Punjab-Haryana High Court
M/S Ugala Filling Station And Another vs State Of Haryana And Others on 30 January, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:013548
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 24682 of 2023 (O&M)
Reserved on : 08.01.2024
Date of Decision :30.01.2024
M/s Ugala Filling Station and another ...Petitioners
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Present: Mr. Prateek Sodhi, Advocate, for the petitioners.
Mr. Rajbir Singh, Deputy Advocate General, Haryana,
for respondent nos. 1 to 7.
Mr. Ashish Rawal, Advocate, for respondent no. 8-UOI.
Mr. Raman Sharma, Advocate, for respondent no.9.
Mr. S. P. Arora, Advocate, for respondent no. 10.
SANJEEV PRAKASH SHARMA, J.
The petitioners, who are running a fuel station allotted to them by the
Bharat Petroleum Corporation Limited (hereinafter to be referred as 'the
BHPCL"), seek to restrain opening of another fuel station in the nearby premises to
be opened by respondent no.9- the Hindustan Petroleum Corporation Limited
(hereinafter to be referred as 'the HPCL"),, which has been allotted to respondent
no. 10. Fuel station is already opened at the location: Ugala, SH-4, Shahbad
Adhoya Road, District Ambala, Haryana, by the petitioner.
2. Brief facts which can be culled out from the present petition are that
the HPCL issued an advertisement on 25.11.2018 for allotment of regular/ rural
retail outlet dealership in various districts of Haryana including District Ambala. It
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has come on record that respondent no.10 had applied for the said retail outlet and
was intimated on 18.07.2019 that his name having been declared as successful and
was awarded dealership subject to compliance of terms and conditions issued by
the HPCL in this record. Letter of Intent (LOI) was issued to respondent no.10 on
10.09.2019. As per the terms and conditions, the HPCL will develop the retail
outlet at the location between villages Adhoi and Ugala on the site to be taken on
lease/ purchased by the HPCL with appropriate structures, storage tanks and
pumps.
3. The petitioner alleges that before setting up a retail outlet of petrol
pump, the necessary permissions were required to be taken from various
government departments such like Forest Department, PWD, etc. They are
required to conform to the Indian Roads Congress (hereinafter to be referred as
'the IRC') guidelines in order to get NOC from the PWD. It is stated that as per
IRC-12-2016 guidelines, the minimum distance between the fuel station and the
intersection with rural roads/ approach roads to private and public properties
should be 300 meters. The petitioners asserted that guidelines are mandatory in
nature. It is alleged that their site, as located, does not conform to the IRC
guidelines. It is further submitted that as per the NOC issued by respondent nos. 4
and 5, condition was imposed in the NOC itself that in case of non-compliance of
IRC guidelines, NOC will be considered to have been withdrawn/ cancelled. The
respondents have allegedly concealed the facts before applying for NOC. It is
alleged that NOC granted by respondent nos. 4 and 5 on 27.02.2020 was issued
without actually visiting the site.
4. Learned counsel for the petitioners asserted that two passages are
running within a distance of 200 meters from the retail outlet. One passage is
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leading to Chhabra Rice Mills at an approximate distance of about 25 meters and
the other passage/ Gohar is at a distance of 200 meters from the site proposed,
therefore, learned counsel for the petitioners submitted that the NOC ought to be
cancelled and the respondents should not be allowed to set up fuel station.
However, the petitioners' counsel submits that there were instructions and
guidelines issued under the Forest (Conservation) Act, 1980, which are required to
be followed for grant of permission to axe the trees on the forest land for diversion
of forest land for non-forest purposes and for diversion of forest land for access to
the retail outlet, which have been flouted by the respondents.
5. The permission to axe the trees on the forest land for diversion of
forest land for non-forest purposes was wrongfully granted and the same is in
contravention of the guidelines and instructions issued by the Forest Advisory
Committee which lays down that the minimum distance between two fuel stations,
on each side of the road, should not be less than 5 kilometers. The instructions
further provided that if two or more fuel stations are to be constructed in close
proximity or adjacent to each other, a common exit and access shall be provided
but the same would not apply if no tree felling is involved. It is further submitted
that earlier guidelines issued on 15.07.2004 came up for examination of this Court
in CWP No. 19287 of 2011 - Charan Dass vs Union of India and others, decided
on 22.10.2013 and which held the said guidelines to be directory in nature.
