1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5706 OF 2009 Nirmala Santosh Jadhav } Age : 34 Yrs., Occ. Business, } R/o : Patoda, Tq. Patoda, } Dist. Beed. } .... PETITIONER V E R S U S 1. The State of Maharashtra } Through the Public Works } Department, Maharashtra State } Mantralaya, Mumbai . } 2. The Superintending Engineer } Special Project Circle } Aurangabad. } 3. The Executive Engineer } Special Project Division No.1, } Beed. } 4. The Collector } Beed, Tq. & Dist. Beed. } 5. National Agency, } Jalna Road, Beed, } Tq. & Dist. Beed } Through its Proprietor. } .... RESPONDENTS Mr. V.D.Salunke, Advocate for petitioner. Mrs. A.V.Gondhalekar, Assistant Govt. Pleader for respondent nos. 1 to 4 - State. Mr. S.R.Barlinge, Advocate for respondent no. 5. 2 CORAM : P.V.HARDAS & S.V.GANGAPURWALA, JJ. JUDGMENT RESERVED ON : 06/04/2010 JUDGMENT PRONOUNCED ON : 16/04/2010 JUDGMENT : ( PER – S.V.GANGAPURWALA, J.) 1. Rule. Rule made returnable forthwith. With the consent of the parties, this petition is heard finally at the stage of admission. 2. We have heard Mr. V.D.Salunke, the learned Advocate for petitioner,Mrs. A.V.Gondhalekar, the learned Assistant Govt. Pleader for respondent nos. 1 to 4 – State and Mr. S.R.Barlinge, the learned Advocate for respondent no. 5. 3. The petitioner has filed the present Writ Petition invoking Article 226 of the Constitution of India and prays for issuance of writ of certiorari or any other appropriate writ, order or direction for setting aside the order/letter dated 10/12/2007 issued by the Executive Engineer, Special Project Division No. 1, Beed, so also prays that the respondents be directed to consider the claim of the petitioner and to grant permission/no objection certificate to assess from the Highway to her petrol pump, so also prays for writ of mandamus against respondent no. 4 for cancellation of the licence of retail out let. 4. The petitioner vide letter dated 31/3/2004 was issued 3 letter of appointment for the proposed MS/HSD retail outlet dealership at Beed. The petitioner was also issued no objection certificate by the District Magistrate, Beed for setting up new retail out let of Hindustan Petroleum Corporation Ltd. on National High-way No. 211 at S.No. 32 A/A Beed city, Taluka and Dist. Beed. 5. The respondent no. 3, Executive Engineer refused to issue no objection certificate vide its letter dated 10/12/2007 (EXH. G ). This order/letter is impugned by the petitioner in the present Writ Petition. 6. It is the case of the petitioner that though as per Morth norms, the distance between the two Petrol Pumps prescribed is minimum 300 Meters and the petitioner’s retail out let which is being installed is at the distance of 167 Meters from the existing out let of respondent no. 5. but as the retail out let of respondent no. 5 is being run illegally without necessary permission, the same can not come in the way of the petitioner in getting the no objection certificate from the respondent no. 3. The distance of 300 Meters should be counted from the Petrol Pump which is being legally run as per the norms and as such according to the petitioner, the said order/letter (EXH. G ) is illegal and deserves to be quashed and set aside. 7. Respondent nos. 1 to 3 have filed their affidavit in reply 4 and have accepted that the only reason in not issuing no objection certificate by the respondent nos. 2 and 3 to the petitioner is that the said retail out let of the petitioner is at the distance of only 167 Meters from the retail out let of respondent no. 5 and as such it does not confirm to the Morth norms, wherein minimum distance prescribed between two Petrol Pumps is 300 Meters. According to the respondent nos. 1 to 3, the retail out let of respondent no. 5 is illegal as the same is installed without the necessary no objection certificate from the Ministry of Road Transport and Highways so also the respondent no. 3 and that the Ministry of Road Transport and Highways had requested the Collector to cancel the licence of all the unauthorized Petrol Pumps. According to respondent nos. 1 to 3, the retail out let run by respondent no. 5 is illegal. 8. Respondent no. 5 has not filed any affidavit in reply. 9. It is manifest, even according to the affidavit in reply, filed by the respondents that only reason in not according no objection certificate by the respondent nos. 1 to 3 is that the petitioner’s retail out let is situated only at the distance of 167 Meters from the retail out let of the respondent no. 5. According to the respondent nos. 1 to 3, said retail out let of respondent no. 5 is illegal. When the respondent nos. 1 to 3 in no uncertain terms agree and admit that the retail out let of respondent no. 5 is not legal, then in such circumstances, respondent 5 nos. 1 to 3 can not insist that as the distance of the petitioner’s retail out let is at the distance less than 300 Meters from the retail out let of respondent no. 5, no objection certificate can not be issued by them. When the minimum distance is prescribed , the distance will have to be taken from legally installed retail out let. Illegally established retail out let can not have any existence in the eye of law. In such circumstances, the said reasoning given by the respondent nos. 1 to 3 for refusing no objection certificate is erroneous and does not stand to any reason. 10. In the result, the Writ Petition deserves to be allowed. The Order/letter dated 10/12/2007 (EXH. G ) issued by respondent no. 3 is quashed and set aside and the respondent nos. 1 to 3 are directed to issue the necessary no objection certificate in accordance with law and if otherwise the petitioner confirm with all other norms and requirements, without insisting for the said condition of distance of petitioner’s retail out let should be 300 Meters from the retail out let of respondent no. 5. 11. Rule is thus made absolute in the above terms, with no order as to costs. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 5706.10 ( J ) 6