Parvinder Singh Vs UOI and Others

Mr. Shrawan Dogra, Senior Advocate with Mr. Mohit Sharma, Advocate, for respondents No. 2 & 3. Mr. Y.P.S. Dhaulta, Additional Advocate General & Mr. Rajat Choudhry, Assistant Advocate General for respondents No. 6 to 10. Mr. Karan Singh Kanwar, Advocate, for respondent No. 11.

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Jyotsna Rewal Dua, Judge

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Respondents No. 2 & 3 – the Indian Oil Corporation Ltd.

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(in short ‘IOC’) advertised various retail outlets of petrol & diesel on

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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28.06.2023 for State of Himachal Pradesh. One of the advertized locations was “PAONTA SAHIB WITHIN MUNICIPAL LIMIT (NOT ON NH)”. Petitioner and respondent No. 11 were the only two applicants for this retail outlet. Respondent No. 11 was declared successful in draw of lots held on 04.12.2023. Letter of Intent was issued to respondent No. 11 on 12.03.2024. Different agencies of the State granted No Objection Certificates [NOC(s)] for the site offered by respondent No. 11 for establishing the retail outlet. Final NOC under Rule 144 of the Petroleum Rules, 2002 was issued by the Deputy Commissioner Sirmour on 02.08.2024. Petitioner, in essence, feels aggrieved against the NOC(s) issued for the site offered by respondent No. 11, hence, this writ petition.

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2. Vide an interim order passed in this writ petition on 27.08.2024, respondents were restrained from issuing load in form of supply of diesel and petrol to respondent No. 11 for the retail outlet in question. The order has continued to remain in force. During pendency of the matter, the writ petition was allowed to be amended to enable the petitioner to incorporate certain additional grounds with due opportunity to the respondents to rebut the same. During hearing of the case an application (CMP No. 27021 of 2025) was moved by the petitioner to place on record map depicting the site in question. Response to the application was filed by respondent

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No. 11, inter alia, placing on record the map of the site offered by him. Application (CMP No. 27021 of 2025) is hereby allowed. Both the maps are taken on record.

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3. Heard learned Counsel for the parties and considered the case file.

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For the sake of brevity, the submissions made by the learned Counsel for the parties and the discussion thereupon have been deliberated hereinafter.

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4 Consideration

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4(i) Respondents have raised preliminary objection to the maintainability of writ petition on following two counts:-

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(a) Petitioner is business rival, a third party. He has no locus standi to maintain the writ petition.

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(b) Petitioner has concealed material facts in the writ petition. His conduct has been dubious. Petitioner cannot be permitted to invoke equitable jurisdiction of

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this Court.

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4(i)a Business Rival

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According to the respondents, petitioner being a business rival, has no locus standi to maintain this writ petition. In support of submission, reliance was placed upon the following decisions:-

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(i) Padma Highways Filling Station vs. Regional Administrator-cum-Sub Divisional Magistrate & Ors² . Paragraphs pressed into service are:-

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“1. The petitioner is running a petroleum filling station and they have challenged the No Objection Certificate dated 12.01.2022 issued by the first respondent and in-principle approval letter dated 22.12.2021 issued by the second respondent in favour of the sixth respondent for resitement of the petroleum outlet of the HPCL from Rural Yanam to National Highways as contemplated in Rule 1.5 & 1.6 of the guidelines issued for resitement of retail outlet dealership by HPCL.

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Learned counsel for the sixth respondent would reiterate the submissions made by the learned Additional Government Pleader (Pondy) for the first respondent. Apart from that he would submit that a writ petition cannot be filed by a business rival. In support of his submissions, he relied upon the following judgments viz.,

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(a) A Division Bench Judgment of this Court in the case of Nataraja Agencies vs. Secretary, Ministry of petroleum & others reported in (2005) 1 CTC 394;

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(b) Order of this Court in the case of Palani Murugan Agencies vs. District Collector reported in (2005) 1 LW 792; and

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(c) Order of this Court in the case of P.Selvi vs. District Magistrate & others reported in AIR 2021 Mad 27.

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Learned counsel for the sixth respondent would also submit that there is no locus standi for the petitioner to file this writ petition. According to him, a third party who is not aggrieved cannot maintain a writ petition and a mere

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2 2022 SCC OnLine Madras 3516

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statement of violation of provision of law is not sufficient to enable the third party who is not aggrieved to challenge the order in question. In support of the said submission, the learned counsel for the sixth respondent relied upon the decision rendered in Pattukottai Azhagiri Transport Corporation Limited vs. V.K.Velayutham & Sons, Imperial Motor Services and others reported in (1993) 1 MLJ 249.

