National Green Tribunal
D Sakthivel vs The District Collector on 1 July, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.8:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 118 of 2021 (SZ)
IN THE MATTER OF:
D. Sakthivel
S/o. Devaraj,
No.23, Main Road,
Pavai Thanneerpandal Palayam,
Periyasemur, Erode District - 638 004
... Applicant(s)
Versus
The District Collector
Erode District,
Collectorate Complex, State Highway 96,
Opp. District Court, Palayapalayam,
Erode - 638 001 and Ors.
...Respondent(s)
For Applicant(s): Mr. V.B.R. Menon.
For Respondent(s): Dr. D. Shanmuganathan for R1, R2& R4.
Mr. A.R. Sakthivel for R3.
Mr. M. Rajamathivanan for R5.
Mr. Abdul Saleem and Mr. S. Saravanan for R6.
Mr. S. Sai Sathya Jith for R7.
Mr. T.N.C. Kaushik for R8.
Mr. R. Prabakar for R9.
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 58
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.118/2021 (SZ), 01st July 2022. Mn.
Page 2 of 58 Item No.8:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 118 of 2021 (SZ)
IN THE MATTER OF:
D. Sakthivel
S/o. Devaraj,
No.23, Main Road,
Pavai Thanneerpandal Palayam,
Periyasemur, Erode District - 638 004
... Applicant(s)
Versus
1) The District Collector
Erode District,
Collectorate Complex, State Highway 96,
Opp. District Court, Palayapalayam,
Erode - 638 001
2) The District Revenue Officer
Erode District, Collectorate Complex,
State Highway 96, Opp. District Court,
Palayapalayam, Erode - 638 001
3) The Joint Chief Controller of Explosives
A and D Wing, Block 1 - 8 Shastri Bhavan,
No.26, Haddows Road, Nungambakkam,
Chennai - 600 006.
4) The Divisional Engineer
Highways Department (C&M) Erode Division,
Bharathi Nagar, Moolapalayam,
Erode - 638 002.
5) The Commissioner
Erode City Municipal Corporation,
No.894, Meenatchi Sundaranar Road,
Erode - 638 001.
...Original Respondents No.1 to 5
6) The Superintendent of Police
SH - 37, Marapalam,
Near Pannerselvam Park,
Erode - 638 001.
(R6 - Deleted from the proceeding as per order in
I.A. No.83/2021 (SZ) dated 09.06.2021)
...Deleted/
Original Respondent No.6
Page 3 of 58
7) The Territory Manager
Bharat Petroleum Corporation Limited
Coimbatore Retail Territory Office,
Ravathur Post, Irugur Via
Coimbatore - 641 103.
...Re arrayed Respondent No.6/
Original Respondent No.7
8) The Chairman
Tamil Nadu Pollution Control Board (TNPCB)
No.76, Mount Salai, Guindy,
Chennai - 600 032.
...Re arrayed Respondent No.7/
Original Respondent No.8
9) The Regional Director
Regional Directorate (South)
Central Pollution Control Board (CPCB)
2nd Floor, No.77-A, South Avenue Road,
Ambattur Industrial Estate, Chennai - 600 058.
(Respondents No.8 & 9 are impleaded as per order in I.A. No.84/2021 (SZ) dated 09.06.2021) ...Re arrayed Respondent No.8/ Original Respondent No.9
10) M/s. Sri Senthil Murugan Fuels Represented by its Proprietor Senthil Kumar. P. S/o. Palanisamy 36, Ellapalayam Road, Erode District - 638 004.
(R10 - Impleaded as per order in
I.A. No.64/2022 (SZ) dated 30.03.2022)
...Rearrayed Respondent No.9/
Original Respondent No.10
For Applicant(s): Mr. V.B.R. Menon.
For Respondent(s): Dr. D. Shanmuganathan for R1, R2& R4.
Mr. A.R. Sakthivel for R3.
Mr. M. Rajamathivanan for R5.
Mr. Abdul Saleem and Mr. S. Saravanan for R6.
Mr. S. Sai Sathya Jith for R7.
Mr. T.N.C. Kaushik for R8.
Mr. R. Prabakar for R9.
Earlier Judgment Reserved on: 17th November, 2021.
Case Reopened on: 10th February, 2022.
Page 4 of 58Judgment Reserved on: 30th March, 2022.
Judgment Pronounced on: 01st July, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes/No Whether the Judgment is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The grievance in this application is regarding the establishment of new road-side Petroleum Retail Outlet by the Original Respondent No.7 (Re-
arrayed as Respondent No.6) viz., Bharat Petroleum Corporation Limited on Sathy-Erode Main Road in Survey No. 27/2, Periyasemur Village, Erode 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/10802-10847 dated 07.01.2020 in close proximity to the water body and adjacent to a school which is less than 50 meter from the proposed Petroleum Outlet.
2. It is alleged in the application that the Petroleum Retail Outlet has already commenced operation and it is situated just opposite to a Primary School where students from Pre- KG onwards are studying. The distance between the above site and the school is less than 30 meters as against the prohibited distance of 50 meter as per the siting criteria prescribed under the CPCB Office Memorandum mentioned above. It is also against the siting criteria as provided in Rule 11(j) of the Tamil Nadu G.O. No. 256 of 2015 dated 22.12.2015 viz., Code of Regulation for Play Schools, 2015 wherein, a mandatory safe distance of 100 meter has been prescribed in Tamil Nadu between Petroleum Retail Outlets and Play Schools. The 6thRespondent/BPCL has fraudulently omitted /suppressed to show the Page 5 of 58 Primary Creative School, situated within the prohibited distance of 50/100 meter from the above site, in the site topo plan submitted for approval under Rule 131.1 (iii) and 144(1) of the Petroleum Rules, 2002 and the 3rd Respondent had issued prior site approval and final explosives licence to the6th Respondent/BPCL to operate the outlet without conducting any site inspection and verification of the relevant particulars.
3. The Principal Bench of National Green Tribunal, New Delhi has issued directions vide Order dated 22.07.2019 in Original Application No. 31 of 2019with Original Application No. 86 of 2019 and the Central Pollution Control Board had issued directions vide Office Memorandum No.B- 13011/1/2019-20/AQM/10802-10847 dated 07.01.2020 to maintain a safe distance of 50 meter by Petroleum Retail Outlets from residential areas and schools on account of the associated environmental hazards that operation of Petroleum Retail Outlets shall pose to the surrounding areas. There are several residential/public buildings are situated in close proximity to the above site which shall pose serious hazards to the health, safety and security at large. Further, the harmful effects of petroleum vapour to the human body have been reiterated by the Principal Bench of National Green Tribunal in Original Application No. 147 of 2016 dated 28.09.2018. Moreover, this is also in violation of Clause No.4.5.2.1 (a)(i) of the mandatory IRC Norms,2009 wherein, the Petroleum Retail Outlets if situated within a distance 200 meters whereas the minimum distance prescribed under the above norms is 300 meters.
