K. Natarajan, J.

1. W.A No. 1742 of 2022 is filed by the Town Planner, Kannur as against the judgment dated 06.10.2022 passed by the learned single Judge of this Court in W.P.(C) No. 26853 of 2022.

2. Whereas, W.A No. 1482 of 2022 is filed by the Kuthuparamba Municipality, Kannur as against the same judgment passed by the learned single Judge of this Court as stated above.

3. We have heard the arguments of Smt. Deepa K.R, learned Special Government Pleader, Sri. K.P Harish, learned Standing Counsel appearing for the Kuthuparamba Municipality, Sri. Jason Manavalan, learned Standing Counsel appearing for the Indian Oil Corporation Ltd., Sri. Govind G. Nair and Sri. Krishna Prasad, the learned counsel appearing for the respondents.

4. The case of the parties before the learned single Judge of this Court is that the 1st respondent, who is the writ petitioner, is said to be running a retail dealership of petrol bunk operated under the respondent No. 2, Indian Oil Corporation (IOC) within the territorial limits of Kuthuparamba Municipality (hereinafter referred to as ‘Municipality’) and obtained the letter of intent from the IOC and was running the outlet from 2009 onwards. Subsequently, there was a leakage in the tank containing the motor spirit (petrol) and at the instruction of IOC after inspection, the petitioner is said to be constructing an outer concrete wall to insert the storage tank. When the work was in progress, the Municipality issued Ext.P4 notice for stopping the construction, contending that no permission was obtained for the construction and contended that there is a master plan for widening the Kannur-Coorg road. Therefore, the petitioner has approached this Court for quashing the notice issued by the Municipality.

5. A rival contention was raised by the Municipality that constructing a new concrete tank without obtaining necessary approval as required under the Kerala Municipality Building Rules, is a violation of the Rules and therefore, the Municipality is justified in taking action and stopping the construction.

6. Whereas, the learned counsel appearing for respondent Nos.3 and 4 in W.A. No.1482 of 2022 who are the landlords, also objected the construction and he also raised a contention that no permission was obtained from the licensing authority as per Rule 146(1) of Petroleum Rules, 2002. Considering the aspect, the writ petitioner has strenuously contended that an exemption is provided under Rule 47(1) of Kerala Municipality Building Rules, 2019 (hereinafter referred to as ‘KMBR’), which stipulates that the location and or construction of fuel tank and vent-pipe shall be governed by the provisions of the Petroleum Rules,2002, and therefore, the question of obtaining permission from the Municipality for relocating the tank does not arise. Considering the above aspect, the learned single Judge of this Court quashed the notice issued by the Municipality as per Ext.P4 and Ext. R2(f).

7. Being aggrieved by the said judgment, two separate appeals were filed by the Municipality as well as the Town Planner, Kannur after obtaining leave of this Court. The learned Standing Counsel for the Municipality strenuously contented that even though Rule 47(1) of KMBR provides for exemption, the re-location of the construction or the change in the location of the fuel tank necessarily require the building permission of the Municipality, admittedly which was not obtained. It is contented that Petroleum Rules, 2002 do not override the provisions of the Kerala Municipality Building Rules/Kerala Panchayat Building Rules. Therefore, granting exemption from obtaining permission from the concerned authority would amount to violation of the Building Rules. Therefore, the judgment under challenge is liable to be set aside and accordingly, prayed for allowing the appeal.

8. On the same line, the learned Special Government Pleader appearing for the Town Planner, Kannur in W.A No. 1742 of 2022 contented that for the purpose of any construction, they have to obtain permission from the Municipality and there is a master plan prepared by the Town Planner and there is a proposal of widening of Kannur-Coorg road for 32 meters as proposed. Therefore, if the construction is permitted, it will affect the master plan and therefore, without obtaining permission under the KMBR, they cannot be allowed to proceed with construction. Hence, he prayed for setting aside the judgment.

9. Per contra, the learned counsel appearing for the first respondent/writ petitioner submitted that the very appeal itself is not required to be dealt with as the 1st respondent already vacated the premises and the landlords have already obtained an order from the learned single Judge of this Court in another writ petition wherein the 1st respondent was directed to vacate the premises and the same was also challenged by the 1st respondent before the Hon’ble Supreme Court by filing the SLP which came to be dismissed and confirmed the order of vacating the premises. Accordingly, the 1st respondent vacated the premises.

10. The learned counsel for 1st respondent further contented that he was the actual licensee who obtained licence from the IOC, ie, the 2nd respondent herein and he was running the outlet since 2009. In view of the judgment dated 04.12.2024 passed by this Court in W.P. (C) No. 38439 of 2018 and connected case, the business has been stopped and there is no further construction. Hence, prayed for dismissing the appeals.

