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Judgment
Ajay Rastogi, J.—At request, instant petition was finally heard in view of order dt. 02/03/07 of Apex Court and is being disposed of while considering application dated 09/01/09 Under Article 226(3) of Constitution seeking vacation of interim order dt.06/10/06.
Petitioner who is running retail outlet dealership at location Pisangan (Ajmer) duly-awarded vide letter of intent dt.26/09/2005 by Bharat Petroleum Corporation has assailed:
(1) final "No objection Certificate" dt.02//08/06 (Ann.11) of Chief Engineer PWD (respondent No. 4) & dt.22/08/06 of Collector, Ajmer (Ann.12) issued to respondent No. 5 (Ritesh Jain) for establishing petrol pump/retail outlet dealership awarded by Indian Oil Corporation ("IOC") (respondent No. 3) vide letter of intent dt.14/11/05 (Ann.R.5/1);
Petitioner has set up petrol pump being dealer of retail outlet awarded by Bharat Petroleum Corporation on his land bearing Khasra No. 2691/2693 situated at village road of Pisangan (District Ajmer) as is evident from letter of intent dt.26/09/2005 (Ann.1).
Whereas respondent No. 5 after due selection was also awarded retail outlet dealership of respondent No. 3-IOC on a piece of land situated in Survey No. 369, Hissa No. 2697/1 at village Pisangan (Ajmer) as is evident from letter of intent dt.14/11/05 (Ann.R5/l) and in order to setup retail outlet (petrol pump station), license was granted by Ministry of Commerce & Industry, Petroleum & Explosive Safety Organisation vide letter dt.25/08/06 (Ann.R.5/2) and accordingly license No. 154/2006 was also granted by District Supply Officer, Ajmer in favour of respondent No. 5 vide order dt.30/08/06 (Ann.R.5/3) and the supply of petroleum products was also commenced by respondent No. 3 (IOC) w.e.f. 01/09/06.
Petitioner having rival business interest earlier filed CWP-1198/2006 at the stage when matter was in process with the Government of Rajasthan for grant of No objection certificate under Norms issued by Public Works Department, for establishment of petrol pump/retail outlet. However, as there was no stay order granted by this Court while issuing notices vide order dt.09/03/06, and the State government taking note of totality of facts granted relaxation in norms laid down for establishment of retail outlet; at this stage, petitioner filed 2nd stay application, which too remained pending on having not granted stay order.
At that point of time, she filed instant petition, mentioning in para 5 about filing of earlier writ petition. But earlier petition could not have been tagged since no reference was made of it in Notes appended after prayer clause.
However, while admitting instant petition vide interim order dt.06/10/06 this Court stayed operation N.O.C. dt.02/08/06 as also certificate dt.22/08/06 (Ann.11 & 12) and thereafter, petitioner moved application for withdrawing CWP-1198/06 which was dismissed as withdrawn vide order dt.07/12/06.
Against interim stay order dt.06/10/06 (supra), respondent No. 5 (Ritesh Jain) preferred Special Appeal (Writ)-1355/06 obviously because of interim stay order, he was deprived of setting up petrol pump despite having completed all formalities pursuant to letter of intent issued by respondent No. 3 (IOC) in his favour.
In SAW-1355/06, Division bench initially vide ex parte order dt.28/11/06, stayed operation of ex-parte stay order dt.06/10/06 of Single Bench; and when application came up for vacation of DB stay order, that too was rejected vide order dt. 06/12/06 and DB ex-parte stay order dt. 28/11/06 was confirmed - consequently, respondent No. 3 established his outlet and continued to run petrol pump as per letter of intent issued by IOC and license granted by DSO Ajmer.
However, against DB order dt.06/12/06 in SAW-1355/06 confirming stay order dt.28/11/06, petitioner approached Apex Court by way of Special Leave to Appeal (Civil) No. 3276/2007, which was dismissed vide order dt.02/03/07; however, Apex Court observed to explore possibility of disposal of writ petition pending at an early date.
However, in instant petition, application was also filed by respondent No. 3 on 13/10/06 Under Article 226(3) of Constitution seeking vacation of interim stay order dt.06/10/06 but no order could be passed by this Court, which remained pending and ultimately vide order dt.22/02/07 was dismissed as having become infructuous in view of DB order dt.06/12/06.
In the meantime, SAW-1355/06 when came up before Division Bench for further consideration, the fact of petitioner having approached Apex Court against DB order dt.06/12/06 as regards interim relief, was not brought to its notice. However, Division Bench dismissed SAW-1355/06 vide order dt.11/12/2008 on the premise that appeal against interlocutory order is not maintainable.
