Madhya Pradesh High Court
Shailendra vs Smt.Saroj Bhatia on 24 July, 2014
Page no. 1
Writ Appeal no. 568/2014
24/07/2014
Mr. Shailendra Mukati, learned counsel for the
appellant.
Heard.
Present writ appeal has been filed by appellant
Shailendra S/o Ashok Kumar Jain aggrieved of the order
dated 18th March, 2014 passed in W.P. no. 9223/2012
2 The writ petition was filed by petitioner Smt Saroj
Bhatia aggrieved of the order dated 07th of May, 2013, by
which National Highway Authority of India rejected the
application of Indian Oil Corporation for construction of
Retail Outlet at National Highway no. 3 CH-527.021, Khasra
no. 182/2, Village- Rojwas Tehsil -Tarana Dist- Ujjain by the
petitioner. The writ petitioner had successfully obtained NOC
from various departments as mentioned in para 6 of the
impugned order which reads as under :
(1) Sanchlanalay Nagriya Prasasan
Evam Vikash on 31.1.13.
(2) Madhya Pradesh Paschim Kshetra
Vidyut Vitran Company, Tarana on 16.1.2013.
(3) District Civil Supply Department
Distt. Ujjain on 23.1.13.
(4) Dy. Director Town & Country
Planning Department on 9.1.13.
(5) Gram Panchayat Titodi and Janpad
Panchayat Taran dated 3.9.13.
Page no. 2
(6) Madhya Pradesh Pollution Control
Board on 29.12.12.
(7) Collector Office (food) Distt. Ujjain
on 28.1.13.
3 Thereafter, National Highway Authority of India
raised an objection which has been dealt with by the Writ
Court in para 7 of the impugned order which reads as under :
7. National Highway Authority of
India has raised an objection that a part of the
land bearing Khasra No.182/2 Village Rojwas
has been acquired by them and therefore they
are not granting the NOC. The selection of a
dealer to establish a Retail Outlet is based
upon the guidelines framed by the Oil
Companies and the Indian Oil Corporation
Ltd. has carried out an exhaustive survey of
the land in question and even though a part of
the land has been acquired, for the purpose of
construction of retail outlet the land
available is more than enough and is meeting
the parameters required for establishment of
a Retail Outlet. Learned counsel for the
Indian Oil Corporation Ltd. has categorically
stated in open court that the land which is
available on site after acquisition is more than
enough for establishing a Retail Outlet and is
meeting the requirements of the guidelines
framed by the Government of India as well as
Indian Oil Corporation Ltd. It has also been
stated that the land which is now available is
infact more than the land required to
establish a Retail Outlet. The National
Highway Authority of India has also stated
that there is already a petrol pump in
existence and minimum distance between two
fuel stations in National Highway should be
1000 meter, whereas in the present case the
distance between existing retail outlet and
Page no. 3
proposed toll plaza is 804 meter. A similar
explanation has been given in respect of other
grounds by the National Highway Authority of
India.
4 In para 8 of the impugned order, learned Single
Judge has relied upon the three judgments which were
delivered in similar circumstances, wherein the issue with
respect to establishing two petrol pumps within the distance
of 1 km was discussed. Para 8 is reproduced hereunder for
the sake of reference :
8. A similar problem arose in respect
of establishment of a Retail Outlet of the
Hindustan Petroleum Corporation Ltd. and
Madhya Pradesh Road Development
Corporation came up with similar plea before
this Court. This Court in the case of Amrish
Dangi Vs. Hindustan Petroleum
Corporation Ltd. & Ors (WP No.7123/11)
decided on 11.1.2013 in paragraphs 8 to 13 has
held as under :-
"8. In the present case, it is not
in dispute that the Hindustan Petroleum
Corporation Ltd. has issued a notice
inviting applications for appointment of
retail outlet dealers at various places
including Village Bistan, Khargone
District National Highway No.31 on
17.2.2009. The petitioner was selected by
the Hindustan Petroleum Corporation
Ltd. and finally a letter of intent was
issued on 12.9.11. It is not in dispute that
a NOC has been issued by the Collector.
