1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 223/2008 (1) Bharat Petroleum Corporation Limited, having its temporary Office at Plot No.32, EDC Complex, Patto, Panaji-Goa and Head Office at Post Box 688, Ballard estate, Mumbai – 400 001. (2) M/s. Reira Petro Services Pvt. Ltd., a Private Limited Company, incorporated under the provisions of the Companies Act, 1956 (Act 1 of 1956), having its Registered Officer at 201, Mathais Plaza, Second Floor, 18th June Road, Panaji, Goa. (3) Group Captain (Retd) Peter N. D'Souza, Director of the Petitioner No.1, resident of 78, Defence Colony, Alto Porvorim, Bardez, Goa. .......... Petitioners. Versus. (1) The Town Planner, Office of the Senior Town Planner, District Level Office, Town & Country Planning Department, Government of Goa, Mapusa, Bardez, Goa. (2) The Technical Officer, Sub-Division III, Works Division V, Public Works Department, Government of Goa, Mapusa, Bardez, Goa. (3) The Chief Electrical Engineer, Electricity Department, Government of Goa, 2 Vidyut Bhavan, Panaji, Goa. (4) State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Bardez, Goa. (5) Shri Agnelo Fernandes, M.L.A. Calangute Constituency, Resident of Candolim, Bardez, Goa. ......... Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. M. S. Sonak, Mr. P. Rao and Ms. S. Rodrigues, Advocates for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. M. D. Salkar, Addl. Govt. Advocate for respondents No.1 to 4. Mr. S. D. Lotlikar, Senior Advocate with Mr. G. Teles, Advocate for respondent No.5. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date : 16th/17th September, 2008. ORAL JUDGMENT : (Per DHARMADHIKARI, J.) 1. Rule. Respondents waive service. By consent of parties, Rule made returnable forthwith. 2. We have heard Shri Dessai, learned Senior Counsel and Mr. Sonak, appearing for the petitioners, so also the learned Advocate General for respondents No.1 to 4 and Mr. Lotlikar, learned Senior Counsel appearing for 3 respondent No.5. 3. By this petition, the petitioners seek an appropriate order or direction calling for the records pertaining to the communications dated 24.3.08 and 25.3.08 and that after perusal thereof, the same be quashed and set aside. Further, the petitioners are seeking a writ of mandamus or any other writ, order or direction, commanding respondent No.3 to release electricity connection as applied vide application dated 24.9.07. 4. By the impugned communications, the Chief Town Planner had intimated to the Sarpanch, Village Panchayat of Calangute that since the requirement of the Regulations are not fulfilled, the No Objection Certificate dated 11/4/07 issued by the Chief Town Planner in favour of petitioner No.2, stands withdrawn. 5. The communication dated 25.3.08 is from the Technical Officer, Public Works Department, Mapusa, Goa, addressed to Respondent No.5 Member of Legislative Assembly of the concerned area/constituency that the NOC for occupancy issued stands automatically withdrawn in the light of the withdrawal of the NOC dated 11.4.07. 4 6. It is not in dispute that copies of these communications were marked to the petitioners. The direct impact thereof being that the fuel filling station set up by them will not be allowed to function and operate. The permissions and NOCs. in respect of setting up of such a station being withdrawn, that the petitioners have approached this Court on the second occasion invoking its writ jurisdiction. 7. Brief facts, material to appreciate the rival contentions, are that the first petitioner is a Petroleum Corporation, established by Government of India, as a Government Company under the Companies Act; whereas, the second petitioner is an owner of a property admeasuring 1825 sq. metres bearing Survey No.119/9 situated at Gaura Wado, Calangute, Bardez, Goa. The third petitioner is a Director of Petitioner No.2. The petitioners state that since the year 2001, there is no retail petrol outlet serving the areas under the Village Panchayat of Calangute. The Panchayat areas include famous beaches, hotels, and restaurants, so also commercial establishments, but no retail outlet is located within the vicinity and for requirement of fuel the distance that residents have to travel is 10 to 15 kms. approximately. In such circumstances, it is contended that there is no dispute that there was a dire necessity of setting up of a petrol pump. In that behalf, reliance is placed upon the resolution dated 30.11.03, a copy of which is annexed as Annexure 5 “D”. 8. At the outset, we need not go into this aspect in any further detail because it is undisputed before us that there is indeed necessity of setting up of a Fuel Filling Station. The petitioners state that the Village Panchayat of Calangute passed a resolution granting provisional permission for setting up a retail petrol outlet at the property of Petitioner No.2. On the basis of the provisional permission dated 28.4.04, the petitioners applied for and were appointed as Franchisee by Essar Oil Limited. Subsequently, petitioner No.1 was appointed as Franchisee and that is how petitioner No.1 became interested in setting up of the fuel filling station. 