Ashish Kumar Rai vs Union Of India And 3 Others
2023 Latest Caselaw 21056 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:158937-DB
 
Court No. - 40
 
Case :- WRIT - C No. - 20359 of 2023
 
Petitioner :- Ashish Kumar Rai
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Dharmendra Shukla,Subhash Chandra Maurya,Sr. Advocate
 
Counsel for Respondent :- A.S.G.I.,C.S.C.,Gaurav Kumar Chand,Nishant Mehrotra
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Prashant Kumar,J.

1. Heard Sri Anil Tiwari, learned Senior Advocate assisted by Sri Dharmendra Shukla, learned counsel for the petitioner; Sri Gaurav Kumar Chand, learned counsel for the respondent no. 1/Union of India; Sri S.C.Upadhyay, learned Standing Counsel for the State-respondent no. 3 & 4 and Sri Nishant Mehrotra, learned counsel for the respondent no.2/HPCL.

2. The present writ petition has been preferred assailing the order impugned dated 1.6.2023 passed by District Magistrate, Jhansi (Annexure No. 1 to the writ petition) and the impugned report dated 17.05.2023 submitted by the Senior Superintendent of Police, Jhansi to the District Magistrate, Jhansi (Annexure No. 2 to the writ petition). Further prayer is made to issue direction commanding the District Magistrate, Jhansi to issue N.O.C. as required under Rules 144 of the Petroleum Rule 2002 read with Rule 48 of Gas Cylinder Rules, 2004 without any further delay.

3. The record in question reflects that Hindustan Petroleum Corporation Limited (in short, HPCL)/respondent no. 2 published an advertisement dated 25.11.2018 inviting applications for MS/HSD Retail Outlet Dealership at Location: Village Nohara on Badora Chauraha Basai Road, district Jhansi. The petitioner applied for and was selected for the retail outlet and consequently, HPCL has issued a Letter of Intent (LOI) in favour of the petitioner on 30.09.2021, which is appended as Annexure No. 3 to the writ petition. Since the retail outlet requires storage of petroleum/C.N.G., the license is required under the provisions of Petroleum Act, 1934 read with Petroleum Rules, 2002 and Gas Cylinder Rules 2004. Consequently, the respondent no.2 had requested the District Magistrate, Jhansi (respondent no.3) to provide ?No Objection Certificate? with regard to the land in question as required under Rule 144 of Petroleum Rules, 2002. Thereafter, the District Magistrate sought reports from the Senior Superintendent of Police, Jhansi and 7 other departments on 29.11.2021. Consequently, they submitted their no objection, which have been brought on record as Annexure Nos. 6 to 13 respectively to the writ petition.

4. It further appears from the record that in response to the letter dated 23.11.2021, while submitting report to the Senior Superintendent of Police Jhansi recommending for grant of NOC on 25.6.2022, the Station House Officer, Badagaon mentioned that a Case Crime No.113 of 2017 under Section 379 IPC and 4/21 of Mines and Mineral Act, is registered against the petitioner, wherein, the charge-sheet has also been filed by the police on 04.10.2017. The said charge-sheet was challenged before this Court in Application u/s 482 Cr.P.C. No.27307 of 2018 (Ashish Kumar Rai v/s. State of U.P. and another), wherein, an interim protection was granted by this Court vide order dated 20.8.2018, which was extended from time to time and the same is continuing till date. On the basis of recommendation submitted by Station House Officer, the Senior Superintendent of Police, Jhansi submitted his report dated 11.10.2022 before the District Magistrate Jhansi for necessary orders on which the District Magistrate vide letter dated 25.11.2022 sought a categorical report with regard to the ?No Objection Certificate? during the pendency of criminal case against the petitioner. Thereafter, the petitioner has submitted a representation dated 27.1.2023 before the Senior Superintendent of Police, Jhansi for clearance of no objection certificate. When no decision was taken, the petitioner approached this Court by means of Writ C No.5378 of 2023, which was disposed of by this Court vide order dated 23.02.2023 directing the Senior Superintendent of Police, Jhansi to take a decision in the matter and submit his report to the District Magistrate, Jhansi expeditiously and preferably within a period of two weeks. Again on 17.05.2023 the District Magistrate sent a letter to the Senior Superintendent of Police seeking categorical report on specific three points relating to the pendency of the criminal case against the petitioner. In compliance thereof, the Senior Superintendent of Police, Jhansi has submitted the impugned report dated 17.05.2023 stating that during the pendency of the criminal case, no objection certificate cannot be granted due to public peace or for public safety. On the basis of the said report, the District Magistrate vide impugned order dted 01.06.2023 has refused to grant NOC to the petitioner during pendency of the criminal case, giving rise to the writ petition.

