National Green Tribunal
1. Amrutlal Patel S/O Late Jay Karan ... vs Additional Chief Secretary Forest And ... on 22 March, 2023
Item No.03 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
ORIGINAL APPLICATION NO.09/2023/EZ
IN THE MATTER OF:
1. Amrutlal Patel
S/o Late Jay Karan Patel,
Aged about 68 years,
Prakashpur, PO- Bhukta,
PS - Ambabhona,
Dist. - Bargarh,
Pin - 768045
2. Fakir Mohan Patel
S/o Jay Karan Patel,
Aged about 64 years,
At - Prakashpur, PO - Bhukta,
PS -Ambabhona,
Dist. - Bargarh,
Pin - 768045
.... Applicant(s)
Versus
1. State of Odisha,
Through Additional Chief Secretary,
Forest and Environment, Climate Change Department,
Government of Odisha,
3rd Floor, Kharvel Bhavan,
Bhubaneswar,
Pin - 751001
2. District Collector, Bargarh,
At/Po/Dist - Bargarh,
Odisha,
Pin - 768028
3. The Tahasildar, Ambabhona,
At/Po/Ps - Ambabhona,
Dist - Bargarh,
Odisha,
Pin - 768028
4. Member Secretary,
Odisha State Pollution Control Board,
A/118, Unit-VII, Nilakantha Nagar,
Bhubaneswar,
Pin - 751012,
Odisha
5. The Member Secretary,
Central Pollution Control Board,
1
Parivesh Bhawan,
East Arjun Nagar,
Delhi - 110032
6. Divisional Retail Sales Head,
Indian Oil Corporation Ltd,
Sambalpur Divisional Office,
Kainsir Road,
Ainthapali,
Sambalpur - 768004,
(Odisha)
7. The Dy Chief Controller of Explosives,
Petroleum &Explosives Safety Organisation (PESO),
F-35/A, BJB Nagar,
Bhubaneswar,
Pin - 751014
8. Hemlata Patel,
W/o Nandakishor Patel,
Chicholi Village,
Tahsil - Ambabhona,
Dist. - Bargarh
.... Respondent(s)
Date of hearing: 22.03.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
For Applicant(s) : Mr. Sankar Prasad Pani, Advocate (in Virtual Mode)
For Respondent(s) : Mr. Tarun Patnaik, ASC for R-1,2 & 3 (in Virtual Mode)
Mr. Dipanjan Ghosh, Advocate for R-4,
Mr. Surendra Kumar, Advocate for R-5,
Mr. Amit Kumar Nag, Advocate for R-6,
Mr. Ashok Prasad, Advocate for R-7,
Mr. Soumava Mukherjee, Advocate for R-8
ORDER
1. This Original Application has been filed by the two Applicants, alleging therein that the Respondent No.6, Divisional Retail Sales Head, Indian Oil Corporation, Sambalpur Divisional Office, is proceeding with the construction of a 'Petrol Pump' on Plot No. 122, Khata No. 346/262, measuring an area of Ac. 0.30 decimal in Prakashpur, Chicholi Mouza, Tahasil-Ambabhona, District- Bargarh, Odisha, which stands recorded in the name of Rohit Kumar Patel, S/o Asharam Patel.
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2. It is stated that the Plot in question is at a distance of less than 20 meters from the residence of the Applicants and others, namely, Fakir Mohan Patel, Dular Kumari Patel, Amrutlal Patel, Sobha Patel, Kamal Lochan Patel, Shivaji Patel and Mahendra Sahu.
3. It is alleged that the Respondent No.8, Hemalata Patel, W/o Nandakishor Patel, was selected to set-up the said Petrol Pump in Chicholi-Mouza, Tahasil-Ambabhona, District-Bargarh.
4. Annexure-3 (page no.26) to the Original Application, is the Inspection Report dated 13.11.2019 submitted by the Public Information Officer, Ambabhona Tahasil, to the Additional District Magistrate, Bargarh. The relevant extract of the Report is reproduced herein below:-
"1. Land Particulars with details tenancy right: Plot No. 122 measuring an area of Ac. 0.30 dec. bearing Khata No. 346/262 of Mouza-Chicholi stands recorded in the name of Rohit Kumar Patel, S/o Asharam Patel, Caste-Agharia, at his own village in Rayati Status.
2. Public Objection, if any: A grievance petition from the villagers Chicholi have been received through the ADM, Bargarh, vide his letter No. 1760 dt. 8.03.2019 which has been enquired and report attached herewith separately.
