Jammu & Kashmir High Court - Srinagar Bench
Habibullah Mir & Ors vs Union Of India & Ors on 1 May, 2019
Bench: Ali Mohammad Magrey, Tashi Rabstan
Serial No. 18
Suppl. List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
*******
OWP No. 489/2019 I.A. No. 01/2019 Caveat Nos. 687/2019 & 325/2019 Date of Order: 2nd of May, 2019.
Habibullah Mir & Ors vs Union of India & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Tashi Rabstan, Judge.
Appearance:
For the Appellant(s): Mr M. A. Qayoom, Advocate.
For the Respondent(s): Mr T.M. Shamsi, ASGI for R-1.
Mr B. A. Dar, Sr. AAG for R-9 to 31 Mr Syed Faisal Qadiri, Advocate 4&7.
Mr M. M. Dar, Advocate for R-2,3,5&6
01. By this petition, the petitioners have called in question the decision of the Government of India and Public Sector Oil Companies relating to opening of 65000 new retail outlets, including 632 in the State of J&K as also the impugned guidelines of 2018 and advertisement notices published in Daily 'Excelsior' in its issue of 25th of November, 2018 and Daily 'Grater Kashmir' in its issue dated 25th of December, 2015, inter alia, on the following grounds:
i. That Government of India and its Public Sector Oil Companies have decided to establish 65000 new Retail Petrol Outlets throughout India including the State of J&K ahead of State and Parliamentary Elections, so as to nearly double the existing network without assessment, feasibility and viability which is bound to affect the environment and also the land use;
ii. That the Government of India and its Public Sector Oil Companies have issued the advertisement notices for appointment of regular/ rural outlet (Petrol Pumps) dealership at various locations in the State of J&K in violation of the guidelines of 2009 and 2013, which lay down the criteria, qualification and eligibility for regular and rural outlets and are time tested;
iii. That the proposed establishment of 65000 retail outlets out of which 632 have to be establishment in the State of J&K are bound to have an adverse impact on the existing land use, its degradation, deforestation and will add to the fuel emission, air, water and noise pollution, causing thereby danger to the very life of human beings;
iv. That the proposed establishment of 65000 retail outlets is bound to affect the dealers commission, operating costs, salary and wages of their employees/staff, production loss, LFR recovery, operating cost, stock loss, working capital, repair and maintenance, dealers' remunerations, bank charges, customer service etc. and is against the policy of the Government of India with reference to various issued raised by Retail Outlet dealers of Oil Marketing Companies constituted in 2010;
v. That the National Green Tribunal, New Delhi, has also taken a serious note of the increase in number of Petrol Pumps across India and has directed a committee comprising officials from the Ministry of Petroleum and the Central Pollution Control Board to look into the matter and submit its report before the Tribunal by 30th of April, 2019. The said direction is stated to have been passed after taking note of a plea so as to avoid adverse impact on the environment;
vi. That the Government of India has already expressed its intention of launching an EV and alternative fuel policy to contain rising pollution and the impugned decision will have adverse effect on the pollution policy;
vii. That the guidelines for selection of dealers as also the advertisement notices are also in conflict with the guidelines for access, location and layout of the Roadside Fuel Stations and service stations published by Indian Road Congress in 2009;
viii. That the guidelines of 2018 are militate against the provisions of J&K Land Revenue Act which provide that no land which grows or has been growing shali crop, vegetables or saffron lullies, shall be used for any purpose other than agriculture purpose, without permission in writing of the Revenue Minister. The Guidelines of 2018, however, only provided for offering the land which has to be classified into three categories, without indicating the mandatory condition of Land Revenue Act while offering such land;
ix. That the decision to establish to 632 retail outlets in J&K State is also diametrically opposite to the Master Plan which provide that building units use as filling stations shall comply with Petroleum Rules, 1976; and x. That the guidelines lines and the advertisement notices are also against State Subject Laws.
02. Mr Qayoom, the learned counsel for the petitioners, while elaborating the grounds of challenge to the impugned guidelines and advertisement notices, has strengthened the same by raising the following issues:
a. That the guidelines and the advertisement notices are having the effect of violating the provisions of Sections 3 and 4 of the Jammu and Kashmir Land Alienation of Land Act Svt. 1995, which Sections provide as under:
"Section 3. Application of Act to Section 60 and 61 of the Tenancy Act (II of 1980): - Notwithstanding anything contained in section 60 and 61 of the Jammu and Kashmir Tenancy Act, when a landlord makes a claim to exercise the rights thereby conferred upon him the provisions of this Act shall apply thereto.
