distance must be measured from the edge bordering the neighbour's property; I am afraid, this assertion is misplaced.
37. "From any point of the marked boundary of its premises"
highlights that the distance could be measured from any point in a radius of 360 degrees. And it should be from the boundary of the premises. First, we should focus on "Premises."
38. Premises are a tract of land with the buildings thereon; W.P.(C.) Nos. 28370 & 32556 of 2016 -16- a building or part of a building usually with its appurtenances (as grounds). That is how Merriam-Webster defines the expression. A house or building, with its land and outbuildings, occupied by a business or considered in an official context. (Oxford English Dictionary). Black's Law Dictionary defines this expression to mean "a house or building, along with its grounds." The famous law lexicon talks about its "curious history in legal usage." Further, American Heritage English Dictionary traces its word history. The lexicon prefaces its analysis with this question: "Why do we call a single building the premises?" To answer this question, the lexicon observes, we must go back to the Middle Ages. Then, it traces its etymology. The English word "premises" comes from the Latin praemissa, which is both a feminine singular and a neuter plural form of praemissus, the past participle of praemittere, "to send in advance, utter by way of preface, place in front, prefix."
39. In Medieval Latin, the neuter plural praemissa was often used with the sense "things mentioned before" in legal documents. In Middle English legal documents, the plural premisses came to be used W.P.(C.) Nos. 28370 & 32556 of 2016 -17- with the sense "the property, collectively, which is specified in the beginning of a legal document and which is conveyed, as by grant." By the first half of the 1700s, this use of the word had given rise to the modern sense of premises, "a building with its grounds or appurtenances."
40. There is a semantic distinction between a 'building' and 'premises'. A building in its ordinary sense refers to the actual physical structure. Employed as a word art, in various statutes it covers foundations, compound walls, or even Bill Boards. On the other hand, "premises," always used as a plural, includes not only a physical structure, i.e. the building, but also the grounds around it. Enough on etymology.
41. If we read "premises" in its semantic sense here, it leads to absurd consequences: The retail dispensing unit must be installed 7.5 metres away from the filling station itself, for the entire physical structure and the grounds around the structure together become the premises. Instead, if we take premises to be synonymous with building, the dispensing unit of the filling station must be centrally W.P.(C.) Nos. 28370 & 32556 of 2016 -18- located at least 7.5 metres from the edge of the building--the actual physical structure. This distance norm applies to the structures within but not those without. The entire Rule 59 (10) deals with the retail dispensing unit, but the petitioner's grievance is about the storage tank, not the dispensing unit. Therefore, the petitioner's contention must be rejected on two grounds:
1) that the distance refers to location of the dispensing unit within the boundaries of the filling station;
2) The petitioners never contended that the dispensing unit violates the distance norms; on the contrary, they complained against the storage tank.
Form XIV and the Conditions:
42. The petitioners further contended that Form XIV attached to Article 5 of the Petroleum Rules does not apply to the Corporation's fuel station. They maintain that it deals with Petroleum Clause-C as defined under Section 2(bbb) of the Petroleum Act. It is not so. In fact, Rule 138 of the Petroleum Rules delineates how petroleum clause-C should be stored. Sub-Rule 5 provides that a distance of not W.P.(C.) Nos. 28370 & 32556 of 2016 -19- less than 1.5 metres shall be kept clear between the protected works and the edge of such enclosure, wall, or pit.
43. Article 5 of the Petroleum Rules, on the other hand, pointedly deals with storing petroleum in tank or tanks for fueling motor conveyances. It refers to Form No.XIV, the Form produced at the Bar during arguments. It contains many conditions. Condition No.2 makes it mandatory that every tank shall be outside any building and placed in a masonry or concrete pit. It must be on a private lease or rented land, and no part of the tank is less than 1.5 metres from any point of the marked boundary of the premises in the approved plan.
44. I reckon that from the edge of the property in any direction, the storage tank must be built underground away at 1.5 metres. Here the property refers to the very filling station, and the storage tank needs to be located within that property--1.5 metres from the boundary. Granted that the petitioners are the neighbours, it suffices if the Corporation keeps its storage tank 1.5 metres away from the neighbour's property. The petitioners do not dispute that the property is over 1.5 metres away from their properties.
W.P.(C.) Nos. 28370 & 32556 of 2016 -20-
In these circumstances, I hold that the Corporation has violated neither Ext.P2 guidelines nor the Kerala Municipality Building Rules. As a result, I dismiss the writ petitions, but no order on costs.
DAMA SESHADRI NAIDU, JUDGE.
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