National Green Tribunal
D. Vijayaragavan vs The Commissioner Of Police on 1 July, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.5:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.22 of 2021 (SZ)
IN THE MATTER OF
D. Vijayaragavan
S/o. Duraisamy,
New No. 36 (Old No.2), Alagesan Street,
West Tambaram,
Chengalpattu District,
Chennai - 600 045.
...Applicant(s)
Versus
The Commissioner of Police
Greater Chennai Police,
No. 132, Commissioner Office Building,
EVK Sampath Road, Vepery,
Periyamet, Chennai - 600 007 and Ors.
...Respondent(s)
For Applicant(s): Mr. V.B.R. Menon.
For Respondent(s): Dr. D. Shanmuganathan for R1, R4& R6.
Mr. S. Sai Sathya Jith for R2.
Mr. P. Srinivas through
Mr. N.K. Ponraj for R5.
Mr. Abdul Saleem and
Mr. S. Saravanan for R7.
Mr. T.N.C. Kaushik for R8.
Judgment Pronounced on: 01st July, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 1 of 42
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.22/2021 (SZ) 01st July 2022. Mn.
Page 2 of 42 Item No.5:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.22 of 2021 (SZ)
IN THE MATTER OF
D. Vijayaragavan
S/o. Duraisamy,
New No. 36 (Old No.2), Alagesan Street,
West Tambaram,
Chengalpattu District,
Chennai - 600 045.
...Applicant(s)
Versus
1. The Commissioner of Police
Greater Chennai Police,
No. 132, Commissioner Office Building,
EVK Sampath Road, Vepery,
Periyamet, Chennai - 600 007.
2. The District Environmental Engineer
Tamil Nadu Pollution Control Board,
Maraimalai Adigalar Street, Maraimalai Nagar, Chengalpattu District, Chennai - 603 209.
3. The Joint Chief Controller of Explosives A and D Wing, Block 1 - 8, 2nd Floor, Shastri Bhavan, No. 26, Haddows Road, Numgambakkam, Chennai - 600 006.
4. The District Collector Chengalpattu District, District Collector Office, GST Road, Chengalpattu - 603 001.
5. The Commissioner Tambaram Municipality, No. 28, Muthuranga Mudali Street, Tambaram West, Tambaram, Chennai - 600 045.
Page 3 of 426. The Divisional Engineer (H) Construction and Maintenance, Highways Department, Chennai City Road Division, No. 394/4, Anna Salai, Saidapet, Chennai - 600 015.
7. M/s. Bharat Petroleum Corporation Limited Rep. by the State Head (Retail), Southern Regional Office, No. 1, Ranganathan Gardens, Office 11th Main Road, Anna Nagar, Chennai - 600 040.
8. The Regional Director Regional Directorate (South), Central Pollution Control Board, 2nd Floor, No. 77 - A, South Avenue Road, Ambattur Industrial Estate, Chennai - 600 058.
[R8 impleaded as per Oder dt: 16.07.2021 in I.A. No.96 of 2021 (SZ)] ...Respondent(s) For Applicant(s): Mr. V.B.R. Menon.
For Respondent(s): Dr. D. Shanmuganathan for R1, R4& R6.
Mr. S. Sai Sathya Jith for R2.
Mr. P. Srinivas through Mr. N.K. Ponraj for R5.
Mr. Abdul Saleem and Mr. S. Saravanan for R7.
Mr. T.N.C. Kaushik for R8.
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 Page 4 of 42 JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The above application was filed by the applicant against the establishment of Petroleum Retail Outlet in T.S. No.77, Tambaram Municipality at New Door No.28 (Old No.1), Alagesan Street, West Tambaram, Chennai and alleging that it is in gross violation of the 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 and also the mandatory norms prescribed in Circular No.12-2009 by the Indian Road Congress.
2. It was submitted in the application that the Principal Bench of National Green Tribunal, New Delhi in Original Application No.147 of 2016 dated 28.09.2018 had reiterated the impact of the vapour that is being released from the Petroleum Retail Outlets on health of the people and necessity for providing additional safety measures till installing VRS (Vapour Recovery System) in the Petroleum Retail Outlet with siting criteria.
Further, on the basis of the final order issued by the Principal Bench in Original Application Nos.31 of 2019 and 86 of 2019 dated 22.07.2019, the Central Pollution Control Board had issued the Office Memorandum No.B-13011/1/2019-20/AQM/10802-10847 dated 07.01.2020 prescribing the norms providing siting criteria for establishment of new Petroleum Retail Outlet.
3. The applicant son who is a lawyer made complaint through e-mail to the CPCB on 14.05.2020 objecting to the proposed Petroleum Retail Outlet of the 7th Respondent. Another lawyer on behalf of the residents of the area also filed complaints through e-mail to the 3rd Respondent and 1st Respondent and the Deputy Chief Controller of Explosives, Nagpur had sought for an action taken report from the 3rd Respondent vide Letter Ref. No.R1(1)137/Misc./Pet/2020 dated 12.06.2020 and the 2 nd Respondent had sent a letter vide Ref:DEE/TNPCB/MMN/Complaint/2020 dated 07.07.2020 to the 5th Respondent to take appropriate action on the above complaints. The 6th Respondent had confirmed through a RTI reply Page 5 of 42 dated 24.07.2020 that no NOC has been issued by the Highways Department which shall constitute violation of the affidavits filed by the Tamil Nadu Government in W.P. Nos.691 of 2017 and 18753 of 2019. Several complaints were filed through lawyers regarding this aspect.
