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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
WP(C).No. 5625 of 2012 (C)
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PETITIONER(S):
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1. THE QUILON DISTRICT PETROLEUM DEALERS ASSOCIATION,
AFFILIATED TO ALL KERALA PETROLEUM TRADERS,
PETRO BHAVAN, ROOM NO. 19,
MUNICIPAL STADIUM COMPLEX,
REPRESENTED BY ITS SECRETARY.
2. S. MURALIDHARAN,
PROPRIETOR, MURALI FUELS,
PUTHOOR P.O. KOLLAM.
3. MYTHANAM VIJAYAN,
PROPRIETOR, MYTHANATH FUELS,
KALLELIBHAGOM P.O., KARUNAGAPPALLY,
KOLLAM- 695 546.
BY ADV. SRI.ALIAS M.CHERIAN.
RESPONDENT(S):
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO DEPARTMENT
OF MINES & FUELS, SECRETARIAT, NEW DELHI-110 001.
2. KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS SECRETARY, PATTOM,
THIRUVANANTHAPURAM-695 004.
3. ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, KOLLAM -691 001.
WP(C).No. 5625 of 2012 (C)
4. INDIAN OIL CORPORATION LTD.,
DIVISIONAL OFFICE, PANAMPILLYAVENUE,
PANAMPILLYNAGAR, ERNAKULAM-682 036,
REPRESENTED BY ITS GENERAL MANAGER.
R1 BY ADV. SRI.N.NAGARESH, ASSIST. S.G. OF INDIA.
R2 & R3 BY ADV. SRI. M.AJAY, SC.
R4 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-10-2014, ALONG WITH WP(C).NO.13835 OF 2012 AND
CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
rs.
WP(C).No. 5625 of 2012 (C)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE NOTICE NO.PCB/KO/G/14/2010 DATED 15/02/2012
ISSUED TO THE 2ND PETITIONER.
EXT.P2 COPY OF THE NOTICE NO.PCB/KO/G/14/2010 DATED 15/02/2012
ISSUED TO THE 3RD PETITIONER.
RESPONDENT'S EXHIBITS:-
EXT.R3A COPY OF THE CIRCULAR SUBJECT TO THE DELEGATION OF
POWERS DATED 22/04/2010.
EXT.R3B COPY OF THE MINUTES OF MEETING.
EXT.R3C COPY OF THE LETTER DATED 28/01/2012.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
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W.P.(C).Nos.5625/2012, 13835/2012,
5956/2013, 2079/2014, 13341/2014 & 15334/2014
~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 20th day of October, 2014
J U D G M E N T
These batch of writ petitions are filed by petroleum dealers, prospective petroleum dealers and also federation of the dealers named the All Kerala Federation of Petroleum Traders, challenging insistence of consent of the Pollution Control Board (PCB) to establish or operate petroleum outlets.
2. In exercise of powers conferred by Section 64 of the Water (Prevention and Control of Pollution) Act, 1974 the Government of Kerala in consultation with the State Pollution Control Board promulgated Water (Prevention and Control of Pollution) Rules 1976. In the Rules, industries are categorised into Red, Orange and Green based on pollution potential. Among the list W.P.(C).No.5625/2012 and connected cases -:2:- against Orange category, entry 26 is related to petroleum products/crude oil storage and transfer excluding cross-country pipeline. The Central Pollution Control Board issued guidelines for Management of Consent and Authorisation to be followed by all the PCBs in the States. As per clause 10(1) of the guidelines, consent of the PCB has to be obtained for industries categorised in red, orange and green categories.
3. The Board in its meeting held with the major petroleum products company decided to direct the petroleum company that all their dealers should have clearance from PCB.
4. In W.P.(C).No.13835/2012, a communication issued by the Chairman of PCB to the All Kerala Federation of Petroleum Traders is produced. This communication (Ext.P2) insist that all dealers shall obtain consent. It is aggrieved by insistence of such consent, these writ petitions are filed by the writ petitioners. There are two fold challenge against W.P.(C).No.5625/2012 and connected cases -:3:- insistence of consent. First challenge is that dealer is not the owner of petroleum retail outlet and therefore, the responsibility is on the oil company to provide such mechanism in the dealer's outlet and cost has to be borne by the company themselves. Second ground of challenge is that no pollution is caused by operation of petroleum outlets and therefore, without conducting any study regarding pollution, insistence of consent by PCB amounts to infringement of their right to carry business.
5. The dealers' case is that they are operating the petroleum retail outlets on commission basis and they have no legal ownership on the outlets to cast liability upon them other than operating outlets based on the commission basis. It is further submitted that outlets belong to company and the company is free to cancel the dealership.
6. Whatever may be the relationship between the company and dealers, in law an occupier of premises has a responsibility. This responsibility cast a liability W.P.(C).No.5625/2012 and connected cases -:4:- on him for any omission or commission arising out of that responsibility for control of mischief. The liability in law is not based on the legal interest such as title, possession etc. over the property. On the other hand, liability is based on the duty owed to control the mischief. Therefore, any person who has control over the premises is legally liable to comply with any norms prescribed by the PCB. The effort of PCB is to prevent occurring of any mischief on account of operation of activities in the premises. The consent is insisted to prevent pollution. This, obviously, is intended to protect the life of others, who may otherwise will be affected based on escape of mischief. Thus, every dealer whatever may be their relationship with the oil company, they are bound to obtain consent.
7. The learned Senior Counsel Shri K.Jaju Babu appearing for the petitioners in W.P.(C).No.13835/2012 submits that if at all they are required to comply with W.P.(C).No.5625/2012 and connected cases -:5:- the directions in regard to obtain consent of the Board, the costs shall be borne by the Oil Company.
8. I am of the view that the dealers are free to take up the matter with the company in appropriate manner for claiming reimbursement of costs.
9. The other challenge in the writ petitions is that no pollution is caused by the operation of the petroleum outlet. There is no dispute in regard to classifying petroleum products as an industry of orange category. In the absence of any challenge regarding classification of petroleum products as an orange category industry in the Water (Prevention and Control of Pollution) Rules, 1976 this argument is unsustainable.
10. In view of the above, these writ petitions are disposed as follows:
i) The dealers shall be given at least three months time to comply with direction of PCB to obtain the consent.
W.P.(C).No.5625/2012 and connected cases -:6:-
ii) If any of the dealers make a request for reimbursement, such request shall be considered by the oil company within two months from the date of such request.
No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms