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2008 DIGILAW 867 (ORI)

DAYAMAYEE PANDA v. UNION OF INDIA (UOI)

2008-09-23

I.M.QUDDUSI, SANJU PANDA

body2008
JUDGMENT : I.M. Quddusi, J. - Both the writ petitions being inter-linked filed by the same Petitioner, they were heard together and are disposed of by this common judgment. 2. In W.P.(C) No. 3928 of 2006, the Petitioner has prayed for quashing of the impugned order vide Annexure-6 and the No Objection Certificate vide Annexure-7 with a direction to opposite party No. 2 to reject the prayer of opposite party No. 5 to set up its petrol pump/retail outlet at the proposed site. 3. The brief facts of the case are that the Hindustan Petroleum Corporation Limited (in short 'HPCL') has allotted its dealership to the Petitioner in the name and style of M/s. Shree Abhiram Service Station at Olipatna under Khantapara Police Station in the district of Balasore. According to the averments made in the writ petition, the Petitioner obtained necessary license and No Objection Certificate (in short 'NOC') from the competent authorities and fulfilled necessary requirements as per the Rule 117 of the Petroleum Rules and the retail outlet started its functioning with effect from 24.1.2005. 4. The opposite party No. 5 is a registered company under the Companies Act and it deals with various products and recently it has started its business in Petroleum products. In order to expand its business, the opposite party No. 5 purchased a land measuring an area of Ac.8.04. in close proximity of less than 100 meters to the North of the existing petrol pump of the instant Petitioner. Since such a vast area is not required to establish a petrol retail outlet, the Petitioner was under the impression that opposite party No. 5 would establish the depot in the said land. In the meantime on 17.2.2005, the opposite party No. 5 applied before the authority including opposite party No. 2 for grant of NOC to establish a petrol pump/retail outlet over the purchased land. By the time, the Petitioner came to know about such development, the Superintendent of Police, Balasore and Superintendent of Fire Station, Balasore and the explosives department had already granted NOC in favour of opposite party No. 5. At the same time, the Additional District Magistrate, Balasore and Tahasildar, Soro, opposite party No. 3 also recommended the opposite party No. 2 for issuance of NOC. 5. At the same time, the Additional District Magistrate, Balasore and Tahasildar, Soro, opposite party No. 3 also recommended the opposite party No. 2 for issuance of NOC. 5. It has been further stated that as per Section 4 of the Petroleum Act, 1934, the Central Government in the Ministry of Road Transport and Highways has promulgated a set of guidelines through circulars bearing No. RW/NH-33023/19/99-DO-111 dated 25.9.2003/17.10.2003 to regulate establishment and maintenance of Petrol Pumps/Retail outlets besides National Highway throughout India. Clause 6.2.1 of the said circular prescribes that in respect of divided carriageway (with no gap in median at the location and stretch) of plain and rolling terrain in non-urban (rural) areas the distance between two fuel stations in the same side of the National Highway should be 1000 meters. Similar criteria have also been provided in Clause 4.4.1 of Appendix-1 to the said circular. Clause 4.4.3 says that if for some reasons two fuel stations are to be sited in close proximity, the same would be grouped together to have a common access through a service road of 7.0m width and connected to the highway through acceleration, deceleration lanes. But the permission for the new fuel station would be considered if it is either in proximity to the existing one so that common access can be provided or the new one is located at a distance of more than 1000 meters from the existing fuel station. Clause 4.4.4 stipulates that in the event new fuel station is established within 1000 meters of the existing one, it shall be the responsibility of the new fuel station to construct and maintain common service road, acceleration and deceleration lanes etc. 6. Clause 4.4.4 stipulates that in the event new fuel station is established within 1000 meters of the existing one, it shall be the responsibility of the new fuel station to construct and maintain common service road, acceleration and deceleration lanes etc. 6. In view of the fact that the site on which opposite party No. 5 is going to establish its petrol pump/retail outlet being only at a distance within 100 mtrs in the same side of N.H.5 at North of the existing petrol pump/retail outlet of the Petitioner and the N.H.5 in the area being divided carriageway, the vehicles coming from south will not come to the Petitioner's petrol pump and there is every possibility that because of establishment of the new petrol pump/retail outlet of opposite party No. 5 which is undoubtedly a big company, the business of Petitioner's petrol pump would be adversely affected and the vehicles coming from North will not come to the Petitioner's petrol pump thereby infringe