Karnataka High Court
M/S Ramananda Gas Agency vs The Deputy Commissioner on 10 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.241/2018 (GM-RES)
BETWEEN:
M/S. RAMANANDA GAS AGENCY,
GOURIBIDANUR TOWN AND TALUK,
CHICKBALLAPUR DISTRICT - 562 101.
BY ITS PROPRIETOR
G.N. ANAND BABU. ... PETITIONER
(BY SRI SHIVARAMU H.C., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
CHICKBALLAPUR DISTRICT,
CHICKBALLAPUR - 562 101.
2. THE THASILDAR,
GOURIBIDANUR TALUK,
GOURIBIDANUR,
CHICKBALLAPUR DISTRICT - 561 208.
3. PRASHANTH NAGAR NIVASIGALA
ABHIVRUDDI SANGHA,
GOURIBIDANUR - 561 208
REPRESENTED BY ITS SECRETARY.
4. THE PANCHAYAT DEVELOPMENT OFFICER,
GANGASANDRA GRAM PANCHAYATH,
GOURIBIDANUR TALUK,
CHICKBALLAPUR DISTRICT. ... RESPONDENTS
(BY SMT. JYOTHI BHAT, HCGP FOR R-1 AND R-2;
SRI K. PATEL MUNEGOWDA, ADVOCATE FOR R-3)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NOTICE DATED 27.02.2017/17.08.2017 ISSUED BY R-2
PRODUCED AT ANNEXURE-D.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 28/10/2022 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
The petitioner in this writ petition is seeking a writ of certiorari to quash the notice dated 27/02/2017 - 17/08/2017 issued by 2nd respondent in No.Food/CR/41/2016-17 produced at Annexure - D, whereby 2nd respondent in the guise of notice has directed the petitioner to shift the gas godown from the present premises to any another suitable premises.
2. The facts leading to filing of this writ petition is that the petitioner is the owner of the land having purchased the converted property in the year 1986 in Sy.Nos.26/2 and 27/2 totally measuring 29.46 mtrs. East-West and 25.9 mtrs. South-West and built up area is 9.10 mtrs.x 6.10 mtrs., safety distance left 10.18 -3- mtrs. x 9.95 mtrs. The petitioner, on purchase of the land on 21/04/1986 obtained licence from the Kalludi Gram Panchayat to construct a LPG Godown for the purpose of carrying on the business and accordingly, licence was granted. It is stated by the petitioner that before obtaining the licence from Kalludy Gram Panchayat, the prime requirement was of obtaining no objection certificate from the Department of Fire and no objection from the Controller, Department of Explosives along with the drawing which was approved by the Deputy Chief Controller of Explosives, Madras on 16/07/1986 and along with the plan permission and the same was obtained by the petitioner. It is stated that Hindustan Petroleum Corporation Limited issued the dealership appointment letter dated 07/08/1986 to the petitioner and the petitioner started its business from 14/08/1986 as per the terms and conditions of letter of agreement as was entered into and the same has been renewed from time to time and the dealership -4- agreement is valid. It is stated by the petitioner that as per the Rule, the building in question has been insured from time to time and the same is valid. The storage capacity of the godown is 8,000 kgs.m of LPG and the validity of the same has been extended which is described in Form No.F produced at Annexure - A wherein the minimum requirement is 7 mtrs. distance from the surrounding area of the godown has to be maintained in accordance with the conditions of the licence issued by the Competent Authority. It is stated by the petitioner that an complaint/representation was lodged by one Prashanth Nagar Nivasigala Abhivruddi Sangha/3rd respondent (hereinafter referred to as "the Sangha" for short) registered on 15/04/2003 which is not in anyway obstructing or causing any nuisance to the public at large and on the same day a representation was also given to the local MLA as per Annexure - B1 and the same has been endorsed by the MLA., whereby the MLA forwarded the representation to 2nd -5- respondent/Tahsildar to examine and take action to change the location of the godown. Based on which, on 10/01/2016, the Deputy Director of Food and Civil Supplies communicated to 2nd respondent to hold enquiry for taking appropriate action as per Annexure - B2.
