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2026 DAILYLAW 287 (KER)

Thara P. D/o Ramachandran v. State of Kerala

2026-03-27

Anil K Narendran, Muralee Krishna S

body2026
JUDGMENT : MURALEE KRISHNA S., J. 1. The petitioner in W.P.(C)No.22906 of 2025 filed this writ appeal under Section 5 (i) of the Kerala High Court Act, 1958 , challenging the judgment dated 26.11.2025 passed by the learned Single Judge in that writ petition. 2. Going by the pleadings in the writ petition, the appellant, who is a member of the Scheduled Caste Community, was issued with Ext.P1 Letter of Intent dated 02.09.2019 issued by the 4 th respondent Bharath Petroleum Corporation Ltd. for establishing a petroleum retail outlet in Alappuzha district, Kerala, following due advertisement and selection process. Based on the Letter of Intent, the 4 th respondent applied for a No Objection Certificate (‘NOC’ for short) before the 2 nd respondent, District Collector, as per Ext.P2 application dated 04.09.2019. The petroleum retail outlet was proposed to be installed in the land situated in Re.Sy.No.282/11-1 of Kadakkarappally Village in Cherthala Taluk. The 4 th respondent company obtained Ext.P4 approval/licence dated 30.10.2019 for the site/layout/construction of the proposed petrol pump from the 5 th respondent. Except the Public Works Department, all other authorities submitted their reports as directed before the 2 nd respondent. However, the Public Works Department failed to do so, citing the adoption of IRC norms for granting NOC for petroleum outlets. 3. The appellant states that she filed W.P(C)No.15779 of 2020 before this Court seeking consideration of the application for NOC filed by her, and by Ext.P5 judgment dated 04.08.2020, this Court directed the 2 nd respondent to consider and pass orders in that application within six weeks. Thereafter, the District Police Chief, Alappuzha, submitted Ext.P6 report dated 07.09.2020, citing objections from a nearby Government L.P. School and neighbouring family, raising objections against issuing the NOC. The District Supply Officer, Alappuzha, also submitted Ext.P8 report dated 16.09.2019, similar to that of Ext.P6 report of the District Police Chief. The Public Works Department by Ext.P7 report dated 09.09.2020 recommended the issuance of NOC, and so also the Sub Collector, Alappuzha, by Ext.P9 report dated 28.09.2020, recommended the issuance of NOC. No Objection Certificates were obtained from the 3 rd respondent and also from the Fire and Rescue Service. 3.1. The appellant further states that despite obtaining all other mandatory approvals, including PESO site clearance dated 30.10.2019, her application was delayed, and rejected multiple times, finally by Ext.P22 order dated 23.03.2025 of the 2 nd respondent. No Objection Certificates were obtained from the 3 rd respondent and also from the Fire and Rescue Service. 3.1. The appellant further states that despite obtaining all other mandatory approvals, including PESO site clearance dated 30.10.2019, her application was delayed, and rejected multiple times, finally by Ext.P22 order dated 23.03.2025 of the 2 nd respondent. Ext.P22 order cites non-compliance with a condition introduced via Ext.P21 circular dated 21.04.2021 issued by the 3 rd respondent, which stipulates that the construction of the petroleum outlet must have been commenced before 07.01.2020 following PESO approval. This condition, however, is fundamentally flawed when applied to the appellant’s case. It is the further case of the appellant that, as per Rule 5(4) of the Kerala Panchayat Building Rules, 2019, no construction of a petroleum outlet can legally be undertaken without the prior issuance of NOC by the District Magistrate. Thus, the requirement that construction must have preceded the NOC is inherently contradictory and imposes an impossible precondition on the appellant. Therefore, by contending that the impugned Ext.P22 order which insists post facto compliance with an impracticable requirement is against the settled principles of administrative fairness, prospective application of norms and raising an apprehension that even upon obtaining the NOC, the 5 th respondent may unjustly apply subsequent siting criteria introduced after 07.01.2020, though the application of the appellant was before the introduction of the said siting criteria, filed the writ petition under Article 226 of the Constitution of India, seeking the following reliefs: “I. