1. All these writ petitions have been filed with prayer to quash allotments, of following retail sale outlets for petroleum products (for short “outlet”), made by respondents No. 2 and 3 (for short “IOC”):
(i) in favour of respondents No.4 and 5 (for short “Agro Industries”) at Village Bohan, Tehsil Jawalamukhi, District, Kangra Himachal Pradesh in CWP No. 3338 of 2020 and CWP No. 4239 of 2020.
(ii) In favour of Shri. Satwant Singh (Respondent No. 4) in CWP 2703 of 2020 in Mohal Thara, Sub Tehsil Dulehar, District Una, Himachal Pradesh
2. Petitioners in CWP No.4239 of 2020 and CWP. 2703 of 2020 themselves are retail outlet dealers of Hindustan Petroleum Corporation Limited (HPCL), whereas petitioner in CWP No.3338 of 2020 has filed the petition as pro bono publico.
3. Since common questions of facts and law are involved in all the petitions, therefore, these were heard together and are being disposed of by a common judgment.
4. The common case of the petitioners in all the petitions is that the allotment of outlets by IOC in favour of Agro Industries and Shri Satwant Singh are in violation of the guidelines framed by Indian Roads Congress (IRC) and Ministry of Road Transport and Highways (MoRTH).
5. It is not in dispute that the outlet, in CWP No. 3338 of 2020 and CWP No. 4239 of 2020, is being established on a plot of land adjacent to road leading from Jawalamukhi to Dehra in District Kangra and outlet in CWP No.2703 of 2020 is being established adjacent to Ajoli Mod to Pohlian via Tahliwal road in District Una. Both these roads are Major District Roads (MDRs) declared by Government of Himachal Pradesh.
6. Petitioners contend that IRC has framed guidelines for access, location and layout of road side fuel stations and service stations (third revision) 2009. Similarly, MoRTH has also formulated and issued guidelines for grant of permissions for construction of access to fuel stations, way side amenities, private properties, rest area complexes, connecting roads and such other facilitates/establishments. The latest of such guidelines have been circulated on 26th June, 2020 and prior thereto were the guidelines framed in 2013, which were almost the same in material particulars. Petitioners have maintained that IOC while making allotment in question has not adhered to the requirements of these guidelines and in absence thereof the allotment is vitiated.
7. In CWP No.3338 of 2020, petitioner has taken exception to allotment of outlet in favour of Agro Industries on the grounds:
(i) As per above guidelines issued by IRC and MoRTH the distance between 1000 meters to 300 meters is required to be maintained from the intersection of NHs/SHs/ MDRs, whereas in the present case it is about 70 meters approximately.
(ii) The requisite distances from the intersections of National Highway and also from a Village Road have not been considered and applied.
(iii) The allotment has been made without issuing advertisement of proposed allotment,
(iv) In addition, the petitioners in CWP No.4239 of 2020 and CWP No. 2703 of 2020 have raised the contention that the requisite distance between the two retail sale outlets i.e., one of the petitioners and the others allotted by IOC to Agro Industries and Shri Satwant Singh has not been maintained.
8. In replies submitted by IOC in all the petitions, the allegations with respect to non-maintenance of requisite distances from intersections, National Highways, other approach roads and also between two retail sale outlets have not been specifically denied. Thus, the averments with respect to violation of IRC and MoRTH guidelines remain unrebutted in pleadings.
9. IOC, however, has taken a specific stand that IRC guidelines are non-statutory hence, these are neither applicable nor enforceable and the MoRTH guidelines are applicable only to the National Highways. In this manner respondents have denied relevance of said guidelines in the facts of the case and have sought the dismissal of the petitions.
10. Respondents have also confronted the locus and bona fides of petitioners to challenge the allotments.
11. We have heard learned counsel for the parties and have also gone through the records.
12. In light of respective stands of parties, the question that arises for determination is, whether the guidelines issued by IRC and/or MoRTH are applicable to the cases in hand and if the answer is in affirmative, then are the allotments vitiated for non-adherence to the guidelines
13. Coming to the first question, it goes without saying that infrastructural development is an important aspect in the development of any Nation. Construction of new roads/highways and upgradation of old ones in our country is the need of the hour to cope up with ever growing human population and resultant traffic needs. Constantly developing road/ traffic control technologies require the roads/highways to be as less congested as can be. The laudable purpose is public safety.
