Page No.# 1/9 GAHC010169512022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : PIL/54/2022 TIHU NAGAR UNNAYAN SAMITTEE A SOCIETY REGISTERED UNDER THE SOCIETIES ACT, 1860 AND HAVING ITS OFFICE AT TIHU TOWN WARD NO. 1 P.O. TIHU DIST. NALBARI ASSAM 781371 THROUGH ITS AUTHORISED REPRESENTATIVE DHRUBAJYOTI DAS AGED 36 YEARS S/O LT. SHRI UDDHAB DAS R/O TIHU TOWN WARD NO. 3 P.O. AND P.S. TIHU DIST. NALBARI ASSAM-781371 VERSUS UNION OF INDIA AND 6 ORS THROUGH THE SECRETARY MINISTRY OF PETROLEUM AND NATURAL GAS, HAVING ITS OFFICE AT SHASTRI BHAVAN NEW DELHI-110001 2:THE JOINT CHIEF CONTROLLER OF EXPLOSIVES PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION (PESO) MINISTRY OF COMMERECE AND INDUSTRY GOVT. OF INDIA AND HAVING OFFICE AT HOUSE NO. 216 2ND FLOOR ABOVE IDBI BANK CHANDMARI GUWAHATI-781021 3:THE CENTRAL POLLUTION CONTROL BOARD THROUGH ITS REGIONAL MEMBER SECRETARY PCB ASSAM HAVING OFFICE AT BAMUNIMAMIDAN GUWAHATI-781021 4:BHARAT PETROLEUM CORPORATION LTD. THROUGH THE OFFICE OF THE TERRITORY MANAGER (RETAIL) HAVING ITS OFFICE AT 1ST FLOOR NEXIA PARK GMCH ROAD ANANDA NAGAR CHRISTIAN BASTI GUWAHATI ASSAM-781005 5:THE DEPUTY COMMISSIONER NALBARI HAVING OFFICE AT THE OFFICE OF DEPUTY COMMISSIONER Page No.# 2/9 NALBARI-781335 ASSAM 6:THE CIRCLE OFFICER HAVING OFFICE AT THE OFFICE OF THE CIRCLE OFFICER TIHU CIRCLE TIHU TOWN TIHU FEEDER ROAD TIHU-781371 ASSAM 7:RANU CHOUDHURY HAVING ADDRESS AT M/S BALAJI FUEL STATION TIHU TOWN WARD NO 1 UNDER TIHU P.S. OF NALBARI DIST. ASSA Advocate for the Petitioner : MR A KALITA, MR K TALUKDAR Advocate for the Respondent : ASSTT.S.G.I., MS. M BORGOHAIN,MS C DAS,MR. P MAHANTA,MS. D DUTTA (r-3),MRS. G SARMA (R-7),MR. U B SARMA (R-7),MR. S BORTHAKUR (R-4),MR. S S ROY (R-4),SC, PCB,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI J U D G M E N T AND O R D E R (Oral) Date : 27.03.2025 (K.R. Surana, J) Heard Mr. A. Kalita, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned CGC for respondent nos.1 and 2; Mr. S. Baruah, learned standing counsel for respondent no.3; Mr. S. Borthakur, learned counsel for respondent no.4; Mr. H.K. Hazarika, learned Government Advocate for respondent nos. 5 and 6; and Mr. U.B. Sharma, learned counsel for respondent no.7. 2. By filing this writ petition in a form of a Public Interest Petition (PIL for short), the petitioner society has prayed for a direction upon the respondent authorities to restrain the respondent no.4 from using the land covered by dag nos.663, 664, 665, 666 of Patta nos. 272, 273, 274 and 275 of Tihu Town for setting up the petroleum retail outlet, as the said land is adjacent to the Page No.# 3/9 Sarbeswar Das Senior Secondary School. 3. The learned counsel for the petitioner, by referring to the documents annexed to the PIL, has submitted that in the brochure called “Brochure for Selection of Dealers for Regular and Rural Retail Outlets” of the respondent no.4, published on 24.11.2018, if the land proposed for setting up retail outlet is near a school, the prescribed setback of the retail outlet from the adjacent school is 50 metres from the fill point/dispensing unites/ vent pipe whichever is nearest, from school, has not been maintained. In this regard, the learned counsel for the petitioner has referred to various clauses of the said Brochure as well as upon the Office Memorandum dated 07.01.2020, issued by the Central Pollution Control Board. 4. It has been submitted that as per Clause-H of said brochure, it is provided that the proposed retail outlet shall not be located within a radius of 50 meters (from fill point/ dispensing unites/ vent pipe, whichever is nearest) from schools. 5. By referring to the “No objection Certificate” dated 20.06.2020 (NOC for short), issued by the Deputy Commissioner, Nalbari (respondent no.5) which is accompanied by a site map, the learned counsel for the petitioner has submitted that the said NOC and the site map are not as per the requirement of Rule 144(2), Rule 144(7) and the proforma for NOC, appended to Rule 144(7) of the Petroleum Rules, 2002. Accordingly, by referring to the decision of the Madras High Court in the case of K.N. Shanmugam v. Commissioner of Police, 2019 SCC Online Mad 4746, it was submitted that the NOC, not being accordance with law and without proper inspection, was liable to be set aside. 