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2019 DIGILAW 2049 (RAJ)

Raju Das Vaishnav v. State of Rajasthan

2019-07-29

PUSHPENDRA SINGH BHATI, S.RAVINDRA BHAT

body2019
JUDGMENT : S. Ravindra Bhat, J. 1. Complaining violation of public interest, the petitioner in this case alleges that the allotment of petrol pump retail outlet to the private-respondent (contesting Respondent No. 8; hereafter referred to as "Successful applicant") is contrary to law; therefore, he has approached this Court under Article 226 of the Constitution of India. 2. The brief facts are that the petitioner had initially bid for a petroleum outlet. The location of that outlet was cancelled and later shifted to the present site at Kharda village. The successful applicant had bid for the site located at Khasra No. 5327/2302 within the 'abadi' limits of the village, which is located near Nadol. 3. The writ-petitioner complaints that the location of petroleum pump outlet contravenes provisions of National Highways Act, 1956 and the regulations framed thereunder. The petitioner impleaded amongst others NHAI, the State of Rajasthan, the Oil Company concerned (HPCL) and the successful applicant. 4. The petitioner argues that the NOC granted by the Tehsildar is contrary to law, more specifically, provisions of Sections 20 and 25 of the Rajasthan State Highways Act, 2014 (hereinafter referred to as 'the Act of 2014'). It is submitted that besides, the stretch of the concerned carriage road has been now declared a National Highway. In support of this submissions, the petitioner relies upon a Notification dated 22.2.2012 (at Sr. No. 192A) declaring that the existing highway would be in extension of NH-162 connecting Marwad, Nadol, Desuri, Kumbhalgarh, Haldighati, Nathdwara, Mavli and terminating at Bhatevar on NH-27 in the State of Rajasthan. 5. Expanding on the subject, learned counsel reiterates that Section 20 places an embargo upon utilization, conversion and diversion of agricultural land for other purpose and similarly alleges that the location of the petroleum outlet contravenes Section 20(1) and Section 25 of the Act of 2014. 6. Resisting the claim, counsel for the contesting-respondent and HPCL argue that State issued the NOC on 19.6.2018 after the concerned revenue official i.e. District Magistrate carried proper inquiry by an inspection report of the Tehsildar, who visited Khasra No. 5327/2302 at village Nadol, Tehsil Desuri, Police Station Rani, District Pali. Counsel for HPCL also relied upon the NOC and certificates issued by various authorities including PWD and Controller of Explosives etc. Counsel for HPCL also relied upon the NOC and certificates issued by various authorities including PWD and Controller of Explosives etc. It is submitted on behalf of the State that this particular stretch which is adjoining to the location is in fact not a part of the National Highway but rather has not been ceded to be by the State authorities. The relevant documents in this regard are letters dated 25.7.2012 and 16.5.2016, (the letter issued by State Unit of NHAI). 7. It is argued on behalf of HPCL and the contesting respondent that the setback provided and even the exact location of petrol pump outlet corresponds to the relevant guidelines of Indian Road Congress, which requires a minimum distance of 40 Meters on either side from the middle of a carriage road, which is satisfied in the present case. 8. The petitioner had approached this Court earlier, as a person aggrieved, contending that the cancellation of the previously advertized location was arbitrary. His interest is not one of a public spirited citizen; nor he is concerned with the adherence of rule of law by the respondents or for that matter the larger or general public interest. However, on this ground alone the court does not propose to dispose of the petition. 9. During the course of proceedings petitioner's counsel could not satisfy this Court as to how, in view of the fact that the State Authorities, (PWD) on 25.7.2012 refused to hand-over the existing highway to the NHAI; i.e. the concerned stretch could be a part of National Highway. Although the petitioner relied upon Section 2, 4 and 5 of the National Highways Act, yet it is not disputed that the ownership and control of the concerned stretch of land continues to vest in the State Government; possession of that stretch has not yet been handed-over to National Highways Authority. In these circumstance, the issue of norms prescribed by the NHAI Act cannot per-se apply. 10. The next question, however, is whether the provisions of State Highways Act are violated. The relevant provisions in this regard are Section 20(1) and Section 25, which read as follows:- "20. In these circumstance, the issue of norms prescribed by the NHAI Act cannot per-se apply. 