1. Petitioner herein is aggrieved by the action of respondent No. 3 i.e. District Magistrate, Bilaspur, who allegedly, vide communication dated 16.1.2024, Annexure P-9, (colly) issued No Objection Certificate in favour of respondent No.4 i.e. Bharat Petroleum Corporation Limited (hereinafter, 'BPCL') for setting up MS/HSD retail outlet (Petrol Pump) over Khasra No. 2077/293, situate in Mohal Sunhani, Tehsil Jhandutta, District Bilaspur, Himachal Pradesh in violation of guidelines/norms for grant of permission for construction of access to Fuel Stations, Wayside amenities, connecting roads, other properties, rest area complexes and such other facilities, circulated by Indian Road Congress as well as Ministry of Road Transport and Highways (SUR (P&B) Section)
2. For having bird's eye view of the matter, facts, shorn of unnecessary details but relevant for adjudication of case at hand, are that the petitioner herein, who is a war widow, came to be issued Letter of Intent (hereinafter, 'LoI') dated 5.3.2003, Annexure P-2, for outlet dealership at Berthi, District Bio at Berthi, District Bilaspur, Himachal Pradesh by Indian Oil Corporation Limited (hereinafter, 'IOCL'). Though at the time of issuance of aforesaid LoI, petitioner was working as a Vidya Upasak in the Department of Education, Himachal Pradesh on part time basis but since retail outlet could only be allotted to an unemployed widow/family member of soldier, who had sacrificed his life during Kargil war, petitioner herein had to leave her job of Vidya Upasak. After being allotted the dealership in 2003, petitioner had been successfully running petrol pump at the given location. Though, in the year 2005 and 2014, respondent BPCL attempted to advertise dealership of Retail Outlet adjacent to the place, where Retail Outlet of petitioner was functioning but such attempts of BPCL were aborted on account of interference by Ministry of Defence (hereinafter, 'MoD'), which allegedly prevailed upon District Administration as well as BPCL that due to opening of new Retail Outlet in the near vicinity of Retail Outlet already allotted in favour of petitioner, very purpose and object of providing employment to petitioner being a war widow, would be frustrated. However, subsequently in the year 2017, not only respondent BPCL but other company namely M/s. Reliance B.P. Mobility Limited also opened Retail Outlets in the vicinity of Retail Outlet of the petitioner at place Berthi, District Bilaspur. Though at the time of opening two Retail Outlets supra, petitioner herein requested Ministry of Defence, Government of India to intervene but it appears that nothing was done by them and as such, petitioner herein approached this court by filing CWP No. 6832 of 2021, which is still pending adjudication.
3. In December, 2023, petitioner came to know that respondent BPCL has applied for No Objection Certificate to respondent No.3 i.e. Deputy Commissioner, Bilaspur, for setting up new Retail Outlet just adjacent to Retail Outlet of petitioner at village Dharoti, Post Office. Berthi, in Village Sunhani. Being aggrieved by opening of new Retail Outlet in the vicinity of Retail Outlet of the petitioner, she submitted an application on 30.12.2023 to respondent No.3. Besides above, petitioner herein also made complaint to Divisional Commissioner Mandi, who, vide communication dated 6.1.2024 sent a request to respondent No.3 to look into the matter. But since no steps were taken by said authorities to stop opening of new Petrol Pump at Sunhani, petitioner vide communication dated 12.3.2024, applied for certain information under Right to Information Act, 2005. Though, no response was received by petitioner to the aforesaid request sent by her, but it came to be revealed to some other person in response to an application filed under Right to Information Act, 2005, that BPCL has allotted Retail Outlet in favour of respondent No.7, In the aforesaid background, petitioner herein has approached this court in the instant proceedings, praying therein for following main reliefs:
""(i) That the impugned No Objection Certificate dated 16.1.2024 available in Annexure P-6 may very kindly be quashed and set aside with directions to the respondents not to allow opening of retail outlet at the place in question being contrary to all norms meant for the purpose.
(ii) That Letter of Intent with respect to which the petitioner could not lay her hands despite best efforts and even after resorting to RTI, may very kindly be summoned from the respondents and thereafter, the same may also very kindly be quashed and set aside in the interest of law and justice."
