Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. allowed the request of the petitioner granting NOC to establish a petrol retail outlet and quashed the intervener’s application in light of the Highway guidelines.

The present appeal arises from the orders dated 16-10-19 and 2-11-19 respectively. The petitioner in the case was aggrieved by the rejection of grant of NOC by the respondents to run their Retail Outlet. The facts of the case are that the petitioner’s application to establish a petrol and diesel pump retail outlet within two kilometres of Amlai bus stand was accepted, in response to advertisement issued by the first respondent. Subsequent to which, he had paid non-refundable fee of Rs. 15 lacs. Despite the petitioner obtaining the NOC from all relevant departments, a party having a petrol pump in proximity filed a writ petition challenging such allotment to the petitioner in Sarika Gupta v. Bharat Petroleum Co. Ltd., W.P. No. 12947 of 2019.

Following the suit, the request for NOC was rejected by the Collector.

The counsel on behalf of the petitioner submitted that in the present case, there was no mandatory requirement of any NOC from Madhya Pradesh Road Development Co. Ltd. (MPRDC) and so the application was rejected only due to a collusion with the intervener. He further submitted that the guidelines issued by the Ministry of Road Transport and Highways provide that there must be a minimum distance of 300 metres between two fuel stations on both sides of the Highway, which is only applicable for undivided carriageway in case of National Highways.

It was submitted by the counsel for the respondents that in Indian Oil Corpn. Ltd. v. Arti Devi Dangi, (2016) 15 SCC 480, the Supreme Court held that if the advertisement requires a tenderer to fulfil all the requisites of the P.W.D. provisions, suggested by the I.R.C., which are in public interest, it cannot be held that there was no specific mention of the same in the tender documents or are not statutorily binding.

The Court in its reasoning, held that the orders for rejection of the NOC were issued on whims and fancies, without considering the norms prescribed by the Highways Authority. And thus, maintained that the rival competitor’s objections were not to be entertained and that the case of Arti Devi Dangi, was not relevant in the context of the present case since, it had no mention of I.R.C guidelines, it was not a case of retail outlet establishment, and neither the conditions of the advertisement were similar in the two cases.

In light of the afore-mentioned facts, it was concluded that the Major District Road (MDR) was not subjected to the 300 metres Guidelines, since it was not a National or a State Highway. The alternative remedy was declared as in-efficacious and thus, the argument of the counsel for the petitioner was accepted and the impugned order was quashed.

The Court allowed the petition holding that the second respondent, Madhya Pradesh Road Development Co. Ltd. could not be allowed to argue beyond its pleadings and that there was no evidence to establish that terms of the advertisement in this case were different from the case in case of Arti Devi Dangi.

[Jay Shankar Kapoor v. Bharat Petroleum Co. Ltd., 2022 SCC OnLine MP 1761 , decided on 14-07-2022]


Advocates who appeared in this case :

Ashok Lalwani, Advocate, For the Appellant;

Kapil Jain, Siddharth Shrivastava, Advocates, For the Respondents.

Op EdsOP. ED.

Introduction

As we all know that the goods and service tax (hereinafter referred to as “GST”) was passed by the Lok Sabha and Rajya Sabha in the year 2017 with a motive of “one nation, one tax”. During the initial stage, the Finance Ministry’s draft proposed to keep crude oil, petrol, diesel, aviation turbine fuel (ATF), and gas outside the scope of the GST. However, simultaneously, they had an aim to bring all of them under the GST regime after its complete and successful implementation in the country. State’s revenue is mostly dependent upon the petrol and diesel to meet their budgetary expectations and expense, seeing which petrol and diesel were not included in the GST. India imports around 80% to 85% petrol and diesel to satisfy the day-to-day oil needs of the country, therefore, the retail prices depend upon the prices in the international market. Prices of oil products are decided out of the demand supply formula. Prices of petrol and diesel have a direct relation to every product we consume/use and majorly, it used in a supply chain. Therefore, if the prices of petrol or diesel rise, it will lead to an increase in the prices of other daily usage commodities impacting the lives of the common people.

Under the current tax structure, the consumers are required to pay three major taxes on petrol and diesel which include excise duty (charged by the Centre), value added tax (charged by respective States), and the dealer’s commission/margin. The pandemic times have led the Central and State Governments to increase excise duty and VAT to fund the government schemes, vaccination drive, etc., to satisfy/manage the country’s economy. Talking in a general sense, the combined price of per litre petrol and diesel include around 45% to 53% of the taxes; whereas, if petrol and diesel get included in the GST, the same would constitute around a maximum of 28% of the taxes. The difference is very much clear as to that why the public is demanding the inclusion of petrol and diesel in GST.

The reason why some States are opposing the inclusion of petrol and diesel under the ambit of GST

Revenue of some States like Rajasthan, Madhya Pradesh, Maharashtra, etc. is mostly dependent upon the revenue generated through VAT on petrol and diesel, so if petrol and diesel are included in the GST, then their revenue might fall heavily. Fearing this, some States are opposing the move of inclusion of petrol and diesel under the ambit of GST. In Kerala Pradesh Gandhi Darshanvedhi v. Union of India[1], the Kerala High Court ordered the GST Council to consider the inclusion of petrol and diesel under GST. In the 45th GST Council meet at Lucknow, Uttar Pradesh on 17-9-2021, all States unanimously opposed the idea with a thought that it would disrupt the State’s revenue. Since 2017, it is the States who are opposing the inclusion of petrol and diesel under the GST regime. Few States are demanding that if petrol and diesel are brought under the GST, then the Central Government must compensate all the States of their deficit revenue. The Central Government showed their incapability to compensate the States of their deficit revenue which has hindered this process overall. It is because of “revenue implication” the Central Government and State Government is fearing the inclusion of petrol and diesel under the GST.