4. It is further alleged in the application that the revised proforma prescribed under Rule 144 (7) r/w Rule 144 (1) of Petroleum Rules, 2002, envisages an inquiry under Rule 144 (5) of the Petroleum Rules, 2002, as held by the Division Bench of Hon'ble High Court of Madras at Madurai Bench in W.P. (MD) No.5690 of 2019 dated 05.08.2019, but no such enquiry was conducted. Moreover, there is a primary health care centre situated having 10 beds within 30 meters just across the road and a hospital by name Suder Hospital with about 15 beds at about 40 meters behind the proposed site and this will be in violation of the guidelines issued in this regard. The NOCs were granted against the decisions of the Hon'ble High Court of Madras in W.P. (MD) No.5690 of 2019, W.P. No.18753 of 2019 and W.P. No.11906 of 2020. It is also against the siting criteria provided by the CPCB. The Kerala SPCB had issued a Circular dated 18.08.2020 by modifying the distance from notified residential area to distance from nearest residential buildings, in order to remove the ambiguity/confusion in the CPCB Circular dated 07.01.2020 so that the main purpose of prescribing the safe distance of 50 meter from residential buildings shall be protected.
5. The applicant also reiterated the ill effects of establishing the Petroleum Retail Outlet near the residential buildings and the residential area. Since the authorities have not taken any proper steps, he filed the application seeking interim as well as final reliefs:-
"Interim Relief:
A. Injunct the 7th Respondent from proceeding with the construction, erection and commissioning works at the proposed Petroleum Retail Outlet in T.S.No: 77, Tambaram Municipality at New Door No: 28 (Old No: 1), Alagesan Street, West Tambaram, Chennai- 600 045, Chengalpattu District pending disposal of this application and B. pass such further order or orders as may be fit and proper and necessary in the facts and circumstances of the case.Page 6 of 42
Final Relief:
A. Permanently injunct the 7th Respondent from opening and operating a New Road-side Petroleum Retail Outlet in T.S.No: 77, Tambaram Municipality at New Door No: 28 (Old No: 1), Alagesan Street, West Tambaram, Chennai- 600 045, Chengalpattu District in violation of the siting criteria prescribed by the Central Pollution Control Board (CPCB) in Clause "H" of the Office Memorandum No. B- 13011/1/2019-20/AQM/10802-1087 dated 07.01.2020 and the mandatory norms prescribed under the Circular No.12-2009 by the Indian Road Congress.
B. Pass such further order or orders as may be fit and proper and necessary in the facts and circumstances of the case and thus render justice"
6. The 7th Respondent filed counter affidavit contending that the application is not maintainable. They admitted the fact that they proposed to establish the fuel retail outlet in T.S No. 77, Tambaram Municipality at Door No. 28 (old No.1), Alagesan Street, West Tambaram, Chennaiand obtained necessary permissions from the competent authorities such as PESO, Local body, Commissioner of Police as per the prevailing rules and in the mean time, one Mr. P. Ravichandran has raised an objection to the establishment of the subject retail outlet and he had sent his objection to the Chief Controller of Explosives, PESO in his letter dated 29.05.2020, who in turn forwarded the same to the 7threspondent for response vide letter dated 07.07.2020. They have submitted the reply along with the drawing having required distances mentioned in the topo plan vide their letter dated 11.08.2020. After verification of the same, the Joint Chief Controller of Explosives, Chennai had issued initial approval for subject retail outlet on 14.10.2020. They denied the allegation regarding the probable danger etc. alleged on account of establishment of the retail outlet. The proposed retail outlet meets all safety norms as per the PESO as well as CPCB guidelines and they will take care of all safety measures to protect from the probable pollution that is apprehended by the applicant on account of the operation of the unit. The copy of the complaint said to have been sent by the applicant son to the Chairman - CPCB has not been received by the respondent. They were not aware of the other complaints made as well. NOC has been issued by the Commissioner of Tambaram Municipality vide Ref: 1487/2020/F1 dated 10.07.2020 for development of subject retail outlet. The Commissioner of Police, Chennai had issued NOC for Page 7 of 42 the subject retail outlet with certain conditions under Rule 144 of Petroleum Rules, 2002, after carrying out site inspections in accordance with law vide Letter dated 29.10.2020. They denied the allegation of existence of any residential buildings near the proposed site. Two sides of proposed petroleum site are abutting to the roads and other two sides are surrounded by commercial buildings like authorized service centre of V-Guard, TBF Nidhi Kumbakonam Ltd, Grace Electronics etc. As per the CMDA plan of Tambaram, the old survey Nos. 310, 314 and 315 are a part of mixed residential area. As per the NOC issued by the Commissioner -Tambaram Municipality dated 10.12.2020,this was confirmed as a mixed residential area. The IRC Guidelines are only recommendatory in nature and it is not having any statutory force, as it was observed by the Division Bench of the Hon'ble High Court Madras in the Judgment dated 17.10.2019 in a batch of Writ Petitions viz., W.P.Nos.: 19218, 2661, 3678 and 705 of 2019. There was no hospital situated within a distance of 50 meters. The Suder Hospital is situated at 86 meters from the fuel station and it was clearly shown in the topo plan submitted to the PESO. There is no violation of siting criteria and necessary permissions have been granted on the basis of the documents and satisfaction of the authorities.