4. Precisely the grouse of the petitioner, as has been highlighted in the grounds of the petition and further canvassed by Mr. Ajay Sharma, learned senior counsel duly assisted by Mr. Atharv Sharma and Mr. Tarun Brakta, Advocates appearing for the petitioner, is that the action of making allotment of Retail Outlet in favour of respondent No.7 by respondent BPCL at Village Sunhani is the result of complete non- application of mind by respondent No.3 as well as respondent BPCL because, once, it had come to the notice of aforesaid authorities that in village Dharoti, which is at a stone's throw from Retail Outlet allotted in favour of petitioner at Sunhani, in recognition of services rendered by her husband during Kargil war coupled with the fact that Retail Outlet set up by the petitioner after her having resigned from the post of Vidya Upasak is the sole source of income, there was otherwise, no occasion for afore authorities to permit respondent No.7 to open new Retail Outlet at Village Sunhani. It came to be argued by Mr. Sharma, learned senior counsel for the petitioner that once earlier proposal mooted by BPCL to set up Petrol Pump in the vicinity of Retail Outlet/Petrol Pump being run by the petitioner was shelved on account of objection raised by Ministry of Defence, respondent No.3 ought not have granted NOC in favour of respondent No.7, because by granting NOC in favour of BPCL for setting up Retail Outlet at Sunhani, very purpose and object of allotting Retail Outlet in favour of the petitioner in recognition of services rendered by her husband during Kargil war have been defeated because, very purpose of allotting Retail Outlet in favour of the petitioner was to ensure that after death of her husband, petitioner is not left in lurch and some permanent source of income is generated for her. Mr. Sharma, learned senior counsel further argued that on account of opening three Retail Outlets, i.e. 02 by BPCL and one by Reliance B.P. Mobility Limited, Petrol Pump set up by the petitioner is at the verge of closure. He submitted that since the area, where petitioner has been given dealership of Retail Outlet, is rural and there is no constant and regular traffic, sole source of earning livelihood, provided by Government of India would be snatched away from the petitioner because, on account of setting up of three Petrol Pumps in near vicinity of the Petrol Pump of the petitioner, it may be difficult for the petitioner to survive, rather, she may not be able to even recover her investment.
5. Major argument advanced by Mr. Sharma, learned senior counsel for petitioner is that respondent No.3, while granting NOC in favour of BPCL, failed to take note of guidelines framed by IRC and MoRTH, which provide that distance of new Retail Outlet from the already working Retail Outlet should not be less than 1000 metres, however, in the instant case, distance between already existing Retail Outlet of the petitioner and proposed Retail Outlet is only 875 metres. He further submitted that there is a temple at the distance of 115 metre from proposed Retail Outlet of BPCL, which is again contrary to guidelines adopted by Himachal Pradesh Public Works Department (hereinafter, 'HPPWD'), pursuant to directions issued by the National Green Tribunal (hereinafter, 'NGT'). He further stated that there is Saraswati Vidya Mandir, at a distance of 70 metres and Government Senior Secondary School Sunhani which is at a distance of 600 metres and existing houses and shops adjoining to the proposed Retail Outlet, as such, the NOC could not have been issued by respondent No.3 for setting up Retail Outlet. While referring to Annexure P-11, which is a map prepared on the basis of google map, Mr. Sharma argued that there is a bifurcation from Sunhani Chowk to Tihra and distance of such intersection/bifurcation from proposed Retail Outlet of BPCL is 100-150 metres, which is again in violation of guidelines of IRC/MoRTH, which provide that there should be and a minimum distance of 300 metres from intersections. While making this court peruse Annexure P-12, the photographs, Mr. Sharma again argued that there is not only temple and Abadis adjacent to the site of proposed Petrol Pump but there is another temple at backside of Abadi at a distance of 20-30 metres. While referring to judgment passed by Division Bench of this Court in M/s. Aditya H.P. Centre v. Union of India and others, CWP No. 4239 of 2020 and other connected matters, decided on 17.8.2021, Mr. Sharma, argued that in the aforesaid judgment, Division Bench of this Court, while relying upon a judgment passed by Hon'ble Apex Court in Indian Oil Corporation Limited and others v. Aarti Devi Dangi and another, MANU/SC/1304/2015 : (2016) 15 SCC 480, categorically ruled that the guidelines issued by IRC are mandatory and required to be adhered to in their letter and spirit, as such, NOC issued by respondent No.3, granting permission to BPCL to set up Retail Outlet at Village Sunhani in violation of guidelines issued by IRC deserves to be quashed and set aside.
6. Pursuant to notices issued in the instant proceedings, respondents Nos. 3 to 6 have filed their replies. Petitioner-herein has also filed rejoinder to the replies filed by respondents Nos. 3 to 6. Respondent No.7, in whose Retail Outlet came to be allotted by BPCL has though not filed reply to the application but prayer came to be made by learned counsel for the afore respondent that averments contained in CMP No. 5967 of 2024 filed under Art. 226 (3) of Constitution of India for vacation of order dated 2.9.2024 passed in CMP No. 4275 of 2024, ordering that Petrol Pump allotted to respondent No.7 shall not be made operational without the leave of the court, may be read as reply to the petition.
