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2010 DIGILAW 158 (CAL)

Anand Narayan Singh v. UNION OF INDIA

2010-02-18

SANJIB BANERJEE

body2010
JUDGMENT 1. THE two petitions involve common questions. It is also submitted by the common petitioner that the subsequent petition is the more exhaustive and an order made on the subsequent petition will govern the previous matter. 2. THE writ petitioner entered into an agreement with Bharat Petroleum Corporation Limited (BPCL) on January 14, 2006 for selling a land in Hooghly district. THE agreement envisaged that certain payments were to be made by BPCL to the petitioner within a stipulated time. Clause 6 of the agreement gave the would be vendor a right to rescind the agreement in the event due steps were not taken within the time stipulated. It is the petitioner's case that by April 30, 2007 meaningful steps had not been taken by BPCL whereupon the petitioner issued a letter rescinding the agreement. THE petitioner says that notwithstanding the agreement having been rescinded, BPCL has continued to be in illegal possession of the land and has unfairly obtained permission from the licensing authority for operating a petrol pump at the site. There is a history to the matter. Shortly after the petitioner rescinded the agreement of January 14, 2006, the petitioner applied to the licensing authority, the Additional District Magistrate (Development), Hooghly, for cancellation of the licence issued in favour of BPCL for operating a petrol pump at the site. By an order of December 29, 2008 the licensing authority annulled the licence. BPCL carried such order in appeal and the appellate authority set aside the licensing authority's order on January 27, 2009. 3. THEN followed the first writ petition before this Court. The petitioner herein challenged the appellate authority's (Commissioner) order in W.P. 1712 (W) of 2009. Such petition was disposed of on February 11, 2009 on the ground that the petitioner had not been afforded an opportunity of presenting the petitioner's version of things before the order was made. The order of February 11, 2009 made it clear that the merits of the matter had not been gone into. Before the appellate authority could reconsider the matter in terms of the High Court order of February 11, 2009, BPCL had instituted a civil suit seeking specific performance of the agreement of January 14, 2006. An ad interim order was made therein. The writ petitioner herein, as the defendant in the suit, also applied for an interlocutory injunction. Before the appellate authority could reconsider the matter in terms of the High Court order of February 11, 2009, BPCL had instituted a civil suit seeking specific performance of the agreement of January 14, 2006. An ad interim order was made therein. The writ petitioner herein, as the defendant in the suit, also applied for an interlocutory injunction. Both the plaintiff's and the defendant's applications were finally disposed of by a common judgment and order of March 4, 2009. The Civil Court restrained the writ petitioner herein from selling the suit property to any third person and further restrained the writ petitioner from interfering with BPCL's possession of the properly till the disposal of the suit. 4. IN point of time, the appellate authority's order came next. Pursuant to the remand of the matter before the appellate authority in terms of the High Court order of February 11, 2009, such authority heard the appeal from the order dated December 29, 2008 and directed on March 24, 2009 that a provisional licence be issued in favour of BPCL for operating the petrol pump. IN terms of the appellate order, the licensing authority issued a licence on March 26, 2009 upto December 31, 2009. The order of the appellate authority came to be challenged in the second writ petition filed before this Court. On receiving W.P. 6403 (W) of 2009, no interim order was made on August 27, 2009. The Civil Court's order of March 4, 2009 was carried in appeal before this Court on its appellate side and by an order dated May 21, 2009 the Appellate Court required the parties to maintain status quo as on that date, "As regards possession, nature and character of the disputed property and the order of injunction granted by the Trial Court, as regards transfer, alienation or encumbrance of the suit property shall remain operative." 5. THE order impugned in the present proceedings is one that has been passed by the licensing authority on December 31, 2009. THE order notices the High Court order of May 21, 2009 made at the ad interim stage of the appeal from the interlocutory application in the suit and cites such High Court order to renew the licence on a provisional basis from January 1, 2010 to January 31, 2010. THE order notices the High Court order of May 21, 2009 made at the ad interim stage of the appeal from the interlocutory application in the suit and cites such High Court order to renew the licence on a provisional basis from January 1, 2010 to January 31, 2010. When this writ petition was received, an interim order was made on January 29, 2010 restraining the fourth respondent, the licensing authority, from extending the provisional licence for operating the retail outlet without obtaining specific leave of Court. BPCL has applied for vacating the order. 