3. Details of establishment within 100 meters radius of the proposed site: Organisation like Mahima Ashram, Business establishment like cloth store, wielding shop, motorcycle garage, mobile repairs centre are situated on the other side i.e. left side of the road and the proposed site is on the right side on the way to Bargarh-Ruchida SH. There are 3 no. of habitation houses within 100 meters of proposed site out of that 2 no. are of applicant and his relatives.
4. Distance of habitations/Schools/hospital/Govt. office/other organization/project, if any, from the proposed site:
a) Habitation: One habitation is 12 meters House of the applicant another habitation is 30 meters-House of relative of applicant and other 3 habitation buildings are 42 meters, 51 3 meters, 60 meters from the proposed site which are on the other side of the road.
b) School/Hospital/Govt. Office: School Hospital Govt. Office is situated outside the 100 meters radius of the proposed site.
c) Other Organisation: The boundary wall of organization like Mahima Ashram is 75 meters from the proposed site and the main residential quarters of Mahima Ashram is 102 meters far from proposed site,
d) Project if any: There is no any project within the 100 meters radius of proposed site."
5. It is submitted by the learned Counsel for the Applicants that the said Petrol Pump being set-up by the Respondent No.8, Private Respondent, is in violation of the Siting Criteria dated 07.01.2020 issued by the Central Pollution Control Board as well as the judgment of the National Green Tribunal dated 22.07.2019 passed in Original Application No. 31/2019 (K. Sathyadevan Vs. Union of India & Ors.) with Original Application No. 86/2019 (Gyanprakash @ Pappy Singh Vs. Union of India & Ors.).
6. At the outset, we may state that the judgment of the National Green Tribunal, Principal Bench, dated 22.07.2019 is prior to the Central Pollution Control Board guidelines dated 07.01.2020 and in the said judgment the Principal Bench has only directed that the Expert Committee may examine the matter so that a safe distance from residential areas may be maintained for any new outlet to be set-up. It appears that the Office Memorandum dated 07.01.2020 has been issued by the Central Pollution Control Board in pursuance to the directions given by the National Green Tribunal in Original Application No. 86/2019 as mentioned in the Office Memorandum itself.
7. We may also note that the National Green Tribunal, Principal Bench, in its order dated 22.07.2019 has not suggested any safe 4 distance for new retail outlets and, in fact, the Siting Criteria which is mentioned in the Office Memorandum dated 07.01.2020 was also placed before the Principal Bench by the Expert Committee in the form of Guidelines which is also quoted in para 6 of the said judgment.
8. A supplementary affidavit dated 15.02.2023 has been filed by the Applicant, giving particulars of the distance of the Petrol Pump in question from the nearest residential houses which reads as under:-
Sl. Name of residence Distance
No. owner
1 Rohit Kumar Patel 6 meter from filling point & 16
meter from Dispensing Unit
2 Dinabandhu Patel 12 meters from dispending unit &
20 meter from fill point
3 Amrutlal Patel 22 meter from dispensing unit
4 Mahendra Sahu 22 meter from dispensing unit
5 Antaryami Pradhan 25 meter from dispensing unit
6 Fakir Mohan Patel 32 meter from dispensing unit
9. The short controversy in the present case is as to whether the Petrol Pump in question set-up by the Respondent No.8 is in violation of the Siting Criteria laid down by the Central Pollution Control Board vide Office Memorandum dated 07.01.2020 as clarified subsequently in a further Office Memorandum dated 29.01.2021. The Siting Criteria in the Office Memorandum dated 07.01.2020 reads as under:-
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"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. "
10. The subsequent clarification in the Office Memorandum dated 29.01.2021 reads as under:-
"..............XXX..............XXX..................XXX.................... In this regard, it is clarified that the siting criteria for new Retail Outlets is to be complied with in cases where construction of Retail Outlets by Oil Marketing Companies commenced on or after 07.01.2020. In other words, the siting criteria will not apply to those cases where PESO prior clearance/initial approval has been obtained and subsequently construction has been started by the OMC before 07.01.2020."
