IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 19TH MARCH 2007 / 28TH PHALGUNA 1928 WP(C).No. 5956 of 2006(H) ---------------------------------- PETITIONERS: -------------------- 1. M/S.RELIANCE INDUSTRIES LTD., A&P ARCADE, SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, REPRESENTED BY ITS STATE COMMERCIAL MANAGER & AUTHORIZED SIGNATORY, SRI.B.S.RAJAGOPAL. 2. T.N.VISWANATHAN, AGED 58, S/O.NARAYANAN EZHUTHACHAN, AISWARYA, MICRO WAVE STATION ROAD, MISSION QUARTERS, TRICHUR-680 001. BY ADV. SRI.P.GOPINATH RESPONDENTS: --------------------- 1. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRICHUR. 3. THE VILLAGE OFFICER, CHIYYARAM, THIRUSSUR DISTRICT. 4. MR.PAUL ALUKKA, (A.V.PAUL), S/O.VARGHESE, ALUKKA HOUSE, AVENUE ROAD, TRICHUR. 5. MR.LAL JOHN, S/O.LATE JOHN KURIEN, ATHAPPALLY HOUSE, MANDUPALLAM JUNCTION, KARIACHIRA POST, TRICHUR-680 005. * ADDL. R6 AND R7 ARE IMPLEADED 6. BABY KURIAN, AGED 40 YEARS, SON OF LATE JOHN KLURIEN, ATHAPPALLY HOUSE, MANDUPALLAM JUNCTION, KURIACHIRA POST, THRISSUR 680006. W.P.(C) NO. 5956/2006 7. MANY JOHN, AGED 33 YEARS, SON OF JOHN KURIEN, ATHAPPALLY HOUSE, MANDUPALLAM JUNCTION, KARIACHIRA POST, THRISSUR 680 006 ARE IMPLEADED AS ADDL.R6 AND R7 AS PER ORDER DT. 29.3.06. BY ADV. SRI.V.GIRI SRI.G.SREEKUMAR (CHELUR) BY GOVERNMENT PLEADER SMT.LAKSHMI RANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2007, ALONG WITH WPC NO. 7064 OF 2006 AND CONNECTED CASES THE COURT ON 19.3.2007 DELIVERED THE FOLLOWING: W.P.(C) NO.5956/2006 APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE NO- OBJECTION CERTIFICATE FROM THE DISTRICT MAGISTRATE UNDER THE PETROLEUM RULES. EXT.P2:- COPY OF THE BUILDING PERMIT ISSUED BY THE TRICHUR CORPORATION. EXT.P3:- COPY OF THE REGISTERED LEASE DEED EXECUTED BY THE OWNER'S OF THE LAND. EXT.P4:- COPY OF THE ORDER NO.B.1/30380/05/D.DIS DT.28.12.05 PASSED BY THE DISTRICT COLLECTOR. EXT.P5:- COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DT. FEBRUARY 17.056. EXT.P6:- COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT. EXT.P7:- COPY OF THE NO- OBJECTION CERTIFICATE ISSUED BY THE 4TH RESPONDENT. EXT.P8:- COPY OF THE SKETCH OF THE LAND IN QUESTION ALSO SHOWING THE LANDS OWNED BY RESPONDENT 4 & 5. EXT.P9:- COPY OF THE CERTIFICATE ISSUED BY THE STATE BANK OF INDIA, TRICHUR BRANCH TO THE PETITIONER. EXT.P10:- COPY OF THE APPEAL FILED BY THE RESPONDENT 4 AND 5 BEFORE THE 1ST RESPONDENT. EXT.P11:- COPY OF THE RELEVANT EXTRACT FROM G.O.(MS) NO.232/85/LAD. DT.31.10.85 OF THE GOVERNMENT OF KERALA. EXT.P12:- COPY OF THE ORDER ISSUED BY THE CHIEF TOWN PLANER. EXT.P13:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS OWNED BY RESPONDENTS 4 & 5 . EXT.P14:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS OWNED RESPONDENTS 4 & 5. EXT.P15:- COPY OF THE PHOTOGRAPHS OF THE PETITIONERS SITE AND THE PLOTS OWNED BY RESPONDENT 4 & 5. EXT.R4(a):- COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE COMMISSIONER OF LAND REVENUE. EXT.R4(bn):- COPY OF THE AFFIDAVIT AND APPLICATION FOR STAY FILED ALONG WITH EXT.R4(a). EXT.R4(c):- COPY OF THE GOVERNMENT ORDER NO.GO(MS) 28/89/LD DT.4.4.89. EXT.R4(d):- COPY OF THE DETAILED TOWN PLANNING SCHEME. EXT.R4(c):- COPY OF THE ORDER OF THE THRISSUR CORPORATION DT.22.4.05. EXT.R4(f):- COPY OF THE ORDER OF THE GOVERNMENT PASED ON 9.6.05. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP (C) Nos.5956 of 2006 – H, 7064 of 2006 – N, 7148 of 2006 –A, 8090 of 2006 – K and 9811 of 2006 –H. = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of March, 2007. JUDGMENT The subject matter of these writ petitions is a proposed petroleum outlet and the issues raised, are intricately connected. Hence these matters are consolidated and heard. Therefore, this common judgment. 2. The 2nd petitioner in WP (C) No. 8090 of 2006 and in WP (C) No. 5956 of 2006 is the managing partner of the 1st petitioner in WP (C) No. 8090 of 2006, a firm, which is a franchisee of the 1st petitioner in WP (C) No. 5956 of 2006, an authorised petroleum marketer, hereinafter referred to as “Reliance”. He is one among the co-owners of the land on which the petroleum outlet is proposed. WPC.5956/06 & con.cases -: 2 :- 3. By Ext. P4 in WP (C) No. 5956 of 2006, the District Collector granted permission, hereinafter, “KLU Permission”, for short, to the franchisee’s managing partner and his co-owners, under the Kerala Land Utilisation Order, 1987, hereinafter, the “KLU Order”, for short, to convert the wet lands to provide the site for the proposed petroleum outlet. The Land Revenue Commissioner, hereinafter, the “Commissioner”, for short, entertained an appeal filed by respondents 4 & 5 and others, who are stated to be neighbours, against that order and passed Ext. P6 order staying the operation of the KLU Permission. WP (C) No. 5956 of 2006 is filed by Reliance and the franchisee’s managing partner (one of the co- owners of the land) challenging Ext. P6 order of the Commissioner. 