Madras High Court
M/S.Padma Highways Filling ... vs The Regional Administrator – Cum on 12 January, 2022
W.P.No.10573 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.06.2022
PRONOUNCED ON : 06.07.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.10573 of 2022 &
W.M.P.Nos.10243 &10244 of 2022
M/s.Padma Highways Filling Station,
represented by its Managing Partner,
M.V.S.Suryanarayana Raju,
NH-214, Kanakalapeta,
Yanam – 533 464, Puducherry State. ... Petitioner
Vs
1.The Regional Administrator – cum -
Sub – Divsional Magistrate,
Office of the Sub-Divisional Magistrate,
Government of Puducherry, Yanam.
2.The Project Director,
Ministry of Road Transport and Highways,
Government of India,
Project Implementation Unit, Machilipattinam,
Door No.41 – 1 / 12 – 2, Donka Road,
Krishna Lanka, Vijayawada – 520 013.
1/36
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
3.The Joint Chief Controller of Explosives,
Ministry of Commerce and Industry,
Government of India,
Petroleum & Explosives Safety Organization (PESO),
Room No.602, Sixth Floor, C.G.O. Towers,
Kavadiguda, Secunderabad – 500 080.
4.The Executive Engineer to the Government of India,
Ministry of Road Transport & Highways (S & R (P&B) Section),
Transport Bhawan, No.1, Parliament Street, New Delhi.
5.The Member Secretary,
Pondicherry Pollution Control Committee,
Housing Board Complex,
Anna Nagar, Puducherry – 600 005.
6.The Divisional Manager,
M/s.Hindustan Petroleum Corporation Limited,
Visakha Regional Office, Petro Nilayam,
Post Box No.135, Visakhapatnam – 530 003. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
for writ of certiorarified mandamus calling for the records of the impugned
no objection certificate No.4178 / SDMY / D3/ Petrol / 2021 – 22 dated
12.01.2022 issued by the Regional Administrator-cum-Sub-Divisional
Magistrate, Yanam, Government of Puducherry and to quash the same as
non-est, ultra vires & void-ab-initio in the eyes of Law and consequently to
direct the Project Director, Ministry of Road Transport and Highways,
Government of India, Project Implementation Unit, Machilipattinam,
Vijayawada to cancel and annul the in-principle approval letter dated
2/36
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
22.12.2021 for grant of No Objection Certificate and access permission for
laying approach road to M/s.Hindustan Petroleum Corporation Limited to
set up a retail outlet for MS (Petrol) / HSD (Diesel) at Town Survey
NO.C/7/16/1C Pt., C/7/13/4B Pt., C/7/13/5A Pt., Kanakalapeta, Yanam,
Union Territory of Puducherry by declaring the same as illegal, sham,
vitiated, without application of mind, contrary to guidelines.
For Petitioner : Mr.L.Swaminathan
For Respondent 1 : Mr.C.T.Ramesh
Additional Government Pleader (Pondy)
For Respondent 2 : Mr.S.S.Varma, SPC
Mr.K.Ramanamoorthy,
Central Government Standing Counsel
For Respondent 5 : Mrs.A.Sathyabama, Standing Counsel
For Respondent 6 : Mr.Mohammed Fayaz Ali
ORDER
The petitioner is running a petroleum filling station and they have
challenged the No Objection Certificate dated 12.01.2022 issued by the first
respondent and in-principle approval letter dated 22.12.2021 issued by the
second respondent in favour of the sixth respondent for resitement of the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
petroleum outlet of the HPCL from Rural Yanam to National Highways as
contemplated in Rule 1.5 & 1.6 of the guidelines issued for resitement of
retail outlet dealership by HPCL.
2. According to the petitioner, duty is cast upon the first respondent to
ascertain from the licensee regarding the necessity of resitement of HPCL
petrol bunk from Rural Yanam to National Highways, Yanam, more
particularly, when no documents have been filed by the sixth respondent to
the first respondent regarding the grant of approval by Director (M) as
stated in Rule 1.6 of the guidelines mentioned supra. According to the
petitioner, the fourth respondent had issued communication dated
26.06.2020 under the captioned subject namely “Guidelines/Norms for grant
of permission for construction of access to Fuel Stations, way side amenities,
connecting roads, other properties, Rest Area Complexes & such other
facilities” wherein Clause 4 (ii) clearly stipulates that “30 meter as frontage
and Depth”. According to the petitioner, the proposed HPCL outlet of the
sixth respondent does not have 30 meter depth.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
3. According to the petitioner, it is mandatory for the first respondent
to verify and ascertain whether there exists 30 meter depth as per clause 4(ii)
referred to supra before issuing the impugned no objection certificate as
according to the petitioner, after excluding the right of way-line (ROW) of
National Highway, the proposed HPCL outlet does not have 30 meters
depth. Hence according to the petitioner, No Objection Certificate has been
issued glaringly to the sixth respondent by violating the guidelines.