11. The Tahasildar, Ambabhona, District-Bargarh, in his counter-
affidavit dated 16.02.2023 has stated that the Retail Outlet offered to the Respondent No.8 is located at Plot No. 122, Khata No. 346/262, Jouza-Chicholi, Tahasil-Ambabhona, District-Bargarh, and the said Respondent has obtained Letter of Intent ('LoI' for short) from the Indian Oil Corporation Limited, ('IOCL' for short) on 09.08.2019 and prior approval has also been granted by the Petroleum & Explosive Safety Organisation ('PESO' for short) on 16.09.2019. In support of the contention, documents have been filed at page no. 94 and 99 respectively along with the affidavit. 6
12. In the affidavit, it is further stated that the Retail Outlet is situated at a distance of 12 meters from the house of the Respondent No.8 herself; 30 meters from the house of a relative of the Respondent No.8; and 42 meters, 51 meters and 60 meters from three other houses situated on the opposite side of the road. It is also stated that construction of the Retail Outlet was commenced by the Respondent No.8 immediately after grant of prior approval by PESO and well before the cut-off-date i.e., 07.01.2020.
13. The Indian Oil Corporation Limited, Respondent No.6, in its counter-affidavit dated 21.02.2023 has stated that IOCL published an advertisement on 25.11.2018 for appointment of MS/HSD Kishan Seva Kendra Dealership at several locations including Chicholi at Prakashpur-Chicholi Road, District-Bargarh, Odisha. After due selection process, the Respondent No.8, Mrs. Hemlata Patel, was selected for award of the said dealership and thereafter a Letter of Intent (LoI) was issued in her favour on 09.08.2019. The Indian Oil Corporation vide its letter dated 05.09.2019 applied to the District Magistrate, Bargarh, for grant of 'No Objection Certificate' ('NOC' for short) as required under the Petroleum Rules, 2002, and another application dated 10.09.2019 before the Joint Chief Controller of Explosive, Petroleum & Explosive Safety Organisation for approval. It is stated that the PESO vide its letter dated 16.09.2019 issued prior approval in favour of the IOCL and thereafter the Respondent No.8 has placed a work order with M/s Pramodh Kumar Pradhan, Village-Dungri, District-Bargarh, for carrying out various works of the Petrol Pump vide work order dated 20.09.2019 as per the information provided by the Respondent No.8 vide her letter dated 11.02.2023. It was also 7 stated therein that the contractor had completed civil works on 20.12.2019. The District Magistrate, Bargarh, vide his letter dated 11.10.2022 has granted NOC and subsequent to the NOC, the IOCL completed its works i.e., installation of underground tanks, dispensing units, pipeline laying etc. in December, 2022 and the Retail Outlet was commissioned on 31.12.2022.
14. The Tahasildar, Ambabhona, District-Bargarh, has filed a further affidavit dated 15.03.2023, stating therein that an Objection Petition dated 03.10.2019 had been submitted before the Collector, Bargarh, by Sri Fakir Mohan Patel, Applicant No.2 herein, and others, praying that NOC may not be issued in favour of the Respondent No.8. Copy of this Objection Petition dated 03.10.2019 has been filed as Annexure-G/2 to the affidavit and in this letter itself the Applicant No.2 has admitted that civil work on Plot No. 122 of Village-Chicholi is going on. This shows that the work has been commenced much prior to the issuance of the Central Pollution Control Board Office Memorandum dated 07.01.2020.
15. The Odisha State Pollution Control Board, Respondent No.4, has also filed its affidavit dated 15.03.2023 and all that has been stated therein is that inspection has been carried out of the site on 13.01.2023 and during inspection it was noticed that there are various establishments such as residential, commercial and other establishments near the Petrol Pump in question.
16. The Petroleum & Explosive Safety Organisation (PESO), Respondent No.7, has filed its affidavit dated 21.02.2023, reiterating the facts already noted hereinabove.
17. Rejoinder affidavit dated 16.03.2023 has also been filed on behalf of the Applicants, alleging that the work order issued by the 8 Respondent No.8 on 20.09.2019 and the completion certificate dated 20.12.2019 are unreliable documents as they have been manufactured only after the complaints were made and it is submitted by Mr. Sankar Prasad Pani, learned Counsel for the Applicants that a forensic inquiry and ink dating of the documents dated 20.12.2019 be called for by this Court. With regard to public complaint dated 03.10.2019 made by the Applicant No.2 and others, it is stated that the same was made with respect to demolition of an existing mud tile (khapar) on the plot in question which has nothing to do with the construction of the Petrol Pump in question.
It is alleged that the lease of the Petrol Pump was granted to the Respondent No.8 on 15.11.2019, therefore, the work order could not have been given on 20.09.2019 and even otherwise it cannot be accepted that the construction is going on for the last three years. It is further alleged that the land in question was mortgaged to the Punjab National Bank, Bargarh Branch, from 15.10.2016 to 16.08.2022 and by fraudulent means it has been allotted to the Respondent No.8.
