JUDGMENT By the Court.—Heard Shri A.K. Misra, assisted by Smt. Pallavi for the petitioner and learned Standing counsel for the respondents. 2. Shri Ravi Kiran Jain, learned Senior Advocate assisted by Ms. Deeba Siddiqui has appeared for respondent Nos. 3 to 5. 3. An impleadment application has been filed on behalf of Shri Brij Mohan Gupta by Shri Saurabh Raj Srivastava, who has also been heard. 4. Counter and rejoinder-affidavits have been exchanged between the contesting parties and with the consent of learned counsel for the parties the writ petition is being finally decided. 5. By this writ petition, the petitioner has prayed for quashing the order dated 14.11.2011 passed by respondent No. 1, District Magistrate, Allahabad (Annexure 7 to the writ petition). 6. By the said order, the petitioner’s application praying for cancellation of ‘No Objection Certificate’ granted to the respondent No. 3 under The Petroleum Rules, 2002 (hereinafter referred to as “Rules 2002”) has been rejected and the District Magistrate, Allahabad has further directed that respondent No. 3 if submits an appropriate application for free hold of part of the land, the same may be considered. 7. The brief facts of the case as emerged from the pleading of the parties are : The petitioner claims to be the owner of land bearing Municipal No. 18 Kanpur Road, Allahabad. A part of the aforesaid plot measuring 5216 sq.ft was leased out to respondent No. 4. A copy of the registered lease deed dated 25.2.2004 for a period of 7 years has been filed as Annexure 1 to the writ petition. 8. The petitioner who claims to be a landlady gave a notice to the respondent No. 4 on 28.4.2011 intimating that the lease is not to be further extended after 31.5.2011. The petitioner, thereafter, submitted an application/objection dated 1.6.2011 addressed to the District Magistrate, Allahabad praying that ‘No Objection Certificate’ granted to the respondent No. 4 be cancelled, after initiating the proceedings under the said Rules, 2002. Thereafter, the petitioner has come before this Court by filing writ petition No. 45879 of 2011 (Manju Gupta v. District Magistrate, Allahabad and others) which was disposed of directing the District Magistrate to pass appropriate orders after hearing the petitioner as well as Bharat Petroleum Corporation Limited. A notice dated 4.10.2011 was issued fixing 7.10.2011 by the District Magistrate, Allahabad. Thereafter, the petitioner has come before this Court by filing writ petition No. 45879 of 2011 (Manju Gupta v. District Magistrate, Allahabad and others) which was disposed of directing the District Magistrate to pass appropriate orders after hearing the petitioner as well as Bharat Petroleum Corporation Limited. A notice dated 4.10.2011 was issued fixing 7.10.2011 by the District Magistrate, Allahabad. The Bharat Petroleum Corporation Limited also filed its reply vide letter dated 10.10.2011 (Annexure 6 to the writ petition) in which it has been stated that rent for further period up to September 2011 has already been paid. It was also stated that Corporation is in possession of the property which has right to store the petroleum products. It was the Corporation’s request that no action shall be taken by the District Magistrate, Allahabad. 9. The Additional District Magistrate, (Civil Supply) heard the parties on 10.10.2011 and thereafter on 14.11.2011, order has been passed which is impugned in the writ petition. 10. Shri A.K. Misra, learned counsel for the petitioner, challenging the order contended that the lease in favour of respondent No. 4 granted by the petitioner having not been extended after 31.5.2011, respondent No. 4 was not entitled to store the petroleum products in the premises and ‘No Objection Certificate’ granted to them was required to be cancelled under Rule 150 of the said Rules, 2002. He further submits that the order dated 14.11.2011 has been passed in violation of principles of natural justice, since after close of hearing on 10.10.2011, an application was submitted on 2.11.2011 by the third party which has been relied upon by the District Magistrate, Allahabad. It has further been submitted that application dated 2.11.2011 submitted by the Corporation has also been taken into consideration and relied on by the impugned order. It has further been submitted that one M/s Speed Motors who was permitted by the Corporation to run the outlet has also filed an application and certain documents to which petitioner was never made aware and the District Magistrate has relied on various materials which was received after 10.10.2011 hence, the order passed is completely in violation of principles of natural justice. He further submitted that District Magistrate by the said order has also observed that Corporation’s application for grant of free hold is also entitled to be considered which was beyond the scope of controversy before the District Magistrate and the order of District Magistrate permitting the Corporation to make an application for free hold was without jurisdiction. 