Rule 144 of the Petroleum Rules, 2002
reads as under :-
"144. No objection certificate.-
(1) Where the licensing authority is the
Chief Controller or the Controller, as the
Page no. 4
case may be, an applicant for a new
license other than a license in Form III,
XI, XVII, XVIII or XIX shall apply to the
District Authority with two copies of the
site-plan showing the location of the
premises proposed to be licensed for a
certificate to be effect that there is no
objection to the applicant receiving a
license for the site proposed and the
District Authority shall, if he sees no
objection, grant such certificate to the
applicant who shall forward it to the
licensing authority with his application in
Form IX.
(2) Every certificate issued by
the District Authority under sub-rule (1)
shall be accompanied by a copy of the
plan of the proposed site duly endorsed by
him under his official seal.
(3) The Chief Controller or the
Controller, as the case may be, may refer
an application not accompanied by
certificate granted under sub-rule (1) to
the District Authority for his observations.
(4) If the District Authority,
either on a reference being made to him
or otherwise, intimates, to the Chief
Controller or the Controller, as the case
may be, that any license which has been
applied for should not, in his opinion, be
granted, such license shall not be issued
without the sanction of the Central
Government.
(5) The District Authority shall
complete his inquiry for issuing NO
OBJECTION CERTIFICATE (NOC) under
sub-rule (1) and shall complete the action
for issue or refusal of the NOC, as the
case may be, as expeditiously as possible
but not later than three months from the
date of receipt of application by him."
Page no. 5
9. The respondent-Collector keeping in
view the statutory provisions as contained under the Petroleum Rules has issued the NOC and various authorities have also issued the NOCs i.e. the Inspector General of Police (Fire) has issued a NOC on 6.6.11, the Town and Country Planning Department has issued a NOC on 31.5.11, the SDM has issued a NOC on15.3.11, the Gram Panchayat, Bistanand Janpad Gogava and Madhya Pradesh Pollution Control Board has issued a NOC on 24.6.11. Thus, various no objection certificates as required under various statutory provisions have been issued by the various authorities from time to time. Only impediment, which coming in the way of the petitioner for installing the petrol pump is order dated 8.8.11 passed by the Madhya Pradesh Road Development Corporation, which is based upon the guidelines framed by the Indian Road Congress, which provides that minimum distance between two fuel station should be 300 meter. In the present case, a new retail outlet which is going to be established and the NOC has been denied by the Madhya Pradesh Road Development Corporation only because there is already a retail outlet in existence near the site and the distance is less than 300 meters from the existing retail outlet. Clause 4.6.4 of the guidelines framed by the Indian Road Congress relied upon by the Madhya Pradesh Road Development Corporation reads as under:
"4.6.4 For installation of new fuel station within the 1000 m or 300 m distance of existing fuel station as the case may be, new entrant would be responsible for construction and maintenance of the common service road, Page no. 6 deceleration and acceleration lanes, drainage and traffic control devices. Wherever, available ROW is inadequate to accommodate such service roads, deceleration/acceleration lanes, etc. the additional land by the side of ROW to accommodate such service roads shall also be acquired by the new entrant Oil Company. In case of hilly/mountainous terrain, common service roads at all such locations may not be possible as per the site conditions and therefore, common access through service roads would not be a pre-condition."