4. It is further alleged in the application that there are two other Petroleum Retail Outlets situated within 250 meters on either side of the above site, this is also in violation to the mandatory IRC Norms, 2009. There is a water body (Odai) is running within the same survey number and adjacent to the above site which shall be in violation to the norms prescribed by the CPCB pursuant to the order passed by the National Green Tribunal, Central Zone on 23.07.2020 in O.A. No.61/2019 (CZ).
Page 6 of 585. The Applicant has relied on various articles published in this regard wherein a safe distance to be maintained between Petrol Pumps and schools is atleast 100 M to avoid danger being caused to the children on account of the same. Further, in the Writ Petition No. 23546 of 2017, this question was raised and certain directions have been issued to the Government in this regard, evidenced Annexure - 5. The similar issue was raised in W.P. No. 19255 of 2020 before the Hon‟ble High Court of Madras, wherein the Government has admitted that a minimum safety distance of 100 M shall be mandatory between Petroleum Outlets and Play Schools as per Rule 11(j) of the Code of Regulations for Play Schools, 2015, evidenced by Annexure - 6. Further, in another case, the Hon‟ble High Court of Madras in W.P. (MD) No. 19830 of 2019 remitted the question for consideration of NOC by the 2nd Respondent with a direction to conduct appropriate enquiry as contemplated under Rule 144 (5) of the Petroleum Rules, 2002 and to pass a speaking order by referring to an earlier decision of another Hon‟ble Division Bench of the same Court dated 05.08.2019 in W.P. (MD) No. 5690 of 2019, evidenced by Annexure 8 & 9.
6. According to the applicant, it is an agricultural land and it was converted for non-agricultural purpose against the provisions of G.O.(Ms) No. 79 of 2017 dated 04.05.2017 issued under Section 47-A of Tamil Nadu DTCP Act, 1971. Without obtaining necessary NOC from the concerned department, it was illegally converted for non-agricultural purpose. The Hon‟ble High Court of Madras also observed in W.P. (PIL) No.691 of 2017 that the guidelines issued by Indian Road Congress in IRC Circular No. 12/2009 was held to be mandatory for compliance by Tamil Nadu Government. Pursuant to the above Judgement, the Principal Secretary - Tamil Nadu Highways Department and DGP, Tamil Nadu have issued directions to all the District Collectors and Commissioners of Police in Tamil Nadu to strictly adhere to the IRC Norms while issuing NOCs to Petrol Pumps in Tamil Nadu, evidenced by Annexure - 11 and 12. The present Retail Petrol Pump is situated within the prohibited distance and it is against the IRC guidelines and guidelines issued by the CPCB mentioned above.
Page 7 of 587. Though this was brought to the notice of the authorities, no action was taken against them. That prompted the applicant to file this application seeking the following reliefs:-
"A. permanently injunct the 7th Respondent from operating the New Road-side Petroleum Retail Outlet on Sathy-Erode Main Road in Survey No. 27/2, Periyasemur Village, Erode District - 638 004 , in gross violation to 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/10802-10847 dated 07.01.2020 , in close proximity to a water body and in violation to the mandatory norms prescribed in Circular No. 12-2009 by the Indian Road Congress and B. Pass such further order or orders as may be fit proper and necessary in the facts and circumstances of the case and thus render justice."
8. On going through the allegations made in the application, vide Order dated 03.06.2021, this Tribunal felt that the Central Pollution Control Board and the State Pollution Control Board are necessary parties to the proceeding and also observed that the original 6th Respondent/Superintendent of Police is not a necessary party to the proceedings and at the request of the learned counsel appearing for the applicant, the matter was adjourned to 09.06.2021 for taking steps.
9. Thereafter, the matter was taken up on 09.06.2021 and on that day, the applicant filed I.A. No.83 of 2021 (SZ) to delete the 6 th Respondent/Superintendent of Police from the party array and I.A. No.84 of 2021 (SZ) to implead the Chairman, Tamil Nadu Pollution Control Board and the Regional Director - Regional Directorate (South), Central Pollution Control Board, Chennai as additional respondents and accordingly, those interlocutory applications were allowed and the 6th Respondent was deleted from the party array and the Chairman, Tamil Nadu Pollution Control Board and the Regional Director - Regional Page 8 of 58 Directorate (South), Central Pollution Control Board, Chennai were impleaded as additional Respondents No.8 & 9.
10. On the same day, after admitting the matter, this Tribunal appointed a Joint Committee comprising of (i) the District Collector - Erode District or a Senior Officer not below the rank of Assistant Collector/Sub Divisional Magistrate to be deputed by the District Collector, (ii) a Senior Officer from the Tamil Nadu Pollution Control Board as deputed by its Chairman and (iii) a Senior Officer from the Integrated Regional Office, Central Pollution Control Board, Chennai to inspect the area in question and submit a factual as well as action taken report, if there is any violation found.
11. The Joint Committee was also directed to consider the following aspects:-
a. Whether the siting criteria has been strictly adhered to while establishing the Petroleum Retail Outlet in question? b. Whether there are any residential houses, public offices like Anganvadi or any water body is situated within the prohibited distance?
c. Whether necessary permission and Consent have been obtained by them for this purpose from the Tamil Nadu Pollution Control Board?
d. If there is any violation found, what is the proposed action to be taken in this regard?
12. The Joint Committee was also directed to file a sketch showing the proposed Petroleum Retail Outlet and the nearest house, school or water body etc. as alleged in the application. The Tamil Nadu Pollution Control Board was designated as the nodal agency for co-ordination and also for providing necessary logistics for this purpose.
Page 9 of 5813. The 2nd Respondent/District Revenue Officer, Erode filed counter affidavit contending that the application is not maintainable. They denied the allegations made against them. They further contended that the Village Administrative Officer of Periyasemur Village has clearly reported that the proposed land i.e., SF No.27/2 with an extent of 0.17.0 Hectare to set up a retail outlet for petroleum products has not been cultivated and kept barren for last ten years and been used for commercial activities only. The land in which the development was proposed did not fall in any of the following categories:-
"a) Public water body like channel, canal, tank, lake, river etc..
b) Government Poromboke land temple lands, wakf properties and other lands belonging to religious / charitable institutions
c) Vacant lands with any encroachment on a public road or street or on any other land over which the applicant does not possess ownership right
d) Lands below the alignment of high tension and extra high voltage electric line including tower lines
e) Land which is fit for continuing the cultivation."
14. It is further contended that during the field inspection, it was ensured that due to the proposed development, the irrigation canals and distribution channels or the natural storm water drains or channels are not obstructed or affected and would not lead to depletion of groundwater level in the area or inundation of nearby areas. Since the existing development of commercial utilities around the proposed site was compatible with the proposed development, the question of getting approval of Local authority and Directorate of Town and Country Planning (DTCP) was not raised. Hence, the averments of the applicant need not to be considered. They further contended that following particulars have been verified/considered before issuing NOC in pursuant to Rule 144 of the Petroleum Rules, 2002, namely:-
"a) The lawful possession of the site by the applicant including authorization from land owner for developing the premises for the storage of petroleum products.