4. WP (C) No. 7064 of 2006 is filed by a neighbour challenging Exts. P5 & P6 therein, the decision of the Chief Town Planner approving the layout of the petroleum outlet WPC.5956/06 & con.cases -: 3 :- and that of the Government granting zonal exemption from the Town Planning Scheme. 5. WP (C) No. 7148 of 2006 is filed by respondents 4 & 5 in WP (C) No. 5956 of 2006 seeking to quash the aforesaid Government Order granting zonal exemption. 6. After this court admitted WP (C) No. 5956 of 2006 on 28.02.2006, the 5th respondent therein moved an appeal dated 06.03.2006 before the Commissioner against the decision of the Additional District Magistrate – hereinafter, the “ADM” – granting No Objection Certificate (hereinafter, “NOC”, for short) under the Petroleum Rules. The Commissioner stayed that decision of the ADM and ordered status quo to be maintained. WP (C) No.8090 of 2006 is filed by the franchisee and its managing partner challenging that order of the Commissioner, which is Ext.P8 in that case. An order prohibiting the Commissioner from proceeding with that appeal is also WPC.5956/06 & con.cases -: 4 :- sought for. 7. WP (C) No.9811 of 2006 is filed by another neighbour challenging Ext. P3 NOC granted by the ADM and against which the Commissioner entertained an appeal, as stated above. He also seeks a direction to the Controller of Explosives not to grant licence to Reliance and the franchisee under the Petroleum Rules, for the proposed outlet. 8. When these matters, except the last among them, were being heard, it was noticed that the power of the Commissioner to sit in appeal over the decision of the ADM under the Petroleum Rules is an issue arising for decision and therefore, to facilitate expediency, it was agreed that the rights of parties to prosecute the appeals, against the NOC and the KLU Permission, before the Commissioner could be given up without prejudice to comprehensive contentions on facts on the merits of the WPC.5956/06 & con.cases -: 5 :- NOC and the KOU Permission in these writ petitions. This was recorded in my order dated 21.03.2006 and the files, including those relating to the appeals before the Commissioner and those relating to grant of the NOC and the KLU Permission have been called for and obtained. It is in this context that WP (C) No.9811 of 2006 challenging Ext. P3 NOC granted by the ADM is filed thereafter and entertained. 9. On the basis of the pleadings and the arguments advanced, the following issues arise for decision: A. Is the Land Revenue Commissioner an appellate authority over the decision of the ADM, to issue NOC under the Petroleum Rules? B. Is the decision of the ADM issuing NOC under the Petroleum Rules liable to be set aside? C. Are the decision of the Chief Town Planner WPC.5956/06 & con.cases -: 6 :- approving the layout of the petroleum outlet and that of the Government granting zonal exemption from the Town Planning Scheme, liable to be set aside? D. Is the decision of the District Collector granting KLU Permission to the franchisee’s managing partner and his co-owners, under the KLU Order, liable to be interfered with? E. Is the Controller of Explosives to be directed to desist from granting licence, for the outlet in question, to Reliance and the franchisee, under the Petroleum Rules? Issue A: Is the Land Revenue Commissioner an appellate authority over the decision of the ADM, to issue NOC under the Petroleum Rules? 10. Rule 144 of the Petroleum Rules, 2002 reads as WPC.5956/06 & con.cases -: 7 :- follows: “144. No-objection certificate. – (1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new licence other than a licence in Forms III,XI,XVII, XVIII or XIX shall apply to the District Authority with two copies of the site-plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who shall forward it to the licensing authority with his application Form IX.” Per this Rule, the authority to issue certificate is the District Authority and the Chief Controller or the Controller may refer to the District Authority, any application for licence, received without NOC. Rule 144 (5) shows the legislative intent that the NOC be issued expeditiously. Even if the District Authority is of the opinion that the licence applied for should not be WPC.5956/06 & con.cases -: 8 :- granted, there is no absolute embargo, in the sense that licence could then be granted only with the sanction of the Central Government. 