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2021 DIGILAW 526 (GUJ)

KHUSHBU NILESH NIKAM v. STATE OF GUJARAT

2021-07-02

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:- (A) Your Lordships may be pleased to admit and allow the present petition. (B) Your Lordships may be pleased to pass appropriate, order relief direction by quashing setting aside the impugned no objection certificate (N.O.C.) issued by the Additional Collector, Valsad respondent no.3 herein as the said NOC issued without considering the objection filed by the petitioner’s Manager dtd.12.2.2020. (C) Pending admission, hearing and final disposal of the petition Your Lordships may be pleased to stay the pending impugned NOC and other permissions issued by the competent authorities in the year 2020 and further be pleased to restrain respondent no.6 from constructing the petrol pump on a road which is not falling under rural category but falling under the GIDC. (D) Your Lordships may be pleased to grant such other and further relief’s as may be deemed fit, just and proper in the interest of justice. 2. The case of the petitioner is that pursuant to the advertisement issued by Hindustan Petroleum Corporation Limited (hereinafter referred to as ‘HPCL”) inviting applications for dealership of Retail Outlet of petrol and diesel, the petitioner applied for the same and having been found suitable, the petitioner’s dealership was sanctioned by the HPCL and the petrol pump is running in the name of ‘Dutt Petroleum’, situated on Survey No.272/1, Sarigam GIDC. Bypass Road, Sarigam, Taluka Umargam, District Valsad and at present also, the said petrol pump of the petitioner is functioning. 3. Subsequently, respondent No.4, i.e. Bharat Petroleum Corporation Ltd. (hereinafter referred to as “BPCL”) gave an advertisement inviting applications for dealership of Retail outlet of petrol and diesel, vide its advertisement dated 25.11.2018, wherein three application were submitted, out of which, the respondent No.4 selected one Parth Oza, who is respondent No.6 herein. It is the case of the petitioner that in the advertisement dated 25.11.2018, at serial No.121, it was elucidated that application for dealership of retail outlet was invited for rural area only and according to the petitioner, i.e. from village Sarigam, but the petitioner came to know that the respondent No.6 is establishing his petrol pump on State highway, which is passing through the village of the petitioner, hence Manager of the petitioner Mr. Ajay Singh submitted an objection against issuance of NOC in favour of the respondent No.6 and the same was also forwarded to the Additional Collector, Valsad on 12.2.2020. It is also submitted by the petitioner that for the purpose of completing legal formalities, the petitioner had deposited an amount of Rs.2,04,855/-with respect to the Revenue Survey No.272/1, paid before GIDC, Gandhinagar for the purpose of development expenditure. The Roads and Buildings Department, vide its communication dated 21.1.2016 had clarified the status of the road and therefore, there was no deviation permissible. The petitioner made an application to the Deputy Executive Engineer, R & B Department about the status of GIDC bypass four lane road and in turn, a letter was written to the Executive Engineer, GIDC by the Deputy Executive Engineer on 28.2.2020 asking the status of Sarigam GIDC bypass road. It is informed that GIDC had acquired the land for Sarigam Industrial Residence purpose, in which, 30 meter road is constructed, however at present, the said road was entrusted to R & B Department. 4. It is the case of the petitioner that on account of the fact that the respondent No.4 is out to allot dealership to the respondent No.6 on the highway, the business of the petitioner is going to be badly affected and therefore, again, the Manager of the petitioner submitted an objection on 12.2.2020 and informed that the construction of petrol pump is on a road which is not coming in the Rural Category and therefore, there is a violation of the condition, so not only the business of the petitioner would be affected badly but there would be an entrustment of dealership to the respondent No.6 in violation of the guidelines and in violation of the particulars of the advertisement and therefore, left with no alternative, the petitioner being dealer of the petrol pump in the nearby vicinity of 400 to 500 meters, has approached this Court by way of present petition for seeking the aforesaid reliefs, inter alia to set aside the NOC issued by the Additional Collector, Valsad since the same is issued by ignoring the objections raised by the Manager of the petitioner and as such, by raising multiple contentions in brief, a request is made to grant the reliefs as prayed for in the petition. 5. 5. This matter after adjourning for quite some time has come up for consideration before this Court and since affidavit-in-reply and affidavit-in-rejoinder have already been submitted, a request was made by learned advocates appearing for the respective parties to hear and dispose of the petition since the pleadings are completed and with the aforesaid background of facts, upon request of learned advocates for parties, the matter is taken up for hearing. 