11. Shri R.K. Jain, learned Senior Advocate refuting the submissions of the learned counsel for the petitioner contended that District Magistrate has no power to decide the question as to whether the lease has been determined or not. He submits that respondents have filed objections stating that they are still in possession of the premises and the lease has not been validly terminated. He further submits that question ought to have been determined by the competent civil Court and unless the petitioner files some order or declaration of competent Court, the District Magistrate has no jurisdiction to consider the application dated 1.6.2011. Shri Jain also referred the objection of the Corporation dated 10.10.2011 which has been annexed as Annexure 6 to the writ petition. 12. Shri Jain further submits that order of Collector consists of two parts, i.e. (i) considering the application for cancellation of ‘No Objection Certificate’ under the Rules, 2002; (ii) direction for consideration of application for grant of free hold to the Corporation. He has placed reliance upon the judgment of Punjab & Haryana High Court dated 5.5.2011 in Civil Writ Petition No. 1689 of 1989 (Bharat Petroleum Corporation Limited v. The District Magistrate/Deputy Commissioner, Hissar and another) which has been brought on record as Annexure CA-1 to the counter-affidavit. 13. Shri Saurabh Raj Srivastava, Advocate who has filed an application for impleadment on behalf of Shri B.M. Gupta submitted that applicant B.M. Gupta may also be impleaded as one of the respondent since he is a co-owner of the property. Petitioners are not sole owner of the property and Shri B.M. Gupta has already filed a suit No. 669 of 2011 for partition before the Court below which is pending. He submits that applicant Shri B.M. Gupta thus be impleaded as one of the respondent who is a necessary party to the writ petition. He has also placed reliance upon the judgment of the Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Private Limited and others, 2010 (7) SCC 417 ). 14. He submits that applicant Shri B.M. Gupta thus be impleaded as one of the respondent who is a necessary party to the writ petition. He has also placed reliance upon the judgment of the Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre & Hotels Private Limited and others, 2010 (7) SCC 417 ). 14. We have heard learned counsel for the parties and perused the record. 15. Before we proceed to consider the submissions advanced by learned counsel for the parties, it is necessary to dispose of the application filed by Shri B.M. Gupta, for impleadment. 16. In the application, Shri B.M. Gupta, claims to be the co-owner of the property and reference to the suit No. 669 of 2011 has been made. A Copy of plaint has been filed as Annexure 1 to the impleadment application. 17. Shri A.K. Mishra, learned counsel for the petitioner has also filed counter-affidavit to the impleadment application praying that application of Shri B.M. Gupta be rejected. He further submits that Shri B.M. Gupta is neither necessary nor proper party in the writ petition. 18. The petitioner has challenged the order of the District Magistrate, Allahabad which emanated from the application of the petitioner submitted on 1.6.2011 for cancellation of ‘No Objection Certificate’ issued to the Bharat Petroleum Corporation. He submits that in this proceedings the issues of title cannot be allowed to be raised by Shri B.M. Gupta. 19. Learned counsel for the petitioner has submitted that Shri B.M. Gupta has already been held not to be a tenant of the premises nor as owner in earlier proceedings which went up to the Supreme Court. He submits that proceedings arose out of SCC Suit No. 13 of 1997 which travelled upto Hon’ble Apex Court where the matter was remitted for considering afresh by the High Court and one of the issue which was remitted for consideration was Memorandum of understanding dated 23.8.1993. 20. Learned counsel for the petitioner refers to a subsequent judgment of this Court dated 15.12.2010 in Civil Revision No. 275 of 2003 in which revision was dismissed. It is further submitted that this Court after interpreting the memorandum of understanding has held that there was no right, title in respect of the premises in Shri B.M. Gupta. 20. Learned counsel for the petitioner refers to a subsequent judgment of this Court dated 15.12.2010 in Civil Revision No. 275 of 2003 in which revision was dismissed. It is further submitted that this Court after interpreting the memorandum of understanding has held that there was no right, title in respect of the premises in Shri B.M. Gupta. Against the said order, a special leave petition (SLP) No. 36283 of 2011 was filed which was also dismissed on 7.1.2011. 21. Petitioner has made submission that right and title between the petitioner and Shri B.M. Gupta has already been determined whereas Shri Saurabh Raj Srivastava submits that B.M. Gupta’s suit for declaration and partition is still pending. 22. We do not find it appropriate to enter into the above issue in this writ proceeding. The present writ petition filed by the petitioner arises out of order passed by the District Magistrate after hearing the petitioner and the Corporation. Shri B.M. Gupta was not a party before the District Magistrate nor any of his rights can be said to be affected by the order passed by the District Magistrate. For deciding the issue between the petitioner and the Corporation it is not necessary that Shri B.M. Gupta be impleaded as one of the respondent. Thus, the application filed for impleadment is, hereby, rejected. 