Azad Fuel Centre vs State of Punjab

V.K. Bali, J.

It is unfortunate that a freedom fighter, almost at the fag end of this life, had to come to this Court complaining about highhandedness of the respondents in the matter of petrol pump, allotted to him under the reserved category of Freedom Fighters through present petition filed by him, as a proprietor of M/s Azad Fuel Centre, under Article 226 of the Constitution of India, he seeks writ in the nature of mandamus directing respondents 1 to 6 to permit him to run the retail outlet allotted to him by respondent No. 2 at Cemetery Road, Civil Lines, Ludhiana which has been commissioned after obtaining sanctions from all the authorities concerned including, No objection Certificate from the Deputy Commissioner, Ludhiana. In wake of the facts and circumstances of this case, petitioner further prays for a writ in the nature of mandamus directing respondent No. 2 to release the equipments, namely, 2 numbers 20 kilolitre tanks, petrol discharging machine and other equipments which have been confiscated by the said respondent in a totally illegal and arbitrary manner. The reliefs, as set out above, stem from the facts which need a necessary mention.

As mentioned above, petitioner is a Freedom Fighter having struggled against the British Government in the nineteen thirties and nineteen forties. Respondent No. 7 issued an advertisement for the allotment of petrol pump in Ludhiana in the category of Freedom Fighter. On July 7, 1993 petitioner submitted an application for being considered for the allotment of petrol pump site. On November 8, 1993 Shri Anant Ram, proprietor of the petitioner was called by the Oil Selection Board, Punjab, at Ludhiana, for interview. After the interview and completing all the formalities, Anant Ram was issued letter of intent. He requested respondent No. 7 that he should also be allotted land to run the petrol pump as he was unable to purchase the land due to paucity of funds. Respondent No. 7 sent a letter to the State of Punjab requesting them to allot a suitable land so that they could start a petrol pump for freedom fighter. After looking into the matter, State of Punjab allotted land to respondent No. 7 measuring 333.33 sq. yards which belongs to the provincial Government of Punjab @ Rs. 1000 per sq. yard. On February 13, 1998, respondent No. 7 made required payment and the land measuring 333.33 sq. yards was registered in the name of said respondent, vide Annexure P4 and on March 11, 1998 possession of the land was delivered to respondent No. 7 for setting up of the petrol pump. The Deputy Commissioner, Ludhiana, sent request for the grant of No Objection Certificate to the various authorities such as District Magistrate, Fire Office of Municipal Corporation, Ludhiana, District Town Planner, Municipal Corporation, Ludhiana, Sub Divisional Magistrate, District Food and Supplies Controller and Senior Superintendent of Police. All the authorities mentioned above gave their approval for setting up the petrol pump as per Annexures P6 to P11. A map showing the site lay out and also the detailed building lay out which was duly approved by the Municipal Corporation, was also sent to the Deputy Commissioner. On March 6, 1998 the Joint Chief Explosive Controller, North, Faridabad, issued a licence for the petroleum service station in Ludhiana District. On March 11, 1998, keeping in view the No Objection given by all the authorities, the Deputy Commissioner, Ludhiana, also issued No Objection Certificate for setting up a retail outlet to the market petrol only to two wheelers. Company also sent two numbers 20 kilolitre petrol storage tanks to be installed at the site and also petrol discharging machine. On March 21, 1998 after borrowing money, the petitioner purchased 12000 litres of petrol and the same reached at the spot. On March 22, 1998 the petrol pump started functioning. To the misfortune of the petitioner, on the same very day, i.e., March 22, 1998 a large force of Municipal Corporation, Ludhiana, arrived at the petrol pump site in trucks under the supervision of respondents 3 and 4 and without any warning and without asking for any document, dismantled the petrol pump. Proprietor of the petitioner then met the Senior Superintendent of Police, Ludhiana to register an FIR but he declined to do the same. It is in wake of these facts and circumstances that the present petition has been filed for the reliefs, as referred to above.

