R.K.B.K.Limited vs State of U.P. and others

Ritu Raj Awasthi, J.—Heard Sri A. R. Masoodi and Sri Rakesh Kumar for the petitioner and learned Standing Counsel for the State as well as Sri Arvind Kumar Gutgutia, the O.P. No.3 in person and perused the record.

By means of the writ petition, the petitioner has assailed the order passed by the District Magistrate, Barabanki dated 27.03.2001 by which no objection certificate (N.O.C.) granted in favour of the petitioner for the purpose of storage of kerosene oil as wholesale dealer has been cancelled on the alleged complaint of the Opposite Party No.3 who is said to be the landlord. The petitioner has also challenged the order dated 03.04.2001 passed by the District Supply Officer, Barabanki suspending the petitioner''s license of supply and distribution of kerosene oil granted under the U.P. Kerosene Oil Control Order, 1962.

From the facts as mentioned in the writ petition, it is borne out that the company M/s Bal Krishan Poddar Limited registered under the Indian Companies Act, 1956 was granted license as wholesale dealer/supplier of kerosene oil and was authorized to store initially 25 Kiloliters of oil in steel drums in the year 1999. A new company in the name and style M/s R.K.B.K. Limited was incorported and a certificate of incorporation dated 11.04.2000 was issued by the Registrar of company and M/s Bal Krishan Poddar Limited stood changed to M/s R.K.B.K. Limited.

By Government order dated 13.04.1998, the State Government has directed the wholesaler dealer/supplier of kerosene oil to install underground tanks after permission from the explosive authorities and no objection certificate from the District Magistrate. By the Government order dated 06.04.1999, it was directed that all the agents of kerosene oil shall install underground tanks up to 31.07.1999, failing which their license would be deemed stand cancelled from 01.08.1999.

The petitioner company who was earlier doing business in the name and style of M/s Bal Krishan Poddar Limited is said to be dealing in the wholesale business of dealership/supply of kerosene oil since the year 196465 and for that purpose had taken the plot of land situated at railway station Malgodam Road, Barabanki which was initially a Nazul plot and given on lease granted in favour of Late Lakshmi Narayan Gutgutia, which was granted initially in the year 1944 and renewed in the year 1974 for a further period of 30 years. It is to be noted that the said plot was converted into a free hold land and a saledeed dated 25.05.2000 was executed in favour of Opposite Party No.3.

It has been vehemently urged by the counsel for the petitioner that the petitioner company is a continuous licensee of storage in supply of kerosene oil and in view of the Government Orders dated 13.04.1998 and 04.06.1999 it was required to install an underground tank and, therefore, an application to the concerned authority for grant of necessary permission was moved and in this regard no objection certificate dated 31.03.1999 was issued by the District Magistrate after obtaining the necessary reports etc. from the concerned authorities/departments such as PWD, fire department, S.D.M. etc. In the said report the use of land in question was clearly mentioned. The explosive authorities had issued a license to the petitioner in Form 13 for the purposes of storage of kerosene oil in bulk. It has been urged that there has been no irregularity committed by the concerning authorities in the grant of license of storage of kerosene oil in bulk and it was done in pursuance of the aforesaid government orders.

It has been submitted by the counsel for the petitioner that the petitioner is a tenant on the land in question for the last more than 40 years. The Opposite Party No.3 was merely as lessee of the plot in question up to the year 2000. The tenancy of the petitioner was well within the knowledge of the District Magistrate and the petitioner did not conceal any material information while obtaining the no objection certificate for installing the underground tanks. Moreover, the application for grant of N.O.C. was given in the year 1999 and in fact the license for storage of kerosene was issued prior to the conversion of the land in question from the leasehold to the freehold in the year 2000.

Learned counsel for the petitioner has urged that acquisition of free hold rights further goes to strengthen the tenancy rights of the petitioner and,1596 therefore, the Opposite Party No.3 could not terminate the tenancy rights of the petitioner merely on a complaint that was filed before the Opposite Party No.1. The District Magistrate having acted merely on the complaint of the landlord, had exceeded his jurisdiction in regard to cancellation of N.O.C.

It is submitted that before cancellation of the N.O.C. the opposite party no.1 had issued a show cause notice dated 15.11.2000, however, with the said show cause notice the alleged complaint on the basis of which the show cause was issued, was not provided to the petitioner. The petitioner had, although, filed its reply dated 18.11.2000 to the said show cause notice, however, it was denied the copy of the complaint made by the Opposite Party No.3 and as such reasonable opportunity was not provided to the petitioner before passing of the impugned order. It has been urged by the counsel for the petitioner that as a consequence of cancellation of no objection certificate the petitioner has been put to unnecessary harassment, irreparable loss and injury as the District Supply Officer by order impugned dated 03.04.2001 has suspended the license of supply and distribution of kerosene oil of the petitioner.

