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2011 DIGILAW 554 (GAU)

K. C. B. Poddar v. State of Tripura

2011-06-28

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. S M Chakraborty, learned senior counsel assisted by Mr. S Bhattacharjee, learned Counsel appearing for the Petitioner. Also heard Mr. N C Paul, learned Government Advocate for the Respondent Nos. 1, 2 and 3 as well as Mr. A Lodh, learned Counsel appearing for the Respondent No. 4. 2. The fact leading to filing of this writ petition reveals that the Petitioner has been running a manually operated retail Out Let Agency of diesel and kerosene at Manubazar under Sabroom Sub-Division, South Tripura from the year, 1973. Prior to that since 1964, the Petitioner was running the agency of kerosene oil of Burma Oil Company. 3. Keeping in view the requirement of the locality as well as the request of the Petitioner, the Indian Oil Corporation sanctioned an 3 Auto Pumping Agency in place of packed Agency in the name of the Petitioner. Pursuant to which, the Respondent No. 4 by a letter, dated 22.06.2010, requested the Respondent No. 2 to issue 'No Objection Certificate', in favour of the Petitioner for constructing petroleum Class-'A' and 'B' retail Out Let at Manubazar in South Tripura. Accordingly, in terms of the requirement of the Respondent No. 2, the Petitioner also obtained 'No Objection Certificate' from the local Gram Panchayat, Police Station and also the Fire Service Station of the locality. Since the Petitioner would be entitled to apply for exclusive license from the competent authority of the Government of India only after obtaining 'No Objection Certificate' from the Respondent No. 2, the Petitioner submitted necessary application before the Respondent No. 2, District Magistrate and Collector, South Tripura District, by annexing all necessary documents including the documents to justify the claim of the Petitioner over the land, in which the Auto Pump Unit was installed. The Petitioner annexed copy of the judgment and decree, passed by the Court of competent jurisdiction to show that the title of the land in question where the Auto pumping Agency is proposed to be installed, lay with the Petitioner. 4. The Respondent No. 2, after receiving the application of the Petitioner, in order to consider the prayer of the Petitioner, sought for comments from the Sub-Divisional Magistrate, Sabroom, South Tripura. 4. The Respondent No. 2, after receiving the application of the Petitioner, in order to consider the prayer of the Petitioner, sought for comments from the Sub-Divisional Magistrate, Sabroom, South Tripura. The Respondent No. 3 by his letter, dated 06.09.2010 (Annexure-9) informed the Respondent No. 2 in clear terms that in the interest of general public, he would have no objection in having a Petroleum Class 4 A' and 'B' Retail Outlet on the proposed site at Manubazar under Sabroom Sub Division on which the Petitioner is at present running his existing diesel and kerosene retail outlets. Even, in spite of the above communication from the Respondent No. 3 (Annexure-9), the Respondent No. 2 has not taken any step to issue 'No Objection Certificate' in favour of the Petitioner. 5. Learned Counsel for the Petitioner submits that if such 'No Objection Certificate' is not issued by the Respondent No. 2, the Indian Oil Corporation would not sanction the Auto Pumping Unit in favour of the Petitioner and that would deprive not only the interest of the Petitioner, but the entire people of the locality would be deprived of the benefit. Learned Counsel for the State has objected to the prayer of the Petitioner for issuance of 'No Objection Certificate', only on the ground that the land in question is a Khas land and a portion of which has already been allotted to the Fire Service Department of the Sub-Division. 6. However, on perusal of the judgments and decree, dated 19.12.2007 and 25.07.2008 passed by the Civil Court of competent jurisdiction in T.S. No. 4 of 2004 and T.A. No. 5 of 2008 respectively, it appears that the land in question covered by Sebak Dag No. 845, Hal Plot No. 3249 stands in the name of the Petitioner. Therefore, unless the judgments of the Courts of competent jurisdiction, as aforesaid, are not modified or set aside no authority of the Government can come forward to question the finality judgments and decree passed by a 5 competent Courts of civil jurisdiction. There is no question of disputing the right title and interest of the Petitioner over the plot of land. There is no question of disputing the right title and interest of the Petitioner over the plot of land. Since the judgments and decree stand in favour of the Petitioner, which categorically reflects that the land in questions stands in the name of the Petitioner, the State Government neither can deny the existence of the decree in favour of the Petitioner nor can refuse any right that may be accrued to the Petitioner in terms of the decree in respect of the plot of the land by taking a stand that the land belongs to the State Government. Therefore, the stand so taken by the State Government Counsel is not acceptable. 