10. The next question, however, is whether the provisions of State Highways Act are violated. The relevant provisions in this regard are Section 20(1) and Section 25, which read as follows:- "20. Restrictions on land in a control zone.- (1) Notwithstanding anything contained in any law for the time being in force, no person shall use, and no authority shall permit the use of, any land which lies within a control zone comprising the area appurtenant to a highway and situated between the boundary of such highway and a distance of one hundred meters from such boundary, save and except for the purposes of agriculture, horticulture, animal husbandry or afforestation, which purposes shall not include the construction of any permanent structures or buildings: Provided that the provisions of this section shall, instead of one hundred meters referred to hereinabove, apply within a distance of fifteen meters from the boundary of any part of a highway where such part of the highway is situated within the municipal limits of a town or a village abadi: Provided further that the State Government may at any time acquire, any or all land and buildings forming part of the control zone, under this Act for development and expansion of the highway or any wayside amenities: Provided also that the restrictions on the control zone hereunder shall not apply to the use of any land, or any building or structure thereon, to the extent such use of land, or any building or structure thereon, was lawfully in existence at the commencement of this Act or where such building or structure is being repaired, improved or modified without any alteration in the building line comprising its length, width and height. Provided also that in the event of a doubt or dispute in respect of the width and boundary line of a highway, such width and boundary line shall be deemed to be determined by reference to the nearest section of such highway on which there is no doubt or dispute in respect of the width and boundary line thereof: Provided also that the control zone for every highway included in the Schedule at the commencement of this Act shall be determined with reference to the date on which this Act comes into force and in respect of any highway included in the Schedule by notification under sub-section (2) of section 3, the control zone thereof shall be determined with reference to the date of such notification, and any extension of a highway boundary subsequently shall not alter the control zone. (2) The State Government may by rules to be made in this behalf authorise the use of any class, category or location of lands referred to in sub-section (1) for such purposes and subject to such conditions, including payment of fees, as may be prescribed." xxx xxx xxx "25. Restriction on change in land use.- (1) No agricultural land situate within the control zone shall be diverted or converted for non-agricultural purposes without the prior sanction of the State Government or an officer authorised by the State Government in this behalf and subject to any general or special directions of the State Government. (2) Notwithstanding anything contained in this Act, no permission for change in land use or for diversion of agricultural land for nonagricultural purposes shall be granted in respect of any land forming part of the control zone and situate within a distance of twenty five meters from the boundary of a highway, save and except any permission which may be granted under this Act for construction of wayside amenities: Provided that the restriction under this section shall not apply to the control zone situate within municipal limit." 11. A close reading of Section 20(1) would reveal that in the first instance, the norm is that "no person or authority is permitted to use any land which lies within the control zone" and "area appurtenant to a highway and situated between the boundary of such highway and a distance of one hundred meters from such boundary". A close reading of Section 20(1) would reveal that in the first instance, the norm is that "no person or authority is permitted to use any land which lies within the control zone" and "area appurtenant to a highway and situated between the boundary of such highway and a distance of one hundred meters from such boundary". Secondly, this stipulation or standard of 100 meters is relaxed to a great extent by the proviso, which states that instead of one hundred meters referred to, a limit of fifteen meters from the boundary of any part of highway would be sufficient if such a part of the highway is situated within municipal limits of a town or a abadi. In other words, the 100 meters stipulation is relaxed and is substituted by the 15 meters standard in the State Highways Act in case of proximity to a village. However, the matter does not end