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After giving its explanation, the first respondent has categorically pleaded that the sixth respondent has not violated the guidelines of Ministry of Road Transport and Highways, Government of India dated 26.06.2020 and office memorandum of Central Pollution Control Board, New Delhi dated 07.01.2020. The Division Bench of this Court in the case of Nataraja Agencies vs. Secretary, Ministry of petroleum & others reported in (2005) 1 CTC 394 has followed the decision of the Hon'ble Supreme Court in the case of Mithilesh Garg vs. Union of India reported in (1992) 1 SCC 168 and held that a business rival cannot maintain a writ petition. The relevant paragraph of the aforesaid decision reads as follows:

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“3. The Supreme Court in Mithilesh Garg v. Union of India , 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 businessplace would adversely affect his business interest, even if the setting-up of the new unit is in violation of law. In Mithilesh case, cited supra, the Supreme Court followed its own decision in Rice and Flour Mills v. N.T. Gowda, wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958

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because no right vested in such an applicant is infringed.

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In the present case, the only grievance of the appellant is that if the fourth respondent is permitted to set up her retail outlet within one kilometer radius of the appellant's outlet, his business interest would be adversely affected. In our opinion, the appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was damnum sine injuriadamage without infringement of legal right. In our opinion, this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates.”

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The aforesaid decision has also been followed in the case of Palani Murugan Agencies vs. District Collector reported in (2005) 1 LW 792 and P.Selvi vs. District Magistrate & Others reported in AIR 2021 MAD 27. In the case on hand, admittedly the petitioner is having a petroleum filling station in the very same area where the proposed petroleum outlet is likely to be established by the sixth respondent. Being a competitor as held in the aforesaid decisions, the present writ petition is not maintainable.

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The petitioner is a third party to the impugned no objection certificate. A mere violation of provision of law is not sufficient to enable the third party to challenge the impugned No Objection Certificate. This Court in its decision namely Pattukottai Azhagiri Transport Corporation Limited vs. V.K.Velayutham & Sons, Imperial Motor Services and

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others reported in (1993) 1 MLJ 249 reiterated the said proposition which reads as follows:

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“19. In the Nogar Rice and Flour Mills and Ors. v. N. Teekappa Gowda & Brothers and Ors. , it was held that a rice mill owner had no locus standi to challenge under Article 226 of the Constitution of India, the setting up of a new rice mill by another, even if it was in contravention of Section 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958), because no right vested in such a person was infringed. The position was reiterated in Nasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed. It was held that a rival in trade, in that case a cinema theatre owner, had no locus standi to invoke the special jurisdiction under Article 226 of the Constitution of India.

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Following the said rulings, a Full Bench of this Court held in M.L. Krishnamurthy v. The District Revenue Officer, Vellore (1989)2 LW. 442, that an existing rice mill owner was not a person aggrieved, when permit or licence under the Rice Milling Industry (Regulation) Act was granted to another person, for entitling him to file a writ petition challenging the grant. In Mithilesh Garg, etc. v. Union of India and Ors. etc. etc. , already referred to in this judgment, the Apex Court has quoted in extenso the observations made by Sarkaria, J., in J.M. Desai's case , and reiterated the proposition. In the circumstances, the petitioner is not a person aggrieved to maintain the writ petition against the grant of permit to the first respondent with curtailment.”

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(ii) M/s Vivek Auto Mobiles, Ratlam vs. State of H.P. & Anr.³ .

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Paragraphs pressed into service are:-

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“THE petitioner has filed the present petition being aggrieved by NOC dated 15.11.2018 issued by Collectorcum-District Magistrate, Ratlam in favour of the Respondent No. 2 for opening a new retail out let over the land Survey

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3 Writ Petition No. 2786 of 2019, decided on 27.02.2019 (High Court of Madhya Pradesh, Bench at Indore.

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No. 1116/1/2 situated in Village Shivgarh, Tehsil Sailana, District Ratlam.

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(2). The petitioner is already having a retail out let in the same vicinity since 1991. The petitioner is apprehending that if new retail out let is opened within the closed vicinity, then his business and profit may be affected. According to the petitioner he is working in this field since 1991 by establishing petrol retail out let. The Respondent No. 2 submitted an application under 114 of the Petroleum Rules, 2002 for obtaining NOC from the District Magistrate. Vide order dated 15.11.2018, the District Magistrate has granted the permission.