The landowner has given her consent to Thiru. P.Senthilkumar on behalf of M/s. Bharat Petroleum Corporation Ltd., to run a retail outlet of Petroleum Product for a period of 25 years through lease cum rental agreement vide document No.89/2020 dated: 10.01.2020.
b) Interest of public, specially the offsite facilities like school, hospitals or proximity to places of public assembly and the mitigating measures, if any, provided.
Page 10 of 58In a clarification in respect of safety distance from residential and school building sought from Joint Chief Controller of Explosives has clarified that:
I. The site plan showing 100M around is required only to look at the site with reference to the facilities in that area and there are no rules specifically prohibiting residential or other buildings including public school.
II. As such, the site plan may be perused by the District Authority for issuance of No Objection Certificate considering all other angles beyond the Petroleum Rules, 2002. I he finds no other objection, he may consider giving the NOC by stipulating a compound wall of 2M height for the proposed outlet vido Lr. No. AP/SC/TN/14/6516(p. 292696) dated: 31.12.2012.
c) Traffic density and impact on traffic.
The Superintendent of Police, Erode District, in his report has clearly stated that due to the above development in the proposed land there is no hindrance / obstacle for Traffic and public movement vide Ref. No. G2/1340/12/2021 dated: 15.02.2021.
d) Conformity of proposal to the local or area development planning. During the field inspection, the existing development of commercial utilities around the proposed site was compatible with the proposed development.
e) Accessibility of the site of fire tenders in case of emergency and preparedness of the fire service for combating the emergencies.
The District Officer, Fire and Rescue Services, Erode District has issued NOC for constructing buildings in the proposed land for setting up a retail outlet of Petroleum Products vide K. Dis. 381/E/2021 (Order No. 250(3) Dated:
20.01.2021.
f) Genuineness of purpose.
The Petroleum Retail Outlet in the proposed and has already been commenced operations."
15. They also reiterated that the land in which the development was proposed did not fall within the categories which prevents from getting the NOC as detailed in Para (4) of the Judgment as extracted above. They also reiterated the same things mentioned in Para (6) of the counter which was extracted above while answering the ground wise reply. So, we are not reiterating the same. Regarding Para (XIV) of Grounds, it was submitted that the Joint Secretary to Govt. of India, Ministry of Petroleum &Natural Gas, New Delhi, regarding applying IRC norms, has obviously clarified and pointed out as below:
"a) The sites located within Municipal and Urban Development authorities are generally governed by norms of the local body including that of dimension of site. Applying Indian Road Congress (IRC) norms of such cites will definitely be a hindrance in locating suitable site by Oil Marketing Companies (OMCs). As sites on National Highways are governed by MORTH norms, there is no requirement for evaluation of the same by IRC norm. As regards, the remaining site on State Highway or District road, the State PWD rules are normally applied while granting No Objection Certificate (NOC),
b) The state Level Coordinator of Tamil Nadu and Puducherry on behalf of OMCS has represented bringing out all the factors particularly that they are facing inordinate delays and difficulties in obtaining NOC from concerned District Authorities. One of the major impediments identified by the OMCs is applicability of RC guidelines uniformity applied by the District Authorities for all types of Page 11 of 58 Roads irrespective of their categorization and volume of traffic both in urban and rural markets.
c) In view of the above, it will be helpful to implement IRC norms only on National Highways based on Traffic density, which will facilitate the progress of fuel pump availability for the public and the economic progress of the state."
16. It is further contended that the Joint Secretary to Government of India Ministry of Petroleum &Natural Gas requested the Principal Secretary to Government of Tamil Nadu to direct concerned officers to take cognizance of the representation made by the State Level Co-ordinator of Oil Marketing Companies for expediting the grant of NOC vide Government letter No M-12043(11)/45/2021-OMC-PNG dated:
18.02.2021. Considering the above points, since the proposed land is located in Corporation area and on the left side of State Highways of Sathiyamangalam - Gobichettipalayam - Erode (SH 15), NOC has been issued to M/s. Bharat Petroleum Corporation Ltd vide their office Ref No. 1060/2021(C-4) 2602 2021. So, according to the 2nd Respondent, all the conditions were considered and only after considering the same, NOC was granted and the allegation against them that there was no application of mind is not correct. So, they prayed for dismissal of the application.
17. The 3rd Respondent/Joint Chief Controller of Explosives filed counter contending that with regarding to the contentions of the applicant in Para No.1, it was submitted that the license No.P/SC/TN/14/9380 (P495111) in Form XIV of Petroleum Rules, 2002 was granted on 30.03.2021 to the 6th Respondent to store petroleum in tanks in connection with pump outfit for fueling motor conveyances at Survey No 27/2, Periyasemur Village, Erode Taluk, Erode District on receipt of No Objection Certificate R.No.1060/2021/C4 dated 26.02.2021 issued by Additional District Magistrate & District Revenue Officer, Erode District under Rule 144 of Petroleum Rules, 2002 and other documents as required there under. The other averments made in the application are relating to certain documents and provisions made which they are not contraverting. In respect of allegation made in Para No.3 of the application, it was submitted that the approvals for construction of Petroleum Retail Outlet are accorded on receipt of all the documents as required under Rule 131 of Petroleum Rules, 2002 from principal oil marketing Page 12 of 58 companies/applicants. No enquiry and inspection is mandatory under Petroleum Rules, 2002 for approval for construction plan of petroleum retail outlet. The construction approvals are accorded as per the provision of Petroleum Rules, 2002 and as per safety distances as prescribed in the Fourth Schedule C (Extent of hazardous area in service station) of Petroleum Rules, 2002. On receipt of the application for grant of license along with the No Objection Certificate issued by the District Authority under Rule 144 of the Petroleum Rules, 2002, licenses in Form XIV of Petroleum Rules, 2002 are granted. There was no provision for mandatory inspection in Petroleum Rules, 2002. In respect of allegations in Para No.4 of the application, it was submitted that the Petroleum Rules, 2002 have so far not been amended with respect to the inclusion of the recommendations of the Central Pollution Control Board for petroleum retail outlets. They have further contended that the license and permission were granted as per Rule 144 of Petroleum Rules, 2002 strictly in accordance with the provisions made therein. So, they prayed for accepting their contentions and passing appropriate orders.