14. The Ministry of Road Transport and Highways (MoRTH) is a ministry of the Government of India, that is the apex body for formulation and administration of the rules, regulations and laws relating to road transport, transport research and in also to increase the mobility and efficiency of the road transport system in India. The Indian Roads Congress (IRC) is the Apex Body of Highway Engineers in the Country. It influences the pace, structure and pattern of development. Hence, development of this sector is of paramount importance for India and accounts for a significant part in the budget.
15. Perusal of guidelines issued by IRC as well as MoRTH reveal that both have been issued with the above noted purpose and object. Noticeably, no substantial conflict exists between both the guidelines as far as prescribed parameters are concerned. Their conceptual origin may differ, but these operate in the same realm. The IRC guidelines are applicable to National Highways, State Highways and MDRs. The MoRTH guidelines, though, have been framed for National Highways, but various states have adopted these guidelines as guiding factor. These guidelines, however, are not area specific and are applicable throughout India.
16. At the hearing of the matter also entire thrust of arguments on behalf of IOC was on non-applicability of the IRC and MoRTH guidelines to the cases in hand. It was urged with much vehemence that IRC guidelines has no statutory recognition and MoRTH guidelines were applicable only to National Highways. In support of its contention, IOC has placed reliance upon a judgment passed by a Division Bench of the High Court of Judicature for Orissa at Cuttack in DB writ petition (Civil) (PIL) No.12434 and 1869 of 2020 and also on a judgment passed by Hon’ble Madras High Court in writ petition Nos. 19218, 2661, 3678 and 705 of 2019. In addition, reliance has been placed on a judgment passed by learned Single Judge of this Court in CWP No. 5719 of 2010.
17. With due deference to all these judgments relied upon by IOC, we do not concur with respondents on their applicability to the facts of the cases in hand. All the above referred judgments have been passed keeping in view their own facts and circumstances. Hon’ble Orissa High Court while dealing with the facts of the case before it has held as under: -
“In view of such position, the No Objection Certificate (NOC) granted by the Collector and District Magistrate, Jagatsinghpur, is well within its domain and, as such, the same was issued after making proper inquiry and by following due procedure established by law. Accordingly, issue No. (i) is answered in affirmative and against the petitioners.
Hon’ble Madras High Court in para 47 of the Judgment has held as under: -
“it is no doubt true that sufficient though process has gone into before framing 2009 guidelines. However, we are not express to State that the guidelines are far superior then the statutory provisions or the statutory provisions are far superior then the guidelines. Admittedly, 10 years have passed by, after guidelines were published. There have been various developments in the country in so far as road infrastructure is concerned. Several methodologies have been adopted by both State Highways and National Highways Authority of India. Therefore, we are of the clear view that no direction can be issued to the respondents by compelling them to follow the guidelines of the Indian Road Congress (IRC) published in the year 2009.”
18. The perusal of judgment passed by learned Single Judge of this Court in CWP No. 5719 of 2010 reveals that, the observation made by learned Single Judge was mere obiter as was not preceded by any discussion on the point. Moreover, applicability of MoRTH guidelines was not considered in that case.
19. The petitioners on the other hand have placed reliance on judgment passed by the Hon’ble Supreme Court in Indian Oil Corporation Limited and others vs. Aarti Devi Dangi and another (2016) 15 SCC 480 . In our considered view the issue germane in the present petitions finds answer in the above noted judgment. It has been held by their Lordships as under: -
7. “If the clauses in the advertisement required a tenderer to fulfil all requirements under the rules and sub-rules of PWD and if what was suggested/recommended by IRC has been adopted by the State PWD and the said norms are in the interest of public safety and would facilitate smooth movement of traffic, it will be difficult to hold that the rules and sub-rules of PWD contemplated in the advertisement do not embrace the IRC Guidelines either because there was no specific mention thereof in the tender documents or the same do not have a statutory flavour. We, therefore, hold that the fulfillment of the requirements spelt out by the IRC Guidelines relevant to the present cases to be a mandatory requirement of the tender conditions. Coupled with the above what we find is that the action of the appellant Corporation cannot be said to be either arbitrary or unreasonable inasmuch as a uniform standard has been applied to all the applicants and in the present two appeals in question no candidate has been found to be eligible upon application of the said uniform standard i.e. the IRC norms. The action of the appellant Corporation, therefore, not being in any manner arbitrary or unreasonable the power of judicial review vested in the High Court ought to have been exercised with due circumspection.
8. A perusal of the orders of the High Court indicates that the only basis on which the decision of the appellant Corporation has been faulted with is that the IRC Guidelines are not mandatory. We fail to see how such a view can be sustained keeping in mind the provisions of the advertisement quoted above; the purport and object of the said norms; the uniform application of the same to all the tenderers by the appellant Corporation and above all the requirements of public interest.
