Rajasthan Petroleum Dealers Association vs Union Of India & Ors.

The present writ petition has been filed as a Public Interest Litigation (hereinafter referred to as “PIL”) under Article 226 of the Constitution of India (hereinafter referred to as “the Constitution”), read with Rule 385-E of the Rajasthan High Court Rules, 1949, assailing the alleged unlawful action of the respondents in non-adhereance and con-compliance of the laws enacted by the Government of Rajasthan for establishment of petrol pump retail outlet; and establishing of petrol pump retail outlets in complete contravention to the judgment and order passed by the learned Tribunals and Courts. The present petition has been filed with the following prayers:

Learned counsel for the appellants at the outset, have unanimously submitted that the petitioner is an association constituted for welfare of traditional retail outlet dealers and the same is registered with the government of Rajasthan; and that the present petition has been filed for welfare of general people by the President and Secretary of the petitioner. It is submitted that the present PIL is one of the umpteen litigation, which is initiated by the petitioner, seeking appropriate reliefs from various fora.

It is further submitted that the petitioner does not oppose the development and expansion of petroleum products or establishment of retail outlets, particularly in remote areas, which facilitates availability of fuel, entrepreneurship and employment. However, such development must necessarily be undertaken in strict compliance with the laws, notifications, circulars, orders and safety/environmental norms framed by the competent authorities. Learned counsel further submitted that the expansion of retail outlets has to be balanced with the requirements of environment, public safety, essential supplies and the well-being of the public at large. The Government of India and the State Government have framed various enactments, notifications, circulars, guidelines and orders governing the establishment of retail outlets, but the petitioner submits that the mandatory requirements contained therein have not been adhered to while granting the impugned NOC.

For illustrative purpose, learned counsel has drawn the attention of the Court upon the No Objection Certificate (hereinafter referred to as “NOC”) issued by the Ministry of Environment and Forest, Government of India, and submitted that therein guidelines for protection of roadside forests/plantations and, with reference to the Forest (Conservation) Act, 1980, prescribed norms concerning retail petrol pumps. The orders dated 15.07.2004, 10.02.2005, 14.02.2006, 19.01.2011 and 02.01.2012 (Annexure-3 to 7) prescribe, inter alia, that the minimum distance between two fuel stations on each side of the road should not be less than five kilometres outside city limits/highways. Despite the aforesaid norms, consultation with the Forest Department is not carried out. It is further submitted that the requirement of obtaining an NOC from the Ministry of Environment in the concerned area is recognised; however, while granting NOC, the District Collector does not take into consideration the said Ministry norms.

It is further submitted that the Government of Rajasthan, by order dated 24.01.2019, reiterated that the right of way on National/State Highways is 200 feet as indicated in the Master Plan. Highways outside municipal limits are required to have open space of 200 feet as ROW and an additional 100 feet is required to be left open for green belt on both sides of the road. Despite the aforesaid requirement, retail outlets are being allotted in such restricted zones. Nevertheless, it is well settled preposition that the development of ecological zones is essential for sustainable development. The judgment of this Court in Gulab Kothari v. State of Rajasthan : D.B. Civil Writ No. 1554/2004, particularly the observations contained in paragraphs 103 and 107, emphasises the importance of ecological zones/green belts, their permanent openness and protection of the right of citizens to a healthy environment.

It is also submitted that the field of pollution control is governed by the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974, the Environment (Protection) Act, 1986 and the Noise Pollution (Regulation & Control) Rules, 2000, and that the aforesaid legal framework requires compliance with environmental safeguards and procurement of the requisite No Objection Certificate before establishment of a retail outlet. However, despite the said requirements, the Government of Rajasthan does not insist upon procurement of the NOC from the Pollution Control Board. Petroleum products, their exploration, transportation, off-loading, storage and sale cannot be treated in the same manner as ordinary products, having regard to their hazardous nature. Learned counsel further submitted that the prescribed norms are not being followed and the requisite insistence/compliance by the concerned oil companies is absent.

