Allahabad High Court
Mayank Vishnoi vs State Of U.P. And 3 Others on 5 July, 2022
Bench: Surya Prakash Kesarwani, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- WRIT - C No. - 35525 of 2021
Petitioner :- Mayank Vishnoi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Birendra Kumar,Ashish Kumar Singh
Counsel for Respondent :- C.S.C.,Komal Mehrotra
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
Heard Sri Birendra Kumar, learned counsel for the petitioner, Sri B.P. Singh Kachhawah, learned counsel for the respondent nos. 1,2, and 3 and Sri Komal Mehrotra, learned counsel for the respondent no.4.
This writ petition has been filed praying for the following reliefs:-
"a. Issue a writ, order or direction in the nature of mandamus commanding the respondent authority Respondent No.2 District Magistrate, Muzaffarnagar to consider an issue of No Objection Certificate (NOC) at once for establishment of retail outlet pursuant to letter of intent dated 01.07.2015 issued by the Respondent No.4 at once.
b. Issue a writ, order or direction in the nature of mandamus commanding the respondent authority Respondent No.2 District Magistrate, Muzaffrnagar to take a decision on the last application filed by petitioner herein dated 20.11.2021 for issuance of NOC for establishment of retail outlet in view of NOC issued by all Department, and undertaking submitted by the petitioner".
The petitioner is owner of Khasra-Plot No. 593, situated in Village Mustafabad, Tehsil Sadar, District Muzaffar Nagar. He also purchased a Plot measuring 288 sq. meter of Khasra-Plot No. 592/2, which was declared as abadi in the year 2005. Petitioner wanted to establish a Retail Outlet of respondent no.4 i.e. Hindustan Petroleum Corporation Limited and for that purpose a 'No Objection Certificate' in terms of Rule 144 of the Petroleum Rules, 2002 was sought by the respondent no.4 from the respondent no.2 i.e. District Magistrate, Muzaffar Nagar in respect of Retail Outlet proposed to be opened over the plot of the petitioner. The tehsil authority submitted a No Objection Report dated 21.08.2015 with respect to the site of the proposed Retail Outlet. Muzaffar Nagar Development Authority, Muzaffar Nagar also submitted a No Objection Report to the respondent nos. 2/3. The Public Works Department, Muzaffar Nagar raised objection dated 05.08.2015 only to the extent that the distance of the proposed plot from another Retail Outlet is less than 300 meters. Thereafter, petitioner submitted a representation before the respondent no.3 dated 12.07.2016 annexing therewith a copy of the judgment of this Court dated 29.07.2010 in Writ-C No. 43483 of 2010 (Mahtab Ahmad Versus Union of India and others) wherein this Court held that guidelines issued by the Indian Road Congress which is not a statutory body, cannot be relied. It was further held that the guidelines were issued by the Government of India for outlets. The guidelines issued by the Indian Road Congress, cannot be enforced by this Court under Article 226 of the Constitution of India.
Since respondent nos. 2 and 3 have not issued No Objection Certificate to the petitioner for the proposed retail outlet, therefore, the petitioner herein filed Civil Misc. Writ Petition No. 14545 of 2017 (Mayank Vishnoi Versus State of U.P. and 4 others) which was disposed of by order dated 10.04.2017, directing the respondent No.2-District Magistrate, Muzaffar Nagar to consider and decide the petitioner's application for grant of No Objection Certificate, as expeditiously as possible and preferably within four weeks.
Thereafter, respondent nos. 2 and 3 issued a letter dated 15.06.2017 to the petitioner raising objection that report of no objection from Social Forestry Department is necessary and after receipt of it, the matter shall be considered on merit by the District Magistrate, Muzaffar Nagar. Petitioner took steps and completed all formalities as required for the purpose of no objection certificate from the respondent no.2-District Magistrate, Muzaffarnagar. However, a fresh report was sought by the respondent no.2 from Social Forestry Department. Again Public Works Department, Muzaffar Nagar issued no objection dated 19.07.2018 to the respondent no.3. A No Objection Certificate dated 22.06.2019 was also issued by the Director Social Forestry Department, Muzaffar Nagar recommending for no objection for establishing the proposed retail outlet.
Despite the aforesaid no objections/recommendations received from the concerned departments, the respondent nos. 2 and 3 again sought no objection from the certain authorities vide letter dated 06.07.2019. In response to this letter, the Deputy Commissioner Industries send no objection dated 10.07.2019 to the respondent no.2 with respect to the proposed retail outlet in question. The Mukhya Shaman Adhikari, Muzaffar Nagar also send no objection dated 20.07.2019 to the respondent nos. 2 and 3 for the proposed retail outlet. Muzaffar Nagar Development Authority, Muzaffar Nagar also send no objection certificate dated 03.08.2019 to the respondent no.3.
Despite second round of reports/ No objection sought by the respondent nos. 2 and 3 and despite there being no material for declining to issue a no objection certificate, the respondent no.3 issued a letter dated 12.11.2020 to the respondent no.4 stating therein that since Khasra-Plot No. 592/2 is entered in category 6(4), therefore, issuance of no objection has not been found to be justified. The Sub Divisional Magistrate of the concerned tehsil submitted a report giving no objection for establishing the proposed retail outlet over Khasra Plot No. 592/2. The order of the respondent no.3 dated 16.07.2015 for cancelling the entry in the revenue record with respect of Khasra Plot No. 592/2 was stayed by this Court in Civil Misc. Writ Petition No. 10029 of 2021 (Pradeep Kumar Vishnoi and another Versus State of U.P. and another) vide order dated 03.08.2021.
Ultimately, the petitioner specifically submitted that he shall establish the proposed retail outlet only over Khasra-Plot No. 593. The plan also sanctioned by the Development Authority for construction of the retail outlet over Khasra-Plot No. 593. Thus there was no material to decline the "no objection" to the petitioner with respect to the proposed retail outlet over Khasra-Plot No. 593 particularly in view of the provision of Rule 144 of Petroleum Rules, 2002 read with format of no objection certificate.
In para nos. 21,22,24 and 26 of the counter affidavit, the respondent nos. 2 and 3 while replying to the contents of paragraph nos.27, 28, 29 and 30 of the writ petition have not disputed that the proposed retail outlet in question has been proposed only over Khasra-Plot No. 593 and yet they have shown their intention not to issue a no objection certificate on the pretext that there is possibility of use of Khasra-Plot No. 592/2. This, indicates the highhandedness and arbitrary approach of the respondent nos. 2 and 3.
Under the circumstances, we direct the respondent no.2 to pass an appropriate order for no objection certificate to the respondent no.4 with respect of proposed retail outlet of the petitioner over Khasra-Plot No. 593 within four weeks from the date of presentation of a certified copy of this order.
With the above observations, the writ petition is disposed of.
Order Date :- 5.7.2022
T.S.