Apparently, this fact remained completely unnoticed before Division Bench that final order of interim relief granted by Division Bench vide order dt.06/12/06 was assailed by petitioner before Apex Court, where Special Leave to Appeal was rejected. Any how, Division Bench while finally disposing of SAW-1355/06 vide judgment dt.11/12/08 inter-alia observed that since there was interim order passed by Single Judge while admitting writ petition, writ-respondents can raise all available objections before Single Bench.
Be that as it may, as a result of dismissal of SAW-1355/06 preferred by respondent No. 3 vide order dt. 11/12/08, as informed to this Court, business of respondent has completely been forestalled on the premise that NOC & permission granted by Collector had been stayed since ex parte order dt.06/10/06 on account of SAW-1355/06 being dismissed, stood restored. Consequently, respondent No. 3 moved application on 09/01/09 Under Article 226(3) of Constitution seeking vacation of stay order dt.06/10/06.
Public Works Department of the Government of Rajasthan has laid down norms for establishment of fuel stations/service stations & rest areas along State Highways/MDR''s/ODR''s vide Circular dt. 27/12/04 (Ann.4) which was also made applicable for village roads vide Circular dt. 05/11/05 (Ann.19). Counsel for petitioner submits that retail outlet of respondent No. 5 is situated indisputably on village road No. 58 on Pisangan-Mewaria Karnos Road, Pisangan and as per norms for establishing retail outlet, there should be minimum distance from intersection upto 500 mtrs as per Para 6.1.1. and distance between two fuel stations as per 6.2.1 must be of 300 mtrs, against which distance of intersection for setting up petrol pumps is 327 mtr against minimum required 500 mtrs whereas distance between two fuel stations was only 186.60 mtr as against requisite 300 mtrs minimum but without any authority, State Govt granted relaxation in favour of respondent No. 5 - as a consequence whereof, No objection certificate was granted by Chief Engineer PWD on 02/08/06 (Ann. 11) and also by Collector, Ajmer on 22/08/06 (Ann.12), which according to petitioner are in violation of norms laid down for setting up retail outlet; and relaxation granted by Government is without any authority and establishment of retail outlet of respondent No. 5 is contrary to the Scheme and deserves to be set aside.
Contesting respondent No. 5 and so also respondent IOC have filed their separate reply to writ petition, wherein it has been inter-alia averred that process of retail outlet was initiated by respondent IOC as well as BPC almost at same point of time but petitioner got letter of intent on 26/09/05 (Ann.1) while respondent-5 got letter of intent on 14/11/05 (Ann.R5/l); and there was hardly a gap of two months but because of her letter of intent issued earlier, she got her petrol pumps set up prior to respondent No. 5 and immediately on establishing her outlet, started making complaints that if retail outlet is awarded to respondent No. 5 at the place finalised by respondent IOC, that would be in violation of norms laid down by Government of Rajasthan; and also approached this Court by way of CWP-1198/06 where she failed to get any stay order and in the meanwhile, State Government in totality of facts considered it to grant relaxation and immediately after stay order granted in instant petition, she withdrew earlier CWP-1198/06.
Counsel for respondents submits that guidelines were initially issued by Public Works Department vide Circular dt.27/12/04 but confined only to fuel stations to be established on MDRs/ODRs/State Highways and for village roads, these guidelines were made applicable vide Circular dt. 05/11/05 (Ann.19) but by that time, process for grant of permission of retail outlet on village road No. 58 was finalised and even letter of intent was issued to respondent No. 5 on 14/11/05 (Ann.R.5/1) and taking note of guidelines and so also other facts made available on record, the authority finally considered to grant relaxation in existing guidelines which was later on applicable for village road vide order dt. 02/08/06 (Ann.11) - on the basis whereof, No objection certificate was granted by Collector Ajmer, vide letter dt.22/08/06 (Ann.12) impugned.
Counsel for respondents further submits that these guidelines & norms are laid for the access of Fuel/Service Stations & Rest Areas along National/State Highways and later on made applicable on Village roads, which have no binding/statutory force, therefore, the authority-can certainly consider for relaxation whenever exigency arises; and in instant case, when process initiated by respondent-IOC was finalised and these norms were made applicable by State Government for village roads on 05/11/05 (Ann.19), letter of intent was issued on 14/11/05 within ten days - taking note whereof, relaxation was granted; which can always be exercised by authority which laid down norms ordinarily to be followed while setting up fuel stations.
I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record.
Ministry of Road Transport & Highways, Government of India has laid down norms for the access for Fuel/Service Stations & Rest Areas along National Highways vide Circular dt.25/09/03 (Ann.2) and on the same line, State Government also laid down its norms for access of Fuel/Service Stations & Rest Areas along State Highways/MDR''s/ODR''s vide Circular dt.27/12/2004 (Ann.4).