18. We have given our anxious consideration to the submissions made by the learned Counsel for the parties and have examined the documents on record.
19. The Siting Criteria in the Office Memorandum dated 07.01.2020 issued by the Central Pollution Control Board provides that "new Retail Outlets shall not be located within a radial distance of 50 meters (from fill point/dispensing units/vent pipe whichever is nearest) from schools, hospitals (10 beds and above) and residential areas designated as per local laws. In case of constraints in 9 providing 50 meters distance, the retail outlet shall be implemented 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." This Siting Criteria was subsequently clarified in the Office Memorandum dated 29.01.2021 and it was provided that "siting criteria for new Retail Outlets is to be complied with in cases where construction of Retail Outlets by Oil Marketing Companies commenced on or after 07.01.2020. In other words, the siting criteria will not apply to those cases where PESO prior clearance/initial approval has been obtained and subsequently construction has been started by the OMC before 07.01.2020."
20. Thus, for purposes of application of the Office Memorandum dated 07.01.2020 what is required is that after prior clearance/initial approval by PESO, construction must be started before 07.01.2020 to avoid the rigour and mandate of distance prescribed in the Office Memorandum dated 07.01.2020. It is immaterial that the construction is continuing beyond 07.01.2020 what is relevant is that it has commenced prior to 07.01.2020. Though, the Applicants have alleged that the work order dated 20.09.2019 and the final completion certificate dated 20.12.2019 cannot be relied upon and are documents manufactured for purposes of the present case, we had directed the Respondent No.8 to produce the original completion certificate dated 20.12.2019 which has been produced before us and we find that the particulars mentioned in it about date of commencement and date of completion are absolutely identical to the document which has been filed at page no. 102 of 10 the paper book by the Tahasildar, Ambabhona, along with his affidavit dated 16.02.2023.
21. Mr. Sankar Prasad Pani, learned Counsel for the Applicants, referring to the photocopy of the document filed at page no. 102 of the paper book, submitted that at the top left hand corner there is date mentioned as 30.12.2022 which shows that the certificate was not issued on 20.12.2019.
22. We find that no such date is mentioned and there is no such overwriting in the top left hand corner of the original document dated 20.12.2019 and, therefore, the submission of the learned Counsel for the Applicants that the final completion certificate dated 20.12.2019 is manufactured document is totally misconceived and is accordingly rejected. Our findings are further buttressed by the fact that even if the final completion certificate is put to doubt, there is one more factor for accepting the genuineness of the final completion certificate dated 20.12.2019, namely, the document filed at page no. 200 of the paper book, which is an Objection Petition/Complaint submitted by the Applicant No.2 along with some others before the Collector & District Magistrate, Bargarh, Odisha, on 03.10.2019 which clearly mentions that "............. the Indian Oil Corporation Limited has selected Mrs. Hemlata Patel, Respondent No.8 herein, W/o Nanda Kishore Patel, resident of Prakashpur, Chicholi, 768045 for opening of petrol pump dealership for the location - Name of Location - Chicholi on Prakashpur-Chicholi Road. The civil work of Plot No. 122 of Village- Chicholi is going on......"
23. This shows that construction work of the Retail Outlet of Respondent No.8 had commenced even as on 03.10.2019 which 11 further affirms the case of the Respondent No.8 that the work order had been issued on 20.09.2019. The claim of the Applicants that this Objection Petition was filed by the Applicant No.2 and this is with regard to the demolition of existing mud tile (Khapar) house on the said plot, does not find any mention in this Objection Petition dated 03.10.2019.
24. Therefore, on a conspectus of facts as emerging from the affidavits of the parties and the documents on record which we have no reason to doubt it is established that the construction of the Retail Outlet was allotted to Respondent No.8 and the construction work of the same had commenced prior to 07.01.2020 and, therefore, will not be governed by the Siting Criteria laid down in the Central Pollution Control Board Office Memorandum dated 07.01.2020.
25. The Original Application No. 09/2023/EZ, therefore, lacks merit and is accordingly dismissed.
26. I.As. if any, stands dispose of accordingly.
27. There shall be no order as to costs.
28. The original document i.e., the final completion certificate dated 20.12.2019 filed by the Respondent No.8; the same is taken on record.
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B. Amit Sthalekar, JM ....................................
Prof. A. Senthil Vel, EM March 22, 2023, Original Application No.09/2023/EZ AK 12