Reserved on 03/7/2010.
Delivered on 20/7/2010
Civil Misc. Writ Petition No.12283 of 2010.
Lila Dhar Gera ...........Petitioner
Versus
The Union of India & Ors ...........Respondents.
:::::::::::
Hon'ble Ashok Bhushan, J.
Hon’ble Virendra Singh, J.
(Delivered by Hon’ble Ashok Bhushan,J)
Heard Shri Arvind Srivastava, learned counsel for the petitioner
and Shri Vikas Budhwar for respondent nos. 2 and 3.
By this petition, petitioner has prayed for certiorari quashing the
order dated 15/2/2010, passed by the Chief Regional Manager, Meerut
Retail Region, Hindustan Petroleum Corporation Ltd. by which order the
representation submitted by the petitioner objecting to the location of retail
outlet proposed to be setup by the Corporation has been rejected.
Brief facts necessary for deciding the writ petition are: On
23/6/2009, an advertisement was issued by the Hindustan Petroleum
Corporation Ltd. (hereinafter referred to as “Corporation”) advertising
several locations for selection of retail outlets. At Serial No. 228 one of
the proposed site was “On Tehsil Road, Aonla (between inter section
with Station Road and Sargam Talkies Chauraha)” District Bareilly. The
applications submitted in response to the above advertisements were
considered and the Corporation fixed dates for holding interview of the
candidates. Objecting to the aforesaid location, petitioner filed Writ
Petition No.60485/2009, which writ petition was disposed of by this
Court by order dated 19/11/2009, permitting the petitioner to make a
detailed representation before the respondent no.3 which was to be
decided by a reasoned order within a period of two months. Petitioner in
pursuance of the order of this Court dated 19/11/2009, submitted a
representation, copy of which is filed as Annexure-8 to the writ petition
which representation has been rejected by the order dated 15/2/2010.
This writ petition has been filed praying for quashing the aforesaid order.
Learned counsel for the petitioner challenging the order
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impugned contended that the proposed location is contrary to the
guidelines issued by the Government of India, Ministry of Road,
Transport and Highways dated 25/9/2003, which provides that the
minimum distance between two fuel stations should be at least 300 mts
from the middle of the inter section. It is contended that the P.W.D. by
letter dated 09/12/2003, has directed the Superintending Engineers to
ensure the compliance of the letter of the Government of India dated
25/9/2003. He submits that by virtue of the letter dated 09/12/2003, the
guidelines which have been issued on 25/9/2003, are also applicable on
the fuel pumps sought to be opened at State Highway, Main District
Roads and other District Roads. Reliance has also been placed on the
letter dated 15/11/2003 issued by the Chief Engineer, P.W.D., Lucknow
addressed to all the Regional Chief Engineers. It has further been
submitted that according to the policy of the Petroleum Ministry New
Retail outlets cannot be advertised by any Oil Company until and unless
per outlet average monthly sale does not exceed 80 Kilo Litres on the
basis of the last financial year of all the retail outlets existing within the
area. It is submitted that five retail outlets are already there in the area
hence, another outlet cannot be opened average sale of the existing
outlets not being more than 80 Kilo Litres.
Shri Vikas Budhwar, learned counsel for the respondents refuting
the submission of the learned counsel for the petitioner contends that
the distance criteria as relied on by the petitioner on the basis of the
Circular dated 25/9/2003, of the Government of India, Ministry of Road
Transport and Highways is applicable only with regard to the fuel
stations along with National Highways. He submits that the said criteria
is not applicable to the State Highways or other District Roads. With
regard to the second submission of the petitioner, it is contended that
the guidelines which were earlier issued with regard to the volume of
sales are no longer in existence they having been superseded by
subsequent guidelines issued by the Government of India dated
09/10/2000.
Learned counsel for the respondents submits that the Division
Bench of this Court has already considered similar submissions in the
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case of M/s Vikash Traders Vs. Union of India & Ors, in Writ Petition
No.36700/2005, decided on 06/5/2005. Another Division Bench
judgment of this Court in Writ Petition No.8852/2004, Gopal Auto Centre
Vs. Union of India & Ors. decided on 15/9/2004 has also been relied on.
We have considered the submissions of the learned counsel for
the parties and have perused the record.
The first submission of the learned counsel for the petitioner is
based on the guidelines which have been issued by the Government of
India, Ministry of Road Transport and Highways dated 25/9/2003. The
subject of the aforesaid guidelines is as follows:
” Government of India,
Ministry of Road Transport and Highways
(TELEGRAM “ROADIND)” Transport Bhawan
Parliament Street
New Delhi-110001
No.RW/NH-33023/19/99-DO-IIIDated: 25/9/2003
17-10-2004
To
1. Chief Secretaries/Secretaries (PWD/Roads) of
all State Governments/UTs dealing with
National Highways and Centrally
Sponsored Schemes.
2. Chief Engineers of States/UTs dealing with
National Highways and Centrally Sponsored
Schemes.
3. Director General (Border Roads)
Seema Sadak Bhavan,
Ring Road, New Delhi-110010
4. Chairman,
National Highways Authority of India (NHA)Sub: Norms for the Access for Fuel Stations, Service
Stations and Rest Areas along National
Highways.”
