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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF DECEMBER 2020
BEFORE
THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.9248 OF 2020 (GM-CPC)
BETWEEN:
M/S HINDUSTAN PETROLEUM CORPORATION LIMITED 1ST FLOOR, DEO GRATIS BUILDING CHILILLMBI, URVA STORES MANGALORE-575006 REP BY ITS GENERAL MANAGER, MANGALORE SRI. M VENU GOPAL ...PETITIONER (BY SRI: YESHU MISHRA, ADVOCATE FOR SRI: ANOOP HARANAHALLI, ADVOCATE)
AND:
SMT K L LALITHA W/O SRI. GANGADHARA AGED ABOUT 51 YEARS IOCL DEALER M/S ''VAYUPUTRA FUEL STATION'' BESIDE INCOME TAX OFFICE BELUR ROAD, VIJAYANAGARA HASSAN-573201 REP BY HER GPA HOLDER SRI. S.G. SHARATH S/O GANGADHARA AGED 29 YEARS NO.859, OPP OXFORD SCHOOL
2 9TH CROSS, 2ND STAGE KUVEMPUNAGAR HASSAN-573201
M/S BHARAT PETROLEUM CORPORATION LTD REPRESENTED BY ITS TERRITORY MANAGER TERRITORY OFFICE BEHIND FCI GODOWN METAGALLI P.O MYSORE-570016.
THE DEPUTY COMMISSIONER HASSAN DISTRICT HASSAN-573201 ...RESPONDENTS
(BY SRI: UDAYA PRAKASH MULIYA, ADVOCATE FOR R1; R2-SERVED; SRI: R.SRINIVASA GOWDA, AGA FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE JUDGMENT DATED 22.06.2020 PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN IN M.A.NO.3/2020 AT ANNEXURE-A AND SET ASIDE THE ORDER DATED 19.12.2019 PASSED ON I.A.II BY THE V ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN IN O.S.NO.475/2019 AT ANNEXURE-B.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.09.2020 AND COMING ON FOR PRONOUNCMENT OF ORDER, THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This writ petition is filed under Article 227 of the Constitution of India assailing the judgment dated 22.06.2020 passed by learned Addl. Senior Civil Judge and JMFC, Hassan in M.A.No.3/2020 (Annexure-A) and the order dated 19.12.2019 passed on I.A.No.II by learned V Addl. Civil Judge and JMFC, Hassan in O.S.No.475/2019.
Respondent No.1 (hereinafter referred to as ‘plaintiff’) filed a suit in O.S.No.475/2019 for permanent injunction restraining the petitioner herein and the respondent No.2(hereinafter referred to as ‘defendant Nos.1 and 2’) respectively from granting the ‘NOC’ to new Petroleum retail outlet dealership within a distance of 300 meters from the schedule property at Vijaynagara Extension, Belur Road, within the town limits of Hassan, Karnataka.
According to the plaintiff, she belongs to economically and socially backward class. By raising a loan of Rs.15.00 lakhs and Rs.8.00 lakhs from M/s. Cauvery Grameena Bank, Hassan
4 and a working capital loan of Rs.14,50,000/- from Indian Oil Corporation Ltd., out of “IOCL Corpus funds”, she established a petroleum retail outlet i.e., schedule property on Vijaynagara Extension, Belur Road, Hassan. Another retail outlet by name M/s. Sridevi Service Station allotted by the second defendant is functioning hardly 600 – 700 meters away from the plaintiff’s outlet. That being the case, the first defendant selected one Smt.Hrudya Ganesh to grant her a retail dealership outlet at Vijaynagara and the second defendant selected Sri. M.N. Kumara to grant him the retail dealership at Hassan Town limits towards Belur, despite the objection of the plaintiff. The grievance of the plaintiff is that establishment of petroleum outlet within 300 meters from the outlet set up by the plaintiff would be violative of norm 4.4.2 of the guidelines issued by the Ministry of Road Transport and Highways and that by setting up a rival business just opposite to the outlet set up by the plaintiff would cause a stiff competition and irreparable loss and damage to the plaintiff.
In the said suit, plaintiff moved an application in I.A.No.2 under Order 39 Rule 1 and 2 of CPC for grant of
5 temporary injunction restraining defendant Nos.1 and 2 from granting new petroleum retail outlet dealership within the distance of 300 meters from the schedule property. The defendants opposed the application contending that there is no legal right vested in the plaintiff to prevent a competitor from setting up of a new petroleum retail outlet; plaintiff is an agent of M/s. Indian Oil Corporation Ltd., and now M/s.Hindusthan Petroleum Corporation Ltd., and M/s.Bharath Petroleum Corporation Ltd., intend to set up petrol bunk and therefore competition is a must so that the public at large would get a fair deal. The defendants further contended that Hassan-Belur Road (State Highways-SH 57) is under the supervision and management of Government of Karnataka; it is not a National Highway and hence there is no violation of the norms and conditions issued by the Government. A ‘No Objection Certificate’ dated 01.07.2019 in favour of first defendant is also obtained. Thus contending that no prima-facie and balance of convenience are available in favour of the plaintiff sought for rejection of the application.