7. If the replies filed by respondents supra are seen, they in unison have stated that NOC issued by respondent NO.3 is strictly in accordance with law and there is no scope of inference. Afore respondents have stated in their respective replies, that the guidelines issued/framed by IRC and MoRTH, pressed into service by petitioner are not applicable in the case, as far as setting up of Petrol Pump by BPCL at Sunhani is concerned, because, afore guidelines apply to National Highways and definitely not to rural and Major District Roads (MDRs).
8. Mr. Rajan Kahol, learned Additional Advocate General, while referring to the reply filed by respondent No.3, vehemently argued that respondent No.5 wrote to said respondent regarding its intention to set up MS/MHD Petrol Pump Khasra No. 2077/293, Mohal Sunhani, Jhandutta, District Bilaspur and further requested for issuance of NOC in favour of BPCL (Annexure R-I). He further submitted that before acceding to request made by BPCL, respondent No.3 directed field agencies to conduct spot verification and accordingly, Sub Divisional Magistrate, Jhandutta conducted a joint inspection on 21.12.2023 and submitted report vide Annexure R-II, dated 23.12.2022 recommending for setting up a new Petrol Pump. While refuting the objection raised by Mr. Ajay Sharma, learned senior counsel for petitioner that complaint dated 30.12.2023, was not taken note by respondent No.3, Mr. Kahol, further argued that the complaint addressed to respondent No.3 was duly considered and once said authority was satisfied that NOC as prayed for can be granted and there is no impediment, if any, for grant of NOC, it besides responding to communications addressed to respondent No.3, also apprised the petitioner with regard to its decision before granting NOC in favour of BPCL. He further submitted that the Petrol Pump proposed to be set up is along MDR No. 116 and distance between proposed Retail Outlet to be set up by BPCL and that of petitioner is 1.390 km, which is strictly in conformity with guidelines framed by IRC and MoRTH, dated 25.9.2003 (Annexure R-V). While referring to, letter, Annexure R-VI issued by MoRTH, Mr. Kahol argued that though guidelines apply to National Highway, but even if same are applied to the proposed Retail Outlet of BPCL at Sunhani, it cannot be said that there is no compliance of same. He further submitted that though guidelines pressed into service do not apply to MDR and HPPWD but yet issue of distance sought to be raised by the petitioner is of no consequence, because, distance between the Petrol Pump of petitioner and proposed Petrol Pump of BPCL is more than 1000 metres which is strictly as per guidelines framed by IRC and MoRTH. While refuting contention of learned senior counsel for the petitioner that the land offered by private respondent for setting up Petrol Pump stands mortgaged with the Bank, Mr. Kahol, specifically invited attention of this court to para 12 of reply filed by respondent No.3 to state that Nakal Jamabandi of Sunhani dated 16.9.2023 clearly reveals that the loan obtained by one Ganga Ram son of Bhagat Ram, from Himachal Pradesh State Co-operative Bank Limited, Berthi and HDFC Bank Ghumarwin against land bearing Khasra No. 2077/293, measuring 07-18 Bigha have been closed vide mutation No. 3066 and 3067, dated 15.9.2023 (Annexure R-XIII), as such, it cannot be said that no permission to set up Petrol Pump could be granted on the land offered by the private respondent. While referring to report dated 27.4.2024, given by Assistant Engineer, HPPWD Sub Division Berthi, Mr. Kahol submitted that distance of proposed Petrol Pump from Santoshi Mata Temple Sunhani, Government Senior Secondary School Sunhani, Saraswati Vidya Mandir, Sunhani is 0.300 km, 0.150 kms and 0.190 kms, respectively, which is in consonance with the guidelines, which otherwise cannot be made applicable to case at hand. While referring to aforesaid report, he further submitted that otherwise also no reliance, if any, can be placed upon the map prepared by petitioner on the basis of Google Map, which has no authenticity rather, report of Assistant Engineer, HPPWD, Berthi, based on spot visit, can only be taken into consideration. While referring Aditya HP Centre supra, Mr. Kahol submitted that same has no application in the case at hand.
