Allowed

Smt. Sharda Choudhary v. Dist. Magistrate, Nagaur and Ors.

Rajasthan HC18 Aug 2017CW/5709/2016

Case brief

AI extract

What is this about?

The High Court allowed the writ petition quashing the District Magistrate's order suspending the petitioner's No Objection Certificate. Relying on a coordinate bench precedent, the court held the suspension was without jurisdiction as Rule 150 of the Petroleum Rules, 2002 only authorizes cancellation, not suspension.

What did the court decide?

Impugned order suspending the NOC quashed; District Magistrate directed to decide the petitioner's application for forest land diversion certificate within two weeks.

Smt. Sharda Choudhary Vs Dist. Magistrate… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 5709 / 2016

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Smt. Sharda Choudhary W/o shri Naveen Kumar Mahala, aged about 31 years, R/o B-10, Shri Ram Nagar, Khirni Fatak Road, Jhotwara, Jaipur- 302012.

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----Petitioner

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Versus

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The Dist. Magistrate, Nagaur.

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The District Supply Officer, Nagaur.

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Divisional Commissioner, Ajmer Division, Ajmer (Raj.)

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Deputy Conservator of Forest, Nagaur.

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Hindustan Petroleum Corporation Limited, Registered Office 17, Jamshedji Tata Road, Mumbai- 400020.

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----Respondents

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For Petitioner(s) : Mr. J.L. Purohit Sr. Advocate assisted by

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Mr. H.R. Bishnoi

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For Respondent(s) : Mr. O.P. Boob- GC

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Mr. Mukesh Mehriya Mr. Sanjay Raj Paliwal Mr. Manoj Bhandari For Applicant : Mr. Anand Purohit Sr. Advocate assisted by Mr. Kapil Purohit for Ramjilal Agarwal

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment / Order

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18/08/2017

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The matter comes up for consideration of application (APPLW 3908/17) preferred on behalf of the petitioner under Article 226 of the Constitution of India for issuing appropriate direction pursuant to the judgment passed by this Court in S.B. Civil Writ Petition No.3863/2017 in M/s Girdhar Filling Station V/s District Magistrate Nagaur & Ors. and the application (APPLW 2707/17) preferred on

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(2 of 6)

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[CW-5709/2016]

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behalf of Mr. Ramjilal Agarwal for being impleaded as party respondent in this writ petition.

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Learned counsel for the petitioner has submitted that this writ petition has been filed by the petitioner being aggrieved with the order dated 25.04.2016 by the District Collector, Nagaur whereas he has suspended the No Objection Certificate issued in favour of the petitioner for operating retail outlet of petroleum products while exercising the powers conferred under Rule 150 of Petroleum Rules, 2002 (hereinafter to be referred as “the Rules of 2002”).

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Learned counsel for the petitioner has submitted that in S.B. Civil Writ Petition No.3863/2017, M/s Girdhar Filling Station V/s District Magistrate Nagaur & Ors decided on 20.04.2017, a coordinate Bench of this Court has held that the District Collector has no power to suspend no objection certificate issued under the Rules of 2002 for operating a retail outlet of petroleum products.

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It is contended that the issue involved in this writ petition is squarely covered by the decision of Co-ordinate Bench of this Court in M/s Girdhar Filling Station V/s District Magistrate Nagaur & Ors.

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Learned counsel appearing for the respondent Nos.1 to 5 has fairly conceded that the issue involved in this writ petition is squarely covered by the decision rendered by this Court in S.B. Civil Writ Petition No.3863/2017, however, learned counsel appearing for respondent No.6 and applicant Mr. Ramjilal contested that issue involved in this writ petition is not covered by the aforesaid decision.

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(3 of 6)

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[CW-5709/2016]

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Heard learned counsel for the parties and perused the impugned order as well as the decision dated 20.04.2017 passed by this Court in S.B. Civil Writ Petition No.3863/2017.

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From the perusal of the impugned order dated 25.04.2016 passed by the District Collector, Nagaur, it is clear that the said order has been passed by the District Collector while exercising powers under Section 150 of the Rules of 2002. The District Collector has suspended the NOC issued in favour of the petitioner while taking into consideration the Provisions of Rules of 2002.

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In S.B. Civil Writ Petition No.3863/2017 decided on 20.04.2017, this Court has held as under:

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“9. Admittedly, the impugned action in suspending the NOC granted in favour of the petitioner has been taken by the District Magistrate in exercise of the power conferred under Rule 150 of the Rules of 2002, which reads as under:

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“Rule 150 Cancellation of No-objection Certificate(1) A no-objection certificate granted under rule 144 shall be liable to be cancelled by the District Authority or the State Government if the District Authority or the State Government is satisfied, that the licensee has ceased to have any right to use the site for storing petroleum:

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Provided that before cancelling a no-objection certificate, the licensee shall be given a reasonable opportunity of being heard.

