{"id":253151,"date":"2010-07-20T00:00:00","date_gmt":"2010-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lila-dhar-gera-vs-union-of-india-thru-secr-dept-of-on-20-july-2010"},"modified":"2018-08-18T17:03:52","modified_gmt":"2018-08-18T11:33:52","slug":"lila-dhar-gera-vs-union-of-india-thru-secr-dept-of-on-20-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lila-dhar-gera-vs-union-of-india-thru-secr-dept-of-on-20-july-2010","title":{"rendered":"Lila Dhar Gera vs Union Of India Thru. Secr. Dept. Of … on 20 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Lila Dhar Gera vs Union Of India Thru. Secr. Dept. Of … on 20 July, 2010<\/div>\n
                                                       Reserved on 03\/7\/2010.\n                                                   Delivered on 20\/7\/2010\n\n\n                 Civil Misc. Writ Petition No.12283 of 2010.\n\nLila Dhar Gera                                             ...........Petitioner\n\n                                   Versus\n\nThe Union of India & Ors                           ...........Respondents.\n\n                                   :::::::::::\n\nHon'ble Ashok Bhushan, J.\n<\/pre>\n
Hon’ble Virendra Singh, J.\n<\/p>\n
       (Delivered by Hon’ble Ashok Bhushan,J)
\n       Heard Shri Arvind Srivastava, learned counsel for the petitioner
\nand Shri Vikas Budhwar for respondent nos. 2 and 3.\n<\/p>\n
       By this petition, petitioner has prayed for certiorari quashing the
\norder dated 15\/2\/2010, passed by the Chief Regional Manager, Meerut
\nRetail Region, Hindustan Petroleum Corporation Ltd. by which order the
\nrepresentation submitted by the petitioner objecting to the location of retail
\noutlet proposed to be setup by the Corporation has been rejected.\n<\/p>\n
       Brief facts necessary for deciding the writ petition are: On
\n23\/6\/2009, an advertisement was issued by the Hindustan Petroleum
\nCorporation Ltd. (hereinafter referred to as “Corporation”) advertising
\nseveral locations for selection of retail outlets. At Serial No. 228 one of
\nthe proposed site was “On Tehsil Road, Aonla (between inter section
\nwith Station Road and Sargam Talkies Chauraha)” District Bareilly. The
\napplications submitted in response to the above advertisements were
\nconsidered and the Corporation fixed dates for holding interview of the
\ncandidates. Objecting to the aforesaid location, petitioner filed Writ
\nPetition No.60485\/2009, which writ petition was disposed of by this
\nCourt by order dated 19\/11\/2009, permitting the petitioner to make a
\ndetailed representation before the respondent no.3 which was to be
\ndecided by a reasoned order within a period of two months. Petitioner in
\npursuance of the order of this Court dated 19\/11\/2009, submitted a
\nrepresentation, copy of which is filed as Annexure-8 to the writ petition
\nwhich representation has been rejected by the order dated 15\/2\/2010.
