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2015 DIGILAW 1685 (BOM)

Manoj v. Divisional Commissioner

2015-07-27

A.S.CHANDURKAR

body2015
JUDGMENT : 1. Rule. Heard finally with the consent of the learned Counsel for the parties. 2. The petitioner is aggrieved by the order dated 24.2.2014 passed by the respondent No.1 whereby the objections raised by the petitioners to the tenability of the appeal filed by the respondent No.3 has been rejected. 3. The facts relevant for adjudication of the present writ petition are that on 30.8.2012, the respondent No.4 filed an application before the respondent No.2 praying that the petroleum outlet run by respondent No.3 be directed to be closed. Similar application was made by the petitioner No.1 on 31.8.2012. There was also a letter dated 17.9.2012 issued by the respondent No.2 on the same matter. In view thereof, the Additional District Magistrate, Akola held an enquiry. Both the parties were noticed and after considering their respective cases, the Additional District Magistrate on 10.6.2013 made a proposal observing therein that after the death of one Shri Hajarimal Onkarmal on 26.5.1959, the no-objection certificate of the District Magistrate dated 16.4.1959 was not valid. It was further observed that though a request was made for stopping supply of petrol, such powers were not vested with the District Magistrate. This proposal was then submitted to the District Magistrate who approved the same on 15.6.2013. On 17.6.2013, the aforesaid report was forwarded by the District Magistrate to the Joint Chief Controller of Explosives. The respondent No.3 being aggrieved by the proposal dated 10.6.2013 filed appeal under Rule 154 of the Petroleum Rules, 2002 (for short the Rules). In the appeal, there was a prayer to set aside the report of the Additional District Magistrate dated 10.6.2013 as well as approval granted by the District Magistrate on 15.6.2013. 4. The petitioners and the respondent No.4 raised objection to the maintainability of the appeal on the ground that there was no order as contemplated by Rule 154 of the Rules having been passed for preferring the appeal. The respondent No.1 thereafter heard the contesting parties and came to the conclusion that the appeal as filed was maintainable and thus, rejected the objections. This order is under challenge in the present writ petition. 5. Shri A. A. Naik, learned Counsel appearing for the petitioners submitted that the appeal as filed under Rule 154 of the Rules sought to challenge the report dated 10.6.2013 and approval granted to it on 15.6.2013. This order is under challenge in the present writ petition. 5. Shri A. A. Naik, learned Counsel appearing for the petitioners submitted that the appeal as filed under Rule 154 of the Rules sought to challenge the report dated 10.6.2013 and approval granted to it on 15.6.2013. He submitted that no appeal was maintainable against the said report as submitted or against its approval. As there was no order either refusing to grant, amend or renew licence, the appeal itself was not maintainable. He referred to various other Rules and submitted that passing of an order was duly contemplated and only when an order as contemplated by the said Rules was passed that an appeal would be maintainable. He further submitted that in the impugned order, said aspects have not been considered and after turning down the objection regarding maintainability, observations on merits have also been made. He, therefore, submitted that the objection raised by the petitioners ought to have been upheld. 6. Shri M. G. Sarda, learned Counsel appearing for the respondent No.3 supported the impugned order. According to him, in view of the complaints made by the petitioners and the respondent No.4, the aforesaid report had been prepared. After hearing the contesting parties, it had been found by the Additional District Magistrate that the petroleum outlet had been running illegally for 53 years. He further submitted that as the said report was communicated to the Joint Chief Controller of Explosives on 17.6.2013, the same had an adverse effect on the interests of the respondent No.4. He, therefore, submitted that under Rule 154 of the Rules, the appeal was maintainable. He also submitted that as per the hierarchy mentioned under the Maharashtra Land Revenue Code 1966, the respondent No.1 was competent to entertain the appeal. Shri S. M. Bhagde, leaned Assistant Government Pleader appearing for respondent Nos.1 & 2 supported the impugned orders. 7. I have carefully considered the respective submissions and I have also gone through the documents placed on record. Chapter VII of the Rules prescribe the procedure in the matter of grant of licence, no objection certificate and their renewal, suspension or cancellation. The remedy of appeal has been provided by the Rule 154(1). Said Rule being relevant, the same is being reproduced as under: “154. Chapter VII of the Rules prescribe the procedure in the matter of grant of licence, no objection certificate and their renewal, suspension or cancellation. The remedy of appeal has been provided by the Rule 154(1). Said Rule being relevant, the same is being reproduced as under: “154. Appeals.