9. In view of the above conclusion reached, it is not necessary for us to consider the arguments advanced on the question of permissibility of deviations from tender conditions, on the touchstone of public interest or the issue of understanding the requirement of the IRC Guidelines as implied terms of the tender document”.
20. The aforesaid decision by Hon’ble Supreme Court was in the context of adoption of IRC guidelines by State of Madhya Pradesh. The respondents in the present case have not placed on record any material to suggest that the State of Himachal Pradesh has excluded the applicability of Indian Roads Congress (IRC) guidelines. As noted above, we have already observed that the Indian Roads Congress (IRC) guidelines by themselves do not restrict the area of operation.
21. There is sufficient material on record to suggest that the Public Works Department in the State of Himachal Pradesh has even adopted the MoRTH guidelines for the purpose in question. The petitioners have placed on record a document issued by Assistant Engineer, Nurpur Sub Division, HPPWD, which reads as under:-
“Date-24/09/2020 Mr. Lakshay Mahajan Nurpur, Himachal
TO WHOMSOEVER IT MAY CONCERN
The guidelines/norms for Major District road (MDR) for access permission to Fuel Station in the State of Himachal Pradesh are followed same as the ‘guidelines/norms for access permission to Fuel Station along National Highway’ as issued by Ministry of ‘Road Transport and Highways, Government of India.
Sd/- Assistant Engineer Nurpur Sub Division H.P.PWD Nurpur”.
22. In addition, Learned Senior Advocate representing IOC, at the time of addressing arguments, has also placed on record a letter received by IOC from Executive Engineer, Dehra HPPWD Dehra which reads as under: -
“HIMACHAL PRADESH PUBLIC WORKS DEPARTMENT
NO.:PWD/CB/WA/NOC/2021-22:-3581 DATED:- 05/08/2021
To
The Divisional Retail Sales Head
L.O.C. Shimla, Divisional Office, Shimla (H.P.)
Subject:- No objection certificate.
Reference:- Your office letter No. Shimla DO/RO-NOC/HPAICL- BOHAN Dated 04/08/2021.
With reference to letter referred above on the subject cited above it is submitted that No Objection Certificate has already been issued to Addl. District Magistrate, Kangra at Dharamshala, vide this office letter No.20715-16 dated 02/01/2020 as per rules. The MoRTH Guidelines followed for layout purpose of Retail outlet/Fuel Station.
DA/Nil
Executive Engineer Dehra Division HP.PWD. Dehra.”
23. From above noted material, it becomes clear that the Public Works Department of the Government of Himachal Pradesh has been following IRC and also the MoRTH guidelines. Thus, we have no hesitation to answer the first question in affirmative as in our considered view IRC and MoRTH guidelines are applicable to the case in hand.
24. We have another reason to hold so. The absence of the applicability of any of such guidelines shall lead to chaotic condition. The State Highways and MDRs or for that matter any other road(s) are the lifelines of State and by allowing the establishment of fuel stations or any other structure at the whims and fancies of individuals will result catastrophically. Most of the National Highways available in the State of Himachal Pradesh today, were either State Highways or MDRs during yesteryears.
25. Respondents IOC being instrumentality of the State is under legal obligation to act with reasonableness to avoid arbitrary rule which cannot be countenanced in any developed legal system.
26. To support the stand of IOC, Shri Shrawan Dogra Learned Senior Advocate has also made endeavor to persuade us by making reference to judgments passed in AIR 1951 SC 69 , 1972 (3) SCC 684, 1973 (1) SCC 726, 1977(1)SCC 750, 2010(1) SCC 756. These judgments deal with principles of interpretation of statutes, which in our considered opinion, will not help the cause of respondents in present cases.
27. As far as the second ancillary question is concerned, we must observe that the violations of IRC and MoRTH guidelines, as alleged by the petitioners, have neither been specifically denied nor refuted or controverted by placing on record relevant documents.
28. Interestingly, however, a copy of letter dated 2.1.2020 issued by the Executive Engineer, HPPWD, Dehra Division to the Additional District Magistrate at Dharamshala purporting to be the No Objection Certificate, has been placed on record on behalf of IOC. The contents of this letter reveal that the purported NOC was issued in compliance only of H.P. Road Side Control Act and H.P. Road Infrastructure Protection Act. There was no reference in the said letter with respect to adherence, if any, either to IRC or MoRTH guidelines. A reading of the contents of letter dated 2.1.2020 issued by Executive Engineer; Dehra HPPWD Dehra will be relevant here. The letter read as under: -
HIMACHAL PRADESH PUBLIC WORKS DEPARTMENT
NO.:PWD/CB/WA/NOC/2019-20:- 20715-16 Dated:- 2/1/2020
To
The Addl. District Magistrate, Kangra at Dharamshala
Subject:- No objection certificate.