9. Mr. B.N. Misra, learned senior counsel duly assisted by Ms. Farhana Khan, Advocate, appearing for respondents Nos. 4 to 6, also supported impugned action of respondent No.3, inasmuch he proceeded to issue NOC to BPCL for setting up Petrol Pump at Village Sunhani. Mr. Misra, learned senior counsel vehemently argued that guidelines of IRC and MoRTH are not mandatory, especially when same are not adopted by the State, in which Retail Outlet is proposed to be opened. He further submitted that though the guidelines pressed into service by petitioner have no application in the case at hand, but parameters laid down with regard to distance therein, stand fully satisfied in the present case, as such, it cannot be said that the BPCL, while allotting Retail Outlet in favour of respondent No.7 failed to adhere to guidelines of IRC and MoRTH. While referring to Aditya H.P. Centre supra, Mr. Misra, vehemently argued that Hon'ble Apex Court has already stayed aforesaid judgment and as such, same may not be of any help to the case of the petitioner. He further submitted that otherwise the Division Bench of this Court wrongly placed reliance upon Aarti Devi Dangi, supra, wherein it came to be ruled that the guidelines famed by IRC and MoRTH are mandatory. He stated that aforesaid observation made by Hon'ble Apex Court is in altogether different context and has been misinterpreted because, in afore judgment, Hon'ble Apex Court held that once in tender notice, there was specific reference to the guidelines framed by IRC and MoRTH, party trying to wriggle out of same, cannot be extended any relief, rather, in such like situation same are compulsorily required to be given effect to.
10. Mr. Sunil Mohan, Goel, learned senior counsel duly assisted by Mr. Raman Jamalta, Advocate appearing for respondent No.7, while refuting contention of learned counsel for the petitioner, specifically invited attention of this court to brochure issued by BPCL to state that it nowhere states that the norms/guidelines, if any framed by IRC and MoRTH shall be applicable, especially qua the road, on which private respondent has been allotted Retail Outlet. He submitted that though, guidelines issued by IRC and MoRTH have no application in the case at hand but the replies filed by respondent No.3 as well as respondent No.5 clearly suggest that distance between Petrol Pump of petitioner and proposed Retail Outlet at Sunhani is more than 1000 metres, whereas, as per IRC guidelines, minimum distance between two Retail Outlet should not be less 1000 metres. He further submitted that if the guidelines issued by IRC are read in their entirety, they nowhere suggest that minimum distance is required to be maintained between Petrol Pump and temple, schools etc. However, in the instant case, as per reply filed by respondent No.3, distance of Petrol Pump proposed to be set up and various institutions i.e. temple, Government Senior Secondary School Sunhani and Saraswati Vidya Mandir is 0.300 km, 0.150 kms and 0.190 kms, respectively, which is in consonance with the guidelines issued by HPPWD pursuant to order passed by NGT. Mr. Goel, learned senior counsel vehemently argued that otherwise also, petition filed by petitioner is not maintainable for the reason that same has been filed by a person, who is admittedly a competitor of respondent No.7, in the market. He states that since it is an admitted fact that two Petrol Pumps already exist in the vicinity of Petrol Pump set up by petitioner, there cannot be any objection by petitioner for setting up of another Petrol Pump, which is at distance of 1.390 km. While specifically refuting contention raised by Mr.Ajay Sharma, learned senior counsel for the petitioner, with regard to distance of proposed Petrol Pump from the intersection, Mr. Goel, vehemently argued that though there is nothing on record to suggest that intersection, from where distance of Petrol Pump proposed to be set up, can be counted, is an 'intersection', but even if spot claimed to be an 'intersection, by petitioner, is considered to be intersection even then there is distance of more than 270 metres, whereas, as guidelines framed by IRC, minimum distance of Petrol Pump from intersection should be 300 metres. He further submitted that as per own case set up by the petitioner, private respondent stood already allotted Petrol Pump before filing of petition at hand but there is no explanation for delay in approaching this Court. He submitted that if averments contained in the petition are read in their entirety, it clearly suggests that factum with regard to issuance of LoI dated 30.11.2023 in favour of private respondent, had come to the knowledge of the petitioner in the year 2023 itself, but at that stage, she chose to remain silent and continued to correspond with respondent No.3, raising question with regard to issuance of NOC. Mr. Goel submitted that immediately after issuance of LoI, private respondent by raising huge loan, set up Petrol Pump and before passing of impugned order, whereby it was ordered that the proposed Retail Outlet will not become operational without the leave of this Court, BPCL after receipt of huge amount had already supplied petrol/diesel but now, on account of filing of petition at hand, which has been filed solely to create monopoly by the petitioner, private respondent herein is suffering huge loss. Lastly, Mr. Goel also submitted that though guidelines of IRC and MoRTH are not applicable to the present case, but even if it is presumed that same are applicable to case of respondent No.7, distance criteria between Petrol Pump stands complied with as such, present petition deserves to be dismissed with exemplary costs.