5. Sri Anil Tiwari, learned Senior Advocate for the petitioner has vehemently contended that the outlet or the license can be rejected only if the incumbent is a convicted person and merely pendency of criminal cases cannot be a ground for rejection of N.O.C. He further submits that the District Magistrate has passed the order impugned without considering the fact that the aforesaid criminal case is subject matter of challenge before this Hon'ble Court, wherein, the interim protection is granted to the petitioner till date. He further submits that while passing the order impugned, The Petroleum Rules, 2002 and The Gas Cylinders Rules 2004 were required to be considered in the matter but the District Magistrate has not considered the aforesaid rule and passed the impugned order, which is not sustainable in eyes of law and is liable to be set aside by this Court. In support of his submissions, he has placed reliance upon judgement dated 22.02.2005 passed by this Court in Harprasad S/O Netrem Vs. State of U.P. Through Secretary, wherein, learned Single Judge relying upon Division Bench judgment of this Court in Sheo Prasad Misra v. The District Magistrate Basti and others 1979 (16) A.C.C. 6 held that mere involvement in a criminal case cannot in any way affect the public security or public interest. He further placed reliance upon paragraphs 16, 17, 18, 19 and 44 of the judgment of Hon'ble Apex Court in C. Albert Morris v/s. K. Chandrasekaran and others (2006) 1 Supreme Court Cases 228.

6. On the other hand, Sri Nishant Mehrotra, learned counsel for the respondents submits that the process for grant of licence is contained in Rule 141 of the Petroleum Rules, 2002. Rule 144 provides for no objection certificate and the applicant has to apply before the District Authority with two copies of the site plan showing the location of the premises proposed to be licensed for a certificate to the effect that there is no objection to the applicant receiving a licence for the site proposed. The District Authority is required to consider for granting "no objection certificate" after considering the suitability of the site proposed. Rule 150 provides that a no objection certificate granted under Rule 144 shall be liable to be cancelled by the District Authority or the State Government, if the District Authority or the State Government is satisfied, that the licensee has ceased to have any right to use the site for storing petroleum. He submits that the guidelines provides for rejection of candidature of the applicant, in case the person is ?convicted? and not on the pendency of the criminal case. Under the Petroleum Rules, 2002 the ambit of enquiry by the District Magistrate is restricted to examine the suitability of the land and not suitability of candidate. The District Magistrate has completely misunderstood its role under the statute in seeking a report on the candidate.

7. We have proceeded to examine the record in question and find that in pursuance of the advertisement dated 25.11.2018 the petitioner applied for and was granted retail outlet. The HPCL has also issued the LOI in favour of the petitioner on 30.09.2021. Rule 144 of the Petroleum Rules mandates that the District Authority shall issue ?No Objection Certificate? for setting up a retail petrol outlet on a proposed site, after conducting due enquiry. Such issuance of ?No Objection Certificate? can be made only after considering various aspects about feasibility of the location of the proposed outlet. No doubt, the establishment of petroleum outlets are governed by the guidelines issued by Central Pollution Control Board dated 07.01.2020. Thus, the guidelines shall be strictly adhered to while granting ?No Objection Certificate? to establish new retail petroleum outlet. As a part of enquiry, before issue of ?No Objection Certificate?, a report was called from the Senior Superintendent of Police, Jhansi, and vide letter dated 17.05.2023, the Senior Superintendent of Police, Jhansi submitted a report to the District Collector, Jhansi that during the pendency of criminal case under the Mines and Mineral Act, no objection certificate cannot be granted to the petitioner due to public peace or for public safety. Finally, the District Magistrate vide impugned order dated 01.06.2023 has refused to grant NOC to the petitioner on the ground that the criminal case is pending against the petitioner.