Reference Your office letter No.609-14 dated 10/12/2019.
As per the report of Assistant Engineer Sub Division HPPWD Jawalamukhi it is submitted that the proposed land for construction of retail outlet falls in Khasra No.723/2/3 at location village Bohan Tehsil Dehra Distt. Kangra on Jawalamukhi Dehra Jawali Raja Ka Talab road (MDR-80) and at RD 0/706. This department has not objection if the construction work is done at a distance of 5 mtrs. away from the acquired width of PWD road/in accordance with the provisions of road side control Act and H.P. road infrastructure Protection Act.
DA/Nil.
Executive Engineer Dehra Division HP.PWD. Dehra
Copy to the Assistant Engineer, Sub –Division HPPWD Jawalamukhi w.r.t. his office letter No.4903 dated 18/12/2019 for information.
Executive Engineer, Dehra Division HP. PWD Dehra
29. Thus, It can be inferred from the conduct of respondents as well as material on record especially letter dated 2.1.2020 written by the Executive Engineer, HPPWD, Dehra, District Kangra to Additional District Magistrate, Kangra, that while allotting the outlets in question, aforesaid guidelines were not followed.
30. Learned Senior Advocate representing IOC, at the hearing of the case, has submitted with vehemence that IOC was bound only by the brochure brought out for selection of dealers which was the only magna carta for them. A copy of such brochure has also been placed on record at the time of hearing. Perusal of the contents of this document we have not found anything pertinent to the issues raised in present petition. The brochure relied upon by IOC is the internal document of the Nationalized Oil Companies i.e., Indian Oil, Bharat Petroleum and Hindustan Petroleum which deals only with the process for selection of dealers of these companies. It nowhere deals with any requirement to follow the laws/rules, if any, with respect to the maintenance of safe traffic and other allied issues including the rules applicable for development of infrastructure. To the contrary, we found the requirement of filing affidavits by non- individual applicant at the appendix X-B of this document and in this affidavit one of the requirements to be mentioned is in following terms: -
“4. That on behalf of the Registered Society*/Company*/Charitable Trust* undertake that we will observe all the relevant guidelines with regard to award/operation of the said dealership issued by Indian Oil Corporation*/Bharat Petroleum Corporation*/Hindustan Petroleum Corporation* /Government of India or any other statutory body from time to time.”
In light of above discussion, the second question is also answered in affirmative.
31. The petitioners have also alleged that the allotment is bad as the same has been made without publishing it for the notice of the General Public. The contention of petitioners in this behalf deserves to be rejected. The IOC has specifically maintained that vide its policy circulars issued from time to time the criteria for allotment of retail outlet dealership to Government Body/Organization is permissible without resorting to advertisement route. The stand of the respondents in this behalf is substantiated by the documents placed by them on record.
32. As regards the contention of respondents that the petitions are not bona fide and the petitioners have no locus to file the petitions. In our view, if in exercise of jurisdiction under Article 226 of the Constitution of India, material abrasion of rules and serious dereliction in discharge of its public duties by public authority are discovered, the objections as to locus etc. pales into insignificance. Even otherwise, nothing has been brought on record to show that petitioner in CWP No.4239 of 2020 had any vested interest in filing and prosecuting the petition. Similarly, the cause of petitioners in CWP No.3338 of 2020 and CWP No.2703 of 2020 cannot be said to be without any substance as these are existing fuel dealer in the vicinity and its rights are definitely going to be affected by non-adherence to rules by respondents.
33. All the petitions are therefore allowed. The allotments of retail sale outlets of petroleum products by IOC in favour of H.P .Agro Industries at Village Bohan, Tehsil Jwalamukhi, District Kangra, Himachal Pradesh and in favour of Shri Satwant Singh at Mohal Thara, Sub Tehsil Dulehar, District Una, Himachal Pradesh are quashed. Respondent IOC is directed to make allotment, if any, in the same villages/places/location or at any other place after strict adherence to the prescribed rules viz., the rules/ guidelines framed by Indian Roads Congress (IRC) and/or Ministry of Road Transport and Highways (MoRTH) and all other statutory/legal applicable requirements. The petitions are accordingly disposed of so also the miscellaneous applications, if any, with no orders as to costs.