9. It is then contended that petitioners No.2 and 3 applied for issuance of No Objection Certificate from the District Magistrate, North Goa in terms of Rule 144 of the Petroleum Rules, 2002. After the entire procedure of inviting objections etc. was completed, ultimately, the District Magistrate granted the NOC in favour of the petitioners. 10. Thereafter, permission from the Director of Fire & Emergency Services, Government of Goa was also obtained. Further, reliance is placed upon the NOC granted by the Chief Town Planner with regard to the storage 6 of petroleum products. Reliance is also placed upon the permission from the Police Authorities. The petitioners then place reliance upon the NOC granted by the Village Panchayat, Calangute, and the licence granted by the Chief Controller of Explosives, Mumbai. It is then pointed out that petitioner No.2 being appointed as franchise also registered a Deed of Sale dated 5.8.2005. It purchased the property from the owners and thus became entitled thereto. The consideration of Rs.29,00,000/- was paid to the vendors. 11. Our attention has also been invited to the fact that at the foundation laying ceremony, the Parish Priest from the local church/religious institution was present. 12. However, all of a sudden, the petitioners were informed by the District Magistrate that he has received a letter dated 22.7.05 from the Chief Town Planner which directed withholding of NOC dated 17.1.05 and accordingly, on 29.7.05, the District Magistrate directed that NOC dated 4.4.05 issued by him be treated as withheld until further orders. Entire work at the site was directed to be stopped. It appears that some protest letter was addressed to the Chief Minister and that is how the communications referred to above were received. The petitioners made a representation dated 8.8.05, but there was no response. Ultimately, the petitioners were informed that the 7 orders stopping the construction and other activities at site, so also keeping NOC in abeyance are passed at the instance of a kindergarten and a chapel from the locality. The petitioners, therefore, approached the management of the kindergarten and the chapel, which informed that they filed no complaint. In fact, the owner of the property and from where the kindergarten is conducting classes, issued a certificate stating that he never objected to the establishment of the petrol pump and further stated that such an establishment is in public interest. The Parish Pastoral Council of St. Alex Church, Calangute which is the main Church also passed a resolution and, therefore, there was no question of any objections being raised. On the other hand, there were demands for petrol pump from the people within the area. 13. Orders were, therefore, termed by the petitioners as ex facie illegal, arbitrary and unconstitutional. They came to know later on that respondent No.5 who is the Member of Legislative Assembly of Goa, representing Calangute Constituency was interested in one M/s. Tarkar putting up a petrol pump, in which respondent No.5 was to have considerable stake. It is alleged that respondent No.5 belongs to Indian National Congress, which at the time of issuance of orders was a ruling party in the State of Goa. Respondent No.5 procured a complaint from one George B. Fernandes, addressed to respondent No.5 and that is how, orders dated 22.7.05 8 and 29.7.05 have been passed. It is contended that prior to the election of respondent No.5 as an MLA, he was Sarpanch of Village Panchayat of Candolim which is a neighbouring Panchayat. The petitioners have pointed out that one Joseph Sequeira, is a long standing political opponent of respondent No.5 and there is a political rivalry between Joseph Sequeira and respondent No.5. However, Derryl Pereira, Managing Director of petitioner No.2 is a close friend of Joseph Sequeira and that is how respondent No.5 has been campaigning against the petrol pump/fuel filling station. 14. It is contended that the property is in the Settlement Zone and all that would be required is some conversion permission. However, in the wake of the opposition by respondent No.5, the documents pertaining to conversion were also not processed and it is only on 13.4.07 that the Collector issued a land conversion sanad. The Government also does not oppose the petrol pump, but despite all this, abeyance order was issued, was the complaint. Later on, the petitioners were in receipt of an order validating the NOC dated 4.4.05 and intimating that the abeyance order stands withdrawn. That is an order dated 28.3.07, a copy of which is annexed as Annexure “Y”. Subsequently, the Town and Country Planning Department granted approval on 11.4.07 vide Annexure “Z”. 