However there was no guidelines or norms for setting up Access of Fuel/Service Stations on village roads; therefore vide circular dt. 05/11/05 (Ann.19), State Government (Public Works Department) adopted its norms laid down under its earlier Circulars meant for State Highways/MDR''s/ODR''s for village roads also.
Relevant norms laid down in para 6.1.1 & 6.2.1 are reproduced ad infra:
6.1.1. Non Urban (Rural) Stretches.
Plain and Rolling Terrain. Intersection with Nhs/SHS/MDRs/ODRs 500 m i) Intersection with Rural roads with carriage way width 3.5 m or more 300 m ii) Intersection with Rural roads and all other earth tracks with carriage way width less than 3.5 m 100 m 2. Hilly Mountainous Terrain i) Intersection with Nhs/SHs/MDRs/ODRS 300 m ii) Intersection with all other roads & tracks- 100m
6.2 The minimum distance between two fuel stations along the State Highways/MDR''s/ODR''s would be as given below:
6.2.1. Plain and Rolling Terrain in Non-Urban (Rural) Areas:
(i) Undivided carriageway (for both sides of carriageway)(including deceleration & acceleration lanes) 300 m (ii) Divided carriageway (with no gap in median at this location & stretch) 500 m (including deceleration & acceleration lanes)
From material on record, application for allotment of retail outlet dealership of location Pisangan (Ajmer) on village road No. 58 which has been disputed in case of respondent No. 5, and so also of petitioner was simultaneously processed by two separate petroleum companies. However, petitioner was granted letter of intent for retail outlet dealership by Bharat Petroleum Corporation on 26/09/05 while respondent No. 5 through letter of intent granted by respondent No. 3 (IOC) on 14/11/05. It appears that prior to the norms being adopted by Public Works Department vide Circular dt.05/11/05 (Ann.19) for access of Fuel Stations on village roads, there was no norms laid down; and by the time, State Government adopted relevant norms under Circular dt.27/12/04 for village roads as well vide circular dt.05/11/05 (Ann.19), process was almost complete and within ten days thereafter on 14/11/05, letter of intent was issued in favour of respondent No. 5. But petitioner at this point of time, because of business rivalry started making complaints to State Government not to grant permission to establish outlet and approached this Court as referred to (supra) in the manner in which proceedings were initiated.
But the State Government was not oblivious of situation and these being guidelines required to be followed having no statutory force certainly are to be complied with. But, at the same time, taking note of process initiated by two different petroleum companies for allotment of retail outlet dealership for village roads and by that time, process in respect of respondent No. 5 on issuance of letter of intent was also complete, in totality of facts, State Government considered it technically feasible & accordingly granted relaxation in existing norms laid down by respondents (PWD) for setting up retail outlet in case of respondent No. 5 granted No objection certificate vide order dt.02/08/06 (Ann.11) and corresponding permission/NOC was granted by Collector vide order dt. 20/08/06 (Ann.12).
It is not the case of the petitioner that relaxation granted in any manner is not technically feasible or the relaxation was for certain ulterior reasons.
Only question raised for consideration is that relaxation is not permissible in absence of provisions under guidelines, in the opinion of this Court, submission is not of any substance for the reason that guidelines laid down by State Government (PWD) for purposes of setting up retail outlet for MDR/ODR, Highways/State Highways having been adopted for village roads, as well having no statutory force, but at the same time, certainly have binding effect and respondents are under obligation to follow in its true spirit but if any exigency arises as pointed out in the facts of instant case, the authority-can certainly exercise powers for relaxation which can be interfered by this Court under writ jurisdiction Under Article 226 of the Constitution, if granted malafidely or for oblique purpose or motive which is not the case set up by the petitioner. In the facts of instant case, this Court does not find error committed by the respondent in granting relaxation vide order dt. 02/08/06 (Ann.11) & dt.22/08/06 (Ann.12).
This Court would like to observe that initially instant petition was filed by petitioner indirectly questioning set up of similar like unit of retail outlet dealership of petroleum product in favour of respondent No. 5 raising plea not to grant relaxation by State Government just close to outlet of petitioner which would affect her business interest; but that will in no manner infringe legal or fundamental right of petitioner; in such circumstances, apart from question as to how far petitioner could be considered to be aggrieved, this Court would like to observe that such kind of litigation being purely based on inter-se business rivalry which is always to be deprecated by this Court and contrarily by healthy business competition, end user is always benefitted.
As informed to this Court, only on account of business rivalry and filing of instant petition in the manner detailed in earlier part of this order (supra) while her writ petition (CWP-1198/06) was got dismissed as withdrawn, business of respondent No. 5 has been completely fore-stalled, hence this Court considers it appropriate to impose costs upon petitioner, which is quantified at Rs. 5,000/-
Consequently, writ petition fails and is hereby stands dismissed with costs of Rs. 5,000/-.