4. According to the petitioner, the Central Pollution Control Board,
Delhi through Office Memorandum dated 07.01.2020 has issued guidelines
for setting up of new Petrol Pumps in compliance with the Order of the
National Green Tribunal dated 18.01.2019 passed in O.A.No.86 of 2019.
According to the petitioner, the first respondent before issuing the impugned
No Objection Certificate dated 12.01.2022 ought to have ascertained from
the Puducherry Pollution Control Board (fifth respondent herein) as to
whether the proposed HPCL outlet is in consonance with the guidelines for
setting up of New Petrol Pump station.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
5. According to the petitioner, it is mentioned in the impugned No
Objection Certificate dated 12.01.2022 that “... additional safety measures
as prescribed by PESO shall also be implemented since the radial distance of
proposed Retail Outlet is less than 50 meters from the nearest Residential
zone ....”. According to the petitioner, the Town and Country Planning
Department, Government of Puducherry in its report dated 10.01.2022
addressed to the First respondent has stated that one residential zone is
located at a distance of 42 meters. According to the petitioner, duty is cast
upon the sixth respondent to satisfy the first respondent regarding the steps
taken or proposed to be taken by way of an affidavit/undertaking the reasons
for not adhering to 50 meters yard-stick as prescribed in the Guidelines.
6. According to the petitioner, the proposed HPCL fuel station of the
sixth respondent is only 26.64 meters away from the existing residential
houses and the measurement mentioned by the Town and Country Planning
Department, Government of Puducherry is an exaggeration and not as per
the correct measurements. It is further contended by the petitioner that the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
first respondent cannot issue No Objection Certificate based on certain
conditions which has to be fulfilled by the sixth respondent in future.
According to them, the impugned No Objection Certificate dated 12.01.2022
issued in favour of the sixth respondent is an abuse of process of law as it
has violated the norms and guidelines.
7. It is further contended by the petitioner that the impugned in-
principle approval letter dated 22.01.2021 is addressed only to
M/s.Hindustan Petroleum Corporation, Visakhapatinam, Andhra Pradesh
and not addressed to an individual by name Prashanth Chandra Villa as
claimed by the sixth respondent. According to the petitioner, the question of
exhausting / extinguishing alternative remedy by the petitioner will apply
only when No Objection Certificate issued to the licensee ceases to have any
right to use the site for storing Petroleum. According to the petitioner, in the
instant case, the writ petitioner is not a license holder and the contentions of
the second and sixth respondents in this regard is wrong which portrays the
misunderstanding of the rules by the respondents.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
8. However, the first respondent denies the allegations made by the
petitioner and states that only by following the due procedure and after
obtaining No Objection Certificates from all the concerned
departments/authorities namely: (a) The Commissioner, Yanam
Municipality, Yanam, (b) The Executive Engineer, PWD, Yanam, (c) The
Junior Town Planner, Town & Country Planning Department, Yanam, (d)
The Inspector of Police, Yanam, (e) The Deputy Tahsildar (Revenue),
Yanam and (f) The Station Officer, Fire Service Unit, Yanam, the impugned
No Objection Certificate was issued in favour of the sixth respondent along
with in-principle approval given by the second respondent. According to the
first respondent, the objections raised by the petitioner in respect of distance
between two fuel stations is not maintainable as per the latest and relevant
guidelines issued by the Ministry of Road Transport and Highways,
Government of India vide Notification dated 26.06.2020 and the said
notification reads as follows:
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
Distance 300m* - For both divided and undivided carriageway *(including
between deceleration and acceleration lanes).
two fuel
stations However, this restriction shall not apply in case access/egress
for all such fuel stations are provided through common service
road of 7.0m width and not directly to NH. Further, access for
fuel stations at closer proximity than 300m may be allowed
provided entry/exit for both Fuel Stations are provide through
service road of 7.0m width having sufficient length; further,
additional length of such service road shall be constructed at the
cost of the later fuel station owner/company seeking grant of
permission for access for the facility.