On the averments, as have been referred to above, notice was issued to the respondents on March 26, 1998. On April 1, 1998, when the matter came up before a Division Bench consisting of J.L. Gupta and N.C. Khichi, JJ., respondents 1 to 6 were directed to ensure that statusquo regarding the property as existing today is maintained. The matter was ultimately admitted on April 30, 1998 to DB and it was ordered to be listed along with CWP No. 5419 of 1998 at No. 1. It may be mentioned here at this stage, that insofar as CWP No. 5419 of 1998 is concerned, the same has been filed by Radhe Sham Gupta and others, which, as per the counsel representing the petitioners aforesaid, is by way of public interest litigation so as not to establish a petrol pump in a thickly populated residential area. By this order, therefore, we propose to decide both the writ petitions, i.e. CWP Nos. 4369 and 5419 of 1998. Not only that these petitions have been ordered to be listed together, learned counsel for the parties also suggest that as common questions of law and fact are involved in both the petitions, the same should be disposed of by common order.

Separate written statements on behalf of respondents 1 and 6, 2, 3, 4, 5 and 7 have been filed. Insofar as written statement filed on behalf of respondent No. 7 is concerned, it supports the cause of the petitioner. It has further been mentioned in the written statement filed on behalf of said respondent that on March 22, 1998 the officers of respondent No. 7 were also man handled at the site of the petrol pump and had to flee from there. The said officers then approached the SSP, Ludhiana along with a written complaint requesting for lodging of an FIR and provision of security but no heed was paid to the complaint dated March 22, 1998. Respondents 1 and 6, i.e., the State of Punjab and Deputy Commissioner, Ludhiana, in their separate written statement, have pleaded that No Objection Certificate for installation of the petrol pump was issued by respondent No. 6 after following the due procedure. It has further been averred that allotment of a piece of land 60 x 50 feet, measuring 333.33 sq. yards, a provincial Government land, was approved by the Department of Revenue, Government of Punjab, vide its memo dated 30.12.1997 and endorsement dated January 13, 1998 under the Punjab Government Instructions issued vide letter dated February 20, 1984 whereby procedure for disposal of provincial government land has been given. By and large, other averments made by the petitioner with regard to grant of various certificates etc. and permission to instal the petrol pump have also been admitted. With regard to the incident that took place on March 22, 1998, it has been pleaded that moment respondent No. 6 came to know about the law and order problem at the site, Additional District Magistrate was asked to reach at the spot and ensure law and order. On reaching the spot, the Additional District Magistrate explained to the protesters the approval granted by the various authorities. The Additional District Magistrate further explained that in view of the hazardous nature of petroleum products, to avoid any mishap, the installations should not be touched by any one in the absence of Bharat Petroleum Corporation officials. But the protesters gheraoed the Additional District Magistrate and he became helpless. The Additional District Magistrate somehow managed to come out and submitted a spot report to respondent No. 6 which was forwarded to the State Government immediately for appropriate action. It is further pleaded that on the evening of March 22, 1998 at about 7 PM, respondent No. 6 received a letter from respondent No. 2 for giving expost facto sanction to the use of police force. The normal procedure for grant of police help to any Govt. or Semi Govt. organisation is that the concerned department/organisation applies to respondent No. 6 and then after scrutiny by the said respondent, an order is issued according to the concerned Senior Superintendent of Police, to provide police help.