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P22 and quash the same; II. Issue a writ of mandamus or other appropriate direction commanding respondent No.2 to reconsider the petitioner’s application for the grant of No Objection Certificate (NOC) afresh, strictly in accordance with the siting criteria prevailing as on the date of application, namely Ext.P12 circular dated 09.08.2004, and in light of the binding precedent of the Hon’ble Supreme Court in Indian Oil Corporation Ltd. v. V.B.R. Menon & Ors. [ 2023 SCC Online SC 257 ], within a time frame to be fixed by this Hon’ble Court; III. [ 2023 SCC Online SC 257 ], within a time frame to be fixed by this Hon’ble Court; III. Declare that the application of Exhibit P21 circular dated 21.04.2021 by respondent No.3 to the petitioner’s case is arbitrary, illegal, and unenforceable, being violative of the doctrine of lex non cogit ad impossibilia, and contrary to Rule 5(4) of the Kerala Panchayat Building Rules, 2019; IV. Declare that the petitioner’s application is governed by the siting criteria prescribed in Ext.P12 dated 09.08.2004, and any attempt to apply the subsequent circulars dated 07.01.2020 or 09.09.2024 to the Petitioner’s case is illegal, retrospective, and unsustainable in law. V. Issue a writ of mandamus or appropriate direction commanding respondent No.5 (PESO) to consider petitioner’s application for final approval of the petroleum retail outlet, on the basis of siting norms introduced subsequent to 07.01.2020, provided the Petitioner obtains the NOC and satisfies all other safety and technical requirements.” 4. The 2 nd respondent filed a statement dated 31.10.2025 in the writ petition, opposing the relief sought for. Paragraphs 3 to 10 of that statement read thus: “3. The Regional Territory Manager (Retail), BPCL submitted an application on 04.09.2019 for a No Objection Certificate to install a new petroleum outlet at Thaikkal in Kadakkarappally Village. The application was enquired through District Police Chief, District Supply Officer, Regional Fire Officer, Kottayam, Executive Engineer, PWD (Roads) and Sub Collector Alappuzha. The District Police Chief and District Supply Officer reported that there exist a lower primary School adjacent to the applied property and it may cause harm to the safety of the students. Hence the application was recommended to reject. In addition to that the Deputy Director of Education Alappuzha proposed to reject the NOC application due to the safety issue of the students. Moreover the Head Mistress of this school and District secretary of the Child welfare committee filed complaint against the issuance of the NOC. The Environmental Engineer, PCB vide order dated 15.11.2021 set aside their permission to install the Outlet in the ground that the least distance between the school and the outlet is only 17 meters. The site was inspected and evaluated the reports and circulars regarding the issuance of NOC. On the basis of the reports and site inspection the application for NOC was rejected on 31.12.2021 vide Proceedings No.DCALP/11407/2019-N5 of the Additional District Magistrate Alappuzha. 4. The site was inspected and evaluated the reports and circulars regarding the issuance of NOC. On the basis of the reports and site inspection the application for NOC was rejected on 31.12.2021 vide Proceedings No.DCALP/11407/2019-N5 of the Additional District Magistrate Alappuzha. 4. The petitioner approached the Hon'ble High Court of Kerala through WP(C)-28799 of 2022 against the rejection order passed on 31.12.2021. The Hon'ble High Court directed the 2 nd respondent to reconsider the petitioners claim. On the basis of the direction of the Hon'ble High Court joint site inspection of concerned authorities and with applicant were conducted and it is found that the status while rejecting the NOC application remains same. Hence the application is rejected on 04.07.2024 and complied the direction in the WP(C). 5. The petitioner submitted an application before the 2 nd respondent states that the boundary wall and the school building has been demolished to reconstruct a new building and now the least distance is under the considerable area to install an outlet. That review application was considered and a joint inspection of all concerned were conducted on 07.11.2024. The distance between the proposed school compound wall and the dispensing unit, compound wall and vent unit and compound wall and filling point were calculated, the least distance was 19.10 meter only. As per the new guidelines issued by the Central Pollution Control Board the siting criteria is fixed as not below 30 meters. But here the applied property the least distance is only 19.10 meter. Thereafter the petitioner produced and claimed the argument that the Kerala PCB proclaimed a circular on 21.04.2021 and on that circular the minimum distance between the school and a new outlet is only 3 meter and on that ground the petitioner is eligible for NOC. But on that circular it was clearly mentioned that 3 meter