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… … … (5) … … … Even otherwise the petitioner being a dealer of Indian Oil Company cannot have a monopoly in the area and if other Oil Company wants to operate fuel station looking to the business prospects, then the petitioner cannot have object. Even one is having right to do business according to his choice”. …

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(iii) Shaheed Ashwani Kumar Chandel Filling Station, Berthi (Dharoti) vs. Union of India & Ors⁴ . Paragraphs pressed into service

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are:-

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“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

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4 CWP No. 2776 of 2024, decided on 19.11.2024 (H.P. High Court).

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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:

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“(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.

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(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.”

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… … … 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

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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.

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Hon'ble Apex Court in Nagar Rice & Flour Miills & Ors. v. N. Teekappa Gowda & Bros. & Ors. 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:

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“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.”

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(iv) Gulzar Kissan Sewa Kendra vs. Hindustan Petroleum Corporation Ltd. & Ors⁵ . Paragraphs pressed into service are:-

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“2. The brief facts of the case as are necessary for the adjudication of the present case are that the petitioner runs

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5 CWP No. 308 of 2019, decided on 22.11.2022 (H.P. High Court).

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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”.

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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.

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Thus, what stands established on record is that the site offered by the third respondent is strictly in accordance with the advertisement and the petitioner being a business rival has only un-necessarily sought to delay and if not hamper the allotment to be made in favour of the third respondent.

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As observed above, the petitioner is a business rival and cannot maintain a writ petition as held by the Hon'ble Supreme Court in Mithlesh Garg vs. Union of India (1992) 1 SCC 168, wherein it was held that a rival businessman cannot file a writ petition challenging the setting up of similar unit by another businessman on the ground that establishing the rival business close to his business would adversely

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affect his business interest, even if the setting up of the new unit is in violation of law.

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In the instant case, the only grievance of the petitioner is that if the third respondent is permitted to set up his retail outlet within 500 metre radius of the petitioner's outlet, his business interest would be adversely affected.”

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The ratio of above decisions will not be applicable to the present case. All the above judgments cover situations where petitioner was a third party, a business rival and had opposed setting up of a new retail outlet in the vicinity of his existing retail outlet inter alia on ground of business competition. In the instant case, petitioner has not opposed opening of new retail outlet. Also petitioner is not a third party to the litigation. Rather petitioner himself was a participant in the process for selection of dealership for the new retail outlet. Petitioner had also applied and offered site for opening retail outlet under the advertisement. Though it remains a fact that petitioner also runs a retail outlet in the vicinity of the site offered by respondent No. 11 but petitioner’s grievance in the present writ petition is not related to respondents’ decision to open the retail outlet on the ground of scuttling of his business but revolves around the selection process and primarily concerns the NOC(s) issued by the authorities in favour of the site offered by respondent No. 11 for the retail outlet. According to the petitioner,

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the site offered by respondent No. 11 does not conform to the prescribed parameters thereby necessitating quashing of all the NOC(s) given wrongly to respondent No. 11. As per the petitioner, the site offered by respondent No. 11 should be rejected and the one offered by the petitioner should be selected. In the given facts, respondents’ objection to the maintainability of the writ petition on the ground of petitioner being a business rival – a third party is not valid and thus rejected.

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4(i)b Concealment of material facts and Conduct of petitioner

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Learned Counsel for the respondents have laid strong emphasis upon petitioner’s concealing material facts in the writ petition about his and his brother running retail outlets in the vicinity of the site in question. During hearing, it was apprised with the help of maps placed on record that petitioner and his brother are running their respective retail outlets in the name of ‘GURU GOBIND SINGH FILLING STATION’ & ‘SAINI H.P. FILLING STATION’ nearby the site and on the same road. It has been urged for the respondents that petitioner was duty bound in law to disclose in his petition about the above retail outlets. The only relevant pleadings of the petitioner in this regard in the writ petition are that “ the petitioner is in the business of petroleum products and is having retail outlets in the State of Himachal Pradesh” . The petitioner has deliberately not

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disclosed true & complete facts as disclosure of same would have put serious question on his locus standi to have instituted the writ petition, him being a business rival. The averments made in the writ petition about ‘petitioner having not concealed material facts’ are, therefore, not correct.

