Allahabad High Court
Saksham Foundation Charitable Society ... vs U.O.I. Thru. Secy. Environment Forest & ... on 12 July, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- P.I.L. CIVIL No. - 882 of 2019 Petitioner :- Saksham Foundation Charitable Society Thru. President Respondent :- U.O.I. Thru. Secy. Environment Forest & Climate Change & Ors Counsel for Petitioner :- Anagh Misra Counsel for Respondent :- C.S.C.,A.K.Verma,Abhishek Singh,Chandra Shekhar Pandey,Kuldeep Srivastava,Manik Mishra,Manish Jauhari,S.M.Singh Royekwar,Sikhar Anand Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
(1) Heard Sri Anagh Singh, learned counsel for the petitioner, learned Standing Counsel for respondent no.2, Sri Anurag Kumar Singh, learned counsel for the respondent nos. 1 and 5, Sri Jaideep Narain Mathur, Senior Advocate, assisted by Sri Shikhar Anand and Sri Manish Jauhari, learned counsel for the respondent nos. 6 to 8 and Sri Abhishek Singh, learned counsel for the respondent no.3.
(2) In this Public Interest Litigation, Saksham Foundation Charitable Society, writ petitioner herein, has sought following reliefs :
"i. Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities for installation of Stage I and II Vapour Recovery Systems in all existing petrol refueling stations/distribution centers/terminals in the State.
ii. Issue a writ, order or direction in the nature of mandamus restraining the respondent No. 3 and 4 to monitor and submit a quarterly report on the action taken by respondent no. 6 to 8 in installing the vapour recovery systems throughout the State.
iii. Issue a writ, order or direction in the nature of mandamus restraining the respondent no. 6 to 8 from establishing any new petrol refueling stations till the exercise of installation of Vapour Recovery System is carried out at all the existing petrol refueling Stations in the State.
iv. Issue any other writ, order or direction as may deem fit and proper in the circumstances of the case.
v. Award the cost of this petition to the petitioner."
(3) A preliminary objection has been raised by Sri Jaideep Narain Mathur, Senior Advocate, appearing on behalf of the respondent nos. 6 to 8 regarding maintainability of the present writ petition and has submitted that in respect of National Capital Territory of Delhi, identical issue is pending before National Green Tribunal, Principal Bench, New Delhi, in Original Application No. 147 of 2016 : Aditya N. Prasad Vs. Union of India & others. He has drawn our attention towards the order dated 28.9.2018 passed in aforesaid original application by the National Green Tribunal, New Delhi, wherein the learned Tribunal directed all the Oil Companies, Central Pollution Control Board and Ministry of Petroleum & Natural Gas to ensure that necessary steps are taken by all the concerned and in respect of petrol pumps selling more than 300 KL per month, the directions must be required to comply with preferably on or before 31.12.2018 and with regard to remaining on or before 31.12.2018.
(4) Sri Mathur has submitted that the aforesaid order dated 28.9.2018 was challenged by the Indian Oil Corporation Ltd. before the Apex Court vide Civil Appeal No. 161-163 of 2019 : M/s Indian Oil Corporation Limited vs. Aditya N. Prasad & others. The Apex Court, vide judgment and order dated 14.2.2019, disposed of all the appeals by extending the time schedule.
(5) Elaborating his submission, Sri Mathur has submitted that Public Interest Litigation (PIL) No. 402 of 2019 : Bhartiya Parvez Islam Vs. Union of India and 6 others, has been filed at Allahabad High Court, wherein prayer has been made to quash the advertisement dated 25.11.2018 issued by the Oil Companies by means of which 127 additional retail outlets (petrol pumps) are proposed to be established in District Moradabad. A Division Bench at Allahabad High Court, vide judgment and order dated 26.4.2019, while placing reliance upon Jaipur Sahar Hindu Vikas Samiti Vs. State of Rajasthan and others : (2014) 5 SCC 530, dismissed the writ petition with cost of Rs.50,000/-. He further submits that High Court of Madhya Pradesh at Indore in writ petition No. 1294 of 2019 : Manthan Parmarthik Sanstha Vs. Union of India and others, had dismissed identical writ petition on 19.2.2019. Similarly, High Court Uttarakhand at Nainital in writ petition (PIL) No. 16 of 2019 : Samajik Evam Gramin Shiksha Vikas Samiti and another Vs. Union of India and others, had also dismissed the similar writ petition on 1.3.2019.
