JUDGMENT Hon’ble Dilip Gupta, J.—Nagar Palika Parishad, Amroha has filed this petition for quashing the order dated 15th September, 2007 by which the Commissioner, Moradabad Division, Moradabad (hereinafter referred to as the ‘Commissioner’) has allowed the appeal filed by respondent No. 4-M/s Mohd. Siddiqi & Sons (hereinafter referred to as the ‘Dealer’) for setting aside the order dated 11th February, 2003/12th March, 2003 passed by the District Magistrate for cancellation of the ‘No Objection Certificate’ earlier granted to the Dealer to run the retail outlet from Mohalla Batwal, Bijnor Road, Amroha and for cancellation of the licence granted to it. 2. It is the case of the petitioner that in khasra plot No. 3798 which is recorded as “Sadak Pukhta” in the revenue records, a retail outlet was illegally constructed by the Dealer by encroaching the Government land and when steps were taken for closing the retail outlet, the Dealer filed Original Suit No. 668 of 1995 in the Court of Civil Judge (Junior Division), Amroha for restraining the defendants from taking possession. Subsequently, the Dealer also filed Original Suit No. 388 of 1996 for restraining the Nagar Palika Parishad from demolishing the wall of the retail outlet. The petitioner, by its letter dated 2nd June, 1997, however, informed the Commissioner that the Dealer had illegally taken possession of the Government land and had encroached it by raising the retail outlet which was causing severe watter logging problems in the area. The Commissioner directed the District Magistrate to enquire into the matter so that action could be taken against persons, if they had encroached Government land. The District Magistrate, in turn, directed the Additional District Magistrate to hold an enquiry. A detailed enqury was got done by the Additional District Magistrate through the Naib Tahsildar who submitted a report after examining the revenue records and after carrying out the inspection of the area. The report points out that the Dealer had illegally encroached khasra plot No. 3978 which was recorded in the revenue records as Government land. On the basis of the aforesaid report and other documents on record, the Additional District Magistrate concluded that the Dealer had illegally encroached Government land and, therefore, made recommendation for not only taking action against the Dealer but also the official who had earlier made recommendation for grant of ‘No Objection Certificate’. On the basis of the aforesaid report and other documents on record, the Additional District Magistrate concluded that the Dealer had illegally encroached Government land and, therefore, made recommendation for not only taking action against the Dealer but also the official who had earlier made recommendation for grant of ‘No Objection Certificate’. On the basis of the aforesaid report submitted by the Additional District Magistrate, the retail outlet was sealed and later on was demolished. The Dealer filed Writ Petition No. 31293 of 1997 against this order in which initially an interim order was granted but the petition was dismissed in default on 22nd May, 2000. The Dealer filed a restoration application and though the petition was restored to its original number but it was dismissed on 11th December, 2002 as having become infructuous. 3. In the meantime, the application submitted by the Dealer for renewal of the licence of the retail outlet was rejected by the order dated 10th September, 1996 and the appeal filed by the Dealer before the District Magistrate was also rejected by the order dated 13th April, 2000. These two orders dated 10th September, 1996 and 13th April, 2000 was assailed by the Dealer in Writ Petition No. 3485 of 2000. 4. The Dealer also submitted an application for resitement before the Bharat Petroleum Corporation Limited (hereinafter referred to as the ‘BPCL’) for shifting the retail outlet from Mohalla Batwal, Bijnor Road, Amroha to Katai Mill Yahyapur, Bijnor Chandpur Road, Amroha and such permission was granted by the BPCL. Subsequently, the District Magistrate by the order dated 23rd July, 2000 cancelled the ‘No Objection Certificate’ issued to the Dealer for running the retail outlet at Mohalla Batwal, Bijnor Road, Amroha and the Dealership licence for this place was also cancelled by the District Supply Officer. The Dealer filed an appeal before the Commissioner which was allowed and the matter was remanded to the District Magistrate for passing a fresh order. 5. On remand, the District Magistrate passed the order dated 11th February, 2003/12th March, 2003 for cancellation of the ‘No Objection Certificate’ as well as the licence. The Dealer filed an appeal before the Commissioner, who by the order dated 15th September, 2007 has allowed the appeal. It is this order dated 15th September, 2007 passed by the Commissioner that has been assailed in the present petition by the Nagar Palika Parishad. 6. The Dealer filed an appeal before the Commissioner, who by the order dated 15th September, 2007 has allowed the appeal. It is this order dated 15th September, 2007 passed by the Commissioner that has been assailed in the present petition by the Nagar Palika Parishad. 