Whereafter vide guidlines dated 18.03.2010, it was further clarified that entire
periphery of the establishment should be lined up with free plantation. Further
guidelines/ norms dated 12.04.2013 for access permission to fuel stations were
issued by the Government of India, Ministry of Road Transport & Highways which
provided that minimum distance between two fuel stations along the National
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Highway for undivided carriageway would be 300 meters and for divided
carriageway would be 1000 meters. It is further submitted that the said guidelines
were again revised on 11.07.2014, 24.11.2015 and the respondents vide letter dated
28.03.2019 issued a handbook of guidelines for effective and transparent
implementation of the provisions of the Forest (Conservation) Act, 1980,
applicable from 08.03.2019. However, in these guidelines too the requirement of
maintaining a distance of 5 kilometers between two fuel stations has been
continued. It is alleged that the respondents have violated the said guidelines while
proposing the new outlet. It is further alleged that permission to axe 32 trees and 9
plants was granted and the Forest Department also gave permission to establish
petrol pump, although the same was mindlessly established without following the
guidelines relating to keeping minimum five kilometer distance.
6. The petitioners preferred CWP No. 11276 of 2020 assailing the
permission granted by the Forest Department whereafter the respondents were
granted final order dated 02.12.2020 with respect to NOC. Another petition was
filed by them bearing CWP No. 5576 of 2021 assailing the NOC granted by the
PWD but the order of granting NOC on 02.12.2020 was not challenged as the
petitioners were not aware of the same. It is stated that both the writ petitions were
decided by the Court vide common order dated 21.09.2023 dismissing the petitions
holding that the order of granting final NOC dated 02.12.2020 was not under
challenge and the orders challenged were appealable, granted liberty to the
petitioners to prefer appeal. The petitioners preferred appeal before the
Commissioner and it is stated that the post of Commissioner was being held by the
mother of respondent no.10, who did not pass any order on the appeal.
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7. The petitioners preferred CWP No. 22557 of 2023 in the
circumstances seeking issuance of writ in the nature of certiorari for quashing of
the NOC as well as for restraining the respondents from granting retail outlet and
for restraining them for cutting the trees. Learned Single Bench of this Court
disposed of the writ petition vide order dated 05.10.2023 with directions to the
appellate authority to decide the appeal within a period of two weeks. LPA was
preferred against the said order bearing LPA No. 1442 of 2023 wherein the
Division Bench directed the Commissioner, Karnal Division, to be the appellate
authority to decide the petitioners' appeal. Thereafter, the appellate authority
dismissed the appeal vide order dated 14.10.2023. The petitioners have filed the
present writ petition assailing the order dated 14.10.2023 and further prayed for
quashing of NOC dated 02.12.2020, and the NOC dated 27.02.2020 and the order
dated 28.07.2020 whereby permission was granted to the respondent for diversion
of forest land by axing 32 trees and 9 plants for access and establishment of retail
outlet along Kala Amb- Shahbad Road (SH-4).
8. The HPCL in its written statement has raised preliminary objection of
maintainability of the writ petition and submitted that in terms of Order XI Rule 16
CPC read with Rule 30 of the writ rules applicable to the Writ Jurisdiction (Punjab
and Haryana High Court) Rules, 1976, the pleadings which are unnecessary,
scandalous, frivolous or vexatious or which can tend to prejudice, embarrass or
which is otherwise abuse of the process of the Court can be struck down. It is
stated that the pleadings quoted in para 26 wherein the petitioners challenged the
discretionary of the Single Judge by terming the same as erroneous and derogatory
and pleaded to scandlise the process of the Court and prayed to struck down the
pleadings. It is further submitted that the competitor in business has no right to
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maintain the writ petition before this Court. Law in Nagar Rice & Flour Mills and
others vs N. Teekappa Gowda and Brothers and others 1970 (3) SCR 846 and
Mithilesh Garg etc. etc. vs. Union of India and others AIR 1992 SC 443 has been
cited in support of the said submissions.
9. Learned counsel for the HPCL submitted that IRC guidelines of 2016
are only directory in nature and the judgment passed in CWP No. 15939 of 2012 -
Kulwant Rai Kataria vs State of Punjab, decided on 21.08.2012 has been cited
with the order dated 03.11.2012 passed in LPA No. 1744 of 2012. Respondent no.
9 has also objected to the maintainability of the writ petition on the ground of
concealment and submitted that access permission has been granted by the Forest
Department in terms of the order passed by the Government on 06.05.2016 which
has not been placed on record by the petitioners, although the same was placed by
the petitioners in the earlier writ proceedings initiated by him. The requirement of
not allotting setting up of second petrol pump within five kilometer, if the tree
cutting is involved, is stated to be no more in existence as the guidelines which
were existing earlier were superseded by the instructions dated 11.07.2014. It is
also stated that the tree cutting was carried out upon requisite cost and
compensation towards compensatory plantation. It is further submitted that the
Principal Chief Conservator of Forests, Haryana, had allowed the setting up of the
retail outlet while issuing certain directions and conditions in its order dated
28.07.2020, which have been followed.
