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Judgment
R. Banumathi, J.—By consent of both the parties, the main Writ Petition itself is taken up for hearing and disposal.
The Petitioner has filed this Writ Petition for issuance of a Writ of Certiorari-fied Mandamus to call for the Records of the First Respondent relating to the order granting No Objection Certificate to the Third Respondent in Ref. No. R. Dis. 51947/2005 (C1) dated 28.10.2005 for installation of storage tanks of petroleum Class A and Class B in the land bearing S. No. 84/5 and 84/6A in Aloor Village, Kalkulam Taluk, Kanyakumari District and to quash the same and forbear the Second Respondent herein from granting licence to the third Respondent for installation of storage tanks of petroleum of Class A and Class B in the above said land.
The relevant facts could briefly be stated thus:
The Territory Manager, Reliance Industries Limited, Madurai has applied for the grant of No Objection Certificate (NOC) under the provisions of the Petroleum Act and Rules for installation of storage of tanks of Petroleum Class A and B in S. No. 84/5 and 84/6A of Aloor Village, Kalkulam Taluk, Kanyakumari District. The District Fire Officer and the Superintendent of Police have recommended for the issuance of "NOC". The Revenue Divisional Officer, Padmanabhapuram has reported that the proposed land is having an extent of 0.30.5 Hec in S. Nos. 84/5 and 84/6A which stands registered in the names of Kadaksham and Sarala. The proposed site is situated in Chunkankadai at Nagercoil Tirvandrum National Highways. The DRO / First Respondent has inspected the site on 01.10.2005. After satisfying about the availability of sufficient space for the incoming and outgoing vehicles, the First Respondent has granted the "No Objection Certificate" to the Third Respondent to install storage tanks with a total capacity of 1,00,000 litres (Class A with 20,000 litres and Class B with 80,000 litres) in the land measuring an extent of 0.30.5 Hec. in S. Nos. 84/5 and 84/6A of Aloor Village, Kalkulam Taluk, Kan-yakumari District.
Challenging the order of granting "NOC" to the Third Respondent, the Petitioner Association has filed the Writ Petition. The Petitioner Association is comprised of the Members, who are Dealers of Petroleum Products and also running the Petrol Bunks after getting due licence from the competent authorities. Contention of the Petitioner is that the First Respondent is not justified in granting "NOC" to the Third Respondent when there is a clear prohibition for installation of Petrol / Diesel retail outlet in the area which is less than 100 metres from the Intersection road. Another objection raised by the Petitioner Association is that the proposed land bearing S. No. 84 lies under the Agricultural Zone where the Installation of Petrol Bunk is not permissible. According to the Petitioner, the objection raised before the First Respondent was not considered and the First Respondent has granted "NOC" without proper application of mind and hence the Writ Petition.
The First Respondent has filed a Counter Affidavit contending that the dis-tance requirement is only directory and has no statutory force. Main contention of the Third Respondent is that the Members of the Petitioner Association are dealers in Petrol / Diesel products and are competitors in the field, who cannot raise any valid objection for grant of "NOC" to the Third Respondent.
Learned Counsel for the Petitioner has submitted that the requirement of minimum distance has not been complied with. It is further submitted that the proposed site is within the Agricultural zone and the Town Planning Authority had also opined that the proposed site is not fit for location of the retail outlet and the same was not properly considered by the First Respondent. It is further submitted that issuance of No Objection Certificate is in disregard of the guidelines and the same is liable to be quashed.
Placing reliance upon the decisions reported in AIR 1982 GAUHATI 36 and 2005 (1) C.T.C. 394, Learned Counsel for the Third Respondent has submitted that the Petitioner Association, whose Members are dealers in Petroleum Products and also running Petrol bunks, cannot challenge the "No Objection Certificate" issued to the Third Respondent to instal the petrol outlet. Plac-ing reliance upon the decision in W.P. No. 6535 of 1992 dated 14.11.1995, Learned Counsel for the Third Respondent has submitted that in the decision, the Court has recalled various Government Orders, which has the effect of prohibiting the conversion of agricultural lands to commercial land. It is further submitted that the distance requirement has been complied with and even if there is any shortage, the requirements are only guidelines and norms fixed by the Highways Department and it does not have any statutory force vitiating the "No Objection Certificate" issued by the First Respondent.
