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2016 DIGILAW 1590 (MAD)

N. A. K. Gopalakrishna Raja v. District Collector

2016-04-20

B.RAJENDRAN

body2016
ORDER : B. Rajendran, J. This Writ Petition has been filed by the owner of the land in Survey No.533 in Theni Allinagaram. He has let out the vacant site to the third respondent for lease and the lease period was over as early as on 15.03.1992. According to the petitioner, even thereafter, the third respondent has not vacated the premises but he is doing business, illegally by getting No Objection Certificate from the second respondent for issuance of licence. Only on the basis of the No Objection Certificate issued by the second respondent, without any valid right he has been continuing his business. According to him, it is illegal. The authority should not have issued No Objection Certificate for grant of licence, as there is no valid lease at all. The possession of the third respondent in the property is illegal which can be termed as only trespasser. When there is no valid agreement, the authority could not have satisfied himself to the legal right of the petitioner to continue in the property so as to run the business. Therefore, the authority granting No Objection Certificate and the consequential licence are baseless. In fact, earlier he has filed a Writ Petition for eviction and that was withdrawn and subsequently he has also filed a suit wherein the respondent claimed city tenant's protection right. Now, the contention of the petitioner is not to evict the third respondent but he cannot run the petroleum business especially without the owner's consent. In this connection, he would also point out that after the representation made by him when that was not considered earlier he had filed a writ petition for mandamus seeking direction to the first and second respondent to cancel the license given by them to the fifth respondent/third respondent herein and also a direction to the third respondent to revoke the No Objection Certificate given by him to the third respondent herein and this Hon'ble Court by order dated 27.02.2014 directing the respondents to consider the case of the petitioner and pass appropriate orders after giving opportunity to both parties. Thereafter, both parties have appeared before the respondent concerned and thereafter, the present order was passed cancelling the No Objection Certificate and consequential licence. 2. Thereafter, both parties have appeared before the respondent concerned and thereafter, the present order was passed cancelling the No Objection Certificate and consequential licence. 2. The grievance in the writ petition is that now the order has been passed by the District Revenue Officer but they have presented the appeal before the District Collector and the District Collector in turn entertained the appeal and issue summons calling upon them to appear. It is the contention as per the provisions of the Act, namely, the Petroleum Act and the Petroleum Rules, 2002, the higher authority means not the District Collector but only the Government. They specifically plead that as per the petroleum Rules, Rule 2 (x) the District Authority means: (a) in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police; (b) in any other place, the District Magistrate; It will include the District Magistrate. The District Magistrate means normally the District Collector. But there is a further definition in Rule 2 (xi) that District Magistrate means and includes an Additional District Magistrate. The Additional District Magistrate includes the District Revenue Officer. Now, when the District Revenue Officer has passed an order, it is tantamount to the order passed by the District Magistrate who is none other than the District Collector. Therefore, when the Additional District Magistrate passes an order, against that order, there cannot be any appeal to the District Magistrate itself. Therefore, it has to go only before the Secretary to Government, Land Administration. In this connection, he would also point out that Rule 154-appeal would also include when the order is passed by the District Authority who is an immediate superior officer to the District Authority. Therefore, the authority means and include only the higher officer and not the equivalent officer. In this case, the Collector and the District Revenue Officer are equal ranking officers viz., Additional District Magistrate which is included in the definition. Therefore, he would contend that even the summons issued by the authority is wrong. 3. Whereas, contra, the respondent counsel mainly would point out that after all this is only a notice even for jurisdiction purpose, he can challenge the same before the authority concerned. Secondly, District Revenue Officer is definitely subordinate to the District Collector. Therefore, he would contend that even the summons issued by the authority is wrong. 3. Whereas, contra, the respondent counsel mainly would point out that after all this is only a notice even for jurisdiction purpose, he can challenge the same before the authority concerned. Secondly, District Revenue Officer is definitely subordinate to the District Collector. Therefore, any order passed by District Revenue Officer would definitely go before the next ranking official in the department namely the District Collector and rightly the District Collector has entertained the appeal and issued only a summon. Rule 154(1) (iii) only would help the respondent which contemplate that the authority is vested with the District Collector. Under those circumstances, he would contend that the writ petition is devoid of merits and it has been filed only to harass the third respondent. 4. Heard all the parties. 