WP/7150/2004 of Vijay Kumar Agarwal, Vs The Chief Commissioner, Land Administration, on 27 December 2004

ORDER:

This writ petition is filed seeking Writ of Mandamus, to declare the proceedingsRc.No.C2/776/2004, dated 23.03.2004 of the second respondent-DistrictCollector, Khammam, as illegal and arbitrary and consequently, to direct thesecond respondent to issue No Objection Certificate to the petitioner forestablishment of a retail outlet to market the petroleum products of the thirdrespondent- Corporation in Sy.No.406/E of Paloncha Village, KhammamDistrict.

The necessary facts, in brief, are: that the third respondent-Indian OilCorporation Limited, a Government of India undertaking, issued notificationinviting applications to set up a retail outlet to sell products of MS (petroleum)and HSD within the limits of Paloncha Village of Khammam district. In responseto the said notification, the petitioner, who owns land in Sy.No.406/E of

Paloncha village, applied for the dealership of the said retail outlet. On scrutinyof applications, the petitioner was selected. Though the petitioner himself is theowner and pattadar of total land admeasuring Ac.7.00 cents in Sy.No.406/E ofPaloncha Village, but, as per the procedure in vogue, he has executedregistered lease deed in favour of the third respondent-Corporation transferringan extent of 2,000 square yards of land in the said survey number for thepurpose of locating retail outlet. Consequently, on behalf of the thirdrespondent-Corporation, the Senior Divisional Sales Manager has applied to thesecond respondent for issuance of No Objection Certificate as required underRule 144 of the Petroleum Rules, 2002 (for brevity “the Petroleum Rules”).Initially, pursuant to such application, the District Collector, Khammam District,in the proceedings Rc.No.C2/4571/2003, dated 13.01.2004, rejected the requestof the petitioner, stating that the land in Sy.No.406/E is part and parcel ofnotified village under the A.P. Scheduled Areas Land Transfer Regulation. I of1959; as such, the transfer itself is illegal and contrary to the A.P. ScheduledAreas Land Transfer Regulation. I of 1959, as amended by Regulation II of1970. A communication was sent to that effect to the Office of the thirdrespondent-Corporation. As against the same, the petitioner approached theChief Commissioner of Land Administration, Hyderabad, and the said appellateauthority passed an order dated 18.03.2004, setting aside the proceedingsRc.No.C2/4571/2003 dated 13-1-2004 and directed the second respondent toreconsider the request of the petitioner for issuance of No Objection Certificate,by examining correct status of the village. Consequently, the present impugned orders are passed by the second Respondent-District Collector in proceedingsRc.No.C2/776/2004, dated 23.03.2004, rejecting the request of the petitioner,on the ground, that the proposed site in Sy.No. 406/E of Paloncha Village is inscheduled area i.e., Samsthan Paloncha and same is covered by PresidentialNotification dated 7-12-1950.

In the writ petition, it is the case of the petitioner that there are no valid groundsin rejecting the request of the petitioner for grant of No Objection Certificate asrequired under Rule 144 of the Petroleum Rules. As per the petitioner, the landin Sy.No.406/E of Paloncha village is a part of revenue village and the saidrevenue village is not a notified village as per the Presidential notificationcovering the scheduled areas of Khammam District. It is also the case of thepetitioner that in the very same village, several No Objection Certificates wereissued by the District Collector and Mandal Revenue Officer, either for settingup retail outlets, or, for transfer of the lands. But coming to the case of thepetitioner, his request is rejected in discriminatory manner. Further, it is stated,the second respondent-District Collector has exceeded scope of enquiry underRule 144 of the Petroleum Rules, and, rejected his request. In the materialpapers annexed to the writ petition, the petitioner has filed several No ObjectionCertificates issued by the Joint Collector, Khammam, and the Mandal RevenueOfficer, Paloncha, expressing no objection either for transfer of lands or forestablishment of retail outlets in the very same Paloncha village of KhammamDistrict.

