Gujarat High Court
Jivabhai Bhimabhai Keshwala vs State Of Gujarat on 2 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/7058/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7058 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 7058 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JIVABHAI BHIMABHAI KESHWALA
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE with MR ZALAK B PIPALIA(6161)
for the Petitioner(s) No. 1
MR AMAR D MITHANI(484) for the Respondent(s) No. 5
MR MAULIK R SHAH(6385) for the Respondent(s) No. 4
NANAVATI AND CO.(7105) for the Respondent(s) No. 3
MS MEGHA CHITALIA, ASSTT. GOVT. PLEADER for Respondent Nos.1-2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 02/08/2019
CAV JUDGMENT
1. Present petition under Article 226 of the Constitution of India is filed by the petitioner- plaintiff for the purpose of seeking following reliefs:-
Page 1 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT(A) YOUR LORDSHIPS may be pleased to allow this petition;
(B) YOUR LORDSHIPS may be pleased to issue a Writ of Certiorari or Writ in Nature of Certiorari or any other appropriate Writ Order or Direction, for quashing and setting aside the impugned order dated 11.04.2018 passed below Exh.26 in Civil Misc. Appeal No.6 of 2018 by the Ld. 3rd Addl. District Judge, Junagadh in the interest of justice.
(C) YOUR LORDSHIPS may be pleased to issue a Writ of Certiorari or Writ in Nature of Certiorari or any other appropriate Writ Order or Direction, for quashing and setting aside the impugned order dated 14.02.2018 passed below Exh.5-
injunction application in Regular Civil Suit No.87 of 2017 in the interest of justice;
(D) Pending admission, final hearing and disposal of the petition,
YOUR LORDSHIPS may be pleased to stay the
implementation, execution and operation of the (I) impugned order dated 11.04.2018 passed below Exh.26 in Civil Misc. Appeal No.6 of 2018 by the Ld. 3rd Addl. District Judge, Junagadh;
(ii) impugned order dated 14.02.2018 passed below Exh.5
- injunction application in Regular Civil Suit No.87 of 2017.
(E) Pending admission, final hearing and disposal of the petition, YOUR LORDSHIPS may be pleased to direct the respondents herein, their agents, attorneys, servant etc. to maintain status quo as regards the fuel station which is constructed on land bearing Revenue Survey No.20/3 (New Survey No.18) of Village Kanza, Taluka Vanthali, District: Junagadh and thereby direct the respondent no.1 not to grant final permission of starting the fuel station established by defendant no.5 in the interest of justice.
(F) ......."
2. The case of the petitioner is that petitioner is a dealer of M/s. Indian oil Company Ltd., having his fuel station at Jetpur-Somath National Highway on the land bearing Survey No.20/4 (New Survey No.51) of Village Kanza, Taluka Vanthali, District Junagadh in the name and style of M/s. Jai Vachchraj Petroleum. The petitioner is said to have obtained all necessary permissions as required from the authorities, including the National Highway Authority of India and Ministry of Road, Transport and Highways. The petitioner has Page 2 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT put up the construction at deceleration lane, 60 meters ahead of the fuel station on the National Highway, while coming from Somath and had also constructed culvert and has thereafter constructed another hundred meter road which is also 5.5 meter broad, so that vehicles which pass through this road can have better speed and thereafter get connected to National Highway after a distance of 100 meter from the fuel station. Even after 100 meter, the petitioner had to construct a drainage line which is 37 meter in length and 1 meter in height so that rain water can easily pass through the drainage line and for this exercise, the petitioner is stated to have incurred an expenditure of Rs.57 lac around and after all this exercise, final permission was granted by the respondent No.1, that is the original defender No.1, on 9.1.2017 to the petitioner. It is the say of the petitioner that the defendant No.5 also started construction of his fuel station, which is at a distance of only 74 meter on a land bearing Revenue Survey No.23/3, in the same village. As a result of this, originally, it was informed that he is going to start a hotel on the said land but, thereafter on the basis of the system of the construction, it was noticed that the respondent No.5- is probably going to construct a fuel station and therefore on 10.7.2017, the petitioner gave objection application to the National Highway Authority, i.e. the defendant No.3, against the ongoing construction of another retail outlet of a different company, named as Essar Oil. On the said objection, the defender No.3 wrote a communication to its agency, named M/s. M.S.V. International INC. on 18.7.2017 and directed to do the needful as per the provisions contained under MORTH Rule and submit a report to the National Highway Authority within a period of seven days.
