K.Venkatesh Gupta vs Union Of India And 8 Others
2021 Latest Caselaw 2500 Tel

           HONOURABLE SRI JUSTICE K.LAKSHMAN

                WRIT PETITION No.5059 OF 2021
ORDER:

This Writ Petition is filed to declare the action of respondent

Nos.4 to 7 in not taking any action on the representations dated

31.01.2020, 18.09.2020 and 07.09.2020 submitted by the petitioner

and not stopping illegal and unauthorized construction of the petrol

bunks by the 9th respondent in Sy.Nos.200 and 201 of Mogiligidda

Village, Ranga Reddy District as illegal and for consequential direction

to respondent Nos.4 to 7 to stop the above said illegal and

unauthorized construction of petrol bunks by 9th respondent in the

above survey numbers.

2. Heard Sri Krishna Sumanth, learned counsel for the

petitioner and learned Assistant Solicitor General of India for

respondent No.1, Sri D. Narender Naik, learned standing counsel

appearing for respondent Nos.2 and 3, Sri A. Ram Mohan, learned

Government Pleader for Revenue appearing for respondent No.4,

learned Assistant Government Pleader for Home appearing for

respondent Nos.5 and 6, learned Government Pleader for Panchayat

Raj appearing for respondent No.7, Sri V. Jawaharlal, learned counsel

for respondent No.8 and Sri V. Raghunath, learned counsel for 9th

respondent. Perused the record.

3. SUBMISSIONS OF THE PETITONER:-

i) He is the retail outlet dealer appointed by the Essar Oil

Limited Petroleum in Sy.No.202/1/E of Mogiligidda Village,

Farooqnagar Mandal, Ranga Reddy District. Proceedings vide letter

No. AP100317218503-1209, dated 14-03-2017, was issued KL,J WP_5059_2021

authorizing him to purchase/sell or store the Motor Spirit and High

Speed diesel Oil.

ii) He has entered into agreement to that effect. He has also

obtained necessary permissions/NOC(No objection Certificate) after

physically verifying the site and the outlet. Pursuant to the said letter

of appointment, the petitioner has been inducted into possession of

the outlet and has been running the same in the name and style "Sri

Venkataramana filling Station".

iii) 8th respondent is taking active steps for establishment of

petroleum outlet by obtaining dealership from 3rd respondent which is

adjacent to the outlet of the petitioner herein i.e. within 100 meters.

8th respondent is also trying to obtain all necessary permissions/NOC

from the concerned authorities violating the guidelines of India Road

Congress (IRC).

iv) There should be minimum distance between the two fuel

stations and undivided carriage way as per the India Road Congress

(IRC):12-2009 guidelines point 4.6.1 of 4.6.

v) According to the petitioner, guidelines for access, location

and layout of road side fuel stations and service stations were framed

by the India Road Congress governing consideration for setting up

fuel stations to ensure free flow of traffic on the road along with fuel

stations, minimum interference by the vehicles using the facilities and

to ensure safety of the vehicles on the road.

vi) Guidelines 4.5.1 deals with non-urban(rural) stretch and

intersection with rural roads/approach roads to private and public

properties at a distance of 300 meters.

KL,J WP_5059_2021

vii) Guideline No.2 enunciates that 300 meters minimum

distance between two fuel stations would be on plain and rolling

terrain in non-urban(rural) areas of carriage way. The proposed

outlets to be established by 8th and 9th respondent are exactly less

than 100 meters from the outlet of the petitioner.

viii) Thus, 8th and 9th respondents, in violation of the above

said guidelines including the said distance, are trying to set up fuel

stations.

ix) On 17.02.2021, 9th respondent has placed petroleum tanks

in the property which is less than 50 meters to the outlet of the

petitioner.

x) The petitioner herein has submitted the above said

representations complaining about the said violations and also

proposal of 8th and 9th respondents for setting up of outlets illegally,

to respondent Nos.4 to 7 who did not take any action for stopping the

illegal establishment of the said petroleum outlets illegally.

xi) With the said submissions, the petitioner sought to allow

the writ petition.

4. SUBMISSIONS OF 9TH RESPONDENT:-

i) He has filed a petition vide I.A.No.2 of 2021 to receive certain

documents as additional material papers in support of his case.

ii) He is the dealer of petroleum outlet having obtained the

same from 2nd respondent after long legal battle.

iii) He has followed the regulations and complied with all the

requirements for getting the dealership.

KL,J WP_5059_2021

iv) He has obtained all necessary permissions/NOC from

competent authorities after due enquiry and following the due

procedure laid down under law.

v) There is no illegality or irregularity in setting up of the

petroleum outlet by him.

vi) He denies that his outlet is less than the distance of 100

meters from the outlet of the petitioner.

vii) He has also field a letter of intent dated 12.01.2021 for

proposed Bunk site Kisan Seva Kendra (KSK) dealership at

Mogiligidda (Kondurg-Shadnagar Road), Ranga Reddy District. He has

also filed a letter of appointment dated 25.02.2021 issued by 2nd

respondent.

viii) He has also filed letter dated 07.10.2020 addressed by 2nd

respondent to the 5th respondent with a request to issue NOC for

setting up of the said outlet. He has also filed a show cause notice

dated 22.06.2021 issued by 5th respondent to 9th respondent seeking

explanation as to why NOC issued should not be cancelled.

ix) With the said submissions, he sought to dismiss the writ

petition.

