B Madhavi vs Union Of India
2021 Latest Caselaw 604 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

             WRIT PETITION No.2038 of 2020

ORDER:

The petitioner is carrying on the business of a

Petroleum Retail Outlet in the name and style of

M/S.Shanmugaa Filling Station situated at Sy.No.204/3P,

Eswarapuram, Puttur Town, Chittoor District since 2014.

2. On 25.11.2018, the 2nd respondent had issued an

advertisement seeking applications for allotment of retail outlets

at various places including a dealership which could be located

anywhere between 2 kms radius from Ambedkar Statue, Puttur.

The 9th respondent was selected as the dealer and a letter of

intent dated 21.02.2019 was issued in favour of the 9th

respondent for the site located at Sy.No.204/3, Eshwarapuram

Village, Puttur Mandal, Chittoor.

3. Aggrieved by the said location of the Retail Outlet of

the 9th respondent, the petitioner has approached this Court

with the following contentions:

1) The petitioner had earlier filed writ petition against the 2nd respondent Corporation by way of W.P.No.16267 of 2011. With a view to wreak vengeance against the petitioner for approaching this High Court, the 2nd respondent Corporation had ensured that the retail outlet of the 9th respondent would damage the business of the petitioner.

2) The petitioner had given representation stating that the establishment of a petroleum pump 2 RRR,J W.P.No.2038 of 2020

within 60 meters from the existing petrol pump was not in accordance with the guidelines of the Indian Roads Congress which requires a minimum distance of 300 meters between retail outlet which is not available in the present case. Despite which, the respondents corporation went ahead with the establishment of the retail outlet.

3) The proposed retail outlet is next to an electrical sub-station. This was not taken into account while locating the retail outlet of the 9th respondent.

4) The notification calling for applications for the retail outlet had stated that the retail outlet should be within 2 kms radious from Ambedkar Statue at Puttur Town while the said location was not in accordance with this notification.

4. Sri P.Durga Prasad, learned counsel appearing for

the petitioner submits that the guidelines for access, location

and layout of road side Fuel Stations and Service Stations

issued by the Indian Roads Congress is binding and mandatory.

He relied upon a Judgment of the Hon'ble Supreme Court in the

case of Indian Oil Corporation Limited & others vs. Arti Devi

Dangi & another1. He submits that the said guidelines require

a minimum distance of 300 meters between each retail outlet

and in the present case, the distance of 60 meters within the

3 retail outlets is clearly violative of the said guidelines.

5. Sri P.Durga Prasad would also point to the fact that

there is electrical sub-station which is in close proximity to the

(2016) 15 SCC page 480 3 RRR,J W.P.No.2038 of 2020

proposed retail outlet and this could be a public hazard as the

possibility of conflagration increases by virtue of the proximity

between the proposed retail outlet and the electrical sub-station.

6. It is submitted that in view of the above, the retail

outlet cannot be permitted to operate from the present location.

He further submits that the retail outlet started functioning only

from 07.01.2021 and was not in operation prior to the said date.

He submits that the respondents being fully aware of the

pendency of the writ petition have taken the risk of expending

further money for the establishment of the retail outlet and as

such, they cannot claim any equity for continuation of the retail

outlet at that place.

7. Heard Sri P.Veera Reddy, learned Senior Counsel

appearing for the 9th respondent and Sri Dominic Ferandes,

learned Standing Counsel for respondent corporation.

8. The contention of the respondents' corporation and

the unofficial respondent is that the present writ is not

maintainable, as it is filed by a rival trader, who is seeking to

protect her commercial interest and not on account of any

violation of any of the statutory requirements of law. It is

further submitted that the contention of the learned counsel for

the petitioner that the guidelines prescribed by the Indian Roads

Congress are mandatory is incorrect. They submit that a

perusal of the Judgment of the Hon'ble Supreme Court cited by

the learned counsel for the petitioner would itself show that

there was no such declaration by the Hon'ble Supreme Court. It 4 RRR,J W.P.No.2038 of 2020

is submitted that there is no statutory Rule restricting the

locations of the retail outlet of the 9th respondent at his present

location.

9. Sri P.Veera Reddy would also submits that the

petitioner was fully aware of the fact that the NOC is required

from various statutory authorities had been obtained by the 9th

respondent at various points of time. Despite this knowledge,

the petitioner did not object at any stage. It is only when the

retail outlet was about to start that the petitioner commenced

her campaign of obstruction.

10. Sri P.Veera Reddy would also submit that the

objections taken by the petitioner about the proximity of the

sub-station etc., are incorrect or in any event all these issues

were considered by the appropriate authorities before a no

objection certificate was issued by the authorities including the

explosive licence etc.

11. Sri Dominic Fernandes submits that the officials of

the respondent corporation have no personal animosity to the

petitioner and in any event the filing of a writ petition in the

year 2011 is too remote to contemplate any malafides against

the respondent corporation. He also disputes the contention

that the retail outlet of the 9th respondent is outside the 2 kms

radius prescribed in the notification.

