Madras High Court
M/S.Padma Highways Filling Station vs The Regional Administrator – Cum on 6 July, 2022
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.No.10573 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.06.2022
PRONOUNCED ON : 06.07.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.10573 of 2022 &
W.M.P.Nos.10243 &10244 of 2022
M/s.Padma Highways Filling Station,
represented by its Managing Partner,
M.V.S.Suryanarayana Raju,
NH-214, Kanakalapeta,
Yanam – 533 464, Puducherry State. ... Petitioner
Vs
1.The Regional Administrator – cum -
Sub – Divsional Magistrate,
Office of the Sub-Divisional Magistrate,
Government of Puducherry, Yanam.
2.The Project Director,
Ministry of Road Transport and Highways,
Government of India,
Project Implementation Unit, Machilipattinam,
Door No.41 – 1 / 12 – 2, Donka Road,
Krishna Lanka, Vijayawada – 520 013.
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W.P.No.10573 of 2022
3.The Joint Chief Controller of Explosives,
Ministry of Commerce and Industry,
Government of India,
Petroleum & Explosives Safety Organization (PESO),
Room No.602, Sixth Floor, C.G.O. Towers,
Kavadiguda, Secunderabad – 500 080.
4.The Executive Engineer to the Government of India,
Ministry of Road Transport & Highways (S & R (P&B) Section),
Transport Bhawan, No.1, Parliament Street, New Delhi.
5.The Member Secretary,
Pondicherry Pollution Control Committee,
Housing Board Complex,
Anna Nagar, Puducherry – 600 005.
6.The Divisional Manager,
M/s.Hindustan Petroleum Corporation Limited,
Visakha Regional Office, Petro Nilayam,
Post Box No.135, Visakhapatnam – 530 003. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
for writ of certiorarified mandamus calling for the records of the impugned
no objection certificate No.4178 / SDMY / D3/ Petrol / 2021 – 22 dated
12.01.2022 issued by the Regional Administrator-cum-Sub-Divisional
Magistrate, Yanam, Government of Puducherry and to quash the same as
non-est, ultra vires & void-ab-initio in the eyes of Law and consequently to
direct the Project Director, Ministry of Road Transport and Highways,
Government of India, Project Implementation Unit, Machilipattinam,
Vijayawada to cancel and annul the in-principle approval letter dated
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W.P.No.10573 of 2022
22.12.2021 for grant of No Objection Certificate and access permission for
laying approach road to M/s.Hindustan Petroleum Corporation Limited to
set up a retail outlet for MS (Petrol) / HSD (Diesel) at Town Survey
NO.C/7/16/1C Pt., C/7/13/4B Pt., C/7/13/5A Pt., Kanakalapeta, Yanam,
Union Territory of Puducherry by declaring the same as illegal, sham,
vitiated, without application of mind, contrary to guidelines.
For Petitioner : Mr.L.Swaminathan
For Respondent 1 : Mr.C.T.Ramesh
Additional Government Pleader (Pondy)
For Respondent 2 : Mr.S.S.Varma, SPC
Mr.K.Ramanamoorthy,
Central Government Standing Counsel
For Respondent 5 : Mrs.A.Sathyabama, Standing Counsel
For Respondent 6 : Mr.Mohammed Fayaz Ali
ORDER
The petitioner is running a petroleum filling station and they have challenged the No Objection Certificate dated 12.01.2022 issued by the first respondent and in-principle approval letter dated 22.12.2021 issued by the second respondent in favour of the sixth respondent for resitement of the 3/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 petroleum outlet of the HPCL from Rural Yanam to National Highways as contemplated in Rule 1.5 & 1.6 of the guidelines issued for resitement of retail outlet dealership by HPCL.
2. According to the petitioner, duty is cast upon the first respondent to ascertain from the licensee regarding the necessity of resitement of HPCL petrol bunk from Rural Yanam to National Highways, Yanam, more particularly, when no documents have been filed by the sixth respondent to the first respondent regarding the grant of approval by Director (M) as stated in Rule 1.6 of the guidelines mentioned supra. According to the petitioner, the fourth respondent had issued communication dated 26.06.2020 under the captioned subject namely “Guidelines/Norms for grant of permission for construction of access to Fuel Stations, way side amenities, connecting roads, other properties, Rest Area Complexes & such other facilities” wherein Clause 4 (ii) clearly stipulates that “30 meter as frontage and Depth”. According to the petitioner, the proposed HPCL outlet of the sixth respondent does not have 30 meter depth.