9. According to the first respondent, the service road with width of
7.50 meters has been developed by National Highway Authority of India
along section of NH-216 which is providing ingress/egress to the petitioner's
Fuel station as well as the proposed Fuel Station of the sixth respondent.
According to the first respondent, the impugned No Objection Certificate
and in-principle approval has been issued only in conformity with the above
said guidelines.
10. The first respondent has also stated that the objections raised by
the petitioner with regard to violation of guidelines issued by the Central
Pollution Control Board in its memorandum dated 07.01.2020 in
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
compliance with order dated 18.01.2019 of the National Green Tribunal
passed in O.A.No.86 of 2019 are also not maintainable for the following
reasons:
Description of CPCB Guide Lines Status/Report as at site and as per
local laws in comparison to the
CPCB Guidelines.
New Retail outlets shall not be A school is existing 130.00 mts away
located within a radial distance of from the new proposed retail outlet of
50 meters (from fill point the M/s. HPCL which is satisfying the
/dispensing units / vent pipe which criteria of CPCB guidelines
is nearest) from schools
New Retail outlets shall not be No hospital is existing within 100 mts
located within a radial distance of radius of the newly proposed retail
50 meters (from fill point / outlet of the M/s. HPCL which is
dispensing units / vent pipe which satisfying the criteria of CPCB
is nearest) from hospitals (10 bends guidelines
and above).
New Retails outlets shall not be The entire land in T.S.NO.C/7/16/1pt
located within a radial distance of out of which in a part where the new
50 meters (from fill point / proposed out let of M/s. HPCL is
dispensing units / vent pipe which designated as Commercial Zone as per
is nearest) from Residential Areas the Comprehensive Development Plan
designated as per local laws. In of the Yanam region. The remaining
case of constraints in providing 50 land of the above Survey Number is
mts distance, the retail outlet shall classified as Residential Zone. This
implement additional safety land of residential zone in the above
measures as prescribed by PESO. Survey Number is existing 42.00 mts
In no case the distance between away from the new proposed out let of
new retail outlet from schools, M/s. HPCL (from proposed fill point /
hospitals and residential area dispensing units to the edge of the
designated as per local laws shall residential zone). More over as per the
be less than 30 mts. local law, i.e. Puducherry Building Bye
Laws and Zoning Regulations, 2012
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
Description of CPCB Guide Lines Status/Report as at site and as per
local laws in comparison to the
CPCB Guidelines.
petrol bunks are permitted in
Residential zones also. However, since
the designated residential zone / area is
located at a radial distance of less than
50.00 mts. But more than 30.00 mts,
NOC was issued subject to satisfying
additional safety measures as
prescribed by PESO.
11. According to the sixth respondent, they have obtained No
Objection Certificate and in-principle approval only by following the due
procedure. According to the sixth respondent, they issued the letter dated
06.11.2021 seeking access permission from the second respondent for
establishing the petroleum retail outlet at the proposed location. According
to them, the second respondent after examining the request, granted
permission under impugned order dated 22.12.2021. Therefore, the first
respondent has issued the impugned No Objection Certificate dated
12.01.2022 under Rule 144 of the Petroleum Rules 2002. Consequently, the
third respondent has issued a prior approval dated 03.02.2022 whereby, the
plan submitted for construction of the petroleum retail outlet has been
approved and the construction of the retail outlet is in progress as per the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
approved plan.
12. According to the sixth respondent, the petitioner who is a dealer of
Indian Oil Corporation Limited, is a competitor for the sixth respondent.
According to them, it is settled law that a business rival cannot maintain a
writ petition against a competitor. According to the sixth respondent, a party
who is not aggrieved cannot maintain a writ petition and the mere statement
that provision of law has been violated is not sufficient to enable the third
party who is not aggrieved to challenge the order in question.
13. According to the sixth respondent, the retail outlet site to be
established by them for which No Objection Certificate and in-principle
approval were issued, is within the norms of National Highways. They have
reiterated the contentions of the first respondent which has been referred to
supra.
14. According to the sixth respondent, the petitioner has no locus
standi or privity to question the internal guidelines of the sixth respondent.
According to the sixth respondent, the present retail outlet has been
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
established as per the policy guidelines of the sixth respondent. The
petitioner has extracted an internal policy of HPCL for resitement of its retail
outlets and the said guidelines framed by HPCL is a matter of internal policy
and the petitioner has no locus standi to question the same. According to the
sixth respondent, the said internal policy is irrelevant for the present case.
