In the High Court of Judicature at Madras
Dated: 13/02/2003
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
Writ Petition No.46942 of 2002
and
WPMP.No.68137/02 & WVMP.No.240/03
A. Thiagarajan
Prop. Sri Venkateswar Agency
Chinthamani Nagar
Athoor Main Road
Ayodhyapattinam
Salem 636 103. .. Petitioner
-Vs-
1. Indo Burmah Petroleum Corporation
Ltd., rep. by its Divisional Manager
Chetput, Chennai 600 031.
2. The District Revenue Officer
Salem. .. Respondents
For petitioner : Mr. R. Thiagarajan,Sr.Counsel
for M/s. M. Muthappan
For respondents: Mr. K. Kumar
Addl.Central Govt., Standing
Counsel for R.1
Mr. R. Chandrasekaran
Government Advocate for R.2
:ORDER
By consent of all the parties, the main writ petition itself
is taken up for final disposal.
2. Aggrieved by the no objection certificate issued by the
District Revenue Officer, Salem – second respondent herein on 14.11.2002, to
IBP Company Ltd., Chennai – first respondent herein, for the installation of
tanks for the storage of petrol and diesel at S.No.257/3A and 257/3B,
Masinaickenpatti Village, Vazhapadi Taluk, the petitioner has filed the above
writ petition to quash the same.
3. According to the petitioner, the National Highway-68
connects Attoor and Salem. The State Highway from Harur joins NH-68 at a
point where the petitioner had installed his BPCL Petrol and Diesel outlet in
Chinthamani Nagar. It was started in the year 1996. Due to various Companies
/ agents in and around, particularly on the NH.68, the petitioner wrote to the
Collector, Salem, District Revenue Officer, Salem, stating that the
installation of first respondent Company at the place where it has started its
work was not in accordance with the guidelines prescribed for erecting the
retail outlet. In other words, the new retail outlet proposed to be
established by the first respondent is within 1 k.m. of intersection on
Highways and also within 1 k.m. of an existing check barriers, which is
contrary to the guidelines. Since there is no positive response with
reference to the representations / complaints, filed the present writ petition
before this Court.
4. While admitting the above writ petition on 31.12.2002,
this Court in WPMP.No.68137 of 2002 granted interim injunction and ordered
notice to the respondents. Pursuant to the said notice, the first respondent
IBP Company Ltd., filed WVMP.No.240 of 2003 for vacation of the said interim
order.
5. In the counter affidavit filed by the first respondent it
is stated that the first respondent has already opened the out let in Survey
No.257/3A and 257/3B of Masinaickenpatti Village, Vazhapadi Taluk. Further,
the allegation of the retail outlet as shown in the rough plan filed in the
typed set of documents is purely self serving in nature. As a matter of fact,
the guidelines would speak about the check barrier and not check post and
therefore the stand taken by the petitioner has to be rejected. The minutes
of National Highways dated March 2002 have not assumed statutory character and
since it has not reached the finality. No Objection Certificate has been
issued under the Petroleum Act and Petroleum Rules in favour of the IBP
Company Ltd., by the Additional District Magistrate – District Revenue
Officer, Salem, after proper investigation and satisfaction, that too after
enquiry and after consideration of all the materials.
6. Mr. R. Thiayagarajan, learned senior counsel for the
petitioner, after drawing my attention to the plan showing the new IBP retail
outlet, forest check post and police check post in the plan would contend that
the existence of IBP retail outlet in the present place comes within the
prohibitory distance of 1 k.m. from the check post. Accordingly, the same is
contrary to the guidelines prescribed by the National Highways. Except the
said contention, no other contention has been raised with regard to grant of
No Objection Certificate to the first respondent.
7. In the light of the said contention, I have verified the
plan annexed in the typed set of papers (vide page 14). It is true that the
plan shows the existence of forest and police check post and according to the
petitioner, the IBP Company’s outlet comes within the prohibitory distance of
1 k.m. First of all, there is no authenticity regarding the plan produced in
the typed set filed by the petitioner. Secondly, as rightly contended by Mr.
K. Kumar, learned Additional Central Government Standing Counsel, the
guidelines speak about the check barrier and not check post. Even otherwise,
it is asserted by the Divisional Manager, IBP Company Limited that the minutes
of National Highways dated March, 2002 have not been reached its finality and
the same cannot be assumed as statutory character. As rightly pointed out, it
is to be noted that the No Objection Certificate has been issued under the
Petroleum Act and Rules in favour of the first respondent by the Additional
District Magistrate – District Revenue Officer at the place in question, after
due enquiry and after consideration of all the materials.
8. Mr. K. Kumar, learned Additional Central Government
Standing Counsel has also relied on the judgment of the learned single Judge
of Karnataka High Court rendered in W.P.No.3618 of 1990 dated 28.06.1990.
While considering the similar objection, the learned Judge arrived a
conclusion that the legality of the permission to set up a trade or business
cannot be examined at the instance of a rival trader in a writ petition.
Further, the learned Judge has held that the Code on which reliance is placed,
is an administrative instruction which does not confer any right on the
petitioner to challenge the permission granted to a rival trader. After
holding so, declined to entertain similar writ petition. The said view of the
learned single Judge has been affirmed by the Division Bench of the same High
Court in W.A.No.18 71 of 1990 dated 14.11.1990. I am in respectful agreement
with the above view.
9. As stated earlier, first of all, it is not clear whether
there is any check barrier or check post and whether the same is permanent,
semi-permanent or a temporary in nature. Further, inasmuch as the minutes of
the National Highways, namely the guidelines have not reached its finality.
In such a circumstance, the guidelines cannot be equated like a statutory
rules.
In the light of what is stated above, there is no merit in the
claim made by the petitioner; consequently, the writ petition fails and the
same is dismissed. No costs.
In view of the dismissal of the main writ petition, connected
WPMP and WVMP., are dismissed.
Index:Yes
Internet:Yes
kh
13.02.2003
To
1. Indo Burmah Petroleum Corporation
Ltd., rep. by its Divisional Manager
Chetput, Chennai 600 031.
2. The District Revenue Officer
Salem.