23. Shri Saurabh Raj Srivastava, has placed reliance on the judgment of the Apex Court in Mumbai International Airport Private Limited (Supra) the Apex Court in the said case has laid down that the discretion to either allow or reject the application of the person claiming to be the proper party depends upon the facts and circumstances of the case and no person has a right to insist that he should be impleaded as a party merely because he is a proper party. Following propositions were laid down by this Court in para Nos. 22 to 25 of the aforesaid case : 22. “Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. “Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non party to be impleaded as a party, but about the judicial discretion of the Court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The Court can strike out any party who is improperly joined. The Court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the Court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the Court will of course act according to reason and fair play and not according to whims and caprice. 23. This Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import reiterated in SCC p.96, para 20 the classic definition of ‘discretion’ by Lord Mansfield in R. v. Wilkes (ER p.334) that ‘discretion’ “when applied to Courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular’. 24. We may now give some illustrations regarding exercise of discretion under the said sub-rule 24.1 If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the Court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. 24.2 If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party. But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession. 24.3 If a person makes an application for being impleaded contending that he is necessary party, and if the Court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the Court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit. 24.4. If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bona fides etc., the Court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and Court finds him to be a proper party, the Court may direct his addition as a defendant; but if the Court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the Court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms. For example, if ‘D’ claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of ‘P’ representing that he is the co-owner with half share, and ‘P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the Court may permit the other co-owner who contends that ‘D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the Court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the Court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject-matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. 25. In other words, the Court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party”. 24. There cannot be any dispute to the proposition as laid down by the Apex Court in the aforesaid case, however, as observed above in the facts and circumstances of the present case, no case has been made out to implead Shri B.M. Gupta as one of the respondent. 25. One of the submission of learned counsel for the petitioner advanced is that order passed is in violation of principles of natural justice. In support of his submission, he refers to para 16 to para 20 of the writ petition. The parties were heard by the District Magistrate on 10.10.2011. 25. One of the submission of learned counsel for the petitioner advanced is that order passed is in violation of principles of natural justice. In support of his submission, he refers to para 16 to para 20 of the writ petition. The parties were heard by the District Magistrate on 10.10.2011. A perusal of the order indicates that District Magistrate after hearing the parties have obtained certain report dated 2.11.2011 from the Additional District Magistrate, (Nazul). The said report also refers to an application given by the Bharat Petroleum Corporation on 2.11.2011 in which they requested that land 5216 sq.ft be allotted to them on the basis of circle rate and the recommendation for that may be forwarded to the State Government. The proceeding had been initiated by the District Magistrate on the basis of the application dated 1.6.2011 for cancelling ‘No Objection Certificate.’ The impugned order clearly refers to the application dated 1.6.2011 as well as order of this Court passed in Civil Misc. Writ petition No. 45875 of 2991 by which this Court directed the District Magistrate to decide the application after hearing the Corporation. Hearing had been completed on 10.10.2011, which fact has been specifically stated in para 16 of the writ petition and has not been specifically denied in para 13 of the counter-affidavit filed by the Corporation. 26. A counter-affidavit has also been filed by the District Magistrate in which the averments of the writ petition made in para 16 of the writ petition has not been denied. In para 18 of the counter-affidavit following was stated : “That the contents of para Nos. 15 16 and 17 of the writ petition are admitted to the extent that the petitioner was heard on her application and a final order was passed by the District Magistrate, Allahabad on 14.11.2011.” 27. Thus the case of the petitioner that after conclusion of the hearing on 10.10.2011fresh material was taken by the Additional District Magistrate and was relied upon remains unrebutted. 