Madhya Pradesh High Court

Sanchi Automobiles Partnership ... vs Union Of India Thr. on 3 September, 2021

Author: Gurpal Singh Ahluwalia

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            THE HIGH COURT OF MADHYA PRADESH
                          WP-5004-2020
            Sanchi Automobiles Vs. Union of India and ors.

Gwalior, Dated : 03.09.2021

      Shri Siddharth Sharma, Counsel for the petitioner.

      Shri Harish Dixit, Counsel for the respondents No. 2 and 3.

Shri Shashank Sharma, Counsel for the respondent No. 4.

Shri Jitensh Sharma, Counsel for the respondents No. 5 to

7/State.

This petition under Article 226 of the Constitution of India has

been filed seeking the following relief:-

"i- NOC which has been accorded for the purpose of opening of retail outlet in favour of respondent No. 4 be quashed.

ii- The impugned LOI annexure P/1 may kindly be quashed.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be granted."

2. It is not out of place to mention here that one more writ

petition bearing No. 4788/2020 was filed by one Ghanshyam Sharma

raising same points in respect of allotment of petrol pump to the

respondent No. 4. Today, by a separate order, W.P. No.4788/2020 has

been dismissed on the ground that since the petitioner therein does

not claim to have any personal interest in the matter, therefore, the

petition under Article 226 of the Constitution of India in its present

format is not maintainable and if the petitioner therein is so advised,

then he can file a writ petition in the nature of Public Interest

THE HIGH COURT OF MADHYA PRADESH WP-5004-2020 Sanchi Automobiles Vs. Union of India and ors.

Litigation.

3. In the present writ petition also, the petitioner is not co-

candidate for opening of a retail outlet at LH-3 within one kilometer

from Idgah Chauraha towards Karariya (WML). It is submitted that

the said outlet is being established in a most arbitrary and fraudulent

manner and the NOC issued in respect of NH-86 is being utilized for

NH-346, which is impermissible in the eyes of law. It is submitted

that proposed outlet is situated at the intersection of NH-346 and NH-

96.

4. The case of the petitioner is that by showing wrong location of

the land, an attempt was made to obtain the NOC by alleging that the

proposed site is situated by the side of NH-86, whereas the proposed

site is situated by the side of NH-346 and NOC given for NH-86

cannot be made applicable to NH-346.

5. Per contra, the petition is vehemently opposed by the counsel

for the respondents No. 2 and 3. Apart from the denial on the merits

of the case, it has also been pleaded that the petitioner has no locus

standi to file present writ petition. He has not mentioned the legal

rights of the petitioner which are being infringed. The petitioner has

not availed remedy of approaching the grievance redressal forum

under Clause 18 of the Brochure of Selection of Dealers for Regular

THE HIGH COURT OF MADHYA PRADESH WP-5004-2020 Sanchi Automobiles Vs. Union of India and ors.

& Rural Outlets. It is specifically mentioned that the petitioners are

operating the retail outlet of Indian Oil Corporation in the said

locality and the petition is the outcome of business rivalry and the

petitioner wants to keep monopoly of the said business in the said

locality. The petitioner has not disclosed about his business and has

beautifully remained silent about the fact that the petitioner himself is

operating a retail outlet in the nearby vicinity. It is further submitted

that from the location map, it is clear that the face of outlet is as per

advertised stretch. Answering respondents submits that as per

revenue records, the land bearing khasra No.17/2/1, total comprised

area 1.280-hectare, which belongs to respondent No. 4, is situated on

from Idgah Chauraha to Bhopal, which is known as Bhopal-Vidisha

Road NH-86 and from Idgah Chauraha to Ashoknagar Road (Basoda

Road). It is pertinent to mention here that the boundaries of the

questioned land are touching with Bhopal-Vidisha Road and Ashok

Nagar Road also. From total comprised area of 1.280-hectare,

forming part of Khasra No.17/2/1 a piece of land ad-measuring area

0.583-hectare only is diverted by the revenue authority. Since the

area of khasra No.17/2/1 is too large, hence, a piece of land ad-

measuring area 30m x 30m, which is part and parcel of diverted land,

which is situated on from Idgah Chauraha to Ashoknagar Road, is

THE HIGH COURT OF MADHYA PRADESH WP-5004-2020 Sanchi Automobiles Vs. Union of India and ors.

being taken. However, the face of the offered land is on Ashok Nagar

Road, which is from Idgah Chauraha towards Karariya (WML).

Petitioner is attempting to misguide the Hon'ble Court. It is further

pleaded that the allegation of issuance of LOI by playing fraud is

baseless. In the advertisement itself, it was specifically mentioned

that the land for regular outlet is to be on LHS within 1 km. from

Idgah chauraha towards Karariya and the questioned land offered by

the respondent No. 4 falls in the said location and is abutting the

main road, which is also clear from the letter of the Tahsildar, Vidisha

dated 25.4.2019 and after the no dues certificates were issued by the

revenue authorities, respondents No. 2 and 3 have issued LOI in

favour of respondent No. 4. It was specifically pleaded that the

respondents are using the NOC of NH-86 in place of NH-346. NOC

has been granted for Khasra No.17/2/1 on which the retail outlet is to

be established. There is no fraud in this regard. So far as issuance of

NOC is concerned, it is discretionary power of the Collector and the

guidelines issued by the MoRTH are not statutory and are subject to

NOC. So far as the NOC of NH-346 is concerned, the road from

Idgah towards Karariya has been handed over to Municipal

Corporation, Vidisha, which is clear from the letter dated 11.11.2019

issued from the SDO, Vidisha and, hence, the NOC from NH-346 is

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not required and NOC from Municipal Corporation has already been

obtained. The offered area also comes within the municipal limits of

Vidisha. The lay out map of the proposed outlet is proposed by the

Town and Country Planning Department as well as PESO

Department and they are the technical department. Development

permission has been issued by the TNCP, Vidisha, which is clear

from permission dated 30.11.2019.