here. The Indian Road Congress prescribes uniform standards for land application which include various classes of construction alongside National and State Highways, Major District Roads, Other District Roads and Village Roads etc., through its Geometric Design Standards for Rural (Non-Urban) Highways. The relevant para 6.1.1 and 6.1.4 read as follows:- "6.1 Road Land, Building Lines and Control Lines 6.1.1 Road land width (also termed the right-of-way) is the land acquired for road purposes. Desirable land width for different classes of roads is indicated in Table 3. Table 3. Recommended Land Width for Different Classes of Road (Maters) S. No. Road classification Plain and rolling terrain Mountainous steep terrain Open areas Built-up areas Apen areas Built-up areas Norma 1 Range Norma 1 Range Norma 1 Normal 1 National and State Highways 45 30-60 30 30-60 24 20 2 Major District Roads 25 25-30 20 15-25 18 15 3 Other District Roads 15 15-25 15 15-20 15 12 4 Village Roads 12 12-18 10 10-15 9 9 xxx xxxx xxx "6.1.4 In order to prevent overcrowding and preserve sufficient space for future road improvement, it is advisable to lay down restrictions on building activity along the roads. Building activity should not be allowed within a prescribed distance from the road, which is defined by a hypothetical line set back from the road boundary and called the "Building Line". Building activity should not be allowed within a prescribed distance from the road, which is defined by a hypothetical line set back from the road boundary and called the "Building Line". In addition, it will be desirable to exercise control on the nature of building activity for a further distance beyond the building line upto what are known as the "Control Lines". Building and control lines are illustrated in Fig. 1 with respect to the road centre line and road boundary." 12. Reliance has also been placed upon the Guidelines for Access, Location and Layout of Roadside Fuel Stations and Service Stations (Third Revision), specially, para 6.1.2. and para-8, which are extracted below:- "6.1.2 The deceleration lane would take off from the edge of the shoulder taken up to the edge of the Right of Way (ROW) of the highway/road, beyond which, the boundary of fuel station shall start. Its minimum length would be 70m measured along the traveled direction of highway. Its width would be minimum 5.5. m. The shoulder of 2.25 m would be provided towards the outer side of the access/egress (i.e. on the side farthest from the carriageway) for this deceleration lane." xxx xxx xxx "8 ENFORCEMENT OF RIGHT OF WAY AND BUILDING LINES While planning the layout for various facilities inside the fuel stations, it has to be ensured that fuel pumps are located beyond the Building Lines, as prescribed in IRC:73 "Geometric Design Standards for Rural (Non-Urban) Highways" and Fuel Station office building etc. at a safe distance as prescribed by Fire Department or other authorities. The buffer strip would extend minimum 3 m inside the Fuel Station plot, beyond the available ROW. The future widening of the highway/road shall also be kept in view while setting up and preparing the layout plan of the proposed fuel station. The proposed fuel station shall be located beyond the Right of Way as prescribed in IRC: 73 for the respective category of the road on which it is located if there is such a proposal of widening the highway/road. The owner of the fuel station shall acquire additional land, if required, to accommodate access/egress roads for fuel stations, service roads, acceleration/deceleration lanes, etc." 13. The owner of the fuel station shall acquire additional land, if required, to accommodate access/egress roads for fuel stations, service roads, acceleration/deceleration lanes, etc." 13. It is, therefore, apparent from the above discussion that even though Section 20(1) of the Act of 2014 mandates that no agricultural land can be put to non-agricultural use and even conversion of land within 100 meters zone appurtenant to highway is not possible, that stipulation is relaxed by first proviso when it concernes land near a village 'abadi'. 14. It is not disputed that the present land falls within 'abadi', it is also beyond the stipulated 40 meters, therefore, the court finds no illegality in this regard. The document on record would also disclose that HPCL applied the standards stipulated and prescribed by the Indian Road Congress inasmuch as the location of the petrol pump outlet which has been functioning since 2018 is beyond the 40 meters limit prescribed reckoned from middle of highway concern. 15. For the above reasons, this Court is of the opinion that there is no illegality or irregularity in the award of the petrol pump outlet to the contesting respondent by HPCL. The writ petition is accordingly dismissed.