Andhra Pradesh High Court - Amravati
K.Mallikarjuna Reddy vs The Union Of India on 17 June, 2021
Author: U.Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.14011 of 2020
ORDER:
The petitioner seeks mandamus declaring the action of respondent Nos.2 and 3 proposing to establish a retail outlet in S.No.236/3B/2A and 238/3A, AIR bypass road, Tirupati town within the radius of 125 meters of petitioner's retail outlet and further declare the No Objection Certificate (NOC) issued by the respondent Nos.4 and 5 to the 3rd respondent as illegal, arbitrary unsustainable and violative of Articles 14 and 19(1)(g) of the Constitution of India and also contrary to the guidelines for Access, Location and Layout of Road side Fuel Stations and service Stations 2009 and consequently set aside the No Objection Certificate (NOC) issued by the 5th respondent and direct the respondent Nos.2 and 3 not to set up retail outlet as proposed in the above premises.
2. The petitioner's case succinctly is thus:
a) The petitioner is a dealer of MS/HSD of 2nd respondent - Bharat Petroleum Corporation Limited in respect of retail outlet (for short "RO") at S.No.84/2 and 85/2C, AIR bypass Road, Tirupathi town, Chittoor District vide letter of appointment No.NLR/TRT/Tirupathi town dated 27.11.2012 issued by the 3rd respondent appointing the petitioner as dealer w.e.f.
27.11.2012. The petitioner established the RO at the place notified by the 3rd respondent Corporation and carrying on the business. As per letter of appointment, the petitioner has to achieve and sustain the minimum committed sales volume of 247 KLs (2,47,000 litres) of combined MS and 2 HSD per month, within 3 months of commissioning of RO, failing which, the Corporation shall have absolute right to terminate the dealership.
b) While so, the 3rd respondent applied for NOC on 11.09.2019 to the 4th respondent to set up a new RO at Door No.19-8-155, Survey No.236/3 and 283/3 at AIR bypass road, Tirupathi town. The 4th respondent in turn called for reports from respondent Nos. 6 to 8 and without conducting enquiry and considering objections of residents of the locality, they have recommended to issue NOC in favour of the 3rd respondent Corporation. Basing on their reports, the 5th respondent issued NOC in REV-CSEOPAR (NOC)/75/2019, dated 31.12.2019. The petitioner did not know about the issuance of NOC till one Sri R. Abishek Reddy of the locality applied for copies under RTA Act, 2005. Though the 3rd respondent applied for NOC in respect of premises at S.No.236/3 and 283/3 and report was also called for by the 4th respondent in respect of those survey numbers, and respondent Nos.6 to 8 have sent reports in respect of same survey numbers, however the 5th respondent has issued NOC in respect of premises at S.No.236/3B/2A and 238/3A. Thus, without verifying the particulars of the survey number for which NOC was requested, the same was issued for different survey numbers.
c) It is furthers submitted that the proposed site for setting up of new RO is at a distance of just 125 meters from the RO of the petitioner, which is contrary to the guidelines of Access, Location and Layout of Road side Fuel Stations and Service Stations. The proposed RO is on the same side within 125 meters. Further the plot site for RO shall be 20 meter (frontage) and 20 meters (depth) in urban stretches but the proposed RO is not meeting the 3 required dimensions. In between Lakshmipuram circle and Annamayya circle AIR bypass road, there are two BPCL ROs - one belongs to the petitioner and one is IOCL outlet. The distance between two circles is less than one kilometre. If the proposed outlet is set up on the same side of AIR bypass road within a distance of 125 meters, the sales of the petitioner's outlet would be adversely affected and thereby the petitioner may not be able to achieve the minimum sales targets. Thus the proposed action of the 3rd respondent is illegal, arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution of India.
d) Further, the proposed RO is in the midst of residential area and near to the schools. Hence no permission should be granted for setting up of RO near schools.
Hence, the writ petition.
3. Respondent Nos.2 and 3 filed counters opposing the writ petition inter alia contending as follows:
a) The writ petition is a dealer of the Bharat Petroleum Corporation Limited (BPCL) and he is rival trader and the present writ petition is not maintainable as he has no locus standi, for, his legal right is not infringed.
In AIR bypass Road, Tirupathi the respondent Corporation has taken property admeasuring 717.93 square metres in Survey No.84/2 and 85/C2, on lease vide Lease Deed document No.1869/2011 for 30 years from 01.11.2010 to 31.10.2040 and the Corporation invested an amount of Rs.86,06,813/- for setting up of an ultramodern retail outlet and the petitioner was appointed as dealer vide appointment letter dated 27.11.2012. Though the minimum volume of sales as mentioned in the letter of 4 appointment is 247 KLs, the petitioner's RO never achieved the target within three months but no coercive or adverse steps were taken by the Corporation.
b) It is further stated that the respondent Corporation intends to establish a RO at Survey No.236/3 and 283/3, AIR bypass Road, Tirupathi, for which NOC was applied from the 4th respondent . Survey No.236/3 and 238/3 were sub-divided as 236/3B/2A and 238/3A and hence the NOC was was issued in respect of survey numbers with latest sub-division. The contention of the petitioner is that without conducting survey, NOC was issued is denied.
c) The contention of the petitioner that he is the dealer of RO is not correct. The petitioner is only a licensee to facilitate the sale of petroleum products of the Corporation and all the facilities have been provided by the respondent Corporation after making considerable investment in that regard. The Indian Road Congress ( for short "IRC") guidelines as quoted by the petitioner have no statutory force and they are merely recommendatory in nature. Thus in any way, the petitioner has not suffered legal right to maintain writ petition.
d) AIR Bypass Road is a commercial area and it is not correct to state that is a residential area. There is no school within the readius of 50 meteres of the proposed site. Further, as per the Petroleum Explosives and Safety Organization Rules, there is no minimum plot dimension for a RO. All concerned approvals from PESO have already been obtained. Hence, the writ petition may be dismissed.