So, this fear of revenue considerations must be jointly addressed and resolved by the Central and State Government to solve this problem. Otherwise, it is the common citizens who will suffer the most due to the rising prices of petroleum products. We should understand that it is the GST Council who in consultation, discussion and approval with the State Governments can only bring this urgent amendment.

Will the inclusion of petrol and diesel under the GST solve the problem?

Now, the important point for consideration is here that whether the inclusion of petrol and diesel in the GST will solve the problem of their rising prices? The answer is yes, it would substantially lower the prices of petrol and diesel, ultimately benefiting the end consumer. But we must also examine its overall effect and impact on the country’s overall future. Petroleum products are derived out of fossil fuels which are getting exhausted and at some point, of time shortly, we will have to limit their usage in daily lives. In the short run, lowering the prices of petrol and diesel will prove helpful but ultimately, all the consumers will have to start shifting towards renewable energy sources for sustainable growth and development. Rather than focusing on the inclusion of petrol and diesel in GST, what if we as a country do some strict and deep research on the topic of finding out serious methods to promote the shifting towards renewable energy immediately. History has been evident that even if the prices of oil barrel has fallen down the Government has not decided to lower the prices but let them remain stagnant. We are just focusing on part only but the inclusion of petrol and diesel under the ambit of GST might bring some sort of other discrepancies that the Governments might use to keep their prices higher to fulfil revenue needs. The aftermath of its inclusion must be drawn beforehand to be ready with the upcoming challenges or problems which might be faced by the general public because everything has its pros and cons, the same would happen with the inclusion of petrol and diesel in the GST. All around the country, we are even witnessing the dire need for further upgradation and amendment in the tax regime under GST, and micro, small and medium enterprise (MSME) sectors are also demanding to resolve the complexities attached with the GST. This point has been mentioned here to take the complexities of GST into cognizance, so that if petrol and diesel are included in the GST, then we are ready with the strategies to cope with them. The aspect of politics in this process cannot be ignored because the spirit of cooperative federalism is losing its spirit in the country which makes policy implementation much harder these days.


BBA LLB (X Semester), New Law College, Bharati Vidyapeeth (Deemed To Be) University, Pune and Legal Trainee, Mehta Chambers Law Office, Jodhpur (Rajasthan). Author can be reached at yashjangid2@gmail.com.

[1] 2021 SCC OnLine Ker 2674.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S. Manikumar, CJ., and Shaji P. Chaly, J., asked the Union government if petrol and diesel should fall under GST regime, the Bench granted six weeks time to the Centre to decide the same.

The petitioner-Kerala Pradesh Gandhi Darshanvedi had filed the instant PIL the following reliefs:

  1. To issue a writ of mandamus or any other writ or order directing the Centre and Ministry of Petroleum and Natural Gas to include petrol and diesel under the GST regime.
  2. To issue a writ of mandamus or any other writ or order directing the GST Council to recommend the inclusion of petrol and diesel under the GST regime so as to achieve a harmonized national market as contemplated under Article 279 A (6) of the Constitution of India.
  3. To declare that the non-inclusion of petrol and diesel under the GST regime was violative of Article 14 and 21 of the Constitution of India.

The petitioner had also submitted a representation to the Government of Kerala to request the GST Council to include the petrol and diesel in the GST regime and had also proposed that till a decision is taken by the GST Council, the Government of Kerala may refrain from levying the state tax on petrol and diesel.

However, the stand taken by the Centre government and the Ministry of Petroleum and Natural Gas was that inclusion or deletion of GST is a policy decision. Adopting the same line of argument, and placing reliance on the decision in Union of India v. Shiyaad, W.A.No.2061 of 2017, the GST Council submitted that a no mandamus can be issued to the GST Council to take any decision and that the Union government is the competent authority to take a decision on the above said issue.

In the light of the above, the Bench directed the GST Council to forward the representation made by the petitioner to the Centre government. Similarly, the Centre government was asked to take an appropriate decision within a period of six weeks.[Kerala Pradesh Gandhi Darshanvedhi v. Union of India, 2021 SCC OnLine Ker 2778, decided on 21-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Arun B. Varghese and Adv. Aiswarya V.S.

For the Respondents: ASG P.Vijaykumar, Sr. Counsel P.R.Sreejith, SPL GP Gopikrishnan Nambiar

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Anant S. Dave, ACJ. and Biren Vaishnav, J. disposed of a writ petition without going into the merits of it. 

This petition was filed by a Gujarat based Non-Profit Organisation as a result of an increase in pollution and environmental degradation. An RTI application was filed, to supply details of a number of BRTS buses plying on CNG based engine and the reply received was that there are no CNG buses in the city of Ahmedabad.

Counsel for the petitioner, N.M. Kapadia alleges that the reply is arbitrary as the State authorities are duty bound under Article 51-A (g) of the Constitution of India to safeguard the environment. The cases like M.C. Mehta v. Union of India, (2016) 4 SCC 269 and Vardhman Kaushik v. Union of India, Original Application No. 21 of 2014 of the National Green Tribunal, New Delhi were referred to.

The petitioner prayed dutifully for the following:

A. Issuance of Writ of mandamus or order directing the ban on Diesel Goods Carriers including Chhakdas and of BS I and BS-II stage old autorickshaws instead only CNG auto rickshaws of BS IV stage be permitted.

B. Ban on diesel vehicles of more than 10 years old and on petrol vehicles of more than 15 years old.

The Court after observing the matter submitted before it advised the petitioner to take alternative efficacious remedy before the National Green Tribunal and thus, disposed of the petition.[Paryavaran Mitra v. Secretary, 2019 SCC OnLine Guj 1193, decided on 24-06-2019]