The point that arises for consideration is whether on the ground of breach of guidelines of the Petroleum Rules, can the Petitioners, who are competitors in the field, can challenge the "No Objection Certificate" granted to the Third Respondent invoking Article 226 of the Constitution of India?
Rule 141 of the Petroleum Rules 2002 states that Licences may be granted by the licensing authorities set forth in the First Schedule in the forms specified for the purpose and on payment of a fee specified therein. The Application for Grant of Licence to transport Petroleum shall be in Form VIII. Rule 144 of the Petroleum Rules 2002 deals with No Objection Certificate which reads as follows:
(1) Where the licensing authority is the Chief Controller or the Controller, as the case may be, an applicant for a new licence other than a licence in Forms III, XI, XVII, XVIII or XIX shall apply to the District Authority with two copies of the site plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection, to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the Applicant who shall forward it to the licensing authority with his application Form IX.
(2) Every certificate issued by the District Authority under Sub-rule (1) shall be accompanies by a copy of the Plan of the proposed site duly endorsed by him under his official seal.
(3) The Chief Controller or the Controller, as the case may be, may refer an application not accompanied by certificate granted under Sub-rule (1) to the District Authority for his observations.
(4) If the District Authority, either on a reference being made to him or otherwise, intimates, to the Chief Controller or the Controller, as the case may be, that any licence which has been applied for should not, in his opinion, be granted, such licence shall not be issued without the sanction of the Central Government.
The District Fire Officer and the Superintendent of Police, Nagercoil have recommended for the issuance of "NOC" for storage of Petroleum in the proposed site in S. Nos. 84/5 and 84/6-A. The RDO, Pad-manabhapuram has inspected the site and found that there is no residence situated nearby. At the time of inspection by RDO, no one has raised objection. Finding that there is sufficient space for the incoming and outgoing vehicles, the RDO has recommended for issuance of "NOC".
When the matter was placed before the First Respondent, the Petitioner Association has filed objection by raising distance point. Hence, the First Respondent has inspected the proposed site on 01.10.2005. Even when the First Respondent inspected the site, no objection was raised from the surroundings. The First Respondent has noted that Ambedhkar Colony and St. Xavier Engineering College is situated at a distance of 75 meters. Pointing out that the objection raised by the Petitioner Association is not sustainable, the First Respondent by an elaborate speaking order has passed the Impugned Order of No Objection Certificate.
It is to be noted that no one from surroundings have raised the objection. Only the Petitioner Association, whose Members are dealers in Petroleum Products and also running Petrol bunks has raised the objection on the ground of (i) distance and (ii) that the proposed site is in the Agricultural Zone. It is pertinent to note that the ob-jection is raised by the rival businessmen. Following a decision of the Supreme Court reported in Mithilesh Garg, Vs. Union of India and others etc. etc., , a Division Bench of this Court held that rival businessmen cannot file Writ Petition on the ground that establishing rival business venture in his place violates the provisions of law since there is vested right in the Petitioner. In the decision reported in Nataraja Agencies Vs. The Secretary, Ministry of Petroleum and Natural Gas, Government of India and Others, , the Division Bench has held:
... In the present case, the only grievance of the Appellant is that if the fourth Respondent is permitting to set up her retail outlet within one kilometer radius of the Appellant''s outlet, his business interest would be adversely affected. In our opinion, the Appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth Respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was damnum sine injuria - damage without infringement of legal right. In our opinion, this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates.