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(2) A District Authority or a State Government cancelling a no-objection certificate shall record, in writing, the reasons for such cancellation and shall immediately furnish to the licensee and to the licensing authority concerned, copy of the order cancelling the no-objection certificate.”

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(4 of 6)

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[CW-5709/2016]

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A bare perusal of Rule 150 makes it abundantly clear that under the said rule, District Authority is empowered to cancel the NOC on being satisfied that the licensee has ceased to have any right to use the site for storing petroleum but it in no manner empowers the District Authority to suspend the NOC pending consideration of proposal for cancellation of the NOC. It is not out of place to mention here that Rule 152 of the Rules, which deals with cancellation of the license, specifically empowers the District Authority to suspend the license as well and thus, it is apparent that wherever the rule making authority intended to confer the power of suspension, the specific provision has been incorporated. (8 of 9) [CW3863/2017] In this view of the matter, in absence of any provision under the Rules of 2002 empowering the District Authority to suspend the NOC, the action of the District Magistrate, Nagaur in suspending the NOC issued in favour of the petitioner, is ex facie without jurisdiction.

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It is true that the order impugned has been passed by the District Magistrate pursuant to the order dated 2.3.17 passed by this court in S.B.C.Writ Petition No.5709/16 but then, a perusal of the order dated 2.3.17 passed by this court as aforesaid reveals that this court had directed the District Magistrate to take appropriate action against Pusa Ram, the respondent no.6 therein, alleged to be owner of M/s. Girdhar Filling Station, for the alleged violation of the requirement under the law for obtaining the order for diversion of the forest land to non forest activities. Obviously, the action pursuant to the interim order was required to be taken by the District Magistrate in accordance with law and not in perfunctory manner acting without jurisdiction. It is pertinent to note that in the writ petition No.5709/16 filed by Smt. Sharda, Pusa Ram, the respondent no.6 therein, is shown to be the owner of the petitioner herein, a proprietorship concern whereas, the proprietor of the petitioner concern is Jitendra Choudhary and not Shri Pusa Ram. Be that as it may, merely because, the order impugned is passed by the District Magistrate pursuant to the interim order passed by this court in yet another writ petition, cannot be treated to be valid, which is otherwise found to be illegal for the aforesaid

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(5 of 6)

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[CW-5709/2016]

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reasons. (9 of 9) [CW-3863/2017]

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In the result, the petition succeeds, it is hereby allowed. The order impugned dated 28.3.17 passed by the District Magistrate, Nagaur cancelling the NOC granted in favour of the petitioner for operating the retail outlet in question is quashed. The District Magistrate, Nagaur is directed to consider and decide the application preferred by the petitioner seeking certificate under the Act of 2006 required for further processing the petitioner’s application for the purpose of diversion of the approach road forming part of forest land to non forest activities, within a period of two weeks from the date of receipt of certified copy of this order. Needless to say that if the petitioner fails to obtain the order for diversion of the approach road forming part of the forest land to non forest activities, the District Magistrate shall be at liberty to take appropriate action against the petitioner in accordance with law. No order as to costs.”

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This Court is of the opinion that the controversy involved in this writ petition is squarely covered by the decision rendered in S.B. Civil Writ Petition No.3863/2017.

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Hence, the instant writ petition is allowed. The impugned order dated 25.04.2016 (Annexure-23) passed by the District Magistrate, Nagaur suspending the NOC granted in favour of the petitioner for operating the retail outlet in question is quashed. The District Magistrate, Nagaur is directed to consider and decide the application preferred by the petitioner seeking certificate under the Act of 2006 required for further processing the petitioner’s application for the purpose of diversion of the approach road forming part of forest land to non forest activities, within a period of two weeks from the date of receipt of certified copy of this order. Needless to say that if the petitioner fails to

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(6 of 6)

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[CW-5709/2016]

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obtain the order for diversion of the approach road forming part of the forest land to non forest activities, the District Magistrate shall be at liberty to take appropriate action against the petitioner in

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accordance with law. No order as to costs.

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Stay petition stands disposed of.

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The applications (APPLW Nos. 3908/17 and 2707/17) are

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also disposed of.

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(VIJAY BISHNOI)J.

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Gaurav/41

Smt. Sharda Choudhary v. Dist. Magistrate, Nagaur and Ors.

Case brief

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Smt. Sharda Choudhary v. Dist. Magistrate, Nagaur and Ors.

Case brief

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