9 15. It is in these circumstances that the petitioners obtained the construction licence which was granted on 18.4.07. The petitioners point out that as a matter of abundant caution, the petitioners obtained NOC in the name of Bharat Petroleum Corporation and the District Magistrate was pleased to issue that on 20.7.07. That is how the long permanent lease was entered into between petitioner No.1 and petitioner No.2. The petitioners upon completion of the project, applied for occupancy certificate on 24.9.07. They also applied for clearance from the Goa State Pollution Control Board and once again problems were created by respondent No.5. Despite these problems, the petitioners obtained necessary NOC from the Directorate of Fire & Emergency Services on 9.10.07 and the licence from the Chief Controller of Explosives and NOC from the Health Officer, Primary Health Centre dated 17.11.07. Despite this, respondent No.5 again raked up issue of the school and the chapel being within the close vicinity and raised objections. The petitioners were, therefore, constrained to prefer a Writ Petition No.547/07 wherein an affidavit was filed by the Technical Officer, Public Works Department that he has given his NOC.. In view of this, the petition was disposed off by this Court by following order : “Mr. Sonak, learned Counsel for the petitioner seeks leave to withdraw this writ petition, in view of the affidavit dated 10.12.2007 filed by respondent No.1 and more particularly paragraph 6 therein, so also in 10 view of the statement made by the learned Government Advocate appearing for respondent No.1 that no objection for issuance of an occupancy certificate, as stated in paragraph 6, may be deemed to be an occupancy certificate under Rule 10 of the Goa, Daman and Diu Village Panchayats (Regulation of Buildings) Rules, 1971. The statements made on affidavit and across the Bar by the learned Government Advocate for respondent No.1, are accepted. The petition stands disposed of as withdrawn. All contentions of the parties are kept open.” 16. The petitioners were constrained to address a representation dated 18.12.07 to the Secretary, Village Panchayat of Calangute, requesting that the Panchayat accepts house tax and other dues, since all legal formalities were completed. Even the Police Authorities were informed of the Court Order and, therefore, it was expected by the petitioners that they will be permitted to operate the fuel filling station smoothly and without any hindrance or obstruction. However, at the behest of respondent No.5, the Dy. Collector and Sub-Divisional Officer, Mapusa served upon the petitioner an order dated 22.12.2007 stopping operations forthwith on the ground that the Village Panchayat has not permitted operations of the petrol pump. Thereafter, the petitoners approached the Authorities and pointed out that such an order cannot be passed in the light of the permissions and licences 11 obtained and more particularly because it was not preceded by a show cause notice. Ultimately, the District Magistrate, by an order dated 3.4.08, withdrew the show cause notice dated 26.12.2007 as the petitioners obtained a No Objection Certificate from the Village Panchayat of Calangute. The petitioners pointed out that the Dy. Collector and S.D.O. cannot insist on a NOC from the Village Panchayat in the light of the substantive permissions granted. However, the petitioners responded to the communication dated 24.12.2007 by addressing a letter dated 5.1.08. Thereafter, the petitioners are alleging in the petition that certain events took place by which even the local Village Panchayat was influenced by respondent No.5 and that is how the impugned orders dated 24.3.08 and 25.3.08 have been passed and withdrawal of the NOC dated 11.4.07 has been communicated. The Village Panchayat having issued the NOC for operation of storage facility, a trade licence and sign board licence and even allotted a house number, the communications impugned in the petition cannot be given effect to by the Panchayat merely because the Authorities direct it to do so and that too at the behest of respondent No.5. It is in such circumstances and on the above allegations that the writ petition is filed praying for the reliefs which have been set out in the preceding paragraphs. 