11. I have heard learned counsel for the parties and gone through the pleadings.
12. Having heard learned counsel for the parties and perused material available on record, this court finds that the petitioner herein was allotted dealership of Retail Outlet by Indian Oil Corporation Limited in the year 2002 on account of being a war-widow and since, then she has been successfully running Petrol Pump at Village Dharoti. It is also true that after allotment of aforesaid Petrol Pump in favour of the petitioner, on two occasions, MoD intervened and earlier proposals made by BPCL and other oil companies to set up Petrol Pump in near vicinity of Petrol Pump set up by the petitioner, were thwarted. However, if the short reply-affidavit filed by Col. Pradeep Singh Karki, Director (Security Agency Scheme), Resettlement Zone (North), Ministry of Defence, it nowhere suggests that oil companies are debarred or prevented from setting up new Retail Outlets /Petrol Pumps, in the vicinity of Petrol Pump/Retail Outlet, if any allotted in favour of war-widows. Reply filed by said authority (available at page 291), suggests that on two occasions, on the request of petitioner, request was made by Army to look into complaint filed by the petitioner but it has been categorically stated in the reply that the entire process of identification of area/survey where new Petrol Pump is to be opened is decided by oil companies. In case of reservation, if any, of Petrol Pump to defence personnel, only job of army is to issue eligibly certificate for ESM and thereafter, it has no say in selection process at any stage.
13. No doubt, in the case at hand, petitioner being a war-widow came to be allotted Retail Outlet, but that would not mean that oil companies, including BPCL are debarred or could not have advertised/allotted fresh Petrol Pump to respondent No.7 or any other person, in the vicinity of Petrol Pump already set up by petitioner.
14. Though, Mr.Ajay Sharma, learned senior counsel for petitioner repeatedly argued that with the allotment of Petrol Pump by BPCL in favour of respondent No.7, very object of providing Petrol Pump to the petitioner is defeated but such submission deserves outright rejection for the reason that this court is of view that very object and purpose of providing immediate succour to the family of martyr stood accomplished in the case of petitioner after death of her husband, especially when it is not in dispute that in the year 2002, she came to be allotted Retail Outlet at Dharoti, under ESM category on the recommendation of Ministry of Defence. Once, Petrol Pump under said category is allotted, duty and responsibility of Ministry of Defence ended there and thereafter, all efforts were to be made by the petitioner to boost her business but certainly, allotment of Petrol Pump under aforesaid category, cannot be a ground to claim that no Retail Outlet by BPCL or any other company can be permitted to be set up in near vicinity. Such argument if accepted, would amount to helping petitioner to create monopoly in the market, which is otherwise not permissible.
15. Similarly, this court having taken note of approach adopted by petitioner coupled with the fact that on account of opening of new Retail Outlet at Village Sunhani, there will be more competition inter se various Retail Outlets set up in the area including that of the petitioner, this court is persuaded to agree with Mr. Goel, learned senior counsel for respondent No.7, that the petition has been filed solely with a view to oust private respondent so that competition being faced by petitioner is scuttled, which may not be in the interest of public at large.
16. Hon'ble Apex Court in Nagar Rice & Flour Miills & Ors. v.N. Teekappa Gowda & Bros. & Ors. MANU/SC/0453/1970 : 1970:INSC:44 : 1971 AIR 246, has held that that it is not permissible for a competitor to seek to prevent a rival from exercising their right to carry on business. Relevant para of aforesaid judgment is reproduced herein below:
"Section 8 (3) (c) is merely regulatory : if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regard as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Art. 19(6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed."
17. Though, in the case at hand, it came to be vehemently argued that the land offered by private respondent was mortgaged, but as has been taken note herein above, mortgage if any, stood redeemed and respondent No.3 after verifying revenue record, proceeded to issue NOC in favour of BPCL. Though parties to lis vehemently argued with regard to application of guidelines, if any framed by IRC and MoRTH, and in that regard, learned senior counsel for the petitioner specifically invited attention of this court to M/s. Aditya H.P. Centre supra, wherein placing reliance upon Aarti Devi Dangi, supra, Division Bench of this Court ruled that guidelines framed by IRC and MoRTH are mandatory and cannot be ignored, while considering prayer made for allotment of Retail Outlet. But having taken note of the fact that the criteria of distance as provided in guidelines of IRC and MoRTH is claimed to have been met by respondents especially BPCL and respondent No.3 this court need not go into applicability of guidelines of IRC and MoRTH. Moreover this court finds that in the judgment passed by Division Bench of this Court in M/s. Aditya H.P. Centre, supra, has been stayed by Hon'ble Apex Court vide order dated 29.11.2021, in Indian Oil Corporation Limited & Anr. v. M/s. Aditya H.P. Centre & Ors., SLP(C) No. 19149-19150/2021.