3. It is a further case of the petitioner that after completion of the inspection by the said agency, i.e. M/s. M.S.V. International, independent Engineer submitted his report whereby it was pointed out that in view of the circular dated 24.7.2017, particularly clause Page 3 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT 4.6.1, minimum distance between two fuel outlets along the National Highway on divided carriageway should be 1000 meter. But here is a case in which the distance between two fuel stations, one of IOCL with the petitioner and another of Essar Oil with the respondent No.5, is only 74 meter and with this background, checklist as well as the letter was submitted to Essar Oil Ltd. On 23.5.2016. Since nothing fruitful came out from the said protest, yet another objection was sent on 7.10.2017, again protesting before the National Highway Authority and in turn, the National Highway Authority wrote a letter on 12.10.2017 to the Executive Engineer, Government of India. On 15.11.2017, the National Highway Authority made communication to M/s. M.S.V. International INC to again prepare and submit a report on the basis of the actual facts and deviations at the site as per MORTH Rule within seven days. But then the construction was going on. The petitioner filed Regular Civil Suit No.87 of 2017 on 5.12.2017 praying for declaration and permanent injunction that provisional permission which has been granted by the defendant No.1 and NOC granted by the defendant No.2 and any other requisite permission, if granted, the same be declared as void and also prayed for permanent injunction against the defendant Nos.4 and 5 by not granting them final permission to commence the fuel station on the land which is situated just besides the petitioner's petrol pump. The said injunction application at Exh.5 was submitted along with the suit with another application on 5.12.2017 for carrying out local inspection so that exact position of construction can be placed on record before the Court. The said application was registered at Exh.7 for local inspection. It is the further case of the petitioner that on 14.12.2017, all the defendants appeared, prayed for adjournment and the defendant No.3 gave an application for status quo and the said application was registered at Exh.17 and adjournment application filed by the defendant No.5 is the application Exh.15. Despite the objection, adjournment application Exh. 15 was granted and thereafter written statements Page 4 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT were filed by the defendant No.2 as well as the defendant No.5 and also by defendant No.3 against the injunction application. Ultimately, bi-parte hearing took place on 4.1.2018 and thereafter on 16.1.2018, a request was made to hear the suit as well as the injunction application be decided. Simultaneously, the defendant No.4 filed written statement on 16.1.2018. Ultimately, in substance, hearing took place of injunction application and on 14.2.2018, the Trial Court rejected the injunction application filed by the petitioner- plaintiff.
4. It is further case of the petitioner that being aggrieved by and dissatisfied with the said order, the petitioner also preferred an appeal under Order 43 Rule-1 of the Code of Civil Procedure, which was registered as Civil Misc. Appeal No.6 of 2018. Along with the appeal, an application was submitted to direct the respondents to maintain the status quo as prevailing. But, then after hearing on 11.4.2018, the appeal came to be dismissed substantially on the ground that no final permission is granted to the defendant No.5 and what has been granted is the provisional NOC and therefore, by creating the same as premature, in substance, the Appellate Court did not entertain the appeal and dismissed the same vide order dated 11.4.2018 and these concurrent decisions are made the subject matter of the present Special Civil Application.
5. This Special Civil Application appears to have been presented on 1.5.2018, wherein, notice was issued and thereafter on 10.5.2018, ad-interim injunction has been granted in terms of para- 11(E) since the respondents have chosen not to appear even after service. The said interim relief, as it appears, is continued from time to time and then it was decided to hear and dispose of the petition at the admission stage stage and accordingly, with the aforesaid background, with consent of learned advocates and upon their request, the Court heard the matter at length on 1.7.2019.
Page 5 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT6. Learned senior advocate Mr. Anshin Desai appearing with learned advocate Mr. Zalak Pipalia on behalf of the petitioner- plaintiff has submitted that there is a gross error committed by the Courts below in not considering the circumstances which are vital in nature and that against the minimum requirement of distance of 1000 meter, there is only 74 meter distance and as per the guidelines also, it is not open for Essar Company Ltd. to allow the respondent No.5 to proceed ahead with the construction. It is further contended that the guidelines, which are issued by the competent authorities, are clearly stipulating the distance between two fuel stations and the same having not been maintained, learned Judge ought to have considered the same. Even if the said guidelines are not mandatory, then also this meager distance of 74 meter as against the requirement of 1000 meter could not have been ignored. By referring to condition No.4.6.1(ii), reflected on page No.175 of the petition compilation, a request is made not to allow the impugned order to sustain in the eye of law. It has further been submitted that though specifically objected right from July 2017 to the competent authority, still however no issue was resolved and ultimately the petitioner- plaintiff was dragged to the stage of filing the suit. So much so as the panchnama which has been carried out as well as the internal report which was got prepared from the authorized agency, situation of the disputed construction has been clearly visible and though specific application was made to maintain the status quo over the land in question, the said request was not considered. On the contrary, as per the say of learned senior advocate, the construction itself appears to be illegal. As a result of this, learned Judge's discretion is not said to have been in consonance with the material. It has further been submitted that both the Courts below have not touched the core issue involved in the main grievance and it has been specifically alleged that at the time when the permission was sought by the defendant No.4, existence of the fuel station of the petitioner was not brought to the Page 6 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT notice. Had it been so, existing petrol pump belonging to the petitioner would not have been disturbed. It has further been submitted that on account of such coming up fuel station of the respondent No.5, there will be an unhealthy competition in the business of the petitioner, which has got a far-reaching consequences and there is a likelihood of creation of an irreversible situation. It has further been submitted that learned Judge while dismissing the injunction application has not properly appreciated the chronology of events which took place in the proceedings and has exercised the discretion in a cavalier manner. It has further been contended that though the application under Order 26 Rule-9 of the Code of Civil Procedure was made for carrying out the local inspection, still however, without deciding the same, the order below Exhibit 5 came to be passed and the guidelines which are issued by the Ministry of Road, Transport and Highways dated 24.7.2013 appears to be completely given a go-bye. Resultantly, such exercise of discretion is not germane and the same is required to be corrected. It has further been submitted that there is a storage capacity of 20,000 Ltrs. of petrol and 40,000 Ltrs. of diesel in the fuel station of the petitioner, whereas the capacity of the respondent No.4 is 12,000 Ltrs. of petrol and 20,000 Ltrs. of diesel and this minimum distance of 74 meter would create a serious prejudice to the petitioner. As a result of this also, there appears to be an irreparable loss to the petitioner likely to be caused, which aspect is not properly appreciated. As a result of this, both the Courts have committed a serious error in passing the impugned orders.