criteria is only applicable for a construction of outlet process already started and PESO Clearance initial approval obtained prior to 07.01.2020. But in the case of the petitioner's application for NOC no construction of outlet process is being yet started. Hence such legal grounds the application is considered to be not eligible for issuance of NOC. In these circumstances the application for NOC rejected on 23.03.2025. But in the case of the petitioner's application for NOC no construction of outlet process is being yet started. Hence such legal grounds the application is considered to be not eligible for issuance of NOC. In these circumstances the application for NOC rejected on 23.03.2025. The Kerala State Pollution Control Board, through Circular No. PCB/HOW/RULES9/7/2019 dated 21.04.2021, has issued a clarification regarding the implementation date of the new siting criteria and related matters concerning clearances and approvals, as detailed below. 6. For Integerated Consent to Establish applications received by the Board on or before 04.02.2021, circulars dated 24.02.2020 & 18.08.2020 are applicable. 7. In such cases, if the applicant produces any of the license/clearance obtained prior to 24.02.2020, from the concerned Departments/Authorities, their applications shall be considered with distance criteria of 3 meters. 8. For integrated Consent to Establish applications received by the Board after 04.02.2021, circulars dated 04.02.2020 is applicable. 9. In such cases, new siting criteria will be applicable except for those cases where PESO prior clearance/initial approval was obtained and subsequently construction has been started by the OMC before 07.01.2020. In all other cases, 50 meter distance must be maintained in accordance with the new siting criteria. 10. In this particular case, it was confirmed through a site inspection conducted by this office that construction activities had not yet commenced on the proposed site. Furthermore, upon measuring the distance from the Filling point/Dispensing Unit/vent pipe based on the plan submitted by the applicants to the nearby Thaikkal Government L.P. School, it was found that the required distance as per the new siting criteria is not being met. Additionally, the health and safety of the children at the L.P. School must be ensured.” 5. The 5 th respondent filed a counter affidavit dated 27.10.2025, opposing the reliefs sought for in the writ petition. Paragraphs 6 to 9 of that counter affidavit read thus: “6. As regards the averments in para 4, it is respectfully submitted that prior approval for the establishment of a petroleum retail outlet at Re-Survey No.282/11-1, Kadakkarapally Village, Cherthala Taluk, Alappuzha District, Kerala, was granted to 4 th Respondent - BPCL, Ernakulam Territory, on 30.10.2019 by Ext.P4 Approval No. A/P/SC/KL/14/3830 (P458716). As regards the averments in para 4, it is respectfully submitted that prior approval for the establishment of a petroleum retail outlet at Re-Survey No.282/11-1, Kadakkarapally Village, Cherthala Taluk, Alappuzha District, Kerala, was granted to 4 th Respondent - BPCL, Ernakulam Territory, on 30.10.2019 by Ext.P4 Approval No. A/P/SC/KL/14/3830 (P458716). The said approval was issued under Rule 131 of the Petroleum Rules, 2002, after due examination of documents and compliance with safety norms prevailing at that time, i.e., before the implementation of the Ext.P13 CPCB guidelines dated 07.01.2020. The said approval only pertains to constructional clearance and does not itself confer any right to commence operation of the petroleum retail outlet. The subsequent stages, including storage, and operation, are contingent upon obtaining a NOC from the District Authority as per Rule 144 of the Petroleum Rules, 2002. 7. It is submitted that as per Exhibit P15 CPCB Office Memorandum No.B-13011/1/2020-21/AQM dated 29.01.2021, the revised siting criteria introduced on 07.01.2020 will not apply to those cases where: (i) prior clearance/initial approval had been obtained from PESO. (ii) the construction had commenced before 07.01.2020. Accordingly, in cases where construction commenced after 07.01.2020, the CPCB guidelines are applicable. The authority to issue or deny the NOC lies solely with the District Magistrate, and PESO is not empowered to intervene in that administrative decision. The role of the 5 th Respondent PESO arises only after the NOC is issued, for the purpose of granting final licenses under Rule 141,143 of the Petroleum Rules, 2002. 8. As regards the averments contained in para 5 to 22, they are matters of record, and the 5 th respondent has no specific comments to offer. 