Andhra Pradesh High Court - Amravati
M. Himachalam Babu, vs Union Of India, on 1 September, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.23519 OF 2020
ORDER:
One M. Himachalam Babu and twenty others filed this writ petition under Article 226 of Constitution of India, to issue Writ of Mandamus declaring the action of Respondent No.8 in issuing „No Objection Certificate vide REVCSECOPARNOC/94/2019 dated 01.06.2020‟ to set-up Petroleum Retail Outlet of Respondent No.2 in the land belonging to Respondent No.12 situated in Survey No.1/6 Puttur Village and Mandal Chittoor District as illegal, irregular arbitrary unjustified and unsustainable violative of Articles 14, 19(1)(g) and 21 of the Constitution of India, contrary to Rules and Regulations under Petroleum Act, 1934 and set-aside the same.
The first petitioner is a resident of Puttur Village and Mandal, carrying on his activities in transport business. Similarly, other petitioners are residents of villages which are in and around Puttur. The Petitioner No.21/M/s. Bhanodaya Petroleum Products, (IOCL) is a propriety concern having obtained dealership license in the business of petroleum products, set-up a retail outlet in Sy.No.7/13 and 7/5-B of Puttur Village and Mandal, Chittoor District. Petitioner No.21/IOCL has been carrying out its business in relation to petroleum products catering the needs of the general public in the said area.
The petitioners came to know through an article published in the District Edition of leading newspaper that, Respondent MSM,J WP.No.23519 of 2020 2 No.2/BPCL, a Public Sector Undertaking Oil Company entered into an agreement with Respondent No.12/Puttur Fire Station to set-up petroleum retail outlet in the land belonging to Puttur Fire Station, situated in Sy.No.1 of Puttur Village and Mandal, Chittoor District. It is contended that the proposed site for setting up a retail outlet of Respondent No.2 is along the same side of the road within a distance of 300 meters from 21st Petitioner retail outlet. Petitioner No.21 submitted an application dated 04.11.2020 under Right to Information Act to the respondents seeking information about extent of land provided to Respondent No.12, proposals to set up the retail outlet in the land belonging to Respondent No.12, FMB copy, copy of No Objection Certificate (NOC) and proceedings of NOC. Respondent No.10/Tahsildar vide R.T.I 226/20 dated 17.11.2020 submitted a reply stating that the land in an extent of Ac.1-60 cents in S.No.1/5 belong to Respondent No.12. Further, the proposals have been submitted to Respondent No.9 and „No Objection Certificate‟ is not yet received from the office of Respondent Nos. 6 & 9, a copy of FMB sketch is enclosed. Respondent No.6 vide L.Roc.C4/RTI/343605/2020 dated 28.11.2020 provided a copy of „No Objection Certificate‟ issued by Respondent No.8. However, Petitioner No.21 was not provided with the enclosures based on which the said decision is taken.
Respondent No.8/Joint Collector issued „No Objection Certificate vide REV-CSEOPAR(NOC)/84/2019 dated 01.06.2020 under Rule 144 of Petroleum Rules, 2002, at the instance of the application filed by Respondent No.4/Territory Manager. Respondent No.8 gave No Objection Certificate to set up the outlet MSM,J WP.No.23519 of 2020 3 in the premises of Respondent No.12 admeasuring an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Village and Mandal, Chittoor District. The Fire Station is set up in the outskirts of Puttur in the land admeasuring an extent of Ac.1-60 cents with an intention of future expansion to accommodate more vehicles as and when the town develops. However, ignoring the same, petroleum retail outlet is proposed to be set up in the land belonging to Fire Station, which is a government land, contrary to the purpose for which the land was allotted to Respondent No.12. Respondent No.12 entered into a lease agreement with Respondent No.2 on payment of rent of Rs.80,000/- per month as against the usual amount of about Rs.2,000/- per month. This action of the respondents in proposing to set up the retail outlet in the government land for commercial purpose is illegal, arbitrary, contrary to public interest and needs judicial interference.
Rule 144 of the Petroleum Rules mandates that the District Authority shall issue „No Objection Certificate‟ for setting up a retail petrol outlet on a proposed site, after conducting due enquiry. Such issuance of „No Objection Certificate‟ can be only considering various aspects about feasibility of the location of the proposed outlet. The proposed site is on the State Highway No.69 in Puttur Town and it has 30 meters road. There is a school namely Sri Chaitanya School with considerably good strength of students, situated opposite to proposed site which is less than 50 meters of distance. There is another institution namely Himaja School and Junior College within a distance of 100 meters. There is also a convention center with capacity of 1000 guests situated MSM,J WP.No.23519 of 2020 4 on the opposite side of the proposed site at a distance of 50 meters. As per the new guidelines dated 07.01.2020 issued for setting up of petrol pumps, retail outlet cannot be located within 50 meters from schools, hospitals and residential areas. In case of constrains in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by Respondent No.3. However, there are no such constraints and many other options available to Respondent No.2 to set up the retail outlet in Puttur Village and Mandal. On the other hand, there is burial ground on the eastern side of the proposed site, particularly which deals with inflammable products would be hazardous to the residents of that locality. Rule 117 of the Petroleum Rules mandates precautions to be taken against fire and prevent any fire, furnace or other source of light or heat to be allowed in the service station. However, the respondents did not consider the fire hazard that the proposed site is prone to and possible damage thereof. The setting up of outlet in the proposed site is hazardous to the students and also to the public gatherings in convention center, keeping in view the presence of a burial ground adjacent to the proposed site. The residents of the locality are very much concerned about their safety due to location of the proposed outlet. Without considering these aspects during enquiry, the action of the respondents in issuing „No Objection Certificate‟ for setting up the outlet in the proposed site is contrary to the guidelines issued by Respondent No.1 as arbitrary and sought to set-aside the same.
It is contended that, Sy.No.1 of Puttur Village and Mandal is a cheruvu (water tank) in Puttur admeasuring an extent of MSM,J WP.No.23519 of 2020 5 Ac.92-00 cents which is catering the needs of Puttur Village. It is a water body which is in existence since time immemorial. The proposed site being adjacent to Puttur cheruvu in which Galeru Nageri water tank storage for drinking purpose is provided and it is not environmentally feasible location for setting up a petrol pump. It is submitted that, Article 21 of the Constitution of India embodies „Right to clean and healthy environment‟, Article 48-A and Article 51-A(g) of the Constitution bestows the responsibility on the State to protect the environmental degradation which includes water bodies like lakes and ponds. It is submitted that, any kind of spillage or unforeseen incident, will also lead to drinking water contamination which is supplied to the people of Puttur and have cascading effect on the ecology of the water body. Aggrieved by the same, the present writ petition is filed.
Learned counsel for the petitioners placed reliance on the judgment of the Apex Court in Hinch Lal Tiwari v. Kamala Devi and others1 and based on the said judgment, contended that, very establishment of petroleum outlet at the proposed place belonging to the fire department is contrary to the principle laid down in the above judgment.
