Bilkees Hamid vs State of J&K

Mr. Muzaffar Hussain Attar, J. - In this petition the petitioner has called in question the No Objection Certificate (NOC) dated 28th

September, 2015 issued by Additional District Magistrate, Pulwama, for setting-up of retail outlet. The No Objection Certificate has been issued

in favour of respondent no. 7.

Reply affidavit has been filed by respondent no. 7.

Learned counsel for the petitioner submitted that the case on hand is squarely covered by the Judgment of this Court reported in Mirza Mohd.

Iqbal Beg v. Union of India and Ors. 2011 (4) JKJ 106 [HC] : 2012 SLJ 922 and further submitted that the Court has at paragraph 15 and

17 of the said Judgment specifically ruled that no conditional NOC can be issued.

Learned counsel for respondent no. 7 submitted that after the issuance of the said certificate the Assistant Commissioner Revenue, Pulwama,

send communication dated 9th December, 2015, to Deputy Magistrate Sales, where under he has been informed that the authorities have no

objection for installation of retail outlet on the land measuring 2 Kanals and 3 Marlas covered by Survey No. 943 min situated in village Woyan

Tehsil Pampore. Learned counsel further submitted that the condition about the maintenance of particular distance between two fuel stations would

not affect the competence of the Deputy Commissioner to issue NOC.

The NOC impugned in this petition is taken note of:

With reference to the subject cited above, on the basis of verification conducted by the Tehsildar Pampore vide his Letter No. TP/OQ/533, dated

07-07-2015,1 am directed to convey No Objection for installation of Retail Outlet on the land measuring 2 Kanals and 3 Marlas falling under

Survey No. 943, Khewat No. 52 Khata No. 120 situated at village Woyan Tehsil Pampore, District Pulwama in favour of Aijaz Ahmad Bhat S/o

Gh. Hassan Bhat R/o Woyan Tehsil Pampore District Pulwama subject to the conditions as laid down in the NOC's issued by the various

departments/offices and final NOC from the Technical Expert of Assistant Director Fire and Emergency Services Pulwama

Encl: Two Copies of layout plan are enclosed.

Para's 15 to 17 of the aforesaid Judgment of the Court are taken note of:

15."" The District Authority, in the present case, has issued 'No Objection Certificate' only as to the title of the land where Retail Outlet is sought to

be installed, indicating in the Certificate that the NOC would be ""subject to fulfilment of all conditions laid mandatory in different NOCs of different

Departments issued on this account.

The Certificate issued by the Additional Deputy Commissioner, Doda, being a Conditional Certificate, cannot, therefore, partake the character

of requisite Certificate in terms of Rule 144 of the Petroleum Rules, which contemplates a clear 'No Objection Certificate' without any restriction of

any type whatsoever.

The Conditional NOC issued by the Additional Deputy Commissioner, Doda, without holding any inquiry in terms of Rule 144 (5) of the Rules

and hearing the petitioner on his Objection to the issuance of NOC, cannot, therefore, be sustained.

The Court in the reported case while relying upon Rule 144 of the Petroleum Rules 2002, quashed like NOC. The Court has specifically ruled

that the conditional NOC cannot partake the character of certificate which is required to be issued in terms of Rule 144 of Petroleum Rules.

This case is squarely covered by the aforesaid Judgment of this Court.

The matter has become suspicious in view of the communication dated 9th December, 2015, send by Assistant Commissioner (Revenue)

Pulwama to Deputy Manager Sales, where under nothing is said about the condition contained in NOC dated 28th September, 2015. The

Assistant Commissioner Revenue, Pulwama is liable to explain his position.

For the above stated reasons this petition along with connected MPs is disposed of in the following manner :

By issuance of writ of certiorari, the NOC dated 28th September, 2015, issued by Additional District Magistrate, Pulwama in favour -of

respondent no. 7 is quashed. The respondent-Deputy Commissioner is directed to reconsider the whole issue in the light of the law laid down by

this Court in case titled Mirza Mohd. Iqbal Beg v. Union of India and Ors. reported in 2011 (4) JKJ 106 [HC]: 2012 SLJ 922 and pass

fresh orders in accordance with law.

The Financial Commissioner (Revenue) is directed to conduct an enquiry as to how and in which manner Assistant Commissioner Revenue,

Pulwama send communication dated 9th December, 2015, to Deputy Manager Sales. In case, in the enquiry it is found that the Assistant

Commissioner, Revenue Pulwama who send communication dated 9th December, 2015 has committed misfeasance in his office then action be

taken against him in accordance with law.

Registry to serve copy of this order on Financial Commissioner (Revenue) forthwith, who shall submit report to the Registrar Judicial of this

Court within four weeks from the date copy of this order is served. The Deputy Commissioner, Pulwama to consider and pass fresh orders in

accordance with law preferably within six weeks from the date copy of this order is served.