In the counter-affidavit filed on behalf of the second respondent, it is stated that

Paloncha Village is in two parts, namely Samsthan Paloncha and Paloncha(Khalsa) and it is stated that Khalsa is covered by Sy.Nos.1 to 136 andSamsthan Paloncha is covered by Sy.Nos.1 to 999. It is the case of therespondents that so far Paloncha Khalsa is concerned, the same is not anotified village, but, Paloncha Samsthan is a notified village as per thePresidential Notification No.1031, dated 07.12.1950. It is further stated that theland transfer regulations are in force, and, as per the said Presidential Order,transfers are prohibited in the scheduled areas from tribals to non-tribals witheffect from 01.12.1963 and the same is also extended, prohibiting inter se non-tribals also, with effect from 03.02.1970. As such, it is the case of therespondents that the request for issuance of No Objection Certificate isrejected, as much as the very transfer is in violation of the provisions of theA.P. Scheduled Areas Land Transfer Regulation I of 1959, as amended byRegulation No.II of 1970.

Heard Sri E.Madan Mohan Rao, the learned counsel appearing for the petitionerand the learned Government Pleader for Social Welfare.

It is submitted by Sri E.Madan Mohan Rao, the learned counsel appearing forthe writ petitioner, that the rejection for grant of No Objection Certificate underRule 144 of the Petroleum Rules by the second respondent is, exceeding thescope of enquiry under the said Rules. It is the case of the learned Counselthat the scope of enquiry is confined to only to verify suitability of the proposedsite having regard to the nature of commodity, which is an inflammable one,vis-à-vis the neighbourhood. But, in this case, the grounds mentioned in the rejection order are untenable and are not valid grounds for rejecting the requestof the petitioner. It is further submitted that in reality, there is no transfer ofproperty in favour of the third party-Oil Corporation and lease deed is executedas insisted by the second respondent, to enclose the same along with theapplication for grant of No Objection Certificate. Inasmuch as the petitioner isthe owner of the land, the third respondent will install the equipment in theproposed site and the petitioner will operate on his own land. It is furthersubmitted that in view of the abolition of ‘Jagirs’, there is no separate village, byname, Samsthan Paloncha and there is only one revenue village, by name,Paloncha and the same is out side purview of the land transfer regulations.Lastly, it is submitted by the learned Counsel for the petitioner that, for similarlysituated persons, earlier No Objection Certificates were issued either forestablishment of retail outlets or for transfer of lands in favour of third parties.But, so far petitioner is concerned, his request was rejected on untenablegrounds.

On the other hand, it is submitted by the learned Government Pleader for SocialWelfare, that as per the Presidential Notification No.1031, dated 07.12.1950,Samsthan Paloncha is included in the scheduled area, and, Sy.No.406/E is partand parcel of Samsthan Paloncha; as such, transfer itself is illegal. In that viewof the matter, the second respondent has correctly rejected the request of thepetitioner for issuance of No Objection Certificate. It is further submitted thatfor all purposes, two different sets of records are maintained for SamsthanPaloncha and Paloncha village (Khalsa) and inasmuch as the land in Sy.No.406/E is in Samsthan Paloncha, and, in view of the prohibition oftransfers, as per the A.P. Scheduled Areas Land Transfer Regulation I 1959, asamended by Regulation II of 1970, the transfer itself is void, and, therefore, NoObjection Certificate cannot be issued.

With reference to the above said submissions, at the out set, it is pertinent tonotice that No Objection Certificate is required in the manner provided, as perthe provisions of the Petroleum Rules 2002, framed under the Petroleum Act,1934. From the objects and reasons of the Petroleum Act, 1934, the saidenactment is made with an aim and object to consolidate and amend the lawsrelating to import, transport, storage, production, refining and blending ofpetroleum and other inflammable substances. As per the provisions underSection-3 of Chapter-I of the Petroleum Act, 1934, no one shall import,transport or store any petroleum, save in accordance with the rules made underSection-4. Chapter-VII of the Petroleum Act, 1934, deals with licences andRule-141 deals with the provision for grant of licences. Whereas Rule-143provides for making applications for grant of licences and Rule-144 is aprovision, which enables the District authority to enquire and issue NoObjection Certificate for the site proposed. From the above background of theprovisions under the Petroleum Act, 1934,and, rules made there under, it isclear that the scope of enquiry by the District authority is limited with regard tosuitability of the site proposed for the purpose of storage, licences, etc., havingregard to the inflammable nature of products, vis-à-vis the neighbourhood. In that view of the matter, while considering the application under Rule-144 of thePetroleum Rules, 2002, it is not open for the District authority to examine thenature of title and possession of the land for issuance of No ObjectionCertificate.