11. By virtue of Rule 2 (1) (x), “District Authority” means – (a) in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police; (b) in any other place, the District Magistrate. Rule 2 (1) (xi) provides that “District Magistrate” means and includes an Additional District Magistrate and in the States of Punjab and Haryana and in the Karaikal, Mahe and Yenam areas of the Union Territory of Pondicherry, also includes a Sub-divisional Magistrate. 12. Chapter VII dealing with licences, to which Rule 144 belongs, provides Rule 154 affording right to appeal in situations enumerated therein. It does not WPC.5956/06 & con.cases -: 9 :- provide a right of appeal against the grant of NOC, which could have been provided, were it intended. Sub- rule 2 of Rule 154 provides for an appeal against any order of the District Authority refusing to grant or cancelling an NOC. Therefore, there is an implied but clear exclusion of an appeal against the grant of NOC. The Rules, by themselves, therefore, provide the conclusion that no appeal is provided against the grant of NOC. 13. Petroleum Rules are statutory rules. When the appropriate District Authority, identifiable by virtue of Rules 2 (1) (x) and 2 (1) (xi) thereof, acts under Rule 144, he is discharging statutory functions under those Rules. A decision granting NOC, cannot be interfered with by the Commissioner for the simple but strong reason that no right of appeal is conferred under the Petroleum Rules or the Petroleum Act against the grant of NOC. Those who have filed the appeal before Commissioner have not shown before me any statutory WPC.5956/06 & con.cases -: 10 :- provision, by way of primary legislation or subordinate, providing any such appellate power with the Commissioner or any other authority. Nor have I been able to see any. In the absence of any such provision, the decision of the ADM granting NOC under the Petroleum Rules is not appealable and no such appeal lies before the Commissioner. 14. There is one more aspect. Rules 144, 2 (1) (x) and 2 (1) (xi), read together would show that the Authority to decide on a request for NOC is legislatively chosen. Rule 161 provides that every authority, other than the Central Government, acting under Chapter VII, shall perform its duties subject to the control of the Central Government. Even in the matter of exercise of their powers as Executive Magistrates, the District Magistrate, ADM or SDM, are not authorities subordinate to the Commissioner. Therefore any assumption of authority to sit in appeal, on the ground that those officers, having regard to their other duties WPC.5956/06 & con.cases -: 11 :- and responsibilities, may be revenue officials under the control of the Commissioner, would be wholly misconceived. 15. For the aforesaid reasons, it is held that the Land Revenue Commissioner has no power to entertain any appeal against the grant of NOC by the District Authority under Rule 144 of the Petroleum Rules, 2002. As a consequence, Ext. P8 in WP (C) No.8090 of 2006 is liable to be quashed and the Land Revenue Commissioner cannot proceed with the appeal in which that order has been issued. Issue B: Is the decision of the ADM issuing NOC under the Petroleum Rules liable to be set aside? 16. The Petroleum Act, 1934 is an enactment to consolidate and amend the law relating to the import, transport, storage, production, refining and blending of petroleum. Among other things, it classifies petroleum into WPC.5956/06 & con.cases -: 12 :- different classes on the basis of “flash point”, as defined in section 2(c) of that Act. Section 4 enjoins on the Central Government to make rules for the import, transport and storage of petroleum. Section 3 provides prohibition against import, transport and storage of petroleum, save in accordance with the rules made under Section 4. Sub-sections (1) and (2) of Section 5 make similar provision regarding production, refining and blending. Sections 14, 21 and 22 in Chapter II authorise making of rules to govern inspection, sampling and tests. Section 29(1) provides the Central Government with authority to make ancillary rules. The Petroleum Rules, 2002 are made by the Central Government in exercise of the aforesaid authority. Classified into twelve chapters, with five schedules, including statutory forms, the Petroleum Rules are extensive. The scientific knowledge required for managing the arena of petroleum industry, including storage and supply, have gone into the making of those Rules. The Petroleum Act clearly prohibits activities