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2022 DIGILAW 27 (AP)

Devaguptam Primary Agricultural Cooperative Society Limited v. State of Andhra Pradesh

2022-01-06

BATTU DEVANAND

body2022
ORDER : This Writ Petition has been filed by the petitioner seeking the following relief: “declaring that the action of the respondents, more particularly, respondent No.5 in not granting ‘No Objection Certificate’ for storage of HSD( High Speed Diesel)/MS (Motor Spirit) consumer facilities for its registered society members vehicles at vacant site of its society bearing Survey No.391/6B/1A admeasuring Ac.0.1000 cents situated at Allavaram Village and Mandal, East Godavari District with an intention of political rivalry and encroachment of the subject land by the local political leaders with the help of respondent No.4 and thereby pending to grant ‘no objection certificate’ for aforesaid purpose is illegal, irregular, arbitrary and violation of the provisions of Article 14 and 21 and Section 123 and 127 (3) (6) of the A.P. Panchayat Raj Act, 1994 and also offends various rights and protections guaranteed under the constitution of India and consequential direction to the respondents to grant no objection certificate for aforesaid purpose at subject land within one month and to pass such other order or orders are deemed fit and proper in the circumstances of the case” 2. Heard learned counsel for the petitioner and the learned Government Pleader for Panchayat Raj appearing for Respondent Nos.1 to 3 and Sri I. Koti Reddy, learned Standing Counsel for Respondent Nos.4 and 5. Perused the material available on record. 3. Learned counsel for the petitioner submits that the land to an extent of Ac.0.10 cents in R.S.No.391/6B of Allavaram Village and Mandal, East Godavari District, originally belongs to the District Cooperative Central Bank Limited, Kakinada, which was alienated by the Collector & District Magistrate, East Godavari District, Kakinada bearing R.Dis.No.E2/5441/2010, dt. 09.03.2012, on payment of market value for Rs.2,08,120/- ( for 430 square yards). Subsequently, the Tahsildar, Allavaram Mandal, East Godavari District, handed over the possession of the subject land to the then Branch Manager, District Central Cooperative Bank, Allavaram, on 14.03.2012, with duly demarcated the boundaries and carried out necessary changes in the concerned record. Thereafter, the District Cooperative Central Bank Limited, Kakinada, transferred the subject land in favour of petitioner’s Society as per Order dt. 15.10.2019 of Respondent No.2. The Revenue Authorities entered the name of petitioner’s Society in their records and issued Form-1B, Pattadar/Adangal/Pahani copy and pattadar Passbooks were issued in favour of the petitioner. 4. Thereafter, the District Cooperative Central Bank Limited, Kakinada, transferred the subject land in favour of petitioner’s Society as per Order dt. 15.10.2019 of Respondent No.2. The Revenue Authorities entered the name of petitioner’s Society in their records and issued Form-1B, Pattadar/Adangal/Pahani copy and pattadar Passbooks were issued in favour of the petitioner. 4. Thereafter, the President of petitioner’s Society submitted an application to respondent No.2 on 05.11.2020 seeking ‘No objection Certificate’ for installation of Consumer Petrol Bunk. The Divisional Cooperative Officer, Amalapuram, East Godavari, issued ‘No Objection Certificate’ bearing Rc.No.854/2020-B, dt. 16.10.2020 to the General Manager, Indian Oil Corporation Limited, Visakhapatnam, with regard to installation of the consumer outlet of Indian Oil Corporation Limited in the subject land. The District Fire Officer, Kakinada, East Godavari, and the Deputy Commissioner of Labour, East Godavari District, Kakinada, issued ‘No Objection Certificates’ in favour of the Petitioner’s Society. 5. Learned counsel for the petitioner further submits that the petitioner’s Society submitted a representation to respondent No.2 on 06.09.2021 through ‘Spandana’ with regard to issuance of ‘No objection Certificate’. The petitioner’s Society also submitted representations to respondent Nos. 4 and 5 on 12.10.2021 through registered post and the same were received by the respondents on 14.10.2021, but till date, ‘No Objection Certificate’ was not issued by the respondents. Aggrieved by the same, the present Writ Petition is filed. 6. Sri I. Koti Reddy, learned Standing Counsel, on Written Instructions, submits that on 21.11.2020 the petitioner has applied “No Objection Certificate” for construction of Customer Petrol Bunk in the land to an extent of Ac.0-10 cents situated in R.S.No.391/6B of Allavaram Gram Panchayat, Allavaram Mandal, East Godavari District. On 30.12.2020, the villagers submitted applications by objecting the construction of Customer Petrol Bunk. On 07.01.2021, when Respondent No.5 conducted Grama Sabha regarding issuance of ‘NOC’ for construction of Customer Petrol Bunk, the villagers, who attended Grama Sabha, have objected for issuance of ‘NOC’. On 14.06.2021, again they received objections from the villagers. On 14.06.2021, Panchayat Committee Members conducted meeting regarding issuance of ‘NOC’ for construction of Customer Petrol Bunk, wherein the Sarpanch and Committee Members objected for issuance of ‘NOC’ and the same was submitted to the District Collector, East Godavari District, on 29.10.2021. On 02.11.2021, they intimated about the report submitted to the District Collector, East Godavari District, regarding issuance of ‘NOC’ for construction of Petrol Bunk to the petitioner through post. On 02.11.2021, they intimated about the report submitted to the District Collector, East Godavari District, regarding issuance of ‘NOC’ for construction of Petrol Bunk to the petitioner through post. As such, learned Standing Counsel contended that in view of the objections of the villagers, ‘NOC’ is not issued to the petitioner. 