6 5. However, considering the material placed on record, the Trial court being of the opinion that the contentions raised by the parties have given rise to the disputed questions of facts which cannot be decided at the interim stage and further holding that denial of interim relief to the plaintiff would subject her to irreparable loss and damage, restrained the defendants not to give dealership within 300 meters of the suit schedule property.
Aggrieved by the said order, only the petitioner herein namely defendant No.1 preferred a Miscellaneous Appeal in M.A.No.3/2020 and by the impugned order dated 22.06.2020, learned Addl. Senior Civil Judge, Hassan has dismissed the appeal, confirming the order passed by the Trial Court.
The contention of the petitioner/defendant No.1 is that the suit filed by the plaintiff itself is not maintainable for the reason that the plaintiff has filed the suit only after issuance of NOC and award of dealership and the letter of intent in favour of the Smt.Hrudya Ganesh; and therefore without challenging the letter of intent and the NOC, the plaintiff is not entitled to maintain the suit. The further contention of the petitioner is
7 that the relief sought for by the plaintiff has become infructuous since the impugned order has been passed subsequent to the dealership granted by the petitioner / defendant No.1. It is further contended that norm 4.4.2 is a mere guideline and not a regulation having statutory force; the Courts below have failed to take into consideration that the litigation initiated by the plaintiff is in contravention of section 4 of the Competition Act, 2002 which prohibits abuse of dominant position and prevents acts resulting in denial of market access in any manner, the Courts below also failed to consider the fact that the property of Smt.Hrudya Ganesh comes under the jurisdiction of Hassan Municipality and is 9 meters away from the National Highway No.373 and does not abut the National Highway unlike the property of the plaintiff.
Per-contra, respondent No.1/ plaintiff has taken up a plea in her statement of objections that as per the NOC issued by the Executive Engineer of PWD dated 30.03.2019, the property wherein the retail outlet for which no objection was obtained by the petitioner/defendant No.1 is located by the side
8 of State Highway No.57 (Annexure-R1). As per the gazette notification issued on 23.03.2018, the road was declared as National Highway-373 (Annexure-R2). As on 12.10.2018, the PWD had handed over the State Highway to the National Highway Authority of India (Annexure-R3) and therefore, in order to establish a retail outlet by the side of National Highway, all oil companies need to obtain permission from NHAI and not from PWD. On 29.03.2019, plaintiff / respondent No.1 issued a notice to the petitioner as well as the Deputy Commissioner, Hassan District to cancel or give up the proposal for setting up of petroleum retail outlet in the same area. The petitioner and the Deputy Commissioner having not taken any action, the plaintiff having no efficacious remedy had approached the Civil Court. The Trial Court has passed the impugned order based on the guidelines and norms issued under the provisions of National Highways (Land and Traffic) Act, 2002 read with Highway Administration Rules 2004. These guidelines have the force of law and are binding on the parties and hence, the challenge laid by the petitioner is legally not tenable. Further it is contended that the petitioner is guilty of suppression of fact, inasmuch as,
9 his land is situated by the side of the State Highway and not by the side of National Highway and thus the plaintiff / respondent No.1 has sought to dismiss the petition.
In support of the above contentions, learned counsel for petitioner has placed reliance on the following decisions:-
RAJ KUMAR & Others vs. UNION OF INDIA & Others, 2019 SCC Online J&K 982;
RADHA KRISHNA SAHU vs. UNION OF INDIA, rep. through the Secretary to Govt., Ministry of Petroleum and Others, 2007 SCC Online Ori 195;
GANESH CHANDRA HAZARIKA vs. STATE OF ASSAM & Others, 1980 SCC Online Gau 11.
I have bestowed my careful thought to the rival submissions made by the parties and have scrutinized the material on record.
The principal contention urged by the learned counsel for petitioner is that the suit itself is not maintainable and that the establishment of the petrol outlet by the defendants does not violate any of the legal right of the plaintiff. I am unable to
10 accept this submission. There is no dispute as to the fact that much prior to the proposal mooted by the petitioner/defendant No.1 to set up the petrol bunk at Vijayanagara to Smt. Hrudya Ganesh, the plaintiff had already established a retail petrol outlet. The guidelines framed by the Central Government, in exercise of the powers conferred by sub-section (2) of section 2 of National Highways Act, 1956 prescribe the norms for location, layout and access to fuel stations along National Highways. Norm 4.4.1 of the enclosure to the said guidelines issued by the Ministry of Road Transport and Highways (letter No.RW/NH- 33023/19/99-DOIII dated 25.09.2003) reads as under:-
4.4.1 Plain and Rolling Terrain in Non-urban (Rural) Areas
(i) Undivided carriageway (for both sides of carriageway). (including deceleration and acceleration lanes).
300 m (ii) Divided carriageway(with no gap in median at this location and stretch) (including deceleration and acceleration lanes).