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3. According to the petitioner, it is mandatory for the first respondent to verify and ascertain whether there exists 30 meter depth as per clause 4(ii) referred to supra before issuing the impugned no objection certificate as according to the petitioner, after excluding the right of way-line (ROW) of National Highway, the proposed HPCL outlet does not have 30 meters depth. Hence according to the petitioner, No Objection Certificate has been issued glaringly to the sixth respondent by violating the guidelines.
4. According to the petitioner, the Central Pollution Control Board, Delhi through Office Memorandum dated 07.01.2020 has issued guidelines for setting up of new Petrol Pumps in compliance with the Order of the National Green Tribunal dated 18.01.2019 passed in O.A.No.86 of 2019. According to the petitioner, the first respondent before issuing the impugned No Objection Certificate dated 12.01.2022 ought to have ascertained from the Puducherry Pollution Control Board (fifth respondent herein) as to whether the proposed HPCL outlet is in consonance with the guidelines for setting up of New Petrol Pump station.
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5. According to the petitioner, it is mentioned in the impugned No Objection Certificate dated 12.01.2022 that “... additional safety measures as prescribed by PESO shall also be implemented since the radial distance of proposed Retail Outlet is less than 50 meters from the nearest Residential zone ....”. According to the petitioner, the Town and Country Planning Department, Government of Puducherry in its report dated 10.01.2022 addressed to the First respondent has stated that one residential zone is located at a distance of 42 meters. According to the petitioner, duty is cast upon the sixth respondent to satisfy the first respondent regarding the steps taken or proposed to be taken by way of an affidavit/undertaking the reasons for not adhering to 50 meters yard-stick as prescribed in the Guidelines.
6. According to the petitioner, the proposed HPCL fuel station of the sixth respondent is only 26.64 meters away from the existing residential houses and the measurement mentioned by the Town and Country Planning Department, Government of Puducherry is an exaggeration and not as per the correct measurements. It is further contended by the petitioner that the 6/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 first respondent cannot issue No Objection Certificate based on certain conditions which has to be fulfilled by the sixth respondent in future. According to them, the impugned No Objection Certificate dated 12.01.2022 issued in favour of the sixth respondent is an abuse of process of law as it has violated the norms and guidelines.
7. It is further contended by the petitioner that the impugned in- principle approval letter dated 22.01.2021 is addressed only to M/s.Hindustan Petroleum Corporation, Visakhapatinam, Andhra Pradesh and not addressed to an individual by name Prashanth Chandra Villa as claimed by the sixth respondent. According to the petitioner, the question of exhausting / extinguishing alternative remedy by the petitioner will apply only when No Objection Certificate issued to the licensee ceases to have any right to use the site for storing Petroleum. According to the petitioner, in the instant case, the writ petitioner is not a license holder and the contentions of the second and sixth respondents in this regard is wrong which portrays the misunderstanding of the rules by the respondents. 7/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022
8. However, the first respondent denies the allegations made by the petitioner and states that only by following the due procedure and after obtaining No Objection Certificates from all the concerned departments/authorities namely: (a) The Commissioner, Yanam Municipality, Yanam, (b) The Executive Engineer, PWD, Yanam, (c) The Junior Town Planner, Town & Country Planning Department, Yanam, (d) The Inspector of Police, Yanam, (e) The Deputy Tahsildar (Revenue), Yanam and (f) The Station Officer, Fire Service Unit, Yanam, the impugned No Objection Certificate was issued in favour of the sixth respondent along with in-principle approval given by the second respondent. According to the first respondent, the objections raised by the petitioner in respect of distance between two fuel stations is not maintainable as per the latest and relevant guidelines issued by the Ministry of Road Transport and Highways, Government of India vide Notification dated 26.06.2020 and the said notification reads as follows:
8/36
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two fuel
stations However, this restriction shall not apply in case access/egress
for all such fuel stations are provided through common service road of 7.0m width and not directly to NH. Further, access for fuel stations at closer proximity than 300m may be allowed provided entry/exit for both Fuel Stations are provide through service road of 7.0m width having sufficient length; further, additional length of such service road shall be constructed at the cost of the later fuel station owner/company seeking grant of permission for access for the facility.