A perusal of the aforesaid Circular indicates that the said circular
was addressed to the Chief Secretaries of the State Government
dealing with National Highways and Centrally Sponsored Schemes.
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Paragraph 6.1 of the aforesaid guidelines deals with distance.
Paragraph 6.1 and 6.1.2(a) which is relevant is quoted below:
“6.1 For the sitting of fuel stations along National
Highways, its minimum distance from an intersection would
be:
6.1.2 Urban Stretches
1. Plain and Rolling Terrain
(a) Urban Area with population of more than 20,000 and
less than one lakh:
(i) Intersection with any category of roads of
carriageway width of 3.5m and above.
300m
(ii) Intersection with roads of carriageway width of
less than 3.5m 100m”
The Government of India by the aforesaid guidelines intended to
lay down the distance restriction only with regard to the fuel stations
alongwith National Highways. The said circular was not issued with
regard to the laying down any criteria for State Highways or other
District Roads.
In support of his submission, learned counsel for the petitioner
has relied on two letters issued by the P.W.D., State of U.P., firstly, the
letter dated 15/11/2003, issued by the Chief Engineer, Head Quarters,
P.W.D., Lucknow addressed to all the Regional Chief Engineers and the
second is the letter dated 09/12/2003, issued by the office of Engineer-
in-Chief to Superintending Engineer referring to the Circular dated
25/9/2003, by the Ministry of Surface Transport, Road Transport and
Highways. The letter dated 15/11/2003, relied on by the learned counsel
for the petitioner refers to the letter dated 31/8/2000, Ministry of Surface
Transport Department and Road Transport. The subject matter of the
aforesaid letter indicates that the said circular was issued with regard to
setting up of retail outlet along with National Highways and the said
letter was addressed to the Chief Secretaries of all the State
Government dealing with National Highways and Centrally Sponsored
Scheme. Relevant extract of the aforesaid Government Order including
the subject is quoted below:
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“Government of India
Ministry of Surface Transport
Department of Road Transport and Highways
(Roads Wing)
Telegram:”ROADIND” Transport Bhavan
FAX NO:3710236 1,Sansad Marg,
No.RW/NH 33023/19/99-DO.III New Delhi.
31st Aug.2000
To
1. Chief Secretaries/Secretaries (PWD/Roads) of
all State Governments/UTs dealing with
National Highways & Centrally Sponsored
Schemes.
2. Chief Engineers of States/UTs dealing with
National Highways and other Centrally
Sponsored Schemes.
3. Director General (Border Roads)
Seema Sadak Bhavan,
Ring Road, New Delhi-110010
4. Chairman,National Highways Authority of India
Maharani Bagh, New Delhi.
SUBJECT: SYSTEMS IMPROVEMENT FOR
INSTALLATION OF PETROL/DIESEL/GAS-RETAIL
OUTLETS AND SERVICE STATIONS AS WELL AS
ACCESS TO PRIVATE PROPERTIES ALONG
NATIONAL HIGHWAYS.”
The letter dated 15/11/2003 refers to some direction issued by
the Engineer in Chief on the basis of which Regional Chief Engineers
have been authorised to give permission for setting up petrol pumps on
State Highways other District Roads, and Main District Roads. The
orders issued by the Engineer in Chief has neither been brought on
record nor details of the said order has been mentioned. Similar is the
letter dated 09/12/2003, issuing directions to the Superintending
Engineer. Both the letters dated 15/11/2003, and 09/12/2003, are the
letters circulating the guidelines issued by the Government of India. The
above letters have been issued by the Engineer-in-Chief, PWD, and at
best it can be read as a direction to comply with the directions issued by
the Government of India, Ministry of Surface Transport. The circulars of
the Government of India, dated 31/8/2000 and 25/9/2003 do not relate
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to the State Highways, Main District Road and other District Roads and
the criteria regarding the distance cannot be applied with on the State
Roads by any direction issued by the Engineer in Chief.
A Division Bench of this Court in M/s Vikas Traders (supra) had
occasion to consider similar submission with regard to the distance and
the the submission that the Circular dated 31/8/2000, shall apply to
District Road was rejected. Following was laid down in the said case by
the Division Bench.
“The contention of the learned counsel for the
petitioner that the circular dated 31st August, 2000 is
not limited to National Highways alone cannot be
accepted. A bare perusal of the aforesaid circular
clearly indicates that it is in respect of installation of
petrol/diesel/gas retail outlets and service stations
along National Highways. Thus the said circular
cannot be made applicable in respect of retail outlets
not situated on the National Highways. Learned
counsel for the petitioner then placed the
communication dated 3rd March, 2005 issued by the
office of the Chief Engineer, P.W.D. Goakhpur for
impressing upon us that the circular dated 31 st
August, 2000 is applicable on all retail outlets
irrespective of the fact whether they are situated at
National Highways or not. We have read the letter
dated 3rd March, 2005 but do not find anything which
may support the contention of the learned counsel for
the petitioner. Thus we are unable to find any infirmity
in the order of the District Magistrate holding that
reliance placed by the petitioner on the aforesaid
circular dated 31st August, 2000 is misplaced.”