Finally, it is contended that, a retail outlet is situated within 300 meters from the proposed site and the fundamental right to conduct business guaranteed under Article 19(1)(a) of the Constitution of India is violated, creating unhealthy competition amongst the dealers, in-turn affecting the livelihood of Petitioner No.21. To prevent such unhealthy competition, Indian Road 1 2001 Supp (1) SCR 23 MSM,J WP.No.23519 of 2020 6 Congress issued Guidelines for Access, Location And Layout Of Roadside Fuel Stations And Service Stations, 2009, wherein Guideline 4.6 stipulates that a minimum distance of 300 meters to be maintained between two fuel stations. The oil companies have given assurance of minimum business of 120 kl to the dealers and contrary to that, Petitioner No.21 is able to sell out only 60 to 65 kl in the fuel station, even after catering to the needs of the general public. There is no necessity to establish another outlet in the same vicinity when there is no sufficient demand, causing loss to both the dealers in their business. The oil companies which are instrumentalities of state cannot promote unhealthy competition among the dealers under the garb of improving their profits. The oil companies conventionally abide by the Indian Road Congress guidelines which promote minimum distance between two fuel stations. The action of the respondents according permission to set up the outlet in the proposed site is in violation of Articles 19(1)(a) and 21 of the Constitution of India, as illegal, arbitrary and unreasonable. Therefore, sought the relief as stated supra.
Respondent No.6/District Collector, Chittoor, filed counter affidavit denying material allegations, while admitting issue of „No Objection Certificate‟ impugned in the writ petition, inter alia contending that, „No Objection Certificate‟ was issued by Respondent No.8 vide REV-CSEC0PAR(NOC)/94/2019 dated 01.06.2020 for setting up Retail Petrol Bunk in Sy.No.1-6 of Puttur Village of Puttur Mandal which is vested with Fire Service Department in accordance with G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988 and the same was incorporated by MSM,J WP.No.23519 of 2020 7 the Collector, Chittoor vide Proceedings R.Dis.No.13390/88 dated 31.12.1988 duly changing the classification from Puttur Tank Poramboke to Fire Service Department Poramboke to an extent of Ac.1-60 cents comprised in Sy.No.1/6 which is a part of Sy.No.1/1 out of an extent of Ac.138-10 cents. Since then the fire service department became absolute owner of the property. The „No Objection Certificate‟ was issued by the Joint Collector, Chittoor and Respondent No.8 by following due procedure and the petitioners are no way connected with the issue, since the allotment of land in favour of fire service department was made during the year 1988. The fire service department became the absolute owner of the property and it is also part and parcel of Government sector departments, the writ petitioners with a malafide intention to make an obstruction in establishing a retail petrol bunk. Respondent No.8 issued „No Objection Certificate‟ based on the report of the Tahsildar, wherein the Tahsildar reported that, the land proposed for setting up of petroleum outlet is in an extent of Ac.0-44 cents, situated in Sy.No.1/6 of Puttur Village and Mandal and the distance is 50 meters from the petrol bunk to Chaitanya School, 200 meters to Himaja Junior College, 30 meters distance to the Convention (GJN) Centre, 90 meters distance to the burial ground and 21.4 meters of road width at the petrol bunk leading road from Puttur to Chittoor. Hence, the same cannot be said to be illegal.
It is further contended by Respondent No.6 that, as part of enquiry before granting No Objection Certificate, a report is also called from the Superintendent of Police, Chittoor, vide MSM,J WP.No.23519 of 2020 8 C.No.G2/4025/208/Petrol (NOC)/2019 dated 13.02.2020 recommending for issue of No Objection Certificate for establishing BPCL Petrol retail outlet. The District Fire Officer, Chittoor has enquired and submitted his report vide reference No.2569/A2/2019 dated 19.01.2020 recommending for issue of NOC for establishing BPCL petrol fuel station with fire conditions.
It is contended that the Revenue Divisional Officer, Chittoor has enquired and submitted his report vide Roc.No.E/4608/2019 dated 11.02.2020 that the proposed land is alienated/transferred in favour of Fire Service Department vide Collector proceedings R.Dis.13390/88 dated 31.12.1988 to an extent of Ac.1-60 cents; that there is no dispute over the subject land which is having access from the main road, as the land in question was not converted from agricultural land to non-agriculture purpose. It was mentioned that the land stands in favour of Fire Service Department Poramboke and changed classification from Tank Poramboke to Fire Service Poramboke as per the Village Accounts and therefore, the „No Objection Certificate‟ cannot be held to be illegal, arbitrary and requested to dismiss the writ petition against Respondent No.6.
Respondent No.11/District Fire Officer, Chittoor District, filed separate counter affidavit while admitting about grant of lease in favour of retail petrol bunk, as the land is vested on the Fire Services Department alone and also admitted about issue of No Objection Certificate on the basis of the reports obtained from Superintendent of Police, Mandal Revenue Officer and Revenue MSM,J WP.No.23519 of 2020 9 Divisional Officer, and by strictly adhering to the procedure prescribed under the Rules, permission was granted and thereby the permission cannot be said to be illegal, arbitrary and requested to dismiss the writ petition against Respondent No.11.
Respondent No.4/Territory Manager, Bharat Petroleum Corporation Limited filed separate counter affidavit, denying material allegations, inter alia contending that, the land where petroleum outlet is proposed to be set up is vested on Fire Services Department vide G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988, through which classification was changed from Puttur Tank Poramboke to Fire Services Department and leased out site of an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Village and Mandal, Chittoor District, on payment of monthly rent for setting up petroleum outlet.
It is specifically contended that, the District Fire Officer, Chittoor vide letter dated 30.07.2019 invited public sector oil marketing committees to submit proposals for establishing a retail outlet at Sy.No.1/5, Kalyanapuram, Puttur, Chitoor District, in an area of 900 sq.mtrs. The proposals submitted by the oil marketing companies by quoting the rent for the area and proposal of the company was accepted. Thereafter, Respondent No.4 submitted an application for issuance of „No Objection Certificate‟ and the „No Objection Certificate‟ was granted. After issuance of „No Objection Certificate‟, Respondent No.4 spent money and constructed the retail outlet. Respondent No.4 also admitted in the counter affidavit that, the retail outlet is established on the site, on the MSM,J WP.No.23519 of 2020 10 basis of the offer made by the Fire Service Department expressing its desire to lease out the area for the purpose of establishment of a retail outlet and Respondent No.4 offered the maximum rent compared to other oil companies, Respondent No.4 was granted permission to establish retail outlet.
Respondent No.4 submitted that, Sri Chaitanya School is located at 90 meters away from the site of the retail outlet; Hinduja Junior College is located at 120 meters away from the proposed retail outlet. There are no schools or colleges or hospitals within a distance of 50 meters from the retail outlet and the burial ground is on the right side of the fire station and not adjacent to the retail outlet.
The petitioners filed rejoinder to the counter affidavit filed by Respondent No.6, reiterating the contentions, denying the specific allegations made in the counter affidavit, while specifically contending that, fire station has been set up in the land carved out from the water course poramboke/tank poramboke land. The title of the land in relation to tank, tank beds, ponds, water bodies vests with the State Government. Further, the Andhra Pradesh Water, Land and Trees Act, 2002 is enacted to promote water conservation and Section 23 of the said Act imposed duty upon the authority to preserve the water bodies. As per BSO 15 Para 4, Tank Bed Poramboke, Water Course Poramboke are prohibited from being allotted for making any constructions. Even as per Andhra Pradesh Building Rules, 2017, Rule 54 of Chapter IV states that no building/development activity shall be allowed in the bed of water MSM,J WP.No.23519 of 2020 11 bodies like river or nala and in the Full Tank Level (FTL) of any lake, pond, cheruvu or kunta/shikam lands, unless and until it is certified by the Irrigation Department and Revenue Department. However, ignoring the said criteria, Respondent No.8 acted completely in arbitrary manner and without application of mind, granted NOC to set up petroleum retail outlet on the tank poramboke land. It is also contended that, Tank Poramboke land cannot be alienated and no constructions can be allowed to happen which will affect the ecological balance of natural water bodies and that, the act of Respondent No.8 in granting No Objection Certificate to Respondent No.4 is violative of Articles 14 & 21 of the Constitution of India and requested to allow the writ petition.
