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SCA/2355/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2355 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
ASMABEN
M SAVAN AND ANOTHER
Versus
DISTRICT
COLLECTOR
======================================
Appearance
:
MR SP MAJMUDAR for Petitioners.
MR PP MAJMUDAR for Petitioners.
MR RASHESH RINDANI, AGP for
Respondent.
NOTICE SERVED BY DS for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 11/05/2011
ORAL
JUDGMENT
1. Rule.
Learned AGP waives service of Rule. The petition was taken up for
final disposal by consent of learned counsel.
2. 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.
3. 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.
4. 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.
5. As
repeatedly held, and recently observed by the Apex Court in M.P.State
Agro Industries Development Corporation and Another v. Jahan Khan
[AIR 2007 SC 3153],
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.
6. 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.
(D.H.Waghela,
J.)
*malek
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