her fundamental right to carry on lawful business as guaranteed under Articles 19(1)(g) of the Constitution. At the same time, establishment of another petrol pump/retail outlet being contrary to the guidelines and stipulation of competent authority under the circular vide Annexure-1, the Petitioner filed an objection against grant of NOC in favour of opposite party No. 5 before the Collector, Balasore, opposite party No. 2 on 7.7.2005. In paragraph-12 of the writ petition, it has been stated that in the letter dated 19.11.2005, the opposite Party No. 5 has relied on Clauses 4.4.3 and 4.4.4 of Appendix-I to the above circular vide Annexure-l to establish that two petrol pumps/retail outlets can be sited at a distance of less than 1000 meters in the same side of N.H is permissible which is not correct. As stated in preceding paragraphs Clause 4.4.3 stipulates the criteria for providing common passage to two fuel stations in close proximity and Clause 4.4.4 stipulates that new fuel station is to maintain the common passage etc. In the letter dated 30.1.2006, opposite party No. 5 simply assured opposite party No. 2 that it will confirm to the guidelines, standard and specifications stipulated in the circular, Annexure-1. 7. In view of the above mentioned facts and circumstances, the Petitioner filed W.P.(C) No. 3928 of 2006 with a prayer to quash the NOC issued in favour of opposite party No. 5. 7. In view of the above mentioned facts and circumstances, the Petitioner filed W.P.(C) No. 3928 of 2006 with a prayer to quash the NOC issued in favour of opposite party No. 5. During the pendency of the aforesaid writ petition, the Project Director, National Highways Authority of India, opposite party No. 4 sent a proposal to opposite party No. l, Union of India, represented through the Secretary, Department of Road Transport and Highways for approval to grant 'No objection Certificate' in favour of opposite party No. 5 to establish its proposed petrol pump/retail outlet at the site within 1000 meters of the existing petrol pump of the Petitioner. He also sought for approval of permission in favour of opposite party No. 5 to use the National Highway land as approach road to its proposed retail outlet vide its letter dated 17.8.2006 pursuant to which opposite party No. l approved the aforesaid proposal of opposite party No. 4 for grant of. 'No Objection Certificate' in favour of opposite party No. 5 and also executed a license deed allowing opposite party No. 5 to use National Highway land as approach road to its proposed retail out let. Being aggrieved, the Petitioner has filed W.P.(C) No. 50l6 of 2007 praying for quashing of the license deed (Annexure-8) and the 'No objection Certificate' vide Annexure-9. 8. In the counter affidavit filed by the Tahasildar, Soro, opposite party No. 3 in W.P.(C) No. 3928 of 2006, it has been stated that the NOC for setting up of retail outlet is usually issued after conducting enquiry from point of view of Fire safety, Law and order and land position and in the instant case, NOC was issued to Reliance Industries only after receipt of favourable reports from all quarters. The contention of the Petitioner that establishment of two petrol pumps/retail outlets at a distance of less than 1000 meters in the same side of N.H. is not permissible has been denied. 9. In the counter affidavit filed on behalf of opposite party No. 5 in W.P.(C) No. 3928 of 2006, it has been stated that due care was taken by them in selecting the site which met all statutory requirements and in such circumstances, the opposite party was legally convinced of getting necessary clearances from the relevant quarters. 9. In the counter affidavit filed on behalf of opposite party No. 5 in W.P.(C) No. 3928 of 2006, it has been stated that due care was taken by them in selecting the site which met all statutory requirements and in such circumstances, the opposite party was legally convinced of getting necessary clearances from the relevant quarters. It is only in the background that it went ahead in laying the infrastructure that is necessary for establishing the retail outlet. In any event, the opposite party shall start commercial activity only after the residual clearance is in its hands. In putting up the infrastructure, the opposite party has not committed any illegality nor violated any law and/or the fundamental rights of any other person and thus there is no cause of action for the Petitioner to file the instant writ petition. It has been further stated that it is apparent that the existing Balasore Petrol Dealer Association which have otherwise no locus-standi want to shut out competitions and continue to propagate enjoying the monopoly for their members. Neither such association nor the Petitioner have any right to prevent opposite party No. 5 from exercising it's rights guaranteed under Article 19(1)(g) of the Constitution of India as long as it does, not infringe any law. The association having not been a party to this writ petition, they have nothing to do in the determination/application or the legality of the issue. The