7. It has further been submitted by referring to the appeal memo on page 201 and 202 that all the contentions which have been taken before the Appellate Court have not been properly gone into or dealt with. As a result of this, the exercise of jurisdiction is laconic, without application of mind and hence the same be Page 7 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT corrected by setting aside impugned orders. Mr. Desai has tendered written submission just to substantiate the submissions, but the same have been given substantially in view of the fact that the respondent No.5 had also given written submissions. Resultantly, Mr. Desai has submitted that such irregular exercise of jurisdiction deserves to be corrected. It has further been submitted that the sizable amount of approximately Rs.57 lac has been expended by the petitioner in construction of place, road as well as the other infrastructure but then learned Judge without considering the same has refused the injunction on account of which irreparable loss is caused. On the contrary, according to Mr Desai, there is a prima facie case strongly made out by the petitioner which calls for interference of this Court in exercise of writ jurisdiction and by referring to the guidelines and other relevant record of the case, a contention is raised that the impugned orders be set aside.
8. To counter these submissions made by learned senior advocate Mr. Desai for the petitioner, learned advocate Mr. Amar Mithani appearing on behalf of the contesting respondent No.5 has vehemently opposed the petition and other learned advocates representing the respondent authorities have practically not taken lead role since there is a conflict between the petitioner and the respondent No.5. Mr. Mithani has vehemently opposed the petition by clearly asserting that the petitioner is having his own petrol pump at different land altogether, i.e. Survey No. 20/4, whereas the defendant No. 5 is having over the land bearing Survey No. 23/3 and therefore there is absolutely no legal right in favour of the petitioner to even institute the suit proceedings against the respondent No. 5. It has further been contended that the business rival has no locus standi or challenge the legal right. The permission was issued by the authority in the trade and as such, when there is no legal right in favour of the petitioner, he is hardly entitled to seek any equitable relief. To substantiate this submission learned advocate Mr. Mithani Page 8 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT has relied upon following decisions :-
(1) In the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and other, reported in AIR 1976 SC 578 (Para 29, 33, 35, 40, 46 and 47);
(2) In the case of the case of The Nagar Rice and Flour Mills and others, Vs. N. Teekappa Gowda and Bros. and others reported in AIR 1971 SC 246 (Para
10);
(3) In the case of Kuldip Singh Vs. Subhash Chander Jain and others reported in AIR 2000 SC 1410 (Head Note-B, Para 8, 11);
(4) In the case of Narayan Mallick Vs. Union of India and Ors., reported in AIR 2008 Orissa 54.
By referring to the aforesaid decisions, Mr. Mithani has submitted that no case is made out by the petitioner in any form.
9. Learned advocate Mr. Mithani has further submitted that a close perusal of the guidelines upon which the petitioner is placing reliance is not helpful to the petitioner in any form. The said guidelines dated 24.7.2013 would not suggest in any form that minimum distance criteria has to be maintained. On the contrary, a close perusal of the clause related to the aforesaid situation would clearly indicate that such guidelines has no role to play, especially when the clause itself is clearly suggesting that this minimum distance of 1000 meter is not attracted in a situation where the petitioner and the defendant No.5 are situated. By referring to clause 4.6 contained in the said guidelines referred to on page 174, a specific attention is drawn that there is a clear note suggested that 1000 meter distance is not applicable when there is an access through the service road. The said clause is clearly stipulating that in a situation where the petitioner and the defendant No.5 are situated, this distance would not govern the grievance. It has further been submitted that on the contrary, here is a case in which there is Page 9 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT a clear malafide intent on part of the petitioner to drag the defendant No.5 in controversy after investing sizable amount by late approaching the Court. The suit has been filed almost after a period of 14 months and for a pretty long time of 14 months, the petitioner has sat silent and has not sought any protection if there is a serious grievance like which is being projected now and as such, this delay of 14 months itself is dis-entitling the petitioner from seeking any equitable relief. By referring to page 120, it has been submitted that the suit has been filed and presented on 5.12.2017, as it appears, but the stamp is indicating the date of 19.04.2018. Now, if the permission has been granted in respect of the petitioner's fuel station, then completion certificate appears to be of 17.12.2016, whereas the permission appears to be of 9.1.2017 and therefore, it is not the case that since several years the petitioner is in existence and his legitimate rights are being thwarted. On the contrary, there appears to be a clear and unexplained delay in bringing the suit of approximately 14 months. Mr. Mithani has further submitted that in substance, there is a grievance by the petitioner against the permissions which are issued under Sections 28, 29 and 30 of The Control of National Highway (Land and Traffic) Act, 2002, but the order granting such permission under Sections 28 and 29 by the Highway Authorities is amenable to the challenge by way of an appeal under Section 14 before the Tribunal and Section 15 of the Act is specifically indicating a bar of jurisdiction of Civil Court. When that be so, the suit itself is not maintainable. Additionally, it has further been submitted that in light of the provisions contained under the Act, referred to above, specific mechanism is provided to ventilate such kind of grievance and so much so, the appeal provision is also made available. As a result of this, Regular Civil Suit No.87 of 2017 itself is not maintainable. Additionally, it has further been contended that in view of the guidelines of the Government, in a case where there is a common access through the service road, distance of 1000 meter is not required and it specifically provides Page 10 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT that only objections from existing fuel station owners against such granting of permission from the National Highway for the proposed new fuel station are to be overruled. Now, when that be so, there is