7. The 8th Respondent filed reply affidavit contending that the siting criteria specified in CPCB Guideline dated 07.01.2020 applies to residential area designated as per local laws. In a similar matter was referred to CPCB by Kerala State Pollution Control Board (KSPCB), they suggested that KSPCB in consultation with the State Government may decide about the classification of residential area for implementation of siting criteria. With regard to setting up of new Petrol Pumps, a minimum distance of 30 meters from Hospital or School or residential area, designated as per local laws has been prescribed in CPCB guidelines dated 07.01.2020 and that distance needs to be considered from fill point/ dispensing units/ vent pipe of the petrol pumps whichever is nearest to the Hospitals, School and Residential area. The siting criteria will applicable only those Retail Outlets which commenced on or after 07.01.2020 and that is not applicable to those cases where PESO prior clearance/ initial approval Page 8 of 42 has been obtained and subsequently construction has been started by OMCs before 07.01.2020. As per the directions of the National Green Tribunal, they prepared guidelines and circulated the same to all the SPCBs/ PCCs for implementation. So, they prayed for passing appropriate orders on the basis of their contentions.
8. As per order dated 03.02.2021, while admitting the matter, this Tribunal had appointed a Joint Committee comprising of (i) District Collector - Chengalpattu District or a Senior Officer not below the rank of Assistant Collector or Sub Divisional Magistrate deputed by the District Collector and (ii) a Senior Officer from the Tamil Nadu Pollution Control Board as designated by its Chairman to inspect the area in question and submit a factual as well as action taken report, if there is any violation found.
9. The Joint Committee was directed to ascertain as to whether the siting criteria has been complied with and also the distance between the nearest houses/schools/hospitals and the proposed petroleum outlet and whether the necessary permission and consent etc. have been obtained by them for this purpose and if there is any violation found, the proposed action to be taken also to be suggested. The Tamil Nadu Pollution Control Board was designated as the nodal agency for co-ordination and also for providing necessary logistics for this purpose.
10. The Joint Committee has filed a report dated Nil, e-filed on 29.06.2021 which reads as follows:-
"INSPECTION REPORT OF THE JOINT COMMITTEE CONSTITUTED BY THE HON'BLE NATIONAL GREEN TRIBUNAL (SOUTHERN ZONE) IN RESPECT OF O.A. NO. 22 OF 2021 (SZ) FILED BY THIRU D.VIJAYARAGAVAN, TAMBARAM, CHENGALPATTU DISTRICT AGAINST THE ESTABLISHMENT OF A NEW PETROLEUM OUTLET IN TAMBARAM, CHENGALPATTU DISTRICT.
It is respectfully submitted that the grievance of the applicant Thiru. D.Vijayaragavan, Tambaram, Chengalpattu District is regarding the establishment of a new petroleum outlet in Tambaram Municipality, which according to the applicant is against the guidelines provided by the Central Pollution Control Board (CPCB), which in turn has been circulated by the Tamil Nadu State Pollution Control Board (TNPCB). As per the Town Planning Scheme the place where the present Petroleum outlet is going to be established is a residential area and the siting criteria in respect of establishment of new petroleum outlets has not been properly followed, hence forthwith the applicant has filed this application no.22 of 2021 before the Hon'ble National Green Tribunal (SZ).Page 9 of 42
ORDERS OF THE HON'BLE TRIBUNAL Hon'ble National Green Tribunal (SZ) in its order in original application No.22 of 2021 dated 03.02.2021 has constituted a Joint Committee comprising of (1) the District Collector, Chengalpattu District, (2) a senior officer from Tamil Nadu Pollution Control Board to inspect the area in question and submit a factual as well as action taken report if there is any violation found.
It is respectfully submitted that the Hon'ble Tribunal directed the committee to ascertain as to whether the Siting Criteria has been complied with and also the distance between the nearest houses, the proposed petroleum outlet and whether necessary permission and consent etc., have been obtained by them for this purpose and if there is any violation found then, the proposed action to be taken also to be suggested.
The Tamil Nadu Pollution Control Board will be the nodal agency for coordination and for providing necessary logistics for this purpose.
It is respectfully submitted that the Chairman, Tamil Nadu Pollution Control Board, Chennai vide Proc. No.TNPCB/LAW/LAV/NGT/04168/2021 dated 23/02/2021 has nominated the District Environmental Engineer, Maraimalai Nagar as nodal officer.
It is respectfully submitted that the as per the CPCB guidelines vide office memorandum B-13011/1/2019-20/AQM dated 7th Jan 2020, in clause H - Siting criteria for new Retail outlet states that 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.
Observation of the Joint Committee as constituted by the Hon'ble Tribunal The Joint Committee as constituted by the Hon'blo Tribunal has inspected the area in question on 26/06/2021 and the observations are as follows.