10. The aforesaid clause permits for establishment of a retail outlet, even if the distance is less than 300 meters subject to construction and maintenance of the common service road, deceleration and acceleration lanes, drainage and traffic control devices. Thus, it is evident that there is no absolute bar in establishing the retail outlet, as held by the respondent No.3. Not only this, the Division Bench of Punjab and Hariyana High Court in the case of Environment Society of India, Chandigarh and another Vs. Administrator, Chandigarh Administration, Union Territory, Chandigarh and others, AIR 1998 Punjab and Haryana 94. In paragraph 20 in the aforesaid case has held as under :-
"20. Hither-to-fore, the Gas Stations/Petrol Pumps/Fuel Filing Stations have been sanctioned in areas reserved for commercial use. So is the situation in the present case. Nothing new or unusual has been done. Furthermore, what should be the distance between the two Petrol Pumps? The Indian Road Congress has undoubtedly recommended that it should be 300 mts. However, it is only a Page no. 7 recommendation. It is not mandatory provision of law. The Administration has categorically averred that it has not adopted the recommendations. In this situation, it cannot be accused of having acted illegally in sanctioning the site for the installation of the facility in dispute."
11. In view of the aforesaid judgment as the guidelines framed by the Indian Road Congress are only recommendatory in nature and does not have statutory force, the same cannot be made to be the basis for denying a NOC to the petitioner. A similar view has been taken by the Allahabad High Court in the case of Mahtab Ahmad Vs. Union of India Thru Prin. Sec. Mini of Pet. And others in W.P. No.43483 of 2010 and the same reads as under :-
"Heard learned counsel for the petitioner, Sri Vikas Budhwar, learned counsel appearing on behalf of respondent Nos. 2 to 5 and Smt. Nuzhat Praveen, learned counsel appearing on behalf of respondent No.1.
By this writ petition, petitioner has prayed for a mandamus directing the respondents not to establish any such fuel station nearby plot No. 275 and on 277. Petitioner's case in the writ petition is that petitioner is a proprietor of Petrol and Diesel Dealership of Aliganj Road, under the scheme of Adarsh Kisan Sewa Kendra.
Learned counsel for the petitioner submits that respondent No.6 is taking steps for establishment of another outlet for which license has been given on 18.11.2009. Learned counsel for the petitioner relying on a guideline issued by Indian Road Congress, 2009 submits that under Clause 4.5.1 of the said guideline at the place Page no. 8 where respondent No.6 is citing the outlet could not have been done.
Sri Vikas Budhwar submits that the guidelines on which petitioner is relying are issued by the Indian Road Congress which is not a statutory body and the guidelines have already been issued by the Government of India as well as by the Oil Companies for citing of the outlet and no breach is alleged of the aforesaid guidelines.
After considering the submissions of the parties we are of the view that the guidelines, annexure-1 to the writ petition which are said to be issued by the Indian Road Congress are not statutory guidelines which can be enforced by this Court under Article 226 of the Constitution of India.
Writ petition is accordingly dismissed."
12. Keeping in view the aforesaid judgment delivered by the Allahabad High Court in the case of Mahtab Ahmad (supra), this Court is of the considered opinion that the guidelines framed by the India Road Congress are not at all statutory guidelines and which can be enforced by this Court under Article 226 of the Constitution of India. Resultantly, the impugned order based upon the guidelines framed by the Indian Road Congress is accordingly quashed. In the present case, no other reason has been assigned by the respondent No.3 for denying the NOC to the petitioner and therefore, as this Court has quashed the impugned order, the petitioner and the respondent No.1 shall be free to establish a retail outlet as they have already obtained NOCs from various other authorities in accordance with law.