6. The learned counsel for the respondent no.4 and the learned counsel for the respondent no.7 have objected to the maintainability of this PIL on two Page No.# 4/9 grounds. Firstly, the petitioner society has been setup by nearby retail outlet in Tihu Town and therefore, private interest is involved in this case. In this regard, it was submitted that the petitioner is closely associated with one business partner of a nearby petroleum retail outlet in Tihu Town. Secondly, it was submitted that the PIL has not been drafted in accordance with the Gauhati High Court Rules relating to PIL. 7. Considered the materials available on record. Also considered the submissions made at the Bar. 8. In this PIL, the allegation against the respondents is that although there is a school in the vicinity of the proposed retail outlet, the set-back as prescribed by the brochure of BPCL (respondent no.4) has not been maintained. This appears from the visual impression of the photograph of the proposed retail outlet, which is annexed to this PIL. Thus, this case has an element of greater public interest because a school is in the immediate boundary. The respondent no. 4 has not been able to demonstrate that the prescription to maintain 50 metre margin from school from nearest filling point is not mandatory. In this regard the Central Pollution Control Board has also issued an Office Memorandum dated 07.01.2020. Therefore, due to overwhelming public interest, specifically considering the health and safety of the students in the school in the boundary of the proposed petroleum retail outlet, the preliminary objection by the respondent nos.4 and 7 would not come in the way of entertaining this PIL. 9. However, it is clarified that under the unique circumstances which exist in the present case, the Court is inclined to overlook the non-compliance of the Gauhati High Court Rules in the presentation of this PIL. Therefore, this order cannot be cited as a precedent for any other matter whatsoever. Page No.# 5/9 10. It would be appropriate to quote hereinbelow the provisions of Rule 144 of the Petroleum Rules, 2002: 144. No-Objection Certificate.- (1) Where 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 in the proforma specified in sub-rule (7) to the applicant who shall forward it to the licensing authority with his application Form IX. Note: The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering gram of licence. (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 a 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 Government. 63 sanction of the Central (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 under the control of the state, or establishment of Indian Space Research Organisation or Department of Atomic Energy, NO OBIECTION 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 from 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: Page No.# 6/9 Proforma No Objection Certificate [See rule 144] No……….. Date…………. Subject: No objection certificate With reference to the application No. dated. submitted by and in pursuance of rule 144 of the Petroleum Rules, 2002, there is no objection for granting licence under the Petroleum Rules, 2002 to Shri/ Smt./M/s address for storage of petroleum products in their premises at Survey No. Gat No./Khasra No. Plot No. Village Taluka/Tehsil District State as shown in the site plan duly endorsed and enclosed herewith. (1) The following particulars have been considered while issuing this no objection certificate, that- (a) possession of the site by the applicant is lawful and authorisation from land owner or lease holder for developing premises under these rules for storage of petroleum products; (b)Interest of public, specially the facilities like schools, hospitals or proximity to places of public assembly and the mitigating measures, if any, is provided; (c) traffic density and impact on traffic; (d) conformity of proposal to the local or area development planning: (e) accessibility of the site to fire tenders in case of emergency and preparedness of fire services for combating the emergencies; (f) genuineness of purpose; (g) any other matter pertinent to public safety; Signature of the district authority issuing no objection certificate with his office seal (in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police and for any other place the District Magistrate). Note. The licensing authority shall accept the no objection certificate within a period of three years from the date of its issue for considering grant of licence. 