18. Since, afore finding, if any given by the Division Bench of this Court with regard to mandatory nature of IRC/MoRTH guidelines, is yet to be adjudicated in the petition filed by Indian Oil Corporation Limited, detailed above, this court does not see any necessity to comment upon same, however, it shall proceed to ascertain the correctness of claim put forth by the respondents that norm of distance, as provided in IRC/MoRTH guidelines, stands met in the case of private respondent.
19. Precisely, the grouse of the petitioner in the case at hand, is that distance of Retail Outlet allotted in favour of respondent No.7 from Petrol Pump set up by petitioner is 870 metres approximately, which is contrary to guidelines of IRC/MoRTH which provide that the minimum distance between two Retail Outlets/Petrol Pumps should be more than 1000 metres. Apart from above, it has been claimed that there is a temple at a distance of 150 metres from Retail Outlet allotted in favour of private respondent, which is contrary to guidelines framed by IRC. However, said claim put forth by petitioner has been seriously refuted by reply filed by respondent no.3, who pursuant to request made by BPCL for issuance of NOC, constituted a committee under chairmanship of Sub Divisional Magistrate. Careful perusal of letter communication dated 23.12.2023 issued by Sub Divisional Officer (Civil) Jhandutta, in response to communication dated 7.12.2023 issued by respondent No.3, reveals that Sub Divisional Officer (Civil) Jhandutta visited the proposed site with Superintendent of Police, Bilaspur, Assistant Engineer, Himachal Pradesh Public Works Department, Sub Division Berth, Executive Engineer, Jal Shakti Vibhag, Division Jhandutta, Commandant, Home Guards, 5 Battalion, Bilaspur, District Controller, Food, Civil Supplies and Consumer Affairs, Environmental Engineer, PCB, Bilaspur, Deputy Commissioner, State Taxes and Excise, Bilaspur, Assistant Controller, Legal Metrology (Weights and Measures) Bilaspur), and after being satisfied that proposed site is fit for setting up Retail Outlet, recommended for issuance of NOC.
20. If the report submitted by SDM Jhandutta submitted vide letter dated 23.12.2023, is seen, all the members of said Committee, who represent different departments/organization, put their signatures upon the report, meaning thereby that all the concerned Departments, had no objection in setting up Petrol Pump at the given site. At this stage, it would apt to take of Annexure R-VII, dated 8.5.2024, whereby respondent No. 3, while responding to letter dated 30.12.2023 of the petitioner has rejected the objection raised by the petitioner with regard to setting up new Petrol Pump/Retail Outlet as the distance between Petrol Pump of petitioner and that of proposed Petrol Pump is stated to 1.390 km. Perusal of aforesaid communication belies the argument raised by learned senior counsel for the petitioner that no heed, if any, was paid to complaint of petitioner as such, she was constrained to approach higher authority. Bare perusal of aforesaid communication reveals that Deputy Commissioner, having taken note of complaint of petitioner, got the matter enquired regarding distance of Petrol Pump, from the Sub Divisional Officer (Civil) and found that distance of Petrol Pump of petitioner at Dharoti and Petrol Pump being set up by BPCL at Sunhani is 1.390 kms. While sending aforesaid communication, respondent No.3 overruled the objection raised by the petitioner by stating that Petrol Pump is being set up strictly in conformity with guidelines in vogue. Careful perusal of said communication reveals that proposed Retail Outlet is on MDR No. 116 constructed by Public Works Department. Assistant Engineer, HPPWD, Sub Division Berthi, who was otherwise associated by the Sub Divisional Magistrate, while conducting joint inspection, reported to respondent No.3, that the distance between Petrol Pump of petitioner and proposed Petrol Pump allotted to respondent No.7 is 1.390 km. If it is so, it cannot be said that there is any violation of norms fixed by IRC /MoRTH, with regard to distance, which provide that there should be a minimum distance of 1000 metres between two Petrol Pumps/Retail Outlets.
21. Since, in the case at hand, distance between Petrol Pump of the petitioner and the Petrol Pump proposed to be set up by respondent No.7 is more than 1000 metres i.e. 1.390 kms, this court is not persuaded to agree with Mr. Sharma that there is any violation of guidelines framed by IRC and MoRTH.