1. The proposed said Bharat petroleum retail outlet premises with a plot area of 7104 Sq.ft at T.S.No.77, Tambaram Municipality situated at New Door No.28 (Old No.1). Alagesan Street, West Tambaram, Chengalpattu District is owned by Thiru.M.Govindaraj and the same is leased by Tmt. Mahalakshmi to run the said retail outlet.
2. The proposed outlet has installed 2 Nos of underground storage tanks of 20KL capacity each (one for the storage of Diesel and other for Petrol) with 2 Nos. of air vent.
3. The proposed outlet has installed 3Nos of fuel dispensing unit.
4. A borewell is located in the North eastern corner of the site.
5. The proposed outlet site is surrounded by the following:
East - Commercial shops and residences.
West - Road and Commercial shops and residences. North - Road, Urban Primary Health Centre (Ranganathapuram). Tambaram Municipality and Commercial shops and residences South - Residences and Commercial shops.Page 10 of 42
6. The proposed outlet is adjacent to the residences and commercial shops in east and southern sides.
7. Government Urban Primary Health Centre with 10 beds is operating within a distance of 30 metres. The said health care facility has obtained consent of the Board vide Procs.No.F.2139MMN/OS/DEE/TNPCB/MMN/W&A/2019 dated 13/05/2019 valid up to 31/03/2029.
8. The applicant Thiru. D.Vijayaragavan residence is located adjacent to the said proposed petroleum retail outlet.
9. No High tension TNEB line passes over the proposed site.
10. The proponent has provided permanent GI sheet gladding to a height of 22 feet in the eastern as well as southern side of the site boundary and provided temporary GI sheet gladding to a height of 20 feet in the western and northern side, the said temporary GI sheet gladding will be removed after the establishment of the retail outlet.
11. The proponent has stopped the further establishment activity as noticed during the time of inspection It is respectfully submitted that the proponent of the proposed petroleum outlet has obtained the permission/ NOC's from the following authorities:
1. PESO petroleum and explosives safety organization has accorded prior approval No.A/P/SC/TN/14/9669 (P467698) dated: 03.02.2020.
2. No objection certificate obtained from the Commissioner of police, Greater Chennai Police dated: RC No.E2(2)/231/24159/2020, NOC No.28 of 2020 dated: 29.12.2020.
3. Tambaram Municipality vide letter No. 148712020/F1 dated:
10.07.2020 accorded NOC stating that the site is located in the Mixed Residential Area.
4. NOC from Fire and Rescue Department No. 1989/B1/20120 dated: 27.02.2020.
Recommendations of the Joint Committee Based on the above observation, the Joint committee submits the following recommendation before the Hon'ble National Green Tribunal (Southern Zone) The proposed petroleum outlet is not satisfying the siting criteria prescribed by the Central Pollution Control Board in clause H of tho Guidelines vide office memorandum 8 13011/1/2019-20/AQM dated 7th Jan 2020, since It is located in the mixed residential use zone as per Tambaram Municipality, residences are located adjacent to the proposed outlet, healthcare facility having bed strength of 10Nos, is located within 30meters, hence the Petroleum and Explosives Safety Organization (PESO) shall be directed to revisit the approval accorded to the proposed outlet vide approval No.A/PISC/TN/14/9669 (P467698) dated:
03.02.2020 in accordance with the above said CPCB guidelines."
11. The applicant as well as the 7th Respondent has filed their objections to the Joint Committee report.
12. After reopening the matter vide Order dated 10.02.2022, the 7th Respondent has filed additional reply affidavit contending that the IRC Guidelines are only recommendatory in nature and not statutory in force.
They have obtained necessary permission for establishment of Petroleum Page 11 of 42 Retail Outlet and it is in consonance with the siting criteria provided. They have taken all precautions to protect environment under the possible pollution that is being raised. So, they prayed for dismissal of the application.
13. Heard the learned counsel appearing for the applicant as well as respondents.
14. The learned counsel appearing for the applicant filed a detailed written submission and argued in tune with the contentions raised in the written submission. The learned counsel also argued that the Petroleum Retail Outlet is situated within the prohibited distance from a school and he had relied on the decision of the Hon'ble High Court of Madras in W.P. No.19255 of 2020 dated 02.03.2021 and W.P. No.4321 of 2020 dated 22.09.2021, wherein the Hon'ble High Court of Madras observed that Rule 11 (j) of G.O. No.256 of 2015 shall be applicable, in addition to the CPCB siting criteria, in respect of all types of schools where students within the age group of 2.5 to 5.5 years (Play school classes) are studying. He had also relied on the order of the Hon'ble High Court of Madras in W.P. No.23546 of 2017 dated 05.09.2017, relying on the decisions of the Bombay High Court reported in (2009) 4 MhLJ 255 regarding the applicability of the above said rules to other types of schools also by taking note of the health hazards associated with operation of petroleum outlets on young children. Further, the necessary enquiry as contemplated under the Petroleum Rules, 2002 were not conducted by the 3rd Respondent. Though there was an exemption granted to establish the petroleum retail outlet within 30 meters from the above said institutions, there is a safeguard provided that additional safety measures will have to be provided, but what is the nature of additional safety measures provided by the PESO has not been mentioned therein. There was a violation of G.O. Ms. 79 dated 04.05.2017 regarding change of land use and the construction was made without obtaining necessary permission from the Municipal Corporation and steps have been taken in this regard by them. The IRC Rules have been violated as well.
