Bombay High Court
Ujwala W/O Santosh Kendre vs Bharat Petroleum Corporation ... on 15 January, 2018
Bench: B.P. Dharmadhikari
Judgment wp4753.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4753 OF 2016.
Ujwala w/o Santosh Kendre,
Aged about 29 years, Occupation
Business, resident of At Post Pimpri,
Khandare, Tq. Lonare,
District Buldhana. ....PETITIONER.
VERSUS
1. Bharat Petroleum Corporation Limited,
through its Territory Manager (Retail)
Manmad-Nandgaon Road, P.O. Manmad,
Tq. And District Nashi.
2. Ravindra s/o Devidas Sable,
aged about 40 years, resident of
Ward No.7, Kranti Nagar, Buldhana,
District Buldhana.
3. Collector, Buldhana,
District Buldhana.
4. Executive Engineer, Public Works Department.
/B & C, Buldhana,
District Buldhana.
5. Town Planner, Town Planning
Department, Buldhana,
District Buldhana.
6. Union of India,
through its Secretary, Ministry of
Petroleum, New Delhi. ....RESPONDENTS
.
::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 01:51:28 :::
Judgment wp4753.16
2
-----------------------------------
Mr. S.S. Dhengale, Advocate for Petitioner.
Mr. A. Sambre, Advocate for Respondent No.1.
Mr. S. Joshi, Advocate for Respondent No.2.
Asstt. Govt. Pleader for Respondent Nos. 3 to 5.
Ms. M. Chandurkar, Advocate for Respondent No.6.
------------------------------------
CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : JANUARY 15, 2018.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard learned counsel for the respective parties. Considering the
nature of controversy involved in the matter, in view of orders dated
19.08.2016, Rule is made returnable forthwith and Writ Petition is heard
finally with consent of the parties.
2. Only question raised by the petitioner is - Whether respondent
no.2 can be permitted to have a retail outlet on same highway in the vicinity
of petitioner, at a distance of less than 300 meters ?
3. During the pendency of this Writ Petition, distance between the
Judgment wp4753.16
two spots has been verified and a communication with map dated
18.08.2017 shows that the Sub Divisional Engineer, Public Works
Department, Deulgaon Raja has found distance between site of petitioner
and site of respondent no.2 to be 304 meters. This communication is
brought on record by respondent no.2 with his affidavit on 24.11.2017, and
thereafter the matter was listed before this Court on 18.12.2017,
08.01.2018, 12.01.2018 and today. Petitioner has not countered this
position. On the contrary, during arguments effort has been made to show
that said distance has to be 1000 meters.
4. Shri Dhengale, learned Counsel appearing on behalf of petitioner
has invited our attention to assertions in paragraph no.10 of the Writ
Petition to show that distance has to be minimum 1000 meters and in
present facts it is less than 900 sq. ft.
5. Shri Sambre, learned counsel appearing for respondent no.1, Shri
Joshi, learned Counsel appearing for respondent no.2 and Ms. Chandurkar,
learned Counsel appearing for respondent no.6 have relied upon provisions
contained in Guidelines for Access, Location and Layout of Roadside Fuel
Stations and Service Stations (3rd Revision). These guidelines are also relied
upon by the petitioner, and he has produced the same as Annexure-8 with
Judgment wp4753.16
his Writ Petition. He has referred to these guidelines as "Indian Road
Congress Guidelines".
6. Perusal of said guidelines particularly, Clause 1.2 shows that the
same are finalized in consultation with the Ministry of Petroleum and Oil
Companies. Nobody has disputed its binding nature before us.
7. Clause 4.5.3 of these Guidelines stipulates that there shall be not
be any median gap on a divided carriageway within a distance of 300 meters
on each side of the fuel station. Clause 4.6. stipulates that minimum
distance between two fuel stations has to be 300 meters in plain and rolling
terrain in non-urban [rural] areas. This 300 meters minimum distance is
attracted when retail outlet is on an undivided carriage way. Clause 4.6.1
[i] deals with this location specifically. It is mentioned that it is applicable
for both sides of carriage way.