1000 m
4.4.2 Hilly/Mountainous Terrain and Urban Stretches.
(i) Undivided carriageway (for both sides of carriageway)
300 m (clear) (ii) Divided carriageway (with no gap in median at this location and stretch)
300 m (clear)
Eventhough the petitioner has contended that these norms have no statutory force, but a reading of the guidelines clearly indicate that they have been issued by the Ministry of Road Transport and Highways under sub-section (2) of section 2 of National Highways Act, 1956. These norms are made applicable to all new Fuel Stations from the date of issuance of the circular. The validity of this circular or the guidelines is not under challenge and therefore the petitioner cannot be permitted to dispute the validity of these guidelines indirectly. That apart, the contention of the petitioner / defendant No.1 is that the proposed outlet is intended to be located by the side of State Highway; but the document produced by respondent No.1, namely Annexure-‘R2’ indicate that the proposed location is situated by the National Highway and therefore, the guidelines
12 issued by the Ministry of Road Transport and Highways are required to be complied. In any case, in view of the contention urged by the petitioner / defendant No.1 disputing the exact location of the proposed petrol bunk, the Trial Court was justified in refusing to permit the setting up of new petrol bunk within 300 meters of the existing petrol bunk set up by the plaintiff / respondent No.1. Under the said circumstances, no fault could be found with the impugned orders.
Apart from the above reason, the impugned orders having been passed by the courts below in exercise of the discretion vested with them, in the absence of any material to show arbitrariness or perversity in passing the impugned orders, this Court cannot substitute the discretion to nullify the impugned orders.
The decisions relied on by the learned counsel for petitioner are not applicable to the facts of the case. In the decision rendered by the High Court of Jammu and Kashmir in the case of RAJ KUMAR & Others vs. UNION OF INDIA & Others, 2019 SCC Online J&K 982, the challenge was laid on the ground
13 that the NOC for the proposed installation of petrol pump was issued in violation of the provisions of the Petroleum Act, 1934 and the Rules framed thereunder and the guidelines issued by the Ministry of Road Transport and Highways, Government of India. One of the contentions urged therein was that the enquiry as contemplated under Rule 144(5) of the Rules 2002 was not conducted before issuance of the NOC and that no NOC was obtained from the National Highway Authority of India. Even in this case, it was contended that the guidelines issued by the Indian Road Congress are not at all statutory guidelines which can be enforced by the Court under Article 226 of the Constitution of India. However, insofar as the challenge laid on the basis of the guidelines issued by the Ministry of Road Transport and Highways in para 43 of the Judgment, it is observed as under:-
However, on a perusal of the guidelines, it can be seen that the minimum size of the plot for Fuel Stations along national Highways in urban stretches, in meters, only requires a frontage of 20 meters and a depth of 20 meters. The site in question, admittedly, falls on the national highway at Birpur, Jammu- Pathankot road, is an urban area, as per certificate dated 15.07.2019 issued by the Chief Executive Officer, Municipal committee, Bari Brahmana which forms annexure 5 of the reply of the said private
14 respondent. The challenge on that ground is, therefore, untenable and is, accordingly, rejected.
This decision therefore goes against the contention urged by the petitioner that the guidelines issued by the Ministry of Road Transport and Highways have no statutory force.
In RADHA KRISHNA SAHU vs. UNION OF INDIA, rep. through the Secretary to Govt., Ministry of Petroleum and Others, 2007 SCC Online Ori 195, the Orissa High Court also considered the very same issue. In the said case, the annexures produced by the authorities revealed that the distance of the proposed fuel station from the nearest fuel station was 435 meters which satisfied the norms fixed by the Government of India. This decision also runs counter to the stand taken by petitioner that the distance prescribed by the Ministry of Road Transport and Highways is not an enforceable order. No-doubt in the said case as well as the decision rendered by the Madras High Court in NATARAJA AGENCIES V. SECRETARY, MINISTRY OF PETROLEUM AND NATURAL GAS, GOVERNMENT OF INDIA, 2004 SCC ONLINE MAD 802, it is observed that the Hon’ble Supreme Court in MITHILESH GARG V. UNION OF INDIA, AIR
15 1992 SC 443 has held that a rival businessman cannot file a writ petition, challenging the setting up of a similar unit by another businessman, on the ground that establishing a rival business close to his business place would adversely affect his business interest. In NAGAR RICE AND FLOUR MILLS VS N.T. GOWDA, AIR 1971 SC 246, it was held that a rice mill owner has no locustandi to challenge under Article 226 the setting up a new rice mill by another even if such setting is in contravention of section 8(3)(c) of the Rice Milling Industry(Regulation) Act, 1958 because no right vested in such applicant is infringed; but in the instant case, plaintiff having prima-facie made out that the proposed outlet is intended to be set up within the prohibited distance in violation of norm 4.4.2 issued by the Ministry of Road Transport and Highways, I do not find any justifiable ground to interfere with the impugned orders. As a result, petition being devoid of merit is liable to be dismissed and is accordingly dismissed.
Sd/- JUDGE
Bss/mn/-