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2017 DIGILAW 1670 (ALL)

SHAKUNTALA YADAV v. UNION OF INDIA

2017-07-17

DILIP B.BHOSALE, MANOJ KUMAR GUPTA

body2017
JUDGMENT : 1. Heard Sri Nikhil Kumar for the petitioner, Sri Arvind Kumar Goswami for respondent no.1 and Sri Mahboob Ahmad for respondents no.2 and 3. 2. The petitioner has called in question the decision of the third respondent, Area Manager, Indian Oil Corporation Ltd., Gorakhpur cancelling her candidature for Rajiv Gandhi Gharelu LPG Vitrak (RGGLV) at Mehnajpur, Azamgarh. The cancellation has been ordered on the ground that the petitioner has failed to submit no objection certificate in regard to establishment of a godown over Gata Nos.1382 and 1456 from one of the co-sharers namely Kalp Nath S/o Ganpat despite repeated opportunities. 3. The challenge is on the ground that in fact, there was no need of submitting a no objection certificate from Kalp Nath, as the site in respect of which proposal was submitted had fallen to the exclusive share of the husband of the petitioner in an oral family partition held in the year 2008. The case of the petitioner is that in the year 2011 when she submitted the application, her husband was the exclusive owner in possession of the land in question. However, on advice of the officials of the Indian Oil Corporation, her husband approached the civil court by filing Original Suit No.2299 of 2012 seeking permanent prohibitory injunction against Kalp Nath as well as other co-sharers restraining them from interfering in his possession. In the written statement filed by Kalp Nath in the said suit, he admitted that there had been oral family partition but, according to him, the same did not have the approval of the authorities. He also did not dispute the specific case of the plaintiff that since the date of oral family settlement, he as well as other co-sharers are in exclusive possession of their respective shares. The suit was initially dismissed by the trial court, but in appeal, it was decreed by judgement dated 17.12.2016 granting a decree of permanent prohibitory injunction in favour of the plaintiff restraining the defendants from interfering in his possession in regard to the land which had fallen to his share in the oral family partition. The petitioner had submitted the entire documents in that regard before the authorities alongwith representation dated 16.01.2017 but which had been ignored from consideration by the third respondent while passing the impugned order dated 21.02.2017, which thus, according to the petitioner, suffers from manifest error of law. 4. The petitioner had submitted the entire documents in that regard before the authorities alongwith representation dated 16.01.2017 but which had been ignored from consideration by the third respondent while passing the impugned order dated 21.02.2017, which thus, according to the petitioner, suffers from manifest error of law. 4. The respondents opposed the petition by contending that the petitioner was granted several opportunities to submit no objection certificate, but she failed to do so and thus, her candidature has been rightly cancelled. It is further submitted that the petitioner had filed Writ-C No.427 of 2017 challenging the order dated 5.10.2016 cancelling her candidature. It was disposed of by order dated 10.1.2017, with liberty to the petitioner to furnish no objection certificate from Kalp Nath within two weeks and in which event, the Indian Oil Corporation was directed to re-consider the matter. It is urged that in such circumstances, it is no more open to the petitioner to challenge the order dated 5.10.2016 on merits. It is further urged that the third respondent, after re-considering the matter in pursuance of the direction of this Court dated 10.1.2017 in the previous writ petition filed by the petitioner, rightly rejected her representation after observing that the petitioner has not complied with the order of this Court dated 10.1.2017, having failed to furnish no objection certificate from Kalp Nath. 5. A perusal of the documents annexed alongwith the writ petition reveals that the specific case of the petitioner since the very beginning was that the land of Gata No.1382 and 1456 offered for purposes of construction of godown is exclusively owned by her husband Mahendra Pratap Yadav. Such a claim was made, as according to the petitioner, there had been an oral family partition between the husband of the petitioner and other co-sharers in the year 2008 and since then, they are in exclusive physical possession of their respective shares. However, it seems that since there was no declaration in that regard by any civil or revenue court, consequently, name of the husband of the petitioner continued to be recorded in the revenue records alongwith other co-sharers. It is for the said reason that the respondent Corporation insisted for submitting a no objection certificate from the other co-sharers. Concededly, all other co-sharers had given their no objection certificates in favour of the petitioner except Kalp Nath. It is for the said reason that the respondent Corporation insisted for submitting a no objection certificate from the other co-sharers. Concededly, all other co-sharers had given their no objection certificates in favour of the petitioner except Kalp Nath. The husband of the petitioner, therefore, was compelled to institute a civil suit in which, as noted above, a decree of permanent prohibitory injunction has been passed in his favour. The civil court in its judgment has recorded a specific finding that an oral family partition had taken place between the parties and in pursuance thereof, they are in possession of their exclusive shares. It has further been held relying on various authorities of this Court, that an oral family partition is permissible in law. In paragraph 38 of the writ petition it has been specifically averred that the judgment dated 17.12.2016 by the civil court was not challenged by any one and it has attained finality. It is not disputed before us that the judgment of the civil court was brought to the notice of the third respondent by filing representation dated 16.1.2017. However, the third respondent has not at all adverted to the same and by impugned order dated 21.2.2017, the representation has been rejected solely on the ground that the petitioner had failed to submit no objection certificate, which amounts to non compliance of the order of this Court dated 10.1.2017. 6. The order of this Court dated 10.1.2017 was passed on the writ petition filed by the petitioner challenging the order dated 5.10.2016 passed by the third respondent cancelling her candidature on the ground that she had failed to submit no objection certificate from Kalp Nath. A perusal of the order of this Court dated 10.1.2017 reveals that this Court had not examined the submission of the petitioner regarding there being an oral family partition between the parties, but had disposed of the writ petition on the statement of her counsel that one more opportunity be granted to the petitioner to make effort to obtain no objection certificate from Kalp Nath and to file it before the authorities. The specific case of the petitioner is that after order of this Court dated 10.1.2017, she again made an effort to persuade Kalp Nath to give no objection certificate, but he declined to oblige the petitioner. The specific case of the petitioner is that after order of this Court dated 10.1.2017, she again made an effort to persuade Kalp Nath to give no objection certificate, but he declined to oblige the petitioner. In the meantime, the civil court had also passed judgment dated 17.12.2016 in her favour decreeing the suit. Consequently, the petitioner on basis of legal advice did not consider it necessary to obtain no objection certificate from Kalp Nath and in her representation dated 16.1.2017 she specifically took the plea that the civil court having passed the decree of permanent prohibitory injunction in favour of her husband, it was no more necessary to obtain no objection certificate from Kalp Nath or to file the same before the authorities. In our opinion, in the aforesaid factual background, the third respondent ought to have considered the effect of the suit having been decreed by the civil court after ascertaining from the co-sharers as to whether the decree has attained finality or not. The third respondent wrongly misconstrued the previous order of this Court dated 10.1.2017 as a direction to the petitioner to submit no objection certificate within two weeks, without appreciating that the said order was passed on the statement made by her counsel and without examining the contentions on merits. 7. In view of the above, we are of the opinion that the impugned order passed by the third respondent dated 21.2.2017 cannot be sustained and is hereby quashed. The writ petition is allowed in part with a direction to the third respondent to re-visit the entire controversy, after taking into consideration the effect of the decree passed by the civil court. It shall be open to the respondent Corporation to ascertain whether the decree of the civil court has attained finality or not and for such purpose, it shall be open to the third respondent to issue notice to Kalp Nath S/o Ganpat. It is further directed that the entire exercise in this regard be held expeditiously and in all event, within a period of three months from the date of production of a certified copy of this order before the third respondent.