opposite party No. 5 has stated that it shall abide by the directions of NHAI which shall be definitely acted upon. 10. Counter affidavit has also been filed on behalf of the National Highway Authority of India-opposite party No. 4. It is stated therein that Hindustan Petroleum Corporation Limited, the Oil Company which has granted dealership to the Petitioner, has not obtained necessary permission from the Central Government for use of land of National Highways as required under law. It is further stated that the contention of the Petitioner that two petrol pumps / retail outlets at a distance of less than 1000 meters in the same side of the National Highways is impermissible, is apparently not correct. That would be so unless clustering provision in para 4.4.3 of the MOR & TH's guidelines is applicable. 11. A preliminary counter affidavit has also been filed by the Project. That would be so unless clustering provision in para 4.4.3 of the MOR & TH's guidelines is applicable. 11. A preliminary counter affidavit has also been filed by the Project. Director, National Highway Authority of India, Project Implementation Unit, Bhubaneswar in W.P.(C) No. 5016 of 2007. It has been stated therein that the Petitioner is the dealer of HPCL. HPCL has applied for 'No Objection Certificate' but the same has not been granted to it due to non-compliance of the norms of Government of India. It is further stated that Clause 10.8 of the Appendix-1 to the letter dated 25.9.2003 stipulates that licence deed shall be signed between the Ministry of Road Transport and Highways and the Oil Company only, irrespective of the dealership type. In the present case HPCL is the applicant before the Ministry for permission to access and use of National Highways and, therefore, the Petitioner has no locus standi to maintain the writ petition. In this case, HPCL has not been made a party. It is further stated that the Petitioner has constructed the access without permission of the Competent Authority. The further stand of the opposite party is that in view of the provisions of the guidelines there is no prohibition to grant NOC, if the new entrant undertakes to construct the common service road and there shall be one acceleration and deceleration point. 12. Clause 4.4.3 of the circular dated 25.9.2003/17.10.2003 issued by the Government of India in the Department of Road Transport and Highways is reproduced as under: If two or more fuel stations are to be sited in close proximity for some reasons, these would be grouped together to have a common access through a service road of 7.0 m width and connected to the highway through acceleration, deceleration lanes. From these considerations, the permission for the new fuel stations would be considered only if it is either in proximity to the existing one so that the common access can be provided or the new one located at the distance of more than 1000 meters. The provision shows that there is no restriction for installation of another outlet in the proximity of the existing outlet; rather it has been provided that the same would facilitate construction of Common access for the new one located at close proximity. The provision shows that there is no restriction for installation of another outlet in the proximity of the existing outlet; rather it has been provided that the same would facilitate construction of Common access for the new one located at close proximity. Therefore, the contention of the Learned Counsel for the Petitioner that there is restriction to open another outlet within 1000 meters of the existing outlet is not sustainable. 13. Further in the case of Mithilesh Garg, Vs. Union of India and others etc. etc. the Hon'ble Apex Court has held that a rival businessman cannot file a writ petition challenging the setting up of a similar unit by another businessman on the ground that establishing a rival business close to his business-place would adversely affect his business interest even if the setting up of the new unit is in violation of law. 14. In the aforesaid premises, the objection of the Petitioner for opening of a retail outlet by opposite party No. 5 is not tenable in the eye of law. However, since the Petitioner's retail outlet is existing and the Petitioner has been granted no objection certificate much prior to the establishment of the retail outlet of opposite party No. 5, therefore, due to the opening of retail outlet of opposite party No. 5, no adverse orders should be passed against the Petitioner on that ground. 15. In view of the aforesaid facts and circumstances, we are not inclined to interfere with the impugned No-objection Certificate granted by the Collector, Balasore and the no-objection certificate and access permission for approach road granted by the Department of Road Transport & Highways in favour of opposite party No. 5 and the license deed. However, we direct that no adverse order shall be passed against the Petitioner on the ground of establishment of retail outlet of opposite party No. 5. The writ petitions are accordingly disposed of. There would be no order as to costs.