9. With respect to the averments in para 23, it is respectfully submitted that the licenses in Form XIV under the Petroleum Rules, 2002, can be granted only after the NOC has been duly issued by the competent District Authority. In the absence of a valid NOC, 5 th Respondent - PESO cannot process or issue any license for operation. The PESO has acted strictly within the framework of the Petroleum Act, 1934, and the Petroleum Rules, 2002, and has not committed any illegality, arbitrariness, or procedural lapse in relation to the case of the petitioner”. 6. After hearing both sides, the learned Single Judge, by the impugned judgment dated 26.11.2025, dismissed the writ petition. The PESO has acted strictly within the framework of the Petroleum Act, 1934, and the Petroleum Rules, 2002, and has not committed any illegality, arbitrariness, or procedural lapse in relation to the case of the petitioner”. 6. After hearing both sides, the learned Single Judge, by the impugned judgment dated 26.11.2025, dismissed the writ petition. Paragraphs 8 to 10 of that judgment read thus: “8. The Respondent No.4 submitted Ext.P2 Application for NOC on 04.09.2019 after issuance of Ext.P1 Letter of Intent to the Petitioner on 02.09.2019. The petitioner obtained Ext.P4 Clearance from PESO on 30.10.2019. The CPCB issued Ext.P13 revised guidelines on 07.01.2020. Ext.P13 guidelines mandated maintenance of a radial distance of 50 meters from Schools, Hospitals and designated residential areas, which could be reduced to 30 Meters in case of constraints in providing 50 Meters distance on implementation of additional safety measures as specified by PESO. Since the Petitioner has obtained Ext.P4 Clearance from PESO, the distance to be maintained from the Petroleum outlet of the Petitioner to the neighbouring school is 30 Meters as per Ext.P13. The siting criteria as per Ext.P13 need not be applied if the outlet satisfies the twin conditions in Ext.P15 Office Memorandum. The twin conditions in Ext.P15 Office Memorandum are that the Petitioner has to obtain PESO Clearance before 07.01.2020, which is the date of Ext.P13, and that the Petitioner started construction before the said date. There is no dispute that the first condition is satisfied. Admittedly, the Petitioner did not start construction before 07.01.2020. As pointed out by the learned Government Pleader, it could not be said that the NOC prescribed under Rule 5(4) of the Kerala Panchayat Building Rules and the NOC required under Rule 144 of the Petroleum Rules, 2002, are one and the same. If both the NOCs are one and the same, the CPCB would not have included such a condition in Ext.P15. 9. That apart, even if both the NOCs are one and the same, the Petitioner will not succeed. The Petitioner is claiming the benefit of Ext.P15 Office Memorandum. Ext.P15 is a relaxation to the general distance criteria in Ext.P13. Such relaxation is made with the intention to protect persons who have invested huge amounts for construction, taking into account the distance criteria of 3 Meters, on the legitimate expectation that they will get NOC under the Petroleum Rules. The Petitioner is claiming the benefit of Ext.P15 Office Memorandum. Ext.P15 is a relaxation to the general distance criteria in Ext.P13. Such relaxation is made with the intention to protect persons who have invested huge amounts for construction, taking into account the distance criteria of 3 Meters, on the legitimate expectation that they will get NOC under the Petroleum Rules. When one of the conditions for such relaxation is impossible to perform, it could only be said that the relaxation itself is unworkable, and the Petitioner could not claim that the relaxation should be given, ignoring the unworkable condition. 10. Since the distance from the proposed petroleum outlet to the neighbouring school is only 19.10 meters and several authorities have objected to the establishment of the petroleum outlet, the petitioner is not entitled to establish the petroleum outlet within the prohibited distance of 30 Meters provided in Ext.P13 guidelines. The Respondent No.2 rightly rejected the Application for NOC as per Ext.P22. I do not find any reason or ground to interfere. Accordingly, this Writ Petition is dismissed”. 7. Being aggrieved, the appellant has filed the present writ appeal. 8. Heard the learned counsel for the appellant, the learned Senior Government Pleader for respondents 1, 2 and 6, the learned Standing Counsel for the 3 rd respondent, the learned Standing Counsel for the 4 th respondent, the learned Central Government Counsel for the 5 th respondent and the learned Standing Counsel for the 7 th respondent. 