8. Clause 10 of the Brochure/Guidelines on Selection of Dealers for Regular & Rural Retail Outlets Through Draw of Lots/Bidding Process provides for disqualification. The relevant clauses of the guidelines are reproduced as under:-

?10. Disqualification

A. Individual Applicants:

The persons while meeting the above mentioned eligibility criteria if do not satisfy any of the following requirements will be considered as ineligible for applying for the dealership:-

(i) Fulfil Multiple dealership norms: Multiple Dealership norms as mentioned below will be applicable for existing and future ?A?/?CC? site RO dealerships.

Multiple Dealership norms means that the applicant or any other member of his/her ?family unit? should not hold a Corporation owned ?A?/?CC? site RO/SKO-LDO dealership or RO/SKO-LDO dealerships/LPG distributorship developed under Corpus Fund Scheme and other Special category/(DQ/Operation Vijay/Parliament attack beneficiary, etc.), or Letter of Intent (LOI) for the same of any Oil Company.

Note:

a) Existing ?B?/?DC? site RO/SKO-LDO dealers/LPG distributors (other than those distributorship developed under Corpus Fund Scheme and other Special category (DQ/Operation Vijay/Parliament attack beneficary, etc.), and LOI holders including members of his/her ?family unit? may apply for ?B?/ ?DC? site RO dealership.

b) Existing unviable SKO dealers of OMCs (individual & partnership firms only) can also apply for RO dealerships (for both ?A?/?CC? site & ?B?/?DC? site ROs) as per Clause 4 (viii). ?Family Unit? in case of married applicant, shall consist of individual concerned, his/her Spouse and unmarried son(s)/daughter(s). In case of unmarried person/applicant, ?Family Unit? shall consist of individual concerned, his/her parents and his/her unmarried brother (s) and unmarried sister (s). In case of divorcee, ?Family Unit? shall consist of individual concerned, unmarried son(s)/unmarried daughter (s) whose custody is given to him/her. In case of widow/widower, ?Family Unit? shall consist of individual concerned, unmarried son(s)/unmarried daughter (s).

Oil Company for this purpose would also include Private Sector Oil Marketing Companies as per Gazette notification of 2002 i.e. (1) Indian Oil Corporation Ltd. (2) Bharat Petroleum Corporation Ltd. (3) Hindustan Petroleum Corporation Ltd. (4) Mangalore Refinery and Petrochemicals Ltd. (5) Oil & Natural Gas Corporation Ltd. (6) Reliance Industries and Essar Oil/Nyara Energy (8) Shell Corporation or any other Oil Marketing Company as defined by the Govt. of India/MOP & NG from time to time.

In addition they should:

(ii) Not have been convicted for any criminal offence involving moral turpitude/economic offences (other than freedom struggle).

(iii) Not have been a signatory to a dealership/distributorship terminated on account of proven malpractices.

(iv) Not be Mentally unsound/totally paralyzed.

Further,

(v) The family members (as per definition under multiple dealership norm) of the employees of Oil Marketing (who are employed at the time of application) would not be permitted to aply for RO dealership.

(vi) To be eligible to apply for new RO dealership, existing RO/SKO-LDO Dealerships and LPG Distributorship and their ?family unit?, as defined under Dealership/Distributorship Selection Guidelines, should not belong to a dealership/distributorship which has been penalized for violation of Marketing Discipline guidelines under major irregularities within last 5 years (for RO/SKO-LDO Dealerships) and 4 years (for LPG Distributorship) preceding the date of advertisement. Further, in case of any proceedings (Court cases, show cause notices, etc.) pending against the dealership/distributo5rship under critical/major irregularities for violation of Marketing Discipline Guidelines/Dealership Agreement, Control Orders or ESMA, in case selected, the allotment will be conditional and subject to the outcome of such proceedings.?

9. A perusal of clause 10 (A) (ii) of the Brochure would show that the guidelines provides for rejection of candidature, in case the person is convicted for any criminal offence involving moral turpitude/economic offences (other than freedom struggle) and not on the pendency of the criminal case. In the present case, while rejecting the NOC the District Magistrate, Jhansi has failed to appreciate this aspect of the matter and as such, the impugned order cannot sustain in the eye of law.

10. In view of the above, the order impugned dated 01.6.2023 is unsustainable and accordingly, the same is set aside. The matter is remitted to the District Magistrate, Jhansi to proceed afresh in the light of aforesaid observations within two weeks from the date of production of a certified copy of this order.

11. The writ petition is partly allowed.

Order Date :- 8.8.2023

A.K.Srivastava