Ujjwala Lathar vs Indian Oil Corporation Ltd And Ors
2024 Latest Caselaw 1593 P&H

Punjab-Haryana High Court

Ujjwala Lathar vs Indian Oil Corporation Ltd And Ors on 24 January, 2024

                                                         Neutral Citation No:=2024:PHHC:009650



                                                     2024:PHHC:009650

CWP-20197-2014                                                           -1-


      IN THE HIGH COURT OF PUNJAB AND HARYANA
               AT CHANDIGARH


203                                            CWP-20197-2014
                                               Date of Decision: 24.01.2024


Ujjwala Lathar                                              ...Petitioner

                                Versus



Indian Oil Corporation Ltd. and others                    ...Respondents



CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present :   Mr.B.S.Rana, Sr. Advocate with
            Mr.Nayandeep Rana, Advocate
            for the petitioner.

            Mr. Ashish Kapoor, Advocate
            for respondents No.1 and 2.

            Mr. Rajesh Kumar Jangra, Advocate
            for respondents No.5 and 6.

       ****
JAGMOHAN BANSAL, J. (Oral)

1. The petitioner through instant petition under Articles 226/227

of the Constitution of India is seeking setting aside of No Objection

Certificate dated 27.08.2014 (Annexure P-6) whereby respondent No.4 has

permitted respondents No.5 and 6 to set up petrol pump. The petitioner is

further seeking setting aside of letter of intent dated 22.03.2013 (Annexure

P-3) issued by respondent No.2-Indian Oil Corporation (for short 'IOC') in

favour of respondents No.5 and 6.

2. The petitioner is owner of Hindustan Petroleum Petrol Pump in

the name and style of 'Uma Filling Station'. The said petrol pump is located

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at National Highway No.65 at Jhumpa Kalan, Tehsil Siwani, District

Bhiwani.

3. Pursuant to advertisement of Indian Oil Corporation, the

respondents No.5 and 6 applied for the allotment of petrol pump. The

respondents No.5 and 6 came to be selected and respondent-IOC issued

letter of intent in favour of them. As required under Rule 144 of Petroleum

Rules, 2002 (for short 'Rules'), the respondent-IOC applied for NOC to

District Magistrate, Bhiwani who sought opinion of different Government

departments. Different Government-authorities including Forest, PWD, Fire

Department issued their no objection. The proposed petrol pump was to be

set up at National Highway, thus, respondents were required to have NOC

from NHAI. The respondent-IOC applied for NOC to NHAI which in turn

vide letter dated 21.10.2013 granted permission for one year subject to

conditions enumerated in the said communication. The Deputy

Commissioner, Bhiwani on the basis of NOC granted by different

departments issued NOC dated 27.08.2014 in terms of Rule 144 of the

Rules. The respondents No.5 and 6, in October' 2014 set up their petrol

pump which since then is operating.

4. Learned counsel for the petitioner submits that NHAI as well as

Deputy Commissioner has granted NOC in violation of guidelines dated

25.09.2003 issued by Ministry of Road Transport and Highway (MoRTH).

As per aforesaid guidelines, the petrol pump at National Highway cannot be

set up if distance between proposed site and intersection with rural roads

with carriage way width of 3.5 or more is less than 300 meters. The distance

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in the case of respondents is less than 300 meter, thus, NHAI as well as

District Magistrate have granted permission in violation of binding

instructions of Central Government. The respondent is relying upon

instructions of 2013 which are inapplicable to petitioner because event of

advertisement and LOI took place prior to 2013. The petitioner preferred

civil suit which was dismissed on account of jurisdiction and appeal before

Commissioner was filed and withdrawn during the pendency of the petition,

thus, there is no concealment of facts.

5. Per contra, learned counsel for the respondents submits that the

petitioner preferred an appeal before Divisional Commissioner, Hisar against

the impugned NOC which was later on withdrawn. The impugned order

dated 27.08.2014 is an appealable order and petitioner had preferred appeal,

thus, act of the petitioner amounts to concealment of facts. The guidelines

of 2013 make it clear that distance is required to be maintained in respect of

concrete (Pacca) road and it is not applicable in case of earth tracks (kachha

road). The Division Bench of this Court in Kulwant Rai Kataria vs. State of

Punjab and others, LPA No.1744 of 2012, decided on 03.11.2012 has held

that instructions dated 25.09.2003 issued by Central Government are not

statutory in nature and these are not mandatory like a statute.

