M/S Isnapur Filling Station vs Union Of India
2022 Latest Caselaw 5081 Tel

                THE HON'BLE SRI JUSTICE K. LAKSHMAN


                       WRIT PETITION No. 8518 of 2019


ORDER:

Heard Sri D. Narendar Naik, learned counsel for the petitioner, Sri. P.

Chakravarthy, learned counsel representing Sri O. Manoher Reddy, learned

counsel for the 3rd respondent, Sri Thoom Srinivas, learned counsel for 2nd

respondent, Sri B. Jethender, learned standing counsel for respondent No. 1 and Sri

Komatireddy Vekat Narsimha Reddy, learned counsel for the 4th respondent.

2. This writ petition is filed seeking to declare the action of the respondent no.

3 in allotting new Petrol Pump/Retail Outlet in favor of the 4th respondent herein in

a land admeasuring Ac.22 Guntas situated in Sy.No.449 of Muthangi Village,

Patancheru Mandal, Sangareddy District, is in violation of Distance Norms

prescribed by the Ministry of Road Transport & Highways vide letter No. RW/NH-

33023/19/99 DO-III dated 24.07.2013 and in particular under the Chapter of

"Location, Layout and Access to Fuel Stations along National Highways" as being

illegal, arbitrary and unjust and consequently, direct the respondents not to strictly

adhere to the Guidelines issued by the Ministry of Road Transport & Highways

dated 24.07.2013.

FACTS OF THE CASE:-

3. The petitioner was allotted Petrol Pump/Retail outlet by 2nd respondent i.e.,

M/s Hindustan Petroleum Corporation Limited (herein after referred to as HPCL)

in the year 2001. In furtherance of the said allotment, petitioner has established a

Petrol Pump/Retail outlet in land situated in Survey No. 446,447,448 of Muthangi

Village, Patancheru Mandal, Sangareddy District. The said outlet is abutting the

National Highway No. 65 leading from Patancheru to Nagpur. The petitioner had

entered into a distribution agreement dated 24.10.2001 with the 2nd respondent

wherein the petitioner was permitted to carry on the business of selling petroleum

products. There is no service road much less a road to accelerate or decelerate from

National Highway and due to continuous movement of heavy vehicles the

petitioners are facing traffic conjunctions.

4. The 3rd respondent i.e., Bharat Petroleum Corporation Limited had issued

advertisement dated 14.12.2018 calling upon the applications for appointment of

retail outlet dealers at various places in the Telangana State including Muthangi

Village, Patancheru Mandal, Sangareddy. After following the due procedure, the

3rd respondent has allotted Petrol Pump/Retail Outlet in favor of the 4th respondent

in land admeasuring 22 Guntas in Survey No. 449 Muthangi Village, Patancheru

Mandal, Sangareddy District. It is being established in a land adjacent to the

existing Petrol Pump of the petitioner and such allotment was made in gross

violation of distance norms as prescribed by the Ministry of Road Transport &

Highways vide proceedings dated 24.07.2013. The said Guideline prescribed a

minimum distance of 1000 meters to be maintained between one Petrol Pump and

another Petrol Pump coming up on the National Highways. The Guidelines also

prescribes that in case of necessity, a Petrol Pump can be established within a

distance of 300 meters to the existing Petrol Pump only in case of Service Road

exits with Accelerate and Decelerate facility to approach the Highway. If there is

any intervention Intersection Roads leading to Villages and other areas, no Retail

Outlet/Petrol Pump is to be permitted to set up within a distance of 1000 meters

i.e., 1 Km distance to be maintained. There are two Intersection Roads and one

Main Junction Road leading to Muthangi Village located within 0.07 Kms

distance. Thus permitting the 4th respondent to set up the Retail Outlet in the

subject land is in violation of the said Guidelines issued by the Indian Road

Congress (IRC).

5. Both respondents Nos. 3 & 4 have filed counters contending that the present

writ petition filed by petitioner, a rival trader is not maintainable. The aforesaid

Guidelines are not having the statutory force and therefore, the writ petition is not

maintainable. Guidelines No. 4.6.3 and 4.6.4 only obligates that a new entrant

would be responsible for construction and maintenance of common service road.

There is nothing in the Guidelines which restrict the establishment of Retail Outlet

within a distance of 300 meters or 1000 meters. The said Guidelines do not

prohibit and on the other hand only speak of providing access. Even then the

petitioner herein has filed writ petition and obtained interim order.

6. Facts of the cases in the judgments relied upon by the petitioner are different

to the facts of the present case. Vide letter dated 26.11.2009, 1st respondent has

made it clear that there is no restriction from the Ministry on opening of new Retail

Outlet at any location subject to location found to be economically viable for

setting up Retail Outlet and subject to obtaining necessary permission/No

Objection Certificate from the statutory authority. Power to grant NOC for Petrol

Pump Retail Outlet is vested with the District Collector by the Petroleum Act and

Rules and IRC Guidelines cannot override the same. Only letter of intent was

given by 3rd respondent in favour of 4th respondent. Concerned revenue authorities

have not even taken any decision to grant NOC to the 4th respondent. Therefore,

the present writ petition is a premature writ petition and it is liable to be dismissed.

