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Judgment
Heard the learned counsel appearing for the parties and perused the records. W.P. No. 5023 of 2010 has been filed challenging the order
passed by the first respondent, viz., the Deputy Collector [Revenue], Government of Pondicherry, by which the first respondent has directed the
Senior Divisional Retail Manager of Indian Oil Corporation, viz., the second respondent, to de-energies the retail outlet of Indian Oil Corporation
Limited at Melavanjore, Karaikal.
It is seen that for the purpose of commencing a petroleum outlet as per the Rules prescribed, the petitioner in W.P. No. 5023 of 2010 has made
an application on 20.6.2005 through the second respondent, to the Government of Pondicherry, and the Government, through the Sub Divisional
Magistrate, has issued a No Objection Certificate [NOC] on 22.11.2005 to the effect that they have no objection for giving permission to the writ
petitioner to open a petroleum outlet of Indian Oil Corporation, however, subject to various conditions. One such conditions is that a separate
approval and NOC should be obtained from the Ministry of Surface, Road Transport & Highways, [in short ''MORTH''], viz., the third
respondent, since the outlet which is the subject matter of dispute in this writ petition, is at a location which is adjacent to NH-45A.
The grievance of the writ petitioner is that, based on the said NOC issued by the Government of Pondicherry, the petitioner has put up
construction, even though no permission was obtained from the third respondent/MORTH, and running the petroleum outlet in the said place. It is
the case of the petitioner that the impugned order passed by the first respondent is without giving any opportunity to him, especially when the
application made by him to the third respondent MORTH, New Delhi, is lying with the first respondent itself, thus preventing the third respondent
to grant NOC as per the conditions stipulated by the NOC issued by the Government of Pondicherry. Therefore, without even forwarding the
proposal to the third respondent, the first respondent has arbitrarily passed the order de-energising the retail outlet run by the petitioner, which
virtually amounts to closing the dealership.
It is pending the said writ petition that Writ Appeal No. 2745 of 2010 came to be filed by another dealer in the same area in R.S. Nos. 73/1A1
and 73/1A at No. 37, Vanjore Revenue Village, T.R. Pattinam, Karaikkal, on the ground that she had also been granted NOC by the Government
of Pondicherry on 26.03.2004, based on which she has put up the construction and running the retail outlet of the Indian Oil Corporation. It is now
stated that in the year 2008, the 4th respondent, Government of India, has also granted approval to the said appellant and therefore, she has been
running the retail outlet in a legal manner. The said appellant has filed application in W.P. No. 5023 of 2010 to implead herself as a party to the
writ petition on the ground that the petitioner in the said writ petition has been running the retail outlet in the most illegal manner, the construction
having been put up without obtaining approval from the third respondent, Government of India; that the conditions stipulated by the Government of
Pondicherry while granting NOC dated 22.11.2005 to the said writ petitioner have not been scrupulously followed by him and that the writ
petitioner has been running the retail outlet illegally, which ultimately affected the business of the aforesaid appellant to a large extent, and therefore,
in order to assist the Court in informing the illegality committed by the writ petitioner, she has filed an application for impleading herself and that
impleading application came to be dismissed by a learned single Judge of this Court by order dated 24.9.2010 on the ground that she has no locus
standi, against which, she has filed the above said writ appeal.
Similarly, the petitioner in W.P. No. 5128 of 2010, M/s. Bharat Petroleum Limited has challenged a similar order passed by the first
respondent, Government of Pondicherry, directing the Territorial Manager [Retail], Bharat Petroleum Limited, to de-energies the retail Outlet M/s.
CONFED at Melavanjore, Karaikal, on the ground that the mandatory requirements contemplated for approval by the Ministry have not been
fulfilled by the writ petitioner. That impugned order has been challenged by the above petitioner on the ground that after obtaining NOC from the
Government of Pondicherry on 27.10.2004, an application has been made to the second respondent, ''MORTH'', on 11.12.2004 through the
Executive Engineer [Buildings], NH-Division, Karaikkal, and the same has been received on 11.12.2004 and subsequently a reminder has also
been made by the writ petitioner on 21.10.2009 and in spite of the same, the proposal has not been forwarded by the first respondent,
Government of Pondicherry, to the second respondent, ''MORTH'', Government of India, and without even forwarding the same, the impugned
order came to be passed arbitrarily cancelling the dealership, which according to the above petitioner, is arbitrary.
Since both the writ petitions are filed challenging similar orders, they were directed to be posted along with the Writ Appeal filed by the
proposed party, whose impleading petition came to be dismissed as stated above, and the appellant has also filed an impleading petition in this writ
petition [W.P. No. 5128 of 2010], raising certain objections as the ones raised in respect of W.P. No. 5023 of 2010.
Insofar as it relates to the appellant in W.A. No. 2745 of 2010, the main grievance appears to be that the writ petitioners in both the cases have
not complied with the various requirements, which has ultimately resulted in the failure of her business, even though the appellant has been granted
permission in accordance with law. Mr. T.M. Hariharan, learned counsel appearing for the appellant in the Writ Appeal would also bring to the
notice of this Court the irregularities, which according to him, are the irregularities as noted down by the Government of Pondicherry in its
communication dated 25.5.2010 addressed to the Senior Divisional Retail Sales officer, Indian Oil Corporation Limited, wherein it is stated that in
respect of the petitioner in W.P. No. 5023 of 2010, the following irregularities have been committed:-
The distance between petrol bunk and state border is not correct.