Withal, the mandates of the oil companies, as well as judicial pronouncements of this Court and the National Green Tribunal, prescribe restrictions regarding establishment/continuation of retail outlets where an electricity line of 11 KV or more is passing, there is also a prescribed restriction concerning electricity sub-stations, including street, colony, town, village and agricultural transformers, with a minimum distance of 100 metres, and neither of the above are being effectively watched by the government. Despite these requirements, retail outlets have been allotted even where such prohibitions exist. In support of the said submission, reliance has been placed on the order dated 12.02.2019 passed by the NGT, in Original Application No. 894/2018, order dated 13.08.2019 passed by the Rajasthan High Court in DBCWP No. 11523/2019, and the PWD checklist (produced as Annexure-14 and Annexure-15).

It is further submitted that having regard to the hazardous and perilous nature of retail outlets, restrictions concerning their proximity to schools and hospitals require strict adherence, as a retail outlet in close proximity to a school may expose young children to pollution, constant flow of traffic and flammable substances. Similarly, locating a retail outlet in close vicinity of a hospital may further expose patients, who are otherwise vulnerable to health hazards, to such risks. It is submitted that the guidelines as issued, also contemplate precautionary measures concerning the location of retail outlets, including their distance from buildings, places of public assembly, markets, hospitals, schools, areas of high traffic congestion and residential buildings. Thus, the distance between two nearest petrol stations is ideally 400 metres and the distance between a petrol station and the nearest residential building should not be less than 50 metres, so as to avoid possible hazards.

Additionally, learned counsel for the petitioner has submitted that the respondent authorities have directed the oil companies to conduct a detailed survey before establishment of retail outlets and, through a feasibility report, to ensure that the proposed outlet at the particular location is feasible. In order to avoid duplication of locations, the entire process contemplated under the applicable norms and guidelines is required to be followed in its entirety. The petitioner submits that crucial aspects which were required to be considered have not been followed.

It is apprised to the Court that the respondent State Government, with a view to ensuring equal distribution of fuel and equal competition amongst dealers within municipal limits and outside such limits, has prescribed that no retail outlet shall be established within a radius of two kilometres of another retail outlet in the concerned municipal area. The restriction has been prescribed keeping in view balanced development of the petroleum sector and societal aspects. Thus, learned counsel submitted that the aforesaid requirements are not merely directory safeguards but have been framed keeping in view the environment, public safety, road safety, health and orderly development of the petroleum sector. Therefore, the impugned NOC dated 28.07.2021 and subsequent NOCs could not have been granted without due consideration and compliance of the aforesaid applicable norms, guidelines, permissions and safety requirements.

Per contra, learned counsel for the respondents have vehemently submitted that the allegations raised by the petitioner are misconceived, generalized and founded largely upon an omnibus compilation of guidelines, orders and judicial observations without establishing any actual violation at the subject site. The petitioner has referred to various norms applicable to petroleum retail outlets but has failed to demonstrate, by any authenticated measurement, statutory report or competent authority's finding, that the subject outlet violates any mandatory condition governing its establishment. It is further submitted that the petitioner proceeds on the assumption that every guideline, advisory, departmental instruction or technical standard referred to by him creates an independent and enforceable prohibition against establishment of the retail outlet; and such an approach is legally untenable. The relevant question is not whether various safety/environmental guidelines exist, but whether the particular NOC has been issued contrary to any applicable mandatory statutory requirement and whether such violation is established from the record.

It is submitted that the competent authority, before issuance of the NOC, obtained reports from the concerned departments and authorities and thereafter issued the NOC upon satisfaction regarding the suitability of the site. Therefore, the decision cannot be displaced merely on the basis of apprehensions, conjectures or a unilateral interpretation of technical guidelines by the petitioner. The allegation regarding the alleged requirement of consultation with the Forest Department is wholly general in nature, as the petitioner has not identified any particular provision having statutory application to the subject land, nor has he demonstrated that the subject land constitutes forest land or that establishment of the retail outlet involves diversion of forest land attracting the provisions of the Forest (Conservation) Act.