Since there was no provision or precedent for expost facto sanction to grant police help, no action was warranted on that letter. However, this request was also enclosed in the report to the Government. It has further been mentioned that respondent No. 6 acted strictly as per law and rules and procedure laid down by the Government and he, in no manner, hindered running of petrol pump at any time. A perusal of written statement filed on behalf of respondents 1 and 6 also does not show any contest to the cause of the petitioner. The real contest comes from respondents 2, 3 and 4, who filed their separate but identical written statements. By way of preliminary objections, respondents 2 and 3 plead that disputed questions of fact are involved in this petition which cannot be gone into in writ jurisdiction under Article 226 of the Constitution of India. It has been denied that the mob of people which came to the site was led by Balkar Singh Brar, Town Planner, Municipal Corporation, Ludhiana. It is also denied that Balkar Singh Brar, respondent No. 4, told the municipal employees to uproot the dispensing unit and also the underground tanks. It has also been denied that any destruction which is alleged to have taken place on March 22, 1998, was authorised by or done with the knowledge and permission of respondent No. 3. The allegations of the petitioner that the petrol pump was dismantled by respondent No. 2 or its employees has also been denied. It is then pleaded that the factual position is that on the morning of 22nd March, 1998 frantic telephone calls from the residents of Ludhiana were received in the office of the Municipal Corporation, Ludhiana reporting that the said petrol pump had come up over night in a residential area situated at Cemetery Road, near Fountain Chowk, Ludhiana. A call was also received from Shri Sat Pal Gosain, Local MLA of Ludhiana City and other leading citizens of the city who threatened to stage a dharna against the setting up of a petrol pump if no action is taken by the Municipal Corporation, Ludhiana and the District Administration. Seeing that the situation was highly volatile a senior official of the Municipal Corporation, Ludhiana Shri Balkar Singh Brar, Town Planner, was directed to visit the site and take stock of the situation. Respondent No. 4 reached the spot without any loss of time. Respondent No. 4, on receiving the complaint of the public, had earlier deputed Shri Krishan Uppal, Building Superintendent to visit the site. When Shri Uppal reached the site for making enquiries, he was manhandled by the people manning the petrol pump. When respondent No. 4 reached the site without any loss of time, an angry and violent mob had already uprooted and dismantled the petrol pump. On taking stock of the situation, respondent No. 4, who was completely gheraoed by the mob which had already uprooted the petrol pump, sent a handwritten note to respondent No. 3, namely, Shri I.S. Sidhu, Municipal Commissioner, Ludhiana explaining the situation at the site. Respondent No. 4, seeing that the situation was extremely sensitive and finding himself helpless and aware of fact that a little mischief by anyone would cause a great amount of loss to the life and property in surrounding residential area, since highly inflammable petrol products were lying strewn on the ground, thought it proper to inform the Fire Brigade over the telephone and also requested respondent No. 3 for immediate police help from the District Administration. On receiving the alarming message from respondent No. 4, respondent No. 3 tried his best to immediately contact the District Administration in order to get police help. The District Magistrate could not, however, be contacted as he was reported to be not available. Therefore, in order to prevent any untoward incident and unnecessary loss of life and property, the SSP, Ludhiana, was requested to depute sufficient police force to prevent the already sensitive situation from deteriorating any further. A contingent of the police force reached the spot and thereafter the Additional Deputy CommissionercumAdditional District Magistrate also reached the spot and tried to pacify and agitated mob but the mob was so agitated that the Additional District Magistrate also left the spot after failing to persuade them to calm down. Thus, respondent No. 4

was left alone at the spot. Since respondent No. 4 had already called the Fire Brigade, as such a Fire Brigade led by the Assistant Divisional Fire Officer reached the spot. The tanks containing the petrol had already been placed in a pit and covered with loose sand by the people running the pump. The mob succeeded in exposing these tanks and started damaging them. The covers of these tanks were broken and their pipes were also without covers. The petrol was spilled on the ground. Finding that the petrol was spilled all over the ground at the site, which is surrounded by a densely populated residential area, the Additional Divisional Fire Officer suggested respondent No. 4 that any mischief in that situation could lead to huge loss to life and property and a quick decision was required to be taken to deal with the highly inflammable petrol spilled all over and stored therein. In such a situation, respondent No. 4 and the said Fire Officer decided to shift the fuel which was lying in the containers to a safer place. Thereafter, the remaining left over fuel in the tanks was evacuated and shifted to a safer place away from the inhabitated area. It is further pleaded that the left over fuel in the tank was evacuated and shifted to a safer place under compulsion keeping in view the safety of the life and property of the public. It is further pleaded that respondent No. 3 had nothing to do with the dismantling or destruction of the petrol pump. These respondents deny that the petitioner had all the sanctions and approval as required under the law from all the authorities concerned to run a petrol pump. Petitioner was granted a provisional No Objection Certificate by the District Magistrate, Ludhiana, wherein it was specifically directed that the petitioner would instal fire fighting equipment at the site and should get them inspected from the concerned fire authorities before commissioning the said petrol pump. However, the petitioner never installed any such equipment at the site and there was no occasion to get the same inspected from the concerned. It is further the case of the respondents that since the site in question falls within the municipal limits, Ludhiana, it was mandatory for the petitioners to get building plans sanctioned under Section 262 of the Punjab Municipal Corporation Act which was not done by the petitioner. Furthermore, since the site in question falls within a residential area, a formal certificate for change of land use was also required to be obtained from the Government as per the policy guidelines issued by the State Government before setting up the said pump. 5. We have heard learned counsel for the parties and with their assistance, gone through the records of the case carefully. Before we might proceed any further in the matter, we would like to mention that arguments in this case were earlier heard on July 30, 1998. Inasmuch as the cause of the petitioner was also being opposed on the ground that the site, where the petrol pump has been established, would jeopardise the safety of the people, residing in the close vicinity of the petrol pump, we had directed the Joint Chief Controller of Explosives, Government of India, to go to the site as early as possible and inspect the same and give his report regarding the safety of the people and as to whether the petrol pump, if established on the site in the light of the norms laid down for setting up the same, would be hazardous to the people residing in the area. The office was also directed to send site plan along with a copy of the said order to the said Controller. The Controller aforesaid was also authorised to take any help from the local administration in identifying the spot or for any purpose that he may consider necessary. The said Controller has submitted his report dated August 25, 1998 which reads as under :

