Punjab-Haryana High Court
Kulwant Rai Kataria vs State Of Punjab And Others on 3 November, 2012
Author: Surya Kant
Bench: Surya Kant
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Letters Patent Appeal No.1744 of 2012(O&M)
Date of Decision : November 03, 2012
Kulwant Rai Kataria .....Appellant
versus
State of Punjab and others .....Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE R.P.NAGRATH.
Present : Mr.J.S.Dhaliwal, Advocate, for the appellant.
-.-
1. Whether Reporters of Local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Surya Kant, J. (Oral)
This letters patent appeal is directed against the order dated 21.08.2012 passed by learned Single Judge, dismissing the appellant's writ petition wherein challenge was laid to 'No Objection Certificate' issued by the District Magistrate, Ferozepur for installation of a new petrol pump/retail outlet by Bharat Petroleum Corporation Limited at old National Highway No.15 (New National Highway No.54) near Kilometer Stone No.203 at village Kot Karor Kalan on Mudki-Zira Road.
The appellant is proprietor of Jai Maa Filling Station at Mudki on the above-mentioned National Highway. Pursuant to an advertisement dated 10.5.2010 (Annexure P-1), issued by Bharat Petroleum Corporation Limited (for short 'the BPCL) inviting bids for land and for setting up a retail outlet, the site in dispute which is statedly at a distance of 2.8 kilometers from the appellant's Filling Station, has been selected and the impugned No Objection Certificate in relation thereto has been issued by the District Magistrate, Ferozepur. It may be mentioned here that in the afore-stated advertisement, it was categorically stated that "the land offered on a National Highway should not be in LPA No.1744 of 2012 (O&M) [2] 1km radius from toll bridge/NH-SH-MDR crossing and should preferably be at least 1 km away from the nearest existing Retail Outlet on the same side. Land should be plain, at road level, in one contiguous lot".
The appellant came to know about the advertisement and is said to have represented against it on 27.12.2010 (Annexure P-5), inter- alia, pointing out that the site being offered or proposed was in total disregard to the statutory instructions/circulars dated 25.9.2003, 15.7.2004 and 14.9.2006 (Annexures P-2, P-3 & P-4, respectively). The first circular issued by the Ministry of Road Transport and Highways contains clause 6 that the site of fuel stations on National Highway should have minimum distance of 1000 meters from the intersection. The second set of instructions issued by the Ministry of Environment & Forest lay down that the entry to a fuel station should be through an approach road of maximum 70 meter length and 5.5 meter width and that "the minimum distance between two fuel stations on each side of the road, should be less than 5 kilometers". The third instructions relied upon by the appellant have been issued by the Conservator of Forests, South Circle, Punjab, clarifying and reiterating that minimum distance between two fuel stations should not be less than 5 kilometers on either side of roads outside the city limits on Highways. These instructions further clarify as follows:-
"....(iii) If 2 more fuel stations are to be constructed in close proximity or adjacent to each other for some reasons, a common access and exit shall be provided. However, this condition shall not apply if no tree felling is involved..."
It also appears that the appellant's wife sought information under Right to Information Act, 2005 and the Public Information Officer, office of the Deputy Commissioner, Ferozepur vide reply dated 1.3.2011 informed her that "before taking a final decision, you shall be given an opportunity of hearing and the objection raised by you shall be considered."
LPA No.1744 of 2012 (O&M) [3]Since the District Magistrate granted the impugned 'No Objection Certificate' without giving an opportunity of hearing to the appellant as per the promise made by the Public Information Officer and also allegedly violated the circulars/instructions referred to above, the appellant approached this Court in Civil Writ Petition No.15939 of 2012. As has been noticed at the outset, the learned Single Judge has dismissed the writ petition in limine broadly on the ground that the instructions relied upon by the appellant do not confer any legally vested right nor he has any locus-standi to question the sale transaction pertaining to the land where the second retail outlet is proposed to be set-up. The objection regarding violation of principles of natural justice has been turned down observing that the appellant failed to show any requirement under law to give such an opportunity.
Still aggrieved, the appellant has preferred this appeal. We have heard learned counsel for the appellant at some length and gone through the record.
A Division Bench decision of High Court of Kerala dated 19.10.2011 in W.A.No.764 of 2011 (Sreekumaran K.Sivaprasad versus Hindustan Petroleum Corporation Limited and others) 2011(4) KLJ 457, has been cited to contend that the existing petrol pump which is likely to be affected by installation of a new retail outlet has got locus-standi and is entitled to seek redressal of its grievance.
Having heard his learned counsel on the premise that the appellant is entitled to seek judicial review of the process of granting approval for installation of second petrol pump on old Highway No.15 (New Highway No.54), we are of the considered view that no interference with the order under appeal is called for. We say so for the reason that firstly in the advertisement dated 10.5.2010 (Annexure P-1), it was categorically stipulated that the land offered on the National Highway should preferably be at least one kilometer away from the nearest existing retail outlet on the same side and it should not be in one kilometer radius from toll bridge and intersection. The appellant himself has placed on record the site plan (Annexure P-10) which depicts that the LPA No.1744 of 2012 (O&M) [4] proposed site is at a distance of 2.8 kilometers from his existing retail outlet and that too when it is not on the same side and is rather on the opposite side of the National Highway. The selection/short-listing of the site is thus consistent with the terms and conditions stipulated in the advertisement to which the appellant laid no challenge at the relevant time. As regard to alleged violation of the instructions/guidelines issued by the Ministry of Road Transport and Highways (Annexure P-2), the appellant alleges that there is an intersection at a distance of 600 meters from the proposed site. In our considered view, these guidelines do not vest the appellant with any legally enforceable right. If installation of the proposed retail outlet is likely to cause inconvenience to the public at large, the appellant who has approached this Court in his personal capacity, cannot be their mouth piece. Similarly, the guidelines issued by the Ministry of Environment and Forest, pertain to protection of the forest land and even these instructions are not mandatory in nature to be viewed as a Statute. The alleged violation of these instructions, if any, ought to have prompted the appellant to approach the Ministry concerned against the advertisement (Annexure P-1) itself but he remained silent for the reasons best known to him and started representing only when the site had been finalized. The order under appeal thus calls for no interference in exercise of our appellate jurisdiction particularly when installation of more and more retail outlets undoubtedly would benefit the consumer public and provide them better services.
Dismissed.
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(SURYA KANT)
JUDGE
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November 03, 2012 (R.P.NAGRATH)
Mohinder JUDGE