9. According to the first respondent, the service road with width of 7.50 meters has been developed by National Highway Authority of India along section of NH-216 which is providing ingress/egress to the petitioner's Fuel station as well as the proposed Fuel Station of the sixth respondent. According to the first respondent, the impugned No Objection Certificate and in-principle approval has been issued only in conformity with the above said guidelines.
10. The first respondent has also stated that the objections raised by the petitioner with regard to violation of guidelines issued by the Central Pollution Control Board in its memorandum dated 07.01.2020 in 9/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 compliance with order dated 18.01.2019 of the National Green Tribunal passed in O.A.No.86 of 2019 are also not maintainable for the following reasons:
Description of CPCB Guide Lines Status/Report as at site and as per local laws in comparison to the CPCB Guidelines.
New Retail outlets shall not be A school is existing 130.00 mts away located within a radial distance of from the new proposed retail outlet of 50 meters (from fill point the M/s. HPCL which is satisfying the /dispensing units / vent pipe which criteria of CPCB guidelines is nearest) from schools New Retail outlets shall not be No hospital is existing within 100 mts located within a radial distance of radius of the newly proposed retail 50 meters (from fill point / outlet of the M/s. HPCL which is dispensing units / vent pipe which satisfying the criteria of CPCB is nearest) from hospitals (10 bends guidelines and above).
New Retails outlets shall not be The entire land in T.S.NO.C/7/16/1pt located within a radial distance of out of which in a part where the new 50 meters (from fill point / proposed out let of M/s. HPCL is dispensing units / vent pipe which designated as Commercial Zone as per is nearest) from Residential Areas the Comprehensive Development Plan designated as per local laws. In of the Yanam region. The remaining case of constraints in providing 50 land of the above Survey Number is mts distance, the retail outlet shall classified as Residential Zone. This implement additional safety land of residential zone in the above measures as prescribed by PESO. Survey Number is existing 42.00 mts In no case the distance between away from the new proposed out let of new retail outlet from schools, M/s. HPCL (from proposed fill point / hospitals and residential area dispensing units to the edge of the designated as per local laws shall residential zone). More over as per the be less than 30 mts. local law, i.e. Puducherry Building Bye Laws and Zoning Regulations, 2012 10/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 Description of CPCB Guide Lines Status/Report as at site and as per local laws in comparison to the CPCB Guidelines.
petrol bunks are permitted in Residential zones also. However, since the designated residential zone / area is located at a radial distance of less than 50.00 mts. But more than 30.00 mts, NOC was issued subject to satisfying additional safety measures as prescribed by PESO.
11. According to the sixth respondent, they have obtained No Objection Certificate and in-principle approval only by following the due procedure. According to the sixth respondent, they issued the letter dated 06.11.2021 seeking access permission from the second respondent for establishing the petroleum retail outlet at the proposed location. According to them, the second respondent after examining the request, granted permission under impugned order dated 22.12.2021. Therefore, the first respondent has issued the impugned No Objection Certificate dated 12.01.2022 under Rule 144 of the Petroleum Rules 2002. Consequently, the third respondent has issued a prior approval dated 03.02.2022 whereby, the plan submitted for construction of the petroleum retail outlet has been approved and the construction of the retail outlet is in progress as per the 11/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 approved plan.
12. According to the sixth respondent, the petitioner who is a dealer of Indian Oil Corporation Limited, is a competitor for the sixth respondent. According to them, it is settled law that a business rival cannot maintain a writ petition against a competitor. According to the sixth respondent, a party who is not aggrieved cannot maintain a writ petition and the mere statement that provision of law has been violated is not sufficient to enable the third party who is not aggrieved to challenge the order in question.
13. According to the sixth respondent, the retail outlet site to be established by them for which No Objection Certificate and in-principle approval were issued, is within the norms of National Highways. They have reiterated the contentions of the first respondent which has been referred to supra.