10. Respondent no. 10 has also filed its independent reply and has made
similar pleadings. An affidavit has been filed by the Executive Engineer,
Provincial Division No. 2, PWD (B&R) Branch, Ambala Cantt on behalf of
respondent nos.1 to 3 stating that the NOC was granted by the respondents in
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conformity with the IRC guidelines. It is stated that the way to Chhabra Rice Mill
is a consolidation path of 3 karam and the same does not come in the category of
road. Similarly the Gohar to fields also does not come in the category of road/
intersection as per the guidelines / instructions and has relied on Note (b) to the
guidelines. It is reiterated that No Objection Certificate has been issued strictly in
accordance with the IRC guidelines, and therefore, the appeal of the petitioner was
rightly rejected.
11. This Court noticed that the NOC issued to respondent nos. 9 and 10
stipulates condition no.19, which is as under:-
"19. That there should be no violation of norms pertaining to
intersection prescribed in IRC: 12-2016/ latest edition as applicable.
The NOC will be considered withdrawn/ cancelled in case of non
compliance of this condition."
12. IRC: 12-2016 guidelines are unified guidelines for access permission
to fuel stations, private properties, rest area complexes and such other facilities
along the National Highways. As per the introduction, the Transport Planning and
Traffic Engineering Committee has decided to update comprehensively the
guidelines for access permission to fuel stations, private properties, rest area
complexes and such other facilities along national highways with the purpose to
ensure free flow of traffic on the roads and minimum interference by the vehicles
using the facilities and safety of vehicles and pedestrians on the roads. As per
clause 3.1 of scope of IRC: 12/2016 guidelines it has been mentioned that owing to
its merits, various agencies other than national highways are warranted to follow
these guidelines/ norms for seeking and granting permission for the access to fuel
stations, private properties, rest area complexes etc. along all categories of roads
i.e. State Highways, Major District Roads, Rural Roads and Municipal roads etc.
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13. Appendix-I to IRC: 12-2016 guidelines lays down the general
conditions/ norms for location/ sitting, layout and access to fuel stations along the
national highways. Clause 3.5, 3.5.1, 3.5.2 and 3.6.3 of IRC:12-2016 read as
under:-
"3.5 In order to provide safe length for weaving of traffic, fuel
stations along National Highway 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 distance 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 station as is applicable, in a direction parallel to the
centre line of the nearest carriageway of the National Highway.
3.5.1 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 to 300 m
private and public properties
2 Hilly/ Mountainous Terrain
(i) Intersection with NHs/ SHs/ MDRs 1000 m
(ii) Intersection with Rural Roads/ approach roads to 300 m
private and public properties
3.5.2 Urban Stretches
1 Plain and Rolling Terrain Distance
A Urban Area with population of more than 20,000
and less than one lakh
1. Intersection with any category of roads of 300 m
carriageway width of 3.5 m and above
(i) Intersection with any roads of carriageway width of 100 m
less than 3.5 m
B. Urban Area with population of one lakh and above
(i) Intersection with any category of road (irrespective 100 m
of carriageway width)
II Hilly and Mountainous Terrain
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(i) Intersection with any category of road (irrespective 100 m
of carriageway width)
3.6.3. If two or more fuel stations are to be sited in close proximity for
some reasons these would be grouped together to have a
common access through a service road of 7.0 m width and
connected to the highway through acceleration, deceleration
lanes. From these considerations, the permission for the new
fuel stations would be considered only if it either in proximity to
the existing one so that the common access can be provided or
the new one located at a distance of more than 1000 m. Any
objection from NH for the proposed new fuel station are to be
overruled and access to all fuel stations in case of clustering,
shall invariably be from the service road only. Wherever longer
service road exists which may itself act as deceleration/
acceleration lane, no separate deceleration/ acceleration lane
is required."
14. Thus, from the above it is apparent that the aforesaid guidelines are
essential for National Highways, however, they are to be followed generally for the
State Highways and single carriageway, Major District Roads, Rural Roads and
Municipal roads etc. functioning in the States. Admittedly, the concerned road is a
State Highway. This Court, however, finds that the clause relating to intersection
with rural roads, approach roads to public and private properties has to be at a
distance of 300 meters. As per the affidavit filed by the Executive Engineer, the
Gohar and the passage to the Chhabra Rice Mill do not fall within the definition of
rural road or approach road, and therefore, it has been stated that the guidelines
have been strictly followed.