18. The 5th Respondent/Erode City Municipal Corporation filed counter denying the allegation that the applicant is an aggrieved person on account of establishment of Petroleum retail outlet by the 6th Respondent/BPCL on the Sathy - Erode Main road in Survey No.27/2 of Periyasemur Village within the prohibited distance of 50 metres from the primary school, water body and road Junction. The applicant has not objected prior to the starting of the unit and the present application was filed with ill minded and motivated besides abuse of process of law. It is also admitted by the applicant that petroleum outlets are operating on either side of the present outlet within short time. They admitted that the Retail outlet of the 6th Respondent/BPCL was already started. They denied the allegation that the distance between the school and the retail outlet is less than 30 metres. The outlet started long back and the 6th respondent is no way connected with the order passed by the respondents 1 and 2 and the proceedings initiated by the Tamil Nadu Pollution Control Board and Central Pollution Control Board. They further contended that the 6th Respondent constructed a Page 13 of 58 building measuring 16 x 26 feet without any approval from the 6th respondent. Without approval from the Erode City Municipal Corporation, they have no right to put up any construction for the retail outlet. According to the Erode City Municipal Corporation Act 2008, every person intending to construct or establish any factory, workshop or work place to install any machinery or manufacturing plant, shall before beginning such construction, make application in writing to the commissioner for permissions to undertake the intended work. Further, the application shall specify the plan, machineries etc. After receipt of the application, the commissioner of the Erode City Municipal Corporation can grant the permission subject to the conditions as mandated under law. However, the 6th respondent has not applied for permission for construction of buildings in the demised premises and therefore, the 5th Respondent had caused notice to the 6th respondent under section 296(1) of Erode City Municipal Corporation Act, 2008 as to why the unauthorized construction made by them should not be removed or demolished. The 5th respondent has caused notice to the 6th respondent under section 296(2) of Erode City Municipal Corporation Act, 2008 as to why due to the construction of un-authorized construction made in the premises, the person cannot be prosecuted in the manner known to law. The proceedings initiated by the 5th respondent against 6th respondent under sections 296(1) and 296(2) of Erode City Municipal Corporation Act 2008 are pending for further proceedings. The 5th respondent has to take steps to demolish the unauthorized construction after due notice as mandated under law and they further contended that they will abide any conditions imposed by this Tribunal. So, they prayed for passing appropriate orders and dismissing the application.
19. The 6th Respondent/Bharat Petroleum Corporation Limited (BPCL) filed reply affidavit contending that the application is not maintainable and they denied the allegations made in the application. The application was not filed with bonafides but with vested interest, as it is evident from the very fact that he had chosen to approach this Tribunal belatedly, one month after the operation and commencement of sales of the subject Page 14 of 58 retail outlet whereas this applicant had ample and sufficient time to file a complaint before the relevant authorities in respect of the alleged violations or to approach this Tribunal as against the establishment of the retail outlet, during the stages of this respondent calling for applications in the year 2018 or during the stages where construction of the said retail outlet had begun. The respondent had released an advertisement calling for applications for setting up of New Retail Outlets (NROs) on 25.11.2018 in Erode District on SH15, between Erode & Chithode (on either side) under OBC- Regular DC category. In response to the advertisement, one Mr. Senthil Kumar P was selected as per the selection process and a Letter of Intent (LOI) was issued on 04.01.2020. The site area offered by LOI holder for setting up the New Retail Outlet was 1342.59 Sq.M., admeasuring 35 Mtr. approx (Frontage) X 35 Mtr. approx (depth) at Survey No. 27/2, Mamarthupalayam, Periyasemur Village, Erode Taluk and District. The 6th Respondent/BPCL had applied for a No Objection Certificate (NOC) from the district authorities on 11.01.2021. After receiving NOCs from various departments like Fire, Revenue, this respondent had received a No Objection Certificate from the District Administration, Erode District on 26.02.2021 for setting up the new retail outlet, after the location of the subject retail outlet was duly verified and approved. They had also received a license from the Petroleum and Safety Organisation (PESO) on 30.03.2021 vide license No:
P/SC/TN/14/9380 (P495111). After obtaining all the necessary approvals/clearances as is required, commenced the construction for the said retail outlet and this respondent had commissioned the outlet and commenced the sales including nozzle sales from April 2021. The present application has been filed thereafter with various allegations including violation of the siting criteria as per the CPCB guidelines dated 07.01.2020. Even as per the Notification, it was specified that 50 Meters radial distance was provided 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 but in no case the distance between new retail outlet from schools, hospitals (10 beds and Page 15 of 58 above) and residential area designated as per local laws shall be less than 30 meters. So, as per the norms, no retail petrol pumps shall be situated within a radial distance of 30 meters from schools, hospitals and residential areas designated as per local laws. But in this case, necessary permission and clearance were obtained prior to the same and the present subject retail outlet, especially the dispensing unit at the retail outlet, falls at a distance of about 36m from the school and as such, it is within the permissible limit of minimum distance provided which is evidenced from the Joint Committee report. As regards the violation of G.O. No. 256 of 2015 relied on by the applicant is only a draft regulation which has not been implemented so far. As regards the Odai is concerned, the restriction came much after the establishment of this unit. Further, even as per the same, certain safeguards will have to be taken and nothing more. Further, the Tahsildar, Erode in his letter R.C No. 212/2021/A3 dated 18.01.2021 submitted a report to District Revenue officer confirming that there is no canal existing in Survey No. 27/2 and the same has been reiterated as hereunder:
"No Koppu canal is seen in said land for getting irrigated. There is no waterway runs on said land, in this 0.17.0 Hec. Land, as 1342.59 Sq.Mr. extent becomes as the constructional land, no sort of hindrance occurs to irrigational canal or water distribution canal. And, there is no chance of affecting the groundwater level. There is no chance of the lands near by the land to which the licence is claimed to submerge in water or there is no chance of flooding the area. Also, there is no hindrance for discharge of sewage water."
20. It is further contended that the IRC norms are not applicable, and it is not mandatory but only recommendatory in nature which has been observed by the Hon'ble High Court of Madras in several cases, especially in W.P. (MD) Nos.19218, 2661, 3678 &705 of 2019 dated 17.10.2019 wherein it has been held that the Indian Road Congress Guidelines are not mandatory as it will get statutory force only when appropriate rules are framed by the State Government. The same view has been reiterated recently by the Hon'ble Madras High Court vide its order dated 11.03.2021 in W.P. No. 35885 of 2019which is extracted as below:
"As seen from the above, the Indian Road Congress Guidelines have no statutory force as far as State of Tamil Nadu is concerned. The instructions given by the Assistant Divisional Engineer, Highways Department dated 08. 11.2019 as well as instructions given by the Principal Secretary to Government of Tamil Nadu to all the District Collectors/Commissioner of Police dated 08.02.2020 relied upon by the leaned Senior Counsel for the petitioner has no statutory force. In order for executive instructions to have force of Statutory Rules, it must be shown that they have been issued either under the authority Page 16 of 58 conferred on the State Government by Some statute or under some provision of the Constitution providing therefor. In the communication dated 08.11.2019 of the Assistant Divisional Engineer, Highways as well as the communication dated 08.02.2020 issued by the Principal Secretary to Government of Tamil Nadu there is no reference to any statute and therefore, the said communications are only in the nature of instructions and is not mandatory in nature."