The Division Bench has referred the decision of the Supreme Court in Mithilesh Garg, Vs. Union of India and others etc. etc., , wherein it was held that a rival businessmen cannot file a writ petition, challenging the setting up of a similar unit by another businessmen, on the ground that establishing a rival business close to his business place would adversely affect his business interest, even if the setting up of the new unit is in violation of law. In Mithilesh Garg, Vs. Union of India and others etc. etc., , the Supreme Court followed its own decision in The Nagar Rice and Flour Mills and Others Vs. N. Teekappa Gowda and Bros. and Others, wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed. Similar view was taken in the decision reported in Sunil Kumar Datta Roy Vs. Smt. Swarna Datta Roy, .
In the light of the fact that the objection is raised by the Dealers in Petroleum Products, the contention of the Petitioner is to be considered. The first objection raised by the Petitioner is that the distance between the intersection road and the proposed land upto National Highways is only 73.0 metres, which is less than 100 metres as contemplated under the guidelines. According to the Petitioners, as per the norms, it is imperative that the distance between the Intersection road (i.e. approach road to the Ambedkar Colony and St. Xavier Engineering College and proposed site) shall be minimum of 100 metres and in the present case, the distance is only 73 metres and hence, there is clear prohibition for installation of Petrol / Diesel retail outlet in the proposed site.
Ministry of Road Transport and Highways has issued certain guidelines on "System Improvement of Installation of Petrol / Diesel / Gas Retail outlets and Service Stations as well as access to private Properties along National Highways through its Circular No. RW/NH-33023/19/99-DO-III dated 31st August 2000. The Ministry has evolved the norms for having access to the fuel stations along the National Highways. Clause 6 is as follows:
The cases for granting permission for access to new fuel stations, service stations and rest areas along National Highways shall, henceforth be dealt with in accordance with the Norms prescribed in Appendix 1 to this Circular. The main features of the Norms are listed below.
For the siting of fuel stations along National Highways, its minimum distance from an intersection would be:
Non-Urban (Rural) Stretches:
Plain and rolling Terrain
(i) Intersection with Nhs/S Hs/MD Rs 1000 m
(ii) Intersection with Rural Roads with carriageway width of 3.5m or more - 300 m
(iii) Intersection with Rural Road and all other earth tracks with carriageway width less than 3.5 m -100 m
Hilly / Mountainous Terrain
(i) Intersection with Nhs/S Hs/MD Rs -300 m
(ii) Intersection with all other roads and tracks- 100 m
The objection raised by the Petitioner Association regarding the distance point appears to have been well considered before issuance of "NOC". By a reading of the Impugned Order, it is seen that prior to his recommendation, the RDO has visited the proposed site and found near the proposed site Ambedkar Colony and St. Xavier Engineering College is situated at a distance of 75 meters, Sree Ayyappa Women''s College is situated at a distance of 125 meters and Rural Highways junction which leads to Aloor is situated at a distance of 250 meters and no other inflammable materials are located near the proposed site. Since the objection was raised by the Petitioner Association referring the distance, the First Respondent has again visited the proposed site. The First Respondent has observed that ''while on inspection, it is finalised that Ambedkar Colony and St. Xavier''s Engineering College junction is situated at a distance of 150 meters''. Thus, there seems to be variance in the distance noticed by the RDO and DRO. That variance of distance is only regarding the location of sketches. The RDO in his Report has stated that the distance of Ambedkar Colony and St. Xavier''s Engineering College junction is situated at a distance of 75 meters and Ayyappa Women''s College situated at a distance of 125 meters. According to RDO, Rural Highways Junction which lead to Aloor is situated at a distance of 250 meters. During the Inspection, the DRO has noted that Ambedkar Colony and St. Xavier''s Engineering College junction is situated at a distance of 150 meters. Thus, the 75 meters pointed out appears to be only regarding the location of the colleges and not the distance of intersection road.
The DRO has clearly stated that the junction is situated at a distance of 150 meters. In the Counter Affidavit filed by the Third Respondent, R-3 has denied the distance between the Intersection road and the proposed retail outlet as 73 meters as alleged by the Petitioner Association.