15. According to the sixth respondent, this Court by its order dated
07.03.2022 in W.P.No.5066 of 2022 dismissed the writ petition of the
petitioner granting him leave to challenge No Objection Certificate already
granted in favour of the sixth respondent in the manner known to law.
According to the sixth respondent, as per Rule 150 of the Petroleum Rules,
2002, the issuing authority or the State Government is empowered to cancel
No Objection Certificate, if the licensee ceases to have any right to use the
site for storing petroleum. According to the sixth respondent, it is provided
that before cancelling a No Objection Certificate, a licensee shall be heard.
Therefore, according to the sixth respondent, as per law, the petitioner ought
to have extinguished his alternate remedy by approaching the issuing
authority or the State Government. Instead, the petitioner has directly
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
approached this Court without exhausting alternate remedy and therefore,
the present writ petition is not maintainable.
16. According to the sixth respondent, the Indian Road Congress
Guidelines is not applicable anymore in view of Guidelines framed by the
Ministry of Road Transport and Highways under the control of National
Highways (Land and Traffic) Act, 2002. Since the National Highways is
governed by a separate enactment, the IRC guidelines shall not apply.
17. Heard Mr.L.Swaminathan, learned counsel for the petitioner,
Mr.C.T.Ramesh, learned Additional Government Pleader (Pondy) appearing
for the first respondent, Mr.K.Ramanamoorthy, learned Central Government
Standing Counsel appearing for the second respondent, Ms.A.Sathyabama,
learned counsel appearing for the fifth respondent and Mr.Mohammed
Fayaz Ali, learned counsel appearing for the sixth respondent.
18. Learned counsel for the petitioner reiterated the contents of the
affidavit filed in support of this writ petition and would submit that in the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
impugned No Objection Certificate, it has not been stated anything about the
necessity for “Resitement of Hindustan Petroleum Corporation Limited from
Rural Yanam to National Highway” as contemplated in Clause 1.5 and 1.6
of the guidelines issued for resitement of retail outlet dealership by the sixth
respondent. According to him, duty is cast upon the first respondent to
ascertain from the licensee regarding the necessity of resitement of HPCL
Petrol bunk from Rural Yanam to National Highway, Yanam. According to
him, as per Clause1.6 of the guidelines, no resitement shall be made from
remote/low service areas without the approval of Director (M).
19. Learned counsel for the petitioner would further submit that the
Ministry of Road Transport and Highways, Government of India, had issued
communication dated 26.06.2020 under the captioned subject regarding
“Guidelines / Norms for grant of permission for construction of access to
fuel stations, way side amenities, connecting roads, other properties, Rest
Area Complexes & such other facilities” wherein clause 4(ii) stipulates that
“30 meters as frontage and depth”. According to the learned counsel for the
petitioner, in the instant case, the impugned No Objection Certificate has
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
been issued despite the fact that the proposed HPCL outlet does not have 30
meters depth.
20. Learned counsel for the petitioner also submitted that the
guidelines issued by the Central Pollution Control Board, Delhi for setting
up of new petrol bunks has also not been fulfilled. Learned counsel for the
petitioner would further submit that in the impugned No Objection
Certificate, it has been mentioned that “... additional safety measures as
prescribed by PESO shall also be implemented since the radial distance of
proposed Retail Outlet is less than 50 meters from the nearest Residential
zone ....”. According to the learned counsel for the petitioner, the Town and
Country Planning Department, Government of Puducherry in its report
dated 10.01.2022 addressed to the first respondent has stated that one
residential zone is located at a distance of 42 meters. According to him,
duty is cast upon the sixth respondent to satisfy the first respondent
regarding the steps taken or proposed to be taken by way of an
affidavit/undertaking the reasons for not adhering to 50 meters yard-stick as
prescribed in the Guidelines.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
21. According to the learned counsel for the petitioner, the proposed
HPCL fuel station of the sixth respondent is only 26.64 meters away from
existing residential houses and the measurement mentioned by the Town
and Country Planning Department, Government of Puducherry is an
exaggeration and not as per the actual measurements. He would further
submit that the first respondent cannot issue No Objection Certificate based
on certain conditions which has to be fulfilled by the sixth respondent in
future.