9. The learned counsel for the appellant submitted that the 4 th respondent submitted the application for NOC before the 2 nd respondent to establish a petroleum outlet in respect of which Ext.P1 Letter of Intent was issued to the appellant, on 02.09.2019. The distance between the school compound wall and the dispensing unit etc., when calculated, the least distance was 19.10 metres. At the time of submitting Ext.P2 application by the 4 th respondent, the minimum distance stipulated from schools, hospitals and designated residential areas to the outlet was three metres. But from 07.01.2020 onwards, by Ext.P13 revised guidelines issued by the Central Pollution Control Board, it was mandated to maintain a radial distance of 50 metres from the schools, hospitals and designated residential areas, which would be reduced to 30 metres in case of constrains in providing 50 metres distance on implementation of additional safety measures as specified by PESO. But from 07.01.2020 onwards, by Ext.P13 revised guidelines issued by the Central Pollution Control Board, it was mandated to maintain a radial distance of 50 metres from the schools, hospitals and designated residential areas, which would be reduced to 30 metres in case of constrains in providing 50 metres distance on implementation of additional safety measures as specified by PESO. The siting criteria as per Ext.P13 need not be applied if the outlet satisfies the twin conditions in Ext.P15 official memorandum dated 29.01.2021 issued by the Central Pollution Control Board. The site of the appellant satisfies the 1 st criteria in Ext.P15, and it is impossible to comply with the 2 nd criteria since the construction could not be started without the issuance of NOC. The Rule existed till Ext.P13 was changed due to the delay on the part of the authorities concerned in taking proper steps and issuing NOC within time as stipulated under Rule 144(5) of the Petroleum Rules, 2002, and hence the benefit of Ext.P15 Office Memorandum shall be given to the appellant. 10. On the other hand, the learned Senior Government Pleader, the learned Standing Counsel for the Pollution Control Board and the learned Central Government Counsel would submit that the twin conditions mentioned in Ext.P15 Office Memorandum does not apply to the case of the appellant since the construction did not begin and hence the appellant cannot claim the benefit of Ext.P15 Office Memorandum. It is the rules that existed as on the date of consideration of the application and not the date of submission of the application that have to be taken into consideration. Therefore, there is no illegality in the judgment of the learned Single Judge. The learned Standing Counsel for the 4 th respondent supported the appellant. The learned Standing Counsel for the 7 th respondent submitted that no application has been submitted before the Panchayat for permit under the Kerala Panchayat Building Rules, and hence the Panchayat has no role in the matter. 11. The learned Standing Counsel for the 4 th respondent supported the appellant. The learned Standing Counsel for the 7 th respondent submitted that no application has been submitted before the Panchayat for permit under the Kerala Panchayat Building Rules, and hence the Panchayat has no role in the matter. 11. Rule 144 of the Petroleum Rules, 2002, under which the NOC was sought by the 4 th respondent, reads thus: “(1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new licence other than a licence in Forms III, XI, XVII, XVIII, or XIX shall apply to the District Authority with two copies of the site-plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate in the proforma specified in sub-rule (7) to the applicant who shall forward it to the licensing authority with his application Form IX. Note.-- The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence. (2) Every certificate issued by the District Authority under sub- rule (1) shall be accompanied by a copy of the plan of the proposed site duly endorsed by him under his official seal. (3) The Chief Controller or the Controller as the case may be, may refer an application not accompanied by certificate granted under sub-rule (1) to the District Authority for his observations. (4) If the District Authority, either on a reference being made to him or otherwise, intimates to the Chief Controller or the Controller as the case may be, that any licence which has been applied for should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government. (5) The District Authority shall complete his inquiry for issuing No OBJECTION CERTIFICATE (NOC) under sub-rule (1) and shall complete the action for issue or refusal of the NOC, as the case may be, as expeditiously as possible but not later than three months form the date of receipt of application by him. (5) The District Authority shall complete his inquiry for issuing No OBJECTION CERTIFICATE (NOC) under