6. I have heard the arguments of learned counsel for the parties

and perused the record.

7. The conceded position emerging from record is that

respondents No.5 and 6 pursuant to advertisement of respondent-IOC

applied for allotment of petrol pump. The guidelines of 2003 were in vogue

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at the time of advertisement as well as issuance of letter of intent. IOC

applied for NOC in terms of Rule 144 of Petroleum Rules, 2002 to District

Magistrate and NOC was issued on 27.08.2014. The guidelines of 2013

came into force prior to issuance of NOC by District Magistrate. The NHAI

issued NOC vide communication dated 21.10.2013 and it was on temporary

basis for a period of one year. The said permission till date has not been

withdrawn by NHAI. The respondents No.5 and 6 set up their petrol pump

in October' 2014 and since then it is operating. The petitioner is also having

petrol pump in the vicinity of petrol pump of respondents No.5 and 6.

8. As per petitioner, the petrol pump has been set up in violation

of guidelines dated 25.09.2003 and application of the respondents seeking

NOC was bound to be considered in terms of guidelines of 25.09.2003. The

Deputy Commissioner could not rely upon the guidelines of 24.07.2013.

9. The petitioner concededly filed appeal against the impugned

NOC (Annexure P-6) and the said appeal has been withdrawn. As per Rule

154 of Petroleum Rules, 2002, order passed by Deputy Commissioner in

terms of Rule 144 of the Petroleum Rules, is an appealable order. The

petitioner concededly filed appeal against impugned order, however, it was

withdrawn. The appeal was filed after filing writ petition before this Court.

The Divisional Commissioner vide order dated 09.01.2014 stayed the

impugned order. The respondents pointed to Divisional Commissioner that

there is concealment of fact on the part of the petitioner and stay has been

wrongly granted. The Divisional Commissioner vide order dated 18.10.2014

vacated the stay considering the fact that the petitioner has approached High

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Court and an interim order dated 26.09.2014 has been passed. The relevant

extracts of the order dated 28.10.2014 passed by Divisional Commissioner,

Hisar are reproduced as below:

"6. The grant of interim stay in court cases is a very ticklish issue, which requires skillful and tactful handling. Here very fine balance of interest of all the parties is required to be made. Generally, if interim stay is granted, then plaintiff almost always, tries to waste time of the court by refusing to cooperate or move ahead with further proceeding in the main application. However, it is also observed that whenever interim stay is not granted, then respondent also, generally tries to waste the time of the court by all sort of conceivable means. In all cases, one party or another suffers due to prolonged stay. Therefore, a fine balance is needed to balance the interest of each party in grant of stay or in vacation of stay.

7. It is undisputed that on the date of consideration of stay application, i.e. on 09.10.2014, the High Court order dated 26.09.2014 was concealed before this court by the appellant. It was also concealed that appellant tirst tried to his luck before civil court for getting a suitable injunction order. After having unsuccessful, he tried to get 'status quo' order from High Court. But again, he becomes unsuccessful. Then after concealing his earlier two attempts, appellant got succeeded in getting ex-parte stay order from this court for same cause of action. However, any litigant cannot be allowed 'forum shopping' among various authorities, courts and tribunals till desirable injunction order is procured.

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8. In 2013(196)-DLT-385, it is held that forum hunting or forum shopping indubitably leads to not only:

multiplicity of proceeding, but also the abuse of process of court. Courts have to discourage such practice with a heavy hand.

9 Further, both parties have stated same reasons of loss of business for either request of granting of stay, or request for vacation of stay. Since, appellant as well as respondent No. 2 & 3 are competitors over the similar product in same market, therefore, loss of business to one person will naturally result in roughly similar gain of business to her competitor. Of course, public loss is also to be calculated if it is found that National Highway instruction dated 24.07.2013 is violated. But even if such an instruction is indeed found to be violated at a later stage, then also assessed cost can always be recovered from respondent. Hon'ble High Court has already ruled in its order dated 26.09.2014, that any construction by respondents on the site, which is contrary to norms, will not create any indefeasible right in them. It is also recorded that respondents can set up Petrol Pump at their own risk.