22. Learned counsel for the petitioner would submit that the
impugned No Objection Certificate dated 12.01.2022 and the impugned in-
principle approval letter dated 22.12.2021 are addressed only to
M/s.Hindustan Petroleum Corporation, Visakhapatinam, Andhra Pradesh
and not addressed to an individual by name Prashanth Chandra Villa as
claimed by the sixth respondent. According to the learned counsel for the
petitioner, the question of exhausting / extinguishing alternative remedy by
the petitioner will apply only if No Objection Certificate issued to the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
licensee ceases to have any right to use the site for storing Petroleum.
According to him, in the instant case, the writ petitioner is not a license
holder and the contentions of the second and sixth respondents in this regard
is wrong which portrays the misunderstanding of the rules by the
respondents.
23. Further the learned counsel for the petitioner would submit that
the representations/objections of the petitioner dated 21.12.2021,
23.12.2021, 21.01.2022 & 02.02.2022 have neither been answered by the
first respondent nor given any reasons before this Court as to how the said
representations were not answered and kept in abeyance. According to him,
the urgency shown in issuing the impugned No Objection Certificate smacks
suspicion.
24. Learned Additional Government Pleader (Pondy) appearing for
the first respondent would submit that only by following the due procedure,
the impugned No Objection Certificate was issued in favour of the sixth
respondent. He would further submit that only after obtaining No Objection
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
Certificate from the concerned Departments/authorities, No Objection
Certificate has been issued in favour of the sixth respondent by the first
respondent for establishing the fuel station. He would also submit that the
objections raised by the petitioner with regard to the distance between the
petitioner's fuel station and the sixth respondent's fuel station are not
maintainable as per the latest and relevant guidelines issued by the Ministry
of Road Transport and Highways, Government of India dated 26.06.2020.
According to him, even in the cases where distance between two fuel
stations is less than 300 meters, No Objection Certificate can be issued
provided that the entry/exit for both the fuel stations are provided through a
service road of 7.0 meters width. According to him, the sixth respondent fuel
station has satisfied the said criteria and therefore, grant of No Objection
Certificate in their favour is legally valid.
25. Learned Additional Government Pleader (pondy) appearing for
the first respondent would further submit that the objections raised by the
petitioner that the sixth respondent has violated the guidelines issued by the
Central Pollution Control Board, Delhi is totally false. According to him, the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
sixth respondent has not committed any violation of Central Pollution
Control Board guidelines.
26. Learned counsel for the sixth respondent would reiterate the
submissions made by the learned Additional Government Pleader (Pondy)
for the first respondent. Apart from that he would submit that a writ petition
cannot be filed by a business rival. In support of his submissions, he relied
upon the following judgments viz.,
(a) A Division Bench Judgment of this Court in the case of Nataraja
Agencies vs. Secretary, Ministry of petroleum & others reported in (2005)
1 CTC 394;
(b) Order of this Court in the case of Palani Murugan Agencies vs.
District Collector reported in (2005) 1 LW 792; and
(c) Order of this Court in the case of P.Selvi vs. District Magistrate
& others reported in AIR 2021 Mad 27.
27. Learned counsel for the sixth respondent would also submit that
there is no locus standi for the petitioner to file this writ petition. According
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
to him, a third party who is not aggrieved cannot maintain a writ petition
and a mere statement of violation of provision of law is not sufficient to
enable the third party who is not aggrieved to challenge the order in
question. In support of the said submission, the learned counsel for the sixth
respondent relied upon the decision rendered in Pattukottai Azhagiri
Transport Corporation Limited vs. V.K.Velayutham & Sons, Imperial
Motor Services and others reported in (1993) 1 MLJ 249.
28. Learned counsel for the sixth respondent would reiterate the
submissions made by the learned Additional Government Pleader (Pondy)
appearing for the first respondent that only after inspection by the Town and
Country Planning, Government of Puducherry, the impugned No Objection
Certificate dated 12.01.2022 has been issued.
29. Learned counsel for the sixth respondent would further submit
that the petitioner has no locus standi or privity to question the internal
guidelines of the sixth respondent. According to him, the internal guidelines
framed by the sixth respondent is a matter of internal policy and the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
petitioner has no locus standi to question the same. Learned counsel for the
sixth respondent would submit that the present writ petition is not
maintainable in view of the fact that there is an alternative remedy available
as per Rule 150 of the Petroleum Rules 2002. Instead of approaching the
District Authority or the State Government for cancellation of No Objection
Certificate, the petitioner has filed this writ petition which is not
maintainable. Learned counsel for the sixth respondent further submit that
the Indian Road Congress Guidelines are only directly and mandatory.