14. According to the sixth respondent, the petitioner has no locus standi or privity to question the internal guidelines of the sixth respondent. According to the sixth respondent, the present retail outlet has been 12/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 established as per the policy guidelines of the sixth respondent. The petitioner has extracted an internal policy of HPCL for resitement of its retail outlets and the said guidelines framed by HPCL is a matter of internal policy and the petitioner has no locus standi to question the same. According to the sixth respondent, the said internal policy is irrelevant for the present case.
15. According to the sixth respondent, this Court by its order dated 07.03.2022 in W.P.No.5066 of 2022 dismissed the writ petition of the petitioner granting him leave to challenge No Objection Certificate already granted in favour of the sixth respondent in the manner known to law. According to the sixth respondent, as per Rule 150 of the Petroleum Rules, 2002, the issuing authority or the State Government is empowered to cancel No Objection Certificate, if the licensee ceases to have any right to use the site for storing petroleum. According to the sixth respondent, it is provided that before cancelling a No Objection Certificate, a licensee shall be heard. Therefore, according to the sixth respondent, as per law, the petitioner ought to have extinguished his alternate remedy by approaching the issuing authority or the State Government. Instead, the petitioner has directly 13/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 approached this Court without exhausting alternate remedy and therefore, the present writ petition is not maintainable.
16. According to the sixth respondent, the Indian Road Congress Guidelines is not applicable anymore in view of Guidelines framed by the Ministry of Road Transport and Highways under the control of National Highways (Land and Traffic) Act, 2002. Since the National Highways is governed by a separate enactment, the IRC guidelines shall not apply.
17. Heard Mr.L.Swaminathan, learned counsel for the petitioner, Mr.C.T.Ramesh, learned Additional Government Pleader (Pondy) appearing for the first respondent, Mr.K.Ramanamoorthy, learned Central Government Standing Counsel appearing for the second respondent, Ms.A.Sathyabama, learned counsel appearing for the fifth respondent and Mr.Mohammed Fayaz Ali, learned counsel appearing for the sixth respondent.
18. Learned counsel for the petitioner reiterated the contents of the affidavit filed in support of this writ petition and would submit that in the 14/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 impugned No Objection Certificate, it has not been stated anything about the necessity for “Resitement of Hindustan Petroleum Corporation Limited from Rural Yanam to National Highway” as contemplated in Clause 1.5 and 1.6 of the guidelines issued for resitement of retail outlet dealership by the sixth respondent. According to him, duty is cast upon the first respondent to ascertain from the licensee regarding the necessity of resitement of HPCL Petrol bunk from Rural Yanam to National Highway, Yanam. According to him, as per Clause1.6 of the guidelines, no resitement shall be made from remote/low service areas without the approval of Director (M).
19. Learned counsel for the petitioner would further submit that the Ministry of Road Transport and Highways, Government of India, had issued communication dated 26.06.2020 under the captioned subject regarding “Guidelines / Norms for grant of permission for construction of access to fuel stations, way side amenities, connecting roads, other properties, Rest Area Complexes & such other facilities” wherein clause 4(ii) stipulates that “30 meters as frontage and depth”. According to the learned counsel for the petitioner, in the instant case, the impugned No Objection Certificate has 15/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 been issued despite the fact that the proposed HPCL outlet does not have 30 meters depth.
20. Learned counsel for the petitioner also submitted that the guidelines issued by the Central Pollution Control Board, Delhi for setting up of new petrol bunks has also not been fulfilled. Learned counsel for the petitioner would further submit that in the impugned No Objection Certificate, it has been mentioned that “... additional safety measures as prescribed by PESO shall also be implemented since the radial distance of proposed Retail Outlet is less than 50 meters from the nearest Residential zone ....”. According to the learned counsel for the petitioner, the Town and Country Planning Department, Government of Puducherry in its report dated 10.01.2022 addressed to the first respondent has stated that one residential zone is located at a distance of 42 meters. According to him, duty is cast upon the sixth respondent to satisfy the first respondent regarding the steps taken or proposed to be taken by way of an affidavit/undertaking the reasons for not adhering to 50 meters yard-stick as prescribed in the Guidelines.