6. IT is BPCL's case that the licence was provisionally extended "upto February 28, 2010 before the order of January 29, 2010 was passed or communicated; but in view of the pendency of the writ petition and the order made when the petition was received, BPCL has neither been allowed to operate the retail outlet nor has BPCL's request for further extension of the licence or provisional licence been taken up or considered by the appropriate authority. On behalf of the petitioner it is submitted that the two matters are distinct; that BPCL's claim for specific performance of the agreement is quite apart from the BPCL's right to operate the retail outlet at a time when the agreement of January 14, 2006 has been rescinded by the petitioner. The petitioner submits that BPCL's right to carry on business is not and could not have been the subject-matter of the civil suit and, in such circumstances, the licensing authority clearly erred by taking into consideration the order dated May 21, 2009 passed in proceedings arising out of the civil suit. 7. ON behalf of BPCL it is submitted that both the petitions taken up for consideration are now irrelevant. BPCL says that the appellate authority's order that has been assailed in W.P. 6403 (W) of 2009 was for a period upto December 31, 2009 which has already run out. It contends that the order impugned in the present proceedings was effective till January 31, 2009 which has also run out. 8. BPCL says that the appellate authority's order that has been assailed in W.P. 6403 (W) of 2009 was for a period upto December 31, 2009 which has already run out. It contends that the order impugned in the present proceedings was effective till January 31, 2009 which has also run out. 8. SINCE it appears, however, from the affidavit-in-opposition filed on behalf of the BPCL in the subsequent petition that the provisional licence originally granted till January 31, 2010 had been extended till February 28, 2010, the petitioner seizes the opportunity to suggest that notwithstanding the prayers in the latest writ petition being confined to the licencing authority's order of December 31, 2009, in view of the disclosure made in BPCL's affidavit that the provisional licence had subsequently been extended, the Court should not be tied down by technicalities but .consider the subsequent events and mould the reliefs claimed in the petition. A copy of the plaint relating to the suit has been handed over. It is evident from the plaint that the reliefs claimed therein are for specific performance of the agreement to sell the land. A copy of the agreement of January 24, 2006 has been appended to the petition and appears at page 61 thereof. There is nothing in the agreement relating to the business that would be carried on at the land which was proposed to be sold by the petitioner to BPCL. In any event, the order of March 4, 2009 which BPCL makes its sheet-anchor to resist the present petitions, records, inter alia, as follows at page 6 thereof: "According to the BPCL the business of the suit property is not the subject- matter of the suit." 9. IF it is the Civil Court's understanding that the business at the suit property was not the subject-matter of the suit and if the reliefs claimed in the suit makes it abundantly clear that what was sought to be specifically enforced was an agreement to sell the land simpliciter, the scope of the order passed by the Trial Court and the scope of the order passed in an appeal arising out of the order dated March 4, 2009 cannot be enlarged and be understood to be what it has been by the licensing authority in the order dated December 31, 2009. It is possible that there may be other reasons for which the licence may be renewed or extended; it could equally be that in view of the rescinding of the agreement of January 24, 2006 BPCL may not be entitled to carry on any business at the site. That is a matter which has to be considered by the licencing authority by applying his mind to the relevant considerations. The order impugned in the present proceedings, which has been subsequently extended till February 28, 2010, as would be evident from the affidavit-in-opposition, relies only on the order of May 21, 2009 passed at the ad interim stage of an appeal arising out of the Civil Court's order of March 4, 2009. 10. 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 claimed 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. 11. 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. 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 the case; the authority has to independently apply his mind to the matter. 12. 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. 13. 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. 14. IN view of the order, the vacating application being CAN 638 of 2010, is disposed of. Urgent certified photocopies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities.