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2014 DIGILAW 301 (UTT)

SOHAN SINGH NEGI v. STATE OF UTTARAKHAND

2014-08-11

K.M.JOSEPH, V.K.BIST

body2014
JUDGMENT K.M. Joseph C.J. (Oral) This is a writ petition filed and purporting to be a public interest litigation. Petitioner claims to be a resident of Raipur, which falls in District Dehradun. He would point out that under Rule 3.13 (3) of Housing Construction and Development Rules, 2011 framed by the State of Uttarakhand, a plot for installation of a petrol pump in the plain area outside of the Municipal limit should be 35.0 X 35.0 Sq. Metres. The Rules further predicate that in the plain area within the municipal limits the area of the plot should be 20.0 X 20.0 Sq. metres. Respondent No.6 is the Bharat Petroleum Corporation Limited. It intended to install a petrol pump at the land bearing Khasra No. 132 GA Khata No. 120, which is said to be located at Village-Ladpur, Raipur Road, Pargana- Parwadoon, District–Dehradun belonging to the 7th respondent. The “No Objection Certificate” (NOC) has been granted by the District Magistrate, Dehradun to the 7th respondent for installing a petrol pump. It is alleged that there is violation of the Rules, which we have adverted to. The complaint is that the plot, which is offered by the 7th respondent is having measurement of only 18.5 X 37.13 Sq. metres. When the matter came up for admission, this Court on 3rd April, 2012 noted the minimum area of 35 X 35 Sq. metres as space for installing a petrol pump anywhere in the State outside the municipal limit. The Court granted an interim order restraining respondent Nos. 6 & 7 from installing the petrol pump on the land in question. Though, an application was moved for vacating the said order, that was rejected. Originally, the prayer in the writ petition was- “to issue a writ order or direction in the nature of mandamus commanding the respondents to immediately stop proceedings for installation of petrol pump at Village Ladpur, Raipur Road, Dehradun and further no objection certificate issued by respondent Nos. 2 to 5 be quashed.” 2. Subsequently, the writ petition was amended seeking a writ of certiorari to quash the Government Order dated 15.02.2013 and also further to quash the order dated 15.07.2013 issued by the Mussoorie-Dehradun Development Authority (MDDA). By the Government Order dated 15.02.2013, what has happened is that the Government has, in purported exercise of power to relax the Rules, granted relaxation in favour of the plot in question. By the Government Order dated 15.02.2013, what has happened is that the Government has, in purported exercise of power to relax the Rules, granted relaxation in favour of the plot in question. As far as the order dated 15.07.2013 of the MDDA is concerned, apparently on the basis of Government Order dated 15.02.2013, the Development Authority has granted sanction for the establishment of Petrol Pump. 3. We have heard Mr. Neeraj Garg, learned counsel for the petitioner, Mr. P.K. Chauhan and Mr. J.C. Belwal, learned counsel for respondent Nos. 6, Mr. Sudhir Kumar, learned counsel for respondent No.7 and Mr. P.C. Bisht, learned Standing Counsel for the State of Uttarakhand. 4. The learned counsel for the petitioner would submit that there has been a clear transgression of the Housing Rules and there is no need for any investigation into the facts as it is an admitted position that the plot offered by the 7th respondent falls short of the mandatory and statutory requirements, which we have already mentioned, namely, as far as the plot area is concerned, the minimum being 20 X 20 Sq. metres, the plot offered by the 7th respondent is having only 18.5X37.13 Sq. metres. 5. Next he would submit that there is clear wrong doing in this case. When the order of relaxation passed by the Government is dated 15.02.2013, and the order of the MDDA is dated 15.07.2013 neither of these orders were produced or referred by the 7th respondent when he sought to vacate the interim order. Therefore, he raises the question as to the genuineness of these documents. Next, he would contend that there is no power under the Rules to grant relaxation in favour of a particular individual. In other words, according to him, the Rules stand in the Statute book without any alteration or relaxation and it is impermissible in law to grant the relaxation in favour of a particular individual. Still further, he would refer to the requirements as to the buffer strip. The said requirements, when translated into English, are as under: “4. In other words, according to him, the Rules stand in the Statute book without any alteration or relaxation and it is impermissible in law to grant the relaxation in favour of a particular individual. Still further, he would refer to the requirements as to the buffer strip. The said requirements, when translated into English, are as under: “4. Provision for set back and buffer strip: After leaving the pathway, in between the main road and the site, there shall be the following provision for buffer strip: Length of buffer Width of buffer Minimum distance in strip (metre) strip (metre) between buffer strip and fuel point (metre) In plain area outside the municipal limits 12.00 4.00 4.00 In plain area within the municipal limits/ hill areas 5.00 3.00 4.00 Note: 1. Upto the distance of left out set back and upto the distance of buffer strip and fuel point , no construction shall be permissible. 