hardly any case made out by the petitioner and similar kind of stations are erected at different places across the country. So far as State of Rajasthan is concerned, almost similar issue has cropped up in Civil Writ Petition No.8087 of 2018 and the Hon'ble Court has interpreted these very clauses of the guidelines, particularly clause 4.6.3 and has permitted two or more fuel stations in a close proximity having common entries through the service road. Similar is the position with respect to the State of Orissa, wherein also while dealing with Writ Petition (C) No.6787 of 2017 and 7336 of 2016 decided by Orissa High Court on 30.8.2017, it has been held that there is complete prohibition of two fuel stations within the radius of either 1000 or 3000 meter and the writ petition at the behest of the business rival is not accepted as not maintainable. Thus, this very interpretation of the guidelines across the country has suggested that wherever there is access through the service road, this distance minimum requirement cannot be pressed into service. Apart from this, Mr Mithani has submitted that the construction of entire petrol pump of the respondent No.5 has already been completed, which is shown at page 255 to 257 and which fact is admitted and not in dispute by the petitioner. Even in the plaint itself, petroleum product to the extent of Rs.6,22,000/- is at present lying in the tank of the respondent No.5 though having all required permissions available with the respondent No.5. Ex-parte interim relief in terms of para- 11(E) is granted considering the fact that the said inflammable substance is lying in the tank constructed by the respondent No.5. These eventualities have also been properly appreciated by the Court below. As a result of this, simply because expenditure is incurred, to facilitate itself, injunction cannot be made operative against the defendant No.5. Mr. Mithani has further submitted that there is neither any fundamental right of the petitioner is infringed Page 11 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT nor even legal right is infringed, which would permit the Court to grant any equitable relief in favour of the petitioner. Even there is no locus standi of the petitioner to bring the suit. It has further been submitted that it is a settled position of law that no interim relief can be granted which has got effect of granting final relief and time and again, Hon'ble the Apex Court has propounded that in a situation like this when everything is ready, by way of interim relief, the respondent No.5 cannot be stuck up. Otherwise, this would tantamount to be a final relief. It has further been submitted that the defendant No.5 has applied much prior to filing of the suit for the franchise / dealership of Essar Oil and Gas Company. Prior to almost 2 years of the date of filing of the suit, i.e. on 1.2.2015, the respondent No.5 had made an application with payment of Rs.3 lac by way of Demand Draft. On 27.4.2015, Essar Oil has appointed the respondent No.5 as a dealer for retail outlet over the land bearing Survey No.23/3 admeasuring 7068 Mtrs. Even non-agricultural permission has also been granted for commercial purpose of the petrol pump on 9.3.2016 to the defendant No.5. On 23.5.2016, the respondent No.4- Essar Oil submitted a proposal / checklist through on-line application before the respondent No.1 authority and supplementary lease deed got registered in favour of the respondent No.5 on 9.12.2015 and the provisional permission for access was granted on 23.3.2016 and it is only after such provisional permission, plans were put up and sanctioned and only after the same, the construction has been commenced. Whereas, the petitioner was appointed as a dealer after the provisional permission was granted to the defendant No.5. The petitioner was appointed is a dealer by IOCL on 28.3.2016, i.e. after provisional permission of the defendant No.5. Huge investment is made by the defendant No.5 over the land and entire petrol pump is constructed, which is very much visible from the photographs attached to the petition compilation, which fact is also not in dispute and simply because the defendant No.5 is a commercial rival company dealer, Page 12 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT the petitioner cannot submit the suit for injuncting and/or to avoid competition in absence of any legal right. On the contrary, the background of the facts is such that it was pointed out specifically to the Court below that even after inspection of the site, drawings and plans were revised by the Essar Oil and were submitted for construction on 29.9.2016. The point-wise report was also submitted on 10.10.2016 and therefore the plea which has been made by the petitioner that the existing petrol pump of the petitioner is suppressed and then obtained dealership is far from truth. It is further been contended that an amount of Rs.2,43,101/- was already paid by the respondent No.5 and even the permission was also accorded under the requirement of MORTH guidelines and it is this set of circumstances which appears to have been weighed with the learned Judge in refusing the injunction. So much so, that on 16.6.2017, the District Magistrate, Junagadh was also pleased to issue NOC/ licence to the respondent No.5 for a storage of petroleum product, whereupon more than petroleum product worth Rs.6 lac is stored in the tank which is at present stuck up on account of the injunction. On 16.2.2017, the office of the Petroleum and Explosive Safety Organization, Ministry of Commerce and Industry has also granted license under the Petroleum Rules to the fuel stations of Essar Oil and in turn, on 27.11.2017, also a license was issued in favour of the respondent No.5 under the provisions of the Gujarat Essential Articles (Stock, Control and Declaration) Order, 1981 in the name and style of Radhey Krishna Petroleum. Even, the Inspector of the Government's Weight and Measurement Department on 1.12.2017, has visited and verified the stock of respondent No.5 and has issued certificate in that regard.
10. Mr. Mithani has further contended that this sequence of events would make it clear that all the relevant required permissions were issued before institution of the present suit, i.e. Regular Civil Suit No.87 of 2017, and prior thereto, on 21.10.2017, Page 13 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT the Petrol and diesel stock was dispensed to the respondent No.5 by the respondent No.4-Essar Company and the expenses incurred by the respondent No.5 in fuel station have been given in a tabular form in para 20. The responden No.5 has also incurred expenditure to the extent of more than Rs. 41 lac. Resultantly, a contention is raised that both the Courts below have rightly not exercised the jurisdiction in favour of the petitioner looking to this peculiar set of circumstance.
