IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 11411 of 2007(H) -------------------------------------- PETITIONER(S): ---------------------- P.K.MOHAMMEDKUTTY HAJI, S/O.VEERANKUTTY HAJI, PUTHUKKADI HOUSE, KUNDHIPUZHA, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, PALAKKAD. 2. THE SUPERINTENDENT ENGINEER, NATIONAL HIGHWAYS, CALICUT. 3. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION, MALAPPURAM. 4. REGIONAL OFFICER, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, THIRUVANANTHAPURAM. *ADDL. R5 IMPLEADED. 5. PALAKKAD DISTRICT PETROLEUM DEALERS ASSOCIATION, AYILYAM COMPLEX, MELAMURY P.O., PALAKKAD, PIN.678 006 REP. BY ITS SECRETARY. *ADDL. R5 IS IMPLEADED AS PER ORDER DTD. 18/10.2007 IN IA. 13208/07. BY GOVERNMENT PLEADER SRI.ANTONYMUKKATH BY ADV. SRI. SRI.GEORGE THOMAS (MEVADA) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11411/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LICENCE ISSUED BY THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, CHENNAI DTD. 12.5.06. P2:- COPY OF THE INSPECTION REPORT DTD. NIL. P3:- COPY OF THE NOC ISSUED BY THE ADDL. DISTRICT MAGISTRATE , PALAKKAD DT.7.7.05. P4:- COPY OF THE LICENCE ISSUED BY THE SPECIAL GRADE SECRTARY, MANNARKKAD DTD. 23.12.06. P5:- COPY OF THE CONSENT TO EXTABLISH THE OUTLET FROM THE KERALA STATE POLLUTION BOARD. P6:- COPY OF THE NOC DTD. 13.3.07 ISSUED BY THE FIRE AND RESCUE SERVICES, NORTHERN DIVISION, KOZHIKODE. P7:- COPY OF THE CERTIFICATE OF REGISTRATION UNDER THE KERALA GENERAL SALES TAX RULES ISSUED BY THE REGISTERING AUTHORITY DTD. 21.2.07. P8:- COPY OF THE CERTIFICATE IF REGISTRATION ISSUED BY THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES UNDER THE CST RULES. P9:- COPY OF THE CERTIFICATE OF REGISTRATIN UNDER THE KVAT ACT 2003. P10:- COPY OF THE ORDER IN WPC. 7674/06 OF THIS HONOURABLE COURT, DTD. 8.3.07. P11:- COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DTD. 26.3.07. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE LETTER NO.RW/NH-12017/384/2005-KL(P7) DTD. 18.1.2005 OF THE MINISTRY OF SHIPPING ROAD TRANSPORT AND HIGHWAYS, GOVT. OF INDIA NEW DELHI. R3(b):- COPY OF THE DO LETTER NO.RW/NH/35072/1/05-S&R ® DT. 11.3.05 OF THE SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS GOVT. OF INDIA, NEW DELHI. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 11411 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th day of June, 2011. J U D G M E N T The petitioner is a petroleum dealer. He is aggrieved by Ext. P11 order passed by the 3rd respondent directing the petitioner to stop the activities of the petrol pump of which the petitioner is the dealer. The same is stated to be on the basis of Ext. P10 interim order of this Court in W.P(C) Nos. 26373/2005 and 7674/2006, which reads as follows: “Respondents 4 to 7 in these writ petitions are directed to ensure that respondents 1 and 2 do not carry on any activity in dealing with petroleum products in any manner from the outlet in question without appropriate licence of the competent authority under the Petroleum Rules.” The petitioner submits that as is evidenced by Exts.P1 to P9, the petitioner has all the licences required for conducting a petroleum outlet and therefore Ext. P11 order is clearly without any basis. The petitioner therefore seeks the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext. P11 and quash the original of the same. b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to disturb or restrain the petitioner from storing and selling of petroleum products from his outlet. c) Declare that the petitioner has got all the necessary licence from the competent authorities under the petroleum rules.” 