"I have visited the site of petrol pump for refuelling of 2/3 wheelers, Cemetery Road, Ludhiana at 10.00 hours of 23.8.1998. On inspection of the site I am of the opinion that there will be no risk to the safety of the public or property whatsoever, if the petrol pump is installed at the site (as per site plan attached duly endorsed by me) as the site is ideally situated as far as the settled norms for establishing the petrol pumps including the safety distances of this department are concerned please."

In view of the report submitted by the Deputy Chief Controller of Explosives, the basic objections detailed in the written statement on behalf of the contesting respondents as also submissions made by Mr. Kanwaljit Singh, Advocate, counsel representing the petitioners in CWP 5419 of 1998 have been completely knocked out. In view of the report, referred to above, nothing at all could be urged on behalf of the contesting respondents that setting up of a petrol pump to freed petrol to two/three wheelers would in any way be hazardous to the people of the locality. Nothing at all could be shown to us by the learned counsel representing the respondents that a petrol pump could not be set up in a residential area. If the norms of setting up a petrol pump inclusive of safety steps required have been taken, the mere fact that petrol pump has been established in a residential area, cannot come in the way of the petitioner in running the petrol pump at a site allotted for the purpose.

Mr. Sarin, learned counsel for respondents 2 to 4, however, still contends that the petitioner does not, for the time being, have a provision of fire fighting equipment and the building plan is not in consonance with the requirements of a petrol pump and that no permission has been granted to the petitioner for change of land use. Insofar as fire fighting equipment is concerned, Mr. Patwalia, learned counsel for the petitioner states that the same shall be installed in the petrol pump and the petrol pump shall not start running till such time a provision is made to have fire fighting equipment at the site. Insofar as building plan is concerned, it is the case of the petitioner that the Superintending Engineer of the Municipal Corporation, Ludhiana has given approval for the grant of No Objection Certificate to the Deputy Commissioner, Ludhiana. It was mentioned that there was no other petrol pump near the site and the site was vacant and hence the Municipal Corporation had no objection for setting up the petrol pump at the site. A copy of the letter conveying what has been said above, dated February 27, 1998 has been annexed as Annexure P11. Along with this letter a map showing the site lay out as also the detailed building lay out which was duly approved by the Municipal Corporation, was also sent to the Deputy Commissioner. The Executive Engineer had duly signed the map which would make it clear that the Municipal Corporation, Ludhiana, had duly approved for the grant of No Objection Certificate for setting up the petrol pump at the site. A photo copy of the map containing the signatures of the Executive Engineer Municipal Corporation, Ludhiana, as also Additional Deputy Commissioner, Ludhiana, approving the building plan has been attached as Annexure P12 with the petition. It is, thus, the positive case of the petitioner that at no stage the Municipal Corporation, Ludhiana had any objection and had there been any objection, the same would have been detailed in the letter vide which approval was given to the Deputy Commissioner for the grant of No Objection Certificate. In reply to the averments, referred to above, respondents have averred that the site plan submitted by the petitioner was only for the purpose of seeking the clearance of that particular site and was not for the purpose of obtaining the sanction of building plan. On the date when the District Magistrate forwarded the site plan to the Executive Engineer for the grant of No Objection Certificate, respondent No. 7 was not even the owner of the site in question. The petitioner did not even comply with the directions given by the District Magistrate while according a provisional NOC to the petitioner as he did not install the required fire fighting equipments at the site before the installation of the pump.