In M/s Vikas Traders (supra) the order was passed by the District
Magistrate rejecting the objection of the petitioner regarding grant of “No
Objection Certificate” in favour of the Reliance Industries, which was
challenged on the ground that in accordance with the Government
Order dated 31/8/2000, no objection could not have been granted since
the minimum distance between the two retail outlets was less than 300
metres. The District Magistrate had rejected the objection of M/s Vikas
Traders holding that the Circular dated 31/8/2000, is not applicable
since the retail outlet was not situated on National Highway.
From the aforesaid, it is clear that the Circular which is being
relied by the Government of India, Ministry of Road Transport and
Highways dated 25/9/2003, is not applicable on the outlets which are
not situated on the National Highways.
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Coming to the second submission of the petitioner, with regard to
volume of sale of the existing outlets, submission of the respondents is
that the circular which has been relied on by the learned counsel for the
petitioner regarding the volume of sale is no longer in existence since
the Government of India has issued fresh guidelines by an order dated
09/10/2000, (Annexure CA-2) which does not contain any restriction
with regard to the volume of sale of the existing outlet. A perusal of the
guidelines dated 09/10/2000, filed as Annexure CA-2, does not indicate
that there are any such restriction on setting up of outlet of oil company
as contended by the learned counsel for the petitioner.
A Division Bench of this Court in Gopal Auto Centre (supra) had
considered the earlier guidelines dated 04/8/1980, issued by the
Ministry of Petroleum providing that no retail outlet of Motor Spirit and
High Speed Diesel should be opened within the radius of 5 KM of an
existing outlet unless average combine sale of the area as a whole
exceeds 80 Kilo Litres Per Month. The Division Bench of this Court
referring to the Guidelines dated 09/10/2000, issued by the Government
of India held that the Guidelines dated 09/10/ 2000, provides for
complete procedure for selection of Retail Outlets dealers/LPG
distributors/SKO-LDO dealers. Similar submission of the petitioner’s
counsel was rejected. It is useful to quote following observations of the
Division Bench.
“Sri Arvind Srivastava, learned counsel for the
petitioners submitted that the guidelines dated 4.8.1980
framed by the Ministry of Petroleum provides that no retail
outlet of Motor Spirit and High Speed Diesel should be
opened within a radius of 5 Kms. of an existing outset
unless average combines thruput of the area as a whole
exceeds 80 Kls. Per month, and thus, no retail outlet can
be allotted by the Hindustan Petroleum Corporation Limited
within a radius of 5 kms. of the petitioners’ outlet and the
impugned allotment being in violation of the guidelines
deserves to be quashed.
On the other hand, learned counsel for the
respondent pointed out that the aforesaid guidelines were
issued by the Dealers Selection Board which has been
dissolved by the Ministry of Petroleum and Natural Gas
vide letter dated 9.10.2000 and fresh guidelines have been
framed and issued by the Government of India, Ministry of
Petroleum & natural Gas for the selection of the retail outlet
dealers, copy whereof is enclosed as Annexure Ca 1 to the
counter affidavit. It is also submitted that in the new
guidelines, which is in vogue, there is no bar in granting
dealership within a radius of 5 kms. of an existing outlet.
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We have considered the submissions made on both
sides. It is apparent from the fresh guidelines issued by the
Ministry of Petroleum and Natural Gas that all earlier
guidelines for the selection and appointment of dealers and
distributors stands superseded and replaced by the
guidelines dated 9.10.2000. It prescribes complete
procedure for selection and appointment of
dealers/distributors. In the new guidelines, there is no
embargo in granting dealership of retail outlet within a
radius of 5 kms. of existing outlet.”
In view of the above both the submissions of the petitioner, has
no legs to stand. In the counter affidavit it has further been stated that
the petitioner’s outlet was suspended by the Corporation in the year
2007, against which Writ Petition No.10095/2008, thereafter Civil Suit
No.254/2009 was instituted by the petitioner in which initially an
injunction order was issued on 31/3/2009, which was challenged by the
Corporation in Misc. Appeal No. 13/2009. The appeal was allowed on
20/11/2009, against which Writ Petition No. 1265/2009, was filed by the
petitioner in which this Court on 05/1/2010, directed the trial court to
decide the injunction application and till the disposal of the injunction
application Corporation was directed to ensure the regular and
uninterrupted supply of ‘Motor Speed’ and ‘High Speed Diesel’ to the
petitioner. It has been stated in paragraph 8 of the counter affidavit that
injunction application of the petitioner was rejected on 01/2/2010, by the
trial court. In view of the aforesaid background, it has been stated in the
counter affidavit that the petitioner had no locus standi to challenge the
setting up of the retail outlet by the Company on the aforesaid objection.
We have perused the order passed by the Corporation rejecting
the representation of the petitioner. The objections raised by the
petitioner has been suitably dealt with and answered in the impugned
order.
As observed above, both the submissions raised by the petitioner
regarding the location of the retail outlet having no substance, petitioner
is not entitled for any relief in this writ petition.
The writ petition is dismissed.
20/7/2010
SB