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There can be no two answers to above. Petitioner should have clearly come out clean about the retail outlets run by him & his family members. He should have been specific about location of his and his brother’s retail outlets more so when he and his brother are running retail outlets on the very same road on which site in question is located. Indeed, the pleadings in the petition fall way short of requirement on this count. Petitioner has been vague about the locations on which he and his brother are running retail outlets. Nonetheless, the petitioner cannot be shown the door only for this reason as has already been held in para 4(i), petitioner’s locus in the instant case is not that of third party. Petitioner is not before the Court in his capacity as a business rival. He has questioned the site offered by respondent No. 11 on the ground of it not meeting the laid down parameters. According to the petitioner, NOC(s) issued in favour of respondent No. 11 are not in conformity with the applicable guidelines/rules etc. To adjudicate the issues relating to NOC(s) issued for the site in question, the factum of petitioner or

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his brother running retail outlets on the same road are not relevant for the decision of the writ petition. Point is answered accordingly.

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It was also argued by learned Counsel for the respondents that petitioner has not approached the Court with clean hands. Petition has not been filed with bonafide intent. The petitioner had previously got another writ petition filed on 10.07.2024 through one Sh. Paramjeet Singh bearing Filing No. 24167 of 2024. The said petition was filed as petitioner being a business rival could not have filed the petition himself. The aforesaid petition that was taken back for removing office objections was not refiled. Petitioner presumably had a fallout with said Sh. Paramjeet Singh resultantly he had no option but to file this petition himself. It was also argued that draw of lots was held on 04.12.2023, whereas this petition was filed on 14.08.2024. Timing of filing of this petition not only demonstrates alliance between the petitioner and said Sh. Paramjeet Singh but also calls for dismissal of the petition on ground of delay. All these factual allegations have been denied by learned Senior Counsel for the petitioner, though enclosure of legal notice sent by said Sh. Paramjeet Singh to respondent No. 11 alongwith the writ petition has been admitted as matter of record. It has already been held that petitioner being a participant in the selection process has right to maintain this petition which he has filed alleging wrongful

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issuance of NOC(s) in favour of respondent No. 11 contrary to law. Hence, the aforesaid allegations which are otherwise disputed on facts are not required to be gone into. Also petition cannot be said to be suffering from delay & laches. Primarily, it is not the draw of lots that has been questioned. It is the NOC(s) issued to respondent No. 11, the final of which was issued on 02.08.2024 by the Deputy Commissioner, District Sirmour, that are the subject matter of the writ petition instituted on 14.08.2024. During hearing of the case as well, arguments were confined only to the justiciability of different NOC(s) issued to respondent No. 11. The petitioner cannot be said to be sleeping over the matter.

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4(ii) A strong challenge has been laid to the NOC(s) issued by the authorities in favour of respondent No. 11 for setting up the retail outlet at the site in question. According to the learned Senior Counsel for the petitioner, the site offered by respondent No. 11 contravenes the parameters prescribed in the applicable norms/guidelines etc., therefore, not suitable for running the retail outlet. The NOC(s) were wrongly and unlawfully issued to respondent No. 11. Following broad violations have been pointed out by the learned Senior Counsel:-

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Three intersections exist on Major District Road94 (in short ‘ MDR-94’) in the vicinity of the site;

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In view of applicable norms/guidelines, the size of the plot offered by respondent No. 11 - site is bound to become less than the dimensions required by IOC.

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The existence of a borewell near the site.

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4(ii)a Intersections

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On the basis of maps produced on record during hearing of the case, it was urged for the petitioner that following link roads intersect MDR-94 (Paonta Sahib – Puruwala – Dakpathar Road) near the site:-

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Link road at a distance of 04-05 meters from the boundary wall of the proposed retail outlet towards Puruwala – Dakpathar side. It is claimed to be a metalled & paved road with length of 1617 meters & average width of 04 meters (hereinafter called ‘Road-A’).

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Link road located at some distance opposite to the site and extended towards Basant Vihar. Claimed to be a paved road with average width of 06 meters (hereinafter called ‘Road-B’).

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Link road towards Shri Guru Govind Singh Ji Government Degree College connecting the road originating from Vishwakarma Chowk towards Rampurghat Industrial Area. It is claimed to be a metalled & paved road with length of 1150 meters & average width of 05 metres (hereinafter called ‘Road-C’).

