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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Virender Singh, JJ.
Gulzar Krishan Sewa Kendra - Petitioner
Versus
Hindustan Petroleum Corporation Ltd. & Ors. - Respondents
CWP No. 308 of 2019
Decided On : 22-11-2022
Location of Petrol Pump - Distance from Petrol Pump - As per (Annexure P-2) location of Petrol Pump allotted to respondent No. 3 is "within 4 Kms", whereas respondent No.3 is intending to locate his Petrol Pump at a distance of 500 meters from Petrol Pump set up by petitioner –Site offered by third respondent is strictly in accordance with advertisement. [Para 11]
Finding of the Court: Petitioner has no locus standi at all to complain to setting up of a retail outlet by third respondent near his place of business that too only on ground that would affect his business interest inasmuch as damage, if any, suffered thereby was damnum sine injuri-adamage without infringement of legal right – Court is further of considered view, this would only result in promoting competition amongst traders, which is good for consumers - Merely because some of customers may switch over to rival retail outlet does not mean that public interest will suffer, rather in Court opinion, it will benefit consumers because, when there is competition, businessmen are compelled to provide better quality products at reasonable rates - Similar view has been expressed by Hon'ble Madras High Court in P. Selvi vs. District Magistrate - Retail outlet is being established by third respondents in accordance with law where guidelines as laid down by Indian Road Congress are not applicable and same otherwise have been held to be not mandatory by various courts - As regards contention of petitioner regarding violation of MORTH Guidelines, Court need only to say that these guidelines only apply to retail outlets that are to be opened on National Highways and not otherwise and admittedly, in instant case, retail outlet is not being opened on National Highway and thus, MORTH Guidelines are inapplicable.
Result: Petition dismissed.
JUDGMENT :
Tarlok Singh Chauhan, J.
The instant petition has been filed for grant of following substantive reliefs:-
ii. That appropriate writ order or direction may very kindly be issued, directing the respondents No. 1 and 2 to set up the Petrol Pump strictly as per the location as shown in the advertisement and further by complying all the required Guidelines of the MORTH, in the interest of law and justice.
2. The brief facts of the case as are necessary for the adjudication of the present case are that the petitioner runs retail outlet i.e. Petrol pump, in the border area of Punjab and Himachal Pradesh at village Murthal in District Pathankot. This Petrol Pump was established in the year, 2012. The respondents No. 1 and 2 advertised various locations for setting up of Petrol Pumps in the State of Himachal Pradesh including in the Districts Kangra. One of the such site locations was for “within 4 km of Kathgarh Shiv Mandir on Kathgarh Indora Road”.
3. According to the petitioner, the identified location is only 500 metres from the Petrol Pump of the petitioner and as such in violation of the norms and guidelines issued for this purpose by the Ministry of Road Transport and Highways (for short 'MORTH'), which clearly provide that distance between two petrol pumps should not be less than 1000 metres. It is also averred that the approved site offered by respondent No. 3 does not fall within the location as advertised.
4. On the basis of such pleadings, the petitioner obtained ex parte ad interim stay on 12.02.2019, which reads as under:-
Allowed.
CWP No. 308 of 2019
Notice. Mr. Raju Ram Rahi, Deputy Advocate General, waives notice and accept service on behalf of respondent No.4 and seeks time to file reply.
Notice to respondents No.1 to 3, returnable on 12th March, 2019, be issued on taking steps by tomorrow.
CMP No. 1253 of 2019
Notice in the aforesaid terms.
It is submitted by learned counsel for the petitioner that as per Selection letter (Annexure P-2) location of the Petrol Pump allotted to respondent No. 3 is "within 4 Kms" Kathgarh Shiv Mandir on Kathgarh Indora road, whereas respondent No.3 is intending to locate his Petrol Pump at Kathgarh Mirthal road, a road in opposite direction to Kathgarh Indora road, at a distance of 500 meters from the Petrol Pump set up by the petitioner at a location which is at a distance of 50 meters from the Toll Plaza and setting up of Petrol Pump at such location is not only in violation of the Selection letter (Annexure P-2) and but also in conflict with the guidelines/norms (Annexure P-1) issued by Ministry of Road Transport & Highways for setting a Petrol Pump, particularly, conditions with respect to the distance, contained in Sr. Nos. 3 and 4 in stipulated norms for Fuel Stations (To be updated on revision of IRC:12), enclosed with the guidelines/norms (Annexure P- 1).
It is further submitted that in case Petrol Pump set up by respondent No.3 as per location mentioned in the Selection letter, the petitioner has no objection.
In view of the aforesaid submissions respondent No.3 is restrained from setting up a Petrol Pump at a location in contravention of the Selection letter (Annexure P-2), for, as per this letter, he is entitled for setting up a Petrol Pump within 4 Kms of Kathgarh Shiv Mandir on Kathgarh Indora. Road only and not anywhere else.
5. Respondents No. 1 and 2 when put to notice, filed a short reply on 20.03.2019 and it shall be apt to reproduce paras 1 to 3 whereof, which read as under:-
MORTH Guidelines only apply to retail outlets that are to be opened on National Highways.
Participant in retail outlet selection via draw of lots has locus to challenge rival's site NOCs for guideline non-conformity, unlike business rivals; IRC/MoRTH guidelines non-mandatory on major dist....
Existing retail operators cannot impede new competitors without statutory grounds, promoting healthy market competition.
The court established that IRC Guidelines are directory and do not confer a legal right to challenge the issuance of a Letter of Intent based on proximity.
Competitive harm does not constitute legal injury under 'damnum sine injuria'; disputes involving pure questions of fact should not be adjudicated in writ jurisdiction.
The court upheld that urban fuel stations are exempt from minimum distance requirements under the NHAI guidelines to ensure public access.
: High Court while exercising powers under Article 226 of Constitution of India cannot sit as appellate court over decision of NHAI more particularly when same has not been challenged.
The court ruled that competition in business does not justify restraining operations of a legal entity unless fundamental rights are infringed, affirming the legality of setting up fuel stations acco....
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