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21. According to the learned counsel for the petitioner, the proposed HPCL fuel station of the sixth respondent is only 26.64 meters away from existing residential houses and the measurement mentioned by the Town and Country Planning Department, Government of Puducherry is an exaggeration and not as per the actual measurements. He would further submit that the first respondent cannot issue No Objection Certificate based on certain conditions which has to be fulfilled by the sixth respondent in future.
22. Learned counsel for the petitioner would submit that the impugned No Objection Certificate dated 12.01.2022 and the impugned in- principle approval letter dated 22.12.2021 are addressed only to M/s.Hindustan Petroleum Corporation, Visakhapatinam, Andhra Pradesh and not addressed to an individual by name Prashanth Chandra Villa as claimed by the sixth respondent. According to the learned counsel for the petitioner, the question of exhausting / extinguishing alternative remedy by the petitioner will apply only if No Objection Certificate issued to the 17/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 licensee ceases to have any right to use the site for storing Petroleum. According to him, in the instant case, the writ petitioner is not a license holder and the contentions of the second and sixth respondents in this regard is wrong which portrays the misunderstanding of the rules by the respondents.
23. Further the learned counsel for the petitioner would submit that the representations/objections of the petitioner dated 21.12.2021, 23.12.2021, 21.01.2022 & 02.02.2022 have neither been answered by the first respondent nor given any reasons before this Court as to how the said representations were not answered and kept in abeyance. According to him, the urgency shown in issuing the impugned No Objection Certificate smacks suspicion.
24. Learned Additional Government Pleader (Pondy) appearing for the first respondent would submit that only by following the due procedure, the impugned No Objection Certificate was issued in favour of the sixth respondent. He would further submit that only after obtaining No Objection 18/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 Certificate from the concerned Departments/authorities, No Objection Certificate has been issued in favour of the sixth respondent by the first respondent for establishing the fuel station. He would also submit that the objections raised by the petitioner with regard to the distance between the petitioner's fuel station and the sixth respondent's fuel station are not maintainable as per the latest and relevant guidelines issued by the Ministry of Road Transport and Highways, Government of India dated 26.06.2020. According to him, even in the cases where distance between two fuel stations is less than 300 meters, No Objection Certificate can be issued provided that the entry/exit for both the fuel stations are provided through a service road of 7.0 meters width. According to him, the sixth respondent fuel station has satisfied the said criteria and therefore, grant of No Objection Certificate in their favour is legally valid.
25. Learned Additional Government Pleader (pondy) appearing for the first respondent would further submit that the objections raised by the petitioner that the sixth respondent has violated the guidelines issued by the Central Pollution Control Board, Delhi is totally false. According to him, the 19/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 sixth respondent has not committed any violation of Central Pollution Control Board guidelines.
26. Learned counsel for the sixth respondent would reiterate the submissions made by the learned Additional Government Pleader (Pondy) for the first respondent. Apart from that he would submit that a writ petition cannot be filed by a business rival. In support of his submissions, he relied upon the following judgments viz.,
(a) A Division Bench Judgment of this Court in the case of Nataraja Agencies vs. Secretary, Ministry of petroleum & others reported in (2005) 1 CTC 394;
(b) Order of this Court in the case of Palani Murugan Agencies vs. District Collector reported in (2005) 1 LW 792; and
(c) Order of this Court in the case of P.Selvi vs. District Magistrate & others reported in AIR 2021 Mad 27.
27. Learned counsel for the sixth respondent would also submit that there is no locus standi for the petitioner to file this writ petition. According 20/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 to him, a third party who is not aggrieved cannot maintain a writ petition and a mere statement of violation of provision of law is not sufficient to enable the third party who is not aggrieved to challenge the order in question. In support of the said submission, the learned counsel for the sixth respondent relied upon the decision rendered in Pattukottai Azhagiri Transport Corporation Limited vs. V.K.Velayutham & Sons, Imperial Motor Services and others reported in (1993) 1 MLJ 249.
28. Learned counsel for the sixth respondent would reiterate the submissions made by the learned Additional Government Pleader (Pondy) appearing for the first respondent that only after inspection by the Town and Country Planning, Government of Puducherry, the impugned No Objection Certificate dated 12.01.2022 has been issued.