It is further submitted that mere reference to various orders issued by the Ministry of Environment and Forests does not establish that the impugned NOC is illegal. The petitioner is required to demonstrate the applicability of the particular order to the subject site and the specific clause allegedly violated. Thus, in the absence of any such foundational factual material, the prayer for quashing of the NOC on this ground is liable to be rejected. Further, it is submitted that the petitioner has correctly referred to the CPCB siting criteria, but has failed to apply the criteria correctly to the facts of the case. The CPCB Guidelines prescribe a 50-metre radial distance from the fill point/dispensing unit/vent pipe, as applicable, from schools, hospitals having 10 beds or more and residential areas designated as per local laws. Where 50 metres cannot be provided, additional PESO safety measures are contemplated, subject to the absolute minimum stipulated by the guidelines. Therefore, the mere assertion that a building, residence, school or other structure exists somewhere near the outlet does not by itself establish violation. The petitioner must establish the exact nature and legal status of the alleged establishment; whether it falls within the category contemplated by the CPCB Guidelines; the legally relevant point from which the distance is required to be measured; the actual measured distance; and whether the applicable minimum distance has in fact been breached.

It is submitted that the petitioner has consequently failed to establish any of the material links which might aid in consideration of the present petition, inter alia, the subject land is covered by a statutory prohibition against establishment of a petroleum retail outlet; that the competent authority lacked jurisdiction to issue the NOC; that any mandatory statutory condition governing issuance of the NOC was violated; that the subject site falls within a notified prohibited/ecologically sensitive area; that the applicable CPCB/PESO siting criteria have actually been breached; that the competent authorities failed to conduct the requisite inspection or obtain the relevant reports; or that the impugned NOC suffers from perversity, mala fides or patent illegality warranting interference under Article 226 of the Constitution.

Upon consideration of the pleadings and the material placed on record, this Court finds that the present Public Interest Litigation is misconceived and does not satisfy the essential attributes of a genuine public interest litigation. The petition has been projected as one concerning larger public interest and environmental/public safety considerations. However, the material placed on record indicates that the petitioners themselves have a personal interest in the subject matter of the dispute. The grievance raised by the petitioners, therefore, cannot be permitted to be converted into a Public Interest Litigation merely by giving it a wider nomenclature.

It is well settled that the extraordinary jurisdiction of the constitutional courts in matters styled as Public Interest Litigation is intended to advance a genuine public cause and not to provide a forum for adjudication of private disputes under the guise of public interest. The Hon'ble Supreme Court in the ratio encapsulated in Hari Shankar Jain v. Bar Council of India & Ors. : (2006) 1 SCC 580, while considering the parameters governing PIL, reiterated that only a person acting bona fide and having sufficient interest in the proceeding can invoke the PIL jurisdiction. The Court cautioned that a petition brought in the colour of PIL for vindication of a personal grievance, personal gain or private interest deserves rejection at the threshold. Likewise, in the dictum enunciated in Ashok Kumar Pandey v. State of West Bengal : (2004) 3 SCC 349, the Hon'ble Supreme Court deprecated the practice of converting private disputes into Public Interest Litigation and observed that where there is material to demonstrate that a petition styled as PIL is merely a camouflage to foster personal disputes, such petition ought to be thrown out. The Court emphasized that PIL should involve a real and genuine public interest and cannot be invoked to further a personal cause, private profit, personal grudge or other oblique consideration.

