Pragathi Nagar Welfare Association and Others vs Municipal Corporation of Hyderabad and Others

Immaneni Panduranga Rao, J.—The above two writ petitions are inter-connected. The sole petitioner in W.P.No. 3865/91 who is the proprietor of M/s. Vamsi Enterprises and who is impleaded as the second respondent in W.P.No. 18260/88 (hereinafter referred to as "the petitioner") has taken on lease a part of plot No. 61 in a locality called Pragathi Nagar Colony and applied for shifting of his business as a wholesale dealer in kerosene from a locality called Venkatagiri. He applied for licence and permission to the Commissioner of Police, Controller of Explosives, Municipal Corporation of Hyderabad and other authorities. The Controller of Explosives, Government of India, Nagpur and the Commissioner of Police, Hyderabad granted permission. All the required formalities have been complied with by the petitioner. At that stage, the Pragathi Nagar Colony Welfare Association (for short "the Welfare Association) represented by its President and three other residents of Pragathi Nagar Colony filed W.P. No. 18260/88 seeking a writ of Mandamus prohibiting the Municipal Corporation of Hyderabad from issuing licence and directing the petitioner and his wife not to instal any kerosene tank for the purpose of storing kerosene in plot No. 61, Pragathi Nagar Colony. The Welfare Association obtained interim orders dated 7-12-1988. The petitioner filed a petition to vacate the stay and by an order dated 30-12-1988 Ramaswamy, J., (as he then was) vacated the interim stay with an observation that the licences obtained for starting the business will be subject to the result of the writ petition. Challenging that order, the Welfare Association preferred W.A.No. 15 of 1989 which is still pending. The Division Bench while admitting the writ appeal directed status quo to be maintained. While so, the Deputy Commissioner of Police, West Zone, Hyderabad issued a show-cause notice dated 14-3-1989 to the petitioner asking him to show cause as to why the no objection certificate issued in his favour should not be cancelled. The petitioner offered his explanation dated 23-3-1989. Thereafter, the no objection certificated dated 29-9-1988 issued in favour of the petitioner was cancelled on 27-4-1989. Challenging that order, the petitioner preferred a statutory appeal under Rule 155 of the Petroleum Rules (for short "the Rules") to the Government of Andhra Pradesh. The hearing took place on 21-l-1991 and the appeal was dismissed on 25-2-1991. The petitioner filed W.P.No. 3865 of 1991 for issue of a writ of Certiorari quashing the proceedings of the Government contained in Memo.No. 59243/CS-II/89 dated.25-2-1991 confirming the proceedings of the Commissioner of Police dated 27-4-1989.

The learned counsel for the petitioner submitted that when the petitioner applied for permission to the Commissioner of Police, the concerned Assistant Commissioner of Police made an inspection and submitted a report to the Deputy Commissioner of Police on 30th July, 1988 basing on which, a no objection certificate was issued in his favour; that the Chief Controller of Explosives, Nagpur also gave permission; that the allegation in the show-cause notice that the petitioner has suppressed facts is erroneous and that the ground on which the no-objection certificate is cancelled viz., that the petitioner has not filed the no-objection certificates from the neighbours is misconceived. The further compliant of the learned counsel for the petitioner is that when the petitioner has preferred an appeal to the Government, the Government gave new reasons for confirming the order of the Commissioner of Police, which is illegal.

The contention of the learned counsel for the Welfare Association (first petitioner in W.P.No. 18260 of 1988) is that the wife of the petitioner having purchased plot No. 61 in Pragathi Nagar Colony has applied for approval for sanction of lay-out to the Municipal Corporation of Hyderabad; that subsequently alleging that she has leased out half extent of her plot to the petitioner under an oral lease; that the petitioner has applied for permission stating that he has to shift his business as wholesale dealer in kerosene to a part of plot No. 61 belonging to his wife; that the lay-out was sanctioned only for the purpose of residential area; that one of the conditions for allotment of a plot in Pragathi Nagar Colony is to construct a residential building in the plot allotted and that the petitioner cannot be allowed to construct a huge tank for storing kerosene which is contrary to the permission granted by the Municipal Corporation in the lay-out plan. He further submitted that the petitioner, by not disclosing the public roads or the high-tension wires situated within a distance of 100 metres from plot No. 61 and enclosing a no-objection certificate from his wife has played fraud upon the Commissioner of Police in obtaining a no objection certificate. Because of the fraud played by the petitioner and the suppression of facts, the learned counsel argued, the no-objection certificate was cancelled by the Commissioner of Police. The learned counsel for the Welfare Association argued that the appeal preferred to the Government was also duly considered and dismissed and as such, the petitioner has no right to store kerosene in a part of plot No. 61 which is a highly inflammable liquid.