11. The learned Standing Counsel appearing for 2nd respondent, Indian Oil Corporation, vehemently supported the judgment of the learned single Judge of this Court contenting that as per Section 31 of the Petroleum Act, 1934, a restriction was imposed on the local authorities with respect to prescribing specifications relating to the petroleum licence and based on the Petroleum Act, 1934 the Kerala Municipality Building Rules 2019 were framed and an exemption was provided under Rule 47(1) of the KMBR. Therefore, the specifications relating to the location of fuel tank fall within the purview of the provisions of Petroleum Rules, 2002 and therefore the licensing authorities has the power to determine the location of the fuel tank within the premises and therefore, there is no requirement to obtain any permission from the Municipality or the Town Planner for installing the fuel tank within the licenced premise wherein the 1st respondent has already operating the petrol outlet under the licence granted by the 2nd respondent. On these grounds, the learned Standing Counsel prayed for dismissal of the appeal.

12. The learned counsel for respondents 4 and 5, who are owners of the premises, also contented that they had specifically raised an objection in their counter affidavit that for relocating the fuel tank, permission from the licensing authority is mandatory under Rule 146(1) of the Petroleum Rules,2002 but, the same was not obtained. The learned single Judge has not rendered any findings on this specific objection raised by respondents 4 and 5 and therefore, the judgment under challenge is not sustainable. However, in view of the subsequent change in the circumstances, respondents 4 and 5 themselves filed a writ petition and got eviction of the petrol bunk from the said premises and the same was upheld by the Hon’ble Supreme Court.

13. The learned counsel for respondent Nos. 1 and 2 submitted that no prior permission is required from the licensing authority for replacing a leaking tank in an alternate location within the licensed premises and hence, they prayed for dismissal of the appeal.

14. Having heard the arguments and perused the records, the questions that arise for our consideration are:-

                  1) whether the Petroleum Act ,1934 and Petroleum Rules, 2002 overrides the Kerala Municipality Building Rules and Kerala Panchayat Building Rules?

                  2) whether the judgment under challenge calls for interference?

15. On perusal of the records, it is an admitted fact that the 1st respondent is running the petrol outlet under a licence issued by IOC, ie, the 2nd respondent herein. It is also not in dispute that the said outlet has been in operation since 2009. In ordinary course, under the KMBR, permission from the Municipality or Panchayat is mandatory for carrying out any construction and even for commencing any business.

16. However, insofar as the operation of a petrol outlet and the location of the fuel tank are concerned, the Petroleum Rules, 2002 specifically empowers the regulatory authority or the licensing authority under the Petroleum Rules, 2002 to locate the premises for petrol tank. Even the appellants have not produced any document to show that the respondents 1 and 2 have obtained any prior permission from the Municipality prior to the commencement of the petrol outlet before construction of the petrol tank.

17. On the other hand, the District Collector, who is the competent authority to issue ‘No Objection Certificate’ for running the petrol bunk, who is required to verify and obtain a report from the concerned Municipality or Panchayat while issuing such NOC. Therefore, we need not delt into the aspect relating to the commencement of the petrol bunk business by respondents 1 and 2 in the premises belonging to respondent Nos. 3 and 4 in W.A. No. 1482 of 2022. It is the specific case of the first respondent that there was leakage of petrol from the tank, which was brought to the notice of the IOC. The officials of the IOC visited the site and issued instructions to take necessary safeguards, including the construction of a safety wall around the petrol tank and, alternatively, shifting the tank within the licensed premises.

18. In paragraph 6 of the statement filed by the second respondent herein, ie, Indian Oil Corporation, it is categorically stated that the proposal to replace the MS storage tank in an alternate position within the licensed premises does not amount to an ‘alteration’ within the meaning of the Petroleum Rules and, as such, no prior permission of the licensing authority or the controlling Authority is required for replacing a leaking tank in an alternate position within the licensed premises. According to the IOC, being the controlling authority is that, there is no necessity to seek any prior permission for effecting such change within the licensed premises. Therefore, the contention of the landlord that permission under Rule 146(1) of the Petroleum Rules, 2002 is required, cannot be sustained as there is no change in the place of running the business, but only a relocation of the storage tank within the licensed premises. Consequently, the contention raised by respondents 3 and 4, namely the landlords, also cannot be acceptable.

19. That apart, in view of the subsequent events, the landlords have already got the premises vacated by filing a writ petition before the High Court, which was upheld by the Hon’ble Supreme Court. At present, the business in the premises in question has been stopped and, therefore, there is no necessity to go into that aspect any further. Accordingly, the only legal issue arises before us is that for consideration is whether Rule 146(1) of the Petroleum Rules, 2002 has an overriding effect over the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules. In this regard, it is necessary to refer to Section 31 of the Petroleum Act, 1934, which reads as follows:

                  “31. Power to limit powers of local authorities over petroleum.—Where any enactment confers powers upon any local authority in respect of the transport or storage of petroleum, the Central Government may, by notification in the Official Gazette,—

1. limit the operation of such enactment, or