11. Having extracted the provision of Rule 144 of the Petroleum Rules, it would be appropriate to quote hereinbelow the contents of the No Objection Certificate dated 20.06.2020:- GOVT. OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER:: NALBARI. (ADMINISTRATION BRANCH) 03624-220496(O)/220218(R)-220469/220371 (F) Email: dc- nalbari@nic.in Page No.# 7/9 No.NA. 35/2019/53 Dated Nalbari the 20th June, 2020 NO OBJECTION CERTIFICATE 1. Name of the applicant with address: Bharat Petroleum Corporation Ltd (BPCL), Guwahati. 2. Purpose: For construction of a Petroleum "A" and "B" retail Outlet (Fuel Station) at Tihu Town, Mouza-Tihu, PS-Tihu, District-Nalbari, Assam as per site plan enclosed. 3. Proposed site of land: An area of land measuring 02 Bigha 00 Katha 13 Lessa covered by Dag No. 666, 665 ,664, 663 under KP No. 275,274,273,272 in Tihu Town under Tihu Mouza under Tihu Revenue Circle, Dist-Nalbari, 4. Verifying agency in the field: The Circle Officer, Tihu Revenue Circle verified the site and submit status report of land as shown above. 5. Comments of District Authority: There is no objection for obtaining Licence From Petroleum & Explosive Safety Organization, Ministry of Commerce & Industry, Govt of India by the applicant for the site proposed (Re Rule 144 of the Petroleum Rules, 2002) subject to the conditions that the applicant will observe all the formalities as required under all relevant Acts & Rules. Deputy Commissioner. Nalbari. 12. Thus, it is seen that the aforesaid NOC dated 20.06.2020, issued by the Deputy Commissioner, Nalbari is not in accordance with the proforma of the NOC, appended to sub-Rule 7 of Rule 144 of the Petroleum Rules, 2002. Moreover, the site map, which is appended to the said NOC dated 20.06.2020, does not contain the counter-signature of the Deputy Commissioner, Nalbari (now re-designated as the District Commissioner, Nalbari). 13. In this regard, the provision of Rule 2(x) of the Petroleum Rules, 2002, which provides the meaning of “District Authority” is quoted below:- 2(x) “District Authority” means - (a) in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police; (b) in any other place, the District Magistrate. Page No.# 8/9 14. Therefore, on a conjoint reading of the provisions of Rule 144, read with Rule 2(x) of the Petroleum Rules, 2002 not only the NOC is required to be in accordance with the requirement of Rule 144(7) of the Petroleum Rules, 2002, but the site map is also required to be counter-signed by the Deputy Commissioner, Nalbari (now re-designated as District Commissioner, Nalbari). The respondents could not show any material on record from which it can be presumed that the NOC, which is non-compliant of the provision of Rule 144 of the Petroleum Rules is not mandatory. 15. In this regard, the decision of K.N. Shanmugam (supra), cited by the learned counsel for the petitioner, clearly covers the point. 16. Accordingly, without expressing any opinion on the merit of the case, the Court is inclined to set aside the No Objection Certificate, bearing No. NA.35/2019/53 dated 20.06.2020, issued by the Deputy Commissioner, Nalbari in favour of the retail outlet of the respondent no.7. 17. The Court is inclined to remand back the matter back to the District Commissioner, Nalbari (formerly called the Deputy Commissioner, Nalbari) for conducting a fresh enquiry, keeping in mind the prescription of Rule 144 of the Petroleum Rules, 2002. 18. Accordingly, the petitioner and the respondent nos.4 and 7 shall appear before the Office of the District Commissioner, Nalbari on 24.04.2025, at 11:00 AM and along with a certified copy of this order, submit their relevant documents, materials or objections, as they may be so advised. Thereupon, the District Commissioner, Nalbari shall make an enquiry as per law. 19. We hope and trust that the District Commissioner, Nalbari shall conclude the enquiry within a period of one month from the date of appearance of the Page No.# 9/9 parties, and on completion of the enquiry, the said authority shall pass a speaking order and communicate the same to the parties in their e-mail address to be provided by the parties. 20. This PIL stands allowed to the extent as indicated above, leaving the parties to bear their own costs. JUDGE JUDGE. Comparing Assistant