11. By filing detailed affidavit-in-reply and by attaching plans and every material, learned advocate Mr. Mithani has vehemently submitted that since the suit itself is not maintainable, maintainability of the same is also a relevant ground for not exercising the equitable jurisdiction. Few judgments have been shown by learned advocate Mr. Mithani, which are attached with the written submissions, which have been filed, and on the basis thereof, a contention is raised that no case is made out of any nature to grant any equitable relief in favour of the petitioner and further, looking to the scope contained under Articles 226 and 227 of the Constitution of India, there is hardly any case made out by the petitioner to disturb the conclusion concurrently arrived at by both the Courts below.
12. Mr. Mithani has further submitted that with a view to maintain the ex-parte ad-interim relief granted by the High Court, allegation was made that permission is obtained by suppressing the existing petrol pump of the petitioner. But, even prior to filing of the suit, revised plans were also considered by the competent authority and simply because there appears to be a possible element of competition in business, the Court proceedings may not be allowed to be utilized to hamper and avoid such contingency. Here is a case in which though approval has been granted by the competent authority to the respondent No.5, undisputedly, there exists a service road and exercise of jurisdiction by both the Courts below is Page 14 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT well reasoned. As a result of this, in absence of any perversity or material irregularity, there is hardly any case made out by the petitioner to call for interference of this Court.
13. In rejoinder to this submission made by learned advocate Mr. Mithani, an attempt is made that the suit is very much maintainable and the provisions of the Act of 2002 are not preventing the petitioner from initiating the suit proceedings. So far as the premature submission of the suit is concerned, learned senior advocate Mr. Desai has candidly submitted that the objection dated 7.10.2017 has not been decided and that is the reason for bringing the suit. It has further been submitted that though the petitioner was granted temporary permission, the petrol pump was already commissioned and by drawing attention to page 86 of the petition compilation, it has been submitted that existence of respondent No.5 near the petitioner's fuel station is having a far-reaching effect and further, it has been submitted that an attempt is made that clustering is possible, but the same is possible if there are three fuel stations. Here is a case in which there are only two fuel stations and therefore, the issue of clustering will not arise. However, be that as it may, a request is made that since the interim relief has already been granted in favour of the petitioner, the suit be expedited by quashing and setting aside the impugned orders. No other submissions have been made.
14. Having heard learned advocates appearing for the respective sides and having gone through the material placed on record of this Court, few aspects are not possible to be ignored by this Court:-
(1) The main plank of the argument which has been agitated by the petitioner is on the issue of distance and an impression is given as if at the distance of 74 meter,, no fuel station can be allowed. But, a close reading of the relevant clause contained Page 15 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT in the guidelines issued by the Government of India, Ministry of Road, Transport and Highways dated 24.7.2013 is indicating that no such distance to be so construed whenever there is a access through the service. This relevant provision, which is mentioned on page 174, is not itself clarifying that such a distance of 1000 meter is not to be construed in the manner in which present petitioner has projected.
(2) Further, it appears from the pleadings of the parties that here is a case in which the petitioner has been recently given the permission and it is not the case that as old petrol pump is in existence, so new one may not be allowed to commence. On the contrary, the dates which have been given, it appears that prior to two years from the date of filing of the suit, an application was already given in February 2015 by the respondent No.5, which has been processed and on 27.4.2015, dealership was given to the respondent No.5 for retail outlet and thereafter, prior to filing of the suit, all the competent authorities granted gradually the permissions as required. N.A. permission for petrol pump was granted on 9.3.2016. The respondent No.4 has already submitted checklist on 23.5.2016. Provisional permission for access has been considered and granted on 21.3.2016. Supplementary lease deed got registered in favour of the respondent No.5 way back on 9.12.2015, whereas the petitioner has been granted dealership on 28.3.2019, which is reflecting on page No.223. Meaning thereby, both, i.e. the petitioner and the respondent No.5, have secured their simultaneous dealership and therefore, simply because the petitioner is in mood to setup and operate his fuel station in absence of any embargo, the respondent No.5 cannot be allowed from operating his fuel station.
(3) It further appears from the record clearly that here is a case in Page 16 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT which the land of the fuel station is also altogether different. The petitioner's land is on Survey No.20/4, whereas the land of respondent No.5 is on Survey No.23/3 and as such even that conflict is also not visible.
(4) Additionally, it also appears from the record that, as has been projected by the petitioner, that about Rs.56 lac has been expended and the respondent No.5 has already equally expended an amount of more than Rs.41 lac and as such, simply because the rival is coming up in the nearby, that would not give an authority to the petitioner to bring the suit and seek injunction. Both the companies are different, portions of land are different and capacity of holding the stock is also altogether different. When that be so, the case which has been tried to be put up by the petitioner before this Court is also not such which would permit this Court to ignore the findings arrived at by both the courts below.
(5) In the situation like this, perusal of the impugned orders would clearly indicate that the petrol pump of the defendant No.5 is also very much almost ready which can be seen from page 255 and 256 of the petition compilation and therefore, it clearly suggests that this entire completion of construction cannot be overnight and therefore, the grievance has been raised by the respondent No.5 that lot of expenditure is allowed to be incurred by the respondent No.5 and the suit has been brought after almost a period of 14 months and therefore equitable considerations are also in favour of the respondent No.5 rather than the petitioner. Delay in such a situation itself is fatal, which would dis-entitle the petitioner from seeking any relief of injunction.