Page 12 of 4215. Further, the learned counsel appearing for the applicant relied on the decisions of the Hon'ble High Court of Madras in W.P. No.11906 of 2020 and all the permissions were obtained after the guidelines were issued by the CPCB on the basis of the directions given by the Principal Bench of National Green Tribunal in Original Application No.31 of 2019 and 86 of 2019 dated 22.07.2019. Some of the decisions relied on by the 7th Respondent are pending in appeal before the Hon'ble High Court of Madras. So, the 7th Respondent is not entitled to contend that the guidelines are not applicable and the dictum laid down in W.P. No.34652 of 2019 and connected order passed by the Hon'ble Apex Court in SLP (C) No.12699 of 2021 are in respect of outlet situated in Union Territory of Puducherry where the Government has not yet adopted the IRC Norms whereas, as regards the State of Tamil Nadu is concerned, a direction was issued by the Principal Secretary to Government to comply with the IRC Norms and as such, those decisions are not applicable. As regards W.P. No.18753 of 2019 is concerned, a writ appeal was filed as Writ Appeal No.1187 of 2021 and that is pending and it has not become final.
16. The learned counsel appearing for the State Pollution Control Board and the Central Pollution Control Board reiterated their contentions raised by them in the written statements and they also argued that the petroleum retail outlets are not coming within the consent mechanism and as such, the Pollution Control Board has limited role in monitoring the same.
17. The learned counsel appearing for the State Departments argued that necessary permissions were granted after complying with all procedures and after getting necessary documents and reports and conducting proper enquiry in this regard. If the applicant is aggrieved by the same, their remedy is to challenge the same before the appropriate forum and not before this Tribunal.
18. The learned counsel appearing for the 7th Respondent argued that none of the contentions raised by the applicant are applicable to the facts of this case. The G.O. Ms. 79 dated 04.05.2017 is not applicable to the facts of this case and if any conversion was granted against the provisions, this Tribunal will not be having jurisdiction to entertain the same. Further, Page 13 of 42 the applicant has filed this application without any bonafides. They obtained necessary permission from the various authorities and there is no school and hospital (having 10 beds and above) and it was not a residential area designated under the local laws. The school situated is not a primary school and it is a higher secondary school and as such, the guideline relied on by the applicant in respect of primary schools are not applicable. Further, the Petroleum Retail Outlet is situated about 36 meters from the said school and it is beyond the 30 meter minimum distance provided in the CPCB Guideline. The IRC Guidelines are not applicable. The Division Bench of Hon'ble High Court of Madras in W.P. No.19218, 2661, 3678 & 705 of 2019 observed that until the State Government adopted the IRC Norms and issued statutory rules, the same is not applicable to the State of Tamil Nadu and the same has been reiterated by the First Bench of the Hon'ble High Court of Madras in W.P. No.34652 of 2019 and batch of connected case in its order dated 01.08.2021 and this was challenged before the Hon'ble Supreme Court by filing SLP (C) No.12699 of 2021 and the same was dismissed by the Hon'ble Apex Court by Order dated 03.09.2021 and it has become final.
19. The learned counsel appearing for the 7th Respondent also relied on the decisions of the various Hon'ble High Courts and the Hon'ble Apex Court in respect of the contention that the CPCB Guidelines if it is not issued under Section 5 of the Environment (Protection) Act, 1986, has no statutory force and it will have only recommendatory in nature and he had relied on the decisions 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 in support of their case.
20. 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.
Page 14 of 4221. The points that arose for consideration are:-
i. Whether the disputed Petroleum Retail Outlet has been established in violation of the siting criteria issued by the Central Pollution Control Board?
ii. Whether the applicant is entitled to any of the reliefs claimed in the application?
iii. Whether even assuming that the disputed Petroleum Retail Outlet is to continue with the existing siting criteria, what are all the further directions (if any) to be issued by this Tribunal applying the "Precautionary Principle"?
iv. Relief and costs. POINTS:-
22. The grievance in this application was that the proposed Petroleum Retail Outlet is being set up inT.S. No.77, Tambaram Municipality at New Door No.28 (Old No.1), Alagesan Street, West Tambaram, Chennai by the 7th Respondent, as it is against the Office Memorandum No.B-13011/1/2019-
20/AQM/10802-10847 dated 07.01.2020 issued by the CPCB and the subject Petroleum Retail Outlet was not yet started.
23. According to the applicant, there is a primary health care centre with over 10 beds within 30 meters just across the road and a hospital by name Suder Hospital with about 15 beds at about 40 meters behind the proposed site, apart from that the house of the applicant is also situated very near to the same. Though the applicant had contended that the fake NOCs were obtained by the person who are applying for license for Petroleum Retail Outlets and was considered by the Hon'ble High Court of Madras in W.P. No.11906 of 2020, in the absence of any evidence to show that it was a fake or forged NOC obtained, we are not going to the question in this case.
24. The case of the official respondents was that they have taken all precautions and the 7th Respondent had obtained necessary permissions and as such, there is no necessity to go into those aspects by the Tribunal. Further, the NOC cannot be challenged before the Tribunal as well.