\n  This writ petition has been filed praying for quashing the aforesaid order.\n<\/p>\n
       Learned counsel for the petitioner challenging the order
\n                                       2<\/span><\/p>\n
impugned contended that the proposed location is contrary to the
\nguidelines issued by the Government of India, Ministry of Road,
\nTransport and Highways dated 25\/9\/2003, which provides that the
\nminimum distance between two fuel stations should be at least 300 mts
\nfrom the middle of the inter section. It is contended that the P.W.D. by
\nletter dated 09\/12\/2003, has directed the Superintending Engineers to
\nensure the compliance of the letter of the Government of India dated
\n25\/9\/2003. He submits that by virtue of the letter dated 09\/12\/2003, the
\nguidelines which have been issued on 25\/9\/2003, are also applicable on
\nthe fuel pumps sought to be opened at State Highway, Main District
\nRoads and other District Roads. Reliance has also been placed on the
\nletter dated 15\/11\/2003 issued by the Chief Engineer, P.W.D., Lucknow
\naddressed to all the Regional Chief Engineers. It has further been
\nsubmitted that according to the policy of the Petroleum Ministry New
\nRetail outlets cannot be advertised by any Oil Company until and unless
\nper outlet average monthly sale does not exceed 80 Kilo Litres on the
\nbasis of the last financial year of all the retail outlets existing within the
\narea. It is submitted that five retail outlets are already there in the area
\nhence, another outlet cannot be opened average sale of the existing
\noutlets not being more than 80 Kilo Litres.\n<\/p>\n
       Shri Vikas Budhwar, learned counsel for the respondents refuting
\nthe submission of the learned counsel for the petitioner contends that
\nthe distance criteria as relied on by the petitioner on the basis of the
\nCircular dated 25\/9\/2003, of the Government of India, Ministry of Road
\nTransport and Highways is applicable only with regard to the fuel
\nstations along with National Highways. He submits that the said criteria
\nis not applicable to the State Highways or other District Roads. With
\nregard to the second submission of the petitioner, it is contended that
\nthe guidelines which were earlier issued with regard to the volume of
\nsales are no longer in existence they having been superseded by
\nsubsequent guidelines issued by the Government of India dated
\n09\/10\/2000.\n<\/p>\n
       Learned counsel for the respondents submits that the Division
\nBench of this Court has already considered similar submissions in the
\n                                      3<\/span><\/p>\n
case of M\/s Vikash Traders Vs. Union of India & Ors, in Writ Petition
\nNo.36700\/2005, decided on 06\/5\/2005. Another Division Bench
\njudgment of this Court in Writ Petition No.8852\/2004, Gopal Auto Centre
\nVs. Union of India & Ors. decided on 15\/9\/2004 has also been relied on.\n<\/p>\n
      We have considered the submissions of the learned counsel for
\nthe parties and have perused the record.\n<\/p>\n
      The first submission of the learned counsel for the petitioner is
\nbased on the guidelines which have been issued by the Government of
\nIndia, Ministry of Road Transport and Highways dated 25\/9\/2003. The
\nsubject of the aforesaid guidelines is as follows:\n<\/p>\n
                         ” Government of India,
\n                    Ministry of Road Transport and Highways
\n      (TELEGRAM “ROADIND)”        Transport Bhawan
\n                                Parliament Street
\n                                New Delhi-110001
\n      No.RW\/NH-33023\/19\/99-DO-III<\/p>\n
                                             Dated: 25\/9\/2003
\n                                                     17-10-2004
\n      To\n<\/p><\/blockquote>\n
      1.     Chief Secretaries\/Secretaries (PWD\/Roads) of
\n             all   State Governments\/UTs dealing with
\n             National    Highways      and    Centrally
\n             Sponsored Schemes.\n<\/p><\/blockquote>\n
      2.     Chief Engineers of States\/UTs dealing with
\n             National Highways and Centrally Sponsored
\n             Schemes.\n<\/p><\/blockquote>\n
      3.     Director General (Border Roads)
\n              Seema Sadak Bhavan,
\n             Ring Road, New Delhi-110010\n<\/p><\/blockquote>\n
      4.     Chairman,
\n             National Highways Authority of India (NHA)<\/p>\n
      Sub: Norms for the Access for Fuel Stations, Service
\n           Stations and Rest Areas along National