2. Minimum 3.00-3.00 metre set back shall be essential in the back and both sides. In the backside of setback, generator room upto the maximum of 6.25 sq.metres shall be permissible. 3. On all four sides of the buffer strip, it shall be essential to construct curve of 27.5 cm height, so that no vehicles can come and go on the buffer strip.” 6. A perusal of the PWD sanction (Annexure-6 to the writ petition) would show that the PWD has not given permission in respect of the buffer strips and rejected it. This means that there is a Rule propounded by the Rule maker; the Rules stood broken; thereafter, they get an order from the Government which itself is not supported by the power of relaxation and what is more, even now, the Rule relating to buffer strip stands violated. 7. Per contra, the learned counsel for the 7th respondent would point out that he admits that the plot is 18.3 X 37.13 Sq. metres. The area advertised was 18 X 20 Sq. metres. The requirement of the petroleum company, which was as advertised stands fulfilled by the party respondent. It is for the petroleum company to decide what should be the ideal space for vending petroleum products. Insofar as it fell short by a few metres, the matter engaged the attention of the Government, which is endowed with the powers of relaxation and the Government has granted relaxation. It is for the petroleum company to decide what should be the ideal space for vending petroleum products. Insofar as it fell short by a few metres, the matter engaged the attention of the Government, which is endowed with the powers of relaxation and the Government has granted relaxation. In regard to the buffer strip, it is the contention of both the learned counsel for the petroleum company as well as the party respondent that, what is required in law, will be done and all that PWD has provided by Clause (3) in the order granting No Objection is that the buffer strip cannot be constructed over public land. 8. More importantly, the learned counsel for the party respondent would submit that this Court may not entertain this public interest litigation. There is a pleading that the petitioner is actually the son-in-law of another petroleum dealer and, still furthermore, there is no public interest, which will be served by granting the relief in this litigation. He would submit that, when the petroleum company, which is concerned with the requirements for the purpose of vending its products, itself, is convinced and satisfied with the extent of land offered by the 7th respondent; how the public interest in any manner will be secured by the grant of relief in this litigation. He drew our attention to a large body of case-law, which is as follows: (i) Malit Brothers vs. Narendra Dadhich & others reported in (1999) 6 SCC 552 (ii) Chairman & MD, BPL Ltd. vs. S.P. Gururaja & others reported in (2003) 8 SCC 567 (iii) Gurpal Singh vs. State of Punjab & others reported in (2005) 5 SCC 136 (iv) Kushum Lata vs. Union of India & others reported in (2006) 6 SCC 180 (v) Vishwachetna Trust & another vs. R.P.C. Layout Residents’ Welfare Association & others reported in (2002) 9 SCC 384 (vi) Administrator, Ranchi Municipal Corporation vs. Rajnish Kumar & others reported in (2011) 11 SCC 568 9. He would also submit that a perusal of the rule empowering grant of relaxation would clearly show that relaxation can be given in favour of an individual, which is what has been done. 10. We are of the view that we need not grant relief in this litigation. He would also submit that a perusal of the rule empowering grant of relaxation would clearly show that relaxation can be given in favour of an individual, which is what has been done. 10. We are of the view that we need not grant relief in this litigation. It is true that the petitioner has denied the allegation that the petitioner is the son-in-law of another dealer in petroleum outlet, but we must place on record that, when we enquired with the learned counsel for the petitioner Sri Neeraj Garg as to whether there is any relationship at all, he would very fairly submit before us that, though not son-in-law, petitioner is distantly related to another petroleum dealer. On the basis of this submission, we must