21. So, there is no merit in the application and the applicant is not entitled to get any of the reliefs claimed in the application. So, they prayed for dismissal of the application.
22. The 8th Respondent/Central Pollution Control Board filed counter reiterated the order passed by the Tribunal appointing a Joint Committee in this regard. They adopt the findings of the Joint Committee as part of their counter statement and they had also reiterated the conclusion of the Committee as follows:-
"1. The Retail Outlet M / s. Sri Senthil Murugan Files located at Survey No. 27/2, Sathy Main Road, Periyasemur Village, Mamarathupalayam, Erode District has obtained all mandatory licenses / NOCs from PESO, District Revenue Officer, Erode District, BPCL, Coimbatore, Department of Fire and Rescue Services, Erode District & Superintendent of Police, Erode.
2. M / s. Erode Hindu Kalvi Nilayam Matriculation Higher Secondary School is located at a distance of 36 ms. from the nearest fuel dispensing point which is within 36 to 56 mts, as prescribed in the CPCB Guidelines. Whereas, PESO & BPCL has not mentioned any specific additional safety measures in the approval as given in CPCB guidelines 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.
3. The Retail Outlet is in the process of providing Automatic Leak Detection System (ALDS) for two Underground Fuel Storage Tanks. The unit has assured to provide the ALDS in a week's time."
23. They further contended that the guidelines issued by the CPCB for setting up petrol pump has to be complied with. So, they prayed for passing appropriate orders, accepting their contentions.
24. The applicant filed rejoinder to the counter filed by the 2nd Respondent reiterated the contention that the petrol pump of 6th Respondent is established in gross violation of the siting criteria prescribed by the CPCB in Clause „H‟ of Office Memorandum No. B-13011/1/2019- 20/AQM/10802-10847 dated 07.01.2020 in close proximity to a water body in violation of the circular issued pursuant to the order dated 23.07.2020 in Original Application No.61 of 2019 (CZ) and in violation to the mandatory norms prescribed in Circular No. 12-2009 by the Indian Page 17 of 58 Road Congress. According to the applicant, NOC issued by the 2nd Respondent is in gross violation of the statutory norms and procedures. The Village Officer of Periyasemur Village has given the report without mentioning about the Odai (water stream) running through the adjacent Survey Number and the potential contamination of petroleum products to the running water body. Safety and health of the school children due to potential environmental hazards associated with the operation of the outlet has been totally ignored by the 2ndRespondent while issuing the NOC. The clarification claimed to have been obtained from the 3rd Respondent is highly mysterious and contrary to Rule 131 of the Petroleum Rules, 2002. It shall be preposterous for the 3rd Respondent to have suggested that raising the height of the compound wall upto 2 M shall be sufficient to prevent entry of petroleum vapour into the school campus which is situated within the prohibited distance of 50 M. The 2nd Respondent has not obtained the No Objection from the Highways Department who is the controlling authority for granting access to Highways as per IRC Circular No. 12 - 2009. The Principal Secretary, Highways Department has further issued specific directions to all the District Authorities to comply with the above norms and obtain NOC from the 4thRespondent which has not been complied with in the present case. The 2ndRespondent is relying on a communication sent by the Joint Secretary to Government of India to The Principal Secretary to Government of Tamil Nadu whereas the Principal Secretary to Government of Tamil Nadu has already directed him to strictly comply with IRC Circular No.12-2009 while granting NOC for Petroleum Retail Outlets in Tamil Nadu. The 2ndRespondent had issued the NOC for the Petroleum Retail Outlet purely due to extraneous and obvious reasons and in gross violation to all the norms and he has to be proceeded against for not complying with the directions issued by the higher authorities in this regard. The applicant prayed for considering the grounds raised by him in the Original Application as part of this rejoinder and prayed for allowing the application.
25. The Joint Committee has filed the report dated Nil, e-filed on 13.07.2021 which reads as follows:-
Page 18 of 58 Page 19 of 58 Page 20 of 58 Page 21 of 58 Page 22 of 5826. The matter was reopened for further hearing and sought for certain clarifications as per order dated 10.02.2022. After reopening the matter, the person in whose favour the permission was granted by the Oil Marketing Companies filed I.A. No.64 of 2022 for getting himself impleaded in the matter and the same was allowed as per order dated 30.03.2022 and the applicant in the interlocutory application was impleaded as additional 9th Respondent.
27. The 6th Respondent filed additional reply statement after reopening the matter contending that the question raised in the order reopening the matter are not related to any environmental issues and this Tribunal has no jurisdiction to interfere with the same. In compliance with the order dated 08.03.2022 and also in compliance with the order dated 10.02.2022, the 6th Respondent is filing the additional reply. They had established the Petroleum Retail Outlet in Sy. No.27/2 of Mamarathupalayam, Periyasemur Village, Erode Taluk and District and the same was put to operation from April 2021. As regards the applicability of the IRC Norms, Indian Road Congress is only a society registered under the Page 23 of 58 Society Registration Act who issued the guidelines which is not statutory in nature as held by various Judgments of the Hon‟ble High Court and it is only recommendatory in nature for access permission for fuel stations in private properties along the highways. The said retail outlet is situated on a State Highway however the State Government had notified the guidelines with respect to the IRC Norms, only on 24.02.2022 vide G.O. (Ms.) No.25 dated 24.02.2022 and hence, it will not be applicable to the subject the retail outlet retrospectively, since it was established much prior to the said notification. The subject retail outlet meets all safety norms as per PESO as well as CPCB for establishment of retail outlet. They would take care all safety norms, distance in establishing and operating the retail outlet. All due precautions and efforts will be made in dealing with the petroleum vapour as being done at thousands of retail outlets across the country. With respect to the building approval, presently only temporary structures have been put up at the subject site and for putting up permanent structure, they had applied for building approval, however due to the pendency of the present matter before the Hon‟ble Tribunal, the authorities refused to receive the application for building approval and it was informed that the same will be considered only after disposal of the matter and the corporation has issued show cause notice to the respondent in this regard and no permanent structures will be put up at the subject retail outlet until the building approval is obtained from the Corporation. They have obtained all other necessary permissions from the various authorities including No Objection Certificate for the purpose of establishing the unit. So, they prayed for accepting their contentions and dismissal of the application.