It is submitted that before the suspension of license under U.P. Kerosene Oil Control Order, 1962, there is mandatory requirement of giving a reasonable opportunity of submitting explanation under Clause 11 of the said control order.

Counter affidavit has been filed on behalf of O.P. Nos. 1 and 2 as well as by the O.P. No.3. As per the counter affidavit in pursuance of the Government order dated 13.04.1998 it was necessary to obtain N.O.C. from District Magistrate for installing underground tank for the purpose of storage of kerosene oil in bulk. The petitioner for getting N.O.C. had filed the affidavit dated 27.11.1998, a copy of which has been annexed as Annexure CA2 to the counter affidavit. In the said affidavit the petitioner furnished false/wrong information regarding plot numbers and place of business. Subsequently the petitioner very cleverly and with intention to defraud the authorities moved an application dated 28.11.1998 stating therein that in the affidavit the plots numbers were wrongly mentioned. Without disclosing its nature of possession it was mentioned that the lease is up to the year 2004.

As per the averment made in the counter affidavit the plots/land in question was the Nazul land and for which a lease deed was executed in between the municipal board Barabanki and Late Laxmi Narayan Gutgutia. However, in the year 2000 the land in question was converted into free hold land and a sale deed was executed in favour of the opposite party no.3. It has been further submitted that opposite party no.3 had made a complaint dated 14.11.2000 before the District Magistrate and on that basis the competent authority has issued the show cause notice to the petitioner on 15.11.2000 requiring him to place the proof of ownership/title over the land in question. The reply submitted by the petitioner was not found satisfactory and the competent authority i.e. District Magistrate, Barabanki after considering the entire facts and material on record passed the reasoned and speaking order dated 27.03.2001 whereby the N.O.C. issued in favour of the petitioner was cancelled. It has been further stated that against the order of the District Magistrate the petitioner has an alternative remedy by filing an appeal before the Commissioner, Faizabad Division, Faizabad and as such the present writ petition is liable to be dismissed on this ground alone.

The Opposite Party No.3 who appears in person on the basis of the averment made in the counter affidavit filed by him submitted that the order dated 27.03.2001 cancelling the N.O.C. is just and proper and does not call for any interference by this Court. The petitioner was afforded full opportunity before passing of the impugned order. M/s Bal Krishan Poddar Limited was merely a tenant over the land in question and the District Magistrate, Barabanki could not have permitted any tenant to make any addition or alteration over the land which was on lease to a third party, nor he could permit such tenant to change the existing nature and character of such land without permission of the landlord. It has been further submitted by the O.P. No.3 that M/s Bal Krishan Poddar Limited was a company under the Indian Companies Act, 1956 and the same was wound up. After winding up of the said company the petitioner was incorporated as a company. The land in question was in fact given on rent to M/s Bal Krishan Poddar Limited and there is no relationship of landlord or tenant between the petitioner and opposite party no.3. The petitioner cannot claim itself to be a lawful tenant and, therefore, it had no right to obtain a N.O.C. from the District Magistrate, Barabanki for the construction of underground tank for storage of kerosene oil.

It has been further submitted that even if at the time of grant of N.O.C. the land in question was Nazul land and under lease with Opposite Party No.3 the District Magistrate had no authority to grant N.O.C. for construction of underground storage tank without permission from the lessee. The opposite party no.3 being lessee of the land was not consulted nor his permission was obtained for carrying out such material construction over the land in question. The explosive authorities while issuing the license in favour of the petitioner for storage of kerosene oil in bulk were required under law to consult the owner of the land, however, before grant of the said license the Opposite Party No.3 was never consulted nor any permission was obtained from him before granting the alleged license by the Deputy Chief Controller of Explosive. It has been pointed out by the Opposite Party No.3 that in fact land in question was given on lease to his father late Laxmi Narayan Gutgutia initially for a period of 30 years in 1944, which was renewed for further 30 years in the year 1974 and after the death of Late Laxmi Narayan Gutgutia, the name of Opposite Party No.3 was mutated in his place by order of mutation dated 28.08.1991 passed by the Chairman, Nagar Palika Parishad, City Nawabganj, District Barabanki.

