Mohammed Moulana Mahboob Ali v. The State Of Telanagana

t 3183 J HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRry FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE B.VIJAYSEN REDDY WRIT PETITION NO: 14186 OF 2023 Between:

Mohammed Moulana Mahboob Ali, S/o. Mohammed Dawood Ali, Aged about 38 years, Occ.Business, R/o.H.No 5-32, Maddur Village, Maddur Mandal, Siddipet District-506367.

.....PETITIONER AND

1. The State of Telanagana, Rep. by its Principal Secretary, Departrnent of Home, Secretariat Hyderabad l

2. The Commissioner of Police, Siddipet District.

3. The Territory Manager, (Retail), Nizdmabad Bharat Petroleurn Cprpotation Ltd., 1st Floor, G.N. Qomplex, Arya Nagar, Hyderabad Road, Nizamabad, T.S.-503230.

.....RESPONDENTS Petition Under Article 226 ol the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ in nature of writ of mandamus to declare the action of the Respondent No. 2 in issuing Letter vide No. M117120412021 dt. 19'04-2022 as illegal, arbitrary, unconstitutional and in violation of the several High Court Judgments and also in violation of fundaments rights of the petitioner of the lndian Constitution in the interests of justice. Consequently, to direct the Rqspondent No. 2 to issue No-Objection in respect of the New Retail Outlet on the subject matter property of the Petitioner.

|.A.NO:1 OF 2023 Petition under lSection 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to se! aside the Letter v'ide No. M/ 17t204;,t2021 dt. 19_04_2022 issued by the Respondent No. 2 pr:nding disposal of the above writ petition. l.A.NO:2 oF 2023 Petition under section i s1 epc praying that in the circumstanoes stated in the affldavit filed iq support of the petition, the High court may be pleased to direct the Regpondent No. 2 to issue No-objection in respect of the New Retail outlet qn the subjec{ matter property of the petitioner pending clisposal of the above writ petition.

pqqnsel for the Petitioner : SRt MUHAMMAD VEQAR HUSSATN gqqnsel for the Respondent Nos.i & 2 : Gp FOR HOME Qcunsel for the Respondent No.3 : SRI DOMINIC FERNNDES I The Cqurt made thq following 9RDER

Cl THE HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETITION No.14186 of 2023

ORDER

The writ petition is filed to declare the action of the respondent No.2-Commissioner of Police, Siddipet, in issulng Letter No.M/17/2O4/2O2t dateo t9.O4.2022 as being arbitrary, u nconstitutiona I and contrary to the law laid down by this Court and consequently, direct the respondent No.2 to issue NOC to the petitioner for installation of new retail outlet in the land of the petitioner admeasuring A.0.20 guntas in Sy.No.242lA/2, Maddur Village, Maddur Mandal, Siddipet District.

2.

It is stated that the petitioner is the absolutd owner and possessor of the subject land having acquired the same through a registered gift deed from his father, namely, Mohammed Dawood Ali vide document bearing No.l34l2O2l registered before the Tahsildar and Sub-Registrar, Maddur. Originally the subject land was an agricultural land. Later, the petitioner applied for conversion of the agricultural Land into non -agricu ltura I land before the Tahsildar and Joint Sub-Registrar, Maddur and the .same was accorded for the conversion vide Proceedings No.2100144999 dated 18.02.2021.

3.

It is stiated that In response to the advertisemen: dated 14.72.2078 published by the respondent No.3, the petitioner submitted appllcation No.15470163296234 dated 09.01.2C19 for allotment of l,1SIHSD .Retail Outlet Dealership. In pursu a nce of drawal of lots;, the respondent No'3 issued a Lett(lr vide Ref. No.15470I -Cr3296234 dated 06.12.2019 informing that the petitioner has been declared as successful candidate in the drawal of lots conducted on 05.12.2019 for selection of Retail outlet (RO) dealership at 1-t'e subject location. Thereafter, the respond€rt No'3 issued one nrore letter bearing No.15470163296234 dated 09.72.2020 to the petitioner for collecting of the letter oi'intent' Subsequently, t-he respondent No.3 issued a Letter oFJnt(lnt vide N RT/N RO/AD\T 20 1 8- 1 9/S. NO. 408/LOI dated 22. 12.2O2O. 4.

It is stated that for the purpose of starting construction of the Retail Sutlet, the respondent No'3 issued a Letter No.NRT. NRO.DMNOC. MADDUR dated 03.O2.2021 to the respondent No.2 to issue No-Objection Certificate in respect of the said Retail Outlet. The resoondent No.2 issued a letter No.Ml77 /204/2021 dated 01.03.110d21 to the Revenue Divisional officer, Husnabad; District Panchayat Officer, Siddipet; Execute Englneer, (R&B), Siddlpet; Assistant Commissioner of Police, Husnabi:rl and Divisional Englneer, Electrical Operation, TSSPDCL, Cht:r'ial, to furnish rema rk:;/ reports for issuing t'lOJf frereafter, the Executive

{ J Engineer (R&B), Division, Siddipet through Letter No.LrlNo/PA/T3l NOC/petrol pump/Maddur(v)/202u2022l dated 05.t0.2027 requesting the respondent No.2 to issued NOC. Similarly, letters were issued by the District Panchayat Officer (FAC) Siddipet, the Divisional Engineer, Operation, TSSPDCL, Husnabad Division and the Revenue Divisional Officer.