Discussion:
30. The first respondent has issued No Objection Certificate to the
sixth respondent only by following the due procedure established under law.
The first respondent has obtained No Objection Certificates from all the
concerned departments/authorities and the details of which are as follows:
(a) The Commissioner, Yanam Municipality, Yanam,
b) The Executive Engineer, PWD, Yanam,
(c) The Junior Town Planner, Town & Country Planning Department,
Yanam,
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
(d) The Inspector of Police, Yanam,
(e) The Deputy Tahsildar (Revenue), Yanam and
(f) The Station Officer, Fire Service Unit, Yanam.
Only after obtaining No Objection Certificates from the aforementioned
Departments/authorities, the first respondent has issued the impugned No
Objection Certificate in favour of the sixth respondent.
31. The objections raised by the petitioner in respect of distance
between two fuel stations is not maintainable as per the guidelines issued by
the Ministry of Road Transport and Highways, Government of India dated
26.06.2020 which reads as follows:
Distance 300m* - For both divided and undivided carriageway *(including
between deceleration and acceleration lanes).
two fuel
stations However, this restriction shall not apply in case access/egress
for all such fuel stations are provided through common service
road of 7.0m width and not directly to NH. Further, access for
fuel stations at closer proximity than 300m may be allowed
provided entry/exit for both Fuel Stations are provide through
service road of 7.0m width having sufficient length; further,
additional length of such service road shall be constructed at the
cost of the later fuel station owner/company seeking grant of
permission for access for the facility.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
32. In the case on hand, a service road with width of 7.50 meters has
been developed by the National Highways Authority of India along section
of NH-216 which is providing ingress/egress to petitioner's fuel station and
will also provide ingress/egress for the proposed fuel station. The first
respondent has categorically stated that only in accordance with the
guidelines issued by the Ministry of Road Transport and National
Highways, Government of India dated 26.06.2020, the impugned “No
Objection Certificate” has been issued in favour of the sixth respondent.
33. Insofar as the objections raised with regard to the alleged violation
of the guidelines issued by the Pollution Control Board, Puducherry is
concerned, the first respondent has given sufficient explanation in its counter
affidavit. The details of the explanation submitted by the first respondent
reads as follows:
Description of CPCB Guide Status/Report as at site and as per
Lines local laws in comparison to the CPCB
Guidelines.
New Retail outlets shall not be A school is existing 130.00 mts away
located within a radial distance of from the new proposed retail outlet of the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
Description of CPCB Guide Status/Report as at site and as per
Lines local laws in comparison to the CPCB
Guidelines.
50 meters (from fill point M/s. HPCL which is satisfying the criteria
/dispensing units / vent pipe which of CPCB guidelines
is nearest) from schools
New Retail outlets shall not be No hospital is existing within 100 mts
located within a radial distance of radius of the newly proposed retail outlet
50 meters (from fill point / of the M/s. HPCL which is satisfying the
dispensing units / vent pipe which criteria of CPCB guidelines
is nearest) from hospitals (10
bends and above).
New Retails outlets shall not be The entire land in T.S.NO.C/7/16/1pt out
located within a radial distance of of which in a part where the new
50 meters (from fill point / proposed outlet of M/s. HPCL is
dispensing units / vent pipe which designated as Commercial Zone as per
is nearest) from Residential Areas the Comprehensive Development Plan of
designated as per local laws. In the Yanam region. The remaining land of
case of constraints in providing 50 the above Survey Number is classified
mts distance, the retail outlet shall as Residential Zone. This land of
implement additional safety residential zone in the above Survey
measures as prescribed by PESO. Number is existing 42.00 mts away from
In no case the distance between the new proposed out let of M/s. HPCL
new retail outlet from schools, (from proposed fill point / dispensing
hospitals and residential area units to the edge of the residential zone).
designated as per local laws shall More over as per the local law, i.e.
be less than 30 mts. Puducherry Building Bye Laws and
Zoning Regulations, 2012 petrol bunks
are permitted in Residential zones also.
However, since the designated
residential zone / area is located at a
radial distance of less than 50.00 mts.
