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2021 Supreme(Online)(MAD) 16811
HIGH COURT OF MADRAS
T.S. Sivagnanam, R.N. Manjula, JJ
Kumar Kandhasamy – Appellant
Versus
Commissioner of Police – Respondent
W.P.Nos.1718 of 2020|W.P.Nos.2448 of 2020|W.P.Nos.4635 of 2020|W.P.Nos.4778 of 2020
For the Appellants/Petitioners: V.B.R. Menon
For the Respondents: O.R. Santhanakrishnan, N. Senthilkumar, K.V. Sajeevkumar
The State holds water bodies in public trust and cannot alienate them for commercial purposes. Regarding statutory licenses, courts will not interfere with the discretionary power of authorities unless findings of arbitrariness, procedural illegality, or non-consideration of vital facts are clearly established.
Headnote:(A) Constitution of India - Article 21 and Article 51-A - Public Trust Doctrine - Environmental protection - State as a trustee of natural resources - Obligation to protect and preserve water bodies against private commercial exploitation.
(B) Petroleum Rules, 2002 - Rule 144 - No Objection Certificate - Requirement for strictly adhering to statutory proforma - Non-applicability of Rules retrospectively - Judicial review - Limits of interference - Courts should not supplant statutory licensing authorities in the exercise of their discretionary power unless arbitrary or unreasonable. (Paras 40, 44, 45)
Facts of the case:
Petitioners challenged the establishment of petroleum retail outlets at two separate locations, alleging that the sites were transferred water bodies and that approvals were obtained through suppression of material facts and in violation of environmental and road safety norms. In one instance, the land was part of a designated water body transferred to a local authority for commercial use. In the other, the petitioner alleged procedural irregularities and failure to follow mandatory siting criteria near highways.
Findings of Court:
The court held that the state acts as a trustee of water bodies and cannot alienate such land for commercial purposes, even if classified as unused in revenue records, due to the overriding principle of the Public Trust Doctrine. However, regarding the second site, the court found that statutory approvals were granted after due process, and the petitioner's reliance on specific Rule formats was misplaced as the rules were amended after the initial grant of the certificate.
Issues: Whether the state can permit the use of land originally classified as a water body for private commercial purposes and whether the court should interfere with, or quash, statutory clearances granted for retail outlets.
Ratio Decidendi: Environmental resources held in public trust cannot be diverted for commercial gain; the fiduciary duty of the state to protect water bodies is paramount. Conversely, regarding statutory discretionary licenses, judicial review is limited and does not extend to substituting the court's view for that of the competent authority, provided proper procedure and legal checks were applied.
Result: Two petitions allowed; two petitions dismissed. The local authority is permanently restrained from using the water body site for commercial purposes.
COMMON ORDER
T.S.SIVAGNANAM, J.
All the four writ petitions have been filed as public interest litigations, the subject matter being common, namely, objecting to location of two petroleum retail outlets in two different places in Salem District by the Bharat Petroleum Corporation Limited [BPCL], the respondent in all the four writ petitions. Though there is a slight factual difference in the two sets of writ petition, essentially the location is being challenged on common grounds. Therefore, the writ petitions were heard together and are being disposed of by this common order.
The petitioner in W.P.No.1718 of 2020 and W.P.No.4778 of 2020 is Mr.Kumar Kandhasamy, who states that he is a resident of Salem District and objects to the location of the petroleum retail outlet. The petitioner in W.P.No.2448 of 2020 and W.P.No.4635 of 2020 is one C.Chinnadurai, who is also a resident of Salem District and opposes the location of petroleum retail outlet.
In W.P.No.1718 of 2020, the petitioner seeks for issuance of a writ of Mandamus to permanently forbear the respondents from issuing No Objection Certificate [NOC], Explosive License and other approval/permission/consent to BPCL to set up and operate a new road side petroleum retail outlet at Omalur Road, State Highway No.SH-218 at T.S.No.163, Ward 'L', Block No.10, No.63, Pallapatty Village, Salem Taluk and District adjacent to Brindavan Road alleging the same to be in violation of the Indian Road Congress [IRC] Circular No.12/2009. Since during the pendency of the writ petition, NOC was granted the petitioner has filed W.P.No.4778 of 2020 to quash the NOC issued by the Commissioner of Police, Salem City in favour of BPCL to open and operate a petroleum retail outlet in the said location.
In W.P.No.2448 of 2020, the prayer is similar to that of W.P.No.1718 of 2020 except the location is at Srinagar-Kanyakumari National Highway NH-44 at Old No.88/1, New Survey No.88/1-B, Karupur Village, Omalur Taluk, Salem District. Since in the said case also NOC was granted, the petitioner C.Chinnadurai has filed W.P.No.4635 of 2020 to quash the NOC granted by the Commissioner of Police, Salem City in favour of BPCL to locate the petroleum retail outlet. Thus a decision arrived at in W.P.Nos.4778 of 2020 and 4635 of 2020 would cover all the four cases.
Mr.V.B.R.Menon, learned counsel appearing for the writ petitioner submitted that the proposed site chosen in W.P.Nos.1718 of 2020 and 4778/2020 is part of a water body called Chinnasamy eri as per the 'A' Register extract and in terms of the decision of the Hon'ble Supreme Court in the case of T.K. Shanmugam vs. State of Tamil Nadu and others [2015 (6) CTC 369(DB)], the State has to restore, protect and preserve water bodies based on the principles of Public Trust. It is submitted that the major portion of the water body had been transferred to the Salem Corporation by the Government of Tamil Nadu in G.O.Ms.No.299 Revenue Department dated 17.03.1997 and it is incumbent upon the Salem Corporation to preserve whole of it as a water body available for community usage instead of alienating it for a commercial usage such as for a petroleum outlet. It is submitted that BPCL obtained NOC from the Commissioner of Police, Salem, obtained provisional site approval from the Joint Chief Controller of Explosives and approval from the Tamil Nadu Highways by submitting false site drawings in which the existence of major road junction, several dwelling units, public buildings and a transformer being located within 100ms of the proposed site have been suppressed and such approval is in gross violation of Rule 131(1)(iii) of the Petroleum Rules, 2002 and Indian Road Congress Circular No.12/2009.
The learned counsel referred to a Google map and photographs of the proposed site and submitted that the same unequivocally proved that false information was furnished for obtaining such approvals. Further the NOC is a replica of the proforma prescribed under Rule 144(7) of the
