Madhya Pradesh High Court
Madhya Pradesh Road Development ... vs Yusuf Kapadia on 5 July, 2017
1
W. A. No.411/2016
05.07.2017
Shri Vivek Patwa with Ms. Meghna Bais, learned counsel
for the appellant.
Shri Ajay Assudani, learned counsel for the respondent
No.1.
Shri S. R. Kochatta, learned counsel for the respondent No.2.
Shri P. Bhargava, learned Dy. AG for the respondent No.3
- State.
Heard on the question of admission.
2. By order dated 10.10.2013, the appellant has declined the grant of No Objection Certificate to the respondent No.1 for establishing of retail outlet. The order has been passed based upon the guidelines framed by the Indian Road Congress.
3. The respondent No.1 challenged the aforesaid order by filing W. P. No.2786/2014. Learned Writ Court considering the fact that there is no statute which provides for minimum distance between the two retail outlets and relying on the decision in the case of Amrish Dangi vs. Hindustan Petroleum Corporation Ltd. (W. P. No.7123/2011) decided on 11.01.2013 allowed the writ petition vide order dated 03.09.2014.
4. It is this order, which has been impugned in this writ appeal. The contention of the learned counsel for the appellant is that the respondent No.1 proposes to establish petrol pump close to another outlet and located on a two lane road which would not only cause traffic congestion but may also cause accidents. It is 2 further submitted that the decision in the case of Amrish Dangi (supra) will not be applicable in the present facts and circumstances of the case because the aforesaid case is in respect of four lane road whereas, the present case is in respect of two lane road. He also submitted that the guidelines of the Indian Road Congress are prepared by the technical experts of the Union of India and are made for the safety of the people at large. The guidelines are framed on the basis of survey and data by the technical experts which reduces the chances of collusions and accidents and, therefore, the order passed by the appellant is just and proper.
5. Learned Writ Court without considering all these aspects of the matter, solely on the basis of the order passed by the in the case of Amrish Dangi (Supra) allowed the writ petition.
6. In reply, Shri Ajay Assudani, Advocate, who is appearing on behalf of the respondent No.1 has submitted that the ratio decided in the case of Amrish Dangi (Supra) will be applicable fully in the present facts and circumstances. The Indian Road Congress has no statute and the guidelines have already been issued by the Government of India as well as by the oil companies for setting up of the outlets.
7. In the present case, NOC has been denied 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. Learned Single Judge in the case of Amrish Dangi (supra) considered this question in Paras-9 to 11, which reads as under :-
9. The respondent-Collector keeping in view the statutory provisions as contained under the 3 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, 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 4 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 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.1.5
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 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."
8. On due consideration of the aforesaid so also the fact that there is no statutory provisions, which prohibit for establishment of a retail outlet, even if the distance is less than 300 meters, we are of the view that the learned Writ Court rightly quashed the order passed by the appellant. In absence of any statute, no case is made out to interfere with the order passed by the Writ Court.
9. The writ appeal filed by the appellant has no merit and is accordingly, dismissed.
(P. K. Jaiswal) (Rajeev Kumar Dubey)
Judge Judge
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