During hearing, Ms. Sodum Anvesha, learned counsel for the petitioners would submit that, the land cannot be transferred from one department to another, which is dealing with commercial transactions, thus, the site transferred from one department cannot be used for commercial purpose. Therefore, letting out the site admeasuring an extent of Ac.0-44 cents in non-existing Sy.No.1/6, Puttur Village and Mandal, Chittoor District, by Respondent No.12/Puttur Fire Station to Respondent No.2/BPCL is contrary to B.S.O 15(8). Apart from that, the retail outlet is being established by Respondent No.2 within the radius of 50 meters to schools, convention centre, burial ground and water tank, which is contrary to the guidelines issued by the Ministry of Petroleum and contrary to Section 144 of Petroleum Rules.
MSM,J WP.No.23519 of 2020 12 Yet, another contention of the learned counsel for the petitioners is that, the land is classified as „Tank Poramboke‟, all the documents would clinchingly establish that it was tank poramboke which cannot be alienated for commercial purpose and it is contrary to B.S.O 15(8). Besides all the above contentions, the specific contention raised by the learned counsel for the petitioners is that, the petroleum outlet proposed to be established by Respondent No.2 is just by the side of drinking water tank admeasuring in an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Village and Mandal, Chittoor District, and part of it was given to Puttur Fire Station, who in-turn is proposing to let out to Respondent No.2 herein, thereby, there is every possibility of emitting petroleum wastage, spilling of oil, which could contaminate the drinking water and the water may become unfit for consumption by the public. As establishment of retail petroleum outlet just nearby burial ground where inflammables are used for cremation of dead bodies, possibility of fire accidents cannot be ruled out. Therefore, proposed establishment of petroleum outlet in site admeasuring an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Village and Mandal, Chittoor District, which was allotted to Puttur Fire Station is illegal and it is not only contrary to the Board Standing Orders, but also causes serious health hazard to the public. Thereby, issue of „No Objection Certificate‟ for establishment of retail petroleum outlet by Respondent No.8 is against the law and requested to declare the same as illegal, arbitrary and set-aside the same.
MSM,J WP.No.23519 of 2020 13 Sri O. Manohar Reddy, learned Senior Counsel for Respondent No.2/BPCL, while refuting the contentions of learned counsel for the petitioners, drawn attention of this Court to B.S.O 15(8), where the proposal is for transfer of land to government department which are dealing with commercial activities, but not against public utility services and the bar under B.S.O 15(8) has no application. Apart from that, the schools, colleges and other convention centers, are more than 50 mts away to the land leased out by Respondent No.12 to Respondent No.2 for establishment of petroleum outlet. Further, the burial ground and the petroleum outlet are intervened by fire station and there is no possibility of causing any damage to the petroleum outlet due to use of inflammables for cremating the dead bodies in the burial ground. Thereby, apprehension of these petitioners that there is a possibility of causing damage to the public health is misplaced. Finally, it is contended that the land is classified as fire station poramboke, but not as tank poramboke, thereby, question of spillage or letting out waste material from the petrol bunk into the drinking water tank does not arise and the alleged contamination of drinking water on account of establishment of petroleum outlet is only apprehension of these petitioners, at the instance of Petitioner No.21, who is running another outlet beyond 300 meters from the present proposed outlet.
Finally, it is contended that, Respondent No.21 is a competitor in business and a writ petition at the instance of competitor in the business is not maintainable and he has no locus standi to question the act of the Government.
MSM,J WP.No.23519 of 2020 14 Learned Government Pleader for Civil Supplies and learned Government Pleader for Fire Services totally supported the act of the respondents in toto, while submitting that, no schools, colleges or educational institutions are available within the radius of 50 meters from the proposed petroleum retail outlet and no hospitals are established within the radius of 50 meters. „No Objection Certificate‟ was issued based on the representation from Tahsildar and final report of Revenue Divisional Officer, after satisfying the requirements, since the proposed outlet satisfied the regulations and Section 144 of the Petroleum Rules, „No Objection Certificate‟ was issued and absolutely, there is no irregularity, illegality and requested to dismiss the writ petition.
Ms. Sodum Anvesha, learned counsel for the petitioners and Sri O. Manoher Reddy, learned Senior Counsel for Respondent No.2 placed reliance on the judgments of Supreme Court and other High Courts, which will be referred at appropriate stage, while dealing with the issues raised by the parties before this Court.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether grant of „No Objection Certificate‟ for establishment of retail petroleum outlet is violative of any of the guidelines issued by Ministry of Petroleum and Section 144 of Petroleum Rules. If so, whether „No Objection Certificate‟ issued by Respondent No. 8 be declared as illegal, arbitrary and set-
aside the same?
MSM,J WP.No.23519 of 2020 15
2. Whether the establishment of retail petroleum outlet is within the „tank poramboke or „fire station poramboke‟, in an extent of Ac.0-44 cents in Sy.no.1/6 of Puttur and such establishment is permissible within the tank poramboke or fire station poramboke in terms of B.S.O.15(4) and B.S.O 15(8) of Andhra Pradesh Board Revenue Standing Orders?
3. Whether establishment of petroleum retail outlet is health hazard to the public and endangerous to the lives of public, as the proposed outlet is by the side of drinking water tank, burial/cremation ground. If so, whether grant of „No Objection Certificate‟ permitting Respondent No.2 to establish the retail petroleum outlet be declared as illegal, arbitrary and the permission be cancelled?
P O I N T Nos.1 & 2:
Before adverting to the contentions raised by the learned counsel for the petitioners, it is appropriate to refer to the law laid down by the Apex Court relating to power of this Court under Article 226 of the Constitution of India to interfere with the administrative decision of the State.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which are enumerated in "West Bengal Central School Service Commission v. Abdul Halim2" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision 2 (2019) 18 SCC 39 MSM,J WP.No.23519 of 2020 16 and calls for intervention Under Article 226 of the Constitution of India.
In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self- evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect." Keeping in view of scope of judicial review, various contentions raised by both the parties, requires examination legally.
MSM,J WP.No.23519 of 2020 17 The first and foremost contention of the learned counsel for the petitioners is that, the land was transferred from Revenue Department to Fire Service Department as per G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988. The land in Sy.No.1, Puttur Village and Mandal, Chittoor District, was sub-divided into five parts, and transferred Ac.1-60 cents to Fire Service Department. There is no dispute regarding transfer of Ac.1-60 cents to Fire Service Department (R-11) under G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988 and the Collector, Chittoor vide Proceedings R.Dis.No.13390/88 dated 31.12.1988 set-apart an extent of Ac.1-60 cents in Sy.No.1/5, Puttur Village and Mandal, Chittoor District from „Puttur Tank Poramboke‟ into „Fire Department Poramboke‟. Further, the Regional Fire Officer, Southern Region, Anantapur is requested to ensure that the area within Full Tank Level be raised above Full Tank Level, as suggested by the Executive Engineer in the letter dated 05.11.1984.
Undisputedly, the land in Sy.No.1/1, Puttur Village and Mandal, Chittoor District was classified as „Puttur Tank Poramboke‟ and further, an extent of Ac.1-60 cents in Sy.No.1/5, Puttur Village and Mandal, was reclassified as „Fire Services Department Poramboke‟ and transferred to Respondent No.12.