(1) An appeal shall lie against any order refusing to grant, amend or renew a license, canceling or suspending a license to - - (i) the Central Government, where the order is passed by the Chief Controller; (ii) the Chief Controller, where the order is passed by a Controller; (iii) the immediate official superior to the District Authority, where the order is passed by the District Authority; (iv) the immediate official superior to officer appointed under rule 33 in the case of vessels licensed for the carriage of petroleum in bulk.” Aforesaid provision indicates that an appeal is maintainable against any order refusing to grant, amend or renew a licence or if the licence is either suspended or cancelled. The provisions of Rule 141 to Rule 153 prescribe various modalities in that regard. Whenever the no objection certificate has to be refused or cancelled or a licence has to be refused, suspended or cancelled, the Rules contemplate passing of an order by the concerned authority. The remedy of appeal provided by Rule 154(1) would have to be viewed in that context. 8. The facts of the present case indicate that on the complaints made by the petitioners for stopping the petroleum outlet run by respondent No.3, an enquiry was held by the respondent No.2 – Additional District Magistrate on the basis of which he submitted a proposal to the District Magistrate. This proposal was thereafter approved by the District Magistrate who then forwarded the same to the Divisional Commissioner. In the communication dated 17.6.2013 issued by the District Magistrate, said report has been referred to as an enquiry report. The conclusion drawn by the Additional District Magistrate in the report is regarding validity of the no-objection certificate dated 16.4.1959. In the light of the scheme of Chapter VII, the report as prepared by the Additional District Magistrate on 10.6.2013 cannot be said to be an order either refusing to grant or amend or renew the licence. Said proposal also cannot be considered as an order canceling or suspending the licence. In the light of the scheme of Chapter VII, the report as prepared by the Additional District Magistrate on 10.6.2013 cannot be said to be an order either refusing to grant or amend or renew the licence. Said proposal also cannot be considered as an order canceling or suspending the licence. It is merely a report/proposal prepared by the Additional District Magistrate in view of complaints received by said Authority and also in view of directions issued by the respondent No.1 on 17.9.2012. Merely because said report has been forwarded to the Joint Chief Controller of Explosives, the same cannot be termed as an order passed under the Rules. Similarly, merely because the parties were heard before the report/proposal was prepared, the same would also not change its character. It has been understood to be a proposal submitted to the District Magistrate and after its approval, it has been treated as a report of enquiry. Even the Authorities have not termed the said proposal or the report as an order. It, therefore, cannot be said that the report/proposal dated 10.6.2013 was an order passed that could be subjected to appeal. 9. The respondent No.1 while holding the appeal to be maintainable misdirected itself by observing that under the hierarchy prescribed under the Maharashtra Land Revenue Code 1966, a superior Authority could entertain the appeal. It is well settled that the right to prefer an appeal has to be conferred by a statute and in absence of any such statutory provision, there is no right whatsoever to file an appeal. The rejection of the preliminary objection by the respondent No.1, therefore, cannot be sustained. 10. Though the learned Counsel for the respondent No.3 sought to rely upon the decision in P. V. Prasad and others v. The State of Maharashtra and another, 1970 CRI.L.J. 399, in the view that has been taken, it is not necessary to enter into the aspect of forum for entertaining the appeal. The appeal itself having been found to be not tenable, other aspects that are reflected in the proposal or its acceptance by the same Officer in a different capacity for the purposes of granting approval are not required to be gone into. It would be open for the respondent No.3 to challenge the aforesaid proposal/enquiry report in appropriate proceedings, if so advised. 11. It would be open for the respondent No.3 to challenge the aforesaid proposal/enquiry report in appropriate proceedings, if so advised. 11. Hence, the following order is passed: ORDER (1) The order dated 24.2.2014 passed by the respondent No.1 rejecting the objection to the maintainability of the appeal is set aside. It is held that the appeal filed by the respondent No.3 challenging the proposal dated 10.6.2013 and its approval dated 15.6.2013 is not maintainable under Rule 154 of the Rules. The appeal, therefore, cannot be entertained by the respondent No.1 and the same stands dismissed as not being tenable. (3) The rival contentions as regards correctness of the observations made in the proposal dated 10.6.2013 or the manner in which it was approved on 15.6.2013 are kept open for being urged in appropriate proceedings. (4) Rule is made absolute in aforesaid terms. No costs.