K.Mallikarjuna Reddy vs The Union Of India
2021 Latest Caselaw 2015 AP

             HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                      Writ Petition No.14011 of 2020
ORDER:

The petitioner seeks mandamus declaring the action of respondent

Nos.2 and 3 proposing to establish a retail outlet in S.No.236/3B/2A and

238/3A, AIR bypass road, Tirupati town within the radius of 125 meters of

petitioner's retail outlet and further declare the No Objection Certificate

(NOC) issued by the respondent Nos.4 and 5 to the 3rd respondent as illegal,

arbitrary unsustainable and violative of Articles 14 and 19(1)(g) of the

Constitution of India and also contrary to the guidelines for Access,

Location and Layout of Road side Fuel Stations and service Stations 2009

and consequently set aside the No Objection Certificate (NOC) issued by the

5th respondent and direct the respondent Nos.2 and 3 not to set up retail

outlet as proposed in the above premises.

2. The petitioner's case succinctly is thus:

a) The petitioner is a dealer of MS/HSD of 2nd respondent - Bharat

Petroleum Corporation Limited in respect of retail outlet (for short "RO") at

S.No.84/2 and 85/2C, AIR bypass Road, Tirupathi town, Chittoor District

vide letter of appointment No.NLR/TRT/Tirupathi town dated 27.11.2012

issued by the 3rd respondent appointing the petitioner as dealer w.e.f.

27.11.2012. The petitioner established the RO at the place notified by the 3rd

respondent Corporation and carrying on the business. As per letter of

appointment, the petitioner has to achieve and sustain the minimum

committed sales volume of 247 KLs (2,47,000 litres) of combined MS and

HSD per month, within 3 months of commissioning of RO, failing which,

the Corporation shall have absolute right to terminate the dealership.

b) While so, the 3rd respondent applied for NOC on 11.09.2019 to the 4th

respondent to set up a new RO at Door No.19-8-155, Survey No.236/3 and

283/3 at AIR bypass road, Tirupathi town. The 4th respondent in turn called

for reports from respondent Nos. 6 to 8 and without conducting enquiry and

considering objections of residents of the locality, they have recommended

to issue NOC in favour of the 3rd respondent Corporation. Basing on their

reports, the 5th respondent issued NOC in REV-CSEOPAR (NOC)/75/2019,

dated 31.12.2019. The petitioner did not know about the issuance of NOC

till one Sri R. Abishek Reddy of the locality applied for copies under RTA

Act, 2005. Though the 3rd respondent applied for NOC in respect of

premises at S.No.236/3 and 283/3 and report was also called for by the 4th

respondent in respect of those survey numbers, and respondent Nos.6 to 8

have sent reports in respect of same survey numbers, however the 5th

respondent has issued NOC in respect of premises at S.No.236/3B/2A and

238/3A. Thus, without verifying the particulars of the survey number for

which NOC was requested, the same was issued for different survey

numbers.

c) It is furthers submitted that the proposed site for setting up of new RO

is at a distance of just 125 meters from the RO of the petitioner, which is

contrary to the guidelines of Access, Location and Layout of Road side Fuel

Stations and Service Stations. The proposed RO is on the same side within

125 meters. Further the plot site for RO shall be 20 meter (frontage) and 20

meters (depth) in urban stretches but the proposed RO is not meeting the

required dimensions. In between Lakshmipuram circle and Annamayya

circle AIR bypass road, there are two BPCL ROs - one belongs to the

petitioner and one is IOCL outlet. The distance between two circles is less

than one kilometre. If the proposed outlet is set up on the same side of AIR

bypass road within a distance of 125 meters, the sales of the petitioner's

outlet would be adversely affected and thereby the petitioner may not be

able to achieve the minimum sales targets. Thus the proposed action of the

3rd respondent is illegal, arbitrary and violative of Articles 14 and 19(1)(g) of

the Constitution of India.

d) Further, the proposed RO is in the midst of residential area and near to

the schools. Hence no permission should be granted for setting up of RO

near schools.