29. Learned counsel for the sixth respondent would further submit that the petitioner has no locus standi or privity to question the internal guidelines of the sixth respondent. According to him, the internal guidelines framed by the sixth respondent is a matter of internal policy and the 21/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 petitioner has no locus standi to question the same. Learned counsel for the sixth respondent would submit that the present writ petition is not maintainable in view of the fact that there is an alternative remedy available as per Rule 150 of the Petroleum Rules 2002. Instead of approaching the District Authority or the State Government for cancellation of No Objection Certificate, the petitioner has filed this writ petition which is not maintainable. Learned counsel for the sixth respondent further submit that the Indian Road Congress Guidelines are only directly and mandatory. Discussion:
30. The first respondent has issued No Objection Certificate to the sixth respondent only by following the due procedure established under law. The first respondent has obtained No Objection Certificates from all the concerned departments/authorities and the details of which are as follows:
(a) The Commissioner, Yanam Municipality, Yanam,
b) The Executive Engineer, PWD, Yanam,
(c) The Junior Town Planner, Town & Country Planning Department, Yanam, 22/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022
(d) The Inspector of Police, Yanam,
(e) The Deputy Tahsildar (Revenue), Yanam and
(f) The Station Officer, Fire Service Unit, Yanam.
Only after obtaining No Objection Certificates from the aforementioned Departments/authorities, the first respondent has issued the impugned No Objection Certificate in favour of the sixth respondent.
31. The objections raised by the petitioner in respect of distance between two fuel stations is not maintainable as per the guidelines issued by the Ministry of Road Transport and Highways, Government of India dated 26.06.2020 which reads as follows:
Distance 300m* - For both divided and undivided carriageway *(including between deceleration and acceleration lanes).
two fuel
stations However, this restriction shall not apply in case access/egress
for all such fuel stations are provided through common service road of 7.0m width and not directly to NH. Further, access for fuel stations at closer proximity than 300m may be allowed provided entry/exit for both Fuel Stations are provide through service road of 7.0m width having sufficient length; further, additional length of such service road shall be constructed at the cost of the later fuel station owner/company seeking grant of permission for access for the facility.23/36
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32. In the case on hand, a service road with width of 7.50 meters has been developed by the National Highways Authority of India along section of NH-216 which is providing ingress/egress to petitioner's fuel station and will also provide ingress/egress for the proposed fuel station. The first respondent has categorically stated that only in accordance with the guidelines issued by the Ministry of Road Transport and National Highways, Government of India dated 26.06.2020, the impugned “No Objection Certificate” has been issued in favour of the sixth respondent.
33. Insofar as the objections raised with regard to the alleged violation of the guidelines issued by the Pollution Control Board, Puducherry is concerned, the first respondent has given sufficient explanation in its counter affidavit. The details of the explanation submitted by the first respondent reads as follows:
Description of CPCB Guide Status/Report as at site and as per Lines local laws in comparison to the CPCB Guidelines.
New Retail outlets shall not be A school is existing 130.00 mts away
located within a radial distance of from the new proposed retail outlet of the
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W.P.No.10573 of 2022
Description of CPCB Guide Status/Report as at site and as per
Lines local laws in comparison to the CPCB
Guidelines.
50 meters (from fill point M/s. HPCL which is satisfying the criteria
/dispensing units / vent pipe which of CPCB guidelines is nearest) from schools New Retail outlets shall not be No hospital is existing within 100 mts located within a radial distance of radius of the newly proposed retail outlet 50 meters (from fill point / of the M/s. HPCL which is satisfying the dispensing units / vent pipe which criteria of CPCB guidelines is nearest) from hospitals (10 bends and above).
New Retails outlets shall not be The entire land in T.S.NO.C/7/16/1pt out located within a radial distance of of which in a part where the new 50 meters (from fill point / proposed outlet of M/s. HPCL is dispensing units / vent pipe which designated as Commercial Zone as per is nearest) from Residential Areas the Comprehensive Development Plan of designated as per local laws. In the Yanam region. The remaining land of case of constraints in providing 50 the above Survey Number is classified mts distance, the retail outlet shall as Residential Zone. This land of implement additional safety residential zone in the above Survey measures as prescribed by PESO. Number is existing 42.00 mts away from In no case the distance between the new proposed out let of M/s. HPCL new retail outlet from schools, (from proposed fill point / dispensing hospitals and residential area units to the edge of the residential zone). designated as per local laws shall More over as per the local law, i.e. be less than 30 mts. Puducherry Building Bye Laws and Zoning Regulations, 2012 petrol bunks are permitted in Residential zones also.