17. Mr. Dessai, learned Senior Counsel appearing for the petitioners 12 invited our attention to the annexures to the writ petition. He submits that the area, in question, is not designated as a planning area. He submits that Regulation 4.13 is, therefore, not applicable. He submits that once the issue of kindergarten and location of Chapel has been already dealt with by the Petitioners and, in any event, was the subject-matter of earlier proceedings, now another reason being projected at the instance of respondent No.5, does not mean that the NOC must be withdrawn. He submits that the concept of intersection which is appearing in Regulation 4.13 itself would not be applicable by virtue of Section 18(1) of the Goa Town and Country Planning act, 1974. He submits that location plan (at page 126) has been specifically approved by all the Authorities. Once all approvals are granted and there is indeed a need of a petrol pump or fuel filling station, then, the Authorities cannot turn around and raise another issue to cancel or withdraw the NOC. In any event, and without prejudice, he submits that there is no reference to the distance from the intersection, in so far as earlier communications are concerned. It is only when the matter reached the stage of grant of NOC, that respondent No.5 intervenes. He submits that now the petitioners are told that the distance from the intersection is less than 90 metres and that is why the petrol pump/fuel filling station cannot be permitted to be located. Mr. Dessai submits that the petrol pump has been stopped. By relying upon a circular which is not a substitute for law, that the distance issue has been 13 raised. He submits that there is no occasion for the files being forwarded to P.W.D. as that Department has absolutely no concern with setting up and working of a petrol pump. In such circumstances, the impugned communication is ex facie illegal, erroneous and must be quashed and set aside. 18. Shri Dessai submits that when permissions have been granted and licences issued, there is Legitimate expectation that the petitioners would be allowed to operate the petrol pump and subserve the public interest. However, now on the second occasion, the petitioners are constrained to approach this Court and, therefore, this Court must step in and direct that the fuel filling station be allowed to be operated, without any obstruction or hindrance from any quarter. 19. Shri Dessai has taken us through the affidavits filed in reply and rejoinder and pointed out as to how on earlier occasion the petitioners were constrained to approach the Court. 20. Learned Advocate General, on the other hand, has contended that if the petitioners were not to abide by Regulation 4.13 or requirement of location of a fuel filling station at a distance from intersection/road junction, 14 then, it is not known as to how they submitted a revised plan. Inviting our attention to the Order dated 1.7.08 in this petition, learned Advocate General submits that upon submission of the revised plan by the petitioners, upon scrutiny and verification at site, the same has been rejected on 23.8.08. There is no challenge to this rejection. No relief has been claimed on that basis. He submits that the contention that there is no provision in law enabling cancellation of NOCs, in the manner done, is untenable because the orders impugned in the petition are passed under the Village Panchayat Act and Regulations. He refers to Condition 2 in the letter which has been marked to the petitioners by the Senior Town Planner dated 11.4.07. That is addressed to the Administrator of Calangute Village Panchayat. That states that the permission is liable to be revoked if it is based on false/wrong plans/calculations/documents or any accompaniments of the applications being found to be incorrect or wrong, at any stage. He submits that the petitioners have misrepresented the Authorities that the Petrol Pump/Fuel Filling Station is maintaining the distance of 90 metres as required by the Regulations. However, now it is demonstrated that the distance between the pump and the tangent point of the intersection is less than 90 metres. He submits that there is no intersection within the vicinity of the petrol pump, is never the stand of the petitioners. On the other hand, they always proceeded on the basis that they have maintained the distance that is required to be 15 maintained under the Regulations. However, when the parties joined the issue, it appears that the petitioners got a plan prepared and have placed it on an affidavit before this Court. Inviting our attention to the replies and rejoinders filed, the learned Advocate General contended that the reasons for maintaining distance are that there should be no congestion and further accidents and casualties are avoided. He contends that even if the Regulations are not applicable, the Circular dated 25.2.05 can always be applied. That Circular is not challenged. For all these reasons, he submits that the petition be dismissed. 