Section 4: - Transfer of land in favour of non-State Subject prohibited: Transfer of land in favour of any person who is not a State Subject, is prohibited."
b. That the impugned guidelines and the advertisements are in violation of Section 17 of the Jammu and Kashmir Agrarian Reforms Act, 1976, which reads thus:
"17. Prohibition on transfer of land.--(1) Notwithstanding anything contained in this Act or the rules made thereunder or any other law for the time being in force, but subjected to the provisions of sub-section 2 and 3, no land or dwelling house or structure shall, except as provided under section 140 of the Jammu and Kashmir Transfer of Property Act, samvat 1977, section 4-A of the Jammu and Kashmir Alienation of Land Act, samvat, 1995 and section 69-B of the Jammu and Kashmir Co-operative Societies Act, 1960, be transferred, disposed of or vest under this Act or in execution of any decree or order of the civil court or Revenue Authority or under any other law in favour of any person who is not the permanent resident of the state.
(2) Until, the government directs otherwise, nothing in sub-section 1 shall be deemed to interfere with the possession of land of a tiller who is not the permanent resident of the state, where such tiller, as had come from Pakistan in 1947-48, has been in possession of such land since any date before the first day of September 1950.
(3) The provisions of section 7, 9 and 11 shall apply to such tillers as is mentioned in sub-section 2 and the ex-owners, ex-intermediary under whom he was holding this land prior to the first day of May 1973, mutatis mutandis, subjected to the following modifications, namely:--
a) The installments of rent paid to an ex-landlord shall be deemed to be installments of amount payable to him in lieu of extinguishment of his rights, titles and interests in such land effected by section 4;
(b) Where such ex-owner had an ex-intermediary under him prior to the first day of May, 1973, the rent recovered from the tenant shall be payable to the ex-intermediary after deducting therefrom:--
(i) The rent payable by such ex-intermediary to the ex-owner, and
(ii). The share of collection charges on pro-rata basis.
The balance rent, remaining after payment to ex-intermediary shall be payable to ex-owner after deducting therefrom the balance of the collection charges. The payments to both shall be treated as installments of amount payable to them in lieu of the extinguishment of their rights, titles and interests in such land under section 4;
(a) the amount payable in lieu of extinguishment of rights, titles and interests of such ex-owner or ex- intermediary shall be the amount payable in accordance with the provisions of part a of Schedule III;
(b) ownership rights shall not vest in the tiller and he shall, until the government directs otherwise, continue to hold the land as tiller under the state subjected to such conditions as may be prescribed."
c. That the guidelines are in contravention of the Constitution of Jammu and Kashmir in general, particularly Section 6 which is reproduced hereunder;
"6. Permanent residents (1) Every person who is, or is, deemed to be, a citizen of India under the provisions of the Constitution of India shall be permanent resident of the State, if on the fourteenth day of May, 1954--
(a) he was a State subject of Class I or Class II; or
(b) having lawfully acquired immovable property in the State he has been ordinarily resident in the State for not less than ten years prior to that date;
(2) Any person who, before the fourteenth day of May, 1954, was a State subject of Class I or of Class II and who having migrated after the first day of March, 1947 to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.
(3) In this section, the expression "State Subject of Class I or of Class II' shall have the same meaning as in State Notification No. 1-L/84 dated twentieth April, 1927, read with State Notification No. 13/L dated twenty-
seventh June, 1932.
d. The guidelines/ advertisements are in violation of the articles 15(1) and 16(1) of the Constitution of India as the guidelines provide reservation of more than 50%; and e. That the guidelines have not been framed by the Petroleum Regulatory Board, therefore, have no force.
03. Mr Qayoom, the learned counsel for the petitioners, in order to strengthen his case, has referred to Clause (IV) of the guidelines dealing with common eligibility for all categories of applicants and submits that the guidelines have made a citizen of India/ resident of India, defined in terms of the Income Tax Rules, as eligible for applying for allotment of retail outlet dealership in the State of Jammu and Kashmir, without being a subject of the State as also without having ownership of any land in the State by fulfilling the condition of land offered in terms of Clause (V) of either of Group 1,2,3 read with clause (e). Mr Qayoom submits that this procedure, as adopted by the authorities, violates the local laws and the very constitutional scheme of the State of Jammu and Kashmir. It is submitted that the guidelines as well as the advertisements are aimed at indirect conferment of state subject rights on those individuals who are not the subjects of the State. It is pleaded that even a resident of India, who has stayed in India for 182 or more days in the previous financial year, is treated as a resident of India as per Income Tax Rules, irrespective of his citizenship, for the purpose of being eligible for applying for allotment of a retail outlet. It is further submitted that such a scheme, if allowed, will definitely violate the rights of the subjects of the State of Jammu and Kashmir as guaranteed to them under the Constitution of the State as well as the Constitution of India. It is further stated that the guidelines with reference to reservation for various categories in the State exceeds the limit of 50% which is violative of Articles 15(1) and 16(1) of the Constitution and such a practice has also been deprecated by the Supreme Court of the country in case titled 'Indra Sawhney v. Union of India', reported as 'AIR 1993 SC 477'. Mr Qayoom has also submitted that the High Courts of Rajasthan and Madhya Pradesh have already entertained the petitions seeking quashment of the impugned guidelines and advertisements by staying the said proceedings.