3. Thereafter, the Food Inspector inspected the premises and drawn a mahazar in the presence of the public and also in the presence of the petitioner and recorded a statement of both the parties on the same day and submitted a report to 2nd respondent as per Annexure - C and based on the same, the Tahsildar issued a readymade notice dated 27/02/2017 which is again re-dated as 17/08/2017 informing that respondent had orally informed to the petitioner to shift the business premises on 31/12/2016 and therefore directed the petitioner to shift the business premises to the new place where there is no movement of public vide Annexure - D which was received through registered -6- post on 30/08/2017. It is also stated that the petitioner is carrying on the business since 1986 as per the norms prescribed under the Explosives Act by maintaining the minimum distance prescribed under the licensing condition, any license that is going to be issued by the 4th respondent without maintaining the distance norms around the godown premises and more so when the petitioner has maintained the minimum distance of 7 Mtrs. clearly all round the LPG godown, the petitioner cannot be asked to shift the godown premises which is in accordance with the terms and conditions of Explosive License issued by the competent authority. If at all if the 5th respondent was to issue any license for any purpose, the authority competent shall issue license after 7 Mtrs. of the boundary area of the CPM Godown owned by the petitioner without causing public nuisance. If the 4th respondent applies the said principle, none can raise any objection and on the other hand the 4th respondent is unnecessarily making way to the public to raise -7- objections for its fault in issuing the licence as if the petitioner godown premises is coming in the way or causing public nuisance asfor over 32 years the petitioner is carrying on the business. The notice issued by 2nd respondent being illegal and arbitrary and 2nd respondent being the statutory authority cannot act according to the tunes of 3rd respondent who has come into existence in the year 2003 and that any condition have been violated the notice which is issued in the form of an order is not sustainable.
4. The Respondent/State has filed the statement of objections stating that the residents of Prashantnagar have submitted a representation to the Deputy Commissioner, Chikkaballapur, in the name of the said Sangha-3rd respondent on 28/12/2016 stating that as an incident occurred in the outskirts of Chintamani Town, Chikkaballapur District, wherein 982 filled LPG cylinders were blasted causing severe damages to the lives and properties in and around that -8- area and thus the Prashanth Nagar residents were in fear as the LPG godown was in the residential area and the residents requested to direct the petitioner to shift the godown to their own agricultural land situated in the outskirts to avoid any untoward incident in future. It is stated that the Deputy Director, Food and Civil Supplies and Consumer Affairs Department, Chikkaballapura District, have asked 2nd respondent to visit the spot and to take necessary action as per law in the public interest and same is intimated to petitioner and that the 2nd respondent has visited the spot on 31/12/2016 along with his staff and since the LPG Godown is in the residential area and there could be a possibility of untoward incidents and orally given direction to the petitioner to shift the go down to any suitable place. Further, it is stated that in the report submitted by the Food Inspector, Gauribidanur Taluk, the petitioner has given statement that they have constructed after obtaining permission from the competent authority, but -9- presently the surrounding area of LPG godown has developed into residential area, and as 3rd respondent expressed if any untoward incidents occur in future then there would be chance of cause of damage to life of residents and surrounding property. Hence, 2nd respondent has come to the conclusion that it would be better to shift the LPG Godown from present place to any other suitable place and would contend that the notice issued is only in the interest of public and the same was conveyed to the Petitioner through notice vide No.Aahara/CR/41/2016-17 dated 27/02/2017 - 17/08/2017 by 2nd respondent and asked the Petitioner to take necessary action in shifting the LPG godown in the public interest and thus sought to dismiss the petition.