28. The 9th Respondent had filed counter contending that the 9th Respondent was selected by the 6th Respondent through selection process to establish new retail outlet in Erode District on S.H. 15 between Erode and Chithode and letter of intent was issued on 04.01.2020. He had offered a site area for establishing new retail outlet measuring 1342.59 Sq. M admeasuring 35 Meter approximate (frontage) x 35 Meter approximate (Depth) in Sy. No.27/2, Mamarathupalayam, Periyasemur Village, Erode Taluk and District. He entered into a lease agreement with the land owner Mrs. T.K. Page 24 of 58 Punitha for a period of 25 years through lease cum rental agreement vide Document No.89 of 2020 dated 10.01.2020 and registered in the office of SRO, Surampatti, Erode District. This application was filed by the applicant with a vested interest to interfere with the business of the 9th Respondent and the same is evident from the fact that it has been filed one month after the operation and commencement of sale of the subject retail outlet which could have caused some profit loss to the AMR Fuels Sakthivel, rival business dealer of Indian Oil Corporation. After sensing the profit loss due to the healthy competition, the AMR Fuels Sakthivel has set up and sponsored the litigation, alleging violation by approaching this Tribunal as against the establishment of the retail outlet. The applicant Sakthivel is affiliated in allied business of Sakthivel of AMR Fuels namely, real estate and finance dealings. The rival petrol bunk owner operating under the name of "AMR Fuels" situated nearly 200 meters from the subject matter outlet and it is being run by its proprietor by name Muthusamy Gounder Sakthivel. The establishment of the present retail outlet by the 9th Respondent has created rival business establishment to the said AMR Fuels Sakthivel which has prompted him to set the present applicant to file the vexatious application. So, the applicant has not filed the application on his own, but as a tool in the hands of rival petrol pump owner and as such, there is no bonafides in filing the application and he has come to the Tribunal with tainted and unclean hands, suppressing material facts. There are other petrol pumps situated violating the norms, but the applicant had chosen the present retail outlet alone with malafide intention. He had reiterated the contentions raised by the 6th Respondent in respect of the applicability of various rules and guidelines and nature of permissions obtained. The various documents relied on by the applicant were considered in the litigations by the Hon‟ble High Court of Madras at Madurai Bench and also the Principal Bench and observed that those guidelines are not having any statutory force unless rules were framed by the respective State Government in this regard. So, he prayed for accepting their contentions and passing appropriate orders, including dismissal of the application with cost.
Page 25 of 5829. The 5th Respondent filed a status report stating that the 6th Respondent had constructed a building admeasuring 16 x 26 Sq.ft. without any prior approval from the 5th Respondent. So, the 5th Respondent had issued notice under Section 296 (1) of Erode City Municipal Corporation Act, 2008 to show cause as to why the unauthorized construction made by them should not be removed or demolished. Further, the 5th Respondent had issued a notice under Section 296 (2) of the Erode City Municipal Corporation Act, 2008 to show cause why due to the unauthorized construction made in the premises, the person cannot be prosecuted in the manner known to law. The proceedings initiated by the 5th Respondent against the 6th Respondent under Section 296 (1) and 296 (2) of Erode City Municipal Corporation Act, 2008 are pending for further proceedings. The averments made in the counter affidavit filed by them in October 2021 are true, but due to Covid-19 pandemic, the further action against the 6th Respondent is still pending and the 5th Respondent will initiate further proceedings against the 6th Respondent under the provisions of the Erode City Municipal Corporation Act, 2008 and they also produced the notices issued under the said Act in support of their case.
30. The applicant also filed objection to the Joint Committee report.
31. Heard the learned counsel appearing for the applicant as well as respondents.
32. 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 Page 26 of 58 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 3rdRespondent. There is Odai situated adjacent to the Petroleum Retail Outlet and that is against the order passed by the National Green Tribunal, Central Zone on 23.07.2020 in Original Application No.61 of 2019 (CZ). 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 allegation of personal rivalry and business rivalry and sponsorship by another person alleged against the applicant are without any merit and the same were denied. The IRC Rules have been violated as well.
33. 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 6th Respondent are pending appeal before the Hon‟ble High Court of Madras. So, the 6th 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 Page 27 of 58 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.
34. 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 with the consent mechanism and as such, the Pollution Control Board has limited role in monitoring the same.
35. 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 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.
36. The learned counsel appearing for the 6th 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, 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. There is no water body situated as alleged by the applicant and the Odai cannot be said to be a water body for the purpose of application of CPCB Guidelines issued later and that was issued after establishment of this unit and as such, the same is not applicable. The IRC Guidelines are not applicable. The Page 28 of 58 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 SLA (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.
37. The learned counsel appearing for the 6th 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.
38. The learned counsel appearing for the 9th Respondent also argued in tune with the submissions made by the learned counsel for the 6th Respondent.
39. 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.
40. 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?Page 29 of 58
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:-
41. The grievance in this application was that the disputed Petroleum Retail Outlet was established against the siting criteria issued by the CPCB dated 07.01.2020 and directions issued by the National Green Tribunal in Original Application No.61 of 2019 (CZ) and the authorities have not properly considered the objections and it was also against the IRC Circular No.12-2009.
42. The case of the contesting respondents was that it was issued in accordance with the provisions of the Rules and Guidelines and the application was filed only after commencement of the Petroleum Retail Outlet. Further, the IRC Rules were found to be not mandatory and the guidelines issued were not in accordance with the provisions of the Environment (Protection) Act, 1986. It will have only recommendatory in nature and it will not have any statutory force.
43. 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.
44. 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 Page 30 of 58 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.
45. 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.
46. 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 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.
47. 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 Page 31 of 58 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.
48. In the decision reported in Aditya N Prasad & Ors. Vs. Union of India & Ors. in Original Application No. 147 of 2016 (PB), the Principal Bench of National Green Tribunal, New Delhi by order dated 28.09.2018 observed that there is a possibility of pollution being caused on account of emission of fumes coming from the petroleum products which may contain Benzene, Toluene, Ethyl benzene and Xylene which are toxic in nature and if it is mixed with the ambient air, it may have impact on human 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.
49. 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, 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 Page 32 of 58 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.
50. 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.
51. The same view has been reiterated by the Hon‟ble High Court of Madras at Madurai Bench in W.P. (MD) Nos.19244 and 19830 of 2019 (Karthik Santhanam Vs. The Commissioner of Police, Trichy City Police, Thiruchirapalli & Ors.) dated 30.09.2019 and set aside the NOC granted and it was remitted to the authorities and on the basis of the remission order, the Commissioner of Police - Thiruchirapalli cancelled the NOC earlier granted for establishment of new Petroleum Retail Outlet.Page 33 of 58
52. 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.
53. 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 any other statute.
54. 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 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.Page 34 of 58
55. 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.
56. 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.
57. 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 Page 35 of 58 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.
58. In the decision reported inSeethalakshmi 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 was observed 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.
59. In the decision reported in E. Tech Projects Private Limited Vs. State of Chhattisgarh 2018 SCC Online Chh 369, the Hon‟ble High Court of Chhattisgarh observed that whether any direction issued against the statutory provision by way of an official memorandum will have any statutory background and certain guidelines issued by the CPCB in the year 2003 was not statutory in nature and as such, it will not give any effect too.