There is hardly any reply to the averments made in the petition regarding sanction of the site plan and building lay out, Annexure P12, annexed with the petition which clearly shows that the Executive Engineer, Municipal Corporation had signed it after mentioning the word "approved". In view of the averments made in the pleadings of the parties and the accompanying documents inclusive of plan, Annexure P12, the contention of Mr. Sarin that the building plan was not approved as per the norms for setting up a petrol pump is repelled.

Coming now to the only remaining objection with regard to change of land use, the respondents themselves plead that a formal permission was required for the change of land use. That apart, it is established on records that respondent No. 7 had applied to the provincial Government to allot the land for establishing a petrol pump. The provincial Government had sold the land to the Corporation as has been mentioned while narrating the facts of the case in the earlier part of the judgment. Once the Government had sold the piece of land to the respondent Corporation and that too for setting up a petrol pump, it necessarily means that the Government had no objection if the petrol pump was to start functioning at a place which happens to be in the residential area. In this view of the matter, a formal permission for change of land use, if required, the same shall be now given by the Municipal Corporation to the petitioner.

From the resume of the facts, as have been detailed above, the Court is of the view that the Deputy Commissioner, Ludhiana, on the request made by the petitioner and respondent No. 7 had sent the same to the various authorities, such as, District Magistrate, Fire Officer of the Municipal Corporation, Ludhiana, District Town Planner, Municipal Corporation, Ludhiana, Sub Divisional Magistrate, District Food and Supplies Controller and Senior Superintendent of Police, Ludhiana for grant of No Objection Certificate and all the authorities mentioned above had given their approval for setting up a petrol pump. A map showing the lay out and also detailed building lay out was duly approved by the Municipal Corporation and was sent to the Deputy Commissioner. On March 16, 1998 the Joint Chief Explosive Controller, North, Faridabad issued a licence for the petroleum service station in Ludhiana District that the petrol pump was set up in accordance with law. We have ourselves verified by sending the Deputy Chief Controller of Explosives, Government of India, at the site that in case of setting up of a petrol pump at the site allotted for the purpose, there shall be no risk involved to the life and property of people. The report of the said Controller has been reproduced above.

In view of what has been said above, we direct respondents 1 to 6 to permit the petitioner to run his petrol pump at Cemetery Road, Civil Lines, Ludhiana which has been commissioned after obtaining sanctions from all the concerned authorities. Insofar as second prayer of the petitioner regarding issuing a direction to the respondents to release the equipments, namely, two number 20 kilolitre tanks, petrol discharging machine and other equipments as also petrol said to have been confiscated by respondent No. 2, is concerned, we are of the view that in the facts and circumstances of this case, no direction can be issued to the respondents to return the petrol to the petitioner but for the quantity of said petrol that might still be lying in store with the respondent Corporation as also other equipments. While giving the stand taken by the respondent Corporation it has already been mentioned that some petrol could be saved and the rest has been destroyed by the mob. The situation that developed at the spot on account of the mob was such that despite the best efforts made by the administration, nothing could be done. This Court is of the opinion that more often than not, it becomes extremely difficult, if not impossible, to control the vol atile mob. In a mob no individual, howsoever rational he may be, is guided by logic. He is often guided by sentiments and it is generally seen that an individual when part of a mob, would shudder in isolation to do what he has done, while being a part of the mob. The most difficult situation to be tackled for the administration is a mob particularly when the same is volatile. It is very hard to resort to coercive methods, like firing etc. to dispel the mob as the same is likely to cause incalculable harm to a gathering which has become mob. The firing, thus, would result into killing of some citizens who may be otherwise good and noble citizens. Persuading the mob to see reason and not to resort to coercive ways in our view, is the only remedy that the administration is left with. In these circumstances, we do not wish to burden the administration in compensating the petitioner and he has, therefore, to take it as his fate. However, that does not mean that the administration would not take any steps to prevent such as event to reoccur. We, therefore, direct the local Administration through Deputy Commissioner and Senior Superintendent of Police, Ludhiana to post police force commensurate to the need of petitioner for at least six months and then to periodically inspect the site till such time the administration is of the view that such an event will not be repeated. Disposed of Accordingly.

CWP No. 5419 of 1998 is dismissed.