\n           Highways.”<\/p><\/blockquote>\n
      A perusal of the aforesaid Circular indicates that the said circular
\nwas addressed to the Chief Secretaries of the State Government
\ndealing with National Highways and Centrally Sponsored Schemes.\n<\/p>\n
                                       4<\/span><\/p>\n
Paragraph 6.1 of the aforesaid guidelines deals with distance.\n<\/p>\n
       Paragraph 6.1 and 6.1.2(a) which is relevant is quoted below:
\n       “6.1 For the sitting of fuel stations along National
\n       Highways, its minimum distance from an intersection would
\n       be:\n<\/p>\n
       6.1.2 Urban Stretches<\/p>\n
       1. Plain and Rolling Terrain\n<\/p>\n
       (a) Urban Area with population of more than 20,000 and
\n       less than one lakh:\n<\/p>\n
       (i)    Intersection with any category of roads of
\n       carriageway width of 3.5m and above.\n<\/p>\n
       300m\n<\/p>\n
       (ii)   Intersection with roads of carriageway width of
\n       less than 3.5m                                100m”\n<\/p>\n
       The Government of India by the aforesaid guidelines intended to
\nlay down the distance restriction only with regard to the fuel stations
\nalongwith National Highways. The said circular was not issued with
\nregard to the laying down any criteria for State Highways or other
\nDistrict Roads.\n<\/p>\n
       In support of his submission, learned counsel for the petitioner
\nhas relied on two letters issued by the P.W.D., State of U.P., firstly, the
\nletter dated 15\/11\/2003, issued by the Chief Engineer, Head Quarters,
\nP.W.D., Lucknow addressed to all the Regional Chief Engineers and the
\nsecond is the letter dated 09\/12\/2003, issued by the office of Engineer-
\nin-Chief to Superintending Engineer       referring to the Circular dated
\n25\/9\/2003, by the Ministry of Surface Transport, Road Transport and
\nHighways. The letter dated 15\/11\/2003, relied on by the learned counsel
\nfor the petitioner refers to the letter dated 31\/8\/2000, Ministry of Surface
\nTransport Department and Road Transport. The subject matter of the
\naforesaid letter indicates that the said circular was issued with regard to
\nsetting up of retail outlet along with National Highways and the said
\nletter was addressed to the Chief Secretaries of all the State
\nGovernment dealing with National Highways and Centrally Sponsored
\nScheme. Relevant extract of the aforesaid Government Order including
\nthe subject is quoted below:\n<\/p>\n
                                     5<\/span><\/p>\n
                            “Government of India
\n                        Ministry of Surface Transport
\n                 Department of Road Transport and Highways
\n                               (Roads Wing)
\nTelegram:”ROADIND”                              Transport Bhavan
\nFAX NO:3710236                                     1,Sansad Marg,
\n  No.RW\/NH 33023\/19\/99-DO.III               New Delhi.\n<\/p><\/blockquote>\n
                                                31st Aug.2000
\n      To\n<\/p><\/blockquote>\n
      1.     Chief Secretaries\/Secretaries (PWD\/Roads) of
\n             all   State Governments\/UTs dealing with
\n             National Highways & Centrally Sponsored
\n             Schemes.\n<\/p><\/blockquote>\n
      2.     Chief Engineers of States\/UTs dealing with
\n             National Highways and other Centrally
\n             Sponsored Schemes.\n<\/p><\/blockquote>\n
      3.     Director General (Border Roads)
\n              Seema Sadak Bhavan,
\n             Ring Road, New Delhi-110010\n<\/p><\/blockquote>\n
      4.     Chairman,National Highways Authority of India
\n             Maharani Bagh, New Delhi.\n<\/p><\/blockquote>\n
      SUBJECT:   SYSTEMS   IMPROVEMENT    FOR
\n      INSTALLATION OF PETROL\/DIESEL\/GAS-RETAIL
\n      OUTLETS AND SERVICE STATIONS AS WELL AS
\n      ACCESS TO PRIVATE PROPERTIES ALONG
\n      NATIONAL HIGHWAYS.”<\/p><\/blockquote>\n
      The letter dated 15\/11\/2003 refers to some direction issued by
\nthe Engineer in Chief on the basis of which Regional Chief Engineers
\nhave been authorised to give permission for setting up petrol pumps on
\nState Highways other District Roads, and Main District Roads. The
\norders issued by the Engineer in Chief has neither been brought on
\nrecord nor details of the said order has been mentioned. Similar is the
\nletter dated 09\/12\/2003, issuing directions to the Superintending
\nEngineer. Both the letters dated 15\/11\/2003, and 09\/12\/2003, are the