But more than 30.00 mts, NOC was
issued subject to satisfying additional
safety measures as prescribed by PESO.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
34. After giving its explanation, the first respondent has categorically
pleaded that the sixth respondent has not violated the guidelines of Ministry
of Road Transport and Highways, Government of India dated 26.06.2020
and office memorandum of Central Pollution Control Board, New Delhi
dated 07.01.2020. The Division Bench of this Court in the case of Nataraja
Agencies vs. Secretary, Ministry of petroleum & others reported in (2005)
1 CTC 394 has followed the decision of the Hon'ble Supreme Court in the
case of Mithilesh Garg vs. Union of India reported in (1992) 1 SCC 168
and held that a business rival cannot maintain a writ petition. The relevant
paragraph of the aforesaid decision reads as follows:
“3. The Supreme Court in Mithilesh Garg v. Union
of India, , held that a rival businessman cannot file a writ
petition, challenging the setting-up of a similar unit by
another businessman, on the ground that establishing a
rival business close to his business-place would adversely
affect his business interest, even if the setting-up of the new
unit is in violation of law. In Mithilesh case, cited supra,
the Supreme Court followed its own decision in Rice and
Flour Mills v. N.T. Gowda, , wherein it was held that a rice
mill-owner has no locus standi to challenge under Article
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
226, the setting up of a new rice-mill by another even if
such setting up be in contravention of Section 8(3)(c) of the
Rice Milling Industry (Regulation) Act, 1958 because no
right vested in such an applicant is infringed.
4. In the present case, the only grievance of the
appellant is that if the fourth respondent is permitted to set
up her retail outlet within one kilometer radius of the
appellant's outlet, his business interest would be adversely
affected. In our opinion, the appellant has no locus standi
at all to complain against the setting up of a rival retail
outlet by the fourth respondent, near his place of business,
on the ground that would affect his business interest,
inasmuch as the damage, if any, suffered thereby was
damnum sine injuri-adamage without infringement of legal
right. In our opinion, this will only result in promoting
competition among the traders, which is good for the
consumers. Merely because some of the customers may
switch over to the rival retail outlet does not mean that
public interest will suffer rather, in our opinion, it will
benefit the consumers because, when there is competition,
the businessmen are compelled to provide better quality
products at reasonable rates.”
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
35. The aforesaid decision has also been followed in the case of
Palani Murugan Agencies vs. District Collector reported in (2005) 1 LW
792 and P.Selvi vs. District Magistrate & Others reported in AIR 2021
MAD 27. In the case on hand, admittedly the petitioner is having a
petroleum filling station in the very same area where the proposed petroleum
outlet is likely to be established by the sixth respondent. Being a competitor
as held in the aforesaid decisions, the present writ petition is not
maintainable.
36. The petitioner is a third party to the impugned no objection
certificate. A mere violation of provision of law is not sufficient to enable the
third party to challenge the impugned No Objection Certificate. This Court
in its decision namely Pattukottai Azhagiri Transport Corporation Limited
vs. V.K.Velayutham & Sons, Imperial Motor Services and others reported
in (1993) 1 MLJ 249 reiterated the said proposition which reads as follows:
“19. In the Nogar Rice and Flour Mills and Ors. v. N.
Teekappa Gowda & Brothers and Ors. , it was held that a
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
rice mill owner had no locus standi to challenge under
Article 226 of the Constitution of India, the setting up of a
new rice mill by another, even if it was in contravention of
Section 8(3)(c) of the Rice Milling Industry (Regulation) Act,
1958), because no right vested in such a person was
infringed. The position was reiterated in Nasbhai Motibhai
Desai v. Roshan Kumar, Haji Bashir Ahmed. It was held that
a rival in trade, in that case a cinema theatre owner, had no
locus standi to invoke the special jurisdiction under Article
226 of the Constitution of India.
20. Following the said rulings, a Full Bench of this Court
held in M.L. Krishnamurthy v. The District Revenue Officer,
Vellore (1989)2 LW. 442, that an existing rice mill owner
was not a person aggrieved, when permit or licence under
the Rice Milling Industry (Regulation) Act was granted to
another person, for entitling him to file a writ petition
challenging the grant. In Mithilesh Garg, etc. v. Union of
India and Ors. etc. etc. , already referred to in this
judgment, the Apex Court has quoted in extenso the
observations made by Sarkaria, J., in J.M. Desai's case ,
and reiterated the proposition. In the circumstances, the
petitioner is not a person aggrieved to maintain the writ
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
petition against the grant of permit to the first respondent
with curtailment.”