(6) Further, various clauses contained in the guidelines, namely clause 4.6.3, 4.6.4 and 4.7 are to the construed and examined Page 17 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT not at this juncture of interim relief stage since at this stage of interim relief issue, no final adjudication on merit to be examined or adjudicated as if the main suit proceedings are to be conducted. Resultantly, when the applicability of clauses is to be examined at appropriate stage and further, there appears to be a simultaneous permission to both the petitioner and the respondent No.5 from different companies, simply because there is a possibility and apprehension of element of competition, injunction cannot be granted in a routine manner, which has rightly been not granted by the Courts below. From the perusal of the orders passed by both the Courts below, it appears that detailed analysis of the material which has been brought before the Court has been undertaken and such detailed exercise of discretion is undertaken by the Courts below after granting full opportunity to the parties. So even if another view is possible, the same cannot be substantiated, which is the law propounded by series of judgments that unless and until there is any perversity or material irregularity is visible apparently from the record. But, here is a case in which looking to the orders which are passed by the Courts below, no perversity or material variety is reflected. On the contrary, it clearly transpires that effective analysis of the case put up by the rival parties to the proceedings is undertaken and only thereafter, the discretion vested in law has been exercised. Resultantly, there is hardly any error appears to have been committed which calls for interference.
(7) Apart from this, a close perusal of the Appellate Court's exercise of jurisdiction is also clearly suggesting that not only the Appellate Court has examined the validity of the order passed by the Court below but has also independently analyzed the ground reality and then has come to the Page 18 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT conclusion. Simply because a different view additionally is taken, that would not permit the petitioner to assail the orders on the ground which has been tried to be projected. On the contrary, about the issue regarding premature lodging of the proceedings is an additional circumstance which has been considered but that would not mean that the validity of Trial Court's order is not examined. On the contrary, on the admitted position by the present petitioner that the construction has already been over of the defendant No.4, learned Appellate Court has not accepted the appeal. Resultantly, here is a case in which there appears to be a clear conflict of interest, which is yet to be examined and adjudicated in the suit proceedings. Apparently, the applicability of the guidelines is also not visible in favour of the petitioner prima facie, which is also yet to be examined by way of merit of the petitioner and here is a case in which already the petroleum product is very much lying in the tank of the respondent No.5, which is fully equipped fuel station in operation. This injunction as prayed for by the petitioner is not possible to be granted. There is also a serious dispute with regard to the locus standi and the legal right in favour of the petitioner in absence of any cogent material. Resultantly, it appears that the concurrent findings of both the Courts below do not require any interference in exercise of the writ jurisdiction.
(8) From the material which has been placed before the Court and as has been found by both the Courts below that there appears to be no prima facie case and the other aspects with respect to grant or refusal of injunction in favour of the petitioner, the relief is not granted. Now, it is a settled position of law that prima facie case and prima facie title are altogether different and cannot be confused while considering Page 19 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT the request of injunction. Even maintainability of the proceedings is also very relevant issue for the purpose of exercising the jurisdiction for grant or refusal of injunction and additionally, this being an equitable relief, the delay is also very much material circumstance which ought not to have been ignored. When that be so, the contention which has been raised by the respondent No.5 appears to be more sounding and confident to controvert the stand of the petitioner.
15. In light of the aforesaid situation, this Court is of the clear opinion that both the Courts below have concurrently passed the orders and such conclusion in absence of any perversity or material irregularity is not possible to be disturbed. The law laid down by the Apex Court on the exercise of the extraordinary jurisdiction is well propounded and few of the decisions which are very relevant and taken into consideration, the Court deems it proper to reproduce certain observations which are contained in such decisions.
(1) In the case of Mohd. Yunus v. Mohd. Mustaqim and others reported in AIR 1984 SC 38, the Apex Court has held and observed in para 7 as under:-
7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.
(2) In the case of Sameer Suresh Gupta TR PA holder Vs. Page 20 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT Rahul Kumar Agarwal reported in (2013)9 SCC 374, Hon'ble Apex Court has held and observed in para 6 and 7 as under:-
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (I) without jurisdiction- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
Page 21 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care,caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010)8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different Page 22 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Page 23 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
16. The aforesaid situation and the proposition of law would lead to a situation where the case is tried to be made out by the respondent No.5 against the petitioner and continuation and grant of interim relief is also not found in favour of the petitioner. The judgments which have been relied by learned advocate Page 24 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT representing the respondent No.5 also deserve consideration as they have been pressed into service. Since the Court is under obligation to deal with the same, such exercise is undertaken by this Court while disposing of the present petition.
17. The first decision which has been pressed into service is the decision in the case of Jasbhai Motibhai Desai (supra). Learned advocate Mr. Mithani has pressed into service the observations which are made in para 35 and 36 with a view to point out the locus standi to seek the relief independently of a statutory remedy which is said to have been available to the petitioner. The relevant observations contained in the said paragraphs, which are relevant, deserve to be reproduced hereinafter:-
35. In the United States of America, also, the law on the point is substantially the same. "No matter how seriously infringement of the Constitution may be called into question." said Justice Frankfurter in Coleman v. Miller, (1939) 307 US 433 'this is not tribunal for its challenge except by those who have some specialized interest of their own to vindicate apart from a political concern which belongs to all". To have a "standing to sue". which means locus standi to ask for relief in a court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded*. "Legal wrong" requires a judicially enforceable right and the touchstone to justiciability is injury to a legally protected right. A nominal or a highly speculative adverse effect**on the interest or right of a person has been held to the insufficient to give him the "standing to sue" for judicial review of administrative action.
Again the "adverse effect" requisite for "standing to sue"
must be an 'illegal effect". Thus, in the undermentioned cases, it was held that injury resulting from lawful competition not being a legal wrong, cannot furnish a "standing to sue" for judicial relief.
