Calcutta High Court
Anand Narayan Singh vs Union Of India & Ors on 17 May, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
WP No. 616 of 2010
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Anand Narayan Singh
Versus
Union of India & Ors.
Before:
The Hon'ble Justice Indira Banerjee
Date: 17th May 2010
Mr. Kalyan Bondapadhyay, Sr. Advocate
Mr. Debabrata Saha Roy, Advocate
Mr. Pringal Bhattacharyya, Advocate
appear for the petitioner
Mr. Pratik Dhar, Advocate
Mr. Jayeeta Chakrabarti, Advocate
Mr. Ritwik Pattanayak, Advocate
Mr. Suryasarathi Basu, Advocate
appear for the respondents
In this writ application the petitioner has challenged the memo. no. 206/JL dated 3rd May 2010 issued by the Additional District Magistrate (Dev), Hooghly directing that the selling licence issued to Bharat Petroleum Corporation Limited for selling petroleum products from its retail outlet at Gopalpur, Hooghly be renewed and further directing that the sale deed with the private party be executed within the aforesaid period.
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By an advertisement dated 17th September 2004 published, inter alia, in the Telegraph, the respondent-Bharat Petroleum Corporation Limited invited offers for purchase of vacant land in different locations including Gopalpur in Hooghly district.
Pursuant to the aforesaid advertisement, the petitioner offered land for sale to Bharat Petroleum Corporation Limited. After negotiations an unregistered agreement was executed by and between the petitioner and Bharat Petroleum Corporation, through its Territory Manager (Retail) for sale of about 3 acres and 99 decimal of land for a consideration of about Rs.50.37 lakhs.
Pursuant to and/or in terms of the sale agreement that was executed by and between the petitioner and Bharat Petroleum Corporation, the petitioner made over possession of the land in question to Bharat Petroleum Corporation, and Bharat Petroleum Corporation set up a retail outlet thereat for, inter alia, sale of petroleum products of Bharat Petroleum Corporation. It is also not in dispute that a sum of Rs.2,50,000/- was paid towards advance pursuant to and/or in terms of the aforesaid sale agreement. The petitioner has alleged that the respondent-corporation failed and neglected to perform its obligations in terms of the sale agreement. It is, however, not for this Court to exercise jurisdiction under Article 226 of the Constitution of India to adjudicate 3 factual disputes as to whether there were defaults on the part of Bharat Petroleum Corporation or defaults on the part of the petitioner himself.
The petitioner has apparently issued a notice of termination of the sale agreement and Bharat Petroleum Corporation has filed a suit for, inter alia, specific performance of the aforesaid sale agreement being Title Suit No. 130 of 2007 which is pending in Court of the learned Civil Judge (Senior Division), First Court, Hooghly.
Bharat Petroleum Corporation filed an interlocutory application in the said suit under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for an order of injunction restraining the petitioner from interfering with running of the retail outlet.
In an appeal being F.M.A.T. No. 469 of 2009 a Division Bench of this Court directed that the status quo as regards possession, nature and character of the disputed land be maintained. According to the petitioner, although the agreement for sale was cancelled for alleged non-performance on the part of the respondent-corporation under the said agreement, the respondent-corporation continued operation of its retail outlet.
It is not seriously disputed that the retail outlet was set up in terms of the agreement. However after disputes arose, the petitioner made representations for revocation and/or cancellation of the no objection certificate and the licence granted under the West Bengal 4 Spirit and Speed Diesel Oil (Licensing Control and Maintenance of Supplies) Order, inter alia, contending that the respondent-corporation had no right to occupy the land. The petitioner contended that for the purpose of obtaining the no objection certificate, an intending licensee was to prove to the licensing authority that he had a legal right to use the site as a retail outlet.
The Additional District Magistrate considered the representation of the petitioner. By an order dated 29th December 2008 the Additional District Magistrate cancelled the no objection certificate and the selling licence issued to Bharat Petroleum Corporation on the ground that it had no legal right over the land on which it was running the retail outlet. The Additional District Magistrate found that Bharat Petroleum Corporation had failed to meet the requisite criteria for obtaining selling licence and no objection Certificate.
Bharat Petroleum Corporation preferred an appeal being Appeal Case No. 05 of 2009 under Rule 154 of the Petroleum Rules, 2002 before the appellate authority. The Appellate Authority allowed the appeal by an order being memo. no. 142 dated 22nd January 2009. The relevant portion of the aforesaid order is set out hereinbelow for convenience:
"Prima facie the cancellation order passed by the ADM (Dev) Hooghly is correct, lawful and as per the law provided by 5 the Petroleum Act. It cannot be said that the cancellation order is ultravirus or unconstitutional. The order passed is perfectly as per the rule empowered under the Petroleum Act. Strictly speaking the order passed by the ADM (Dev) Hooghly should not or cannot be revoked or rescinded.