28. Taking of any material or report subsequently after close of hearing is clear violation of principles of natural justice and the order of the District Magistrate cannot be sustained on this ground alone. 29. One of the submission which has been raised by Shri Jain is that District Magistrate has no jurisdiction to determine the issue as to whether the lease has been determined or not. 29. One of the submission which has been raised by Shri Jain is that District Magistrate has no jurisdiction to determine the issue as to whether the lease has been determined or not. In this context, he refers to Rule 150 of the said Rules, 2002. The said proviso provides for cancellation of ‘No Objection Certificate’. The said Rule quotes as under : Rule 150. “Cancellation of no-objection certificate : “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 the storing petroleum. Provided that before cancelling a no-objection certificate, the licensee shall be given a reasonable opportunity of being heard. (2) A District Authority or a State Government cancelling a no-objection certificate shall record, in writing, the reasons for such cancellation and shall immediately furnish to the licensee and to the licensing authority concerned, copy of the order cancelling the no-objection certificate.” 30. Admittedly, the District Magistrate granted ‘No Objection Certificate’ in accordance with the Petroleum Rules, 2002. Rule 150 gives statutory power to District Magistrate to cancel ‘No Objection Certificate’ granted. The ground on which ‘No Objection Certificate’ can be cancelled as provided under Rule 150 is that ‘licensee has ceased to have any right to use the site for storing petroleum’. When a statutory authority exercises a power under a statute all incidental power for exercising such power has to be conceded to the statutory authority. 31. The District Magistrate who has to exercise its statutory authority under Rule 150 of the said Rules can determine the issue as to whether lease has been terminated or not for effectively exercising its jurisdiction. The question as to whether licensee has ceased to have any right for storing petroleum can thus very well be gone into by the District Magistrate. The submission that unless it is determined by any competent Court whether lease has been determined or not the District Magistrate himself cannot determine the question cannot be accepted. 32. The question as to whether licensee has ceased to have any right for storing petroleum can thus very well be gone into by the District Magistrate. The submission that unless it is determined by any competent Court whether lease has been determined or not the District Magistrate himself cannot determine the question cannot be accepted. 32. Shri Jain, has placed reliance upon a judgment of Punjab & Haryana High Court in Bharat Petroleum Corporation Limited (Supra), in the said case, the property had become “public premises” under the Public Premises (Eviction of Unauthorised Occupants), Act, 1971 hence, it was held that so long the petitioner was not ejected from the property in the manner in accordance with law the right to store the petroleum products could not have been become unlawful. The present is not a case of a public premises, hence the above judgment is clearly distinguishable and does not help the respondent No. 3 in the present case. 33. Further, the District Magistrate having initiated the proceedings on the application dated 1.6.2011 submitted by petitioner requesting for cancelling of ‘No Objection Certificate’ any order in the said proceedings with regard to permitting the Corporation to make an application for free hold was not appropriate. There cannot be any dispute to the submission made by Shri Jain that the District Magistrate can exercise its power as Collector as well. However, the said power can be exercised in appropriate proceedings after hearing the affected parties, in a proceeding where the application was filed for cancelling the ‘No Objection Certificate’ no order could have been passed by the Collector for permitting the Corporation to apply for allotment and free hold whereas the said application by the Corporation is said to have been made on 2.11.2011 which is clear from the order of the District Magistrate where it has been specifically noted that Bharat Petroleum Corporation Limited has submitted an application on 2.11.2011. 34. In view of the above discussion, the order dated 14.11.2011 cannot be sustained and is, hereby, set aside. 35. In the result, the application dated 1.6.2011 submitted by the petitioner revives and need to be considered and decided by the District Magistrate afresh after hearing the petitioner and Corporation in accordance with law expeditiously preferably within two months from the date a certified copy of this order is submitted before him. 36. 35. In the result, the application dated 1.6.2011 submitted by the petitioner revives and need to be considered and decided by the District Magistrate afresh after hearing the petitioner and Corporation in accordance with law expeditiously preferably within two months from the date a certified copy of this order is submitted before him. 36. The petition is allowed to the extent indicated above. ———————