B.S.O.22 (8) deals with Transfer of State Government lands from one department to another. Clause (2) of B.S.O.22 is relevant for the purpose for deciding the present controversy. According to Clause (2), the land cannot be transferred to a Commercial MSM,J WP.No.23519 of 2020 18 Government Department. Respondent No.2 is not a Commercial Government Department and it is only a public utility service. However, the transfer of government land in favour of Respondent No.2 is not an issue before this Court. But, the issue is whether such land transferred to Respondent No.2 can be utilized for commercial purpose by third party when it was leased out by Respondent No.12 to Respondent No.2.
As seen from B.S.O.22(8)(2), prohibition is only against transfer of land to a Commercial Government Department. Though the land was transferred to Respondent No.12 which is not a Commercial Government Department, the Fire Services Department is using for commercial purpose, letting out to Respondent No.2. Indirectly, Respondent No.12 intended to utilize the site for commercial purpose, since retail petroleum outlet is purely a commercial establishment. The land was transferred to Respondent No.12 for its Fire Service activities and not for leasing out commercial purpose. Therefore, indirectly Respondent No.12 is using the site for commercial purpose by letting out the same to Respondent No.2, on monthly rent of Rs.80,000/- which is indirectly defeating the very purpose of Clause (2) of B.S.O.22(8). Hence, the establishment of petroleum retail outlet by Respondent No.2, obtaining lease from Respondent No.12 though not prohibited, it is contrary to Clause (2) of B.S.O.22(8).
Sri O. Manoher Reddy, learned Senior Counsel for Respondent No.2 contended that the prohibition is only against transfer of government land in favour of Commercial Government MSM,J WP.No.23519 of 2020 19 Departments, but not against Respondent No.12/Fire Service Department to Respondent No.2, which is not a Commercial Government Department, but it is a public utility service. When the land to an extent of Ac.1-60 cents is transferred to Respondent No.12 for the purpose of establishing Fire Station and other allied activities, the land cannot be leased out for commercial purpose. Therefore, the contention of learned Senior Counsel is without any substance and the same cannot be accepted, since the lease itself defeats the very purpose of transfer of land to Respondent No.12.
The other contention of the learned counsel for the petitioners is that, a petroleum retail outlet cannot be established within 50 meters from schools, colleges, hospitals etc, as per the guidelines issued by Indian Road Congress.
No doubt, the establishment of petroleum outlets are governed by the guidelines issued by Central Pollution Control Board vide B-11011/1/2019-20/AQM/10809 dated 07.01.2020. Guideline No.H is relevant for the purpose of deciding the controversy between the petitioners and Respondent No.2 and it is extracted hereunder for better appreciation of the case.
"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 constrains 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.
MSM,J WP.No.23519 of 2020 20 These guidelines are supplementary to all existing relevant Rules, Guidelines, Orders etc."
Thus, the above guidelines shall be strictly adhered to while granting „No Objection Certificate‟ to establish new retail petroleum outlet. As a part of enquiry, before issue of „No Objection Certificate‟, a report was called from the Superintendent of Police, Chittoor, and vide letter C.No.G2/4025/208/Petro(NOC)/2019 dated 13.02.2020, Superintendent of Police, Chittoor submitted a report to the District Collector Chittoor, certifying as follows:
"The Inspector of Police, Puttur Urban PS has enquired with the neighbours of the proposed site and they stated that they do not have any objection for storage and selling of MS or HSD in the proposed site. There will not be traffic congestion, if the outlet is opened. It is not a busy center/junction. There are no electric, telephone cables passing through the land. It is not residential area. There is no school nearby. There is no hospital hereby. General public will not suffer any inconvenience because of this outlet opening at this site. Safe and security measures were also took by the Territory Manager (Retail) Bharat Petroleum Corporation Limited, Nellore, Retail Territory, 1st Floor, S.M. Towers, 24/1628, Dargamitta, Nellore in the proposed site."
Based on the above report, „No Objection‟ was reported by the police for establishment of retail petroleum outlet.
The District Fire Officer, Chittoor District addressed a Letter to the District Collector, Chittoor, vide Letter Rc.No.2569/A2/2019 dated 19.01.2020, stating that, as recommended by the Inspection Committee, the District Fire Officer has no objection to issue „Provisional No Objection Certificate‟ from Fire Point of view (Final No Objection Certificate shall be obtained after completion of construction and fulfilling of Fire Prevent Norms) for the proposed storage of 15 KL of MS (Petroleum Class - A) and 20 KL HSD MSM,J WP.No.23519 of 2020 21 (Petroleum Class-B) in the above premises subject to the fulfilling the following fire prevention precautionary measures as per OISD Rules.
1. Shall provide 2 Nos. Foam extinguishers 9 liters capacity for 600 Meters each.
2. Shall provide 2 Nos. DCP Extinguishers of 5 Kg. Capacities at Generator Room.
3. Shall provide 2 Nos. Fire Points consisting of 12 Fire Buckets with dry sand in the premises.
4. Shall provide 2 Nos. of Co2 extinguishers of 4.5 kg capacity at Electrical mains fixed.
5. Shall provide 2 Nos. of D.C.P. extinguishers of 5 kg capacity in the office building if lubricants are stored/displayed.
6. The retail outlet shall easily approachable to fire appliances.
7. No Over head high tension lines shall pass through the compound
8. It should be seen that the cell phone users are requested to switch off the cell phones before entering the petrol pump premises by means of sign boards at conspicuous places.
9. Certain boards exhibiting the slogans such as not to carry matches, fuses or other appliances capable or producing ignition/explosion shall displayed at conspicuous places.
10. Care should be taken to prevent entry of petroleum products into drain/sewer/public road.
11. All the electrical fittings shall be protected properly with approved pattern to prevent short circuit and they must be flame proof.
12. All the Staff working in the premises shall well aware of the usage and maintenance of fire fighting equipment provided and they should be trained in first aid fire fighting courses.
13. If any spillage of fuel occurs immediately it shall covered with dry sand to be hung to a stand and cleared.
14. The vehicle engine shall stop during loading and unloading processes.
15. The customers shall stop engine of vehicles before refilling petroleum products.
16. Static charges shall dissipate while unloading.
17. No welding/cutting shall allowed within 30 meters from the storage area.
18. All the fire protection arrangements shall maintain in good working conditions as seen during inspection.
19. All the staff/occupants must know the correct method of operation of the fire fighting system installed.
20. Any loss of life of property due to non-functioning of fire safety measures and other installations shall be the responsibility of the management/owner.
21. All occupants/security personnel shall train to operate the fire safety equipments in case of emergency.
22. "No Smoking" boards should be displayed at various points.
23. The premises should always be kept clean and neat. No combustible wastes is allowed to accumulate in the premises.
24. Display of DOS and DONTS in case of fire and emergency telephone numbers in conspicuous places.
Based on the certificates, the Revenue Divisional Officer, Chittoor, submitted a report in Lr.Roc.E/4608/2019 dated 11-02- 2020. In third paragraph of second page of the report, it is MSM,J WP.No.23519 of 2020 22 specifically stated by the Revenue Divisional Officer that, the subject land is sub-divided as Sy.No.1/6 with an extent of Ac.0-44 cents for the proposed petroleum retail outlet for storage of 15 KL of Motor Spirit and 20 KL of High Speed Diesel tank and sales room for the motoring public on Karvetinagaram to Puttur Road 9SH) and the proposed land in Sy.No.1/5 is recorded in the webland records as Fire Service Department Poramboke. The statements recorded are also placed on record to show that there is no objection from the public for establishment of retail petroleum outlet.
