Vijeesh T.P.Vs State Of Kerala

Bechu Kurian Thomas, J.

Petitioner intends to start a petroleum retail outlet in Re-Survey No.53/11 of Naduva Village, Tirurangadi Taluk, Malappuram District. The proposal hit a hurdle when his application for approval of layout was refused by the Town Planner, alleging that the the outlet is at a curve and the stopping site distance is not available for the entry and exit of vehicles into the petrol pump. Petitioner challenges the communication issued by the second respondent, rejecting his application for layout approval.

The Mangalore Refinery and Petrochemicals Limited offered a petroleum retail outlet to the petitioner. A No Objection Certificate (for short ‘the NOC’) was issued to the petitioner under Rule 144 of the Petroleum Rules, 2002, for establishing the outlet in Re-Survey No.53/11 of Naduva Village. According to the petitioner, before the District Collector issued the NOC, reports were obtained from various authorities, including the District Police Chief, the Tahsildar, the Regional Fire Officer and the Executive Engineer of the PWD Roads Division etc. It is contended that since the NOC was granted after verification of the reports issued by all the aforementioned authorities, the Senior Town Planner could not have refused the application for layout approval on the basis of the concept of stopping site distance.

Smt. A. Salini Lal, the learned counsel for the petitioner, relying upon the decision of this Court in W.A. No.1435 of 2022, submitted that once the District Collector granted NOC, the Town Planner is not empowered to reject the application for layout approval for the reasons stated in Ext.P4 and hence the writ petition ought to be allowed.

A statement has been filed by the District Town Planner contending that as per rule 5(6)(1)(a) of the Kerala Panchayat Building Rules, 2019 (for short ‘KPBR, 2019’), the District Town Planner has to consider the surrounding developments, availability of infrastructure facilities, physical aspects of plots, impact of surrounding area for usage of plot and layout of building application. The nature and characteristics of access to the plot are also matters to be considered by the District Town Planner for the usage of plot approval. It is stated that under rule 5(6)(1)(b) of KPBR, 2019, the District Town Planner has to consider the nature of access to the plot and building and, thus, the nature and characteristics of access to the plot is a subject matter to be considered by the District Town Planner as per the existing rules. It is also pleaded that under rule 5(6)(1)(a) and rule 5(6)(1)(b) of KPBR, 2019, the District Town Planner has to ensure the safe exit and entry of vehicles to the plot without any unforeseen obstruction to the moving vehicles along the road providing access and for prevention of loss of life and property by averting accidents. The second respondent further pleaded that the District Collector, as the head of the administration of the district, has to collect reports from competent authorities to ensure the safety and security of transportation and storage of hazardous motor vehicle fuel materials, volume and density of vehicles, while the District Town Planner is responsible to consider the overall development of the area, including the access to the plot for vehicles and the free and safe movement of all vehicles along the access road.

I have heard Smt. A.Salini Lal, the learned counsel for the petitioner as well as Smt.K.Amminikutty, the learned Senior Government Pleader.

The Town Planner has rejected the application, stating that the proposed outlet is situated on a curve near the main road and since the petrol pump is proposed to be set up immediately adjacent to the curve, the entry and exit of vehicles to the proposed outlet will affect the stopping site distance.

It is evident from a reading of rule 5(6)(1)(b) and rule 5(6)(1)(c) that the access to the plot and building, surrounding developments and physical aspects of the plot are not the only matters which the Town Planner need to assess but the impact on the surrounding area is also a matter which requires to be verified and appropriate conditions can even be suggested. However, Rule 144 of the Petroleum Rules, 2002, on the other hand, deals with the NOC to be issued by the District Administration and reads as follows:

“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 licence other than a licence in Forms 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 licence 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 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 licence which has been applied for should not, in his opinion, be granted, such licence 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.

Ext.P2 is the NOC issued by the District Collector. A perusal of the said NOC reveals that the same has been granted after considering seven factors like traffic density and impact on traffic, accessibility of the site for fire tenders in case of emergency, and conformity of proposal to the local or area development planning. The site plan and the question of the feasibility of the location are matters that fall within Rule 144 of Petroleum Rules and not under the KPBR. The approval of the location is one of the matters to be considered by the District Collector. Though not specifically stated in the Rules, still, during the course of enquiry under Rule 144, it would be ideal that the District Collector calls for a report from the Town Planner to assess any peculiar feature that may have a bearing on the feasibility of the location. However, that cannot be a reason to assume that the Town Planner can refuse approval on the basis of matters within the realm of consideration of the District Magistrate.

In the decision referred to by the learned counsel for the petitioner in W.A. No.1435 of 2022, it was observed that the Town Planning authority has no power to consider the traffic density or impact of traffic, except with reference to the town planning scheme or rule. In coming to such a conclusion, the Division Bench also observed that taking note of the fact that the traffic passing through the main road will not get sufficient site distance is not a matter to be considered by the Town Planner, but is a matter purely for the district administration to advert to while considering the NOC. Further, in the judgment of another Division Bench in W.A. No.2338 of 2016, it was observed that the issuance of a No Objection Certificate by the District Magistrate would not curtail the power of the Town Planner to exercise his power under the statutory provisions of KPBR, 2019.

The District Magistrate who issued the NOC is presumed to have considered the location, the traffic density and its impact on the traffic. Matters relating to public safety are also to be considered by the District Magistrate. The NOC by the District Magistrate thus stands on a different footing from the approval required under rule 5(6) of KPBR, 2019. The parameters for issuance of the NOC and the factors that are to be borne in mind while issuing the layout approval under rule 5(6) of KPBR are distinct, even when the proposed outlet is to be set up on a curve. The possibility of accidents occurring due to exiting or entering vehicles is a factor that relates to public safety and impact on traffic, which are within the domain of consideration of the District Magistrate and not that of the Town Planner.

Since the stopping site distance is part of the factors governed by Rule 144 of the Petroleum Rules and not that of the Town Planner, Ext.P4 is liable to be set aside.

Hence, Ext.P4 is set aside, and the second respondent is directed to reconsider the application filed by the petitioner afresh, without reference to the matters covered by Rule 144 of Petroleum Rules and pass appropriate orders within sixty days from the date of receipt of a copy of this judgment.

The writ petition is allowed.