The Corporation, which is a Government of India Undertaking, on the other hand admitted that they have not yet registered the land as per the agreement within six months as the land owner Mr. Anand Narayan Singh declined to register the land despite persuasions by visiting his house numerous times. BPCL further pleaded that they also wrote letters to the sellers, Mr. Anand Narayan Singh, requesting them to register the land vide their letter dated CTR. HOG.30 dated 04.07.06, 08.09.06 & 19.04.07.
The point for decision by the Commissioner, Burdwan Division, is whether the cancellation order of ADM (Dev) Hoogly, as empowered by the Petroleum Rule or otherwise, is justified. As already explained the cancellation order cannot be rescinded in the strict sense of terms as BPCL has not yet registered the land even after lapse of the stipulated 6 months.
Moreever, BPCL submitted that they are in the possession of the land and have constructed the petrol pump after incurring about Rs.4.00 crore and operating it since January 2007 and further pleaded that their permissive possession of the land cannot be disturbed and particularly because it is a Corporate body of Government of India Undertaking 6 and serving the interest of public. It is a fact that BPCL could not register the plot of land because Mr Anand Narayan Singh didn't register the land despite being issued letters within 6 months of signing of the agreement. In terms of the clause 6 of the said agreement it was obligatory on part of Mr. Anand Narayan Singh to provide all the legal documents and cooperate with BPCL and also ensue that the plot of land is registered.
Thus Mr. Anand Narayan Singh willfully declined to register the land and there is no fault on the part of BPCL. On perusal of the agreement, dated 14.01.06, it appears that it's the responsibility of Mr. Anand Narayan Singh to register the plot of land within six months with proper legal documents. Thus it is clear that BPCL is in the possession of land measuring 3.62 acres, though not registered, operating the petrol pump and has approached the Civil Court at Chinsurah for specific performance. BPCL is a Government of India Undertaking and serving the interest of public by way of providing various petroleum products to the customers and canceling the NOC and Selling licence has caused hardship and pains to BPCL and inconvenience to the public.
In view of the circumstances mentioned above and for the reasons explained, The ADM (Dev) Hoogly is required to review and reconsider the order of Cancellation of NOC and Selling Licence issued by himself on 29.12.08 and also renew the same for a further period of one year from 7 01.01.09 or till the pending suit is disposed of by the learned Civil Court, whichever is earlier."
Thereafter an order was passed issuing provisional licence till 31st December 2009. An order dated 31st December 2009 was passed further extending the provisional licence. The writ petitioner filed an application under Article 226 of the Constitution of India which was disposed of by an order dated 18th February 2009. This Court (Sanjib Banerjee, J.) observed and held as follows:
"The order impugned cannot be sustained since it relies only on an order passed in the suit and since the scope of the suit did not encompass BPCL's right to carry on business at the relevant premises. The orders that have been passed by the trial Court and the appellate Court have to be read in the context of the reliefs claim in the suit and the matters in issue in the suit.
Since it is evident that the licensing authority has taken into account only the order dated May 21, 2009 in arriving at the decision of December 31, 2009, the same cannot be sustained. Since it is also evident that the provisional period was merely extended for a subsequent month, and the licensing authority gave no independent reasons for extending the tenure beyond January 31, 2010, the order of provisional extension can also not be sustained.8
In this jurisdiction of judicial review the Court is more concerned with the decision-making process rather than the decision itself. It is possible that the order dated May 21, 2009 may be one of the considerations that should weigh with the licensing authority; but it cannot be the only consideration. The sense that the impugned order of the licensing authority made on December 31, 2009 conveys is that the Appellate Court order of May 21, 2009 willy-nilly allows BPCL to continue its business at the site. That is a clear misconstruction of the order since the order was made in a suit where BPCL's right to carry on business at the site is not in issue and no relief in such regard has been claimed. It appears from the order impugned - and corroborated by the subsequent continuation thereof - that the licensing authority felt that his hands were tied by reason of the Appellate Court order. That is certainly not he case, the authority has to independently apply his mind to the matter.
W.P. 6403 (W) of 2009 is disposed of by recording that the impugned order of the appellate authority which was the subject matter therein has run out by efflux of time. There will be no order as to costs.