The main endeavour of the learned counsel for the petitioners Ms. Sodum Anvesha is that, the transfer of tank poramboke in favour of Respondent No.12/fire station in S.No.1/5 admeasuring an extent of Ac.1-60 cents is not for commercial purpose, but, it is only for establishment of fire station, subject to conditions in the proceedings referred above.
No doubt, it is to be examined whether an establishment of petroleum outlet is in violation of any law. Undoubtedly, B.S.O specifies that the land cannot be transferred to any commercial government departments as per B.S.O 15(8). In fact, Respondent No.12 is not carrying on any commercial activities, but leased out the premises which is lying vacant without any use for the benefit of the State. The enforceability of the Board Standing Orders was considered by the Division Bench of the High Court of Andhra Pradesh in Kanumuri Anji Raju v. State of Andhra Pradesh3, candidly held that the Standing Orders are merely executive 3 1960 (2) An.W.R 272 (D.B) MSM,J WP.No.23519 of 2020 23 instructions issued for the guidance of officers who are to carry out the policy of the Government. The said principle was reiterated by the learned single Judge of the High Court of Andhra Pradesh in Smt. C. Rajamma v. The District Collector4. Further, a learned single Judge of this Court in Katta Rattamma v. Gannamaneni Kotaiah5 held that the Standing Orders are only administrative instructions and they do not have any statutory force, or force of law. Therefore, standing orders are not having legal enforceability and they are only guidelines for the purpose of administration.
Since, Board of Revenue Standing Orders are not a law passed by the State Legislature or Parliament, passing an order in violation of B.S.O 15 (8) cannot be held to be an order in violation of law. Therefore, on the ground that the State violated B.S.O.15(8), "No Objection Certificate" cannot be set-aside.
The main contention raised before this Court by the learned counsel for the petitioners is that, land leased out to Respondent No.2 by Respondent No.12 is adjacent to the water tank known as Puttur Cheruvu which is being used for drinking water by the public and that there is every possibility of letting out the effluents from the petrol bunk and leakage of underground tanks, thereby, the water is likely to be contaminated.
No doubt, Respondent No.2 obtaining the land on lease from Respondent No.12, has to eradicate spillage or leakage from the ground tanks, used for storage of High Speed Diesel and Motor Spirit for sale of the same at the filling point. Either the petitioners 4 1995 (1) ALT 681 5 1975 (2) An.W.R 122 MSM,J WP.No.23519 of 2020 24 or the respondents did not disclose the distance between the tank bund and proposed underground tanks to assess the possibility of letting out the petroleum effluents into the tank or the possibility of seepage due to leakage of petroleum products from underground tanks into the water tank. While granting „No Objection Certificate‟, the official respondents did not examine the possibility of seepage or leakage of petroleum products from underground tank to the drinking water tank situated in the same survey number, adjacent to the premises where outlet is likely to be established. If, really, there is any possibility of contamination of the drinking water, which is hazardous to the public, grant of No Objection Certificate‟ is a serious threat to the lives of the public at large and it amounts to violation of right to life guaranteed under Article 21 of the Constitution of India.
Forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. (Vide Hinch Lal Tiwari v. Kamala Devi and others (referred supra)) MSM,J WP.No.23519 of 2020 25 Therefore, the District Collector, Chittoor is directed to examine the issue of possibility of leakage of petroleum products from underground tank and seepage into the water tank adjacent to the premises leased out to Respondent No.2 by Respondent No.12 with the help of Technical Personnel and Environmental Engineer, to find out whether. If, there is any possibility of contamination of the water on account of letting out effluents into the water tank by leakage or seepage of petroleum products from the ground tank to water tank.
The other contention of the petitioners before this Court is that, there is a burial ground near the site leased out by Respondent No.12 to Respondent No.2. Since inflammables are used for cremating dead bodies in the burial ground, there is any amount of threat to the public life, as there is a possibility of occurrence of fire accidents on account of use of inflammables. Whereas, the respondents contended that the proposed outlet is on one side of the fire station and burial ground is on the other side of the fire station. Thus, the outlet of Respondent No.2 and burial ground are intervened by the premises of more than Ac.115 cents where a fire station is in existence. But, it is difficult for this Court while exercising power under Article 226 of the Constitution of India to examine whether there is any possibility of fire accidents on account of use of inflammables in burial ground for cremation of dead bodies, based on the distance between Respondent No.2 outlet and the burial ground. Therefore, the District Collector is directed to examine this issue with the help of technical personnel, including an Engineer from Pollution Control Board.
MSM,J WP.No.23519 of 2020 26 One of the contentions of the petitioners is that, Respondent No.2 violated guidelines issued by Indian Road Congress, but, Indian Road Congress is not a statutory authority and those guidelines are not statutory in nature. Therefore, guidelines of Indian Road Congress will have no statutory force. The same issue was considered by the Madras High Court in S. Shanmugharaja v. International Airport Authority (referred supra).
In Shailendra vs Smt.Saroj Bhatia6 Madhya Pradesh High Court held as follows:-
" 12. Keeping in view the aforesaid judgment delivered by the Allahabad High Court in the case of Mahtab Ahmad (supra), this Court is of the considered opinion that the guidelines framed by the India Road Congress are not at all statutory guidelines and which can be enforced by this Court under Article 226 of the Constitution of India. Resultantly, the impugned order based upon the guidelines framed by the Indian Road Congress is accordingly quashed. In the present case, no other reason has been assigned by the respondent No.3 for denying the NOC to the petitioner and therefore, as this Court has quashed the impugned order, the petitioner and the respondent No.1 shall be free to establish a retail outlet as they have already obtained NOCs from various other authorities in accordance with law."
The Court finally concluded that, the guidelines of Indian Road Congress are not binding, but the Ministry of Road Transport and Highways has issued certain guidelines on "System Improvement of Installation of Petrol/ Diesel /Gas Retail outlets and Service Stations as well as access to private Properties along National Highways through its Circular No. RW/NH-33023/19/99- DO-III dated 31st August 2000 are binding on the State Government. Therefore, violation of the guidelines issued by Indian Road Congress is not a ground to interfere with the „No Objection 6 An unreported judgment of the Division Bench of Madhya Pradesh High Court dated 24.07.2015 made in Writ Appeal No.568 of 2014 MSM,J WP.No.23519 of 2020 27 Certificate‟ issued by the respondents for establishment of petroleum retail outlet. At best, the Court has to examine whether the respondents violated the guidelines issued by the Ministry of Road Transport and Highways while issuing „No Objection Certificate‟. In the absence of any contention, this Court is not required to examine the guidelines issued by the Ministry of Road Transport and Highways. In S. Shanmugharaja v. International Airport Authority (referred supra), one of the contention before the Madras High Court was that, wet land cannot be converted for commercial purpose. The Madras High Court held that, it is not a ground to deny No Objection Certificate.
One of the contentions raised by the learned counsel for the petitioners is that, water bodies are to be protected by the Government and they cannot be alienated even if they are dry. Alienation of Ac.1-60 cents in favour of Fire Department is in contravention of the law laid down by the Apex Court in Sarvepalli Ramaiah v. District Collector, Chittoor7.
No doubt, the Apex Court held that, water bodies cannot be alienated even if they are dry, and cultivation carried on dried bed of water bodies does not denude land of its character as water bodies.