\nletters circulating the guidelines issued by the Government of India. The
\nabove letters have been issued by the Engineer-in-Chief, PWD, and at
\nbest it can be read as a direction to comply with the directions issued by
\nthe Government of India, Ministry of Surface Transport. The circulars of
\nthe Government of India, dated 31\/8\/2000 and 25\/9\/2003 do not relate
\n                                      6<\/span><\/p>\n
to the State Highways, Main District Road and other District Roads and
\nthe criteria regarding the distance cannot be applied with on the State
\nRoads by any direction issued by the Engineer in Chief.\n<\/p>\n
      A Division Bench of this Court in M\/s Vikas Traders (supra) had
\noccasion to consider similar submission with regard to the distance and
\nthe the submission that the Circular dated 31\/8\/2000, shall apply to
\nDistrict Road was rejected. Following was laid down in the said case by
\nthe Division Bench.\n<\/p>\n
              “The contention of the learned counsel for the
\n      petitioner that the circular dated 31st August, 2000 is
\n      not limited to National Highways alone cannot be
\n      accepted. A bare perusal of the aforesaid circular
\n      clearly indicates that it is in respect of installation of
\n      petrol\/diesel\/gas retail outlets and service stations
\n      along National Highways. Thus the said circular
\n      cannot be made applicable in respect of retail outlets
\n      not situated on the National Highways. Learned
\n      counsel for the petitioner then placed the
\n      communication dated 3rd March, 2005 issued by the
\n      office of the Chief Engineer, P.W.D. Goakhpur for
\n      impressing upon us that the circular dated 31 st
\n      August, 2000 is applicable on all retail outlets
\n      irrespective of the fact whether they are situated at
\n      National Highways or not. We have read the letter
\n      dated 3rd March, 2005 but do not find anything which
\n      may support the contention of the learned counsel for
\n      the petitioner. Thus we are unable to find any infirmity
\n      in the order of the District Magistrate holding that
\n      reliance placed by the petitioner on the aforesaid
\n      circular dated 31st August, 2000 is misplaced.”<\/p><\/blockquote>\n
      In M\/s Vikas Traders (supra) the order was passed by the District
\nMagistrate rejecting the objection of the petitioner regarding grant of “No
\nObjection Certificate” in favour of the Reliance Industries, which was
\nchallenged on the ground that in accordance with the Government
\nOrder dated 31\/8\/2000, no objection could not have been granted since
\nthe minimum distance between the two retail outlets was less than 300
\nmetres. The District Magistrate had rejected the objection of M\/s Vikas
\nTraders holding that the Circular dated 31\/8\/2000, is not applicable
\nsince the retail outlet was not situated on National Highway.\n<\/p>\n
      From the aforesaid, it is clear that the Circular which is being
\nrelied by the Government of India, Ministry of Road Transport and
\nHighways dated 25\/9\/2003, is not applicable on the outlets which are
\nnot situated on the National Highways.\n<\/p>\n
                                       7<\/span><\/p>\n
      Coming to the second submission of the petitioner, with regard to
\nvolume of sale of the existing outlets, submission of the respondents is
\nthat the circular which has been relied on by the learned counsel for the
\npetitioner regarding the volume of sale is no longer in existence since
\nthe Government of India has issued fresh guidelines by an order dated
\n09\/10\/2000, (Annexure CA-2) which does not contain any restriction
\nwith regard to the volume of sale of the existing outlet. A perusal of the
\nguidelines dated 09\/10\/2000, filed as Annexure CA-2, does not indicate
\nthat there are any such restriction on setting up of outlet of oil company
\nas contended by the learned counsel for the petitioner.\n<\/p>\n
      A Division Bench of this Court in Gopal Auto Centre (supra) had
\nconsidered the earlier guidelines dated 04\/8\/1980, issued by the
\nMinistry of Petroleum providing that no retail outlet of Motor Spirit and
\nHigh Speed Diesel should be opened within the radius of 5 KM of an
\nexisting outlet unless average combine sale of the area as a whole
\nexceeds 80 Kilo Litres Per Month. The Division Bench of this Court
\nreferring to the Guidelines dated 09\/10\/2000, issued by the Government
\nof India held that the Guidelines dated 09\/10\/ 2000, provides for