Hence, the writ petition.

3. Respondent Nos.2 and 3 filed counters opposing the writ petition inter

alia contending as follows:

a) The writ petition is a dealer of the Bharat Petroleum Corporation

Limited (BPCL) and he is rival trader and the present writ petition is not

maintainable as he has no locus standi, for, his legal right is not infringed.

In AIR bypass Road, Tirupathi the respondent Corporation has taken

property admeasuring 717.93 square metres in Survey No.84/2 and 85/C2,

on lease vide Lease Deed document No.1869/2011 for 30 years from

01.11.2010 to 31.10.2040 and the Corporation invested an amount of

Rs.86,06,813/- for setting up of an ultramodern retail outlet and the

petitioner was appointed as dealer vide appointment letter dated 27.11.2012.

Though the minimum volume of sales as mentioned in the letter of

appointment is 247 KLs, the petitioner's RO never achieved the target

within three months but no coercive or adverse steps were taken by the

Corporation.

b) It is further stated that the respondent Corporation intends to establish

a RO at Survey No.236/3 and 283/3, AIR bypass Road, Tirupathi, for which

NOC was applied from the 4th respondent . Survey No.236/3 and 238/3

were sub-divided as 236/3B/2A and 238/3A and hence the NOC was was

issued in respect of survey numbers with latest sub-division. The contention

of the petitioner is that without conducting survey, NOC was issued is

denied.

c) The contention of the petitioner that he is the dealer of RO is not

correct. The petitioner is only a licensee to facilitate the sale of petroleum

products of the Corporation and all the facilities have been provided by the

respondent Corporation after making considerable investment in that regard.

The Indian Road Congress ( for short "IRC") guidelines as quoted by the

petitioner have no statutory force and they are merely recommendatory in

nature. Thus in any way, the petitioner has not suffered legal right to

maintain writ petition.

d) AIR Bypass Road is a commercial area and it is not correct to state

that is a residential area. There is no school within the readius of 50 meteres

of the proposed site. Further, as per the Petroleum Explosives and Safety

Organization Rules, there is no minimum plot dimension for a RO. All

concerned approvals from PESO have already been obtained. Hence, the

writ petition may be dismissed.

4. The petitioner filed reply affidavit against the counter. It is contended

that the 3rd respondent is proposing to start a new RO adjacent to BPCL

outlet of the petitioner by deviating the Rules and Regulations framed by

the Central Government of India and Oil Marketing Company in respect of

selection of dealers of regular and rural outlets dated 24.11.2018. In those

guidelines it is clearly mentioned that there will be transparent online

process for application and draw of lots/bids opening for dealer selection.

Respondent Nos.2 and 3 did not follow any procedure provided in the

guidelines.

a) It is further contended that the petitioner's RO comes under CC

category which means that the 2nd respondent corporation have to construct

the entire outlet and provide all facilities for the sale of petroleum products.

While giving the letter of appointment also the 2nd respondent Corporation

clearly mentioned that the RO comes under the CC category and there will

be license fee.

b) Further contention that the petitioner never achieved sales target of

247 KLs is wrong. The petitioner's RO achieved minimum 247 KLs of MS

and HSD every month except during the Samaikyandhra movement in the

year 2013-14 and also COVID-19 pandemic in 2020 (from March, 2020 to

till date).

c) The contention that the proposed survey numbers were subsequently

sub-divided is not correct. The respondents have violated the guidelines

framed by IRC and now falsely claiming that those guidelines have no

statutory force. The area in which new RO is proposed to be set up is a

residential area as per the inspection report submitted by the 7th respondent.

The proposed fuel station is within 60 meters radius from the crowded

places like Apoorva Textiles and Jewelleries, D-Mart, Brand Factory and

R.R. Educational Institutions. As per the norms set up in different

judgments, the petrol station should be beyond 100 meters from the

educational institutions as well as crowded places. The contention of the 2nd

respondent that the AIR bypass Road is a commercial area is not correct.