2. A counter affidavit is filed on behalf of the respondents wherein it is stated thus: W.P(C) No. 11411 of 2007 -: 2 :- “3. It is respectfully submitted that the contention of the petitioner that he has obtained all the necessary licenses from the competent authority for operating the petroleum outlet under the Petroleum Rules is factually incorrect. This is because the petitioner has not so far obtained the final no objection certificate and licence from the ministry of Road Transport & Highways, Government of India (MORTH), New Delhi after remitting the prescribed one time access fee of Rs. 1,00,000/- (rupees one lakh only) which is mandatory for starting the petroleum outlet along the National Highway as stipulated in the Ministry's guidelines for getting connectivity to the National Highway. The petitioner has failed to produce the license issued by the Ministry of Road Transport and Highways though the same was called for by the Department for verification. In this connection, the letter No. RW/NH-12017/384/2005-KL (P7) dated 18.1.2005 of the Ministry of Shipping, Road Transport & Highways, Government of India, New Delhi regarding the prescribed access fee payable by the Oil Company is produced herewith and marked as Ext. R3(a). The petrol outlet cannot be made operational on the strength of licence issued by the Chief Controller of Explosives, Chennai in the absence of the non-remittance of the prescribed access fee and issuance of licence by the Ministry of Road Transport & Highways, Government of India, New Delhi. 4. It is unjustified to state that the petitioner was granted license after the inspection of site by the 3rd respondent. This is due to the fact that the Secretary, Ministry of Road Transport & Highways, Government of India, New Delhi alone is the competent authority to grant the license for providing access to the National Highway and the Ministry has not so far granted the license for functioning the retail outlet by the Oil Company. Further, the Ministry has clearly instructed that petrol diesel outlets along the National Highways should not be energized and made operational on the basis of the no objection certificate issued by the District Magistrate before entering into licence agreement with MORTH after remitting the access fee of Rs.1,00,000/- (rupees one lakh only) for the purpose. To prove this DO letter No. RW/NH/35072/1/05-S&R(R) dated 1.3.2005 of the Secretary, Ministry of Road Transport and Highways, Government of India, New Delhi addressed to all Chief Secretaries containing the instruction to this effect is produced herewith and marked as Ext. R3(b). W.P(C) No. 11411 of 2007 -: 3 :- 5. It is pertinent to mention that the respondent no. 1 to 4 are duty bound to implement the orders issued by the Ministry of Road Transport and Highways, Government of India, New Delhi with respect to the remittance of the one time access fee of Rs. 1,00,000/- for providing connectivity of the fuel station to the National Highway before which license agreement has to be executed by the concerned Oil Company with the Ministry as per the Ministry's existing instruction. Further more it is submitted that the 3rd respondent has never issued by inspection report/no objection certificate to the Joint Chief Controller of Explosive, Chennai for granting license in this regard and hence the Explosive License cannot be purported to have been issued on the strength of the inspection report of the 3rd respondent.” 3. I have considered the rival contentions in detail. 4. The only question in this case is as to whether the petitioner has all the appropriate licenses from the competent authority to run the petroleum outlet in question. In the counter affidavit, it is specifically stated that a final no objection certificate and licence from the Ministry of Road Transport and National Highways, Government of India, New Delhi, after remitting a fee of Rs. 1 lakh is mandatory for starting a petroleum outlet by the side of the National Highway. It is not disputed before me that the petitioner's petroleum outlet is by the side of the National Highway. Exts.P1 to P9 documents do not show that the petitioner has obtained such a certificate and licence. The petitioner has not chosen to file any reply to the counter affidavit also to controvert the contentions of the respondents. That being so, it is clear that the petitioner is running the outlet without all the appropriate certificates and licenses and contrary to the order in W.P(C) Nos. 26373/2005 and 7674/2006. In the above circumstances, the writ petition is W.P(C) No. 11411 of 2007 -: 4 :- dismissed. However, the petitioner shall be given one month's time to produce the said no objection certificate and licence from the Ministry of Road Transport and National Highways, Government of India, failing which the respondents are free to implement Ext. P11 order. Sd/- S. Siri Jagan, Judge. Tds/