If, this principle is applied to the present facts of the case, allotment of Ac.1-60 cents to Respondent No.11 by the Government vide G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988 and change of classification of Ac.1-60 cents from tank poramboke to fire station poramboke is impermissible. But, the 7 (2019) 4 Supreme Court Cases 500 MSM,J WP.No.23519 of 2020 28 question before this Court is not the validity of allotment of Ac.1-60 cents for establishment of fire station as per G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988. But, the only dispute is about illegality of the No Objection Certificate issued by the Joint Collector. Hence, this Court need not examine the issue of validity of transfer and conversion of tank poramboke into fire station poramboke, which was a part of Puttur Tank in Sy.No.1 of Puttur Village and Mandal, Chittoor District. Therefore, the law declared by the Apex Court needs no consideration and it is not helpful to the petitioners to set-aside the No Objection Certificate.
Learned counsel for the petitioners relied on another judgment of the Apex Court in Jitendra Singh v. Ministry of Environment8, where the Apex Court held that allotment of local ponds to private industrialists for industrial purposes is violative of Article 21 of the Constitution of India and concluded that the scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although it might be possible to superficially replicate a water body elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low watertable in the area. The people living around the lake would be compelled to travel all the way to the alternative site. Many animals and marine organisms present in the earlier site would perish, and wouldn‟t resuscitate by merely 8 Civil Appeal No.5109 of 2019 dated 25.11.2019 MSM,J WP.No.23519 of 2020 29 filling a hole with water elsewhere. Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The respondents‟ reduction of the complex and cascading effects of extinguishing natural water bodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial water bodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible.
The State is under obligation to protect the ecology and improve environment and safeguard forests and wild life. The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country -- Vide Article 48-A of the Constitution of India.
Article 51A deals with fundamental duties. According to Article 51A(g), it shall be the duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. Thus, Article 48-A and Article 51A(g) obligates the State to protect environment and make every endeavor to protect lakes, rivers etc., to maintain the ecology balances. Since the ownership and control over material resources of the community are lies with the State, such resources are to be distributed as best to sub-serve the common good - Vide Article 39(b) of the Constitution of India.
The vacant lands, lakes, rivers etc., are under the direct control of the State and the State has to maintain those rivers, lakes, tanks as stated above by applying the doctrine of public MSM,J WP.No.23519 of 2020 30 trust and right to life. It is for the State to allot such lands in various circumstances being the custodian of the property of the public. The doctrine of public trust was considered by the Apex Court in "M.C.Mehta v. Kamal Nath9" (Citation is not correct) where the Himachal Pradesh State Government had leased out a protected forest area on the bank of river beas to motels, for commercial purposes, the Supreme Court held that the State is more responsible for maintaining natural resources. Similarly, the Apex Court in "Subhash Kumar v. State of Bihar10" held that right to life is a fundamental right which includes the right of enjoyment of pollution free water and air for full enjoyment of life. At the same time, in the guise of sustainable development, the State cannot allow the properties to whomsoever the State likes.
While allowing the public property to the third parties, the State has to keep in mind its consequences on the environment and the obligation of the State under the Constitution of India to keep up the heritage and culture. The 42nd amendment to the constitution of India added Article 48A and 51A(g) which comes under the directive principle of State policy and the fundamental duties respectively. The Supreme Court of India in "Sachidanand Pandey v. State of West Bengal11" stated that the Court is bound to bear in mind the above said articles whenever a case related to environmental problem is brought to the court. In "Damodar Rao v. S.O. Municipal Corporation12" the Apex Court held that the environmental pollution and spoliation which is slowly poisoning 9 (1997) 1 SCC 388 10 1991 AIR 420 11 AIR 1987 SC 1109 12 AIR 1987 AP 171 MSM,J WP.No.23519 of 2020 31 and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Constitution of India.
Similar question came up for consideration before the Apex court in "Intellectuals Forum, Tirupathi v. State of A.P.13") wherein the Division Bench of the Apex Court has considered the allotment of tanks known as „Avilala Tank‟ and „Peruru Tank‟, which are situated in the suburbs of Tirupathi Town, which is a world renowned popular pilgrim centre to housing board for construction of residential houses to the public, but a social spirited person approached the court for judicial remedy before this Court challenging the allotment of land by G.O.Ms. No.181 Rev. dated 15.3.1991 alienating an extent of 150 acres of land which belongs to the tank bed area of Peruru tank to Tirumala Tirupathi Devasthanam (in short, TTD) and to Housing Board etc., were challenged. The Writ Petition No.7955 of 1994 was filed assailing G.O.Ms.No.181, dated 15.3.1991 in respect of alienation of Peruru tank bund land to TTD and Writ Petition No.8650 of 1994 was filed assailing G.O.Ms.No.84-Revenue Department, dated 28.1.1994 in respect of alienation of Avilala tank bed area land to A.P. Housing Board. The High Court dismissed the writ petitions on various grounds and aggrieved by the order of this Court, the public spirited person approached the Supreme Court. The Apex Court, after considering the facts and circumstances of the case, concluded that alienation of tank bund land vide G.O. Ms.No.84, dated 28.1.1994 is in violation of Articles 48A and 51A(g) of the 13 (2006) 3 SCC 549 MSM,J WP.No.23519 of 2020 32 Constitution of India, after considering the doctrine of „sustainable development‟ and observed as follows :
"On realizing the importance of restoration of tank basins towards conservation of water and recharging of ground water, increase the storage capacity of tanks, renovating the tank bunds as well as feeder channels, TUDA has taken over 30 tanks in its operational area for taking up the improvements. Proposals include removal or eviction of encroachments, desilting of tank basins, clearing of jungle, strengthening of tank bunds, excavation of boundary trenches, widening and excavation of feeder channels, construction of boundary pillars and compound walls along the tank boundary. Block plantation, programmes for development as landscaped parks and water based entertainment units for the benefit of the public in off shore areas of the tanks have been proposed wherever feasible and viable. Towards protection of environment, provision for treatment system is also made in the project to take care of entry of drainage/sullage into the tank storages. Block plantation on all on- shore areas of tank have been taken up as a part of Neeru Meeru programme to prevent erosion of soils and entry of encroachments which will have long term positive environment results."
But, appointed an expert committee to examine the issue and after careful perusal of expert committee‟s report, it was accepted to some extent, but, in the interest of protecting environment and social development, this Court placed reliance in the case of "M.C.Mehta v. Kamal Nath (referred supra), wherein the Apex Court in para 35 held as under :
"The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibility, who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not for the Courts. If there is a law made by Parliament or the State Legislatures, the Courts can serve as an instrument for determining legislative intent in the MSM,J WP.No.23519 of 2020 33 exercise of powers of judicial review under the Constitution. But, in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resource and convert them into private ownership or commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the Courts find it necessary, in good faith, for the public and in public interest to encroach upon the said recourses."
On the basis of the principle in "M.C.Mehta v. Kamal Nath (referred supra)" the Supreme Court held that the responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one‟s own territories [Corfu Channel Case, ICJ Reports (1949)4].
The Apex Court also referred the declaration of environment and development passed during the Earth Summit at 1992 to which India is also a party, adopted the notion of sustainable development principle i.e., in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
The Apex Court in the case of "Essar Oil v. Halar Utkarsh Samiti14" was pleased to expound on this. Their Lordships held :
"This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental 14 2004(2)SCC 392, para 27 MSM,J WP.No.23519 of 2020 34 threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."