8. The petitioners have not filed any rejoinder to the return filed

by the respondents No. 2 and 3 and they have not denied the

allegatios that the petitioner is running retail outlet in a nearby

vicinity. Whether the aforementioned suppression of fact can be said

to be material suppression having any effect on the outcome of the

petition or not, is a question, which is to be decided first.

9. This Court in the case of Munnalal Agrawal and another Vs.

Union of India and others reported in 2019 (3) MPLJ 694 has held

as under:-

"6. The Supreme Court in the case of Federation HAJ PTOS of India Vs. Union of India by order dated 04.02.2019 passed in Writ Petition (Civil) No. 4/2019 has held as under:-

"18) Going by the aforesaid considerations, the respondent has carved out the categories of HGOs on the parameters of experience as well as financial strength of HGOs. Such a decision is based on policy considerations. It cannot be said that this decision is manifestly arbitrary or unreasonable. It is settled law

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that policy decisions of the Executive are best left to it and a court cannot be propelled into the unchartered ocean of Government policy {See Benett Coleman & Co. v. Union of India}. Public authorities must have liberty and freedom in framing the policies. It is well accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts. Courts are illequipped to substitute their decisions. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters. In Bennett Coleman's case, the Court explained this principle in the following manner:

"The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietor to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy."

19) The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with such policy decisions. No such case is made out. On the contrary, views of the petitioners have not only been considered but accommodated to the extent possible and permissible. We may, at this junction, recall the following observations from the judgment in Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth:

"16... The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-

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making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation- making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution."

20) We may also usefully refer to the judgment in State of Madhya Pradesh v. Nandlan Jaiswal5. In this judgment, licence to run a liquor shop granted in favour of A was challenged as arbitrary and unreasonable. The Supreme Court held that there was no fundamental right in a citizen to carry on trade or business in liquor. However, the State was bound to act in accordance with law and not according to its sweet will or in an arbitrary manner and it could not escape the rigour of Article 14. Therefore, the contention that Article 14 would have no application in a case where the licence to manufacture or sell liquor was to be granted by the State Government was negatived by the Supreme Court. The Court, however, observed:

"But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State

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Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide."

21) It is not necessary to multiply the cases as the aforesaid principle can be said to be cast in stone. It is, therefore, difficult to agree to the aforesaid argument of the petitioners."

7. The Rajasthan High Court in the case of Rajasthan Petroleum Dealers Association through its Secretary, Jaipur Vs. Union of India and others by order dated 20.09.2011 passed in S.B. Civil Writ Petition No. 10441/2010 has held as under:-

"15. The present writ petition is nothing but a camouflage to prevent possible competition by other retail outlets. The discretion & freeedom of OMCs to set up more outlets with the expansion of road network and consumer markets has neither been disputed nor it can possibly be disputed. From the material placed on record before this Court by the respondent Union of India and OMCs, it is clear that there is no breach of any guidelines, which are not even statutory in nature, by the OMCs while inviting applications for such retail outlets. The allegation that lesser sale targets have been fixed for such applicants than the standard quota does not make out any ground for prohibiting the OMCs for allotting such retail outlets. In their replies, the OMCs have clearly come out with a case that they undertook the cost benefit analysis for each retail outlet to be opened by comparison of possible sales with actual sales of existing retail outlets and profit to be earned by it and it is only upon finding such economic viability for

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such new proposed retail outlet that such advertisements have been issued with the approval of the Board of Directors of respective OMCs at the highest level and there is no arbitrariness or illegality pointed out in the decision making process. A fair and legitimate competition coupled with the need of increased number of retail outlets with the expansion and development of road network & consumer market cannot be denied or disputed."

8. Thus, it is clear that the petitioners are merely rivals in trade. The establishment of competitive business may have the effect on their profitability, but it would not give rise to any legal flaw.

9. The Supreme Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar and others reported in (1976) 1 SCC 671, has held as under:-

"47. Thus, in substance, the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.

48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been

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subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a "person aggrieved" and has no locus standi to challenge the grant of the no-objection certificate."

10. When the petitioner is running a retail outlet in the nearby

vicinity and opening of new retail outlet would adversely affect his

business proceedings, then it cannot be a ground for quashing the

proposed outlet. Why the petitioner has suppressed the said material

fact in the writ petition speaks in volumes. In fact, the petitioner

wanted to project that he has no vested and financial interest in the

matter, whereas the reality is that in case, if any retail outlet is opened

in the nearby vicinity, then it will certainly affect his business

proceedings. Under Article 19 of the Constitution of India, no

individual can claim his monopoly over an area of business

11. Be that as it may.

12. In the light of the judgment passed by this Court in the case of