5. On a careful perusal of the entire arguments and the documents produced and the rules, let us first take the rule in this regard. It is useful to extract the Rule 2 (x) and (xi) and Rule 153(1)(iii) which reads as under: 2. Definitions-(1) In these rules, unless the context otherwise requires, - (x) "District Authority" means - (a) in towns having a Commissioner of Police, the Commissioner or a Deputy Commissioner of Police; (b) in any other place, the District Magistrate; (xi) "District Magistrate" means and includes an Additional District Magistrate and in the States of Punjab and Haryana and in the Karaikal, Mahe and Yenam areas of the Union territory of Pondicherry, also includes a Sub- Divisional Magistrate; 154. Appeals - (1) An appeal shall lie against any order refusing to grant, amend or renew a license cancelling or suspending a license to - ... (iii)the immediate official superior to the District Authority, where the order is passed by the District Authority; The Rule 2(x) would state in respect of the matters it is the District Magistrate who is the competent person. Now, the next Rule 2(xi) defines the District Magistrate. The definition starts with the wording District Magistrate includes the Additional District Magistrate. Therefore, the District Magistrate and the Additional District Magistrate are equal in rank and it is not in dispute that District Revenue Officer is an Additional District Magistrate. Now, the next Rule 2(xi) defines the District Magistrate. The definition starts with the wording District Magistrate includes the Additional District Magistrate. Therefore, the District Magistrate and the Additional District Magistrate are equal in rank and it is not in dispute that District Revenue Officer is an Additional District Magistrate. When the District Revenue Officer passes an order as an Additional District Magistrate, he is also passing it under the rank of a District Magistrate. The distinction made by the petitioner is very subtle. No doubt, in the normal cases and circumstances, appeal against the order passed by the District Revenue Officer can be filed before District Collector who being the immediate superior authority. But as contemplated under Rule 154(iii) the same cannot be applied here as the District Magistrate includes Additional District Magistrate. Further in the definition there is a clear cut indication regarding the immediate superior authority which includes the person of the same ranking. If the very rule states that a person who ordered who is an Additional District Magistrate who is also of the equivalent in rank of the District Magistrate then the order passed by the equivalent officer viz., District Revenue Officer cannot be appealed to another officer of the same rank though he may be a superior authority for other purposes. When under this Act the authorities are considered equal in nature of officer definitely an appeal cannot be filed before the District Collector who is called as District Magistrate. The subtle distinction made in the very rules itself specifically makes it clear, definitely, the petitioner is able to make a dint in the argument. Here the District Revenue Officer has passed the order in his capacity as Additional District Magistrate which is equivalent to the rank of the District Collector as Rule 2(x) says that the District Magistrate includes Additional District Magistrate. The word includes will categorically makes a distinction. Hence, the District Collector cannot be called as an appellate authority who is of the same rank and he cannot entertain the appeal it is only by his higher authority viz., the Sectary to the Government, Land Administration who is the competent authority to entertain the appeal. The point for consideration is whether the Additional Collector is equivalent to the Collector or Additional Collector is a subordinate. In similar circumstances, the High Court of Jammu Kashmir in the case of Mirza Mohd. The point for consideration is whether the Additional Collector is equivalent to the Collector or Additional Collector is a subordinate. In similar circumstances, the High Court of Jammu Kashmir in the case of Mirza Mohd. Iqbal Beg v. U.o.I, & others(http://indiankanoon.org/doc/133104773/) has held that the Deputy Commissioner and Additional Deputy Commissioner, in the State of Jammu and Kashmir, are vested with the powers of District Magistrate and Additional District Magistrate as well, so the power exercised by the learned Additional Deputy Commissioner, who exercises the powers of the Additional District Magistrate too, to issue 'No Objection Certificate' under Rule 144 of the Rules cannot be faulted on the ground of lack of jurisdiction. Under Rule 2(x), the District Magistrate which in terms of Rule 2(xi) was included, Additional District Magistrate, the power to issue 'No Objection Certificate'. Therefore, the District Authority, in terms of Rule 2(X), is, besides others, the District Magistrate which, in terms of Rule 2(XI) would include Additional District Magistrate. The power to issue 'No Objection Certificate' to an applicant seeking new licence, may, therefore, be exercised either by the District Magistrate or by an Additional District Magistrate or by the other Authorities indicated in Rule 2(X). When such an order is passed by the Additional District Magistrate definitely it is equivalent to an order passed by the District Magistrate. Therefore, it cannot be appealed to the District Collector who is acting as the District Magistrate. The District Collector cannot be considered as a superior authority. Hence, the point raised by the petitioner is answered in his favour. Therefore, the District Collector can only forward the appeal preferred by the third respondent to his higher authority for necessary orders. He cannot give even notice entertaining the appeal and he should have either returned it with a direction to file in the proper forum or forward the same to the higher authority. 6. In view of the fact that the first respondent has no authority even to issue notice. Hence, this Writ Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.