7. Having regard to the submissions of the respective counsel and upon perusal of the material available on record, it is appropriate to extract the relevant provisions of the Andhra Pradesh Panchayat Raj Act for better adjudication of the issue involved in this Writ Petition. Section 99 : Power to allow certain projections and erections:- (1) The Executive Authority may, with the approval of the Gram Panchayat, grant a licence, subject to such conditions and restrictions as he may think fit to the owner or occupier of any building to put up verandahs, balconies, sunshades, weather frames and the like, to project over a public road vested in such Gram Panchayat; or to construct any step or drain covering necessary for access to the building. (2) The Executive Authority may grant a licence, subject to such conditions and restrictions as he may think fit for the temporary erection of pandal and other structures in a public road vested in such Gram Panchayat; or in any other public place the control of which is vested in such Gram Panchayat. (3) The Executive Authority shall have power with the approval of the Gram Panchayat, to lease the roadsides vested in such Gram Panchayat for occupation on such terms and conditions and for such period as the Gram Panchayat may fix. (4) But neither a licence under sub-section (1) nor a lease under sub-section (3) shall be granted if the projection, construction or occupation, as the case may be, is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road as such. (5) The Government may, by notification, restrict and place under such control as they may think fit the exercise, by any Gram Panchayat of the powers under sub-sections (1) and (3). (5) The Government may, by notification, restrict and place under such control as they may think fit the exercise, by any Gram Panchayat of the powers under sub-sections (1) and (3). (6) On the expiry of any period for which a licence has been granted under this section the Executive Authority may without notice, cause any projection or construction put up under sub section (2) to be removed, and the cost of so doing shall be recoverable, in the manner hereinafter provided from the person to whom the licence was granted. Section 127 : General provisions regarding licences and permissions:- (1) Every licence and permission granted under this Act or any rule or bye-law made under this Act shall specify the period, if any, for which, and the restrictions, limitations and conditions subject to which the same is granted and shall be signed by the Executive Authority or by some person duly authorised by him in this behalf. (2) …….. (3) Every order of the authority competent under this Act or any rule or bye-law made thereunder to pass an order refusing, suspending, cancelling or modifying a licence or permission shall be in writing and shall state the grounds on which it proceeds: Provided that every application for a licence or permission under this Act shall be disposed of within fifteen days from the date of receipt thereof or from the date of receipt of approvals or completion of other formalities prescribed failing which it shall be deemed that licence or permission is granted. (4) …….. (4) …….. (5) It shall be the duty of the Executive Authority to inspect places in respect of which a licence or permission is required by or under this Act, and he may enter any such place between sunrise and sunset, and also between sunset and sunrise if it is open to the public or any industry is being carried on in it at that time; and if he has reason to believe that anything is being done in any place without a licence or permission where the same is required by or under this Act, or otherwise than in conformity with the same, he may at any time by day or night without notice enter such place for the purpose of satisfying himself whether any provision of law, rules, bye-laws or regulations, any condition of a licence or permission or any lawful direction or prohibition is being contravened; and no claim shall lie against any person for any damage or inconvenience necessarily caused by the exercise of powers under this sub-section by the Executive Authority or any person to whom he has lawfully delegated his powers; or by the use of any force necessary for effecting an entrance under this sub-section. 