(6) With the aforesaid submissions, Sri Mathur has submitted that the present writ petition is not maintainable and if the petitioner society is really aggrieved, then, he can file application before the National Green Tribunal regarding issuance of the directions to install Stage-I and Stage-II Vapour Recovery Systems in all existing petrol refueling stations/distribution centers/terminals in the State of Uttar Pradesh.
(7) Per contra, learned counsel for the petitioner has submitted that the issued involved in this writ petition is very important and it concerns with the life of millions of citizens. According to writ petitioner, during transfer of petroleum products, Volatile Organic Compounds (VOC) are released which causes large numbers of molecules to evaporate or sublimate from the liquid or solid form of the compound and enter the surrounding atmosphere, petroleum products contain traces of Benzene, Toluene and Xylene (BTX) which are highly toxic in nature. A Co-ordinate Bench of this Court, after hearing learned counsel for the petitioner and learned counsel for the respondents 1, 2, 4, 5, 6, 7 and 8, issued notice to respondent no.3 vide order dated 11.1.2019 and, thereafter, counter affidavit has been filed. Now, at this stage, when the matter is to be heard finally, preliminary objection raised by the learned counsel for Oil Companies is not maintainable and prays for deciding the matter on merit.
(8) However, it is fairly admitted by the learned counsel for the petitioner that one Public Interest Litigation has been dismissed by the Allahabad High Court on 26.4.2019 (supra) but in the aforesaid Public Interest Litigation No. 402 of 2019, reliefs No. 1 and 2 as claimed in the present public interest litigation were not claimed, therefore, the present writ petition cannot be dismissed in the light of the order dated 26.4.2019 (supra).
(9) In order to appreciate the rival submissions of the learned counsel for the parties, it would be apt to reproduce the order dated 26.4.2019 passed in Public Interest Litigation (PIL) No. 402 of 2019, which is as under :
"1. Heard Sri Jai Krishna Tiwari, learned counsel for petitioner, Learned Standing Counsel for State-respondent 3, Sri Anand Tewari, learned counsel for respondent 5, Sri Vikas Budhwar, learned counsel for respondents 6 and 7, Sri Mehul Khare, learned counsel for respondent 4.
2. This is thoroughly misconceived, ill advised and maliciously sponsored petition at the instance of those who have vested interest in the matter.
3. The only prayer in petition is that Advertisement dated 25.11.2018 inviting applications for opening of 127 Retail Outlets (Petrol Pumps) in District-Moradabad be quashed. The ground is that such opening of Retail Outlets will cause several economic problems, like hike of price of petrol etc.
4. Additional Retail Outlets at different places are opened for convenience of common public. Only those who have commercial interest in avoiding competition or addition of competitors, would get affected by such new outlets. They have no legal right to do so and in our view, this petition is not a bonafide one. Though filed as public interest litigation, but it is not in accordance with the directions given by Supreme Court in Jaipur Sahar Hindu Vikas Samiti vs State of Rajasthan and others, (2014) 5 SCC 530 has cautioned about frivolous Public Interest Litigation in following words :
"The concept of Public Interest Litigation is a phenomenon which is evolved to bring justice to the reach of people who are handicapped by ignorance, indigence, illiteracy and other down trodden people. Through the Public Interest Litigation, the cause of several people who are not able to approach the Court is espoused. In the guise of Public Interest Litigation, we are coming across several cases where it is exploited for the benefit of certain individuals. The Courts have to be very cautious and careful while entertaining Public Interest Litigation. The Judiciary should deal with the misuse of Public Interest Litigation with iron hand. If the Public Interest Litigation is permitted to be misused the very purpose for which it is conceived, namely to come to the rescue of the poor and down trodden will be defeated. The Courts should discourage the unjustified litigants at the initial stage itself and the person who misuses the forum should be made accountable for it. In the realm of Public Interest Litigation, the Courts while protecting the larger public interest involved, should at the time have to look at the effective way in which the relief can be granted to the people, whose rights are adversely affected or at stake. When their interest can be protected and the controversy or the dispute can be adjudicated by a mechanism created under a particular statute, the parties should be relegated to the appropriate forum, instead of entertaining the writ petition filed as Public Interest Litigation."
(emphasis added)
5. In view of above discussions and in our considered opinion, present writ petition does not qualify as a Public Interest Litigation at all. It is nothing, but a petition filed for extraneous considerations for personal gains, and, therefore, deserves to be dismissed with exemplary cost in order to discourage the writ petitioner from filing such frivolous Public Interest Litigation again.