Further, in this case, it is to be seen, that the petitioner himself is the owner ofthe land in Sy.No. 406/E of Paloncha Village, admeasuring Ac.7.00 cents.Pursuant to the notification issued by the third respondent-Oil Corporation, thepetitioner has offered himself, as one of the applicants, to operate proposedretail outlet and as per the procedure, he has executed the lease deed for aportion of the land, admeasuring 2000 square yards, where the proposed outletis to be established. So far scheduled areas are concerned, transfers areregulated as per the provisions of the A.P. Scheduled Areas Land TransferRegulation I of 1959 and its amendment made in the year 1970. As per the saidRegulations, if any transfer effected is not in consonance with the saidRegulations, the competent authority as notified under the said Regulations,has power to enquire into the matter and declare such transfer as illegal. But, inthe instant case, there is no such adjudication by the competent authority; inthat view of the matter, while dealing with the application under Rule 144 of thePetroleum Rules, the second respondent-District Collector cannot reject theclaim of the petitioner for grant of No Objection Certificate, for setting-upproposed retail outlet, on the ground that there is prohibition of transfer in the

Conclusion

scheduled areas and the land in question falls in such Scheduled Area. Even asper the Presidential Notification, relied on by the respondents, though somevillages of erstwhile Paloncha were notified under the provisions of the A.P.Scheduled Areas Land Transfer Regulation I of 1959, but, Paloncha as suchwas excluded from scheduled area. In that view of the matter also, and, in viewof abolition of Jagirs, it cannot be said that Samsthan Paloncha is continued inthe notified scheduled areas. From the material papers filed by the petitioneralong with Writ Petition, it is to be seen, several times reports were submittedby the revenue authorities, wherein they have clearly mentioned that Palonchavillage is outside the notified scheduled area and No Objection Certificateswere issued to similarly situated persons either for transfer of lands in favour ofthird parties, or, for establishment of retail outlets. In that view of the matter,there is no valid reason or justification to deprive the similar benefit to thepetitioner, by refusing No Objection certificate as required under Rule 144 ofthe Petroleum Rules. Further, as I have already held that there is noadjudication about validity of the transfer by competent authority as requiredunder the A.P.Scheduled Areas Land Transfer Regulation I of 1959, in that viewof the matter also, the only objection mentioned in the impugned proceedingscannot be sustained. In any event, the objection raised in the impugned order isbeyond the scope of enquiry as contemplated under Rule 144 of the PetroleumRules, framed under the Petroleum Act, 1934. As such, the impugned order isliable to be set aside.

Accordingly the Writ Petition is allowed and the impugned order of rejection in proceedings Rc.No.C2/776/2004, dated 23.03.2004 is set aside.

Consequently, the second respondent-District Collector is directed to issue NoObjection Certificate to the petitioner as prayed for, within a period of onemonth from the date of receipt of this order. No order as to costs.

Dated: ----------December, 2004.Msnr.

---------------------------------------- JUSTICE R. SUBHASH REDDY

That Rule Nisi has been made absolute as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on the Twenty Seventhday of December, Two Thousand and Four.

REGISTRAR

To

1 The Chief Commissioner, Land Administration, Revenue Department, Hyderabad.

2 The District Collector, Khammam District, Khammam.

3 Indian Oil Corporation Limited, Divisional Office, G.V.R. Towers, 3rd Floor, Bharathi Nagar, Vijayawada. 3rd Floor, Bharathi Nagar, Vijayawada.

4 Two CCs to the G.P. for Revenue, High Court Buildings, Hyderabad.

5 Two CD copies.