In the layout plan, both sides of petrol bunk details to be incorporated as per actual at site and center to center distance to be mentioned in the
plan.
The Govt. land should not be used for declaration and acceleration road and frontage turning area of Petrol bunk. Layout plan to be prepared
and provision to be given in the applicant land only.
The TOPO plan to be incorporated in this proposal with the details of residential area and other features to be clearly mentioned as actual.
The learned counsel would vehemently contend that these deficiencies are incurable and therefore, it cannot be said that the impugned order
passed by the first respondent is bad in law.
It is also brought to the notice of the Court that MORTH, New Delhi, in its letter dated 25.9.2003, has also prepared certain guidelines in the
form of norms and some of the provisions which are relevant to the cases on hand are given below:-
10.3: For fuel Stations along the National Highways other than those with the NHAI, the concerned Executive Engineer of State PWD/BRO
would examine the drawings and documents to ensure that the location and layout conform to these norms. Thereafter the documents as listed in
Annex I and the Checklist at Annex II of this Circular would be forwarded, through Chief Engineer of the State PWD/BRO, to the Regional
Officer [RO] of Ministry of Road Transport and Highways. The RO after ensuring the fulfillment of the requirements of this circular and norms
would then forward the proposal along with prescribed document and checklist, to the Ministry and approval given by the Project Chief Engineer
[dealing with the State], on the merit of the case.
10.6: The ''No Objection Certificate'' by the Licensing Authority, through their field units, would be issued and construction permitted only after the
necessary approval has been given by ministry and license deed duly signed and delivered.
10.9: Oil Companies/owner shall be responsible for the construction and maintenance of deceleration/acceleration lanes, service roads,
channelisers, drainage arrangement, signs and markings in accordance with the approved layout and specifications conforming to these norms, at
his own cost. On completion of the construction in accordance with the checklist and conforming to the approvals, a Completion Certificate would
be issued by the field unit of NHAI/PWD/BRO/or any other agency [as the case may be]. The concerned Oil Company would be allowed to
energize the fuel station only after the issue of such a certificate.
10.11: Non conformity or any default in respect of the norms and as indicated in Para 1 to 9, Para 10.9 and Para 10.10 above would make the
fuel station liable to be de-energized. In case of clustered fuel stations, responsibility for default or non-conformity to attract such penalty would be
determined through a joint inspection. In such cases, the procedure prescribed in Para 10.12 below would be adopted.
On the other hand, on a reference to the communication of the Government of Pondicherry, Buildings and Roads Division, dated 17.12.2010,
which is much after the date of the impugned order passed by the first respondent in respect of W.P. No. 5023 of 2010, it is stated that the
proposal sent by the writ petitioner for the purpose of granting approval by MORTH, New Delhi is retained by the first respondent, Government
of Pondicherry on the ground that the writ petition is pending. While a concrete proof is available to the effect that the Government of Pondicherry
has not at all forwarded the proposal to Government of India, MORTH, New Delhi for the purpose of granting approval as per the original NOC
granted by the Government of Pondicherry in both the cases during 2005 and 2004 respectively, it not known as to how the Government of
Pondicherry has subsequently found out the deficiencies, as narrated above. Be that as it may, if these deficiencies do in fact exist, it is ultimately
for the Government of India, MORTH, New Delhi, to consider the same in the proper perspective and pass appropriate orders in accordance
with law. Accordingly, we dispose of the writ petitions as well as the writ appeal with the following directions:-
[i] The proposal in respect of W.P. No. 5023 of 2010, which has been returned by the Government of Pondicherry by communication dated
25.5.2010, shall be re-presented by the second respondent, to the first respondent, Government of Pondicherry, within a period of one week from
the date of receipt of a copy of this order.
[ii] In respect of W.P. No. 5128 of 2010, if the proposal is already pending with the first respondent-Government of Pondicherry for the purpose
of referring to MORTH, New Delhi, the first respondent shall forward the said proposal to MORTH, New Delhi, within a period of two weeks
from the date of receipt of a copy of this order.
[iii] Similarly, in respect of W.P. No. 5023 of 2010, on receipt of the re-presented proposal as stipulated in direction [i] above, the Government of
Pondicherry shall forward the same to MORTH, New Delhi, within a period of two weeks thereafter.
[iv] On receipt of both the proposals, MORTH, New Delhi, shall consider them and while considering the same, it shall also take into account the
contents of the communication dated 25.5.2010 issued by the Government of Pondicherry as enumerated above, and if necessary, grant
opportunity to all the persons interested, besides taking into consideration all the norms for the purpose of deciding the issue on hand, and pass
appropriate orders in accordance with law, within a period of three months thereafter.
[v] Till MORTH, New Delhi passes an order within the time specified above, status quo as on today shall be maintained in respect of the writ
petitions and till then, the impugned orders in respect of both the writ petitions shall stand deferred.
Connected miscellaneous petitions are closed. M.P. No. 2 of 2010 in W.P. No. 5128 of 2010 is dismissed. However, in the circumstances of the
case, there shall be no order as to costs.