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Judgment
T.R.Ravi, J
The petitioner has been granted Ext.P1 letter of intent by the 5th respondent for establishing a petroleum retail outlet in a property on the side of Erattupetta-Teekoy-Vagamon road in Kottayam district. The petitioner submitted Ext.P2 application before the 1st respondent for grant of NOC, as required under the Petroleum Rules. During the pendency of the said application, the respondents 2 to 4 rejected the petitioner's application for lay out approval and building permit as per Exts.P11 to P13 orders. Ext.P11 is the letter from the 2nd respondent to the petitioner stating that 30 Metres to the east of the plot where the outlet is sought to be started, there are road bends and considering Rule 5(6)(1)(a) of the Kerala Panchayat Building Rules, 2019, the constructions to be effected in the plot can affect smooth flow of traffic. Ext.P12 is the letter from the 4th respondent to the 1st respondent wherein it is stated that the application submitted by the petitioner was considered by the Panchayat Committee and the Sub Committee authorised the Secretary to take a decision on the aspect. The 4th respondent referred to Ext.P11 letter from the 2nd respondent and informed the 1st respondent that the application for approval of the lay out cannot be granted. By Ext.P13, the 4th respondent informed the petitioner about the above aspect. The 1st respondent has thereafter issued Ext.P14 on 13.10.2020. The 1st respondent has taken note of the fact that the District Police Chief, Kottayam, the Tahsildar, Meenachil, the Regional Fire Officer, Fire and Rescue Services, Kottayam and the Executive Engineer, PWD, Kottayam have all conveyed that they have no objection for setting up of the petroleum retail outlet. The 4th respondent has, based on the letter Ext.P11 stated that the lay out approval cannot be granted considering Rule 5(6)(1)(a) of the Kerala Panchayat Building Rules, 2019. The 1st respondent has finally rejected the NOC solely on the ground that the District Town Planner has noticed that there will be difficulty for smooth vehicular traffic if the petroleum outlet is permitted. The petitioner has challenged Ext.P14 notice in this writ petition.
The petitioner points out that as far as the road safety aspect is concerned, the PWD Engineer who is the person who is competent to opine about it, has reported that the property has sufficient siting distance and there is no reason to apprehend that curves 40 Metres away may cause accidents. Respondents 3 and 4 have filed a counter affidavit and the 2nd respondent has filed a statement, justifying their actions. According to them, Rule 5(6)(1)(a) of the Kerala Panchayat Building Rules does not warrant issuance of a lay out approval.
Rule 144 of the Petroleum Rules reads thus;
“144. No objection certificate. - (1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new license other than a license in Form 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 license for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who shall forward it to the licensing authority with his application in Form IX.
(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 license which has been applied for should not, in his opinion, be granted, such license 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 from 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 form 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 proforma, namely:-
xxxxx xxxxx xxxxx
It can be seen from the above Rule that it is the District Authority which must consider the application for NOC and there are guidelines as to how the said function is to be performed. What is required is to confine the evaluation to the facts which are relevant from the point of view of the Petroleum Rules. The NOC is to be issued in a proforma which spells out the aspects that have to be considered. One such aspect is the traffic density and the impact on traffic. Such works can at best be considered by the Engineer attached to the PWD Roads Division rather than by the District Town Planner, who is more concerned with Town Planning Activities and other similar issues. As such, Ext.P14 order which relies on Ext.P11 letter from the District Town Planner regarding free flow of traffic, overlooking the opinion submitted by the PWD Engineer is not sustainable, since the order is without taking into consideration the relevant aspects. The petitioner is entitled to succeed in this writ petition.
In the result, the writ petition is allowed. Ext.P14 is quashed. The 1st respondent is directed to reconsider the application for NOC in accordance with Rule 144 and 151 of the Petroleum Rules and taking into consideration the view of the Engineer, Public Works Department regarding the issue of free flow of traffic. Necessary orders shall be issued after hearing the petitioner within six weeks from the date of receipt of a certified copy of this judgment.