W. P. 1077 (W) of 2010 is allowed by setting aside the licensing authority's order of December 31, 2009 and the subsequent extension of the provisional licence till February 28, 2010. There will be no order as to costs.9
It is made clear that it will be open to the licensing authority, upon receiving an application or objection in accordance with law, to take into account the relevant considerations for assessing whether a licence ought to be granted or renewed in favour of BPCL for operating the retail outlet at the relevant site.
In view of the order, the vacating application being CAN 638 of 2010, is disposed of."
Bharat Petroleum Corporation filed an appeal against the judgement and order dated 18th February 2010. The Division Bench did not interfere with the impugned judgement and order. The appeal was disposed of by a judgement and order dated 26th April 2010.
On 3rd May, 2010, the Additional District Magistrate (Dev), Hooghly passed the impugned order which is extracted hereinbelow:
"With reference to the above noted subject, the renewal of selling licence and N.O.C. is granted up to 30.9.2010.
He is directed to execute the sale deed with Pvt. Party within this period."
Mr. Kalyan Bandopadhyay, learned senior counsel appearing on behalf of the petitioner rightly submitted that the impugned order 10 has been passed in total disregard of the order of this Court dated 18th February 2010.
This Court (Sanjib Banerjee, J.) found that the order issuing provisional licence which was impugned in WP 1077 of 2010 could not be sustained since it relied only on an order passed in the suit and since the scope of the suit did not encompass Bharat Petroleum Corporation's right to carry on business at the premises in question. His Lordship observed that the orders that had been passed by the Trial Court and the Appellate Court had to be read in the context of the reliefs claimed in the suit and the matters in issue in the suit.
His Lordship found that it was evident that the licensing authority had taken into account only the order dated 25th May, 2009 in arriving at the decision of 31st December, 2009, and therefore, the same could not sustained. His Lordship very rightly observed that in exercise of jurisdiction of judicial review, the Court is more concerned with the decision making process rather than the decision itself.
The order dated 18th February, 2010 has assumed finality since, it is submitted that an appeal therefrom has been dismissed. This Court directed as follows:-
"It is made clear that it will be open to the licensing authority, upon receiving an application or objection in accordance with law, to take into account the relevant considerations for assessing whether a licence 11 ought to be granted or renewed in favour of BPCL for operating the retail outset at the relevant side".
A lengthy objection has been filed by the petitioner. However, the Additional District Magistrate has passed a one line order granting renewal of selling licence and no objection certificate up to 30th September, 2010. The order is non-speaking. The Territory Manager has also been directed to execute sale deed with the private party within the aforesaid period without any application of mind whatsoever and totally oblivious of the suit for specific performance pending in the Civil Court.
Mr. Surojit Nath Mitra, learned senior counsel appearing on behalf of the respondent Corporation submitted and perhaps rightly that the Petroleum Act and/or Rules framed thereunder did not cast any obligation on the Additional District Magistrate, Hooghly to give reasons for his order. Mr. Mitra also submitted and in my view was rightly that possession would necessarily include right of enjoyment. In case of residential premises, an order of status quo would mean that the occupants and/or those in possession could continue to reside, in case of business premises, the business could be carried out. The question, however, is whether Bharat Petroleum Corporation can be granted licence and/or 'No Objection' merely on the basis of an order of status quo with regard to possession.
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In support of his submission Mr. Mitra cited Superintendent Remembrances Legal Affairs vs. Anil Kumar reported in AIR 1980 SC 252. Of course, the judgment was rendered in the context of possession of arms and not in the context of possession of any immovable property.
In view of the judgment and order of Sanjib Banerjee, J. dated 18th February, 2010 there was a clear mandate on the Additional District Magistrate, Hooghly to take into account all relevant considerations for assessing whether a licence ought to be granted or renewed for operating the retain outlet. This has not been done. It is not for this Court exercising jurisdiction under Article 226 of the Constitution of India to sit in appeal or to go into the correctness of a judgment and order of a Bench of co- ordinate strength and that too after dismissal of an appeal therefrom.
The order impugned does not indicate whether all relevant factors had been considered. There being a lengthy objection taking various points, the Additional District Magistrate concerned was required to deal with the objections, if not in details, at least briefly, which he has not done. The order cannot, therefore, be sustained.
The impugned order is, thus, set aside. It will be open to the Additional District Magistrate, Hooghly to take a fresh decision in accordance with law, having regard to the judgment and order of this Court dated 18th February, 2010 which has assumed finality, appeal therefrom having been rejected. The Additional District Magistrate shall 13 take a reasoned decision with regard to renewal of the licence and the no objection certificate in terms of the judgment and order dated 18th February, 2010 within a fortnight from the date of communication of this order.
Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.
(Indira Banerjee, J.) R.Bose/A/s.
A.Rs.(CR)