Khushbu Nilesh Nikam vs State Of Gujarat
2022 Latest Caselaw 3426 Guj

     C/LPA/350/2022                                 ORDER DATED: 24/03/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/LETTERS PATENT APPEAL NO.350 of 2022
                           In
     R/SPECIAL CIVIL APPLICATION NO.10464 of 2020
                         With
       CIVIL APPLICATION (FOR STAY) NO.1 of 2022
                           In
        R/LETTERS PATENT APPEAL NO.350 of 2022
=========================================
                         KHUSHBU NILESH NIKAM
                                Versus
                           STATE OF GUJARAT
=========================================
Appearance :
DR BALRAM D JAIN for the Appellant.
for the Respondent Nos.10,11,12,13,14,2,3,4,5,6,7,8,9
MR BHARGAV PANDYA, AGP for the Respondent No.1.
=========================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P.
       MAYEE

                     Date : 24/03/2022
                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. By way of the present Letters Patent Appeal preferred under Clause 15 of the Letters Patent, the appellant - original petitioner has challenged oral order dated 2.7.2021 passed by learned Single Judge in Special Civil Application No.10464 of 2020 by which the petition filed at the instance of the petitioner to issue an appropriate writ, order or direction quashing and setting aside No Objection Certificate (NOC) issued by the Additional Collector, Valsad in favour of respondent No.6 for establishing a Petrol Pump, came to be dismissed.

2. In response to the notice issued by learned Single Judge, the respondent No.6 in whose favour NOC has been granted

C/LPA/350/2022 ORDER DATED: 24/03/2022

to run a Petrol Pump has filed affidavit-in-reply on 9.10.2020, whereas respondent Nos.4 and 5 i.e. Bharat Petroleum Corporation has also filed affidavit-in-reply dated 8.10.2020. Rejoinder to the said affidavit was filed by the petitioner in November, 2020.

3. Learned Single Judge after considering the rival submissions and factual aspects of the matter, dismissed the writ petition by the impugned order.

4. Hence the present appeal.

5. Dr. Balram D. Jain, learned advocate appearing for the appellant would submit that NOC to run the Petrol Pump has been granted in favour of respondent No.6 contrary to the advertisement by which the respondent has permitted Bharat Petroleum Corporation Limited to establish the Petrol Pump in various rural areas. He would further submit that it is also the case of the petitioner that a Petrol Pump belonging to the petitioner is already in existence and the NOC to run the Petrol Pump granted in favour of respondent No.6 to establish a Petrol Pump is an industrial area and not rural area and hence, the same is contrary to the terms of the advertisement. He would further submit that this aspect was brought to the notice of the Collector. However, the same has not been properly considered and, therefore, the authorities as well as learned Single Judge ought to have cancelled the NOC granted in favour of the respondent No.6. He would submit that though the revenue authorities were subsequently joined as parties including District Inspector of Land Records, no document has been produced by them by filing any affidavit that the land on which the Petrol Pump is to be established is in rural area. He, therefore, would submit that the learned Single Judge has committed error in

C/LPA/350/2022 ORDER DATED: 24/03/2022

dismissing the writ petition.

6. Dr. Jain would further submit that one of the ground for dismissing the petition is that advertisement is of the year 2018 and after completing the formalities, NOC for running the Petrol Pump was issued to respondent No.6 on 15.2.2020 and though the petition was filed in the month of March 2020, the same was circulated for hearing in the month of August, 2020 so as to put the respondent No.6 in jeopardy. He would further submit that due to Pandemic COVID-19, lockdown was imposed in the entire country and since the Courts were functioning through virtual hearing, the writ petition could not be circulated for early hearing. He, therefore, would submit that the learned Single Judge ought not to have rejected the writ petition on that ground also. He, therefore, would submit that the present appeal may be allowed.

7. We have heard learned advocates appearing for the respective parties and perused the contentions raised before learned Single Judge as well as findings rendered by learned Single Judge. We have also considered the affidavit-in-reply filed by respondent No.4 i.e. Bharat Petroleum Corporation Limited in the writ petition. From the said affidavit, it appears that in pursuance of the advertisement dated 25.11.2018 for appointment of Retail Outlet Dealers for establishing Retail Outlets, procedure was undertaken and the respondent No.6 was selected and after verifying the location of the land on which Petrol Pump was to be constructed i.e. land bearing Survey No.3297 (Old Survey No.269/3 paiki ) at village Sarigam, Tal. Umbergaon, Dist. Valsad and after meeting with the rural criteria where the Petrol Pump is to be set up, NOC was issued by the Deputy Collector, Valsad by imposing appropriate terms and conditions way back on 15.2.2020.

C/LPA/350/2022 ORDER DATED: 24/03/2022

8. The appellant - original petitioner - who is owner of Petrol Pump of another Company has failed to establish that her Petrol Pump is at a distance of only 400 to 500 Meters where the respondent No.6 was granted NOC to run the Petrol Pump of another Company. No documentary evidence has been produced by the appellant to substantiate her say. This aspect has also been considered by learned Single Judge. It appears that the appellant cannot object to the establishment of a Retail Outlet of a Petrol Pump near its own Retail Outlet on the ground that the same would affect the sales of its own Retail Outlet. After considering the documentary evidence on record, learned Single Judge has made specific observations in paragraphs 13 and 14 of the impugned judgment. As far as observations made by learned Single Judge in paragraph 15 of the impugned judgment is concerned, we would not like to comment about the same. However, it appears that the writ petition was circulated after long time though virtual hearing was available to the petitioner.

9. In the premises aforesaid, we do not find any reason to interfere with the order of learned Single Judge. Hence, the present appeal fails and is accordingly dismissed. Connected civil application also stands dismissed.

(A. J. DESAI, J)

(ANIRUDDHA P. MAYEE, J.)

SAVARIYA