37. The subject retail outlet having been established as per the policy
of the sixth respondent, the petitioner cannot invoke the guidelines framed
by the sixth respondent for the purpose of questioning the establishment of
petroleum fuel station by the sixth respondent. The guidelines of the sixth
respondent relied upon by the petitioner has no relevance to the case on
hand. There is also an appellate remedy available to the petitioner if
aggrieved by the issuance of the impugned No Objection Certificate under
Rule 150 of the petroleum Rules 2002 which is extracted hereunder:
“150. Cancellation of no-objection certificate.-
(1) A no-objection certificate granted under rule
144 shall be liable to be cancelled by the District
Authority or the State Government, if the District
Authority or the State Government is satisfied, that the
licensee has ceased to have any right to use the site for
storing petroleum:
Provided that before cancelling a no-objection certificate,
the licensee shall be given a reasonable opportunity of
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
being heard.
(2) A District Authority or a State Government
cancelling a no-objection certificate shall record, in
writing, the reasons for such cancellation and shall
immediately furnish to the licensee and to the licensing
authority concerned, copy of the order cancelling the no-
objection certificate.”
38. The petitioner has not exercised the said appellate remedy, but
instead has chosen to file this writ petition. When the first respondent has
issued No Objection Certificate for the sixth respondent based upon various
statutory reports that too, when the petitioner themselves do not claim that
they are bogus, this Court while exercising jurisdiction under Article 226 of
the Constitution of India cannot make a roving enquiry with regard to those
certificates given by the experts in their respective fields. The Indian Road
Congress Guidelines relied upon by the petitioner is also not mandatory as
held by the various decisions of this Court.
39. Some of the grounds raised in this writ petition were also raised in
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
a recent decision dated 21.06.2022 rendered by the First Division Bench of
this court is somewhat identical matter in W.P.Nos.4321 of 2020 & 2951 of
2022 and were rejected. Even in that decision, the proposed petroleum outlet
was located in the service road along with another existing petroleum outlet.
The Division Bench of this Court refused to entertain the challenge to the No
Objection Certificate granted for establishment of a new petroleum retail
outlet. It held as follows:
“25. The argument of learned Senior Counsel
appearing for the third respondent is about the application
of the said guidelines of MORTH (Ministry of Road
Transport and Highways). It is submitted that the retail
outlet would not be on the national highways, but on the
service lane and thereby the guidelines of the MORTH are
not applicable. The statement aforesaid has been supported
by learned counsel appearing for the NHAI. It is stated by
him that the guidelines of MORTH would not be applicable
if the retail outlet is brought on the service lane, but would
apply only when it is established on the national
highways.”
In the instant case also, the petroleum retail outlet to be established by the
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
sixth respondent is not going to be located in the highways, but is going to
be located in the service lane.
41. For the foregoing reasons, this Court does not find any merit in
this writ petition. Accordingly, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
06.07.2022
nl
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
To
1.The Regional Administrator – cum -
Sub – Divsional Magistrate,
Office of the Sub-Divisional Magistrate,
Government of Puducherry, Yanam.
2.The Project Director,
Ministry of Road Transport and Highways,
Government of India,
Project Implementation Unit, Machilipattinam,
Door No.41 – 1 / 12 – 2, Donka Road,
Krishna Lanka, Vijayawada – 520 013.
3.The Joint Chief Controller of Explosives,
Ministry of Commerce and Industry,
Government of India,
Petroleum & Explosives Safety Organization (PESO),
Room No.602, Sixth Floor, C.G.O. Towers,
Kavadiguda, Secunderabad – 500 080.
4.The Executive Engineer to the Government of India,
Ministry of Road Transport & Highways (S & R (P&B) Section),
Transport Bhawan, No.1, Parliament Street, New Delhi.
5.The Member Secretary,
Pondicherry Pollution Control Committee,
Housing Board Complex,
Anna Nagar, Puducherry – 600 005.
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
6.The Divisional Manager,
M/s.Hindustan Petroleum Corporation Limited,
Visakha Regional Office, Petro Nilayam,
Post Box No.135, Visakhapatnam – 530 003.
ABDUL QUDDHOSE, J.
nl
Pre-Delivery order in
W.P.No.10573 of 2022
https://www.mhc.tn.gov.in/judis
W.P.No.10573 of 2022
06.07.2022
https://www.mhc.tn.gov.in/judis
