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2021 Supreme(Online)(Ker) 57336

IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J
THOMMACHAN JACOB – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C) NO. 9881 OF 2020|WP(C) NO. 29361 OF 2019|WP(C) NO. 33640 OF 2019|WP(C) NO. 35036 OF 2019|WP(C) NO. 35334 OF 2019|WP(C) NO. 3549 OF 2020|WP(C) NO. 4607 OF 2020|WP(C) NO. 4614 OF 2020|WP(C) NO. 8075 OF 2020|WP(C) NO. 9008 OF 2020|WP(C) NO. 10452 OF 2020|WP(C) NO. 10649 OF 2020|WP(C) NO. 10816 OF 2020|WP(C) NO. 11085 OF 2020|WP(C) NO. 11212 OF 2020|WP(C) NO. 11338 OF 2020|WP(C) NO. 11353 OF 2020|WP(C) NO. 11424 OF 2020|WP(C) NO. 11449 OF 2020|WP(C) NO. 11652 OF 2020|WP(C) NO. 11765 OF 2020|WP(C) NO. 11862 OF 2020|WP(C) NO. 11873 OF 2020|WP(C) NO. 11876 OF 2020|WP(C) NO. 11878 OF 2020|WP(C) NO. 11879 OF 2020|WP(C) NO. 11892 OF 2020|WP(C) NO. 11893 OF 2020|WP(C) NO. 11978 OF 2020|WP(C) NO. 12093 OF 2020|WP(C) NO. 12106 OF 2020|WP(C) NO. 12151 OF 2020|WP(C) NO. 12186 OF 2020|WP(C) NO. 12253 OF 2020|WP(C) NO. 12269 OF 2020|WP(C) NO. 12290 OF 2020|WP(C) NO. 12312 OF 2020|WP(C) NO. 12319 OF 2020|WP(C) NO. 12322 OF 2020|WP(C) NO. 12323 OF 2020|WP(C) NO. 12329 OF 2020|WP(C) NO. 12357 OF 2020|WP(C) NO. 12365 OF 2020|WP(C) NO. 12367 OF 2020|WP(C) NO. 12396 OF 2020|WP(C) NO. 13235 OF 2020|WP(C) NO. 13290 OF 2020|WP(C) NO. 14155 OF 2020|WP(C) NO. 14585 OF 2020|WP(C) NO. 14848 OF 2020|WP(C) NO. 15228 OF 2020|WP(C) NO. 15610 OF 2020|WP(C) NO. 15613 OF 2020|WP(C) NO. 15710 OF 2020|WP(C) NO. 15815 OF 2020|WP(C) NO. 16652 OF 2020|WP(C) NO. 16659 OF 2020|WP(C) NO. 16853 OF 2020|WP(C) NO. 17084 OF 2020|WP(C) NO. 17901 OF 2020|WP(C) NO. 18256 OF 2020|WP(C) NO. 18463 OF 2020|WP(C) NO. 18542 OF 2020|WP(C) NO. 18543 OF 2020|WP(C) NO. 20308 OF 2020|WP(C) NO. 20324 OF 2020|WP(C) NO. 21339 OF 2020|WP(C) NO. 22208 OF 2020|WP(C) NO. 25243 OF 2020|WP(C) NO. 25290 OF 2020|WP(C) NO. 25304 OF 2020|WP(C) NO. 25325 OF 2020|WP(C) NO. 25904 OF 2020|WP(C) NO. 26591 OF 2020|WP(C) NO. 26596 OF 2020|WP(C) NO. 27914 OF 2020|WP(C) NO. 28055 OF 2020|WP(C) NO. 68 OF 2021

Advocates:
R.SUNIL KUMAR, SMT.A.SALINI LAL, K.R.VINOD, SMT.M.S.LETHA, KUM.K.S.SREEREKHA, SRI.NABIL KHADER, SRI.RANJITH THAMPAN, SRI.P.NARAYANAN, SRI.M.GOPIKRISHNAN NAMBIAR, SRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM, SRI.T.N.MANOJ, SRI.V.SRI NATH, S.BIJU (KIZHAKKANELA), SRI.DOMINIC ANTONY, SRI.HARIN RAWAL, SRI.R.ANISON, SRI.JOSEPH GEORGE, SRI.S.SREEKUMAR (SR.), SRI.V.PREMCHAND, SRI.C.UNNIKRISHNAN (KOLLAM), SRI.HARIDAS V.P., SRI.ZUBAIR PULIKKOOL

District authorities cannot rely on non-adherence to non-statutory guidelines for denying NOCs under Petroleum Rules; such guidelines are unconstitutional and violate principles of fair administrative action.

Headnote:(A) Petroleum Rules, 2002 - Rule 144 - Grant of No Objection Certificate (NOC) to establish Fuel Stations - District Authorities rejected applications based on non-compliance with guidelines that were not legally competent - The court held such guidelines unconstitutional as they usurped statutory powers under the Kerala Highway Protection Act, 1999 and the Control of National Highways (Land and Traffic) Act, 2002. (Paras 1, 4, 30, 37, 54)

(B) The principle of fair administrative action - Requirement of effective consultation with stakeholders before formulating guidelines impacting rights under the Petroleum Rules. (Paras 10, 52)

(C) Judicial review principles - Arbitrariness or discrimination in administrative action violates Article 14 of the Constitution. (Paras 22, 53)

J U D G M E N T

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Dated this the 5th day of August, 2021

[WP(C) Nos.9881/2020, 29361/2019, 33640/2019, 35036/2019, 35334/2019, 3549/2020, 4607/2020, 4614/2020, 8075/2020, 9008/2020, 10452/2020, 10649/2020, 10816/2020, 11085/2020, 11212/2020, 11338/2020, 11353/2020, 11424/2020, 11449/2020, 11652/2020, 11765/2020, 11862/2020, 11873/2020, 11876/2020, 11878/2020, 11879/2020, 11892/2020, 11893/2020, 11978/2020, 12093/2020, 12106/2020, 12151/2020, 12186/2020, 12253/2020, 12269/2020, 12290/2020, 12312/2020, 12319/2020, 12322/2020, 12323/2020, 12329/2020, 12357/2020, 12365/2020, 12367/2020, 12396/2020, 13235/2020, 13290/2020, 14155/2020, 14585/2020, 14848/2020, 15228/2020, 15610/2020, 15613/2020, 15710/2020, 15815/2020, 16652/2020, 16659/2020, 16853/2020, 17084/2020, 17901/2020, 18256/2020, 18463/2020, 18542/2020, 18543/2020, 20308/2020, 20324/2020, 21339/2020, 22208/2020, 25243/2020, 25290/2020, 25304/2020, 25325/2020, 25904/2020, 26591/2020, 26596/2020, 27914/2020, 28055/2020, 68/2021, 249/2021, 2749/2021, 5563/2021, 5629/2021 and 8332/2021]

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 : 157 :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.: 158 :

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 : 159 :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

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2021 Supreme(Online)(Ker) 57336

District authorities cannot rely on non-adherence to non-statutory guidelines for denying NOCs under Petroleum Rules; such guidelines are unconstitutional and violate principles of fair administrative action.

Cases Referred (3)