A.M. Shaffique, J.

1. The petitioner is a distributor of medical oxygen and challenges the action of respondents 1 to 3 in permitting the 4th respondent to manufacture and supply medical oxygen to various hospitals in and around Cochin. According to the petitioner, the 4th respondent is manufacturing and supplying Oxygen without necessary approvals or permission as provided under the Gas Cylinder Rules 2004 and the Static and Mobile Pressure Vessels(Unfired) Rules 1981. Though the petitioner had taken up the matter before the respondents 1 to 3 on certain occasions, despite calling upon the 4th respondent to comply with the Rules, no further action is taken in the matter. According to the petitioner, the 4th respondent is supplying medical oxygen to various hospitals after putting up storage equipments like cylinders in the premises of a hospital. This according to the petitioner requires proper licence as provided under the Gas Cylinder Rules.

2. Counter affidavit is filed by respondents 1 to 3 inter alia contending that having noticed the activities of the 4th respondent, they have taken necessary action in the matter. They have also produced certain documents to indicate that explanation were called for from the 4th respondent in relation to the storage and supply of medical oxygen to the various hospitals indicated by them.

3. The 4th respondent has filed a counter affidavit inter alia contending that there is no specific rule for obtaining such permission as far as storage of medical oxygen in cryogenic cylinders are concerned. The Rules does not contemplate any such permission and therefore, no such approval is required. The 4th respondent also relied upon an Office Memorandum dated 8.6.2012 of the Government of India, Ministry of Commerce and Industry in Department of Industrial Policy and Promotion (Explosives Section). Ext.R4(a) is the said document. By virtue of the aforesaid Office Memorandum, there is an indication that an expert committee had been constituted to look into various aspects relating to Static & Mobile Pressure Vessels (Unfired) Rules, 1981 and Gas Cylinders Rules, 2004. The aforesaid document would show that an apprehension was expressed by the expert committee in the matter relating to the new technologies being adopted including installation and filling portable/stationary cryogenic containers. Paragraph 3 and 4 of Ext.R4(a) is reads as under.

"3. The averment in paragraph No.5 of the writ petition that licence is required in respect of the premises for decantation is incorrect and hence denied. As far as the business of the 4th respondent is concerned it involves establishment of static pressure vessels containing cryogenic oxygen above one Kilolitre water capacity in hospital premises with management of the same and the establishment and management of Cryogenic Static containers of 940 litres water capacity. As far as the vessels above one Kilolitre water capacity licence is required for storage, filling and transportation and proper licence is taken in respect of each vessel, vehicle and premises. The licence is being issued by the first respondent from time to time after verification, testing etc.

4. As far as the containers below 1000 litres water capacity, licence is not required for possession, filling and storage. The containers have water capacity of 940 litres and the weight of an empty container is 990 KGs. When it is filled with cryogenic oxygen to the maximum capacity, the weight total will come to nearly 1700 KGs. Thus it is evident such empty container or filled container is not a portable one. Hence such containers cannot be brought within the definition of 'Cylinder' under the Gas Cylinder Rules, 2004. Even if it is assumed to fall within the definition, Rule 44 exempts from licence up to a maximum number of 200 at a time. Therefore the contention that the trade/business of the 4th respondent is without licence is to be rejected and the writ petition is liable to be dismissed at