36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of Page 25 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
18. Another decision, which has been pressed into service is the decision in the case of The Nagar Rice and Flour Mills (supra), wherein, the respondent has utilized the observations which are made in para 10 of the said judgment to indicate that competition in a trade or business may be subject to the restrictions as are permissible and imposed by the Statute or by a law. But, a person cannot independently put restriction on another person from carrying out business or trade, especially when such rival is fulfilling all statutory requirements to carry out the business. Para 10, since it has been utilized to substantiate his stand, is reproduced hereinafter:-
10. Section 8 (3) (c) is merely regulatory if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice-mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article l9 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed.
19. Yet, another decision which has been pressed into service is a decision in the case of Kuldip Singh (supra), in which, by referring to para 8 and 11, a contention is raised that future nuisance or a mere possibility of injury will not provide the plaintiff with a cause of Page 26 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT action. Whereas, here it has been projected that the petitioner is apprehending some elements of competition and as such, there appears to be no cause of action in favour of the petitioner. The said observations contained in para 8 and 11 are pressed into service to strengthen his submission. The Court has noted down the same.
20. Yet another decision, which has been tried to be relied upon is a decision delivered by Orissa High Court in a writ petition Nos.6788 of 2017 and 7336 of 2016. Para 5, 7 and 10 are pressed into service, which read as under:-
5. As far as the first issue is concerned, learned counsel for the Petrol Company, opposite party no.4, relied upon the reported case of the Nagar Rice and Flour Mills and others Vrs. N.Teekappa Gowda & Bros and others; AIR 1971 SUPREME COURT 246; wherein the Hon'ble Supreme Court while examining the applicability of Section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958, has come to the conclusion that where the owners of an existing rice mill shifted its existing location and obtained the necessary permission for change of location from the Director of Food and Civil Supplies, even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, the competitor in the business(owner of another rice mill) can have no grievance against the grant of permission permitting the installation on a new site. The right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article 19(6)(i). In the case of M/s. Nataraja Agencies Vrs. The Secretary, Ministry of Petroleum and Natural Gas, Government of India and others; the Division Bench of Madras High Court in W.A. No.4057 of 2004, has taken into consideration the reported case of MITHILES GARG V. UNION OF INDIA; AIR 1992 SC 443; wherein the Hon'ble Supreme Court has held that the rival business man cannot file a writ petition challenging the setting up a similar unit by another business man on the ground establishing a rival business close to his business-place would adversely affect his business interest. In fact in the case of Mithilesh Garg (supra), the Hon'ble Supreme Court has followed its earlier judgment given in Nagar Rice and Flour Mills and others (supra). Thus, this Court is of the opinion that the writ petition filed by Rabinarayan Swain challenging the allotment order in favour of opposite party no.4 is not maintainable on the face of record. Learned counsel for the opposite party, on the other hand, submits that in the Constitution Bench Judgment in T.B. Page 27 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT Ibrahim, Proprietor, Bus Stand, Tanjore Vrs. The Regional Transport Authority, Tanjore; A.I.R. 1953 SUPREME COURT 79;
the Hon'ble Supreme Court has held that there is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. Therefore, it is argued by the learned counsel appearing for the petitioner- Rabinarayan Swain that opposite party no.4 cannot claim any fundamental right to carry on business and hence he has right to maintain a writ petition against him. However, on careful examination of the Constitution Bench Judgment, this Court finds that the Hon'ble Supreme Court has taken into consideration the various provisions of Motor Vehicles Act, 1939, especially Section 68(1) of the Rules made thereunder and the previsions of Madras Vehicles Rules, 1940 and examined the validity of Section 68 of the M.V. Act. In that case the factual aspect is different. In fact the Motor Vehicle Act provides for certain restrictions and also provides for the State to make Rules for imposition of reasonable restrictions. Accordingly, statutory Rules were issued by the State of Madras, as it was then. This Court is of the opinion that the ratio decided in the case of T.B. Ibrahim, Proprietor, Bus Stand, Tanjore (supra) is not applicable to the present case. Similarly, a question arose regarding canalization of the imports through special or specialize agency or channels in the Constitution Bench Judgment of Glass Chatons Importers and others Vrs. Union of India and others; AIR 1961 SUPREME COURT 1514. In that case the Hon'ble Supreme Court has held that the finance is granted to the agency or channels through which imports have been decided to be canalized, those agencies or channels can carry on trade, but this is not because of an acquisition by those agencies or channels of the right to carry on trade which the unsuccessful applicants for license had. Article 31 of the Constitution has therefore no application. The Hon'ble Supreme Court further held that a canalization of imports is in the interests of the general public and the refusal of import licenses to applicants outside the agencies or channels decided upon must necessarily be held in the interests of the general public. Therefore, the Hon'ble Supreme Court refused to accept the prayer of the aggrieved party. Some other judgments have been cited by the learned counsel for the petitioner-Rabinarayan Swain, but those have no application in this case. So, this Court is of the opinion that the writ petition at the instance of Rabinarayan Swain, who owns a retail outlet, claiming that the NOC issued in favour of opposite party no.4 is violative of the Resolution of the Indian Road Congress is not maintainable.
7. This clause was examined by the Division Bench of the Madhya Pradesh High Court in W.A. No.568 of 2014, in the case of Shailendra Vs. Smt. Saroj Bhati, which has been disposed of on 24.7.2014. At paragraph-10 of the Judgment the Division Bench of the Madhya Pradesh High Court has Page 28 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT held that 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 evidence 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 has held as follows:-
"20. Hither-to-force, 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 mtrs. 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."