Page 36 of 5860. 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 was not bonafide if it is against the law prevails and the guidelines issued by the Board cannot be said to be a rigid and have to be relaxed on the basis of the technological advancement and scientific improvements in respect of various aspects. That was a case where the establishment of STP was challenged on the ground of siting criteria and considering the circumstances, the Tribunal also observed that the same cannot be said to be inflexible rule if the evident shows that on account of the technological advancement, there is no possibility of any pollution being caused and relaxation of siting criteria cannot be said to be invalid.
61. 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.
62. The CPCB Guidelines were issued on the basis of the directions given by the Principal Bench of National Green Tribunal, New Delhi in Original Application No.31 of 2019(PB) (K. Sathyadevan Vs. Union of India & Ors.) and Original Application No.86 of 2019 (PB) (Gyanprakhash @ Pappu Singh Vs. Union of India & Ors.). In those two cases, the question regarding installation of VRS and also setting upof new Petroleum Retail Outlet was considered and the Tribunal by Order dated 01.04.2019, Page 37 of 58 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.
OMCs will be held liable for Environmental
Compensation
Operation (imposed
of such Retail by beSPCBs/PCCs)
Outlet shall and
stopped immediately.
assessment of environmental damage (depending on extent of contamination in soil and groundwater) and site remediation. Consultant/ Expert agency appointed by OMCs for damage assessment and site remediation shall have minimum national/ international experience of 07 years in this field. Various approved methods shall be considered for cleaning underground contaminants.Page 38 of 58
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 39 of 58
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 40 of 58 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 41 of 58 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.
63. After considering those aspects, the applications were disposed of with the following directions:-
As regard to preventive
"11. In view measures
of the above, the for minimizing
Expert Committee pollution,
having already all
gone into
the new
matter,petrol
finalization
pumps of timelines as contemplated
shall have VRS as per in the report,
CPCB if notand,
plan, yet done,
shall
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 42 of 5864. 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, 1981issued by the CPCB and also under Section 3 & 5 of the Environment (Protection) Act, 1986 applying the „Precautionary Principle‟.
65. 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 hazardous in these aspects on account of installation of Petroleum Retail Outlets nearby schools, residential areas, old age homes and hospitals are to be seriously viewed. The Competent Authority cannot mechanically adopt Page 43 of 58 the rules and regulations and grant NOC. Such an approach would result in non-application of mind with reference to the issue which is bound to be considered in the interest of general public. In that case, it was also directed that further inspection will have to be conducted, the objections regarding the public and persons residing nearby have to be considered and then appropriate orders will have to be passed. So, that also gives an implication that the guidelines issued by the CPCB in respect of siting criteria and precautionary methods to be adopted are to be considered by the authorities before granting the NOC.
66. Further, in the decision reported in Suresh Mandaloi & Anr. Vs. State of Madhya Pradesh & Ors. [Original Application No.61 of 2019 (CZ)], the Tribunal had constituted a committee to go into the question regarding the siting criteria or minimum distance to be prescribed from the water bodies and it is on that basis, a subsequent circular was issued by the CPCB in 2021 in respect of water bodies wherein, it was mentioned that Petroleum Retail Outlet shall not be located within a distance of 50 Meters from the nearest point of the water bodies and in case of streams and rivers, distance shall be considered from the flood plain. As a preventive measure, Retail Outlets coming within 50 - 100 Meters from the nearest point of surface water body shall have secondary containment by way of double walled tanks or concrete protection walls so as to minimise the ground water and soil contamination. Ground water quality monitoring of retail outlets within 100 meters from the nearest point of surface water bodies shall be conducted by OMCs once in every quarter through Environment (Protection) Act, 1986 approved labs irrespective of sales. This shall be applicable to all petrol pumps regardless the date of establishment.
67. There is some force in the submission made by the learned counsel appearing for the Oil Marketing Companies that this Rule has come after the petrol pump was established. So, the same cannot be applicable to the facts of this case, though even assuming that there was an Odai as per the revenue records that will apply only if the circular was issued before establishment of the petrol pump. Admittedly, in this case, even at the Page 44 of 58 time when the application was filed this has already been started functioning.
68. 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 water bodies are concerned, that will have only in prospective operation from the date of its issuance.
d. 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. But in the subsequent decision Page 45 of 58 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.
e. 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 haveapplicability 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.
69. With the above findings on the question of legal aspects, the question in this case will have to be considered.
70. The grievance in this application was that there are residential houses and water body and primary health centre and there are residential houses within 50 meters from the disputed Petroleum Retail Outlet.
71. 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."
72. 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 Page 46 of 58 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
73. 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.
74. Further, we are not in agreement with the submissions made by the learned counsel appearing for the Oil Marketing Companies that when there is no restriction in the Building Rules or other rules or under the Town and Country Planning Act and the rules framed there under, no further restrictions can be issued by the other authorities or Tribunal. But this has not been accepted by the Hon‟ble Apex Court in the decision reported in Mantri Tech Zone Private Limited Vs. Forward Foundation & Ors. (2019) 18 SCC 494 where it has been observed that the National Green Tribunal has got power to impose additional restrictions applying the „Precautionary Principle‟ to protect environment and also in view of the observations made by the Hon‟ble Apex Court dealing with the power of Page 47 of 58 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.
75. It may also be mentioned here that the relaxation of 30 meters provided in the guidelines issued by the CPCB is an exception to the general rule of 50 meters and the exemption can be applied only sparingly and it cannot be applied as a general rule which will over ride the purpose of the siting criteria itself. Even when they are adopting the lesser distance rule of 30 meters, they must give reason as to why it is being carried out instead of fixing the distance of 50 meters.
76. 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.
77. It is seen from the status report filed by the 5th Respondent - Erode City Municipal Corporation that the 6th Respondent through 9th Respondent had constructed a building admeasuring 16 x 26 Sq.M. without any prior approval from the 5th Respondent. They issued a notice under Section 296 (1) of the Erode City Municipal Corporation Act, 2008 to show cause as to why unauthorized construction made by them should not be Page 48 of 58 removed or demolished. Further, the 5th Respondent had issued a notice under Section 296 (2) of the Erode City Municipal Corporation Act, 2008 to show cause as to why due to the unauthorized construction made in the premises, the person cannot be prosecuted in the manner known to law. The proceedings initiated by the 5th Respondent against the 6th Respondent under Section 296 (1) and 296 (2) of Erode City Municipal Corporation Act, 2008 are pending for further proceedings. They could not proceed further due to the pandemic situation arisen on account of the Corona Virus infection.
78. If the local body viz., the Erode City Municipal Corporation has power to issue notice to show cause as to why the construction should not be removed, as it was constructed without obtaining necessary permission and if it was not removed by the person against whom notice were issued, the authorities have power to remove the same and recover the amount incurred for that purpose from the person responsible for such unauthorized construction. So, filing a criminal prosecution and taking action for removal of unauthorized construction will stand in different footing. One is a criminal action for violation of the rules and other is enforcement of the rules against which the constructions made by removing the same, as it will amount to unauthorized construction. So, the Erode City Municipal Corporation is at liberty to take appropriate action in view of the observations made to remove the unauthorized constructions made by the 6th Respondent for establishment of the Petroleum Retail Outlet and even take action for closure of the same in accordance with law.