However, since the designated residential zone / area is located at a radial distance of less than 50.00 mts.
But more than 30.00 mts, NOC was issued subject to satisfying additional safety measures as prescribed by PESO.
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34. After giving its explanation, the first respondent has categorically pleaded that the sixth respondent has not violated the guidelines of Ministry of Road Transport and Highways, Government of India dated 26.06.2020 and office memorandum of Central Pollution Control Board, New Delhi dated 07.01.2020. The Division Bench of this Court in the case of Nataraja Agencies vs. Secretary, Ministry of petroleum & others reported in (2005) 1 CTC 394 has followed the decision of the Hon'ble Supreme Court in the case of Mithilesh Garg vs. Union of India reported in (1992) 1 SCC 168 and held that a business rival cannot maintain a writ petition. The relevant paragraph of the aforesaid decision reads as follows:
“3. The Supreme Court in Mithilesh Garg v. Union of India, , held that a rival businessman cannot file a writ petition, challenging the setting-up of a similar unit by another businessman, on the ground that establishing a rival business close to his business-place would adversely affect his business interest, even if the setting-up of the new unit is in violation of law. In Mithilesh case, cited supra, the Supreme Court followed its own decision in Rice and Flour Mills v. N.T. Gowda, , wherein it was held that a rice mill-owner has no locus standi to challenge under Article 26/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 226, the setting up of a new rice-mill by another even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.
4. In the present case, the only grievance of the appellant is that if the fourth respondent is permitted to set up her retail outlet within one kilometer radius of the appellant's outlet, his business interest would be adversely affected. In our opinion, the appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was damnum sine injuri-adamage without infringement of legal right. In our opinion, this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates.” 27/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022
35. The aforesaid decision has also been followed in the case of Palani Murugan Agencies vs. District Collector reported in (2005) 1 LW 792 and P.Selvi vs. District Magistrate & Others reported in AIR 2021 MAD 27. In the case on hand, admittedly the petitioner is having a petroleum filling station in the very same area where the proposed petroleum outlet is likely to be established by the sixth respondent. Being a competitor as held in the aforesaid decisions, the present writ petition is not maintainable.
36. The petitioner is a third party to the impugned no objection certificate. A mere violation of provision of law is not sufficient to enable the third party to challenge the impugned No Objection Certificate. This Court in its decision namely Pattukottai Azhagiri Transport Corporation Limited vs. V.K.Velayutham & Sons, Imperial Motor Services and others reported in (1993) 1 MLJ 249 reiterated the said proposition which reads as follows:
“19. In the Nogar Rice and Flour Mills and Ors. v. N. Teekappa Gowda & Brothers and Ors. , it was held that a 28/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 rice mill owner had no locus standi to challenge under Article 226 of the Constitution of India, the setting up of a new rice mill by another, even if it was in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958), because no right vested in such a person was infringed. The position was reiterated in Nasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed. It was held that a rival in trade, in that case a cinema theatre owner, had no locus standi to invoke the special jurisdiction under Article 226 of the Constitution of India.
20. Following the said rulings, a Full Bench of this Court held in M.L. Krishnamurthy v. The District Revenue Officer, Vellore (1989)2 LW. 442, that an existing rice mill owner was not a person aggrieved, when permit or licence under the Rice Milling Industry (Regulation) Act was granted to another person, for entitling him to file a writ petition challenging the grant. In Mithilesh Garg, etc. v. Union of India and Ors. etc. etc. , already referred to in this judgment, the Apex Court has quoted in extenso the observations made by Sarkaria, J., in J.M. Desai's case , and reiterated the proposition. In the circumstances, the petitioner is not a person aggrieved to maintain the writ 29/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 petition against the grant of permit to the first respondent with curtailment.”