For the sake of arguments, even if we assume that there is shortage of required distance, the High Court cannot sit in Appeal over the order of the First Respondent granting No Objection Certificate since on inspection, the First Respondent has found that there is sufficient space for incoming and outgoing vehicles. Further, the norms issued by the Ministry of Road Transport and Highways regarding the distance is only for the purpose of ensuring access to the fuel stations and the need for road safety. The norms issued by the Ministry of Road Transport and Highways is only the guidelines of administrative nature and no statutory force. In any event, the Petitioner Association, who are the competitors in the field cannot raise objection on the ground of non-compliance of the norms and distance rule.
Another contention raised by the Petitioner Association is that the proposed land bearing S. No. 84/5 and 84/6-A of Aloor Village lies under the Agricultural Zone where the installation of Petroleum bunk is not permissible and the First Respondent has issued "NOC" unmindful of the nature of the proposed site. In support of this contention onbehalf of the Petitioner, letter issued by the Member Secretary, Town and Country Planning, Nagercoil is relied upon. In the said letter dated 22.09.2005 addressed to the Secretary of the Petitioner Association, the Member Secretary has stated that S. No. 84/5 and 84/6A of Aloor Village are in the Agricultural Zone and that the installation of Petroleum bunks in Agricultural Zone is impermissible. It is to be noted that the said Member Secretary, Town and Country Planning himself has not raised any objection for installation of Petrol bunk on the ground that the proposed site is in Agricultural land. Moreover, the proposed site was inspected twice both by RDO and by the First Respondent. During the Inspection, no objection was raised from the surroundings on the ground that the proposed site is in the Agricultural Zone.
By perusal of the proceedings of the First Respondent, it is seen that near the proposed site, there are several colleges viz., St. Xavier Engineering College and Sri Ayyappa Women''s College. That apart, there is also residential area viz., Ambedkar colony. On the western side lies S. No. 84/3 wherein the premises of Royal Marbles is located. Thus, the proposed site though stated to be in Agricultural Zone is surrounded by Colleges, Residential area and also by Industries. The First Respondent has inspected the site and made enquiries. No objection were received from the surroundings. Under such circumstances, the contention raised by the Petitioner Association on the ground that the proposed site is within the Agricultural Zone has no force.
Onbehalf of the Third Respondent, Learned Counsel brought to the notice of the Court the Order of the Division Bench of this Court in W.P. No. 6535 of 1992 dated 14.11.1995. In the said Order, the Court has recalled various Government Orders whereby the user of the wet land for non-agricultural purpose was purported to be prohibited. In the light of the decision of the Division bench in W.P. No. 6535 of 1992, the contention of the Petitioner that the proposed site is within the Agricultural Zone and impermissible for setting up a retail outlet is without any basis. The Petitioner As-sociation represented the dealers of Petroleum products in the District of Nagercoil. Admittedly, the Third Respondent is the competitor for the members of the Petitioner Association. The "NOC" issued by the First Respondent cannot be interfered with at the behest of the competitOrs. 22. Grant of No Objection Certificate under Rule 144 of the Petroleum Rules 2002 is an Administrative Order issued by the First Respondent. As held in the decision reported in J.R. Raghupathy and Others Vs. State of A.P. and Others, , exercising jurisdiction under Article 226 of the Constitution of India, the High Court cannot sit in Appeal over the Government''s decision and proceed to evolve the merits and demerits of such decision with its own perspective. The order is not justifiable merely on the ground of violation of certain guidelines. In the absence of malafi-des, extraneous considerations of arbitrariness, the No Objection Certificate issued by the First Respondent cannot be interfered with.
The Petitioner Association, who is the Competitors in the field has failed to establish any breach of statutory duty or obligation on the part of the Third Respondent. The Petitioner Association has failed to establish any violation of the Statute.
For the foregoing reasons, the Petitioner Association is not entitled to the relief sought for in the Writ Petition and the same is dismissed. No costs. Consequently, the connected W.P.M.P. No. 93 of 2006 is dismissed. The order of Interim Injunction already granted on 19.01.2006 is vacated and the Petition in W.V.M.P. No. 224 of 2006 is allowed.