6. Learned advocate Dr. Balram D. Jain appearing on behalf of the petitioner has submitted that granting of dealership to the respondent No.6 is not only unjust and improper but contrary to the guidelines themselves. Though the allotment was to take place for rural area, construction of petrol pump over the land in question is not forming part of the rural area and therefore, dealership of respondent No.6 is not under ‘Rural’ category. Dr. Jain has further submitted that the Manager of the petitioner had specifically raised objection, the Collector did not consider the same and therefore, the NOC which has been granted, is quite contrary to the Rules of natural justice. It is submitted that the area, precisely the road, was developed on account of the contribution given by the petitioner along with the others to GIDC and therefore, the road which has been developed on account of their contribution cannot be given for beneficial use of either respondent No.4 or respondent No.6 in turn, because ultimately, the development charge was taken by GIDC and therefore, same could not have been allowed at the said place. 6.1. Learned advocate Dr. Jain has submitted that on account of set up of petrol pump near the vicinity of the present petitioner’s petrol pump, same is creating unhealthy competition and on account of that, the business of the petitioner has been vitally affected and therefore, the Collector before granting NOC ought to have considered the objection raised by the Manager of the petitioner. It is submitted that a specific averment is made in para 2.11 of the petition that the concerned Gram Panchayat has not issued any permission for such petrol pump and therefore, the construction of petrol pump of respondent No.6 is without any permission and hence, though GIDC at one point of time had objected, according to the petitioner, still however, the respondent No.4 completed the dealership process and allotted the same to the respondent No.6. Hence, in this set of circumstance, the relief prayed for deserves to be granted. Apart from that, Dr. Jain has further submitted 30 meter road construction was on account of the contribution of the petitioner and like persons and therefore, since the status of the road is not succinctly clarified, there is hardly any error committed in allowing the respondent No.6 to carry out the petrol pump. At least, NOC from GIDC ought to have been taken since road is developed by them upon contribution of the petitioner. In any case, since the petrol pump was to be set up in ‘Rural’ category and the road in question upon which the petrol pump is set up by the respondent No.6 is not falling in the ‘Rural’ category, the relief prayed for deserves to be granted. Dr. Jain has further submitted that since the respondents are very much parties to the proceedings, the Government authorities to clarify the status of the road by filing an affidavit-in-reply and only thereafter, it can be competently said that there is a violation of Rural category norms. However, be that as it may, on the basis of the aforesaid circumstance, a request is made to set aside the NOC and grant the relief as prayed for in the petition. No other submissions have been made. 7. As Against the aforesaid submissions, learned advocate Ms. Minoo Shah appearing on behalf of respondent No.4 Authority has vehemently opposed the petition by contending that this is nothing but a clear example of business rivalry and somehow, the petitioner having a dealership of different company is out to see that the present respondent No.6’s dealership may not properly work and therefore, extraordinary jurisdiction may not be allowed to be utilized by the petitioner to satisfy the business rivalry. It has been contended specifically that after completing all necessary formalities, the dealership is allotted to the respondent No.6 and the petrol pump is functioning right from 2020 and is at present functioning and the petitioner is somehow dragged on in the petition under one pretext or the others with a view see that the respondent No.6 may not run the petrol pump smoothly and therefore, the petitioner may not be allowed to utilize the present proceedings for satisfying the personal ego or any business rivalry. 7.1. According to Ms. 7.1. According to Ms. Minoo Shah, all necessary permissions have been granted, petrol pump is in the Rural area of respondent No.6, it is only one kilometer away from the Highway and it is misleading on the part of the petitioner on oath to contend that the Gram Panchayat has not issued NOC. In fact, there is a specific permission granted by the Panchayat and therefore, serious attempt is made by the petitioner to mislead the Court. Even the certificate has also been issued under Rule 144 about the explosive license. On the contrary, the land does not belong to GIDC since GIDC has entrusted this portion to the State authority, i.e. R & B Department and therefore, simply because, the petitioner in past contributed something to GIDC, for any development, the same has been between the petitioner and the GIDC, for which the respondent No.4 nor respondent No.6 is concerned since even the Collector after due verification has granted permission. This is nothing but absolutely a local business competition, which can be seen from the averments made in the petition, reflecting in para 2.10, and that being the position, extraordinary jurisdiction may not be exercised in favour of the petitioner. It is further submitted that though right from February 2020, commission work of setting up of petrol pump is concluded, still at a convenient point of time, the petitioner has chosen to approach this Court much after the