6. The writ petition is, accordingly, dismissed with cost, which we quantify to Rs.50,000/-. "
(10) The Apex Court, vide judgment and order dated 14.2.2019 passed in Civil Appeal Nos. 161-163 of 2019 and connected appeals, disposed of all the appeals filed by Indian Oil Corporation Ltd. by passing the following order :
" Having heard Mr. Tushar Mehta, learned Solictor General and Mr. Aditya N. Prasad, we are cognizant of the fact that by a letter dated 12.02.2016 sent by the Central Pollution Control Board to all the oil companies, the equipment in question was to have been installed in 46 cities insofar as (above 300 KLD is concerned) by December, 2017 and that this has not yet been done.
The National Green Tribunal's order is, therefore, correct in principle. However, under the aegis of the learned Solicitor General, a meeting has been called in which certain time-lines were discussed so that the aforesaid equipment could be set up within a realistic time-frame both in the NCT as well as in NCR.
So far as Stage 1-A is concerned, a device is installed at the filling depots/terminals. So far as the Stage 1-B is concerned, a separate device (VRD) is installed on the tanks of the retail outlets i.e. petrol pumps where petroleum products are stored underground.
Stage 2 is where a third category of device (VRD) is fitted in the dispensing units of each retail outlet. Each such dispensing unit has more than one nozzle and all the nozzles will have to be fitted with the aforesaid device.
Insofar as the NCT of Delhi is concerned, the learned Solicitor General has informed us that Stage 1-A has been completed by all the three oil companies.
So far as Stage 1-B is concerned, he says a realistic estimate of time would be by 30.06.2019.
We, therefore, extend the time so far as Stage 1-B & Stage 2 are concerned to 30.06.2019.
We have also taken on record the undertakings given by the authorized persons of each of the three oil companies to see that the aforesaid time-line is strictly adhered to.
Insofar as the NCR is concerned, this has been divided into two different groups: those are selling more than 300 Klspm and those selling less than 300 Klspm.
Insofar as the first category is concerned, the time schedule is extended, insofar as Stage 1-A is concerned till 31.03.2020. So far as the Stage 1-B and 2 are concerned, the time schedule is extended till 31.08.2019.
Insofar as retail outlets selling less than 300 Klspm in the NCR are concerned, so far as Stages 1-A and 1-B are concerned, time is extended till 31.03.2020. So far as Stage 2 is concerned, time is extended till 30.09.2020.
For this also, we have taken on record the requisite undertakings to adhere strictly to the aforesaid time-lines.
In this view of the matter, the NGT orders stand substituted.
The appeals are disposed of accordingly.
Pending applications also stand disposed of"
(11) The High Court of Madhya Pradesh also dismissed writ petition No. 1294 of 2019 by passing the following order on 19.2.2019 :
"Shri A.S. Garg and A.S. Kutumble, learned senior counsel along with Shri L.R. Bhatnagar, learned counsel for the petitioner.
Shri Yogesh Mittal, learned counsel for respondent No.4.
Shri Dilip Kshirsagar, learned counsel for respondent No.5.
Shri Aniket Naik, learned counsel for respondent No.6.
The petitioner before this Court, Manthan Parmarthik Sanstha, a society registered under the Madhya Pradesh Society Registration Adhiniyam, 1973 has filed this present petition against Indian Oil Corporation, Bharat Petroleum and Hindustan Petroleum being aggrieved by the issuance of advertisement for establishment of new retail outlets vide notification dated 14.12.2018.
2. The petitioner's contention is that approximately there are 55,600 retail outlets of all categories in the country and after the locations in respect of the retail outlets advertised is taken into account, there will be about 80,948 retail outlets in the country.
3. It has also been stated that in the advertisement, which has been filed by the petitioner, details have not been furnished in respect of the locations of the retail outlets and the oil companies are establishing the retail outlets in an arbitrary manner. The petitioner has given the details of retail outlets, which is already existing in the writ petition and has stated that the procedure to establish retail outlets has been prescribed by the Petroleum & Natural Gas Regulatory Board and various guidelines have also been issued by the Central Government from time to time for establishment of retail outlets. It has been argued that the respondents are not following the prescribed procedure.
4. It has also been stated that Indian Road Congress has issued various guidelines for establishment of retail outlets and in light of the judgment delivered in the case of Baseer M.M. v/s The State of Kerela dated 19.10.2011, the retail outlets in the manner and method they have been advertised, cannot be established.
5. It has also been stated that fee for SC & ST candidates has been enhanced and new retail outlets will be great hazard to the environment. It has also been stated that establishment of the retail outlets is contrary to the Fundamental Rights guaranteed to the citizens of India under Articles 14, 19 and 21 of the Constitution of India. A ground has been taken that establishment of retail outlets will degrade the air, it will create noise and water pollution and will result in deforestation also.