79. We feel that the NOC granted by the authorities fixing 36 meters from school by taking the flexible criteria provided under the circular cannot be said to be in violation of the CPCB Guidelines and on that ground, we do not find it necessary to injunct functioning of the Petroleum Retail Outlet by the 6th Respondent through 9th Respondent. But however since it was constructed without getting permission from the local body, this order will not preclude the local body from taking appropriate action for removal of unauthorized construction made by the 6th Respondent Page 49 of 58 through 9th Respondent for establishment of the Petroleum Retail Outlet and closure of the same in accordance with law.
80. Further, though it was mentioned by the State Pollution Control Board that certain measures have been taken by the 6th Respondent for additional safety measures, neither the 6th Respondent nor the 2nd Respondent had mentioned about the further safety measures to be taken if the distance is reduced to 30 meters from the school/residence/hospital mentioned in the Office Memorandum issued by the CPCB.
81. The 2nd Respondent has filed statement stating that they have not amended the Petroleum Rules to provide any further safety measures on the basis of the Office Memorandum issued by the CPCB. They failed to understand the fact that it was done after constituting a committee with a member from the Ministry of Petroleum and Natural Gas and any decision taken by the Committee which was approved by the National Green Tribunal has to be implemented by the department under the Ministry. So under such circumstances, when they are issuing license/NOC, they must take into consideration the distance criteria provided by the CPCB as well and they will have to provide additional safety measures if the distance was reduced to 30 meters from the normal distance of 50 meters and that can be done only in exceptional circumstances and the exceptional circumstances also must be reflected in the order to be passed. However since the Petroleum Retail Outlet has already been started, we feel that instead of directing the Petroleum Retail Outlet to close, leaving open the power to be exercised by the Erode City Municipal Corporation in this regard but direct the PESO to inspect the area and impose additional conditions (if any) required, if the Municipal Corporation had permitted continuation of the unit if permissible in accordance with the Erode City Municipal Corporation Act, 2008 and if such conditions are imposed, then the 6th Respondent is directed to carry out the same in its letter and spirit.
Page 50 of 5882. So under such circumstances, we feel that the application can be disposed of with the following directions:-
a. As regards the CPCB Circular dated 07.01.2020 is concerned, since it was issued on the basis of the Expert Committee appointed as directed by the National Green Tribunal applying the „Precautionary Principle‟, it will have statutory force, as it was published in the website of the CPCB and it was circulated among the State Pollution Control Boards/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 water bodies are concerned, that will have only in prospective operation from the date of its issuance.
d. 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 51 of 58
e. 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.
f. 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 g. 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.
Page 52 of 58h. 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.
i. We are not ordering closing down of the unit, as it has already started functioning after obtaining NOC from the authorities with lesser distance of 30 meters instead of 50 meters from the school which is in existence, but that will not preclude the Erode City Municipal Corporation to take appropriate action against the Respondents No.6 & 9 who had constructed the building without getting any permission in violation of the provisions of the Erode City Municipal Corporation Act, 2008 after complying with the necessary procedure provided under the said Act including removal of the unauthorized construction apart from initiating prosecution for violation of the provisions of the Erode City Municipal Corporation Act, 2008.
j. The PESO and the State Pollution Control Board are directed to inspect the area in question and suggest for taking further additional safety measures since it was established less than 50 meter distance criteria from the school as mentioned in the Office Memorandum of the CPCB dated 07.01.2020 and if any such suggestion is made, then that will have to be carried out by the 6 th Respondent through the 9th Respondent taking into account the safety of the students.
k. Though the Office Memorandum issued by the CPCB pursuant to the directions issued by the National Green Tribunal in Suresh Mandaloi & Anr. Vs. State of Madhya Pradesh & Ors. [Original Application No.61 of 2019 (CZ)] is only prospective in nature as observed by this Tribunal, but the 6th Respondent through 9th Page 53 of 58 Respondent is directed to carry out the study to be conducted as directed in the Office Memorandum to ensure the quality of water in the Odai so as to protect environment and that must be monitored by the State Pollution Control Board and if there is any contamination found, then the State Pollution Control Board is directed to take appropriate action against the 6th Respondent and the 9th Respondent including imposition of environmental compensation apart from taking further actions under the respective statutes namely, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 in accordance with law.
83. The points are answered accordingly.
84. 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 Pollution Control Boards/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 Page 54 of 58 issued and there must be application of mind by the authorities while granting the NOC.
(iii) As regards the distance criteria for water bodies are concerned, that will have only in prospective operation from the date of its issuance.
(iv) 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.
(v) 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.
(vi) 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 Page 55 of 58 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
(vii) 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.
(viii) 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.
(ix) We are not ordering closing down of the unit, as it has already started functioning after obtaining NOC from the authorities with lesser distance of 30 meters instead of 50 meters from the school which is in existence, but that will not preclude the Erode City Municipal Corporation to take appropriate action against the Respondents No.6 & 9 who had constructed the building without getting any permission in violation of the provisions of the Erode City Municipal Corporation Act, 2008 Page 56 of 58 after complying with the necessary procedure provided under the said Act including removal of the unauthorized construction apart from initiating prosecution for violation of the provisions of the Erode City Municipal Corporation Act, 2008.
(x) The PESO and the State Pollution Control Board are directed to inspect the area in question and suggest for taking further additional safety measures since it was established less than 50 meter distance criteria from the school as mentioned in the Office Memorandum of the CPCB dated 07.01.2020 and if any such suggestion is made, then that will have to be carried out by the 6th Respondent through the 9th Respondent taking into account the safety of the students and this will be subject to the building permission to be granted by the local body.
(xi) Though the Office Memorandum issued by the CPCB pursuant to the directions issued by the National Green Tribunal in Suresh Mandaloi & Anr. Vs. State of Madhya Pradesh & Ors. [Original Application No.61 of 2019 (CZ)], it is only prospective in nature as observed by this Tribunal, but the 6 th Respondent through 9th Respondent is directed to carry out the study to be conducted as directed in the Office Memorandum to ensure the quality of water in the Odai so as to protect environment and that must be monitored by the State Pollution Control Board and if there is any contamination found, then the State Pollution Control Board is directed to take appropriate action against the 6th Respondent and the 9th Respondent including imposition of environmental compensation apart from taking further actions under the respective statutes namely, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 in accordance with law.
(xii) Considering the circumstances, parties are directed to bear their respective costs in the Original Application.
Page 57 of 58(xiii)The Registry is directed to communicate this order to the PESO, Central Pollution Control Board both New Delhi and Regional Office at Chennai, State Pollution Control Board, and the Commissioner - Erode City Municipal Corporation for their information and compliance of directions.
85. 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.118/2021 (SZ), 01st July 2022. Mn.
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