6. The Appellate Authority, while allowing the appeal filed by the Dealer, has noticed the following facts : (1) Before the retail outlet was set up at Mohalla Batwal, Bijnor Road, the Public Works Department, Fire Brigade, Excise Department and Tehsil authorities had granted ‘No Objection Certificate’. Such certificate should not have been granted, if the land belonged to the Public Works Department. There is also nothing on the record to indicate that the land belongs to the Public Works Department. (2) Though the order for resitement was issued by the BPCL, but so long as the retail outlet was actually not dismantled and shifted from the earlier site to the new site, ‘No Objection Certificate’ cannot be cancelled and so there was no occasion to cancel the licence. 7. In the counter affidavit filed by the Dealer, it is stated that the plot bearing No. 3822 (old No. 4362) belonged to the Waqf Darga Sahah Syed Ibban Shah (hereinafter referred to as the ‘Waqf’). Certain portion of this land was acquired for construction of road which was subsequently constructed in the middle of the said plot. The area acquired from the Waqf for construction of the road is actually numbered as plot No. 3798. The northern portion of the road was let out by the Waqf to the Dealer for running the retail outlet and is numbered as plot No. 3822-B. The southern portion of the road which belongs to the Waqf is numbered as plot No. 3822-A. Original Suit No. 254 of 2000 was filed by the Dealer against the BPCL and its Territory Manager to restrain it from demolishing the retail outlet and this suit was decreed on 4th December, 2001. When the respondents did not comply with the order dated 15th September, 2007 passed by the Commissioner, the Dealer filed Writ Petition No. 48298 of 2008 which was disposed of on 29th May, 2009 with the following observations : “In view of record and submissions made by the learned counsel for the parties, it is clear that the learned Commissioner, Moradabad Division passed a final order on 15.9.2007 in appeal No. 6 of 2004-05, allowed the appeal and set aside the order dated 11.2.2003 passed by the District Magistrate and the order dated 12.3.2003 passed by District Supply Officer. The said order passed by the learned Commissioner has become final against which no action has been taken by the respondents. So far as the question of resitement of business of the petitioner is concerned, a rejoinder-affidavit has been filed by the respondent to this effect that the business has not been resited. This is a question of fact which has to be decided by the respondent No. 4 District Magistrate on the basis of the evidence to be adduced before him. It would be just and proper to direct the respondent Nos. 4 and 5 to pass a proper order in view of the order passed by the learned Commissioner in above appeal about cancellation of the no objection certificate as well as issuance of sale certificate to the petitioner. Thus the petitioner is permitted to move a representation to respondent Nos. 4 and 5 in this regard within a period of six weeks from the date of this order and the respondent Nos. 4 and 5 will decide the same within a period of six weeks thereafter through speaking and reasoned order in the light of the orders passed by the learned Commissioner in above appeal. In view of above, the writ petition is disposed of accordingly.” 8. A short counter affidavit has also been filed on behalf of the BPCL pursuant to the order dated 3rd August, 2010 passed in this petition asking the counsel for the BPCL to seek instruction and file an affidavit as to whether the Dealer was doing the business from Mohalla Batwal, Bijnor Road, Amroha or from village Yahyapur Bijnor Chandpur Road, Amroha. In the short counter affidavit filed by the BPCL, it is stated that the Dealer was earlier granted the dealership at Mohalla Batwal, Bijnor Road, Amroha, but on a request made by it for resitement of the retail outlet, it was allowed to be shifted to the location at village Yahyapur Bijnor Chandpur Road outside the Amroha Town. When the proceedings for resitement had started, the BPCL had moved an application before the District Magistrate for grant of ‘No Objection Certificate’ for the new location at Yahyapur which was granted on 7th November, 1998 and after the construction was completed, the BPCL obtained the requisite licence on 24th March, 1999 and the sale subsequently commenced from this site with effect from March 1999. Subsequently, the BPCL informed the District Magistrate that since the retail outlet had been resited at its new location, the District Magistrate should cancel the earlier diesel sale licence and issue a fresh licence for the new site. The Sales Supply Officer, Moradabad also made inspection on 15th June, 1999 and advised the Dealer to close the operation at the old site. On 15th February, 2002 inspection of the resited location at Yahyapur was made and samples were sent for laboratory testing. The samples failed the test and subsequently the sale at the new location was also suspended. Thus, the Dealer is not getting supplies for either of the two locations for the last 8 years. 