Page 15 of 4225. 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.
26. 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.
27. The applicant relied on the notification issued by the Government of Tamil Nadu in respect of Code of Regulations for Play Schools, 2015 dated 22.12.2015 for the proposition that under Rule 11 (j) of the said Regulations, it was mentioned that the play schools are not to be located near petrol bunk which is less than 100 meters. It was relied on for the purpose that no petrol pump can be situated within 100 meters of the school.
28. As regards the conversion of the agricultural land for commercial purpose relying on the notification issued by the Housing and Urban Development [UD4(3) Department] G.O. (Ms.) 79 dated 04.05.2017, the authorities have not properly considered the rules before granting permission for conversion. But we don't think that there is any necessity for this Tribunal Page 16 of 42 to go into the question, as if the applicant was aggrieved regarding the permission for conversion granted, his remedy is to approach the appropriate forum and the National Green Tribunal cannot grant such relief in this regard, as that will not come under any of the statutes provided under Schedule - I of the National Green Tribunal Act, 2010.
29. In the decision reported in W.P. No.23546 of 2017 (B. Moorthi Vs. The District Revenue Officer, Coimbatore District &Ors.) while granting an interim order, the Division Bench of the Hon'ble High Court of Madras relying on the decision of St. Philomena Convent High School, Nasik cited supra observed that when a petrol pump is proposed to be located within 25 meters from the gate of the school as against the provisions of Code of Regulations for Play Schools, 2015, it was observed that though that regulation was applicable to the play schools, but there is no reason as to why there should not be similar regulations in relation to recognized schools (other than play schools) which have long been in existence and granted Status Quo order to be maintained and it is not known as to whether the case has been finally disposed or not.
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 vapour 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 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 V.B.R. Menon, B.E. (Mech.) Vs. The Secretary to Union of India, Ministry of Petroleum and Natural Gas, Shastri Bhawan, New Delhi &Ors. (W.P. No.691 of 2017), the Division Bench of the Hon'ble High Court of Madras by Judgment dated 18.01.2019, Page 17 of 42 disposed of the matter on the basis of the clarification given by the State of Tamil Nadu that a clarification memo was issued for issuance of NOC for road side petroleum retail outlets by Oil Marketing Companies or any other agency in respect of Government Highway roads i.e. State Highways, State Highways Urban, Major District Roads, Other District Roads and Other District Roads (Sugarcane Roads), the guideline issued by IRC 12-2009 shall be strictly followed for passing orders. In the earlier notification, it was only mentioned that the guidelines will apply only for Government Highways not including other district roads etc. and relying on the clarification issued, the Writ Petition was disposed of. This was relied on by the learned counsel appearing for the applicant for the proposition that IRC Circular No.12-2009 is applicable to the State of Tamil Nadu and that was accepted by the State of Tamil Nadu before the Hon'ble High Court of Madras.
32. 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.
Page 18 of 4233. 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.
34. 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.
35. 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 other special statute.
36. In the decision reported in W.P. (MD) Nos.19218, 2661, 3678 and 705 of 2019, the Hon'ble High Court of Madras at Madurai Bench held that the IRC Guidelines unless accepted by the State Government and Rules framed in accordance with law, will not have any statutory force and even the orders issued by the Principal Secretary to Government is not having any statutory force and further observed that it is only recommendatory in Page 19 of 42 nature and not mandatory in nature, relying on the earlier decision of the Division Bench of the Hon'ble High Court Madras dated 11.03.2021 in W.P. No.35885 of 2019 and it was also referred to the interim orders relied on by the writ petitioner in that case and observed that no final decisions have been taken in those cases and as such, that will not give any binding effect.
37. The learned counsel appearing for the applicant submitted that the order passed by the Hon'ble High Court of Madras in W.P. No.35885 of 2019 is contrary to the order passed by the Division Bench in W.P. No.18753 of 2019 and against that order, a Writ Appeal [W.A. No.1187 of 2020] has been filed and that is pending. Since that position has not become final, the decision of the Division Bench holding that it is not mandatory in nature with regard to the State of Tamil Nadu will prevail.
38. The same view has been reiterated by the Hon'ble High Court of Madras in W.P. No.34652 of 2019 and it was challenged before the Hon'ble Apex Court by filing SLP (C) No.12699 of 2021, the same was confirmed. But the learned counsel appearing for the applicant wanted to distinguish the same on the ground that it was related to the Union Territory of Puducherry where the State Government has not adopted the IRC Norms. But it may be mentioned here that the subsequent decision of the Division Bench has observed that it is not mandatory till it was adopted by the State Government and the learned counsel for the Oil Market Company had produced the subsequent notification issued by the State of Tamil Nadu adopting the IRC Circular No.12-2009 only in 2022 as per G.O. (Ms.) No.25 dated 24.02.2022 issued by the Highways & Minor Ports (HN2) Department and that will be applicable only thereafter. Since the notification was issued by the State of Tamil Nadu adopting the IRC Guidelines in respect of consideration of application for NOC only in 2022, that will not have retrospective operation and till the final decision as taken by the Hon'ble High Court in the Writ Appeal cited supra, it can only be said that the IRC Guidelines are only directory and not mandatory, as far as State of Tamil Nadu is concerned, as on the date of consideration of the application for NOC which is under challenge in this case.