A similar view was taken by the Apex Court in "Indian Council for Enviro-Legal Action v. Union of India15" where their Lordships said : "While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment."
Here, in the present case, the conversion of water body i.e tank poramboke into fire station poramboke is not a question to apply, though the law is not in dispute. Viewed from any angle, this Court need not examine the legality of the allotment of Ac.1-60 cents to Respondent No.11 by the State under G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988 and that, on allotment, 15 1996 (5) SCC 281, Para 31 MSM,J WP.No.23519 of 2020 35 land of an extent of Ac.1-60 cents in Sy.No.1/6 became fire station poramboke thereby lost it‟s original classification. However, this Court already made an observation that question as to contamination of water and possibility of fire accident in the earlier paragraphs and issued the directions to the District Collector to inspect and take appropriate action.
The Field Measurement Book of Sy.No.1/1 produced before this Court clearly shows that the proposed petroleum retail outlet is adjacent to the water tank.
There is any amount of discrepancy in identification of the property with reference to survey number. Originally, Sy.No.1/1 consisted of land of an extent of Ac.138-10 cents. Thereafter, G.O.Ms.No.850 dated 15.12.1988, land in an extent of Ac.1-60 cents in S.No.1/5 is carved out from original extent of Ac.138-10 cents, changing the classification as „Fire Service Department Poramboke‟ and allotted the same to Respondent No.12. But, in Respondent No.8/Joint Collector „No Objection Certificate‟, for the land of an extent of Ac.0-44 cents, Survey No.1/6, Puttur, Chittoor District, is mentioned.
At one stage, survey number is mentioned as „1/6‟ and at another stage as „1/5‟. In the letter addressed by Revenue Divisional Officer, Chittoor to The District Collector, Chittoor vide Lr.Roc.E/4608/2019 dated 11.02.2020, it is mentioned as follows:
"........remaining portion of the land which is in possession of the Fire Department., and is sub-divided it as Sy.No.1/6 with an extent of 0.44 cents for the proposed petroleum retail outlet MSM,J WP.No.23519 of 2020 36 ..........and the proposed land in Sy.No.1/5 is recorded in the webland as follows:
Sl.No. Sy.No Extent Classification
1 1/5 1.60 cents Poramboke
Thus, it is clear that, from Ac.138-10 cents, only Ac.1-60 cents is carved out assigning the survey number as „1/5‟ and allotted to Fire Service Department. If the original sub-division proceedings are accepted, the subject land is in S.No.1/5, but not in S.No.1/6. The official respondents created lot of confusion to identify the property with reference to sub-division of Sy.No.1/6. In fact, as per the sub-division proceedings, no other extent is carved out assigning Sy.No.1/6.
The petitioners claimed writ of mandamus to declare the action of the respondents, more particularly, Respondent No.8 in issuing „No Objection Certificate‟ dated 01.06.2020 for setting up petroleum retail outlet of Respondent No.2 in the land of Respondent No.12/Puttur Fire Station in Survey No.1/6, Puttur Mandal, Chittor District.
However, in the counter affidavits, respondents specifically asserted that, „NOC‟ dated 01.06.2020 was issued by the Joint Collector, Chittoor in terms of Rule 144 of the Petroleum Rules, 2002 at the instance of application submitted by Respondent No.4/Territory Manager, BPCL, to set up a petroleum retail outlet in an extent of Ac.0-44 cents in Sy.No.1/6, Puttur Town, Chittoor District.
It is further averred that land admeasuring an extent of Ac.1-60 cents in Sy.No.1/6 was allotted to Fire Station Department. The Fire Station is set up in the outskirts of Puttur in MSM,J WP.No.23519 of 2020 37 the land admeasuring an extent of Ac.1-60 cents with an intention of future expansion to accommodate more vehicles as and when the town develops.
Similarly, Respondent No.6 also specifically asserted that, Respondent No.8 issued „NOC‟ dated 01.06.2020 for establishment of petroleum retail outlet in the site allotted to fire station department in accordance with G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988 and the same was incorporated by the Collector, Chittoor vide Proceedings R.Dis.No.13390/88 dated 31.12.1988 duly changing the classification from Puttur Tank Poramboke to Fire Service Department Poramboke to an extent of Ac.1-60 cents comprised in Sy.No.1/6 which is a part of Sy.No.1/1 out of an extent of Ac.138-10 cents. The report submitted by the Revenue Divisional Officer also discloses that, „NOC‟ was issued to set up petroleum outlet in an extent of Ac.0-44 cents in Sy.No.1/6 of Puttur Village and Mandal, Chittoor District.
As seen from the material on record, more particularly, the Proceedings R.Dis.No.13390/88 dated 31.12.1988 of the District Collector, out of Ac.138-10 cents in Sy.No.1/1, only Ac.1-60 cents in Sy.No.1/5 was allotted to Fire Station Department and classified as Fire Service Department Pormboke, sub-dividing the land in Sy.No.1/1 as Sy.No.1/1 and Sy.No.1/5. No proceedings were issued subsequent to these proceedings subdividing the land in Sy.No.1/5 which was allotted to Fire Station Department, classified as Fire Station Poramboke. But, the respondents issued „NOC‟ for setting up petroleum retail outlet of Respondent No.4 on its application. When the Fire Station Department is allotted Ac.1-60 MSM,J WP.No.23519 of 2020 38 cents in Sy.No.1/5, in the absence of further sub-division, question of leasing out the land of an extent of Ac.0-44 cents in Sy.No.1/6, which is not in existence as on date, does not arise. Therefore, grant of „NOC‟ for establishment of petroleum outlet in an extent of Ac.0-44 cents in Sy.No.1/6 of Puttur Village and Mandal is illegal and arbitrary and Fire Station Department/Respondent No.12 is incompetent to lease out the land which was allotted to it by the Government vide G.O.Ms.No.850 Revenue (U) Department dated 15.12.1988.
Apart from that, the Endorsement in R.T.I Application No.226/2020 dated 17.11.2020 issued by the Tahsildar‟s office, Puttur, it is specifically stated that the land of an extent of Ac.1-60 cents in Sy.No.1/5 has been handed over to Fire Department, Puttur. The FMB of the village annexed to it also would disclose that Fire Station Poramboke is only in Sy.No.1/5. But, Sy.No.1/6 is also shown beyond Sy.No.1/5. It is an admitted fact that, only an extent of Ac.1-60 cents in Sy.No.1/5 was allotted to the Fire Station Department, but not the land in Sy.No.1/6 of Puttur Village. Therefore, the question of leasing out Ac.0-44 cent sof land in Sy.No.1/6 by Fire Station Department is without any authority under law. Even, in the „NOC‟ dated 01.06.2020 issued by Respondent No.8/Joint Collector, it is clear that, Respondent No.4 agreed to set up petroleum outlet at Survey No.1/6 / Gate No. an extent 0-44 cents / Khasra No. - Plot No. - Village Puttur Taluka/Tehsil Puttur Mandal, District Chittoor, Andhra Pradesh.
Thus, the respondents failed to prove that land in Sy.No.1/6 was allotted to Fire Station Department i.e. Respondent No.11, MSM,J WP.No.23519 of 2020 39 while admitting that Ac.1-60 cents in Sy.No.1/5 was allotted to Fire Station Department and classified as Fire Station Poramboke vide Proceedings R.Dis.No.13390/88 dated 31.12.1988 duly changing the classification from Puttur Tank Poramboke to Fire Service Department Poramboke.