relating to petroleum, except in accordance with the Rules made under that Act. The Petroleum Rules are therefore WPC.5956/06 & con.cases -: 13 :- exhaustive. Hence, while it has to be ensured that those Rules are scrupulously followed, subject to the limited and regulated power in Rule 201, to exempt, it is also totally impermissible to take into consideration anything not provided for by those Rules, while deciding the issue of grant or renewal of licence under those Rules. This includes the arrival at a decision as to whether there is any objection to the grant of NOC. 17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by Rule 144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate, “if he sees no objection”. The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has WPC.5956/06 & con.cases -: 14 :- to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less. 18. The aforesaid conclusion is also inescapable from the point of view of the rights of the parties, as may be referable to Part III of the Constitution. Right to life of the immediate neighbour and those in the neighbourhood of a site proposed for a petroleum outlet is sacrosanct and would fall within Article 21. That right also includes the right to potable water and the right against pollution. The rights of such persons to property fall away from the pale of Part III and would be within the gaze of Article 300A and governed by statues and other laws. Article 19(1) (g) guarantees the right to, among other things, carry on any occupation, trade or business. That right is available to a citizen aspiring to deal with petroleum. Being that material, it is put under statutory control of the State by virtue of the Petroleum Act and the Petroleum Rules, which also provide comprehensive provisions as to licensing. While they would amount only to reasonable restrictions on the fundamental right under Article WPC.5956/06 & con.cases -: 15 :- 19(1) (g), of the applicant for licence, they provide the necessary checks and balances between the fundamental right to life of those in the neighbourhood and the fundamental right of an intending licensee, to occupation, trade or business, in the societal existence of the Nation, under the canopy of constitutional governance and Rule of Law. 19. So much so, comprehensive statute laws, including rules, being available to regulate petroleum licensing, the Authority to grant licence in terms of Rule 144 of the Petroleum Rules shall grant NOC, unless he sees an objection referable to the Petroleum Act and/or Petroleum Rules. A person who has been refused NOC has a right of appeal under Rule 154(2) of the Petroleum Rules. If the District Authority intimates the Chief Controller or the Controller, as the case may be, that licence sought for, should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government. WPC.5956/06 & con.cases -: 16 :- 20. Reverting to the facts, no ground is pointed out by the objecting neighbours, with reference either to the Petroleum Act or the Petroleum Rules to sustain the challenge to the NOC. So much so, the decision of the ADM, issuing NOC under the Petroleum Rules, stands. The challenge against it is repelled. Issue C: Are the decision of the Chief Town Planner approving the layout of the petroleum outlet and that of the Government granting zonal exemption from the Town Planning Scheme, liable to be set aside? 21. As per G.O.(Rt.)2268/05/LSGD dated 9-6-2005 (Ext.P6 in WP(C).No.7064/2006), the Government granted zonal exemption for the petroleum outlet from the Town Planning Scheme, subject to the conditions laid down therein. By Order dated 14-7-2005, Ext.P5 in the said writ petition, the Chief Town Planner approved the layout plan of the petroleum outlet. These decisions are challenged principally on the ground that there is no power with the Government to grant WPC.5956/06 & con.cases -: 17 :- individual exemptions from the zoning made by the Town Planning Scheme. 