Page 20 of 4239. In the decision reported in Tej Bahadhur Vs. Shri Narendra Modi reported in 2020 SCC Online SC 951, while considering the question of locus standi, the Hon'ble Apex Court observed that a person having no or insufficient interest lacks locus standi to file application. That was a case where the election of Shri Narendra Modi was challenged on certain grounds and the Hon'ble Apex Court had observed that the person who challenged the election petition has no locus standi to file the same, as the petition did not disclose that the applicant has cause of action which invested him with right to sue. That was an appeal filed against the order passed by the Hon'ble High Court.
40. In the decision reported in Seethalakshmi Ammal Vs. State of Tamil Nadu & Anr. in W.P. (C) No.2064 of 1983 and connected matters reported in (1992) 1 MLJ 606, it wasobserved that only those who are having some cause of action or interest in the litigation alone has power to challenge the same, as he cannot be said to be an aggrieved person. The same was reiterated by the Hon'ble High Court of Delhi in Hindustan Photo Films Manufacturing Company Limited & Union of India Vs. CEGAT reported in 1990 SCC Online Del 493 and the same view has been reiterated by the National Green Tribunal, Western Zone Bench, Pune in Amit Maru Vs. Secretary of MoEF&CC & Ors. reported in 2014 SCC Online NGT 6972. But as regards the environmental issues are concerned, it cannot be said that only a personally aggrieved person can file an application but if there is any substantial question of environment is raised on account of certain violations of environmental laws and non-implementation of the environmental laws, then he will be getting a right to file an application under Section 14 & 15 of the National Green Tribunal Act, 2010. There was an acceptable evidence to show that the applicant has filed this application as sponsored person on behalf of a rival existing Petroleum Outlet owner.
41. 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 Page 21 of 42 year 2003 was not statutory in nature and as such, it will not give any effect too.
42. 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 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 cannot be enforced 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 evidence 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.
43. 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.
44. 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 @ Page 22 of 42 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, preventing measures and monitoring requirement and the timelines and feasibility report has to be finalized within three months. It is on that basis, a further report was filed dated 08.07.2019, on the basis of the Expert Committee appointed 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. Operation of such Retail Outlet shall be stopped immediately.
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.Page 23 of 42
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 24 of 42
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 25 of 42 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 26 of 42 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.
45. 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 27 of 42
46. 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‟.
47. 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 PCBs/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 hazard 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 adopt the rules and Page 28 of 42 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.
48. 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, Page 29 of 42 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. 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.
49. 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."
50. 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 30 of 4251. 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
52. 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.
53. 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 Page 31 of 42 the „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.
54. 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 override 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.
55. 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.
56. In order to the ascertain the genuineness of the allegations made in the application, this Tribunal had appointed a Joint Committee to go into the question and the Joint Committee has filed a report, wherein it is seen that there are lot of residence located adjacent to the proposed Petroleum Page 32 of 42 Retail Outlet and the health care centre having bed strength of 10 Nos. is also located within 30 meters. So, the PESO shall be directed to revisit the approval accorded to the proposed outlet vide Approval No.A/P/SC/TN/14/9669 (P467698) dated 03.02.2020 in accordance with the above said CPCB Guidelines.
57. The 7th Respondent has filed objection to the Joint Committee report stating that the letter issued from the Tambaram Municipality will go to show that the Upgraded Primary Health Care Centre of Tambaram Municipality at Ranganathapuram had only 3 beds facility to do normal delivery and it is an outpatients treatment health centre only. The copy of the letter ROC. No.1840/2021/H1 dated 08.07.2021 and also the letter issued from the Health Care Centre dated 15.02.2021 were produced along with the objection to the Joint Committee report.
58. In view of the observations made by the Joint Committee in their report vide Clause H, we are not satisfied with the individual certificate given by the Medical Officer and the Sanitary Inspector of the hospital and the Municipality, especially when it was based on the Consent granted by the State Pollution Control Board where they would have mentioned the nature of hospital with its facilities.
59. Though it was mentioned in the Judgment relied on by the learned counsel appearing for the 7th Respondent of the Hon'ble High Court of Kerala in W.P. (C) No.7038 of 2021 (S) (Anil Kumar T.S. Vs. Union of India &Ors.) where a prayer was made to revoke the permission granted for allotment and construction of Petroleum Retail Outlet in Thaneermukkom roadside of Muhamma Grama Panchayat relying on the CPCB Guidelines and the Pollution Control Board Guidelines, the Hon'ble High Court has observed that the State Pollution Control Board had already granted Consent to Establish on 28.04.2020 and as such, it cannot be said that it was an illegal construction. Further, the distance criteria was not established by the writ petitioner and the Hon'ble High Court came to the conclusion that the authorities have considered all these aspects and only thereafter, necessary permissions were granted and found that it is not a fit case to interfere with under Article 221 of the Page 33 of 42 Constitution of India, but there was an observation made that "it was made clear that the distance criteria is not peremptory but flexible in nature, in order to contain the requirements and inevitable circumstances existing in the locality in question".