It is also not on record that the land in Sy.No.1/5 is again sub-divided by following necessary procedure, setting apart land in Ac.0-44 cents for setting up petroleum retail outlet. In the absence of any proof that, Ac.0-44 cent was separated from Ac.1-60 cents in Sy.No.1/5 allotted to fire station department/Respondent No.11, by following necessary procedure for sub-division, it is difficult to accept the contention of the respondents that the land in Sy.No.1/6 forms part of the land allotted to fire station department.
Apart from that, in G.O.Ms.No.119 dated 28.03.2017 the State issued the Andhra Pradesh Building Rules, 2017 (for short "Rules)) and imposed certain restrictions on building activity in the vicinity of certain areas. Rule 3 (a) of the Rules deals with "Water Bodies", which reads as follows:
(a) Water Bodies
(i) No building / development activity shall be allowed in the bed of water bodies like river or nala and in the Full Tank Level (FTL) of any lake, pond, cheruvu or kunta / shikam lands. Unless and otherwise stated, the area and the Full Tank Level (FTL) of a Lake / Kunta shall be reckoned as measured and as certified by the Irrigation Department and Revenue Department.
(ii) The above water bodies and courses shall be maintained as Recreational/Green Buffer Zone and no building activity shall be carried out within:
(1) 50m within the limits of the Local Authorities. The boundary of the river shall be as fixed and certified by the Irrigation Department and Revenue Department.
(2) 30m from the FTL boundary of Lakes / Tanks / Kuntas of area 10Ha and above.
MSM,J WP.No.23519 of 2020 40 (3) 9m from the FTL boundary of Lakes / Tanks / Kuntas of area less than 10Ha / shikam lands;
(4) 9m from the defined boundary of Canal, Vagu, Nala, Storm Water Drain of width more than 10m.
(5) 2m from the defined boundary of Canal, Vagu, Nala, Storm Water Drain of width up to 10m.
In view of these guidelines, raising any construction within the limits prescribed therein is prohibited. Though, G.O.Ms.No.119 dated 28.03.2017 was issued by the Municipal Administration and Urban Development Department, still, the same can be applied, with a view of protect the environment and ecology and to see that no further damage is being caused to the water bodies. Therefore, within 50 meters from the water bodies, no construction be laid. But, here, Respondent No.4 intended to set up petroleum outlet which is totally contrary to the Andhra Pradesh Building Rules, 2017. In view of the law laid down by the Apex Court in the judgments referred supra and the Andhra Pradesh Building Rules, 2017, the proposed construction of petroleum outlet within 50 meters from the outer bund of the tank is impermissible.
Accordingly, the point is answered.
P O I N T NO.3 The main contention of the respondents is that, the petitioners are not the residents of Puttur Village or surrounding area where the petroleum outlet is established, more particularly, Petitioner No.21 has no locus standi to file the petition, being a rival businessman dealing with the same business.
As seen from the cause title of the writ petition, the residential addresses of the petitioners is as follows:
MSM,J WP.No.23519 of 2020 41 S.No Name of the Residential area/locality petitioner 1 M. Himachalam Babu Kavamma Temple Street, Puttur 2 N. Gopi Krishna Swami Street, Puttur 3 G. Kannaya Vinayakapuram, Puttur 4 S. Balaji Cherlopalle Village, Puttur Mandal 5 M.Thangarajan Gallapalli Village, Puttur Mandal 6 P. Hema Kumar Bazaar Street, Puttur 7 P. Lokanatham Konapagunta village, Puttur Mandal 8 T. Gurunatham Kunapagunta Village, Puttur Mandal 9 M. Sadhguna Lakshminagar, Puttur 10 G. Prasad Vinayakapuram, Puttu 11 P. Subramanyam Sayudhayat Village, Puttur Mandal 12 M. Vasu Kalyanapuram, Puttu 13 K. Thulasi Adivi, Puttur Mandal 14 S. Hari Prasad Cherlopalle Village, Puttur Mandal 15 S. munuswamy Vinayakapuram Village, Puttur Mandal 16 M. Kannayya Vinayakapuram Village, Puttur Mandal 17 M. Ramesh Reddy Jandyayan Street, Puttur 18 Lakshmaiah K. Nagaram, Puttur 19 R. Prakash Arantamma Colony, Puttur 20 P. Purushottam Konapagunta Village, Puttur Mandal 21 M/s. Bhanodaya Lakshmi Nagar, Puttur Petroleum Products, IOCL There is an apprehension with regard to water getting contaminated and that is to be examined by the authorities as directed in the earlier paragraphs. Petitioner No.21/M/s.
Bhanodaya Petroleum Products (IOCL) is a rival business establishment.
Sri O. Manoher Reddy, learned Senior Counsel contended that, it is settled law that a rival businessman has no locus standi in support of his/her contention placed reliance on the judgment of the Apex Court in Jasbhai Motibhai Desai v. Roshan Kumar and others16, where the Apex Court held that Rules did not confer any substantive right on rival in cinema trade, apart from option, in common with rest of public, to lodge objection in response to notice published under Rule 4 of Bombay Cinema Rules, 1954 and as no explanation was given for not preferring any objection to 16 AIR 1976 SC 578 MSM,J WP.No.23519 of 2020 42 grant „No Objection Certificate‟ before District Magistrate or Government and the appellant did not fall within category of such persons who had special interest in locality, he had not sustained injury to any legally protected interest and did not suffer any legal grievance, therefore, appellant was not person aggrieved and he had no locus standi to challenge grant of No Objection Certificate.
In view of the principle laid down by the Apex Court in the judgment referred supra, Petitioner No.21 is incompetent to question the „No Objection Certificate‟ issued by the Joint Collector/Respondent No. 8 as he has no locus standi and question of sufferance of injury does not arise and it does not amount to violation of fundamental right guaranteed under Article 19(1) of the Constitution of India, since certain exceptions are carved out to such right and it is not an absolute right, but subject to restriction under Clause (6) of Article 19 of the Constitution of India. The same was considered by the Madras High Court in S. Shanmugharaja v. International Airport Authority (referred supra) and by applying the same principle, I find no illegality in issuing No Objection Certificate, but subject to directions referred above.
Accordingly, the Point No.3 is answered against Petitioner No.21 and in favour of Respondent No.8/Joint Collector.
In any view of the matter, in view of G.O.Ms.No.119 dated 28.03.2017 and the law laid down by the Apex Court in judgments referred supra, it is the duty of the State to protect the water bodies. But the State itself is violating the directions issued by the MSM,J WP.No.23519 of 2020 43 Apex Court and guidelines issued in G.O.Ms.No.119 dated 28.03.2017, which is impermissible under law. Hence, the „No Objection Certificate‟ dated 01.06.2020 is set-aside, while directing Respondent No.6/District Collector to re-examine the issue whether the land is in Sy.No.1/6 or Sy.No.1/5 belonging to the Fire Station Department; assess the environmental impact and upon re-examination, the Joint Collector shall pass reasoned order while granting „No Objection Certificate‟, since the Joint Collector did not take into consideration the additional aspects.
In the result, writ petition is allowed, setting-aside the „No Objection Certificate‟ dated 01.06.2020, while directing Respondent No.6/District Collector to re-examine the issue whether the land is in Sy.No.1/6 or Sy.No.1/5 belonging to the Fire Station Department; assess the environmental impact, whether construction is in accordance with Andhra Pradesh Building Rules, 2017 and upon re-examination, the Joint Collector shall pass reasoned order. No costs.
Consequently, miscellaneous applications pending if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.09.2021 SP