22. On 22-4-2005, Thrissur Corporation issued Ext.P3 in WP(C).No.7064/2006 by which Reliance was informed that petrol filling station can be permitted in residential area as a restricted user but the site in question is included in area to be acquired for residential use, as per the master plan under the Detailed Town Planning Scheme for Kannankulangara, hereinafter, “KDTPS”, for short. Therefore, the cause for Reliance/franchisee moving the Government leading to the issuance of the impugned decisions of the Government and the Chief Town Planner regarding the KDTPS was the stand of the Corporation that the KDTPS enjoins that the area in question has to be acquired for residential use. In O.P.No.5139/1994, a learned Judge of this Court had opportunity to consider the effect of the Town Planning Scheme in question, namely, KDTPS. It was noticed that in spite of KDTPS being available, Thrissur Urban Development Authority had no idea or funds for acquisition of the lands WPC.5956/06 & con.cases -: 18 :- covered by KDTPS at any point of time and the fact remains that no acquisition steps were taken within the three years period as provided by Section 33 of the Town Planning Act, 1108 (hereinafter referred to as the “Town Planning Act”) under which the Scheme is framed. It is accordingly held that it was not, therefore, open to the Development Authority to invoke the restrictions in that Act and reject the request to grant licence for constructions. After referring to the earlier decision of this Court in the case of G.C.D.A. v. Dr.M.Chandrasekhar [1994 (1) KLJ 512] and in Kunniyil Hassan and another v. Secretary, Corporation of Calicut and another [ILR 1997(1) Kerala 619], this Court directed that the application for permission to construct building shall be considered and permit issued without reference to any such objection. The decision in O.P.No.5139/1994 was followed by this Court in WP(C).No.30253/2004. I am in complete agreement with the views expressed in those judgments. Therefore, the mere assertion of the Thrissur Corporation in Ext.P3 in WP(C).No.7064/2006 that the building permit cannot be issued because it is included in an WPC.5956/06 & con.cases -: 19 :- area to be acquired for residential use, as per the KDTPS, does not have any legal sanction and the same will not stand. 23. Now, the question is whether, if the application for building permit could not have been refused on the ground that the area in question was to be acquired for residential use as per KDTPS, would Reliance or the franchisee require any zonal exemption for the petroleum outlet. This question arises because the issuance of the impugned decisions by the Government and the Chief Town Planner were only on account of Reliance or franchisee applying for such orders in the light of the stand of the Corporation that building permit cannot be granted because the site is part of the area to be acquired for residential use, as per the KDTPS. As noticed above, even the decision of the Corporation in Ext.P3 in WP (C).No.7064/2006 is that a petrol filling station can be permitted in a residential area as a restricted use. 24. This leads to certain arguments addressed on the basis of the terms of the KDTPS. It was contended on behalf WPC.5956/06 & con.cases -: 20 :- of the persons challenging the impugned decisions that in “Residential Use Zone”, only petrol filling stations engaging not more than five workers would be permitted as a restricted use. This contention is met by the learned counsel appearing for the Reliance and franchisee that a proper interpretation of the relevant provision in the KDTPS would show that such restriction on the number of workers is only regarding auto- garages and not for petrol filling stations. Advertence to the KDTPS is necessary to resolve the said controversy. 25. Ext.P2 in WP(C).No.7064/2004 is a copy of KDTPS. Clause 10.c.(1) of KDTPS deals with Residential Use Zone. It reads as follows: “(1) RESIDENTIAL USE ZONE i. Uses permitted: All residential buildings, including one or two multi-family dwellings, apartment house and flats, parks and playgrounds incidental to the residential uses, public utility buildings such WPC.5956/06 & con.cases -: 21 :- as Water Supply, Drainage and electric installations of a minor nature and small service industries of non-nuisance character engaging not more than 3 workers with power limited to 3 H.P. or 6 workers without power. Convenient shops such as vegetable shops, groceries, pan-shops etc. will be normally permitted. ii. Uses restricted: The following shall be permitted by the responsible authority with the approval of the Chief Town Planner: Minor educational buildings, small neighbourhood libraries and reading rooms, community halls, police and fire stations, small post offices, telegraph offices, small banks, hostels, dormitories, small eating houses not exceeding 150 sq.M floor, small professional or commercial offices and clinics of floor area not exceeding 100 sq.M., petrol filling stations, small auto garages, engaging not more than 5 workers and other non- nuisance type service industries engaging not more than 10 workers with power limited to WPC.5956/06 & con.cases -: 22 :- 10 H.P. 20 workers without power and new areas or buildings for religious uses. Uses