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Learned Senior Counsel for the petitioner submitted that Roads-A, B & C are all link roads that intersect MDR-94 and at a distance less than minimum distance required to be maintained as per Indian Roads Congress, 2009 Guidelines for Access, Location and Layout of Roadside Fuel Station and Service Stations (in short the ‘IRC Guidelines, 2009’). Learned Senior Counsel invited attention to Clause 4.5 Point 2(2) under the heading ‘General Conditions of Siting’ of the aforesaid guidelines and argued that 100 metres distance with the intersection of any category of road is required to be maintained while selecting the site and in the present case the site offered by respondent No. 11 fails to maintain this criteria. The three intersections delineated above are at a distance of much less than the prescribed minimum distance of 100 metres from the site. The paras of IRC Guidelines, 2009 highlighted for the petitioner are as under:-

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“2. Basic Principles

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The governing consideration for setting up fuel stations is to ensure free flow of traffic on the road along the fuel stations, minimum interference by the vehicles using the facilities and to ensure safety of the vehicles on the road.

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Scope

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3.1

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3.2 These norms are applicable to all Fuel Stations with or without other user facilities of rest areas, along un-divided

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carriageway and divided carriageway sections of all categories of roads i.e. National Highways, State highways, Major District Roads and Rural roads in plain, rolling and hilly terrain, and passing through rural and urban stretches including towns and cities. For this purpose hilly or mountainous terrain would be, when the cross slope of the country is more than 25%. The urban stretches, only for the purpose of this guidelines, would be, where a highway passes through towns or cities which have been notified as Municipalities or Municipal Corporations.

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General Conditions of Siting

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4.1

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4.2

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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 locations should not interfere with placement and proper functioning of highways signs, signals, lighting or other devices and affect traffic operation.

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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.

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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 medial openings and the access/egress roads of the fuel stations, as is applicable, in a direction parallel to the central line of the nearest carriageway of the highway.

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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.

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4.5.1 Non-urban (Rural) stretches

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4.5.2 Urban stretches

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…

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Hilly and Mountainous terrain.

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(i) Intersection with any category of road (irrespective of carriageway width) 100 m”

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Learned Senior Counsel also laid stress upon guidelines/norms issued on 26.06.2020 by the Ministry of Road Transport & Highways (MoRTH), in particular to Clause 2.3 (Appendix-I) thereof and following note thereunder to buttress his argument that ‘paved carriageway (bituminous/concrete/interlocking

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concrete block) of 3.0m width and minimum 300m length has to be construed as road:-

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“Notes:

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b. In case of distance from intersection with any category of road, the roads means paved carriageway (Bituminous/concrete/interlocking concrete block) of 3.0m width and having length of Mimimum 300m and above irrespective of the category of road.” … … …

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Heard learned counsel on both sides on the above issue.

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The first question that arises for consideration is whether

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the IRC Guidelines, 2009 and MoRTH Guidelines, 2020 are mandatory to be followed or not? This question cropped up in M/s Aditya H.P. Centre vs. Union of India & Ors.⁶ . The Division Bench while allowing the writ petitions and quashing the allotment of retail outlets in favour of private respondents directed the concerned Oil Marketing Company to make allotments, if any, after strict adherence to the prescribed rules/guidelines framed by the Indian Roads Congress (IRC) and/or Ministry of Road Transport & Highways (MoRTH). Paras relevant to context read as under:-

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“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

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6 CWP No. 4239 of 2020, decided on 17.08.2021 alongwith connected matters.

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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.

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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.

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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.

¶164

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¶166

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.

¶167

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.

¶168

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.

¶169

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

¶170

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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.”

¶173

The above judgment has been stayed by the Hon’ble Apex Court on 29.11.2021 in Indian Oil Corporation Ltd. & Anr. vs. M/s Aditya H.P. Centre & Ors⁷ .

¶174

A Division Bench of this Court again had the occasion to deliberate over the above question in Gulzar Kissan Sewa Kendra⁵ wherein it was held that MoRTH guidelines apply only to the retail outlets that are to be opened on the National Highways and not otherwise. This decision continues its hold. Portion relevant to the context therefrom reads as under:-

¶175

“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.

¶176

7 Special Leave to Appeal (c) No(s). 19149-19150 of 2021 [Civil Appeal No(s). 2701- 2702/2024]

¶177

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¶179

Similar view has been expressed by the Hon'ble Madras High Court in P. Selvi vs. District Magistrate, AIR 2021 Madras 27. The retail outlet is being established by the third respondents in accordance with law where the guidelines as laid down by the Indian Road Congress are not applicable and the same otherwise have been held to be not mandatory by various courts.