10. Therefore, in the light of above said discussion; there is no ground to continue with the stay order, which was any way going to be inoperative after three days from now. Whatever respondents will do after vacation of stay, will not create any right to them and they will do construction, operation etc. on the site, only at their own risk.

11. Therefore, the stay is vacated. The case is fixed for argument on maintainability of this appeal. So, parties

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are directed to come to this court for preliminary hearing on 13.11.2014."

10. The aforesaid appeal came to be withdrawn in view of

pendency of writ petition before this Court. The petitioner, on the one hand,

approached this Court and on the other hand, filed appeal before the

appellate authority and secured ex-parte stay. The petitioner filed civil suit

apart from appeal before appellate authority and writ petition before this

Court. The civil suit, on the ground of jurisdiction, was dismissed vide order

dated 10.09.2014. This indicates act and conduct of the petitioner.

11. The petition may be dismissed on the sole ground of forum

shopping because it is settled proposition of law that whosoever approaches

Court must come with clean hands. Nobody can be permitted to pollute the

holy water of justice.

12. The petitioner is a competitor of respondent Nos.5 and 6 and he

has filed present petition to inhibit them from operating their petrol pump.

Anybody can bring in the knowledge of Court illegality committed or to be

committed by authorities. In the case in hand, intent of the petitioner is not

to stop alleged illegality on the part of the authorities whereas intent is to

avoid competition. The petitioner is trying to use every possible judicial

forum to halt operations of respondent Nos.5 and 6. Judicial process cannot

be used to stop healthy competition in the guise of allegation of violation of

any instruction issued by Government.

12.1 In Nagar Rice & Flour Mills & Ors v. N Teekappa Gowda &

Bros Ors. (1970) 1 SCC 575, the Hon'ble Supreme Court considered the

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issue of the locus standi of a rival trader to impeach the grant of fresh license

or permission that increases competition in the petitioners area of trade. The

Apex Court held that the provisions of Section 8(3)(c) of the Rice Milling

Industry Regulation Act, 1958 are merely regulatory and if not complied

with, the appellants may probably be exposed to a penalty but the

competitors in the business cannot seek to prevent the appellants from

exercising their right to carry on business because of the default nor can the

rice mill of the appellants be regarded as a new rice mill. The Court clarified

that a person cannot claim independently of any restriction imposed by a law

referable to Article 19 of the Constitution that any other person shall not

carry on business or trade so as to affect his trade or business adversely. The

relevant extracts of the judgment read as :

9. Section 8(3)(c) is merely regulatory, if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regarded as a new rice mill.

Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article 19(6) but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the

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respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed.

X X X X

11. The appellants had been carrying on business in milling rice for more than 30 years and the mill was by reason of the proposal to submerge the site in the Sharavathi Hydro-Electric Project had to be shifted from its location. The State allotted another piece of land to the appellants and did not acquire their machinery and permitted erection of their rice mill building on the new location, this was done with a view to cause minimum hardship to the appellants arising in consequence of the proposed construction of the dam resulting in submerger of their land. The State also granted permission to the appellants to change the location under the Rice Milling Industry (Regulation) Act, 1958. The permission cannot be said to be granted without consideration of the relevant circumstances.

12. The appeal is allowed and the petition filed by the respondent N. Teekappa Gowda and brothers is ordered to be dismissed with costs throughout in favour of the appellants.

12.2 In Mithilesh Garg etc. v. Union of India and others, (1992) 1

SCC 168, a three Judge Bench of Apex Court had occasion to advert with

challenge laid by existing stage carriage operators to route permits granted to

various transport operators. The Court turned down pleas of the existing

operators and held :

"6. As mentioned above the petitioners are permit holders and are existing operators. They are plying their

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vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy competition and efficient transport system. Overcrowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the rooftop are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of black smoke from the exhaust pipe. It is, therefore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits. Restricted licensing under the old Act led to the concentration of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis. The transport business is bound to be ironed out ultimately by the rationale of demand and supply.

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Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be conscious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the Act is directed towards the said goal. The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy competition which is necessary to bring efficiency in the trade.