be on our guard in the matter of grant of relief in a litigation, which is styled as public interest litigation. This is not a case, where the petitioner is an immediate neighbour of the 7th respondent. This is not a case, where the petitioner is, in any way, personally affected. This is, again, not a case, where the petitioner is one of those, who had applied pursuant to the advertisement by the petroleum company. We made reference to this last category as there is one other argument addressed before us by the learned counsel for the petitioner, namely, that, by virtue of the relaxation granted to the 7th respondent, the other members of the public, who would have applied pursuant to the relaxed requirement, are at the receiving end of an injustice. The petitioner cannot claim to be such person. Therefore, we would have to examine, whether there is any public interest as such to be secured by grant of relief in this litigation. The litigation relates to the starting of a petrol pump. Going by the dimensions, which are not in dispute, the width of the land adjoining the public road falls short of nearly 1.7 metres. This appears to be the bone of contention between the parties. We are afraid that there is nothing relating to public interest, which emerges from this. The litigation relates to the starting of a petrol pump. Going by the dimensions, which are not in dispute, the width of the land adjoining the public road falls short of nearly 1.7 metres. This appears to be the bone of contention between the parties. We are afraid that there is nothing relating to public interest, which emerges from this. When the petroleum company, itself, is satisfied with the necessary requirements and when the Government has proceeded to find merit by granting relaxation and also viewed in the light of the fact that the petitioner is, at least, distantly related to another petroleum dealer, the extra-ordinary and discretionary jurisdiction, which the Court exercises even in public interest litigation under Article 226 of the Constitution of India, need not be exercised in this case. At the instance of the petitioner, we are of the view that we need not go into the legality of this relaxation as such. But, at the same time, we must observe that, prima facie, there is power with the Government to grant relaxation of the Rules in an individual case. Such relaxation has been granted. We cannot permit the petitioner to impugn the said decision in the matter of starting of a petrol pump. 11. It is true that the learned counsel for the petitioner, with reference to the judgment of the Apex Court reported in (2008) 10 SCC 404 , would submit that, though the litigation may have started as a private litigation, there is a public interest element in this case. He would submit that the principle that “rule of law must be upheld” must be a matter dear to the Court in the exercise of its public interest jurisdiction and here is a case, where the rule is thrown to the winds by the authorities and relaxation is given qua an individual. 12. We are of the view that the petitioner has not been able to project a clear case of public interest being endangered. As held by the Apex Court, public interest litigation is not a panacea for all kinds of evils. 12. We are of the view that the petitioner has not been able to project a clear case of public interest being endangered. As held by the Apex Court, public interest litigation is not a panacea for all kinds of evils. Public interest litigation had its origins in relaxing the concept of locus standi and enabling any public spirited person to take up cudgels on behalf of the poorest of the poor; those whose voice was not heard and who could not individually come to the courts in regard to depredation of their fundamental freedoms, be it blinding of under trial prisoners in the prison or denial of minimum wages to people, who were engaged by the State with the plea of lack of funds and the like. No doubt, it has blossomed into a full-fledged jurisdiction and it is pointless to place limits on the court’s power; but, nonetheless, the court must always be on the guard to decipher the distinction between what is purely public interest litigation and the litigation, which is actuated by private interest and the ultimate basis must be, whether public interest issues are projected in the litigation in which the interest of large group of persons, at least, is affected. We are unable to notice any such public interest element in this case. 13. We only record the submission of the learned counsel for the party respondent and also the petroleum company that, as far as the buffer strip is concerned, they will be maintained as required in law without, in any manner, impinging on public land. 14. Subject to the same, the writ petition is dismissed. No order as to costs.