To appreciate this contention, a reference to the order dated 27-4-1989 of the Commissioner of Police is necessary. In paragraph 3 of the order, the reason given by the Commissioner of Police for canceling the no-objection certificate dated 20th September, 1988 is not that the petitioner has suppressed facts or played fraud, but is that the petitioner has not submitted the no-objection certificates from the neighbours which are very much required under Rule 131(3) of the Rules of 1976 and hence, the explanation submitted by the petitioner is not convincing. This reason given by the Commissioner of Police is not correct because Rule 131 of the Rules does not lay down that the no objection certificates from the neighbours should be enclosed along with the application. What all Rule 131(3) of the Rules says is that the application should specify the surroundings and all protected works lying within 100 metres of the edge and all facilities which are proposed to be provided. The learned counsel for the Welfare Association submitted that though Rule 131 of the Rules does not, in terms, specify that the no-objection certificates of the neighbours should be enclosed to the application, a practice has developed that no-objection certificates from the neighbours should be filed along with the application.

The above submission of the learned counsel for the Welfare Association !hat a practice as developed that no-objection certificates of the neighbours should be furnished, even assuming to be true, cannot be a valid ground for rejection of the no-objection certificate once issued by the Deputy Commissioner of Police. The reason given by the Commissioner of Police that because the petitioner has not submitted the no-objection certificates from the neighbours which are very much required under Rule 131(3) of the Rules, he has cancelled the no-objection certificate dated 20th September, 1988 is contrary to the Rules. If really there was the practice of filing the no-objection certificates of the neighbours, the Commissioner of Police or the Deputy Commissioner of Police who has issued the no-objection certificate must have insisted on that requirement before issuing the no-objection certificate. Having granted the no-objection certificate and thereby allowed the petitioner to spend money for the construction of a storage tank, the Commissioner of Police is not entitled to cancel the no-objection certificate basing on the ground which is not provided by Rule 131 itself. The cancellation of the no-objection certificate by the Commissioner of Police is, therefore, erroneous and illegal.

While interpreting Rule 144 of the Rules, the Supreme Court held in Yogesh Kumar and others Vs. M/s. Bharat Petroleum Corpn. Ltd. and others, that a no-objection certificate granted under Rule 144 of the Rules can be cancelled wherever the licensee ceases to have any right to use the site for storing petrol and that right could be lost by a licensee either by his tenancy or the right to use of the site coming to an end or for any other reason whereby, in law, the right to use the site for storing petrol ceases. In as much as the reason given by the Commissioner of Police for canceling the no-objection certificate is not that the petitioner cease to have a right to use the site for storing kerosene, I hold that the order of the Commissioner of Police is illegal and without jurisdiction.

Challenging the order of the Commissioner of Police, the petitioner has preferred a statutory appeal to the Government. By order dated 24-2-1991, the ex-officio Principal Secretary to the Government, Food and Agriculture (CS-II) Department has dismissed the appeal, observing that after having inspected the site in Pragathi Nagar colony and after hearing the case the Principal Secretary to the Government has concluded that it would be prejudicial to the interests of the public to permit the appellant (petitioner) to install a kerosene tank in the site applied for, as it is surrounded by residential houses. The fact of the site in question being surrounded by residential houses is not a ground for canceling the no-objection certificate. It is stated that before issuing the no-objection certificate by the concerned Deputy Commissioner of Police, the Assistant Commissioner of Police has inspected the site and submitted a report. Therefore, the fact that the site in question is located in a residential locality is neither a fact suppressed by the petitioner nor is it a fact not known to the concerned police authorities before issuing the no-objection certificate. Inasmuch as there is no allegation that the petitioner who is the licensee, ceased to have any right to use the site for storing kerosene, I hold that the Commissioner of Police has no right to cancel the no-objection certificate. The dismissal of the appeal on a different ground and on a different reason is erroneous especially when such a reason is not warranted by the provisions of the Rules.

In Writ Petition No. 3865/91 the Commissioner of Police has filed a counter-affidavit stating that the Deputy Commissioner of Police has granted the permission by mistake. But that is not the ground on which the Commissioner of Police has cancelled the no-objection certificate by his order dated 27-4-1989. The order dated 27-4-1989 nowhere mentions that because the Deputy Commissioner of Police has granted permission by mistake, the Commissioner of Police has cancelled the no-objection certificate.