sub-rule (1) and shall complete the action for issue or refusal of the NOC, as the case may be, as expeditiously as possible but not later than three months form the date of receipt of application by him. (6) Where the location of storage of petroleum is within the notified area of a Port or Airport or Railways under the control of the State, or establishment of Indian Space Research Organisation or Department of Atomic Energy, No Objection Certificate from the District Authority referred to in sub-rules (1) to (5) shall not be required: Provided that consent for establishment of petroleum storage from the competent authority of concerned notified area or head of the establishment, as the case may be, is obtained. (7) The district authority shall issue a no objection certificate in the following pro forma, namely – Pro forma (1) The following particulars have been considered while issuing this no objection certificate, that— (a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b) interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning; (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f)genuineness of purpose. (g) any other matter pertinent to public safety; Signature of the district authority issuing no objection certificate with his office seal (in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police and for any other place the District Magistrate) Note.-- The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence”. 12. As per the requirements in the aforementioned Rule, comments from other stakeholders mentioned in Rule 144(7)(1)(a) to (e) is necessary for granting NOC. In the instant case, Exts.P6 and P8 reports produced along with the writ petition raises objection regarding the siting requirements on the basis of the distance criteria from the nearby school. 12. As per the requirements in the aforementioned Rule, comments from other stakeholders mentioned in Rule 144(7)(1)(a) to (e) is necessary for granting NOC. In the instant case, Exts.P6 and P8 reports produced along with the writ petition raises objection regarding the siting requirements on the basis of the distance criteria from the nearby school. Admittedly, Ext.P2 application for NOC submitted by the 4 th respondent for starting a petroleum retail outlet on the basis of Ext.P1 Letter of Intent granted to the appellant was not allowed till 07.01.2020, the date on which Ext.P13 revised guidelines issued by the Central Pollution Control Board came into operation. 13. The appellant is claiming the benefit of Ext.P15 Office Memorandum and states that in the light of the said stipulations in Ext.P15, the siting requirements stated in Ext.P13 guidelines does not apply to her. The clarification given in Ext.P15 Office Memorandum pertaining to Ext.P13 site requirements reads thus: “In this regard, it is clarified that the siting criteria for new Retail outlets is to be complied with in cases where construction of Retail outlets by oil Marketing Companies commenced on or after 07.01.2020. ln other words, the siting criteria will not apply to those cases where PESO prior clearance/ initial approval has been obtained and subsequently construction has been started by the OMC before 07.01.2020.” 14. The reading of Ext.P15 would show that it is a relaxation to the general distance criteria stated in Ext.P13 revised guidelines. But as observed by the learned Single Judge, the said relaxation is made with the intention to protect persons who have invested huge amounts for construction, taking into account the distance criteria of three metres, on the legitimate expectation that they will get NOC under the Petroleum Rules. It may be true that one of the conditions in Ext.P15 Office Memorandum may be unworkable due to the stipulations in the building rules under the Kerala Panchayat Building Rules. But that will not give any right to the appellant to claim that when one condition is not possible to be complied with due to particular rules in existence, the benefit of the remaining condition alone shall be given to her. But that will not give any right to the appellant to claim that when one condition is not possible to be complied with due to particular rules in existence, the benefit of the remaining condition alone shall be given to her. Since the distance from the proposed petroleum outlet to the neighbouring school is within the prohibited limits, we find no illegality or impropriety in the impugned judgment of the learned Single Judge that the appellant is not entitled to establish the petroleum outlet by relaxing the stipulations in Ext.P13 revised guidelines. Therefore, we find no ground to interfere with the impugned judgment of the learned Single judge. In the result, this writ appeal stands dismissed.