It can further be opined that the Hon’ble Supreme Court has further prescribed safeguards to ensure that the PIL jurisdiction is not abused. The PIL guidelines require disclosure, inter alia, of the nature and extent of the petitioner's personal interest, as well as details of litigation having a legal nexus with the issues raised in the PIL. The guidelines also contemplate an affidavit regarding absence of personal gain, private motive or oblique reason and permit imposition of exemplary costs where a petition is found to be frivolous or instituted with an oblique or mala fide motive. In the present case, the petitioners' own interest in the subject matter assumes significance. The Court cannot permit the extraordinary jurisdiction meant for vindication of genuine public causes to be employed as a means of pursuing a dispute in which the petitioners themselves have a private or personal stake. The mere addition of allegations concerning public safety, environment or public interest cannot alter the essential character of the litigation when the substratum of the grievance is found to be connected with the petitioners' own interest. 18. It is equally important that the Court should not permit a litigant to achieve indirectly, through a PIL, what could not be achieved directly in an ordinary proceeding as also in consonance with the famous maxim quando aliquid prohibetur ex directo, prohibetur et per obliquum, and the doctrine of colourable legislation. The relaxation of the rule of locus standi in PIL jurisdiction is founded upon the assumption that the person approaching the Court is acting bona fide and without any personal interest in the outcome. Once that foundational requirement is absent, the very basis for invoking PIL jurisdiction disappears. The present petition also proceeds upon generalized allegations concerning the alleged non-compliance of various norms and guidelines relating to the establishment of the retail outlet. However, the petitioner has failed to demonstrate any specific statutory prohibition which, on the facts of the present case, renders the impugned NOC void or otherwise unsustainable. Mere reference to several environmental, safety and administrative guidelines cannot, by itself, establish that the particular NOC has been issued in breach of a mandatory statutory requirement.

The Court is conscious that environmental protection and public safety constitute matters of legitimate public concern. However, the invocation of such considerations cannot, by itself, confer the character of a PIL upon a proceeding which, on examination of the record, is substantially founded upon the petitioners' own interest. The jurisdiction exercised by this Court in a PIL is a jurisdiction of trust and responsibility. It is intended to secure access to justice for those who are unable to approach the Court themselves and to protect genuine public rights. It cannot become an instrument for settling private disputes or advancing private interests. The Supreme Court has consistently emphasized that the hallmark of a PIL is the absence of a personal interest in its outcome and the bona fide espousal of a cause affecting persons or classes unable to effectively pursue their remedies themselves.

Qua the merits of the case, it is hereby opined that the Petroleum Rules, 2002 themselves prescribe the statutory mechanism governing a No Objection Certificate issued under Rule 144. Rule 144 contemplates consideration of the application for NOC by the District Authority on the basis of the proposed site and the material relevant thereto. However, the appellate remedy is specifically provided under Rule 154(2) of the Petroleum Rules, 2002, which stipulates that an appeal against an order of the District Authority refusing to grant or cancelling a No Objection Certificate shall lie before the authority immediately superior to the District Authority. The provision does not provide an appellate remedy against an order whereby the District Authority has granted an NOC, and in the matter at hand all the NOCs have been duly granted, by the departments.

The distinction is deliberate and cannot be overlooked. The statutory rules expressly identify the orders against which an appeal lies. Thus, where the grievance is against the grant of an NOC, Rule 154(2) does not provide an alternative appellate remedy to a third party seeking cancellation of such NOC, and neither it enumerates that any PIL can be filed, under this garb. In the facts of the present case, the petitioner has approached this Court seeking quashing of an NOC granted under Rule 144. At the same time, the absence of an appellate remedy does not, by itself, establish that the NOC is illegal; the petitioner must independently demonstrate violation of a mandatory statutory provision, jurisdictional error, perversity or other legally sustainable ground warranting interference in writ jurisdiction.

In view of the aforesaid legal position and having regard to the facts and circumstances of the present case, this Court is of the considered view that the present petition does not meet the threshold requirements of a genuine Public Interest Litigation. The petitioner, having a personal interest in the subject matter, cannot invoke the extraordinary PIL jurisdiction for pursuing their individual grievance.

Accordingly, the present Public Interest Litigation is held to be misconceived and is liable to be dismissed, at the threshold. Pending applications, if any, shall stand disposed.