6. It has also been argued before this Court that retail outlets are being established at the eve of Lok Sabha Election and all the advertisement deserves to set aside.
7. Amendment application has also been filed in the matter and this Court has allowed the amendment application on 06.02.2019. Counsel for oil companies have also marked their presence in the matter. Shri Yogesh Mittal has marked his presence for respondent No.4, Shri Dilip Kshirsagar has marked his presence for respondent No.5 and Shri Aniket Naik has marked his presence for respondent No.6.
8. This Court has carefully gone through the writ petition and has heard Shri A.S. Garg, learned senior counsel at length.
9. The establishment of retail outlets is not at the sweet will of any oil company. The oil company in consultation with each other as well as the instruction issued from time to time by the Petroleum & Natural Gas Regulatory Board, frames a roster, and thereafter, the locations are advertised. The location, so advertised, contains all minute details and in the advertisement, which has been filed by the petitioner, details of the website of oil companies / allotting agencies find place and all minute details are available on the website.
10. It has been argued with great force that the commission which the present dealers are receiving from the oil companies will be divided in large number of people on the ground of establishment of retail outlets.
11. This Court is of the considered opinion that no person is being forced to open a retail outlets or to carry out the business of selling petrol / other petroleum product. If a person has entered into an agreement with an oil company as per his / her sweet will, profit & loss is the subject matter between the dealer and oil company and simply because the dealer will get less profit, it cannot be a ground for treating the petitioner's petition as a Public Interest Litigation Writ Petition.
12. Heavy reliance has been placed upon a judgment delivered by the Kerela High Court dated 19.10.2011 in the case of Baseer M.M. (supra) in W.A. No.741/2011. The aforesaid judgment was reversed and set aside by Hon'ble the Apex Court vide order dated 02.04.2018 passed in SLP (Civil) No.1728-1736/2012.
13. The Government of India has scrapped Administrative Price Mechanism in respect of petroleum product in the year 2002, and thereafter, all the oil companies are free to open new retail outlets anywhere, at any place and in any number. The opening of retail outlet is purely a prerogative of all the oil companies, however, the same has to be done keeping in view the instruction issued by the Government of India as well as the regulatory body i.e. Petroleum and Natural Gas Regulatory Board guidelines.
14. The petitioner has not been able to point out violation of any statutory provisions of law nor by any stretch of imagination, it can be said that it is a Public Interest Litigation. Under the Petroleum Act read with Petroleum Rules, No Objection Certificate is required to be obtained from Pollution Control Board, Town and Country Planning Department, Municipal Corporation, Collector and District Magistrate and as there are already statutory rules, the question of interference by this Court in a Public Interest Litigation doesn't arise.
15. The petitioner's concern in respect of environment certainly requires consideration by this Court. However, the issue relating to adverse impact on environment is already a subject matter in the case of Gyanprakash @ Pappu Singh v/s Union of India & Others pending before the National Green Tribunal, Principal Bench, New Delhi in O.A. No.86/2019 dated 18.01.2019. The Principal Bench on 18.01.2019 has passed by the following orders:-
"The issue raised in this application is to limit number of petrol pumps so as to avoid adverse impact on the environment.
The applicant has referred to news item dated 24.12.2018 in 'Live Mint' under the heading "Indian Oil, HP and BP's plan to open 80,000/- petrol pumps hits land hurdle" to submit that large number of petrol pumps are being opened without any concern for environment and without any guideline about sustainability of such large number of petrol pumps.
Reference has been made to the guidelines issued by Indian Road Congress " General Conditions of Siting" laying down distance from the highways and distance between the two fuel stations. Photographs of unregistered and indigenously assembled vehicles have also been filed with further averments that such vehicles create air pollution and safety hazardous.
We are of the view that matter needs to be looked into by a Joint Committee of representatives of the Central Pollution Control Board and the Ministry of Petroleum. The CPCB will be the nodal agency. The first meeting of the Committee may be held within one month and on review of the subject matter, appropriate guidelines be issued by the Central Pollution Control Board, in exercise of its statutory power within three months thereafter.
The Central Pollution Control Board may furnish an action taken report to the Tribunal by emain at [email protected] on or before 30th April, 2019.
The application is disposed of.
Put up the report for consideration on 05.07.2019."
16. So far the issue of adverse impact on environmentis concerned, the National Green Tribunal is already dealing with the matter and there cannot be parallel proceedings before this Court or before the National Green Tribunal in respect of adverse impact of environment.
