Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 594

IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
Thommachan Jacob, S/o. Jacob Philip – Appellant
Versus
The State Of Kerala, Rep. By the addl. Chief secretary – Respondent
[WP(C) Nos., 29361, 33640, 35334, 35036 of 2019, 9881, 3549, 4607, 4614, 8075, 9008, 10452, 10649, 10816, 11085, 11212, 11338, 11353, 11424, 11449, 11652, 11765, 11862, 11873, 11876, 11878, 11879, 11892, 11893, 11978, 12093, 12106, 12151, 12186, 12253, 12269, 12290, 12312, 12319, 12322, 12323, 12329, 12357, 12365, 12367, 12396, 13235, 13290, 14155, 14585, 14848, 15228, 15610, 15613, 15710, 15815, 16652, 16659, 16853, 17084, 17901, 18256, 18463, 18542, 18543, 20308, 20324, 21339, 22208, 25243, 25290, 25304, 25325, 25904, 26591, 26596, 27914, 28055 of 2020, 68, 249, 2749, 5563, 5629, 8332 of 2021
Decided on : 05-08-2021

Advocates:
Advocate Appeared:
For the Appellant : R.SUNIL KUMAR, SMT.A.SALINI LAL
For the Respondent:A.G. SRI RANJITH THAMPAN, SRI P.NARAYANAN, SRI HARIN RAWAL (SR. SUPREME COURT ADVOCATE), SRI.K.DILIP, Adv.

Point of Law: Levy of certain fees towards processing applications for access permit and fee for access permit - Guidelines approved as per Ext.P4, were framed/approved without any consultation and without giving any opportunity to stake holders to place their views in matter.

Headnote:
Petroleum Rules, 2002 - Rule 144 - Constitution of India, 1950 – Articles 14 and 162 - Kerala Highway Protection Act, 1999 - Indian Road Congress - Guidelines - Non-refundable processing fee - No Objection Certificates - Road Safety - Whether site proposed by an applicant is objectionable or not. Writ petitions are filed by Oil Marketing Companies and various Franchisees selected by them for starting Petroleum Fuel Retail Outlets in Kerala. They are aggrieved by non-grant of / rejection of application for issuing, No Objection Certificates (NOCs) by District Authorities, for establishing Petroleum Fuel Retail Outlets in various places in Kerala as contemplated under Rule 144 of Rules, 2002
Finding of the Court:
State action must be fair and not arbitrary if it is to pass muster in a court of law. Test of manifest arbitrariness would apply to invalidate any rules made invoking Article 163 also. In these writ petitions, petitioners who are Oil Marketing Companies and their Franchisees, have proceeded to invest money to start Fuel Stations in compliance of existing rules. Change in any rules, including rules/guidelines for access permit will have adverse civil consequences on such petitioners. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The guidelines sought to be approved as per Ext.P4, are having far reaching civil consequences for Oil Marketing Companies and Franchisees- petitioners, as it would adversely affect their right to establish Fuel Stations complying with existing law and rules. When the State proposes to change rules, by adopting new rules/guidelines, an effective consultation with Oil Marketing Companies which have applied for NOCs, is warranted. The guidelines approved as per Ext.P4, were framed/approved without any consultation and without giving any opportunity to stake holders to place their views in matter. Guidelines approved as per Ext.P4 and procedure adopted for the same, are therefore highly arbitrary and offend Article 14 of Constitution of India - All other issues raised by petitioners in these writ petitions, are left open.
Result: Writ petitions allowed

JUDGMENT :

These writ petitions are filed by Oil Marketing Companies and various Franchisees selected by them for starting Petroleum Fuel Retail Outlets in Kerala. They are aggrieved by the non-grant of/rejection of application for issuing, No Objection Certificates (NOCs) by the District Authorities, for establishing Petroleum Fuel Retail Outlets in various places in Kerala as contemplated under Rule 144 of the Petroleum Rules, 2002. Their applications were rejected mainly on the ground that the locations of such Petroleum Fuel Retail Outlets do not satisfy the conditions stipulated in the Indian Road Congress (IRC) Guidelines or the relevant orders issued by the Government of Kerala for Access Permission to Fuel Stations. Some of the writ petitioners seek to desist the respondent-District Authorities from granting NOCs to OMCs/Franchisees in violation of existing guidelines and challenging the NOCs already granted.

2. As these writ petitions are filed challenging the same Government Orders and as common questions of law arise, they were heard together and are disposed of by a common judgment. The exhibits produced in these writ petitions are referred to in this judgment as they are marked in W.P.(C) No.28055/2020.

3. The Public Works Department (PWD) of Government of Kerala has been following the Government of India, Ministry of Road Transport and Highways (MoRTH), specifications and Indian Road Congress (IRC) standards for the roads under the Kerala PWD including State Highways and Major District Roads, for granting access permission to Petroleum Fuel Retail Outlets (hereinafter referred to as 'Fuel Stations' for short). By Ext.P1 G.O.(Ms) No.46/2019/PWD dated 22.10.2019 of the Joint Secretary, PWD, the Government of Kerala accorded sanction for including “IRC: 12-2016 Unified Guidelines for Access Permission to Fuel Stations” in the PWD Manual (Revised 2012) as appendix. The IRC standards prescribed stringent norms for grant of access permission to Fuel Stations including requirement of minimum distance from road intersections.

4. The Government of India issued Notification No.28 effective from 01.12.2019, withdrawing the said IRC:12-2016 Unified Guidelines for Access Permission to Fuel Stations. The Government of Kerala thereupon examined the matter in detail and prescribed new norms in substitution of IRC standards for access permission to Fuel Stations, as per Ext.P2 G.O.(Ms) No.16/2020/PWD dated 10.02.2020. According to the writ petitioners, the new norms were also very stringent and identical to the IRC standards which were withdrawn by the Government of India. A large number of writ petitions were filed before this Court challenging the new norms introduced by the Government of Kerala as per Ext.P2 GO (Ms) No.16/2020/PWD dated 10.02.2020.

5. Thereupon, the Government of Kerala, as per Ext.P3 G.O. (Rt) No.551/2020/PWD dated 23.06.2020, constituted an Expert Committee to study and report the norms for ensuring the safety of roads and traffic in Kerala. The Expert Committee was required to submit a report to the Government within one month and it was also made clear that till the Committee submits its report, the present norms will be continued. The Expert Committee submitted a report on 28.07.2020, along with a new set of guidelines.

6. The proposals of the Expert Committee included levy of certain fees towards processing applications for access permit and fee for access permit. The guidelines also mandated Bank Guarantee and provided for imposition of penalty for operating energised Fuel Station without obtaining prior permission. The Government of Kerala, as per Ext.P4 G.O.(Ms) No.67/2020/PWD dated 16.10.2020, approved the proposed Guidelines for Access Permission to Fuel Stations along State Highways and Major District Roads and directed to carry out necessary amendments in the PWD Manual. In these writ petitions, G.O.(Ms) No.16/2020/PWD dated 10.02.2020 and G.O.(Ms) No.67/2020/PWD dated 16.10.2020 are under challenge.

Click Here to Read the rest of this document

2021 Supreme(Ker) 594

Point of Law: Levy of certain fees towards processing applications for access permit and fee for access permit - Guidelines approved as per Ext.P4, were framed/approved without any consultation and without giving any opportunity to stake holders to place their views in matter.

Cases Referred (4)