8. Clause 4.6.1 [ii] speaks of divided carriageway, where there is no
gap in median at "this location and stretch". The minimum distance
provided therein is 1000 meters, and this is followed by a note. Note [i]
stipulates that minimum distance of 300 meters between two fuel stations
on both sides of the road is applicable for undivided carriageway only. In
Judgment wp4753.16
case of divided carriage way with no gap in medians, the distances
restrictions is not applicable on opposite side of the fuel station and the
minimum distance between two fuel stations on same side shall be 1000
meters. We are not concerned with other clauses in present controversy.
9. The undisputed communication issued by the Department of State
Government does not show that the carriageway with which we are
concerned, is having any median. Petrol pump of petitioner is of Hindustan
Petroleum Corporation, while proposed petrol pump of respondent no.2 is of
Bharat Petroleum Corporation.
10. Petitioner also has not in his petition pointed out that the
carriageway in front of his petrol pump is having any median. He has also
not pointed out that the petrol pump of respondent no.2 is on same side of
the road i.e. on his side of carriageway only. However, respondent nos. 1
and 2 have not disputed the fact that petrol pump of petitioner and
respondent no.2 are on same side of said carriageway. The map on record
also shows this position. Bare reading of Clauses 4.6, 4.6.1 and note [ii]
supra, reveals that the Authority framing these guidelines have looked into
the possibility of vehicles traveling in either direction approaching the petrol
pump for refilling. When there is no median [divider] in existence, the
Judgment wp4753.16
minimum distance between two petrol pumps stipulated is 300 meters.
When there is a median i.e., Divider and therefore, vehicle traveling on other
side of the road is unable to approach the petrol pump, which is located on
right hand side of the vehicle, distance stipulated is 1000 meters. This is
obviously due to the fact that the vehicle on other side of the road divider
cannot approach such petrol pump. Hence, the vehicles proceeding only in
one direction can be catered by a petrol pump, and therefore, to add to
number of its customers, the distance between two petrol pumps has been
increased.
11. When Clause 4.5.3 is understood in this backdrop, it stipulates
that there should not be any median gap on divided carriageway within the
distance of 300 meters on each side of the fuel station. This distance of
1000 meters therefore, is attracted when there is no break in medians to
enable the vehicle proceeding in other direction to take 'U' turn and to
approach the petrol pump on right hand side of the divider. If there is such
a break or gap within 300 meters or near such petrol pump, this 1000
meters norm does not apply. Note [i] which stipulates that when there is no
such gap in medians, distance of 1000 meters is applicable, is relevant qua
location of other petrol pump on same side of the road. If such a petrol
pump is on other side of the road, i.e. divider, this norm of 1000 meters is
not attracted. Again this is because of impossibility of a vehicle traveling
Judgment wp4753.16
on other side of a divider of carriageway to approach the petrol pump on its
right hand side i.e. beyond median.
12. There is no challenge to the wisdom between this policy.
13. Here the material on record does not show that the petrol pump of
petitioner is on a carriageway which has divider at its center. In absence of
this, the distance norm of 1000 meters is not attracted at all. Respondents
have specifically submitted that the petrol pump of petitioner and
respondent no.2 is on same side of a carriageway which does not have any
median at all. They invite attention to pleadings in paragraph no.16 of the
Writ Petition to urge that the petitioner therefore has attempted to place on
record relevance of distance norm of 300 meters. We need not observe
anything more in this respect, as the competent Authority has already
granted necessary access permission to respondent no.2 and State
Government through its communication dated 18.01.2018 pointed out that
distance to be more than 300 meters.
14. Relevance of these guidelines is looked into by the Hon'ble
Supreme Court in case reported at 2016 [15] SCC 480 (Indian Oil
Corporation Ltd. .vrs. Arti Devi Dangy). The Hon'ble Supreme Court has
Judgment wp4753.16
found that the guidelines or stipulations in the advertisement are mandatory
and object behind the same is to have uniform application and treatment to
all tenderers. The Hon'ble Supreme Court has therefore, set aside the
judgment of Madhya Pradesh High Court taking a view to the contrary.
15. Here we find that norms stipulated vide IRC Guidelines,
mentioned supra, forming part of the advertisement have not been breached
or violated at all. No case is therefore, made out warranting intervention.
Writ Petition is, thus dismissed. Rule discharged. No costs.
16. The amount of Rs. 1 lakh deposited by the petitioner in pursuance
of orders of this Court dated 19.08.2016, is allowed to be withdrawn by him
along with interest accrued thereon.
JUDGE JUDGE
Rgd.