22. Similarly, this Court after having perused guidelines framed by IRC is persuaded to agree with learned counsel for the respondents that there is no norm fixed by IRC with regard to distance, if any, between proposed Retail Outlet and schools, temples etc. Though, in terms of judgment of NGT, there appears to be norms fixed by Public Works Department, which provide for minimum distance between Petrol Pump and schools, temples etc. but reply filed by respondent No.3 clearly reveals that there is sufficient distance between Petrol Pump allotted to respondent No.7 and schools, temples etc. situated in the vicinity of same.
23. As per reply filed by respondent No.3, distance of Petrol Pump allotted to respondent No.7 from Santoshi Mata Temple Sunhani, Government Senior Secondary School Sunhani, Saraswati Vidya Mandir, Sunhani is 0.300 km, 0.150 kms and 0.190 kms, respectively, which is in consonance with guidelines framed by Himachal Pradesh Public Works Department pursuant to the order dated 9.7.2021 passed by NGT in OA No. 61/2021 titled Abhishek Katara v. State of H.P. & Ors.
24. As per report of Assistant Engineer, HPPWD Annexure R-15, distance of Sunhani Chowk is 0.270 km from Petrol Pump proposed to be set up. Though Mr. Sharma, learned counsel for the petitioner vehemently argued that as per IRC and MoRTH guidelines, minimum distance of Retail Outlet from intersection should not more than 300 metres, but he was unable to point out any material on record suggestive of the fact that Sunhani Chowk, from where two roads merge/bifurcate can be said to an 'intersection'. Mr. Ajay Sharma, learned senior counsel for the petitioner placed heavy reliance upon satellite map downloaded from Google Earth (Annexure R-15 of reply filed by petitioner to CMP No. 5978 of 2024), perusal whereof reveals that two roads, one from Tihra and another from Ghumarwin, Bilaspur, merge at so called 'Sunhani Chowk' with road going towards Berthi, on which Petrol Pump of petitioner is already existing and respondent No.7 has been allotted new Petrol Pump.
25. Though, there is nothing to establish authenticity of map prepared on the basis of google location but even if same is presumed to be correct, place claimed to be an 'intersection' cannot be considered and read as 'intersection' in terms of definition of 'intersection' as given in guidelines placed on record by the petitioner.
At this stage, it would be apt to take note of following clause 4 of Guidelines issued by Indian Road Congress:
"4 GENERAL CONDITIONS OF SITING
4.1 The fuel stations shall generally be a part of the rest area complex along the highways. Rest areas should have various amenities for users, e.g. places for parking, toilets, restaurants, rest rooms, kiosks for selling sundry items, bathing facilities, repair facilities, creche etc. These aspects should be incorporated while planning for improvement and upgradaton of highway/road sections and/or planning for new fuel stations along the highways/roads. The rest area complex can be planned subject to their commercial viability.
4.2 It should be ensured that the location of the proposed fuel station does not interfere with future improvements of the highway/road and the nearby intersections/junctions.
4.3 The fuel stations would be located where the highway alignment and profile are favourable i.e. where the ground as practically level, there are no sharp curves or steep grades (more than 5%) and where the sight distances would be adequate for safe traffic operation. The proposed location should not interfere with placement and proper functioning of highway signs, signals, lighting or other devices that affect traffic operation.
4.4 While considering the proposal for new fuel stations, it would be ensured that the fuel stations on a corridor are well distributed on both sides of the highways so that vehicles normally do not have to cut across the traffic to reach them. The fuel stations would be serving only the traffic moving on the adjacent lane. For the vehicles traveling in the lanes in opposite direction, separate fuel stations need to be planned for which permission would be considered keeping also in view of its location and distance norms.
4.5 In order to provide safe length for weaving of traffic, fuel stations along highways/roads shall be located at the minimum distance from an intersection (gap in the central median be treated as intersection), as given below. For single carriageway section, these minimum distances would be applicable for both sides. All the distances shall be measured between the tangent points of the curves of the side roads at intersections/the median openings and the access/egress roads of the fuel stations, as is applicable, in a direction parallel to the centre line of the nearest carriageway of the highway.
The above mentioned distances are applicable for setting up of fuel stations along National Highways, State Highways and Major District Roads. In case of fuel stations along the Rural Roads in plain and rolling terrain, the distance from the intersection with NHs/SHs/MDRs can be reduced to 300 m in place of 1000 m depending on the level of traffic.