17. The same advertisements, which are subject matter of the present writ petition were challenged by local dealer before this Court and this Court by an order dated 11.02.2019 passed in W.P. No.2001/2019 (Munnalal Agrawal & Another v/s Union of India & Others) has dismissed the writ petition.
18. In the considered opinion of this Court, the present petition is nothing, but an attempt to restrain the oil companies from opening retail outlets at the behest of existing dealers. This Court does not find any reason to entertain the present PIL and the same is accordingly dismissed.
Certified copy, as per rules."
(12) The High Court of Uttarakhand also dismissed writ petition No. 16 of 2019 vide judgment and order dated 1.3.2019, which is reproduced as under :
"Heard Sri Vikas Bahguna, learned counsel for the petitioners, Sri V.K. Kohli, learned Senior Counsel appearing on behalf of the 4th respondent, Sri Shailendra Singh Chauhan, learned counsel for the 5th respondent and Sri Shobhit Saharia, learned counsel for the 6th respondent and, with their consent, this writ petition is being disposed of at the stage of admission.
2. The policy decision of the Government of India, to establish several petroleum retail outlets throughout the country, is subjected to challenge in this writ petition on the ground that prior consent of the second respondent has not been obtained; increase in the number of petroleum retail outlets would result in a concomitant increase in petroleum consumption, and would result in increased air pollution; it would cause needless competition among retail outlets, putting the viability of the existing units in jeopardy; it is unnecessary to establish more retail outlets as at present, as the Government is coming out with an alternative fuel policy; and a multifold increase in the number of petroleum retail outlets would, therefore, result in needless wastage of public money.
3. While Sri V.K. Kohli, learned Senior Counsel and the other learned counsel appearing for the respondents, would question the locus standi of the petitioner, and would contend that the petitioner is merely a front for the existing petroleum retail outlet dealers, and their endeavour is only to prevent others from establishing their petroleum retail outlets, and thereby avoid competition, we are satisfied that, even on merits, the petitioners have not been able to make out a case warranting interference by this Court.
4. The questions, whether the existing outlets would suffice to cater to the ever-increasing demand; whether establishment of such outlets would be rendered redundant because of the proposed change in consumption of alternative fuel, etc. are all matters of policy which are in the executive realm, and this Court would, ordinarily, not examine such issues in proceedings under Article 226 of the Constitution of India, save violation of Part-III of the Constitution of India, or any other law in force.
5. Sri Vikas Bahuguna, learned counsel for the petitioners, is unable to show us any statutory violation on the part of the respondents, apart from Section 11 of the Petroleum And Natural Gas Regulatory Board Act, 2006 (for short the "2006 Act"). Learned counsel would rely on Section 11 to submit that prior consent of the Regulatory Board is required before petroleum retail outlets are established.
6. Section 11 of the 2006 Act only deals with the functions of the Regulatory Board, and does not stipulate that prior consent of the Regulatory Board is required for the Petroleum Corporations to establish petroleum retail outlets.
7. As far as the petitioners' complaint, that increase in the number of petroleum outlets would cause multifold increase in air-pollution, is concerned these are matters which are required to be examined by the Government of India on their attention being drawn to the possibility, of a substantial increase in the number of petroleum retail outlets, resulting in increased air-pollution.
8. Suffice it, in such circumstances, to permit the petitioners to make a representation to the Secretary, Ministry of Petroleum and Natural Gas, New Delhi furnishing material in support of their claim that an increase in the number of petroleum outlets, being established throughout the country, would cause multifold increase in air-pollution. We have no reason to doubt that, on such a representation being made by the petitioners, the Secretary, Ministry of Petroleum and Natural Gas, New Delhi will give such a representation its due consideration and, if need be, take necessary action thereafter in accordance with law.
9. Subject to the aforesaid observations, we see no reason to entertain this writ petition, as the locus standi of the petitioner is itself in doubt. The writ petition fails and is, accordingly, dismissed."
(13) On due consideration of the aforesaid and also the fact that the writ petitioner is having statutory remedy to file an application before the National Green Tribunal under National Green Tribunal Act, 2010 and further the fact that the order of National Green Tribunal dated 28.9.2018 (supra) was subject matter of the Apex Court and the Apex Court disposed of all the civil appeals by extending the time schedule, we accept the preliminary objection raised by the learned counsel for Oil Companies and, therefore, we are not inclined to entertain this public interest litigation.
(14) The present public interest litigation is dismissed with liberty to the petitioner to raise his grievances by filing application before the National Green Tribunal under National Green Tribunal Act, 2010.
(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.)
Order Date :- 12.7.2019
Ajit/-