¶180

As regards the contention of the petitioner regarding violation of the MORTH Guidelines, we need only to say that these guidelines only apply to the retail outlets that are to be opened on the National Highways and not otherwise and admittedly, in the instant case, the retail outlet is not being opened on the National Highway and thus, the MORTH Guidelines are inapplicable.”

¶181

The site in question is located on a Major District Road and not on a National or State Highway. Pertinently the avowed object of IRC Guidelines, 2009 is to ensure free flow of traffic on road alongside the filling stations, minimum interference by vehicles using the facilities and to ensure vehicle safety on the road. It is not the petitioner’s case that setting up of the proposed retail outlet will lead to traffic congestion or inconvenience to pedestrians or danger to vehicular movement . These are the factors which are otherwise to be considered by the experts/authorities/ concerned Oil Marketing Companies while selecting the site for setting up retail outlet. It is the stand of the respondents that all applicable parameters were

¶182

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¶184

considered before selecting the site offered by respondent No.11. Evidently, petitioner and his brother are also running their retail outlets on MDR-94 on the same stretch of road. Incidentally, this road is neither a State Highway nor a National Highway but a Major District Road. The principles laid down in IRC Guidelines, 2009/MoRTH Guidelines, 2020 may be adhered to/ followed by the concerned authorities in their wisdom while selecting the site or while deliberating grant of NOC(s) for the site but no provision of law has been shown by the petitioner which makes adherence to these guidelines mandatory.

¶185

Significantly, Road-A upon which lot of emphasis was laid by learned Senior Counsel for the petitioner during hearing, according to separate replies filed by Public Works Department & Jal Shakti Vibhag:- (i) belongs to State Jal Shakti Vibhag, (ii) runs alongside a canal and is 360 metres in length, (iii) used only as an inspection road and (iv) it is not an intersecting road. Despite vigorous arguments of learned Senior Counsel for the petitioner in his valiant effort to read isolated lines from one reply to the other, from one document to the other, the fact that emerges writ large is that Road-A is not a link road per se. It is an inspection path built for the purpose of a canal. The Jal Shakti Vibhag/respondents No. 7 & 10 has candidly acknowledged this fact in its reply which is

¶186

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corroborated by the pleadings of Public Works Department. According to respondent No. 10, it is the owner of Road-A which in fact is an inspection path for the canal; Respondent No. 10 is owner and in possession of this inspection path (called Road-A); The inspection path has been metalled by PWD in larger public interest. The Jal Shakti Vibhag has reiterated its no objection for setting up retail outlet on the site in question as Road-A is actually the inspection path for the canal. Respondents No. 6 & 9/HPPWD in its reply have stated that this inspection path is not fit for heavy traffic; It’s junction with Major District Road cannot be treated as intersection.

¶189

Here it would be in place to take stock of the fact that site map placed on record by respondent No. 11 depicts several electric poles in the middle of Road-A as also on its both sides. Similar is the situation of Road-B i.e. M.C. Street Ward No. 12 where several electric poles are visible in the middle of the road. This depiction has not even been refuted by learned counsel for the petitioner. The roads called as link roads by the petitioner are neither recognized as State Highways nor National Highways nor Major District Roads and not even link roads.

¶190

Not just one or two but all the concerned authorities and different departments carried out separate exercises, applied their

¶191

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minds over grant of NOC(s) to the site offered by respondent No. 11. After due deliberations, the NOC(s) were issued in favour of the site as under:-

¶194

Letter of intent issued in favour of Respondents No. 1 & 2	12.03.2024
Respondents No. 2 & 3 requested the authorities for grant of NOC(s) in favour of site offered by respondent No. 11	10.05.2024
NOC(s) issuing Department	Date of NOC(s)	Issuing
1.H.P. State Pollution Control Board	22.5.2024
2.Superintendent of Police Sirmour	28.05.2024
3.Ward Counsellor	28.05.2024
4.State Excise&Taxation Department	28.05.2024
5.Municipal Committee Paonta Sahib	30.05.2024
6.H.P.S.E.B. Ltd.	05.06.2024
7.Distt. Controller Food, Civil Supplies & Consumer Affairs, Sirmour.	06.06.2024
8. H.P.P.W.D.	29.06.2024
9. JalShakti Vibhag/IPH	26.07.2024
10.DeputyCommissioner,Sirmour	02.08.2024.