04. In view of the above arguments, Mr Qayoom, the learned counsel for the petitioners, submits that the guidelines and the advertisements, being in violation of the constitutional scheme, are liable to be quashed.
05. Mr Syed Faisal Qadri, the learned counsel for the respondent Nos.4&7/ Caveators in Caveat No.687/2019, submits that there is no violation of the State subject/ local laws with the application of the guidelines as Note (2) appended to the guidelines protects such guarantees and allows only applicants to apply for allotment of retail outlets of India if the applicant fulfills the condition of owning the land or possesses the same on lease in the advertised location/ stretch. It is submitted that the only design of the petitioners, who are retail outlet dealers, is to stall the process by not allowing the allotment of more retail outlet dealers so as to retain monopoly in the trade. It is submitted that the policy of the Government of India implemented by the Oil Corporation is only to have more retail outlet oil dealers in the State and that the said policy will not only benefit the general public, but is also aimed at providing employment to the unemployed people. It is submitted that the Corporations, which he represents, have only received applications from the locals of the State of Jammu and Kashmir and undertakes that no applicant will be allowed to compete the process unless he adheres to the requirement of local laws. It is further elaborated that even an outside applicant can be allowed to compete if he can have the land on lease or through whatever mode of transfer provided in the Constitution and the laws on the subject.
06. Mr M. M. Dar, the learned counsel for the respondent Nos.2,3,5 and 6/ Caveators in Caveat No.325/2019, submits that the petitioners have applied and competed the process of advertisement issued on the strength of 2014 guidelines which are on similar lines, but are challenging the policy of the Government implemented by the Corporations only to stall the process by not allowing more establishments of retail outlets. It is further submitted that there is no violation of any of the rights of the petitioners, whose rights are guaranteed in terms of the agreement executed between them and the Corporations which regulate the terms and conditions of their dealership. It is submitted that in terms of Clause (7) of the Agreements, the Corporations cannot be prohibited from making direct and/ or indirect sales to any person whomsoever or from appointing other dealers for the purpose of direct or indirect sales at such place or places as the Corporation may think fit and that the dealer shall not be entitled to any claim or allowance for such direct or indirect sales. It is submitted that the petitioners have no cause of action for maintaining this petition as their dealership is regulated by the terms of contract in the shape of agreement.
07. As regards the contention of Mr Qayoom to the effect that already the High Courts of Madhya Pradesh and Rajasthan have stayed the process, the learned counsel for the respondents have come up with copies of judgments passed by the said High Courts dismissing the writ petitions.
08. Heard the learned counsel for the parties, perused the record and considered the matter.
09. Since, we are considering this petition at admission stage, therefore, on the strength of the submissions of the learned counsel for the parties, we are inclined to issue notice.
10. Notice in the main petition as well as in IA No.01/2019.
11. Notice waived by Mr Shamsi, ASGI, for respondent No.1, Mr M. M. Dar, for respondent Nos. 2,3,5 and 6, Mr Qadri, on behalf of respondent Nos. 4 and 7 and Mr B. A. Dar, for respondent Nos.9 to 31. Caveats, as lodged, shall stand discharged. Notice to the rest of the respondents returnable by or before the next date of hearing. Requisites within one week.
12. List on 4th of June, 2019 alongwith PIL No.01/2019.
13. Meanwhile, having considered the rival submissions of the learned appearing counsel for the parties on the subject, we are not inclined to stay the process of allotment of 628 Outlet Retail Dealerships in the state of J&K merely because the petitioners are already having Outlet Dealership at different sites of the State, but in order to ensure adherence to the Constitutional Scheme and the local laws having reference to the ownership rights of the properties of the subjects in the State of J&K, we direct as under:
I. Clause (IV) of the impugned guidelines incorporated in the advertisement notices shall not be given effect in respect of the applicants who are not fulfilling the requirements in tune with the local laws; and II. The respondent Corporations shall only process the cases of applicants who are adhering to the provisions of the local laws with reference to ownership or transfer of land.
IA No.02/2019:
Appearance as above.
On the set of facts and the grounds urged, coupled with submissions made, the instant application is allowed and the accompanying Supplementary Affidavit is taken on record, copy whereof stands already furnished to the other side.
IA disposed of.
(Tashi Rabstan) (Ali Mohammad Magrey)
Judge Judge
Srinagar:
2nd of May, 2019.
"Hamid"
ABDUL HAMID BHAT
2019.05.02 16:41
I attest to the accuracy and
integrity of this document