12. Sri P.Durga Prasad, in reply, would submit that writ

petitions filed by the rival traders would also be maintainable,

where the writ petitions revealed that public interest would be 5 RRR,J W.P.No.2038 of 2020

affected. He relied upon the Judgments of Jasbhai Motibhai

Desai vs. Roshan Kumar, Haji Bashir Ahmed and others2,

M.S.Jayaraj vs. Commissioner of Excise, Kearala and others3

and Neeraj Kachhawaha vs. State of Rajastan & others4.

13. The case of the petitioner is essentially that the

location of the retail outlet of the 9th respondent violates the

guidelines of the Indian Roads Congress. The said contention

would have force if the said guidelines are mandatory. For the

purpose of ascertaining whether such guidelines are mandatory,

the Judgment of the Hon'ble Supreme Court would be relevant.

14. In the case of Indian Oil Corporation Limited

(1 cited), the location of the retail outlets proposed by the

allottees were rejected by the Indian Oil Corporation on the

ground that they do not adhere to the guidelines of the Indian

Roads Congress. This decision of the Corporation was

challenged and the said challenge was considered by the learned

Single Judge and subsequently the Division Bench of High

Court. Both the learned Single Judge and the Division Bench

had held that these guidelines are not mandatory and as such,

the retail outlets could be located at the places indicated by the

allottees. Aggrieved by the same, the Corporation had

approached the Hon'ble Supreme Court. Before the Hon'ble

Supreme Court the contention raised by the Corporation, was

that the advertisements stipulated that the proposed plots

AIR 1976 SC 578

AIR 2000 SC 3266

2013 (3) WLN 193; 2013 SCC Online Raj 1746; MANU/RH/0577/2013 6 RRR,J W.P.No.2038 of 2020

should fulfil all the Rules and sub-rules of PWD and local legal

necessities and that the State PWD had stipulated that the IRC

guidelines should be treated as part and parcel of the rules and

sub-rules of PWD. In those circumstances, the Hon'ble

Supreme Court had held that the guidelines set out by the

Indian Roads Congress would be relevant and applicable for

deciding the location of the plots and that the decision of the

Indian Oil Corporation rejecting the locations was correct.

15. A perusal of this Judgment would show that a

finding of the Hon'ble Supreme Court was based on the

adoption of the guidelines by the local PWD which made the

said guidelines applicable for deciding the location of the retail

outlet. The said decision does not give any findings or

declaration that the guidelines of the Indian Roads Congress are

mandatory.

16. Sri Dominic Ferandes would rely upon a Judgment

of the Hon'ble High Court of Orissa reported as Indian Oil

Corporation Limited vs. Collector & District Magistrate,

Jajpur and others5 which considered various Judgments of the

Hon'ble Supreme Court and other Courts including the

Judgment of a Division Bench of a Madhya Pradesh High Court

in Writ Appeal No.568 of 2014 in Shailendra vs. Smt.Saroj

Bhati6, Judgment of a Division Bench of Pubjab and Hariyana

High Court in the case of Environment Society of India,

Chandigarh vs. Administrator, Chandigarh Administration,

2017 SCC Online Orissa 687; MANU/OR/0600/2017

W.A.No.568 of 2014 by the Division Bench of Madhya Pradesh High Court 7 RRR,J W.P.No.2038 of 2020

Union Territory, Chandigarh7, Judgment of the High Court of

Allahabad in Deepak Agarwal vs. State of U.P.8 in Civil

Miscellaneous Writ Petition No.27184 of 2013 wherein in all the

above Judgments it was consistently held that the guidelines of

the Indian Roads Congress are not mandatory.

17. In view of the aforesaid Judgments, it would have to

be held that the guidelines issued by the Indian Roads congress

are not mandatory and binding in 2nd respondent's Corporation.

Further, the advertisement did not set out any condition that

the guidelines set out by the Indian Roads Congress would be

applicable. In these circumstances, the contention of the

learned counsel for the petitioner that the 9th respondent cannot

operate a retail outlet within 300 meters of the retail outlet of

the petitioner, cannot be accepted.

18. The other contentions of the petitioner that the

location of the retail outlet is within close proximity of an

electrical sub-stations would require relocation of the retail

outlet also cannot be accepted as the explosives authority had

issued an NOC for the retail outlet of the 9th respondent. The

opinion of such an expert body cannot be replaced by a view of

this Court. A contrary view cannot be taken by this Court

unless it is palpably clear that the opinion of the expert is

incorrect. No such material has been placed before this Court

to draw such a conclusion.

AIR 1998 Punjab and Haryana 94

2002 (95) FLR 63; 2003 (1) SLR 213; (2011) 6 SCC 725 8 RRR,J W.P.No.2038 of 2020

19. In view of these findings, the question of whether

rival trader can maintain a writ petition, in these circumstances

is not being gone into.

20. Accordingly, this writ petition is dismissed. There

shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

04.02.2021 sdp