delayed period of approximately more than six months, though was very much aware about preparation of setting up of petrol pump which is in front of the petitioner herself and the petitioner has personally not raised any objection and attempt is made to create hurdle through her Manager. However, be that as it may, after getting all necessary permissions and after completing all necessary procedure, BPCL has also invested huge amount, the petitioner has no locus standi to come in the way of the respondent No.4 or respondent No.6 in any way as no fundamental right of any nature is infringed on account of setting up of petrol pump by the respondent No.6 of the company of respondent No.4. Hence, in absence of any legal right being infringed in any form, the petition deserves to be dismissed with exemplary cost since on oath, an attempt is made to mislead the Hon’ble Court. No merit deserves consideration even if remotely in existence. Hence, in absence of any legal right being infringed in any form, the petition deserves to be dismissed with exemplary cost since on oath, an attempt is made to mislead the Hon’ble Court. No merit deserves consideration even if remotely in existence. According to Ms. Shah, the petition is thoroughly misconceived, aimed at satisfying the business competition and rivalry and just with a view to abuse the process of law, the petition is brought by the petitioner and hence, such a merit-less petition may not be entertained. 8. Learned advocate Mr. Adil Mirza appearing on behalf of respondent No.6 has adopted almost all the submissions of learned advocate Ms. Minoo Shah appearing on behalf of respondent No.4, but has specifically contended that the petrol pump is already commissioned and it is only with a view to satisfying the business rivalry, this sort of litigation is precipitated. It is clearly submitted that from the documents, it is quite clear that GIDC has entrusted the road and surroundings to the R & B Department and all circumstances have been clearly verified by the Collector, who issued specific NOC upon completion of all formalities and in addition thereto, it is submitted that simply because some amount is paid by way of development charge to GIDC in past, it is between the petitioner and GIDC and the Court may not be utilized as a platform to ventilate such grievance. Ex-facie, there is no locus of the petitioner since a writ is sought before the Court in extraordinary jurisdiction. It is obligatory on the part of the petitioner to indicate as to why and in what manner, the fundamental rights are violated or any legal right is infringed. No such circumstance is visible and therefore, the petitioner cannot maintain this petition in absence of any legal right being infringed. The petitioner was neither a bidder nor the applicant nor remotely concerned with the respondent No.4 or respondent No.6 and had never applied pursuant to the advertisement floated by the respondent No.4 since the petitioner is having her petrol pump of altogether a different company, i.e. HPCL, and somehow wants to see that the petrol pump of another company may not run in the area. Hence, such a petition deserves to be dismissed with costs. 9. Learned Assistant Government Pleader Mr. Hence, such a petition deserves to be dismissed with costs. 9. Learned Assistant Government Pleader Mr. Bhargav Pandya appearing for the State authorities, on instruction and on the basis of the material has specifically contended that whatever canvassed by learned advocate for respondent No.6 is appearing to be correct since the Gram Panchayat has issued permission, GIDC has also not objected and the road has been entrusted to R & B Department and all these issues have been considered by the authority who issued NOC, which is questioned in the petition, and therefore, there is no merit in the stand taken by the petitioner and as such, requested to dismiss the petition. 10. As a part of rejoinder, learned advocate Dr. Jain for the petitioner has submitted that the Collector while granting NOC has not granted any opportunity to the petitioner since the Manager had already submitted written objection and in a hot hurried manner, NOC was granted. Hence, the order of granting NOC suffers from vice of non-application of mind and in any case, Dr. Jain has reiterated that this dealership which has been set up is not in ‘Rural’ category and as such, the relief prayed for in the petition be granted. 11. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears that undisputedly, the petitioner is having a dealership of petrol pump in the nearby vicinity of HPCL, a different company than respondent No.4. It is also quite clear that the petitioner had never applied nor was a bidder to the advertisement issued by the respondent No.4 for issuance of the dealership and therefore, in respect of this, in the process of allotment of dealership to respondent No.6, the petitioner was not a party remotely and therefore, locus of the petitioner is in serious controversy. Prima facie, it appears that no legal right or any fundamental right is infringed in any manner of the petitioner, simply because in the adjacent area, there is a petrol pump set up by respondent No.6. 12. Prima facie, it appears that no legal right or any fundamental right is infringed in any manner of the petitioner, simply because in the adjacent area, there is a petrol pump set up by respondent No.6. 