(Emphasis supplied)

14. A conspectus of guidelines of 2003 and 2013 discloses that

restriction of distance is not applicable in case of intersection of kachha

road. In the instructions of 2003, it was specifically provided that there

should be minimum specified distance between proposed site and

intersection with rural road of earth tracks i.e. kachha road whereas there is

no such restriction in 2013 guidelines. The relevant extracts of the 2003

guidelines as well as 2013 are reproduced as below:

"2003 Guidelines 6.1 For the siting of fuel stations along National Highways, its minimum distance from an intersection would be:

6.1.1 Non-Urban (Rural) Stretches.

1. Plan and Rolling Terrain

(i) Intersection with NHs/ SHs/ MDRs 100m

(ii) Intersection with Rural Roads with carriageway width of 3.5m or more 300m

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(iii) Intersection with Rural Roads and All other earth tracks with Carriageway width less than 3.5m 100m Guidelines of 2013 4.5 In order to provide safe length for weaving of traffic, fuel stations along National Highways shall be located at the minimum distance from an intersection (gap in the central median be treated as intersection) as given below. For single carriageway section, these minimum distances would be applicable for both sides.

All the distances shall be measured between the tangent points of the curves of the side roads at intersections / the median openings and the access / egress roads of the fuel stations, as is applicable, in a direction parallel to the centre line of the nearest carriageway of the National Highway.

4.5.1 Non-Urban (Rural) Stretches

1. Plain and Rolling Terrain Distance

(i) Intersection with NHs/SHs/MDRs 1000 m

(ii) Intersection with Rural Roads/approach roads 300 m to private and public properties

15. The petitioner is objecting applicability of 2013 guidelines on

the ground that event of advertisement as well as LOI took place prior to

instructions of 2013, thus, respondent cannot claim benefit of instructions of

2013. The contention of the petitioner cannot be countenanced. The

authorities are bound to take care of instructions which are in vogue at the

time of deciding application. The instructions are regulatory in nature and

these are meant for the convenience of public as well as regulating the

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traffic. The instructions dated 24.07.2013 have noticed guidelines of

25.09.2003 and it has been specifically mentioned that existing norms and

guidelines have been modified. The relevant extracts of the guidelines dated

24.07.2013 read as :

"Ministry had issued separate guidelines on access permission to Fuel Stations, Service Stations; Rest Areas etc. vide Circular No. RW/NH-33023/19/99-DO-III dated

25.09.2003/17.10.2003, & access permission to Private Properties etc. along National Highways vide Circular No. RW/NH-33023/19/99-DO-III dated 31.08.2000. With the improvement in the National Highway network, a greater need for road safety of the users has been felt along with stricter enforcement of the guidelines. It has also been decided that unified norms for access to Fuel Stations, Service Stations, Private Properties, Rest areas and other such facilities along the National Highways may be evolved.

2. Accordingly, the existing Norms and guidelines have now been modified and the unified Guidelines/Norms are enclosed at Appendix-I & Appendix-II. The Norms at Appendix-I will be applicable for access permission to all Fuel stations, Service stations, Rest areas, etc. and Norms at Appendix-II will be applicable for access. permission to Private Properties from the date of the issue of this Circular. These norms shall be followed for seeking and granting permissions for the access to National Highways."

16. From the perusal of above-cited paragraphs of instructions

dated 24.07.2013, it is quite evident that authorities were bound to decide

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application of the respondents in terms of guidelines of 24.07.2013 instead

of guidelines of 25.09.2003. Thus, contention of petitioner that instructions

of 2013 have been wrongly invoked is misconceived and deserves to be

turned down.

17. There is another aspect of the matter. The respondents were

issued NOC by Deputy Commissioner in 2014 and they have set up their

petrol pump. The NHAI issued NOC in 2013 which is still valid. The

respondents are operating their petrol pump since 2014 without any

objection raised by District Administration as well as NHAI. It indicates

that as per opinion of NHAI and State authorities, there is no violation of

guidelines issued by State & Central Government. This Court in the absence

of any glaring illegality on the part of authorities cannot halt operation of a

running petrol pump. Availability of two pumps is in the interest of public at

large. Healthy competition is always in the interest of society as well as all

stakeholders.

18. In the wake of above discussion and findings, this Court is of

the considered opinion that the petition sans merit, thus, deserves to be

dismissed and accordingly dismissed.

                                                (JAGMOHAN BANSAL)
                                                      JUDGE
24.01.2024
anju



                 Whether speaking/reasoned                           Yes

                      Whether reportable                             Yes




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