5.

It is stated that after receiving all the enquiry reports and also the enquiry Report from the Assistant Commissioner of Police, the respondent No.2 issued Letter No.Ml17/204/2021 dgted t9.O4.2O22 to the respondent No.3 rejecting NOC to the petitioner for installation of new retail outlet of MS/HSD stating that as per the guidelines of IRC: tz-2}Og for access, location Sd tayout of roadside fuels stations and service stations, the minimum distance between two fuel stations must be 300 meters but there is a HP filling station located at a distance of 50 meters to the proposed site. The respondent No.3 issued a clarification Letter No.NRT.NRO' DMNOC. MADDUR dated 21.06.2022 requesting for the issuance of NOC stating that the Indian Roads Congress (IRC) guidelines on which the request for NOC was rejected is not a statutory body and is only an advisory committee. But the respondent No.2 has not considered the said clarification. The respondent No.3 issued Letter vide NRT/LOI SCN/ADW. No.408 dated 31.03.2023 to the petitioner to approach the respondent No.3 with supporting

documents \ rithin 21 days. Thereafter, the petitioner rr:ceived Letter vide NRT/LOI SCN/ADW. No.408 dated 17.O4-2O23 asking explanation as to why there is no progress in setting up of the retail outlet. The petitioner submitted a reply dated 18.04'2023 to the respondent t\|o.3 requesting not to withdraw the offer ()l' Retail Outlet, as he is intending to file a writ petition. 6.

The cerse of the respondent No.2 is that reports were requisitioned from various authorities. The Assistant Commissioner of Police, Hus;nabad, submitted enquiry report vide C'No.242/ACPHSB/2027, dared 15.12.2021 stating that the propose(l site is having 33 KV power line and one HP filling station is located beside 50 meters frorr the proposed site. The Revenue Divisi6na Officer, Husnabad vido Letter No.D/2OO/2021 dated.9.11.2021 reported that one HP F'etrol Bunk exists near the proposed New Retail Outlet of MS/HSD and one road leading to the village is in between these two petrol burrks i.e. existing HP Petrol Bunk and propost-'d New Retail Outlet of MS/HSD. The Executive Engineer, R&B Division, Siddipet throLgh Letter No. PA'/T3/NOC/PetrolPump/Maddur(V)/ 2O2l-22/5Oa dated.5.10.2021/6.11.2021 informed that the existing road is single lane of undivided carriage way; th€: buffer strip size is prr:posed with 11.0 meters x 2.0 meters, whi<:h needs to be correcte,l; there is no approach road; there is no drainage facility etc.

T.ItisstatedthatDistrictPanchayatofficer.siddipetandthe Executive Engineer, R&B Department have expressed no objection' The Divisional Engineer, Electrical, Operation' TSSPDCL' Husnabad DivisionvideMemo.No.DEE/oP/HSB/AElcomml.DlNo'514812o-27, daled 2!.O2.2O22 stated that they have no objection for installation of New Retail outlet, subject to certain conditions/com plia n ces. It is submitted that, as per the report of the ACP' Husnabad & RDO' Husnabad and as per the guidelines of IRC: 12-2OO9 for access' location and layout of roadside fuel stations and service stations and Rule No.(a.6) the minimum distance between two fuel stations would be as : Rule No.(a.6.1) Plain and rolling terrain in non-urban (rural) areas: Undivided carriageway (for both sides of / carriageway) is 300 meters (including deceleration and acceleration lanes).

By considering the above reports' the respondent No'2 informedtherespondentNo.3thatrequestforNoCisrejected. The respondent No.3 again submitted an application dated 2L.6.2O22on similar lines requesting the respondent No'2 to issue NOC and the same was rejected vide vide Letter No'M/17l204l 2021 dated 01.06.2023.

8.

In the counter filed by the respondent No'3' it is stated that the IRC guidelines are only recommendatory in nature and not mandafory. IRC is not a statutory body, but it is an Apex Body of Highwa) Engineers in the country' It suggests improved methods

of planning. design, construction/ maintenance and admrnistration of roads. Thu:;, the impugned rejection is illegal. 9.

Learnr:d counsel for the petitioner relied on a Divis on Bench decision of this Court in PUTTALA ROSHAIAH v. UNION OF INDIA1 ancl decision of the High Court of Andhra Pradesh in B.MADHAVI v. UNION OF INDIA2, to support his contention that IRC guidelines are not mandatory in nature.