12. In addition thereto, it is also quite visible that the petitioner has not come out with a case that the Gram Panchayat has not issued any permission and the road in question is not in the ‘Rural’ category and had contributed some amount to GIDC in past towards development charge, but then this averment, if to be viewed from the documents in question, it is quite clear that GIDC had already handed over the land to the R & B Department, which is quite visible from the communication dated 5.3.2020, reflecting on page 24, and therefore, if there is any grievance with regard to contribution of development charge, accepted by GIDC, it is for the petitioner to agitate and settle such grievance with GIDC but cannot object to grant dealership to the respondent No.6. 13. Having perused the affidavit-in-reply filed by the respondent No.4, i.e. BPCL, it is quite clear that the advertisement was issued way back in November 2018, the procedure for selection of suitable candidate was undertaken as per the guidelines wherein the respondent No.6 was found to be a selected candidate and the land which has been offered is not on the State highway. It is further clarified in the affidavit-in-reply which is not controverted by the petitioner, identification of location is also clarified by the company, which is reflecting on page 55 and therefore, it is not possible to accept the contention that it is not a rural category. ‘E’ class markets is spelt out in para (B) on page 56 in clause- (v) and in addition thereto, a clarification was also issued by Deputy Executive Engineer, R & B Department on 22.9.2020, that the road in question on which the retail outlet is established is in GIDC and a major district road, meaning thereby, it is neither a State highway nor a National highway. It has further been clarified specifically that it is incorrect on the part of the petitioner to contend that the Gram Panchayat has not granted any permission. It has further been clarified specifically that it is incorrect on the part of the petitioner to contend that the Gram Panchayat has not granted any permission. In fact, this is a clear misleading statement on oath by the petitioner since Sarigam Gram Panchayat in the General Meeting has specifically resolved after due deliberation and granted specific permission which communication dated 3.12.2019 is very much reflecting on page 47 of the petition compilation and it is in consonance with this permission, the retail outlet is set up by respondent No.6 without any violation and when that be so, it is ill-founded in the mouth of the petitioner to contend that the Gram Panchayat had never granted permission. Apart from that, it is quite visible that the major district road from Nagrol to Sarai Chokdi and all these issues have been specifically examined by the Additional District Magistrate, Valsad in its NOC dated 15.2.2020. This NOC in question appears to have been given after due verification by all concerned authorities, which is very much reflecting from the NOC itself on page 40 and as such, it is incorrect on the part of the petitioner to contend that there is any illegality crept in commissioning the retail outlet by respondent No.6. 14. Now, in the context of these particulars which are visibly clear from the record, a perusal of the averments contained in para 2.10 clearly indicates that on account of NOC having been granted, the petrol pump of the petitioner is adversely affected since it is near about 400 to 500 meters and would adversely affect the business and therefore, 2- 3 averments which are made with respect to the road in question as well as with respect to NOC, whether granted by Gram Panchayat, is found to be incorrect, and as such, this Court is not inclined to exercise the equitable jurisdiction in favour of the petitioner in addition to the petitioner having no locus. To settle the score of business rivalry, it is not open for the petitioner to invoke extraordinary jurisdiction of this Court in absence of any indication about personal legal right being infringed or fundamental right of any nature. Hence, the petition appears to be completely devoid of merit. 15. To settle the score of business rivalry, it is not open for the petitioner to invoke extraordinary jurisdiction of this Court in absence of any indication about personal legal right being infringed or fundamental right of any nature. Hence, the petition appears to be completely devoid of merit. 15. Additionally, it appears that the advertisement has been issued way back in November 2018, after completion of every formality in the month of February 2020, retail outlet of respondent No.6 has been concluded and NOC has also been granted way back in February 2020, whereas the petition is presented in the month of August 2020, i.e. almost after a period of six months and the petitioner was just nearby to that of respondent No.6, as per her say, still has chosen to see that let the work should go on, investment to be undertaken and then raised an objection to see that respondent No.4 as well as respondent No.6 may be put to jeopardy since the petitioner is having dealership of a different company. All these issues are not inspiring any confidence in case of the petitioner in any form. Hence, the petition being devoid of merit, deserves to be dismissed. 16. In the aforesaid peculiar background of facts, the petition does not deserve to be entertained in any form. That being so, the petition is DISMISSED hereby with no order as to costs. Notice discharged.