¶195

All concerned departments have verified and then certified

¶196

that setting up of the proposed retail outlet would cause no hindrance to any of their schemes and its establishment is as per law. In the given facts, there is no occasion for the Court to take a different view.

¶197

4(ii)b Plot Size

¶198

Yet another reason on which location of the proposed retail outlet is being opposed is the contention that size of the plot offered by respondent No. 11 will not remain the same as offered at present and will not fit the advertised dimensions.

¶199

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¶201

Required dimensions of plot as per IOC’s advertisement are 20 X 20 metres. The proposed site of respondent No. 11 is with the dimensions of 20 X 20 metres situated over khasra numbers 20 & 21, located at Mohal Up Sampada, Village Shubhkhera, Tehsil Paonta Sahib, District Sirmaur. The objection raised by learned Senior Counsel for the petitioner is that as per office letter dated 29.06.2024 issued by PWD, no construction will be allowed in controlled width up to 5.00 metres distance from the edge on the acquired width of the roads. That respondent No. 11 will have to leave 05 metres of land on the left side of its plot towards inspection road and that would inevitably result in reduction of the plot size i.e. 20 X 19 metres which would not be in consonance with the required parameters under the advertisement.

¶202

The first question is as to whether there is requirement in law to leave 05 metres of land towards inspection road or not? The Public Works Department is admittedly not the owner of Road-A (inspection road). This road belongs to Jal Shakti Vibhag. It is neither a National Highway nor State Highway nor a Major District Road etc. No such source or authority of law has been shown requiring respondent No. 11 to leave 05 metres of his plot towards inspection road. In this regard, it will be appropriate to refer to

¶203

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provisions of the Himachal Pradesh Roadside Land Control Act, 1968:-

¶206

‘Controlled area’ has been defined in Section 2(7) to be “an area declared as such under section 3”.

¶207

Area can be declared as ‘controlled area’ & the road as

¶208

‘scheduled road’ as under:-

¶209

“3. Declaration of scheduled road and controlled area.-

¶210

(1) The Government may, by notification, in the Official Gazette declare any length or the whole of any road to be a "schedule road" and the area upto a horizontal distance of five meters as prescribed from the edge of the roadland on either of such scheduled road to be a "controlled area".

¶211

(2) Not less than three months before making a declaration under subsection (1), the Government shall cause to be published in the Official Gazette and in at least two newspapers printed in a language other than English, a notification stating that it proposes to make such a declaration and specifying broadly the boundaries of the land in respect of which the declaration is proposed to be made and copies of every such notification or of the substance thereof shall be published by the Collector in such manner as he thinks fit at his office and at such other places as he considers necessary within the said boundaries.

¶212

(3) Any person interested in any land included within the boundaries mentioned in sub-section (1), may, at any time before the expiration of 60 days from the last date on which a copy of such notification is published by the Collector, object to the making of the declaration or to the inclusion of his land or any part of it within the said boundaries.

¶213

(4) Every objection under sub-section (3) shall be made to the Collector in writing, and Collector shall give to every person so objecting an opportunity of being heard either ill person or through a legal practitioner, and shall, after all such objections have been heard and after such

¶214

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further enquiry, if any, as he thinks necessary, forward to the Government the record of the proceedings held by him together with a report setting forth his recommendations on the objections.

¶217

(5) If, before the expiration of the time allowed by subsection (3) for the filing of objections, no objection, has been made, the Government may proceed at once to the making of a declaration under sub-section (1). If any Such objection have been made, the Government shall consider the record and the report referred to in subsection (4) and may either,-

¶218

(a) abandon the proposal to make a declaration under sub-section (1), or

¶219

(b) make such a declaration in respect of either the whole or part of the land included within the boundaries specified in the notification under sub-section (2).

¶220

(6) For the purposes of sub-section (3), a person shall be, deemed to be interested in land if he is a "person interested" as defined in clause (b) of section 3 of the Land Acquisition Act, 1894, (1 of 1984), for the purposes of that Act or where the land is occupied by or for the purposes of a place of worship, tomb, cenotaph, graveyard, grave or marghat if he is a member of the faith to which such building pertains.

¶221

(7) A declaration made under sub-section (1) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the road to which it relates is a scheduled road and the area to which it relates is a controlled area.”