10. In that view of the matter, the order of cancellation under Annexure-8 (in W.P.(C) No.6786/2017) is illegal and needs to be quashed. Moreover, this Court is of the opinion that the alleged ground raised by the learned Addl. Government Advocate that there has been violation of guidelines of Indian Road Congress is also not tenable as the said guidelines are neither mandatory nor it totally prohibits such an establishment of Petrol Pump within the limited area. Hence, W.P.(C)No.6786/2017 is allowed. The order of cancellation of NOC by opposite party no.2 under Annexure-8 is quashed. The petitioner company may proceed with the establishment of the retail outlet at the proposed site.
W.P.(C) No.7336/2016 is dismissed being devoid of any merit. Interim order passed earlier stands vacated. There shall be no orders as to costs.
21. Yet, another decision of the similar nature is also delivered by Rajasthan High Court, Jaipur Bench, which is also pressed into service by learned advocate appearing for respondent No.5 and by referring to para 39 and 40 of the said decision, almost dealing with the very same guidelines, a contention is raised that the clauses contained in the said guidelines are permitting the establishment of Page 29 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT petrol pump in a close proximity and the requirement of maintaining the service road is the only condition, which should have access to both the petrol pumps. Resultantly, since the very same guidelines are interpreted and dealt with by the Rajasthan High Court, the observations contained in para 39 and 40 are reproduced hereinafter:-
(39). This court finds that Clauses (4.4.3) and (4.4.4) permit establishment of petrol pumps in close proximity and the requirement of maintaining service road is the only condition, which should have access to both the petrol pumps.
(40). The submission of the learned counsel for the petitioner that guidelines issued by the Indian Roads Congress have not been followed, this Court finds that even Clause (4.6.3) permits clustering or grouping of different petrol pumps to have a common access through a service road of 7.0 meters width and even the objection from the existing fuel station owner is required to be overruled. This court does not find that there has been any violation of guidelines issued by the Indian Roads Congress.
22. Further, a decision which is tried to be relied upon by learned counsel is a decision in the case of Skyline Education Institute (India) Private Limited Vs. S.L. Vaswani and Another reported in (2010)2 SCC 142, reference of which has been made with respect to interference by the Appellate Court while examining the discretion which has been exercised by the Court below and this decision has been cited in view of the fact the the discretion exercised by the Courts below may not be interfered with. As a result of this, the observations contained in para 20 of the said decision are pressed into service, which require to be quoted hereafter:-
20. In Wander Ltd. v. Antox India (P) Ltd, this Court was called upon to determine the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction. The facts of that case were that in the suit filed by it, respondent-Antox India (P) Ltd. had prayed for restraining the appellant from using registered trade mark 'Cal-De-Ce'.
The learned Single Judge of the High Court refused to entertain the respondent's prayer but on reconsideration of Page 30 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT the matter the Division Bench passed an order of injunction. This Court reversed the order of the Division Bench and observed :
"14.... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
23. From the reading of the aforesaid material and from analyzing and considering the situation prevailing on date of the present petition, it appears that the respondent No.5 is fully established to operate. So much so that huge amount of petroleum product is at present lying in the fuel station of the respondent No.5 and in a situation, when all the relevant permissions have been obtained by the respondent No.5 prior to filing of the suit, in such a situation, granting of relief as prayed for would be practically granting the final relief of the main suit proceedings. Resultantly, the Court is of the opinion that in a situation like this, abruptly, to keep the respondent No.5 standstill would be nothing but putting the respondent No.5 in a precarious position and had it been a case that the respondent No.5 might have commenced the fuel station without proper permissions and is carrying out illegal activity, there might be a possibility of preventing. But, in the present case, there appears to be no illegality found on the part of the respondent No.5 regarding applicability of the guidelines and the same has to be finally decided in the suit proceedings. Resultantly, granting of Page 31 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT interim relief to the petitioner would tantamount to prejudging the issue. Hence, this Court is of the considered opinion that at least, the suit proceedings may be expedited rather than preventing the respondent No.5 from carrying on lawful business. A further proposition about the prima facie title not to be confused is also a well defined proposition and which is reflecting from the judgment in the case of Dalpat Kumar and another, Vs. Prahlad Singh and others reported in AIR 1993 SC 276, and the observations made therein are also relevant and guiding observations which cannot be unnoticed by this Court. Hence, no case is made out by the petitioner to grant the reliefs as prayed for in the petition.
24. This entire discussion and overall proposition of law has led this Court to believe that there is hardly any case made out by the petitioner for disturbing the two concurrent orders passed by both the Courts below. Detailed order which has been passed by the Trial Court, which has been confirmed by the Appellate Court, with additional grounds are not reflecting any error of jurisdiction. Hence, keeping in view the scope contained under Articles 226 and 227 of the Constitution of India, it appears that no case is made out by the petitioner to disturb the decisions which have been taken by the Courts below. Accordingly, the petition, being merit-less, deserves to be dismissed. Accordingly, it is dismissed with no order as to costs. Notice is discharged. Interim relief granted earlier stands vacated forthwith.
25. Since the main petition is dismissed, the Civil Application does not survive and hence, it stands disposed of accordingly.
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(A.J. SHASTRI, J) OMKAR FURTHER ORDER After the pronouncement of the judgment, learned Senior Advocate Mr. Anshin Desai has requested the Court to suspend the Page 32 of 33 Downloaded on : Sat Aug 03 00:42:20 IST 2019 C/SCA/7058/2018 CAV JUDGMENT operation of the present order dated 02.08.2019 for some reasonable period of time so as to enable the them to approach the higher forum. Since the interim relief has been operating undisputedly throughout the proceedings, the request is accepted and the Court would like to grant four weeks time to the petitioner for the aforesaid purpose. Hence, the present order is suspended for a period of four weeks from today.
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