7. To decide the lis involved in the present writ petition clause no. 4.6.3 and

4.6.4 of the aforesaid Guidelines/Norms issued by Ministry of Road Transport and

Highways dated 24.07.2013 for access permission to fuel stations, private

properties, rest area complexes and such other facilities that along with National

Highways is relevant and the same are reproduced hereunder:-

4.6.3. 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 7.0m 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 is 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 1000m. Any objection from the existing fuel station owner against granting of access permission 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.

4.6.4. For installation of new fuel station within the 1000 m distance of existing fuel station in plain/rolling terrain and 300 m in hilly/mountainous terrain and urban stretch, new entrant would be responsible for construction and maintenance of the common service road, deceleration and acceleration lanes, drainage and traffic control devices. Wherever, available ROW is inadequate to accommodate such service roads, deceleration / acceleration lanes, etc., the additional land by the side of ROW to accommodate such service roads shall also be acquired by the new entrant Oil

Company. In case of hilly / mountainous terrain, common service roads at all such locations may not be possible as per the site conditions and, therefore, common access through service roads would not be a pre-condition.

8. The aforesaid Guidelines would reveal that the same only obligates that a

new entrant would be responsible for construction and maintenance of common

service roads. There is nothing in the Guideline which restricts the establishment of

Retail Outlet within a distance of 300 meters or 1000 meters. The said Guidelines

do not prohibit and on the other hand only speak of providing access. Therefore,

the contentions of the petitioner that a minimum distance of 1000 meters is to be

maintained between one Petrol Pump and another and that Petrol Pump can be

established within a distance of 300 meters to the existing Petrol Pump only in case

of service road is untenable.

9. As stated above, as per the aforesaid Guidelines, the only obligation is that

second outlet owner constructs and maintain service roads and Guidelines

specifically prohibit objection for setting up of second outlet by existing retail

outlet dealers.

10. It is also relevant to note that vide letter dated 26.11.2009, issued by 1st

respondent, made it clear that there is no restriction from the Ministry on opening

of new Retail Outlet at any location subject to the location being found to be

economically viable for setting up Retail Outlet and subject to obtain necessary

permission/NOC from the statutory body. The decision of opening Retail Outlet

after carrying out necessary inquiry, investigation into the economic viability of

retail outlet is the policy decisions and business to business plan of the oil

companies. In view of the same this Court directed the learned counsel appearing

for 3rd respondent to get specific instructions with regard to site verification if any

conducted before notifying the subject outlet. On instructions learned counsel

appearing for 3rd respondent had submitted that the survey was conducted by sales

officer/ field officer and senior manager of 3rd respondent before notifying the

subject Retail Outlet.

11. It is also relevant to note that the 3rd respondent has allotted the Retail Outlet

in favour of the 4th respondent. An agreement dated 08.01.2019 was entered

between the 3rd and 4th respondent. However the power to grant NOC for

Petroleum Retail Outlet is vested to the District Collector by virtue of the

provisions laid down under the Petroleum Act and Rules. As discussed supra, the

3rd respondent has issued a letter of intent to 4th respondent. The revenue

authorities concerned have not even taken any decision for issuance of NOC in

favor of 4th respondent. Revenue authorities will issue NOC on an application

made by 4th respondent after calling for objections and remarks from all the

authorities. That stage has not come. As discussed supra, only letter of intent was

issued in favor of the 4th respondent by the 3rd respondent.

12. The aforesaid discussion would reveal that there is no provision that the

second outlet cannot be established at any location and the aforesaid rules also

does not prohibit. The only obligation on the second outlet is that it has to

construct and maintain service road.

14. Referring to section 28 of the Control of National Highway (Land and

Traffic Act. 2002) Learned counsel for petitioner would submit that as per the said

proviso, no person shall have right to access either through any vehicle or on foot

by a group of five or more persons except permitted by the Highway

Administration either generally or specifically in the manner specified in Section

29. However, the petitioner herein has not made National Highways of India a

party to the present proceedings to answer the same and therefore in the absence of

the said party he cannot raise such grounds.

15. Therefore, according to this Court there is no irregularity in issuing letter of

intent in favor of 4th respondent by 3rd respondent to set up Petroleum Outlet in

land in survey no. 449 of Muthangi Village, Patancheru Mandal, Sangareddy

District. If at all the petitioner is having any grievance, he can as well make

objections/remarks to the concerned revenue authorities as and when called for. It

is a premature stage. Therefore, viewed from any angle this writ petition is

premature.

16. Accordingly, the writ petition is disposed of granting liberty to the petitioner

to submit objections/remarks as and when called for as an application submitted by

respondent No.4 NOC.

17. Interim Order granted earlier is vacated which is extended from time to time

and the vacate petition is allowed and all other petitions are dismissed.

As a sequel, miscellaneous petitions, if any, pending in the writ petition shall

stand closed.

_______________ K. LAKSHMAN, J

Date: 13.10.2022 AQS