The Opposite Party No.3 has vehemently urged that the land in question has been converted into free hold land and in this regard a sale deed dated 25.05.2000 has been executed in his favour and as such he being the absolute owner of the land in question the District Magistrate or any authority for that purpose had no jurisdiction of power to grant permission to construct underground storage tank over his land and, therefore, the District Magistrate by order dated 27.03.2001 has rightly cancelled the No Objection Certificate granted for the purpose of installing underground storage tank over the land in question. It has been further urged that since N.O.C. was cancelled by the District Magistrate, therefore, as a consequence the District Supply Officer has rightly passed the order dated 03.04.2001 suspending the license of the petitioner, for storage and supply of kerosene oil in bulk.

From the various submissions made by the parties the questions which arise for consideration in this writ petition are :

1.Whether the District Magistrate who is the competent authority to issue No Objection Certificate for construction/installation of underground tank for storage of kerosene oil in bulk in pursuance of the Government Order dated 13.04.1998 was justified in issuing the N.O.C. without obtaining any permission or consent from the landlord/owner of the land?

2.Whether the petitioner was afforded adequate opportunity before passing of the impugned orders?

Admittedly the petitioner was the tenant over the land in question which was taken for the purpose of business of dealership of sale and supply of kerosene oil. For that purpose the aforesaid license of storage and distribution of kerosene oil was issued in favour of the petitioner by the competent authority which was renewed from time to time. The petitioner under the license was authorized to store kerosene oil in bulk. In the year 1998 the State Government having regard to the nature of the wholesale business of the petroleum products by the agents issued the Government Order dated 13.04.1998 regulating the storage of kerosene oil at the place where its storage was carried out in large quantity. The agents were required to store the kerosene oil in underground tanks. By Government Order dated 06.04.1999 the agents of the kerosene oil were directed to install underground tanks positively by 31.07.1999 failing which their license would be deemed stand cancelled from 01.08.1999.

It appears that the petitioner in pursuance of the aforesaid Government Orders had applied for the grant of no objection certificate for installing underground tanks for storage of kerosene oil in bulk, however, in the application submitted by the petitioner in this regard, he had not disclosed its status over the land in question and in the affidavit dated 27.11.1998, sworn by one Sri Pursottam Lal Sharma, Manager of M/s Bal Krishan Poddar Limited, a copy of which is annexed with the counter affidavit filed by the State, it was mentioned that the land in question is a Nazul land and in near future the deponent would get the land converted as a free hold in his favour. It appears that the petitioner had mentioned wrong facts before the authorities concerned and misled them to believe that he is the lessee/owner of the land in question. The District Magistrate by order dated 31.03.1999 issued the N.O.C. for construction of underground tank for storage of kerosene and thereafter the license for storage of kerosene was issued to the petitioner by the competent authority.

The opposite party no.3 who is the owner of the land in question had made a complaint to the District Magistrate by letter dated 14.11.2000 stating therein that permission for construction of underground tank has been granted without taking any consent from the landlord. It was further mentioned that the said permission has been obtained by misleading the authorities. On the basis of the said complaint show cause notice was issued to the petitioner and the order dated 27.03.2001 cancelling the no objection certificate was passed after considering the reply submitted in this regard by the petitioner as well as the relevant records.

Looking to the facts and circumstances of the case, we are of the considered opinion that for the land in question, which admittedly does not belong to the petitioner as he is not the owner of the same, no permission or N.O.C. could have been granted by the authorities concerned without the consent or permission from the landlord.

So far as providing opportunity to the petitioner before passing of the impugned orders dated 27.03.2001 and 03.04.2001 is concerned, it is to be noted that before passing the order dated 27.03.2001 the District Magistrate, Barabanki had issued the show cause notice dated 15.11.2000 to the petitioner and petitioner had submitted his reply dated 18.11.2000. The perusal of the order dated 27.03.2001 clearly shows that the District Magistrate, Barabanki has passed a well reasoned and speaking order after considering the relevant records. By the order dated 03.04.2001 the license for supply/distribution of kerosene oil was suspended by the District Supply Officer, however, the same was issued as a consequence to the order dated 27.03.2001, moreover by the said order the petitioner has been asked to submit his reply. As such no prior notice or opportunity was required before passing the order dated 03.04.2001 which was a consequential order passed in pursuance of the order dated 27.03.2001.

Before parting, we take into consideration the plea of the petitioner, that the order passed in the present writ petition, will not have any effect, on the relationship of landlord and tenant, and do observe, that we have not entered into the aforesaid plea, nor we are required to do so. The petitioner is at liberty to take the aforesaid issue, whenever such an occasion arises, in any proceedings.

In view of above, we are of the considered opinion that there is no infirmity or illegality in the impugned orders dated 27.03.2001 (Annexure No.1 to the writ petition) and 03.04.2001 (Annexure No.13 to the writ petition). The writ petition is devoid of merit and liable to be dismissed hence dismissed. Cost made easy.