10. Learnec Government Pleader for Home submitted that the distance bet'^/een the existing retail outlet and the p.oposed ietait outlet is 50 meters and the safety of the public and th€ vehicles needs to be <ept in mind before NOC is issued. There is every possibility of lccidents being caused iF the distance between the two retail outlets is less than the prescribed standard. l-hus, the rejection of N,f C vide Letter No.M/1.7 /2O4/2O2L dated L9.04.2022 does not call fr:r any interference.

11. Heard learned counsel for the petitioner and learned Government P eader for Home.

12. In parit 7 of PUTTALA ROSHAIAH's case (1 supra), it was held as under:

' lo2r (5) AI-D 7-: I (TS) (DB) ' (201 I ) I High Cou,t Cases (Ap) t4O : 2O2t SCC Online Ap i7r

"7- Much has been argued upon violation of the guidelines framed by the learned counsel for the petitioners' The guidelines framed by Indian Road Congress, 2009 certainly do not have statutory force. They are only directory in nature and not mandatory in nature. The petitioners have not pointed out violation of any statutory provision of law in the matter of establishment of retail outlet. Therefore, in the considered opinion of this Court, as Bharat Petroleum Oil Corporation Limited is establishing a retail outlet after following due process of law, no case for interference is made out in the matter."

In B.MADHAVI's case (2 supra), the High Court of Andhra Pradesh relied on the judgments of the Supreme Court and varibus High Courts and held at paras 16 and 17 as under: "16. Sri Dominic Ferandes would rely uPon a ludgm/ent of the Hon'ble High Court of Orissa reported as Indiin Oil Corporation Limited vs. collector & District l{agistrate, Taipur (2OL7 SCc online Orissa 687; MANU/oR/o6oo/2017) which considered various Judgments of the Hon'ble Supreme Court and other Courts including the ludgment of a Division Bench of a Madhya Pradesh High Court in Writ Appeal No.568 of 2OL4 in Shailendra vs' Smt.Saroi 8fiafi (Division Bench of Madhya Pradesh High Court), ludgment of a Division Bench of Pubjab and Hariyana High court in the case of Environment society of India' Chandigarh vs.

Administrator, Chandigarh Administration, llnion Territory, Chandigarh (AIR 1998 I Punjab and Haryana 94), ludgment of the High Court of t a \ Allahabad in Deepak Agarwal vs. State of U'P' (2002 (95) FLR 63; 2oO3 (1) SLR 213; (2011) 6 ScC 725) in Civil Miscelfaneous Writ Petition No'27 L84 of 2013 wherein in all

the above ludgments it was consistenfly held that the gurdel nes of the Indian Roads Congress are not mandatory.

17. In View of the aforesaid ludgments, it would have to be held that the guidelines issued by the Indian Roads cong ress are nor mandatory and binding in 2nd respondent,s Corporation. Further, the advertisement did not set out any conditio''t that the guidelines set out by the Indian Rc)ads Congress would be applicable. In these circumstances, the contentiJn of the learned counsel for the petitioner that the 9th respondent cannot operate a retail outlet within 310 meters of the retail outlet of the petitioner, cannot be acceptr:c|. "

13. In the: light of the consistent view taken by various High Courts holdin g that IRC guidelines are only directory and . not mandatory and further that the respondent No.2 has not pointed out any statJt.ory provision or contra decision that IRC auidelines are mandatc,ry, the writ petition deserves to be all6wed and is accordingly allowed. ConsequenUy, the respondent No.2 is rlirected to issue NOC in respect of the New Retail Outlet on the subject property of ther petitioner.

The rrriscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.

SD/.T. TIRUMALA DEVI ASSISTANT REGISTRAR //TRUE COPY// \ SECTION OFFICER To

1. The Principal Secretary, Department of Home' Secretariat State of Telanagana at HYderabad'

Z. ine Coinmissioner of Police, Siddipet Districl

3. The Territory Manager, fietaill, Ni)amabad Bharat Petroleum Corporation Ltd , 1st Floor, C N ;oilp[', Arya Nagar' Hyderabad Road' Nizamabad' T.S -503230.

+. iwl cbi to e p FoR HoME, High court for the state of relangana at HYderabad [OUT] ;l I itti

Y \

5. One CC to SRI MUHAMMAD VEQAR HUSSAIN' Advocate IOPUCI ;. d; c6 to snt DoMlNIc FERNNDES, Advocate (aPUc)

7. Two CD CoPies \ SA BS (n- ,

I HIGH COURT DATED:31 11212024 \ l ilE :-i l'i 14:

, I ,\ e -\

ORDER

C.

I I 1 plAH 2025 o O WP.No.14186 of 2023 ic { ALLOWING THE W.P WITHOUT COSTS.

Y,nU q z-), l-lYderaQTo. ltru ' I L -at_,ffi