Kerala High Court
Sheeja.E vs The District Collector on 21 February, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941
WP(C).No.22156 OF 2019(T)
PETITIONER:
SHEEJA.E
AGED 48 YEARS
W/O.SHAMSUDEEN KUTTY, CHETTISSERIL HOUSE, KADAPPA
MYNAGAPPALLY, KOLLAM.
BY ADVS.
SRI.R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS:
1 THE DISTRICT COLLECTOR
KOLLAM DIST COLLECTORATE, KOLLAM-691013
2 HINDUSTAN PETROLEUM CORPORATION LTD,
REP BY ITS CHIEF REGIONAL MANAGER, COCHIN RETAIL
REGIONAL OFFICE, ERNAKULAM NORTH.P.O, P.B.NO.1601,
COCHIN 682018
R1 BY GOVERNMENT PLEADER
R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R2 BY ADV. SRI.K.JOHN MATHAI
R2 BY ADV. SRI.JOSON MANAVALAN
R2 BY ADV. SRI.KURYAN THOMAS
R2 BY ADV. SRI.PAULOSE C. ABRAHAM
OTHER PRESENT:
GP. SMT. PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-
01-2020, THE COURT ON 26-02-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.22156/19
2
JUDGMENT
Dated this the 26th day of February 2020
1. This writ petition is filed challenging Exhibit P5 order by which No objection Certificate for the retail petroleum outlet has been rejected by the 1st respondent.
2. Heard the learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the 2nd respondent.
3. It is submitted that the petitioner along with her husband are owners of 34 cents of property in Mynagappally village in Karunagappally taluk. The property is situated on the side of the PWD road and has a road frontage of more than 50metres. Pursuant to a notification invited by the 2 nd respondent, the petitioner had applied for issue of No Objection Certificate by Exhibit P3. The petitioner had earlier approached this Court by filing W.P.(C).No.16532 of 2019 and had obtained Exhibit P4 interim order directing the District Collector to consider the W.P.(C).No.22156/19 3 request made by the Petroleum company for No Objection Certificate independently, without reference to IRC/MORTH guidelines within three weeks. It is stated that the 1 st respondent was duty bound to consider the application for No Objection Certificate without reference to the MORTH guidelines or IRC norms. However, by Exhibit P5, NOC has been rejected on the sole ground that the site in question is situated on a large curve in the road and that the setting up of a petroleum outlet on such a curve would result in accidents occurring and consequently would cause danger to the public.
4. The learned counsel for the petitioner submits that Exhibits P7 to P9 photographs would show that there are several petroleum outlets granted with NOC by the District Administration situated identically on such curves and the fact that there is chance of accidents occurring cannot be a ground to deny NOC to the petitioner. It is contended that all necessary safety measures and precautions will be adopted by the company while conducting the petroleum outlet and that the rejection of NOC on the ground that the property is W.P.(C).No.22156/19 4 situated on a curve in the road is completely untenable and unsustainable.
5. The learned counsel for the petitioner places reliance on the decision of a Division Bench in Sheena Prakash v. Union of India and others [2013 KHC 3365] and of a single Judge of this Court in Mary Ulahannan v. Union of India and others [2011 (2) KHC 792]. Reliance is also placed on a decision of the Apex Court in Bijoe Emmanuel and others v. State of Kerala and others [(1986) 3 SCC 613] in support of the contention that Executive Instructions like IRC norms and MORTH guidelines are not 'law' and therefore cannot impose restrictions on the Fundamental Rights under Article 19(1) of the Constitution of India.
6. A counter affidavit has been placed on record by the 1 st respondents contending that the issue had been considered independently by the District Magistrate. It is stated in paragraph 6 of the counter affidavit as follows:-
"According to the reports of the Executive Engineer PWD (Roads). the site for proposed petroleum outlet does not follow the conditions mentioned W.P.(C).No.22156/19 5 in IRC Clause 4.7 of the Norms. On the basis of the reports obtained from the enquiry officers the Additional District Magistrate conducted site inspection on 15.07.2019 and observed that the property mentioned in the application is situated only about 10 meters away from a big sharp curve and there are chances for accidents by collusion between vehicles coming out from the petroleum outlet and vehicles going through the PWD road. Hearing of respective parties in this case was also conducted on 23.07.2019. During hearing, the Assistant Executive Engineer, PWD (Roads) informed that the proposed site is situated very near to a sharp curve and thus may cause accidents in future. On the basis of site inspection report by the Additional District Magistrate, findings on hearing and on the grounds of public safety, the application for starting petroleum outlet in Resurvey number 289/5-1, 289/5-2 in Mynagappally village was rejected vide Exhibit P5 by the District Collector independently and on its merits without considering IRC/MOR'I'H guidelines. thus implementing the order of this Hon'ble Court in W.P.(C)16532/2019. Challenging the above order, Exhibit P5, the petitioner has filed present writ petition.
7. It is contended by the learned Government Pleader that since NOC is a prerequisite for the starting of any retail petroleum outlet, the discretion of the Authority in considering an application for NOC cannot be completely fettered. While taking an independent decision on an application for NOC, the appropriate authority has to take into account all relevant aspects including public safety.
W.P.(C).No.22156/196
8. I have considered the contentions advanced on either side. It is not in dispute that the directions of this Court was to consider the application for NOC without reference to the IRC norms or the MORTH guidelines. From a perusal of the impugned order, it is clear that the 1 st respondent has independently assessed the situation and passed an order, taking note of the factual aspects of the matter. The contention of the learned counsel for the petitioner that the rejection of application for NOC would offend the right of the petitioner to carry on an occupation or trade cannot be accepted, since discretion is evidently vested in the appropriate authority to consider whether an NOC can be issued. However, it is the further specific contention of the petitioner that NOCs have been issued in respect of identical sites in the district of Kollam and elsewhere in other districts in Kerala and that the rejection of the NOC in the case of the petitioner's site alone on the ground it is on a sharp curve, is completely unsustainable. Having regard to the facts and circumstance of the instant case, I am of the opinion that the said issue requires consideration by the 1 st respondent afresh. W.P.(C).No.22156/19 7 While upholding the right of the 1 st respondent to reject an NOC on tenable grounds, I am of the opinion that the contention raised that NOCs have been granted in identical circumstances requires examination at the hands of the 1 st respondent.
9. In the result, the impugned order is set aside. There will be a direction to the 1st respondent to re-consider the issue with notice to the petitioner and the 2nd respondent and any other affected or interested parties and to reconsider the issue after hearing them. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this judgment.
The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.22156/19 8 APPENDIX PETITIONER'SS EXHIBITS:
EXHIBIT P1 COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER EXHIBIT P2 COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 COPY OF THE APPLICATION TO THE 1ST RESPONDENT EXHIBIT P4 COPY OF THE ORDER IN WP(C)NO.16532/2019 DT.18.06.2019 EXHIBIT P5 COPY OF THE ORDER OF THE 1ST RESPONDENT DT.28.09.2019 EXHIBIT P6 COPY OF THE LAYOUT AND LOCATION PLAN EXHIBIT P7 COPY OF THE PHOTOGRAPH OF THE PETROL PUMP AT THE THIRUVALLA-KOTTAYAM ROUTE EXHIBIT P8 COPY OF THE PHOTOGRAPH OF THE PETROL PUMP AT THE KOLLAM-THIRUVANANTHPURAM NATIONAL HIGHWAY EXHIBIT P9 COPY OF THE PHOTOGRAPH OF THE PETITIONER'S PROPERTY True copy PS to Judge