Asmaben M. Savan and Another vs District Collector

D.H. Waghela, J.—Rule. Learned AGP waives service of Rule. The petition was taken up for final disposal by consent of learned Counsel.

The Petitioner has received Letter of Intent dated 16th November 2010 from Hindustan Petroleum Corporation Limited for proposed retail outlet dealership on Gondal-Moviya Road, within Gondal Municipality limits (District-Rajkot), under open category advertised on 30th June 2010. Pursuant to that the Petitioner is stated to have made an application dated 16.11.2010 in Form-IX for the grant of licence in terms of Rule 143 of the Petroleum Rules 2002 (for short "the Rules"); and the HPCL had, in turn, sought No Objection Certificate of the district authority in terms of Rule 144 of the Rules. That application for No Objection Certificate has been rejected by Additional District Magistrate, Rajkot, on 4.1.2011 and that rejection is challenged before this Court under Article 226 of the Constitution.

The impugned communication dated 4.1.2011 of the Additional District Magistrate to the Manager, HPCL, is expressly based upon three considerations, namely, (i) the site proposed to be used for petroleum storage is granted non-agricultural use permission only for residential purpose and its purpose is not changed, (ii) the title of the land in question is not clear and (iii) the owner of the land has encroached upon government land. Each of the grounds mentioned in the impugned communication are assailed by the Petitioner on the basis that by Circular dated 11.6.2004 of the State Government, prescribing revised guidelines for grant of No Objection Certificate under Rule 144 of the Rules, it is clarified that there is no need to seek N.A. status of the land for giving NOC as the two are not related. The Petitioner has relied upon several other instances wherein NOC is granted by the same authority subject to the conditions, inter alia, that the applicant shall have to get permission from the competent authority to change use of the land from residential purpose to commercial purpose. It was on that basis submitted that the Respondent ought to have issued No Objection Certificate on the same lines but the Petitioner was subjected to hostile discrimination on extraneous consideration which amounted to violation of fundamental right of the Petitioner under Article 14 of the Constitution. It was further submitted that, in any case, the Petitioner has already applied for change of user and those proceedings are pending. As for the clearance of title, the objection itself is not clear insofar as it does not specify how the title of the land was not clear. The Petitioner has relied upon Title Clearance Certificate obtained by him on 29th November 2010, to substantiate that the title to the land in question was absolutely clear. As for the third ground, it is stated on oath by the Petitioner that the alleged encroachment on the land is related to totally different land bearing Revenue Survey No. 213 and judicial proceedings in that regard are pending in another forum. Relying upon the affidavit-in-reply of Collector and District Magistrate, Rajkot, it is submitted that, admittedly the matter and dispute related to encroachment were distinct and different.

The Respondent has relied upon aforesaid affidavit of the Collector to submit that the Petitioner has made sub-plotting in the land in question without any permission and has put part of the land for the purpose of manufacturing cement equipment, rather than putting it to residential use. It is stated on oath that out of total area of 3324.07 sq.mtrs. of plot No. 2 only 1200 sq.mtrs. of land is given to the Petitioner for the purpose of retail outlet and commercial purpose, before and without any application for change of purpose being made at the relevant time. It is further stated that revised lay out plan of the area in question is not sanctioned by the competent officer. It is further stated that the title of the land is not clear and the Mamlatdar has given negative opinion on account of the fact that prior permission for change of purpose was not obtained by the Petitioner. It is also submitted that an appropriate alternative remedy is provided in the provisions of Rule 154(2) of the Rules, which the Petitioner has not pursued and the petition was liable to be rejected on all these grounds.

As repeatedly held, and recently observed by the Apex Court in M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy but that rule is not of universal application. It is a rule of discretion and not one of compulsion. In an appropriate case, inspite of availability of an alternative remedy, a writ Court may still exercise its discretionary jurisdiction of judicial review in at least three contingencies where enforcement of fundamental right is involved or there is failure of principles of natural justice or the impugned order or proceedings are wholly without jurisdiction. In the facts of the present case, while the petition was entertained by issuance of Notice at the initial stage, by now the period of limitation for preferring an appeal has passed, and hence, rejection of the petition on the ground of alternative remedy would render the Petitioner totally helpless and without any remedy inspite of violation of Article 14 in the impugned communication. It was seen that the guidelines of the Government itself practically directed the authorities to ignore the N.A. status of the land in question in the matter of issuing. No Objection Certificates under Rule 144, as also the practice of issuing No Objection Certificate on condition of getting permission from the competent authority to use the land for commercial purpose, were not followed by the authority and extraneous consideration of disputes and litigations about other parcel of land were pressed into service for denying NOC to the Petitioner. The other ground of title of the land being not clear was not only ex-facie vague but it could not be substantiated by any material on record.

Therefore, the impugned communication and denial of NOC to the Petitioner is found and held to be arbitrary and illegal and accordingly set aside. Consequently, the petition is allowed with the direction that the Respondent shall expeditiously, and preferably within a fortnight, reconsider granting of NOC for the purpose of proposed retail outlet of HPCL to Petitioner No. 1, for which he has received Letter of Intent dated 16th November 2010. Rule is made absolute accordingly with no order as to costs. Direct service is permitted.