21. Mr. Lotlikar appears for respondent No.5 and he has invited our attention to the affidavit filed by respondent No.5 denying all the allegations. Mr. Lotlikar submits that the burden to prove the malafides is on the petitioners and they have failed to discharge the same. He submits that by merely alleging that the communications were addressed to the MLA and the MLA was in the know of things, by itself is no ground to hold that the action is at the instance of the MLA and that he was instrumental in not making the petrol pump functional and operational at the site. He submits that when the Authorities such as the Village Panchayat, Town Planner and all other Officials involved in the safety and maintenance of law and order are part of the decision making process, then, it is inconceivable that respondent 16 No.5 can influence the decision of all such Authorities. In such circumstances, the petition be dismissed. Mr. Lotlikar has invited our attention to paragraphs 6 and 7 of the affidavit filed by respondent No.5 in this behalf. 22. At the outset, it must be stated that Shri Dessai has not made any attempt to substantiate the allegations made against respondent No.5 in the above petition. He has orally argued that presence of respondent No.5 is visible. He is aware of all events. For properly appreciating the rival contentions, it would be worthwhile to refer to the settled principles which go into a scrutiny of the decision and actions in writ jurisdiction in cases of the present nature. The law on the point has been summarized by the Supreme Court in the cases of N.D. Jayal and another vs. Union of India and ors., reported in AIR 2004 SC 867 and Delhi Development Authority and another vs. M/s. UEE Electricals Engg. (P) Ltd. And another., reported in AIR 2004 SC 2100. Broadly stated, the principles laid down are that unless the discretion exercised or the decision making process is vitiated by arbitrariness, irrationalities and malafides, judicial review is not permissible. The cases such as one involving location of the petrol pump and whether it is ideal in terms of planning or not, so also safety of the general public, are matters to be decided by the Authorities who have expertise in the field. This 17 Court does not and cannot sit as an Appellate Court in judgments over their decisions. Merely because this Court holds another view of the matter does not mean that it can interfere. Parameters of judicial review are so well settled that some non-statutory powers and functions exercised by the State in larger public interest need to be accepted as a part and parcel of the decision making process and, therefore, must not vitiate the final decision. In this context, reference can usefully be made to a decision of the Hon'ble Supreme Court reported in AIR 2005 SC 2080 (State of N.C.T. of Delhi Versus Sanjeev alias Bittoo) (See Paras 14 to 24). We will have to decide the present controversy on the touchstone of these settled principles. 23. Having perused the petition, annexures thereto and the affidavits filed by the parties, the short point that requires consideration is whether the orders at Annexures “A” and “B” withdrawing the No Objection Certificate dated 11.4.2007 are vitiated as contended by the petitioners. 24. When notice was issued on this petition, there are affidavits filed on behalf of the Authorities. An affidavit which is first in point of time is at petition paper book page 202. This is an affidavit filed by the Senior Town Planner, working in the Town and Country Planning Department, Government of Goa. He has in para 4 of his affidavit stated that a Circular 18 dated 25.02.2005 was issued by the Government in the matter of approval of construction plans, and the Planning and Development Authority (Development Plan) Regulations 2000 were followed and he places reliance upon Clause 3 of the Circular. Para 4 of this affidavit reads thus : “4. The plans were required to be approved by following the said Regulations in view of circular dated 25/02/2005 issued by the Government in the matter of approval of construction plans. Clause 3 of the said circular reads as follows : “The erstwhile PDAs have adopted Planning and Development Authority (Development Plan) Regulations 2000 in the respective Planning Areas, whereas outside the erstwhile Planning Areas, the Planning and Development Authority (Development Plan) Regulation 1989 are applied in rest of Goa. The same system shall be followed in erstwhile planning area and rest of Goa respectively, except that, no development shall be permitted in any areas having gradient of 25 % and above and regulations 25 of PDA (Development Plan) Regulation 1989 (Red Book) to be made applicable including erstwhile Planning Area.” The Village of Calangute was included in Planning Area till about December 2004 after which it ceased to be a planning area. Annexed as Exhibit R-1 is the copy of Circular dated 25/02/2005.” 19 25. In para 5 of his affidavit, reliance is placed upon Regulation 4.13 dealing with filling stations, service stations and filling cum service stations. Said Regulation reads thus : “ 4.13 – Filling Stations, Service Stations and Filling Cum Service Stations :- 1. The installations of filling stations, service stations and filling cum service stations shall be governed