7. The State Respondents apart from disputing the validity of the decree, passed in favour of the Petitioner has also contended that a part of the land, which is in occupation of the Petitioner, was allotted to the Fire Service Department by the Government. However, fact remains that if the land, which is allotted to the Fire Service Department, is within the decretal land of the Petitioner, the State would not be able to claim such land as Khas or Govt. land, unless the aforesaid decree passed by a competent Court of Civil Jurisdiction is set aside or reversed by a competent Court. Now, it can not be contented that unless the record of right is corrected the land in question will remain a khas land. 8. Learned Counsel for the State-Respondents further submitted that the Petitioner is in occupation of the land which is more than the decretal land and therefore, it would not be appropriate for 6 the Respondent authority to issue a 'No Objection Certificate' as prayed for by the Petitioner. Nevertheless, admittedly the Petitioner is already running a packed Agency of diesel and kerosene at the same place, obviously, with the approval of the State authority. The observation made by the SDM, Sabroom, South Tripura reveals that in the interest of General Public, he would have no objection in having a Petroleum Class-A and B Retail Out let at the proposed site at Manubazar, under Manu Sub-Division, in which the applicant is already running a kerosene and diesel Out Let. The observation made by the SDM, Sabroom, South Tripura reveals that in the interest of General Public, he would have no objection in having a Petroleum Class-A and B Retail Out let at the proposed site at Manubazar, under Manu Sub-Division, in which the applicant is already running a kerosene and diesel Out Let. Learned Counsel appearing for the State Respondents contends that the land on which the Petitioner is having his agency is a khas land, which has already been allotted to the Fire Brigade Department by the Government. In reply to the above, learned Counsel for the Petitioner submits that a formal decree by the competent Court of Civil jurisdiction had already been passed in respect to the plot of land which was confirmed by the Appellate Court on an appeal being preferred by the Government. Therefore, there cannot be any dispute in respect of title of the plot of land which is in possession of the Petitioner. 9 From the above discussion it is apparent that though the land in question has been recorded as khas land in the Revenue Department of the Government of Tripura, the Petitioner has already obtained a decree declaring the right, title and possession in his favour in Title suit No. 4/2004 and prayer for modification of the name of the Petitioner on the basis of the decree, passed in TS No. 04/2004 and T.A No. 05/2008 is to be disposed by the Revenue Department. Since the 7 decree is in favour of the Petitioner, his legitimate right cannot be denied on the ground that he is not the owner of the plot of land in question. 10. In view of the above, this writ petition is disposed of with a direction to the Respondent authority to consider issuance of 'No Objection Certificate' in favour of the Petitioner for construction of Petroleum Class 'A' and 'B' retail outlet at the proposed site at Manubazar on which the Petitioner has already been running a kerosene and diesel outlet in accordance with the procedure so prescribed for the purpose. However in doing so, the 'No Objection Certificate' can not be denied on the ground that the decretal land in possession of the Petitioner is a Government land. However in doing so, the 'No Objection Certificate' can not be denied on the ground that the decretal land in possession of the Petitioner is a Government land. Further, it is made clear that in considering the prayer of the Petitioner for issuance of 'No Objection Certificate', the authority concerned shall not treat the Petitioner as a trespasser in the land belonging to the Petitioner in terms of the decree of the Civil Court. 11. With the aforesaid observation and direction, this writ petition is disposed of. However, the Respondent Nos. 2 is directed to consider issuance of 'No Objection certificate' within a period of 30 days from the date of receipt of a certified copy of this order. 12. I pass no order as to costs.