Finally, it is contended that in the advertisements given by the Oil

Marketing Company dated 25.11.2018 through its web portal, the 2nd

respondent Corporation has given only advertisement for 47 locations in

entire Chittoor district but did not give any advertisement for the AIR bypass

Road. By this, it is clear that respondent Nos.2 and 3 have deviated all the

rules and regulations framed by the Central Government for identification of

locations for setting up of ROs.

5. Heard Sri P. Gangarami Reddy, learned counsel for the petitioner and

Sri O. Manohar Reddy representing respondent No.2 and 3.

6. It is the contention of learned counsel for the petitioner Sri P.

Gangarami Reddy that within 125 meters from the RO of the petitioner, the

new RO is proposed to be set up by the respondent Nos.2 and 3 on the same

side of the road which is against the guidelines issued by IRC as those

guidelines would show that the minimum distance between two fuel stations

on same side in case a divided carriageway, shall be 1000 meters.

7. Per contra, the contention of Sri O. Manohar Reddy, learned counsel

for the respondent Nos.2 and 3 is that the petitioner has no locus standi to

file writ petition. In expatiation, it is argued, the respondent Corporation has

taken property admeasuring 717.93 square metres in Survey No.84/2 and

85/C2, AIR bypass Road, Tirupathi, Chittoor District on lease vide Lease

Deed document No.1869/2011 for 30 years from 01.11.2010 to 31.10.2040

and by investing a huge amount of Rs.86,06,813/- for setting up ultramodern

RO, pumps, tanks, sales building, compound wall, drive way with pavers

block, canopy etc., were provided and the petitioner was appointed as a mere

licensee to facilitate the sale of petroleum products of the Corporation and

therefore, the petitioner has not invested any amount for setting up RO and

consequently he has not suffered any infringement of legal right by virtue of

opening of new RO in that vicinity. It is further contended that the

guidelines issued by the IRC are only directory but not mandatory and they

don't have any statutory force. Above all, though the petitioner has not

achieved sales target, the respondent Corporation did not take any coercive

steps against him. For all these reasons the writ petition which is filed by

rival traders is not maintainable.

8. On a conspectus of pleadings and respective arguments of either side,

I find no much force in the contention of the petitioner. Admittedly, the site

for establishment of RO was taken on lease by the Corporation and it

invested amount and provided necessary infrastructure. The petitioner in his

reply affidavit admits the same and says that his RO is under CC category,

meaning thereby, the Respondent Corporation has to construct the entire

outlet and provide all facilities for sale of petroleum products.

a) Thus, it is pellucidly clear that the petitioner did not make any

investment like in the other category of ROs wherein the successful

applicant has to provide site and develop required infrastructure.

b) In that view of the matter, as rightly argued by learned counsel for

respondent Nos.2 and 3, the petitioner who is only a licensee to promote the

sales of petroleum products of respondent Nos.2 and 3, cannot claim to

suffer any economic loss or infringement of any right by virtue of the

proposed new RO.

c) Nextly, though the petitioner in his pleadings referred and vehemently

argued about the guidelines said to be issued by IRC, however he did not

specifically mention about the relevant rules and guidelines. Therefore, no

much weightage can be given to those guidelines. Even assuming that as per

the guidelines said to be issued by the IRC no new RO should be set up

within a distance of 1000 meters from the existing RO on the same side as

alleged, still, as already stated supra, the petitioner is only a licensee and he

has not invested any amounts for setting up of the existing RO. The

concerned authorities by considering the relevant statutes and rules, have

already issued NOC for setting up of a new RO in the proposed site.

9. Therefore, petitioner's objections cannot be taken into consideration.

I find no merits in the writ petition. Accordingly, the writ petition is

dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall stand

closed.

_________________________ U.DURGA PRASAD RAO, J 17.06.2021 krk

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

Writ Petition No.14011 of 2020

17th June, 2021 krk