4.5.1 Non-urban (Rural) stretches
4.5.2 Urban stretches
4.5.3 There shall not be any median gap on a divided carriageway within a distance of 300 m on each side of the fuel station.. This minimum distance i.e. 300 m shall be measured between the start of the median gap and the nearest tangent point of the access/egress road of the fuel station, as is applicable, in a direction parallel to the centre line of the nearest carriageway of the highway. This stipulation shall be applicable for such median gaps, which are located neither in front of nor in proximity of any intersection or intersecting roads. For intersecting road median gaps or median gaps in proximity of intersections, the provisions stipulated under para 4.5.1 and para 4.5.2 shall apply.4
4.6 The minimum distance between two fuel stations would be as given below:
4.6.1 Plain and rolling terrain in non-urban (rural) areas
4.6.2 Hilly/mountainous terrain and urban stretches
Note: (i) The minimum distance of 300 m between two fuel stations on both sides of the road is applicable for undivided carriageway only. In case of divided carriageway, with no gap in medians, the distance restriction is not applicable on the opposite side of the fuel station and the minimum distance between two fuel stations on the same side shall be 1000 m.
(ii) The distance between the fuel stations shall be measured between the tangent points of the access/egress roads of the fuel stations, as is applicable, in a direction parallel to the centre line of the nearest carriageway of the highway.
4.6.3 If two or more fuel stations are to be sited in close proximity for some reasons, these would be grouped together to have a common access through a service road of 7.0 m width and connected to the highway through acceleration, deceleration lanes. From these considerations, the permission for the new fuel stations would be considered only if it is either in proximity to the existing one so that the common access can be provided or the new one located at distance of more than 1000 m. Any objection from the existing fuel station owner against granting of access permission from the highway for the proposed new fuel station are to be overruled and access to all fuel stations in case of clustering, shall invariably be from the service road only.
4.6.4 For installation of new fuel station within the 1000 m or 300 m distance of existing fuel station as the case may be, new entrant would be responsible for construction and maintenance of the common service road, deceleration and acceleration lanes, drainage and traffic control devices. Wherever, available ROW is inadequate to accommodate such service roads, deceleration/acceleration lanes, etc. the additional land by the side of ROW to accommodate such service roads shall also be acquired by the new entrant Oil Company. In case of hilly/mountainous terrain, common service roads at all such locations may not be possible as per the site conditions and, therefore, common access through service roads would not be a pre-condition.
4.7 The fuel station shall not be located within a distance of 1000 m from any barrier including that of toll plaza, and railway level crossing. No check barrier /toll plaza should be erected within 1000 m of a fuel station. However, if such barriers are located on service roads only and are separated from the main carriageway, then this requirement shall not apply. Fuel Stations should be located at a minimum distance of 200 m and 500 m from the start of an approach road of a Road Over Bridge (ROB) and the start of a grade separator or a ramp respectively."
26. If clause 4.5 is read in its entirety, suggests that In order to provide safe length for weaving of traffic, fuel stations along highways/roads shall be located at the minimum distance from an intersection (gap in the central median be treated as intersection), as given below. For single carriageway section, these minimum distances would be applicable for both sides. Needless to say, in the case at hand, road on which Retail Outlet of petitioner is set up and Retail Outlet is proposed to be set up in favour of respondent No. 7 is a single carriage way section. Central median though has not been defined in the aforesaid guidelines, but dictionary meaning of "intersection" as per "Merriam-Webster" is, 'a place or area where two or more things (such as streets)'. But there is not such definition in the guidelines issued by IRC/MoRTH to infer that "Sunhani Chowk" is an 'intersection' and minimum distance is to be maintained from such 'intersection', while opening new Petrol Pump/Retail Outlet.
27. Though as per aforesaid guidelines, in case of fuel stations along the Rural Roads in plain and rolling terrain, the distance from the intersection with NHs/SHs/MDRs can be reduced to 300 m in place of 1000 m depending on the level of traffic. However, for hilly terrain distance of 300 metres from intersection is required to be maintained. It is admitted in the case at hand, that distance of Petrol Pump of respondent No.7 from Sunhani Chowk is 0.270 metres, which is admittedly less than 300 metres, but as has been discussed above, Sunhani Chowk which is claimed to be an 'intersection' cannot be said to be so in terms of clause 4.5 because as per said provision, 'intersection' would mean, gap in the central median.
28. Moreover, present petition has been filed after the Petrol Pump allotted in favour of respondent No.7 had started functioning and therefore also, it would be prejudicial to the interests of the private respondent, in case this Court interferes with the NOC granted by respondent No.3 in favour of BPCL, for opening new Petrol Pump at the give location.
29. Consequently, in view of detailed discussion made herein above, as well as law taken into consideration, this court finds no merit in the present petition and as such, same fails and is dismissed. However, issue of guidelines framed by IRC and MoRTH, being mandatory is not being adjudicated by this Court, because, same is sub judice before Hon'ble Apex Court in M/s. Aditya H.P. Centre.
30. All pending applications stand disposed of. Interim directions, if any, stand vacated.
