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Judgment
Mansoor Ahmed Mir, J.—Petitioners have sought a writ of certiorari for quashing the No Objection Certificate granted vide Order No.
DCB/SC/12/4678 dated 25-4-2012 by respondent No. 2 permitting respondents 4 and 5 to put up the retail outlet of Bharat Petroleum
Corporation at village Krimshore. The petitioners have further prayed for a writ of prohibition restraining the official respondents from converting
the agricultural land for commercial purposes. It appears that the respondent No. 3 vide application dated 29-8-2011 applied to respondent No. 2
for grant of No Objection Certificate (NOC for short) for putting up a new MS/HSD retail outlet of Bharat Petroleum Corporation Limited at
Village Krimshore, Budgam - Khan Sahib Road, Tehsil Khan Sahib, District Budgam on the land falling under Khasra Nos. 515 and 517 and
Kewat No. 38. It is submitted that respondent No. 2, intentionally and with mala fide motive, kept the application for grant of NOC pending on his
dockets and issued the NOC on 25-4-2012 just six days before his superannuation, i.e., 31-4-2012. It is contended that the said NOC is illegal
and has been granted without seeking reports from the other concerned and competent authorities. It is further contended that the
permission/NOC so granted has the effect of accord of a permission to respondent No. 3 to convert the agricultural land for commercial purposes.
It is specifically averred in paragraph 9 of the writ petition that the petitioners have not filed any other writ petition of like nature before this Court
or any other competent Court.
It is curious to note that the petitioners had not impleaded the owner(s) of the land in question as party respondents in this petition. During the
pendency of the writ petition, two persons, namely, Ghulam Nabi Wani and Parvaiz Ahmad Wani, stated to be owners of the land in question,
made an application for arraying them as party respondents on the ground that the said retail outlet has to be run by them. In the application, it was
stated that the writ petitioners have already filed a civil suit against them as also against respondents in the writ petition, but, sensing the imminent
fate of their suit, they have filed the present writ petition, and have intentionally not made them as party respondents. In the application, it was
further stated that they have deliberately suppressed the material fact from this Court, in as much as they have not made any mention of the filing of
civil suit by them or its pendency before the learned Munsif, Budgam. The said application of the applicants was allowed and they were made
parties to the lis at hand and are figuring as respondents 4 & 5 in the array of respondents.
The official respondents and the private respondents have resisted the writ petition on various grounds. They have denied all the averments
made in the writ petition and have submitted that the petitioners have not disclosed the fact that they have filed a civil suit in the Court of Munsiff,
Budgam. It is further averred that the order passed by the Deputy Commissioner, Budgam, dated 25-4-2012, which is impugned in the writ
petition, is amenable to an appeal under the provisions of the Land Revenue Act and that the petitioners; thus, have an efficacious and alternate
remedy under law available to them. Further, it is contended that respondents 4 & 5 are the owners in possession of the land measuring 2 Kanals
and 11 Marlas covered under Survey Nos. 515 and 517 situate at Village Krimshore, Tehsil Khansahib, District Budgam and that the land in
question is not fit for cultivation because of the fact that it is barren for last so many years. It is further averred by respondents 4 & 5 that the
petitioner No. 1 himself has planted apple trees in his land falling just adjacent and abreast the land in question of the respondents 4 & 5 on which
the retail outlet is proposed to be established. Likewise, petitioner No. 2, it is submitted, has raised construction of his residential house on the land
covered under Survey No. 518, which, too, is adjacent and abreast the land in question; therefore, it is submitted that, the petitioners having
themselves raised structures and constructions on the adjacent lands cannot claim that the land in question is being illegally converted or that they
are the agriculturists of village Krimshore by profession.
From the pleadings of the parties, the following undisputed facts thus come forth. Respondent No. 3 addressed a communication dated 29-8-
2011 to respondent No. 2, indicating therein that they propose to put up a new MS/HSD retail outlet at Village Krimshore on Budgam-Khansahib
road, Tehsil Khansahib, District Budgam, on the land falling under Khasra Nos. 515 and 517 for grant of no objection certificate in their favour.
The respondent No. 2, in turn, made a communication to the Tehsildar Khansahib on 9-9-2011 asking him to verify the documents indicated in the
application dated 29-8-2011 and furnish a report (see annexure R1 of the reply filed by respondents 4 & 5). The Tehsildar, Khansahib, conducted
the spot inspection, recorded the statements of other persons and submitted the report to respondent No. 2 vide communication dated 24-3-2011
(see annexures R2 to R8 of the reply filed by respondents 4 & 5). Thereafter, the Deputy Commissioner, Budgam, through Assistant
Commissioner (Revenue), Budgam, addressed a communication on 18-10-2011 to the Senior Superintendent of Police, Traffic, Rural Budgam;
Assistant Director, Fire and Emergency Services, Budgam; Executive Engineer, R & B Mufasil Division, Budgam; Executive Engineer, PHE,
Budgam, and the Executive Engineer, Electric Division, Budgam, requesting them to conduct spot inspection of the proposed site, verify the matter
and report their respective comments/objections on the aforesaid request of respondent No. 3 for installation of retail outlet in question.
In response to the aforementioned communication addressed to all the authorities of District Budgam, the said authorities responded and granted
NOCs (See annexures R10 to R16A of the reply filed by the respondents 4 & 5). It is thus clear from the record that it took the Deputy
Commissioner, Budgam, more than six months to inquire in the matter and obtain NOCs from the concerned and competent authorities. That being
the factual position, it does not lie in the mouth of the petitioners that the Deputy Commissioner, Budgam, has kept the file pending with himself and
that he issued the NOC in favour of respondent No. 3 only four days before his superannuation. No mala fides can be read against the Deputy
Commissioner on that score, in view of the fact that the concerned competent authorities took time to conduct verifications, on the spot inspections
and in making their respective comments.
Apart from the above, it is averred that the petitioners have already filed a civil suit concerning the matter which is pending in the Court of
Munsiff, Budgam. This fact is neither disputed nor controverted by the petitioners. It is thus axiomatic that the petitioners have suppressed material
facts from this Court and have thus come to the Court with unclean hands. Once a forum has been chosen by them and they have availed a
remedy, they are estopped from filing this writ petition. On that count the writ petition is not at all maintainable. Thus, on this count alone, the writ
petition merits outright dismissal.
It is also argued on behalf of the respondents that the petitioners have an alternate and efficacious remedy available to them, inasmuch as against
the order of Deputy Commissioner, they could file an appeal under the provisions of the Land Revenue Act before the competent authority.
However, this question could be determined by the learned Munsiff, Budgam, in the suit filed by the petitioners.
It is also noteworthy that the petitioners have not questioned the NOCs granted by all the concerned authorities, forming annexures R10 to
R16A of the reply filed by the respondents 4 & 5 together with the inquiry reports submitted by the Tehsildar, Khansahib, and other concerned
competent authorities, forming annexures R2 to R8 to the reply filed by the respondents 4 & 5. It is also seen that the petitioners have not placed
on record the photocopies of revenue extracts of their land or of the respondents 4 & 5, However, respondents 4 & 5 have placed the same on
record, which do disclose that the land in question is not fit for cultivation and has become 'Banjri Qadeem'. Apparently, it is on that count that
petitioners themselves has raised constructions on the lands adjacent and abreast the land in question, which fact they have conveniently omitted
and suppressed in their writ petition from this Court. Viewed thus and for all what has been discussed above, I find no merit in this writ petition. It
is, accordingly, dismissed along with CMPs. Interim direction, if any passed, shall stand vacated. There shall, however, be no order as to costs.