\ncomplete procedure for selection of Retail Outlets dealers\/LPG
\ndistributors\/SKO-LDO dealers. Similar submission of the petitioner’s
\ncounsel was rejected. It is useful to quote following observations of the
\nDivision Bench.\n<\/p>\n
              “Sri Arvind Srivastava, learned counsel for the
\n      petitioners submitted that the guidelines dated 4.8.1980
\n      framed by the Ministry of Petroleum provides that no retail
\n      outlet of Motor Spirit and High Speed Diesel should be
\n      opened within a radius of 5 Kms. of an existing outset
\n      unless average combines thruput of the area as a whole
\n      exceeds 80 Kls. Per month, and thus, no retail outlet can
\n      be allotted by the Hindustan Petroleum Corporation Limited
\n      within a radius of 5 kms. of the petitioners’ outlet and the
\n      impugned allotment being in violation of the guidelines
\n      deserves to be quashed.\n<\/p><\/blockquote>\n
              On the other hand, learned counsel for the
\n      respondent pointed out that the aforesaid guidelines were
\n      issued by the Dealers Selection Board which has been
\n      dissolved by the Ministry of Petroleum and Natural Gas
\n      vide letter dated 9.10.2000 and fresh guidelines have been
\n      framed and issued by the Government of India, Ministry of
\n      Petroleum & natural Gas for the selection of the retail outlet
\n      dealers, copy whereof is enclosed as Annexure Ca 1 to the
\n      counter affidavit. It is also submitted that in the new
\n      guidelines, which is in vogue, there is no bar in granting
\n      dealership within a radius of 5 kms. of an existing outlet.\n<\/p><\/blockquote>\n
                                          8<\/span><\/p>\n
                 We have considered the submissions made on both
\n         sides. It is apparent from the fresh guidelines issued by the
\n         Ministry of Petroleum and Natural Gas that all earlier
\n         guidelines for the selection and appointment of dealers and
\n         distributors stands superseded and replaced by the
\n         guidelines dated 9.10.2000. It prescribes complete
\n         procedure       for   selection     and    appointment      of
\n         dealers\/distributors. In the new guidelines, there is no
\n         embargo in granting dealership of retail outlet within a
\n         radius of 5 kms. of existing outlet.”<\/p><\/blockquote>\n
         In view of the above both the submissions of the petitioner, has
\nno legs to stand. In the counter affidavit it has further been stated that
\nthe petitioner’s outlet was suspended by the Corporation in the year
\n2007, against which Writ Petition No.10095\/2008, thereafter Civil Suit
\nNo.254\/2009 was instituted by the petitioner in which initially an
\ninjunction order was issued on 31\/3\/2009, which was challenged by the
\nCorporation in Misc. Appeal No. 13\/2009. The appeal was allowed on
\n20\/11\/2009, against which Writ Petition No. 1265\/2009, was filed by the
\npetitioner in which this Court on 05\/1\/2010, directed the trial court to
\ndecide the injunction application and till the disposal of the injunction
\napplication Corporation was directed to ensure the regular and
\nuninterrupted supply of ‘Motor Speed’ and ‘High Speed Diesel’ to the
\npetitioner. It has been stated in paragraph 8 of the counter affidavit that
\ninjunction application of the petitioner was rejected on 01\/2\/2010, by the
\ntrial court. In view of the aforesaid background, it has been stated in the
\ncounter affidavit that the petitioner had no locus standi to challenge the
\nsetting up of the retail outlet by the Company on the aforesaid objection.\n<\/p>\n
         We have perused the order passed by the Corporation rejecting
\nthe representation of the petitioner. The objections raised by the
\npetitioner has been suitably dealt with and answered in the impugned
\norder.\n<\/p>\n
         As observed above, both the submissions raised by the petitioner
\nregarding the location of the retail outlet having no substance, petitioner
\nis not entitled for any relief in this writ petition.
\n   The writ petition is dismissed.\n<\/p>\n
20\/7\/2010
\nSB\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Lila Dhar Gera vs Union Of India Thru. Secr. Dept. Of … on 20 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-253151","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nLila Dhar Gera vs Union Of India Thru. Secr. Dept. 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