37. The subject retail outlet having been established as per the policy of the sixth respondent, the petitioner cannot invoke the guidelines framed by the sixth respondent for the purpose of questioning the establishment of petroleum fuel station by the sixth respondent. The guidelines of the sixth respondent relied upon by the petitioner has no relevance to the case on hand. There is also an appellate remedy available to the petitioner if aggrieved by the issuance of the impugned No Objection Certificate under Rule 150 of the petroleum Rules 2002 which is extracted hereunder:
“150. Cancellation of no-objection certificate.-
(1) A no-objection certificate granted under rule 144 shall be liable to be cancelled by the District Authority or the State Government, if the District Authority or the State Government is satisfied, that the licensee has ceased to have any right to use the site for storing petroleum:
Provided that before cancelling a no-objection certificate, the licensee shall be given a reasonable opportunity of 30/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 being heard.
(2) A District Authority or a State Government cancelling a no-objection certificate shall record, in writing, the reasons for such cancellation and shall immediately furnish to the licensee and to the licensing authority concerned, copy of the order cancelling the no-
objection certificate.”
38. The petitioner has not exercised the said appellate remedy, but instead has chosen to file this writ petition. When the first respondent has issued No Objection Certificate for the sixth respondent based upon various statutory reports that too, when the petitioner themselves do not claim that they are bogus, this Court while exercising jurisdiction under Article 226 of the Constitution of India cannot make a roving enquiry with regard to those certificates given by the experts in their respective fields. The Indian Road Congress Guidelines relied upon by the petitioner is also not mandatory as held by the various decisions of this Court.
39. Some of the grounds raised in this writ petition were also raised in 31/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 a recent decision dated 21.06.2022 rendered by the First Division Bench of this court is somewhat identical matter in W.P.Nos.4321 of 2020 & 2951 of 2022 and were rejected. Even in that decision, the proposed petroleum outlet was located in the service road along with another existing petroleum outlet. The Division Bench of this Court refused to entertain the challenge to the No Objection Certificate granted for establishment of a new petroleum retail outlet. It held as follows:
“25. The argument of learned Senior Counsel appearing for the third respondent is about the application of the said guidelines of MORTH (Ministry of Road Transport and Highways). It is submitted that the retail outlet would not be on the national highways, but on the service lane and thereby the guidelines of the MORTH are not applicable. The statement aforesaid has been supported by learned counsel appearing for the NHAI. It is stated by him that the guidelines of MORTH would not be applicable if the retail outlet is brought on the service lane, but would apply only when it is established on the national highways.” In the instant case also, the petroleum retail outlet to be established by the 32/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 sixth respondent is not going to be located in the highways, but is going to be located in the service lane.
41. For the foregoing reasons, this Court does not find any merit in this writ petition. Accordingly, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
06.07.2022 nl 33/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 To
1.The Regional Administrator – cum -
Sub – Divsional Magistrate, Office of the Sub-Divisional Magistrate, Government of Puducherry, Yanam.
2.The Project Director, Ministry of Road Transport and Highways, Government of India, Project Implementation Unit, Machilipattinam, Door No.41 – 1 / 12 – 2, Donka Road, Krishna Lanka, Vijayawada – 520 013.
3.The Joint Chief Controller of Explosives, Ministry of Commerce and Industry, Government of India, Petroleum & Explosives Safety Organization (PESO), Room No.602, Sixth Floor, C.G.O. Towers, Kavadiguda, Secunderabad – 500 080.
4.The Executive Engineer to the Government of India, Ministry of Road Transport & Highways (S & R (P&B) Section), Transport Bhawan, No.1, Parliament Street, New Delhi.
5.The Member Secretary, Pondicherry Pollution Control Committee, Housing Board Complex, Anna Nagar, Puducherry – 600 005.
34/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022
6.The Divisional Manager, M/s.Hindustan Petroleum Corporation Limited, Visakha Regional Office, Petro Nilayam, Post Box No.135, Visakhapatnam – 530 003.
ABDUL QUDDHOSE, J.
nl Pre-Delivery order in W.P.No.10573 of 2022 35/36 https://www.mhc.tn.gov.in/judis W.P.No.10573 of 2022 06.07.2022 36/36 https://www.mhc.tn.gov.in/judis