5. Heard learned counsel for the parties at lis.
6. Learned counsel for the petitioner, Sri H.C.Shivaramu would contend that the impugned notice
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issued by 2nd respondent is without considering the fact that the petitioner was given permission to carry on the business of LPG dealership agency as long back as in the year 1986 and the business was set up by the petitioner by following the norms prescribed by the Ministry of Commerce and Industry, Petroleum & Explosives Safety Organisation (PESO) and has also fulfilled the conditions requirement of law prescribed under Rule 55(5) of the Gas Cylinder Rules, 2004 and also Rule 55(7)(a)(b) of the said Rules as per condition No.5, the petitioner has left out an area required to be kept as vacant in and around the godown. It is specifically stated by the learned counsel for the petitioner that the direction of 2nd respondent to shift the business premises is highly impossible as the business is being run in the area since the year 1986 and after a lapse of 32 years, without any reasonable ground directing the petitioner to shift the premises is not called for. The reasons assigned by 2nd respondent is that an incident has taken place in the
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outskirts of Chintamani, wherein there was a blast of gas cylinder, which has spread over 7 k.m. and that the said reason cannot be relied upon to come to a conclusion that the present premises also would be under such threat. It is the specific contention of petitioner's counsel that 2nd respondent without even noticing that there was no valid reason for filing such a complaint/representation before the authority, the act on the part of 2nd respondent is uncalled for, and the building in which the petitioner is running its business has been constructed with all the safety measures and no such untoward incident has been taken place till today and would contend that the complaint which prompted 2nd respondent to take action is far beyond the truth and thus sought to allow the writ petition.
7. Per contra, learned High Court Government Pleader would justify the impugned order and contend that the LPG Godown of the petitioner is in the residential area and the residents have requested to
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direct the petitioner to shift the godown to their own agricultural land which is in the outskirts of the said area. It is the contention of the learned High Court Government Pleader that, to avoid untoward incidents which might take place in view of the situating of the LPG Godown in and around the residential area, the said notice has been ordered by 2nd respondent and on this ground sought to dismiss the writ petition.
8. Having heard learned counsel for the parties and on perusal of the material on record, the undisputed facts are that the petitioner has obtained certificate from the Explosive Department along with the plan and the permission has also been obtained from the Department of Fire. The conditions imposed by the Ministry of Commerce and Industry (PESO) wherein the licence has been granted to the petitioner to run the gas agency with certain conditions and specifically condition No.12 which reads as under:
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"12. Any person storing gas cylinders, when called upon by a notice in writing, to execute any additions, alterations or repairs to the gas cylinders storage shed, which in the opinion of the inspection authority, are necessary for the safety of the premises, shall execute the said additions, alterations or repairs within such period not being less than one month from the date of receipt of the notice, or as may be specified in the notice."
9. Subsequently, the petitioner also obtained no objection certificate for storage of LPG gas cylinders from the Department of Fire, wherein, the conditions for constructing the godown has been specifically stated and that fire precautionary measures had to be complied with by the petitioner. The relevant portion of the precautionary measures to be taken for storage of LPG godown is as under:
"The following are the fire precautionary measures to be complied with:
1) The storage shed should be provided with adequate number of ventilators
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near the ground level and also near the roof. Suoh ventilation should be protected by fine copper or other non-corroding metal wire guage mesh of not less than 28 leniar inch.
2) The materials used in construction of the godown should be fire resistant such as bricks and reinforced concrets.
3) No portion of the godown should
be used for dwelling purposes.
4) Cylinders should not be stored
below the ground level or on the upper floors.
5) The storage should not be used for any other purpose. It should be kept clean at all times free from all combustible materials, rubbish etc.,
6) No fire or any other source of heat or light other than flame proof electric light and fittings should be allowed in the premises for storage of cylinders.
7) No person should smoke in the storage premises or carry matches or other articles which may produce ignition in the
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premises No smoking signs should be displayed at prominent places outside the shed.
8) The gas cylinders of inflammable gas either filled or empty should not be kept outside the premises licensed for and they should not be exposed to sun.
9) Valves of the cylinders should not be opened in the storage premises.
10) There should be provided a gang way of not less than 1.5 metres between the rows of cylinders and no cylinder should be kept within a distance of 1 metre from the wall. The apace between the rows and cylinders be kept clear.
11) The open space provided around the godown should be always free from any structure or vegetation.
12) A compound wall should be constructed around the storage site. Fire Fighting equipments suggested:-
(a) There should be provided with 5 nos. of Co2 extinguishers of 7½ kgs. capacity
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each or 2 Dry powder Extinguishers of 11 kg. capacity for every 75 sq. metres of the storage area of part there of where inflammable gas cylinders are stored.
(b) There should be 4 fire buckets with clean dry, fire sand provided in the premises.
13) At least 50% of the staff should be got trained in fire fighting in Karnataka Fire Force Training Institute within 3 months of commencement of storage.