5. SUBMISSIONS OF 2ND RESPONDENT:-

i) 9th respondent has taken necessary permission from all the

relevant concerned authorities before going ahead with construction

activities of proposed retail outlet.

ii) Permission is granted to 9th respondent for setting up of KSK

retail outlet in the year 2010 itself and the same was challenged and KL,J WP_5059_2021

an internal inquiry was conducted by 2nd respondent and the matter

was disposed of in favour of 9th respondent.

iii) The letter of intent dated 24.08.2020 was issued in favour of

9th respondent and KSK retail outlet was finally commissioned by 9th

respondent on 28.02.2021 after obtaining all necessary permissions.

iv) The guidelines issued by IRC are directory but not

mandatory.

v) 9th respondent has obtained permissions/NOC on

25.01.2021.

vi) With the said contentions, 9th respondent sought to dismiss

the present writ petition.

6. SUBMISSIONS OF 8TH RESONDENT:-

i) He has obtained permission for setting up of rural petroleum

retail outlet at location site in Sy.No.201, situated at Mogaligidda

Village, Farooqnagar Mandal, Ranga Reddy District on Pargi-

Shadnagar road, under the reserved category of Scheduled Tribe by

3rd respondent vide letter of intent dated 12.04.2019.

ii) The competent authority - cum - Revenue Divisional Officer,

Mahaboob Nagar Division has issued orders for conversion of the land

to an extent of Ac.0.20guntas in Sy.No.201 situated at Mogaligidda

Village, Farooqnagar Mandal, Mahabubnagar District and he has

obtained all necessary permissions/NOC in accordance with law

basing on the reports received and also after conducting necessary

enquiry and by following the procedure laid down under law.

KL,J WP_5059_2021

iii) 5th respondent has also issued NOC dated 30.09.2020 in his

favour under Rule 144 of Petroleum Rules, 2002 and there is no

irregularity or illegality in issuing the same.

iv) The guidelines of IRC are directory but not mandatory and

moreover, the proposed fuel station is not on any National Highway.

Therefore, IRC guidelines are not applicable.

v) The Assistant Executive Engineer (R&B) Section, Shadnagar,

Roads and Building Department, Government of Telangana vide letter

dated 01.07.2020 submitted that the right of way of Shadnagar-Parigi

Road from KM 0/0 to 24/00 is Shadnagar Sub Division, a major

district road and it is 50 feet from centre of road. Thus, the said IRC

guidelines are not applicable.

vi) In support of his submissions, he has also placed reliance

on the principle laid down by the Hon'ble Apex Court in Chief

Commercial Manager, South Central Railways, Secunderabad Vs.

G.Rathnam1.

vii) With the said submissions, 8th respondent sought to

dismiss the present writ petition.

7. ANALYSIS AND FINDINGS OF THE COURT:-

i) The above stated rival submissions would reveal that the

grievance of the petitioner herein is that 8th and 9th respondents are

setting up fuel stations/retail outlets in violation of the IRC guidelines

and without maintaining certain distance etc. The authorities

concerned including 4th and 5th respondents have issued

permissions/NOC in favour of 8th and 9th respondents. Therefore, the

petitioner herein has submitted specific representations dated

. (2007) 8 SCC 212 KL,J WP_5059_2021

31.01.2020, 18.09.2020 and 07.09.2020 to respondent Nos.4 to 7

with a specific request to stop illegal and unauthorized construction

of petrol bunks by the 8th and 9th respondents in Sy.Nos.200 and 201

of Mogiligidda village. Despite receiving and acknowledging said

representations, the respondent Nos.4 to 7 did not stop the said

illegal constructions.

ii) The petitioner herein in the above said representations and

also in the writ affidavit specifically contended that the minimum

distance between two fuel stations of undivided carriage way as per

IRC 12-2009 guidelines, at point No.4.6.1 of 4.6 shall be as follows:-

"a) (4.6.1) Plain and rolling terrain in non-urban(rural) areas:-

i) Undivided carriageway (for both sides of carriageway)-300 m (including deceleration and acceleration lanes)

ii) Divided carriageway(with no gap in median at this location and sketch)-1000m(including deceleration and acceleration lanes)"

Similar guidelines were issued vide memo No.25/Petroleum/Y-1/

DCP-TR/Cyb/2015, dated 28.01.2016. It is also further contended by

the petitioner herein that the guidelines for access, location and lay

out of road side fuel stations and service stations were framed by the

IRC governing consideration for setting up fuel stations is to ensure

free flow of traffic on the road along with fuel stations, minimum

interference by the vehicles using the facilities and to ensure safety of

the vehicles on the road. As per guideline 4.5.1, non-urban(rural)

stretch and intersection with rural roads/approach roads to private

and public properties at a distance of 300 meters and guideline No.2

enunciates that 300 meters minimum distance between two fuel

stations would be on plain and rolling terrain in non-urban (rural)

areas of carriage way.

