The Madras High court recently dismissed a petition moved by a school challenging grant of NOC to Hindustan Petroleum Corporation Limited, for opening of a fuel pump adjacent to its building.
The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala opined that the contentions raised in the challenge were not maintainable. The court however directed HPCL to ensure that all the necessary safety measures were observed while operating the retail outlet and no inconvenience should be caused.
The bench observed as under:
The third respondent is directed to ensure that while establishing and even operating the retail outlet, they shall observe all safety measures and, at the same time, regulate the traffic to have access to the retail outlet, so that it may not cause any inconvenience to anyone. All measures should be taken to ensure that the traffic shall not affect the entry and exit of the students to and from the school. The third respondent should make adequate security arrangements to take care of the aforesaid, while operating the retail outlet.
The petitioners contended that the establishment of petroleum retail outlet would otherwise affect the operation of the school and the lives of the children would be put in danger, for the reason that the licence as well as the site plan have been approved in ignorance of the fact that adjoining the wall of the school, the retail outlet would be established.
The petitioner submitted that the No Objection certificate was issued ignoring the fact that the provisional approval of the NHAI had expired on 2019. It was also submitted that the land in question was an agricultural/ wetland and necessary approvals required for its conversion and use for commercial purpose was not taken.
The petitioner submitted that the guidelines of Road Ministry were also ignored while granting the NOC. The no-objection certificate could not have been granted for the reason as it would be within 100 metres from the intersection of road.
The petitioner further contended that necessary discussion on each issue to show the application of mind was not done and for that reason Rule 144 of the Petroleum Rules, 2002 was violated. A reference was also made to Code of Regulations for Play Schools, 2015 which stipulates that the school cannot be located within 100 meters of a petrol bunk.
The petitioner also referred to the Office Memorandum dated 7.1.2020 issued by the Central Pollution Control Board to indicate that a new retail outlet shall not be located within a radial distance of 50 metres from the schools, hospitals and residential areas designated as per the local laws. In case of constraints in providing 50 metres distance, the retail outlet shall implement additional safety measures as prescribed by PESO.
With respect to the first challenge, the Court observed that the approval of the NHAI was not for establishment of a retail outlet but to seek permission to construct culvert and approach road for access to the retail outlet from the Highways through the service road. Hence this challenge would not stand as the same was out of reference to the issue on hand.
With respect to the second challenge, the respondents submitted documents to indicate that the provisions of the Tamil Nadu Town and Country Planning Act, 1971 have been complied with. The permission was to use the wet land as residential plots and for multiple alternative purposes, as could be borne out by a reference to paragraph (18) of the no-objective certificate dated 19.7.2018 issued by the District Collector, Kancheepuram. The court was satisfied and held that the ground would not stand.
With respect to the third ground, the Court noted that guidelines of MORTH would not be applicable if the retail outlet is brought on the service lane, but would apply only when it is established on the national highways. Thus the court was satisfied that the challenge on this ground would not stand.
The court also held that mere absence of discussion was not a ground for nullifying the no objection certificate. The court observed as under:
"When no-objection certificate has been issued in the proforma given under the Rules of 2002 itself, then it cannot be nullified on the ground that there exists no discussion on the issue for grant of no-objection certificate, when it is not mandated in the Rules of 2002.The proforma is now part of the Rules and if no-objection certificate has been issued based on it, the statutory requirement gets satisfied. "
The court also held that the Regulations of 2015 were applicable for opening of play school and not for opening of retail outlets. It held that a special legislation to seek approval for opening of a play school cannot be applied against another special legislation for establishing a retail outlet in view of the Rules of 2002. The court also observed that the Petitioner had not produced any document to show that their school was a play school.
The court further agreed with the contention of the respondent that the office memorandum dated 07.01.2020 in question did not apply to the present case as the no objection certificate was obtained in the year 2019.
Case Title: St. Mary's Matriculation Higher Secondary School v. .The Secretary, Ministry of Petroleum and others
Case No: W.P.Nos.4321 of 2020
Citation: 2022 LiveLaw (Mad) 273
Counsel for the Petitioner: Senior Advocate Mr.Father Xavier Arulraj