¶222

Section 5 of the Act places restrictions for raising structure

¶223

over ‘controlled area’:-

¶224

“5. Restrictions on buildings etc. in a controlled area.-

¶225

Notwithstanding anything contained in any other law for the time being in force, no person shall erect or re-erect any building or make or extend any excavation or layout means of access to a road in a controlled area:

¶226

Provided that nothing in this section shall apply to-

¶227

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(d) the erection or re-erection of a motor-fuel-filling station or a bus queue shelter with the permission of the Collector”, or … …

¶230

As per above provision, fuel station can come up even in

¶231

‘controlled area’ with permission of the Collector. The procedure for taking permission has been described as under:-

¶232

“6. Application for permission to build etc. and grant or refusal of such permission.-

¶233

(1) Every person desiring to obtain the permission referred to in section 5 shall make an application in writing to the Collector in such form and containing such information in respect of the building, excavation, means of access, motor-fuel-filling station or a bus-queue shelter to which the application relates, as may be prescribed.

¶234

(2) On receipt of such application, the Collector, after making such enquiry as he considers necessary, shall by order in writing, either

¶235

(a) grant the permission subject to such conditions, if any, as may be specified in the order, or

¶236

(b) refuse to grant such permission.

¶237

(3) When the Collector grants permission subject to conditions under clause (a) of sub-section (2) or refuses to grant permission under clause (b) of sub-section (2), the conditions imposed or the grounds of refusal shall be such as are reasonable having regard to the circumstances of each case.

¶238

(4) The Collector shall maintain a register with sufficient particulars (If all permissions given by him under this section and the register shall be available for inspection without charge by all persons interested and such persons shall be entitled to take extracts therefrom.”

¶239

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¶241

Road-A (inspection path) has neither been declared as ‘scheduled area’ nor ‘scheduled road’ nor there is any declaration about any ‘controlled width’ over or alongside this road. Further, the Deputy Commissioner has already granted permission to respondent No. 11 to construct retail outlet on the site adjoining this inspection path. As per replies filed by different authorities, this road belongs to Jal Shakti Vibhag who uses it as an inspection path. The replies are further to the effect that controlled width of 05 metres has been left from MDR side and for adjacent inspection path belonging to Jal Shakti Vibhag there is no provision to leave controlled width beyond the boundary of the inspection path. It is further pleaded that the road in question is not a scheduled road, therefore, provision of 05 metres controlled width will not apply. Even if it is to be construed that respondent No. 11 has to leave 05 metres of his plot on its left side i.e. towards inspection road as alleged then also it cannot be said that plot size would be reduced. In that eventuality also, respondent No. 11 will still remain owner of the same plot with same dimensions, however, would not be in a position to construct on 05 metres. Dimensions of the plot would not vary. Petitioner’s objection on this count is, therefore, rejected.

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4(ii)c Borewell

Petitioner’s next objection to the setting up of retail outlet at the proposed site is on account of existence of a borewell. From the submissions made by the parties on both sides, facts that come to fore are that there is no water supply scheme adjoining to the site though there exists an irrigation borewell at a distance of 05 metres from the proposed retail outlet. It appears that respondent No. 11 had been alleged to have tried to conceal the existence of borewell. It is the stand of respondents No. 7 & 10/Jal Shakti Vibhag that borewell was disturbed by respondent No. 11 by undergrounding the same, however, after notice issued to him, it was restored to its actual form. The district administration including Jal Shakti Vibhag has no objection for running the retail outlet on the site in question with borewell meant for irrigation purposes located at a distance of 05 metres from the proposed site of retail outlet. Respondents No. 7 & 10/Jal Shakti Vibhag have also pleaded in its reply that the said department has no concern even with the functioning of the borewell. It is also been explained by the respondents that petrol and diesel tanks are made of steel surrounded by brick masonry wall where they are placed. Pertinently, it is not even the objection of

¶246

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the petitioner that any damage is going to be caused to the borewell

¶249

with the location of the retail outlet.

¶250

No other point was urged.

¶251

5. Sum total of the above discussion is that the objections raised by the petitioner to the No Objection Certificates issued by different authorities in favour of the site offered by respondent No. 11 for setting up the retail outlet, do not have any substance. The writ petition being devoid of merit is dismissed.

¶252

Pending miscellaneous application(s), if any, also stand

¶253

disposed of.

¶254

Jyotsna Rewal Dua, Judge

¶255

December 15 , 2025 (PK)

Parvinder Singh v. UOI and Others

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Parvinder Singh v. UOI and Others

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