9. Sri Vinod Sinha, learned counsel for the petitioner submitted that the Commissioner committed an illegality in allowing the appeal filed by the Dealer as the District Magistrate by the order dated 11th February, 2003/12th March, 2003, for good and cogent reasons, had cancelled the ‘No Objection Certificate’ and the licence issued to the Dealer for the site at Mohalla Batwal, Bijnor Road, Amroha. It is his submission that the Dealer had encroached Government land and had raised the retail outlet but after realising this fact, had submitted an application for resitement of the retail outlet to a different location outside the town which permission was granted and ultimately the retail outlet was shifted and it started functioning from March 1999 at the new site but it has not functioned from 2002 since it was sealed by the BPCL as the samples failed the test. It is also his submission that the retail outlet cannot function from the site at Mohalla Batwal, Bijnor Road, Amroha when the retail outlet at the new site had started functioning. 10. Sri M.A. Qadeer, learned Senior Counsel for the Dealer assisted by Sri Shamim Ahmad, however, submitted that there is no illegality in the order dated 15th September, 2007 passed by the Commissioner which may call for any interference under Article 226 of the Constitution. It is his submission that this petition has been filed after almost two years without even giving any proper explanation for the inordinate delay. It is also his submission that when the petitioner is raising an issue as to who is the owner of the land over which the retail outlet was established, the proper remedy for the petitioner is to file a suit. 11. I have considered the submissions advanced by the learned counsel for the parties. 12. The issue raised by learned counsel for the Dealer regarding laches needs to be addressed first. It is the submission of Sri Vinod Sinha, learned counsel for the petitioner that the order passed by the Commissioner on 15th September, 2007 was not in the knowledge of the petitioner as it was not a party in the appeal and nor it was arrayed as party in Writ Petition No. 48298 of 2008 which was decided on 29th May, 2009. It had, therefore, no knowledge of the order and it acquired knowledge of the order when it was served with the notice dated 25th July, 2009 issued by the Additional District Magistrate pursuant to the directions issued by the Court. 13. It is a fact that the petitioner was not a party in the appeal decided by the Commissioner on 15th September, 2007 and nor it was a party in the writ petition filed by the Dealer in 2008 for implementation of the order of the Commissioner. The petitioner is, therefore, justified in asserting that it is only when the notice dated 25th July, 2009 was served on it by the Additional District Magistrate pursuant to the directions issued by the Court on 29th May, 2009 in Writ Petition No. 48298 of 2008, that it acquired knowledge of the order of the Commissioner. The delay has, therefore, been satisfactorily explained by the petitioner. 14. The legality of the impugned order has now to be seen. 15. The delay has, therefore, been satisfactorily explained by the petitioner. 14. The legality of the impugned order has now to be seen. 15. The main reason assigned by the Commissioner for allowing the appeal is that the retail outlet at the earlier site was not dismantled. It has come on record that an application was submitted by the Dealer for shifting the retail outlet to a location outside the city at village Yahyapur and that not only permission for resitement was granted and ‘No Objection Certificate’ was obtained by the authorities, but the retail outlet had actually started functioning from March 1999 at the new site. It is not in dispute that inspection of the retail outlet at the resited place was done in 2002 and since samples failed the test, the retail outlet was directed to be closed. The Dealer cannot be permitted to run the retail outlet from two places and since second retail outlet started functioning at the new place, the Dealer cannot contend that he should also be granted permission to run the retail outlet from the earlier place. The Commissioner was, therefore, not justified in allowing the appeal for this reason. 16. The other reason which weighed with the Commissioner for allowing the appeal filed by the Dealer is that if the land belonged to the Public Works Department, the ‘No Objection Certificate’ should not have been granted earlier. 17. Once the Dealer himself had made an application for shifting of the retail outlet to another site at village Yahyapur and it had actually started functioning from the new site, the issue about ownership of the land on which the retail outlet was functioning was not really required to be examined. The ‘No Objection Certificate’ could have been cancelled even if it was earlier granted on the basis of the reports submitted by various departments. It is, therefore, not possible to sustain this reason reason given by the Commissioner. 18. In such circumstances, the order dated 15th September, 2007 passed by the Commissioner cannot be sustained. It is, accordingly, set aside. 19. The writ petition is, accordingly, allowed. —————