8. As per Section 127(3) of A.P. Panchayat Raj Act, 1994, every application for a licence or permission under the Act shall be disposed of within fifteen days from the date of receipt thereof or from the date of receipt of approvals or completion of other formalities prescribed, failing which, it shall be deemed that licence or permission is granted. 9. It appears from the record that the Deputy Commissioner of Labour, East Godavari, Kakinada and the District Fire Officer, Kakinada, have already submitted reports to the District Collector, East Godavari, stating that they have issued ‘No Objection Certificates’ in favour of the petitioner to issue to install Customer Petrol Bunk in the place requested by the petitioner. Only the gram Panchayat/R.5 has not issued ‘NOC” stating that the villagers have objected for the installation of Customer Petrol Bunk. 10. The petitioner’s Society submitted an application to respondent No.5 on 12.10.2021. As per Section 127(3) of A.P. Panchayat Raj Act, 1994, the application shall be disposed of within fifteen days from the date of receipt of the application, failing which, it shall be deemed that licence or permission is granted. 10. The petitioner’s Society submitted an application to respondent No.5 on 12.10.2021. As per Section 127(3) of A.P. Panchayat Raj Act, 1994, the application shall be disposed of within fifteen days from the date of receipt of the application, failing which, it shall be deemed that licence or permission is granted. This Court noticed that except the objections raised by the villagers, there is no ground to retain the application submitted by the petitioner for issuance of ‘NOC’ and submitted the report to the District Collector, East Godavari. Further, there is no provision enables the Gram Panchayat or its Secretary either to call for objections from the villagers or entertaining any complaint when a development activity like installation of the Customer Petroleum bunk is to be carried out in the Gram Panchayat. It also appears that respondent No.5 failed to follow the procedure provided under Sections 99 and 127 of the A.P. Panchayat Raj Act. It is to be noted that there is no provision enables the Gram Panchayat or its Secretary either to call for objections from the villagers or entertaining any complaint, when a development activity like installation of the Customer Petroleum bunk is to be carried out in the Gram Panchayat limits. Therefore, non-issuance of ‘NOC” contending that villagers objected for issuing ‘NOC’ by the respondents is illegal, arbitrary and violative of principles of natural justice. Accordingly, the Writ Petitioner is entitled to issue “No Objection Certificate’. 11. This Court in similar circumstances in Shaik Saleem v State of Andhra Pradesh, (W.P.No.13667 of 2021, dated 09.09.2021) held as follows: “It appears from the record that the R & B Department, Fire Department and the Revenue Department have already submitted reports to the District Collector, Guntur in favour of the petitioner to issue ‘No Objection Certificate’ to install Retail Petroleum Outlet in the place requested by the petitioner. Only the gram Panchayat issued the impugned Proceedings stating that the villagers objected for the same. This Court noticed that except stating that the Village people objected for issuance of ‘NOC’, no other valid reasons are mentioned in the impugned Order. There is some force in the contention of the learned counsel for the petitioner that there is no any provision in the Panchayat Raj Act enabling respondent No.2 to call for the objections from the villagers for granting ‘NOC’ in favour of the petitioner. There is some force in the contention of the learned counsel for the petitioner that there is no any provision in the Panchayat Raj Act enabling respondent No.2 to call for the objections from the villagers for granting ‘NOC’ in favour of the petitioner. Besides this, it appears that respondent No.2 failed to follow the procedure provided under Sections 99 and 127 of the A.P. Panchayat Raj Act. It is also noticed from the impugned order that the villagers of the Gram Panchayat, who alleged to have submitted their objections for issuance of ‘NOC’ for installation of Retail Petroleum Outlet, the reason for objection is not mentioned in the impugned Order. Without any cognizant or valid reasons the objections made by the villagers and considering the same, respondent No.2 passed the impugned order and as such, the impugned order passed by respondent No.2 is unreasonable, irrational and against the provisions of the A.P. Panchayat Raj Act and in violative of principles of natural justice. For the reasons stated above, this Writ Petition is allowed directing respondent No.2 to issue ‘No Objection Certificate’ for installation of Indian Oil Retail Petroleum Outlet by the Petitioner at Sy.No.557/2 of Vipparla Village, Narasaraopet Mandal, Guntur District, within a period of Two (02) weeks from today.” 12. For the reasons stated above, this Writ Petition is allowed directing respondent No.5 to issue ‘No Objection Certificate’ for installation of Customer Petrol Bunk by the Petitioner at Sy.No.391/6B/1A situated at Allavaram Village and Mandal, East Godavari District, within a period of Two (02) weeks from today. Miscellaneous petitions pending, if any, in this case shall stand closed.