14) No objection certificate from the Chief Inspector of Explosives should be obtained and no additions or alterations should be carried out in the storage shed without the previous sanction in writing of the Chief Inspector of Explosives.
15) Fire order:-
A notice board in bold letters indicating the action to be taken by the employees in one of fire, telephone numbers of the nearest fire station i.e., the fire stations in Bangalore bearing Nos.27200, 71539, 101, Ambulance Service and the numbers of the Management should also be indicated in the board. The
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notice board should be written in Kannada and English.
There is no objection to the Karnataka Fire Force Department for your storage of 7952 kgs. of L.P.gas in cylinders in the above premises subject to the above conditions. In case the conditions are not complied with the so objection certificate with be cancelled or withdrawn.
The No objection certificate earlier issued vide this office reference No.GBJ/206/86 dated 16-4-86 for the storage of 7100 kgs. of L.P.gas in cylinders is hereby withdraw."
10. Accordingly, pursuant to the NOC obtained, the dealership agreement was executed by Hindustan Petroleum Corporation Limited - 3rd respondent in favour of the petitioner with the following conditions:
"Whereas the Corporation had entered into Dealership Agreement dated 04.08.2011 with the dealer, and whereas the said agreement was valid for the period of Five years and whereas the said period was to have expired as on 05.08.2016 on reconstitution and whereas
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the Corporation and the dealer had voluntarily agreed to continue the dealership with the dealer for a further period of Five years on the same terms and conditions as contained in the Dealership Agreement dated 04.08.2011 and/or until such period this Dealership Agreement is terminated under the rules and regulations relevant in that behalf.
(a) The Corporation hereby appoints the Dealer and the Dealer hereby accepts the appointment as Dealer of the Corporation, on principal to principal basis, for sale of the Corporation's Liquefied Petroleum Gas (LPG) known as 'H.P. Gas' in cylinders only for house hold consumers, and commercial consumers like hotels, canteens, hospitals etc. (but not for any industrial use nor for any industrial consumer in the territory or distribution area of Gauribidanur.
(b) The aforesaid appointment is subject to the following: i. The Corporation reserves the right at all
times during the continuance of this Agreement to make direct sales of H.P. Gas to Central or State Government' Government Departments,
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Government Companies Railways, Military, Municipal authorities and other public bodies and authorities without any reference to the Dealer and on such direct sales the Dealer shall not be entitled to any remuneration, commission or allowance of whatsoever nature. ii. The Corporation reserves the right, without any reference to or consent of the Dealer, to appoint one or more additional dealers in the same territory referred to in Clause I(a) above and such additional dealer or dealers shall be entitled to make sales of H.P. Gas in the same territory without any objection from the Dealer and the Dealer shall not be entitled to claim any over-riding remuneration, commission or allowance for the purpose. iii. Without prejudice to the above the Corporation shall so be entitled to require the Dealer to effect minimum sales of H.P. Gas in accordance with the policy that may be formulated from time to time by the Corporation and shall be further entitled at its sole discretion to reduce, restrict, modify or alter the area of the dealership territory and the decision of the Corporation shall be final and
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binding on the Dealer. The Corporation shall further be entitled to notify, without any legal obligation to do so, from time to time to the Dealer in writing the minimum number of LPG Filed Cylinders' which the Dealer shall be required to uplift in each month. The Corporation shall also be entitled to require the Dealer to maintain during the duration of the Agreement such minimum stock as to meet the customers' requirements.
iv. The Dealer will during the continuance of this Agreement confine himself to effect the sales in the area or territory specified hereinabove but the Corporation shall be entitled without the consent of the Dealer to enlarge, reduce, increase or modify such area or territory to such other place as may from time to time be authorised by the corporation in writing.
v. The Dealer shall make his best efforts for enrolling customers and canvassing business and for developing and increasing the sale of LPG within the area allotted to him.
41. For the purposes of these presents, the expression "the Corporation" shall unless
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repugnant to the context or meaning thereof be deemed to include its successors and assigns and the expression "the Dealer" shall unless repugnant to the context or meaning thereof be deemed to include (1) where the Dealer is a single individual, his/her heirs, executors, administrators and permitted assigns (2) Where the Dealer is a firm, the specified partners thereof at the date of these presents, their respective heirs, executors and administrators, the partners or partner for the time being of such firm, the survivors or survivor of such partners and the heirs, executors and administrators of the last surviving partner and (3) Where the Dealer is a Company or other incorporated body, its successors and permitted assigns."
