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2022 Supreme(Online)(KER) 33422
HIGH COURT OF KERALA
Murali Purushothaman, J
T.M.BIJU – Appellant
Versus
INDIAN OIL CORPORATION LTD. – Respondent
WP(C) NO. 26853 OF 2022
For the Appellants/Petitioners: BALU TOM, M.RAMESH CHANDER, BONNY BENNY, GOVIND G. NAIR, BEJOY JOSEPH, P.J.
For the Respondents: M.GOPIKRISHNAN NAMBIAR, RAMOLA NAYANPALLY, K.P.HARISH, KRISHNA PRASAD, SINDHU S KAMATH, SWAPNA S.K., ROHINI NAIR, SRISURAJ KUMAR D., K.JOHN MATHAI, JOSON MANAVALAN, KURYAN THOMAS, PAULOSE C. ABRAHAM, RAJA KANNAN
Municipal authority lacks jurisdiction over fuel tank construction, governed exclusively by Petroleum Rules.
Headnote:(A) Kerala Municipality Act, 1994 - Sections 381, 382, 387, 406 - Kerala Municipality Building Rules, 2019 - Rules 2(n), 4(2), 5(4), 30, 47 - Petroleum Act, 1934 - Section 31 - Petroleum Rules, 2002 - Rule 124 - Jurisdiction of Municipality over fuel tank construction - The Municipality issued notices to halt construction, citing unauthorized work, while the IOC maintained compliance with regulations related to fuel storage. The Court clarified jurisdiction, ruling that fuel tank construction is governed solely by the Petroleum Rules, preempting local authority rules. The writ petition is allowed, invalidating notices from the Municipality. (Paras 1, 18)
(B) Jurisdiction - Conflict between specific and general provisions - In conflicts, specific provisions override general ones. (Paras 17)
| Table of Content |
|---|
| 1. petitioner allotted dealership for fuel outlet. (Para 1 , 2) |
| 2. counterfacts alleging unauthorized construction and failure to comply with kmbr. (Para 3 , 4 , 5) |
| 3. arguments related to local authority's jurisdiction. (Para 6 , 7 , 8) |
| 4. provisions governing construction of tanks and jurisdiction. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 5. specific provisions govern over general. (Para 17) |
| 6. writ petition allowed, invalidation of municipal notices. (Para 18) |
JUDGMENT
The petitioner was allotted retail outlet dealership of a petrol pump owned and operated by Indian Oil Corporation Ltd. ('IOC', for short) within the territorial area of Kuthuparamba Municipality (hereinafter referred to as the 'Municipality') as per Ext.P1 letter of intent, under the scheduled caste category. This retail outlet was being operated by respondents 3 and 4 and later, the IOC terminated the said contract and the petitioner is conducting the retail outlet from 2009. The petitioner intimated the IOC regarding suspected leakage of tank containing Motor Spirit (petrol) and the IOC, on inspection, noticed that there is leakage and started construction of a concrete fencing to insert the storage tank. While the work was in progress, the Municipality issued Ext.P4 notice to the petitioner and the IOC, directing them to stop the construction as it has been reported that the construction of the concrete tank in the outlet is being carried out without the permission of the Municipality. It is further stated therein that, if the unauthorised construction is not stopped, action will be taken as per the Kerala Municipality Building Rules, 2019 (for short, 'the KMBR '). Ext.P4 notice refers to a complaint dated 27.07.2022 by respondents 3 and 4 and an office report dated 05.08.2022. The petitioner contends that Ext. P4 notice is issued without hearing him or the IOC and is issued at the behest of respondents 3 and 4 and is malafide. The petitioner states that the work being done is only a maintenance work and there is no additional or unauthorised construction and Ext.P4 cannot be sustained in law and seeks to quash the same.
2. When the writ petition came up for admission on 22.08.2022, it was submitted by the standing counsel for IOC that what is being carried out is only repair of the existing tank. This Court granted an interim stay of operation of Ext.P4 for a period of two weeks. When the writ petition came up for further consideration on 01.09.2022, it was submitted on behalf of the IOC that the work being carried out is not repair work; but, replacement of the leaky petrol tank. After recording the said submission, this Court extended the interim order.
3. A counter affidavit is filed on behalf of the Municipality wherein it is stated that the petitioner has approached this Court contending that what is being carried out is a maintenance work, but, as per the version of the IOC, the same is replacement of the leaky petrol tank. This, according to the Municipality is, suppression of material facts, jugglery, manipulation, and manoeuvering misrepresentation. It is further stated that, the retail outlet of IOC operated by the petitioner is on the right side of the Thalassery-Coorg road and the petitioner started construction of a new concrete tank and made a pit of 7.95m length and 3.85m width and 2m depth. It is stated that the said construction is without the prior permission of the Municipality and is in violation of Rule 4(2) of KMBR as the construction of tank for storage of chemicals in any form will come within the definition of 'building' under Rule 2(n) of and building permit is mandatory. It is also stated that as per the master plan for the Municipality, there is proposal for widening Thalassery-Coorg road and the construction is without leaving distance as per the proposal. It is further averred that the construction of underground petrol tanks and other structures installed for petrol tanks are buildings under the category of Ha