KL,J WP_5059_2021

iii) By referring the same, learned counsel for the petitioner

would submit that respondent Nos.8 and 9 are setting up of their

retail outlet in violation of the said guidelines and official respondents

have issued permissions/NOCs, without conducting proper enquiry

and in violation of the said guidelines to 8th and 9th respondents.

Despite specific representations submitted by the petitioner

reiterating the above said facts, respondent Nos.4 to 7 have not

initiated any action for stopping the illegal and unauthorized

construction of retail outlets by the respondent Nos.8 and 9.

iv) In view of the same, it is relevant to refer the counter filed

by 2nd respondent. According to the 2nd respondent, they have granted

permission to 9th respondent for setting up of KSK retail outlet in the

year 2012 itself and the said permission was under challenge and

therefore after conducting internal enquiry, 2nd respondent has issued

letter of intent dated 24.08.2020 in favour of 9th respondent.

According to 2nd respondent, 9th respondent has obtained all

necessary permissions/NOC from the concerned authorizes and

thereafter only he is setting up the said petroleum outlet in Sy.No.200

of Mogiligidda village. According to 2nd respondent, guidelines issued

by IRC are directory but not mandatory.

v) The petitioner herein has filed show cause notice dated

22.06.2021 issued by 5th respondent wherein 5th respondent has

categorically stated that on receipt of complaint from the petitioner

herein, an enquiry was made and site was also inspected on

26.03.2021 by 6th respondent wherein it was noticed that 9th

respondent has started construction of outlet by changing the site

which is earlier not shown at the time of site inspection and by KL,J WP_5059_2021

omitting the earlier shown site installed the outlet at another place

existing at a distance of 80 meters only to Essar Petrol bunk of

Mogiligidda and thus, violated the norms and also misguided and

cheated enquiry authorities. Therefore, 5th respondent sought

explanation from the petitioner herein.

vi) Accordingly, the petitioner herein has submitted explanation

dated 30.06.2021 reiterating that he never violated any clauses of

NOC and he has not changed location. He has never acted contrary to

the norms of NOC. He has also enclosed certain documents along

with the explanation with a request to withdraw the show cause

notice and drop further proceedings. 9th respondent has also

requested 5th respondent to conduct joint inspection to know the

veracity of allegation and till such time he has requested not to take

any coercive steps.

vii) The above stated facts would reveal that the 2nd respondent

has issued letter of intent in favour of 9th respondent herein basing on

the NOC issued by the 5th respondent. Now on receipt of the above

representations from the petitioners herein, 5th respondent has

directed 6th respondent to conduct site inspection and submit report.

Accordingly, 6th respondent has conducted site inspection and

submitted report and as per the report, 9th respondent is making

construction changing site location which was submitted by him

earlier. Thus, there is violation of terms and conditions of NOC.

Therefore, 5th respondent has issued show cause notice, dated

26.06.2021 seeking explanation from the 9th respondent herein and

accordingly, 9th respondent has already submitted his explanation

dated 30.06.2021 and further proceedings are pending. In the said KL,J WP_5059_2021

explanation, 9th respondent alleged that 6th respondent conducted

inspection behind his back and in collusion with the petitioner herein

and therefore, he sought joint inspection. Thus, respondents have

already acted upon the representations, dated 31.01.2020,

18.09.2020 and 07.09.2020 submitted by the petitioner.

viii) The above stated facts would reveal that there are the

following several factual aspects to be investigated into:

a) Whether the respondent Nos.8 and 9 have obtained

necessary permissions/NOC from 2nd and 3rd respondents; and

b) Whether the outlets proposed/alleged to be set up by 8th and

9th respondents are within the specified distance or not?

The aforesaid factual aspects are to be considered by the respondent

authorities. According to 9th respondent, 6th respondent has not

conducted inspection by giving opportunity to him by putting him on

notice and thus, he seeks to conduct joint inspection. It is for the

respondent authorities to consider the same, otherwise, it is for the

petitioner to take steps in accordance with law. Thus, the concerned

authorities have already acted upon the representations impugned

herein submitted by the petitioner herein.

ix) However, it is relevant to note that the guidelines relied

upon by the petitioner herein are only directory but not mandatory.

The Hon'ble Apex Court has also upheld the said principle in the

above referred judgment.

8. CONCLUSION:

In view of the above discussion and facts and circumstances of

the case, more particularly considering the fact that the official

respondents have already acted upon representations submitted by KL,J WP_5059_2021

the petitioner herein, this Writ Petition is disposed of directing the

respondent Nos.2 to 7 to take further steps in accordance with law by

putting the petitioner and respondent Nos.8 and 9 on notice, as

expeditiously as possible, in consideration of the representations,

dated 30.01.2020, 18.09.2020 and 07.09.2020.

As a sequel, miscellaneous Petitions, if any, pending, in the writ

petition shall also stand closed.

__________________ K. LAKSHMAN, J Date:31.08.2021 Vvr/Mgr