13. With the aforesaid, the writ petition Page no. 9 is allowed."
5 In view of the aforesaid, learned Single Judge has observed as under :
9. In the present case, the petitioner as well as the Indian Oil Corporation Ltd. have obtained No Objection Certificates required under the Petroleum Act 1934 read with the Petroleum Rules, 2002. In the case case of Amrish Dangi (supra) the distance between the existing Retail Outlet and the proposed Retail Outlet was less than 300 meter and this Court has allowed the writ petition preferred by Amrish Dangi. This Court in large number of cases has observed that the moment a new Retail Outlet is being established by the Oil Company, persons who are having existing Retail Outlets are filing complaints with the Oil Company or with the authorities, who are involved in the matter of grant of NOCs and based upon those complaints without verifying the statutory provisions as contained under the Petroleum Act 1934 read with the Petroleum Rules, 2002, No Objection Certificates are being denied to the proposed dealer/oil companies. This Court in the case of Amrish Dangi has observed that the guidelines framed by the Indian Road Congress are only recommendatory in nature and does not have any statutory force and therefore denial of NOC based upon the guidelines framed by the Indian Road Congress or on the basis of some letter of Chief Engineer, Director General, Road Development and Special Secretary, Govt. of India, Ministry of Road Transport and Highways dated 25.9.2003 is bad in law. The so called letter Page no. 10 of the Director General dated 25.9.2003 is certainly not at all a statutory notification. It has not been issued under the provisions of Petroleum Act nor under the provisions of Petroleum Rules. Even for a moment the letter dated 25.9.2003 is taken into account, the Appendix-I certainly provides for establishment of a new fuel station, even when the distance is less than 1000 meter.
Clause-4.4.3 and 4.4.4 of Appendix-I of letter dated 25.9.2003 filed by the National Highway Authority of India Ltd. reads as under :-
"4.4.3 If two or more fuel stations are to be sited in close proximity for some reasons, these would be grouped together to have a common access through a service road of 7.0 m width and connected to the highway through acceleration, deceleration lanes. From these considerations, the permission for the new fuel stations would be considered only if it is either in proximity to the existing one so that the common access can be provided or the new one located at the distance of more than 1000 m.
4.4.4.For installation of new fuel station within the 1000m distance of existing fuel station in plain/rolling terrain and 300m in hilly/mountains terrain and urban stretch, new entrant would be responsible for construction and maintenance of the common service road, deceleration & acceleration lanes, drainage and traffic control devices. In case of hilly/mountainous Page no. 11 terrain, common service roads at all such locations may not be possible as per the site conditions and therefore, common access through service roads would not be a pre- condition."
10. In light of the aforesaid, even though the letter enclosed alongwith the return has got no statutory value, a Retail Outlet can be established within the distance of 1000 meter of the existing fuel station. So far as the question of establishment of a fuel station within 1000 meter from toll-plaza is concerned, the toll plaza is not in existence at all. As the guidelines framed by the Indian Road Congress are not mandatory as held by this Court and as the letter dated 25.9.2003 is not statutory notification, denial of establishment of the Retail Outlet to the petitioner and denial of No Objection Certificate to Indian Oil Corporation Ltd. is amounting to violation of Fundamental Rights guaranteed to the petitioner under Article 19 (1)(g) of the Constitution of India. The record of the case further establishes that some one aggrieved in the matter on account of allotment of a Retail Outlet to the petitioner has started levelling all kind of frivolous allegations against him. It appears that the authorities of the National Highway Authority of India have given undue consideration to the so called complaint/objection raised in the matter. The authorities involved in the matter to grant No Objection Certificate under the Petroleum Act and the Rules framed thereunder have already granted necessary No Objection Certificates and therefore, this Court is of the considered opinion that the impugned action of the respondent-National Highway Authority of India is bad in law and Page no. 12 the order dated 7.5.13 deserves to be set aside and is accordingly set aside.
6 With the aforesaid observations, writ petition was allowed.
7 Present appellant is also raising the similar objection which stands settled by this Court as stated above and the order granted earlier was also rejected by the learned Single Judge in the order in question.
8 According to the appellant, he has a Retail Outlet which is within the distance of 1 km of the proposed site. However, reliance based upon the objections raised by the National Highway Authority of India has also been considered by this Court.
9 In these circumstances, permitting the appellant to file writ petition, present writ appeal is dismissed.
C c as per rules.
(SHANTANU KEMKAR) ( M.C. GARG )
JUDGE JUDGE
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