The learned counsel for the Welfare Association, which is impleaded as the third respondent in W.P.No. 3865/91 and which is the first petitioner in W.P.No. 18260/88, submitted that kerosene is a highly inflammable liquid; that it evaporates even at ordinary temperature and produces gases which result in air pollution; that when the lay-out was sanctioned only for residential purpose, the petitioner cannot be allowed to construct a huge storage tank for storing kerosene which is contrary to the permission granted by the Municipal Corporation and the lay-out plan and that-the petitioner has to obtain licence under the Rules. He submitted that the requirement that the protected works in the locality should be shown in the specifications and the plan is not an empty formality. According to him, there are houses of petitioners 2 to 4 in W.P.No. 18260/88, two roads and high tension wires which were not shown by the petitioner while submitting his application. The learned counsel for the petitioner contradicted that submission by stating that in the plan enclosed to the application, the petitioner has pointed out the roads, the existing buildings and other constructions situated within a distance of 100 metres on all the four sides of the site in which he has applied for permission for constructing the storage tank and that there is no suppression of facts. He stated that the high tension wires were not in existence at the time when the petitioner had applied for permission and therefore, the no-objection certificate issued by the Commissioner of Police cannot be cancelled.

The learned counsel for the Welfare Association vehemently argued that the authority competent to issue the licence must be satisfied that storing of kerosene is not harmful to the neighbours; that it is for the licensing authority to decide whether the installation of the storage tank in a residential locality is in the public interest; that the Principal Secretary who has disposed of the appeal has inspected the premises and came to a conclusion that it is not safe to grant the licence and that there is no error apparent on the face of the record warranting interference with the Government''s order. To contradict that submission, the learned counsel for the petitioner relied upon Section 521 of the Hyderabad Municipal Corporation Act which lays down that any article specified in part II of Schedule P in excess of the quantity of such article which may at any one time by kept in or upon the same premises without a licence is prohibited. Schedule P points out that the maximum quantity of petroleum which may be kept at any one time without a licence is prohibited and that it is only to store petroleum in excess of 10 gallons in quantity that a licence is required. The learned counsel for the petitioner submitted that since storing of petrol less than the quantity of 10 gallons even without a licence is permissible, there can be no objection for storing kerosene, which is not such a highly combustible substance as petrol. In support of his contention, he relied upon the certificate of safety issued by the competent authority under Rule 130 of the Rules to the effect that the kerosene storage tank of the petitioner has been constructed in accordance with the conditions of licence and Form 13 of the Rules and that the enclosure walls and embankment of the ground tanks are of such a nature and all the tanks have been so installed and secured as would ensure safety. He has also relied upon the certificate issued by the Divisional Fire Officer, Hyderabad stating that he has no objection for the petitioner running a wholesale kerosene dealership subject to certain conditions mentioned in his letter dated 22-12-1988. The above documentary evidence shows that the petitioner has constructed the enclosure walls and embankments as per the specifications so as to ensure safety as testified by the certificate of safety issued under Rule 130 of the Rules by the competent person. The submission of the learned counsel for the petitioner that the petitioner has obtained permission from the Department of Explosives, Government of India is not denied.

The learned counsel for the Welfare Association relied upon the decisions of the Supreme Court in M.C. Mehta Vs. Union of India (UOI) and Others, and AIR 1991 420 (SC) and argued that the Welfare Association is entitled to move the court in the nature of public interest litigation when the act of the petitioner amounts to bazard to the residents of Pragathi Nagar Colony. The right of the Welfare Association to file the writ petition may not be challenged by the petitioner. The learned counsel for the Welfare Association further relied upon the decision of the Supreme Court in Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, That is a decision where the right of the West Bengal Government to set apart a portion of the land occupied by the Zoological Park for construction of a five star hotel is challenged. While holding that in such a case, public interest litigation is permissible, the Supreme Court held that the order of the Government is not bad. The Supreme Court further held that in the matter of implementation, the court is competent to give appropriate directions. Following the above decisions, I hold that in the absence of any mala fides attributed to the Deputy Commissioner of Police in issuing the no-objection certificate in favour of the petitioner, that order cannot be interfered with for the reasons not provided by the statute. It is submitted that the petitioner has not yet obtained the licence as required under Rule 141 of the Rules. It is for the authority competent to issue the licence under the Rules to impose necessary safeguards for the safety of the residents of Pragathi Nagar Colony.

Subject to the above directions, W.P.No. 18260/88 is dismissed and W.P.No. 3865/91 is allowed. No costs. Advocate''s fee Rs. 300/- in each writ petition.