15. While sitting in the Rajasthan High Court, I had the occasion to
examine the issue regarding applicability of IRC 2016 guidelines in S. B. Civil
Writ Petition No. 12208 of 2018 and after examining all the aspects vide judgment
dated 06.09.2021, it was held that the norms essentially connote guidelines and
cannot be said to be of statutory character and would not, therefore, be mandatory
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and relaxation can be given by the State authorities with reference to the
circumstances.
16. I have been told that the said judgment is under challenge before the
Division Bench.
17. Leaving the aforesaid as independently if this Court examines the
present case, it finds that so far as the IRC guidelines are concerned, the same
would be treated as mandatory for National Highways but can be treated only as
directory for State Highways, District Roads, etc.The State and Local authorities
would be required to build roads as per the local requirement keeping in mind
broadly the guidelines laid down for National Highways and departure would not
result in declaring the action as bad in law because the guidelines are not essential
meant for State Highways or District roads. It has been advised to follow the same
norms for State Highways as well as for the District Roads but from the plain
reading of the Appendix-1 to the guidelines, it is apparent that it would be
completely impracticable to apply mutatis mutandis to said guidelines to State
Highways/ roads, and therefore, it would be directory in nature.
18. Thus, while NOC has been granted and the Executive Engineer has
also reached to the conclusion that there is no violation of IRC guidelines, this
Court rejects the contention of the petitioners that on violation of IRC guidelines in
stricto sensu, the NOC should be cancelled.
19. The question then arises with regard to the violation of the various
guidelines relating to establishment of petrol pump. In this regard, this Court finds
that the Ministry of Environment, Forests & Climate Change issued directions on
the subject of diversion of forest land for non-forest purposes under the Forest
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(Conservation) Act, 1980. In the said letter it has been stated that the Ministry has
received certain representations for amendment of certain provisions of the
guidelines issued earlier on 15.07.2004, 08/09.12.2004, 10.02.2005 and 18.03.2010
and the Ministry decided to supersede the earlier guidelines with direction to adopt
the procedure laid down in their letter dated 11.07.2014. It was directed that the
requirement for diversion land for construction of acceleration/ de-acceleration
land and exit/ entry openings shall be based on approved layout plan provided in
the guidelines issued by the Ministry of Road, Transport and Highways. The
guidelines as existing on 23.07.2013 were enclosed. The condition of keeping two
petrol pumps apart at the distance of 5 kilometer has been done away with and
essentially the Forest Department adopts the IRC guidelines of 2016. If NOC has
been granted under IRC guidelines 2016, the Forest Department would allow the
access and construction of existing and re-opening for establishment of fuel
station.
20. It is to be noticed that thereafter on 24.11.2015, the Ministry of
Environment, Forest and Climate Change also observed that the parameters of
National Highway as laid down in the guidelines would be different for the
category of roads other than the National Highways and the same guidelines would
not be feasible and a clarification has been sought by the Forest Department from
the Ministry of Road, Transport and Highways. Thereafter, handbook of guidelines
for effective and transparent implementation of the provisions of Forest
(Conservation) Act, 1980 were issued on 28.03.2019 which includes approach/ exit
roads to petrol pumps. The said guidelines have authorised a Senior Officer not
below the rank of a Divisional Forest Officer having jurisdiction over the forest
land proposed to be diverted to pass order for tree cutting and commencement of
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work of a linear project in forest land, subject to full realization of funds for
compensatory afforestation.
21. As per the reply filed by respondent no.9, due compensation amount
has been deposited. In view thereof, this Court finds that no interference is
warranted in the establishment of petrol pump on the road SH-4, between Villages
Adohi and Ugala, at Village Ugala, Tehsil Barara, District Ambala, Haryana.
22. This Court also finds that the petitioner-company is a competitor and
has merely taken up the cause in order to remove competition and maintain
monopoly on the road relating to retail outlet of petrol pump. Therefore, it cannot
be said that his petition is pro bono but this Court does not hold that the petition is
not maintainable as even an individual citizen can approach the Court, if there has
been violation of the norms lays down by the Forest Department and any
construction is done in contravention of the Forest Act
23. In view of the aforesaid findings, no case for interference is
warranted. The writ petition is found to be devoid of merits and is accordingly
dismissed.
24. All pending applications shall stand disposed of accordingly.
25. No costs.
30.01.2024 (SANJEEV PRAKASH SHARMA)
vs JUDGE
Whether speaking / reasoned : Yes / No
Whether Reportable : Yes / No
Neutral Citation No:=2024:PHHC:013548
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