11. The Kalludi Gram Pranchayat accorded licence to construct LPG godown for purpose of carrying on the business and before obtaining licence for construction the foremost requirement was obtaining no objection certificate from Department of Fire and no objections to be obtained from Controller, Department of Explosives and same has been obtained as stated supra.
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12. The Ministry of Commerce and Industry Petroleum and Explosives Safety Organization (PESO), Department of Fire, permission from the Gram Panchayat are the authorities to be approached to establish and operate an LPG godown. All the said authorities have looked into the matter and sanctioned the godown way back in the year 1986 and as per the conditions imposed by the authorities the operation of godown should be as per the instructions issued by the aforesaid authorities from time to time. This being so, 2nd respondent on the behest of 3rd respondent/Sangha, clandestinely issued a notice which is rather in a form of an order directing to shift the godown.
13. Perusal of the no-objection obtained from Explosive Department and from the Department of Fire would clearly depict that the petitioner has been carrying on the business since the year 1986 for a period of more than 32 years and 2nd respondent has
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failed to notice that as per condition No.12 it is specifically stated that any person, who is storing gas cylinders, when the authority finds that any necessity for the safety measures to be taken for the premises, the person shall be called upon to execute the said additions, alterations or repairs to the gas cylinders storage shed within such period not being less than one month from the date of receipt of the notice, or as may be specified in the notice. However, 2nd respondent only on the basis of the complaint/representation having said to be given by 3rd respondent that an incident has happened in the outskirts of Chintamani wherein there was blast of cylinders which had spread over an area of 1 k.m. and the same kind of incident might occur in the said business premises is not a justifiable ground to be entertained by 2nd respondent, the 2nd respondent while issuing notice vide Annexure - D, which is in the form of an order, ought to have taken note whether the conditions while obtaining the licence and permission
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has been violated, whether the place to store LPG cylinders in godown is in contrary of any of the Government guidelines had to be considered by 2nd respondent. This having not been done, 2nd respondent being the statutory authority, ought to have acted in accordance with law and could not have initiated a proceeding or issuance of notice in the form of an order against the petitioner in an arbitrary manner directing the petitioner to shift the godown which has been run by the petitioner for the past 32 years after obtaining requisite permission.
14. During the course of the hearing, learned counsel for the petitioner brought to the notice of the Court the photographs to show the lie and location of the property wherein the godown has been constructed in the middle of property as per norms prescribed under the Explosive Act with safe distance of 7 meters clearly all round the LPG godown as required under licensing condition No.5 explosive Rules 55(5) of Gas Cylinder
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Rules 2004 and the construction for LPG godown was carried on 21/04/1986 based on permission sanction given by the statutory authorities and based on the license obtained from Gram Panchayat to construct LPG godown for the purpose of carrying on the business and the petitioner following the procedure prescribed by getting the renewal license as required under the Explosive Act every year and also under the provisions of Rule 55(5) and 55(7)(a) and (b) of Gas Cylinders Rules, 2004, the lie and location of LPG godown in the said premises cannot be found fault with.
15. In view of the same, this Court is of the considered opinion that 2nd respondent, merely on a complaint/representation given by the 3rd respondent, could not have come to a conclusion that there could be an untoward incident and having not held that the petitioner has violated any of the terms or conditions as enumerated in Annexures - A and A1, while issuance of licence and obtaining of no objection certificate or
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thereafter, 2nd respondent was not justified in issuing a notice in the form of an order directing the petitioner to vacate the premises and shift the said LPG Godown to other place. It is needless to observe that 2nd respondent must be more vigilant while entertaining such frivolous complaint/representation.
16. For the reasons stated supra, this Court pass the following:
ORDER
(i) Writ petition is allowed.
(ii) The impugned notice/order dated 27/02/2017-17/08/2017 issued by 2nd respondent in No.Food/CR/41/2016-17 produced at Annexure - D is hereby quashed.
No order as to costs.
SD/-
JUDGE S*