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4. The petitioner filed reply affidavit against the counter. It is contended that the 3rd respondent is proposing to start a new RO adjacent to BPCL outlet of the petitioner by deviating the Rules and Regulations framed by the Central Government of India and Oil Marketing Company in respect of selection of dealers of regular and rural outlets dated 24.11.2018. In those guidelines it is clearly mentioned that there will be transparent online process for application and draw of lots/bids opening for dealer selection. Respondent Nos.2 and 3 did not follow any procedure provided in the guidelines.
a) It is further contended that the petitioner's RO comes under CC category which means that the 2nd respondent corporation have to construct the entire outlet and provide all facilities for the sale of petroleum products. While giving the letter of appointment also the 2nd respondent Corporation clearly mentioned that the RO comes under the CC category and there will be license fee.
b) Further contention that the petitioner never achieved sales target of 247 KLs is wrong. The petitioner's RO achieved minimum 247 KLs of MS and HSD every month except during the Samaikyandhra movement in the year 2013-14 and also COVID-19 pandemic in 2020 (from March, 2020 to till date).
c) The contention that the proposed survey numbers were subsequently sub-divided is not correct. The respondents have violated the guidelines framed by IRC and now falsely claiming that those guidelines have no statutory force. The area in which new RO is proposed to be set up is a residential area as per the inspection report submitted by the 7th respondent. 6 The proposed fuel station is within 60 meters radius from the crowded places like Apoorva Textiles and Jewelleries, D-Mart, Brand Factory and R.R. Educational Institutions. As per the norms set up in different judgments, the petrol station should be beyond 100 meters from the educational institutions as well as crowded places. The contention of the 2nd respondent that the AIR bypass Road is a commercial area is not correct. Finally, it is contended that in the advertisements given by the Oil Marketing Company dated 25.11.2018 through its web portal, the 2nd respondent Corporation has given only advertisement for 47 locations in entire Chittoor district but did not give any advertisement for the AIR bypass Road. By this, it is clear that respondent Nos.2 and 3 have deviated all the rules and regulations framed by the Central Government for identification of locations for setting up of ROs.
5. Heard Sri P. Gangarami Reddy, learned counsel for the petitioner and Sri O. Manohar Reddy representing respondent No.2 and 3.
6. It is the contention of learned counsel for the petitioner Sri P. Gangarami Reddy that within 125 meters from the RO of the petitioner, the new RO is proposed to be set up by the respondent Nos.2 and 3 on the same side of the road which is against the guidelines issued by IRC as those guidelines would show that the minimum distance between two fuel stations on same side in case a divided carriageway, shall be 1000 meters.
7. Per contra, the contention of Sri O. Manohar Reddy, learned counsel for the respondent Nos.2 and 3 is that the petitioner has no locus standi to file writ petition. In expatiation, it is argued, the respondent Corporation has taken property admeasuring 717.93 square metres in Survey No.84/2 and 7 85/C2, AIR bypass Road, Tirupathi, Chittoor District on lease vide Lease Deed document No.1869/2011 for 30 years from 01.11.2010 to 31.10.2040 and by investing a huge amount of Rs.86,06,813/- for setting up ultramodern RO, pumps, tanks, sales building, compound wall, drive way with pavers block, canopy etc., were provided and the petitioner was appointed as a mere licensee to facilitate the sale of petroleum products of the Corporation and therefore, the petitioner has not invested any amount for setting up RO and consequently he has not suffered any infringement of legal right by virtue of opening of new RO in that vicinity. It is further contended that the guidelines issued by the IRC are only directory but not mandatory and they don't have any statutory force. Above all, though the petitioner has not achieved sales target, the respondent Corporation did not take any coercive steps against him. For all these reasons the writ petition which is filed by rival traders is not maintainable.
8. On a conspectus of pleadings and respective arguments of either side, I find no much force in the contention of the petitioner. Admittedly, the site for establishment of RO was taken on lease by the Corporation and it invested amount and provided necessary infrastructure. The petitioner in his reply affidavit admits the same and says that his RO is under CC category, meaning thereby, the Respondent Corporation has to construct the entire outlet and provide all facilities for sale of petroleum products.
a) Thus, it is pellucidly clear that the petitioner did not make any investment like in the other category of ROs wherein the successful applicant has to provide site and develop required infrastructure. 8
b) In that view of the matter, as rightly argued by learned counsel for respondent Nos.2 and 3, the petitioner who is only a licensee to promote the sales of petroleum products of respondent Nos.2 and 3, cannot claim to suffer any economic loss or infringement of any right by virtue of the proposed new RO.
c) Nextly, though the petitioner in his pleadings referred and vehemently argued about the guidelines said to be issued by IRC, however he did not specifically mention about the relevant rules and guidelines. Therefore, no much weightage can be given to those guidelines. Even assuming that as per the guidelines said to be issued by the IRC no new RO should be set up within a distance of 1000 meters from the existing RO on the same side as alleged, still, as already stated supra, the petitioner is only a licensee and he has not invested any amounts for setting up of the existing RO. The concerned authorities by considering the relevant statutes and rules, have already issued NOC for setting up of a new RO in the proposed site.
9. Therefore, petitioner's objections cannot be taken into consideration. I find no merits in the writ petition. Accordingly, the writ petition is dismissed. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 17.06.2021 krk 9 HON'BLE SRI JUSTICE U. DURGA PRASAD RAO Writ Petition No.14011 of 2020 17th June, 2021 krk