60. But it may be mentioned here that it cannot be said to be a finding on fact and ratio decidendi to be followed, it was only an observation made. It also gives an indication that the authorities will have to consider the flexibility of the distance criteria and reasons must be given for that purpose. So, it cannot be said that the distance criteria need not be considered and it cannot be treated as a decision to come to the conclusion that the CPCB Guidelines in respect of distance criteria had no statutory force, but on the other hand, it will help the Tribunal to come to the conclusion that it will have to be considered while granting permission.
61. So, under such circumstances, we feel that it is a fit case where the establishment/functioning of the Petroleum Retail Outlet in the disputed area in T.S. No.77, Tambaram Municipality at New Door No.28 (Old No.1), Alagesan Street, West Tambaram, Chennai has to be kept in abeyance and the authorities will have to be directed to revisit the NOC issued and the license issued taking into the consideration the observation made by the Joint Committee as well as the Tribunal in the earlier paragraphs and only thereafter, they can proceed with further work or operation of the unit in the interest of justice and also protect the interest of the public, on the basis of the observation made 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.
62. So under such circumstance, 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 Page 34 of 42 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 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.
e. 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 Page 35 of 42 the distance criteria to be adopted for the purpose of establishing new Petroleum Retail Outlet and this is likely to be 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 f. 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 by the stakeholders and the statutory authorities.
g. 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.
Page 36 of 42h. The NOC/License/Other permissions granted to the 7th Respondent for establishment of a Petroleum Retail Outlet is directed to be kept in abeyance and the authorities namely, the Commissioner of Police
- Greater Chennai of Police, Chennai or the concerned authority, the District Collector - Chengalpattu District and the PESO are directed to conduct further enquiry on the basis of the Joint Committee report produced in this case and also after giving opportunity to the applicant to raise their objections and after conducting enquiry as directed by the Hon'ble High Court of Madras in the decisions referred to above while granting permission under Rule 144 of the Petroleum Rules, 2002 and thereafter, pass appropriate fresh orders in accordance law.
i. While considering the grant of NOC, the authorities are directed to consider the distance criteria provided by the CPCB vide their Circular dated 07.01.2020 and also additional safety measures (if any) to be taken if at all it can be permitted and also they must give reason as to why they are flexible in reducing the distance from 50 meters to 30 meters from the Health Care Centre and then, pass appropriate further orders in accordance with law.
j. The Tambaram Municipal Corporation is also directed to consider these aspects mentioned above while granting the building permission for this unit and the 7th Respondent is directed not to proceed with the construction work without obtaining any building permission from the Corporation/Local Body.
k. Till further orders are passed by the authorities mentioned above, the 7th Respondent or franchisee under them are directed not to proceed with the establishment or functioning of the Petroleum Retail Outlet if at all it is started and started functioning during the pendency of the proceedings and if they have started operation, they are restrained from operating the unit, till further orders are passed by the authorities mentioned above.
63. The points answered accordingly.
Page 37 of 4264. 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 38 of 42
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 likely to be 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 units. So, we direct the CPCB to revisit the siting criteria on Page 39 of 42 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 by 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. The NOC/License/Other permissions granted to the 7th Respondent for establishment of a Petroleum Retail Outlet is directed to be kept in abeyance and the authorities namely, the Commissioner of Police - Greater Chennai of Police, Chennai or the concerned authority, the District Collector - Chengalpattu District and the PESO are directed to conduct further enquiry on the basis of the Joint Committee report produced in this case and also after giving opportunity to the applicant to raise their objections and after conducting enquiry as directed by the Hon'ble High Court of Madras in the decisions referred to above while granting permission under Rule 144 of the Petroleum Rules, 2002 and thereafter, pass appropriate fresh orders in accordance law.
ix. While considering the grant of NOC, the authorities are directed to consider the distance criteria provided by the CPCB vide their Circular dated 07.01.2020 and also additional safety measures (if any) to be taken if at all it can be permitted and also they must give reason as to why they Page 40 of 42 are flexible in reducing the distance from 50 meters to 30 meters from the Health Care Centre and then, pass appropriate further orders in accordance with law.
x. The Tambaram Municipal Corporation is also directed to consider these aspects mentioned above while granting the building permission for this unit and the 7th Respondent is directed not to proceed with the construction work without obtaining any building permission from the Corporation/Local Body.
xi. Till further orders are passed by the authorities mentioned above, the 7th Respondent or franchisee under them are directed not to proceed with the establishment or functioning of the Petroleum Retail Outlet if at all it is started and started functioning during the pendency of the proceedings and if they have started operation, they are restrained from operating the unit, till further orders are passed by the authorities mentioned above.
xii. Considering the circumstances, parties are directed to bear their respective costs in the Original Application.
xiii. The Registry is directed to communicate this order to the concerned Commissioner of Police who is authorized to issue NOC under the Petroleum Rules, 2002, Commissioner of Police - Greater Chennai Police, Chennai or the concerned authority, the Joint Chief Controller of Explosives, Chennai, PESO, Central Pollution Control Board both New Delhi and Regional Office at Chennai, State Pollution Control Board, and the Commissioner - Tambaram City Municipal Corporation for their information and compliance of directions.
Page 41 of 4265. 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.22/2021 (SZ) 01st July 2022. Mn.
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