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2017 DIGILAW 127 (UTT)

Kailash Chand v. State of Uttarakhand

2017-02-22

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner before this Court is an ex-serviceman and the Kargil War Veteran. Under a scheme of Government of India where Kargil War Veteran (ex-serviceman army personnel) were to be given certain privilege and benefit. Under the said scheme, the petitioner applied for a petrol-pump, as the petitioner was eligible under the said scheme and he was allotted a petrol-pump by a company, namely, Hindustan Petroleum Corporation Ltd. (in short ‘HPCL’). The petitioner applied for allotment of petrol-pump at Village Satuiya (Pull Bhatta), Kichha, Udham Singh Nagar. After completing all the formalities for verification of the documents from the relevant organizations, the petitioner was given a ‘No Objection Certificate’ by the District Magistrate, Udham Singh Nagar on 23.09.2013. This ‘No Objection Certificate’ was subsequently cancelled by the District Magistrate without affording an opportunity of hearing or show cause to the petitioner on 09.12.2013, on a complaint made by one Mr. Tahir Ali – respondent No. 3 in the present writ petition. 2. As per the Government Order dated 17.11.2011, if two petrol-pumps are established at one side of the road, the minimum distance would not be less than 1 km. On the basis of the said Government Order, the impugned order dated 09.12.2013 has been passed, which is presently under challenge in the present writ petition. 3. Before arguing the case on merit, Mr. C.K. Sharma, learned counsel for respondent No. 3 has raised a preliminary objection that the writ petition is not maintainable at the hands of the petitioner inasmuch as the ‘No Objection Certificate’ has been issued in favour of HPCL, and therefore, if any party is aggrieved, it is HPCL and not the present petitioner in the individual capacity. 4. This objection is absolutely of no relevance, as the HPCL, which is being made as a party has filed its counter affidavit wherein it supports the case of the petitioner. Moreover, the fact remains that the HPCL itself has taken the ‘No Objection Certificate’ for the benefit of the petitioner. The petitioner was clearly a beneficiary under a Scheme of Government of India, which was for ex-serviceman and Kargil War Veteran. Therefore, it cannot be said that the petitioner has no locus in the matter. He is clearly an aggrieved party, therefore, the writ petition is maintainable at the hands of the petitioner. 5. The petitioner was clearly a beneficiary under a Scheme of Government of India, which was for ex-serviceman and Kargil War Veteran. Therefore, it cannot be said that the petitioner has no locus in the matter. He is clearly an aggrieved party, therefore, the writ petition is maintainable at the hands of the petitioner. 5. One of the arguments of the petitioner is that in the same place, i.e. Bazpur, the District Magistrate has also given ‘No Objection Certificate’ to two petrol-pumps, which are situated less than 100 meters of distance. Therefore, the impugned order itself is discriminatory. The private respondent has taken an objection not only relying upon the Government Order dated 17.11.2011 but also on the guidelines issued by the Indian Road Congress, 2009 wherein it has been stated that as far as possible two petrol-pumps should be installed at least of a distance of 1 kms. 6. As far as guidelines of Indian Road Congress are concerned, the same is not Statutory in nature, as has already been held by the Division Bench of the Allahabad High Court in Civil Misc. Writ Petition No. 43483 of 2010 (Mahtab Ahmad Vs Union of India & others decided on 29.07.2010) and Civil Misc. Writ Petition No. 64034 of 2010 (M/s Indian Auto Service Vs Union of India & others decided on 26.10.2010). Therefore, it would not be relevant for the present case. As far as Government Order dated 17.11.2011 is concerned, which has been annexed as annexure No. RA1 to the rejoinder affidavit, it pertains to such restrictions in a regulated area or a developed area. The present filling station, which is a matter of dispute, is outside these areas. Therefore, Government Order dated 17.11.2011 is not applicable in this case. 7. The most important aspect in the present case is that the impugned order has been passed without even giving an opportunity of hearing to the petitioner where the impugned order has clearly civil consequences. 8. Apart from the above facts, it is admitted fact that the Scheme, under which the petitioner is to be given a filling station, is under a beneficiary Scheme of the Government of India, which is for defence personnel. The petitioner is not only a defence personnel but also an ex-serviceman and a Kargil War Veteran. 8. Apart from the above facts, it is admitted fact that the Scheme, under which the petitioner is to be given a filling station, is under a beneficiary Scheme of the Government of India, which is for defence personnel. The petitioner is not only a defence personnel but also an ex-serviceman and a Kargil War Veteran. The ‘No Objection Certificate’ granted in his favour has been cancelled illegally, without affording an opportunity of hearing to the petitioner, on a mere complaint of respondent No. 3, who has a clear business interest rather than any other interest in the matter. Moreover, if two petrol-pumps of different companies are installed adjoining each other, it would give a healthy competition to this area and this fact cannot be discounted. 9. In view of the above observations, the writ petition is allowed. The impugned order dated 09.12.2013, by which ‘No Objection Certificate’ of the petitioner has been cancelled, stands quashed.