IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 919 of 2009. Om Prakash Gupta, aged about 55 years, S/O Sri Mangat Ram Gupta, R/O 50 Prem Nagar, Dehradun, Cantonment, District Dehradun. … Petitioner. Vs. 1. Union of India through Secretary, Ministry of Defence, New Delhi. 2. General Officer of Commanding, Head Quarters, Central Command, Lucknow. 3. Cantonment Board, Garhi Cantt., Dehradun through its Chief Executive Officer. 4. Principal Director, Defence Estate, Ministry of Defence, Central Command, Lucknow, U.P. …Respondents. Mr. Rajendra Dobhal, Senior Advocate with Mr. Manoj Sah, Advocate, learned counsel for the petitioner. Mr.S.S.Chauhan, Advocate, learned counsel for the respondent nos. 1, 2 and 4. Mr. B.S.Adhikari, Advocate, learned counsel for the respondent no. 3-Cantt. Board. Date March 30, 2010. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 8-5- 2008 passed by respondent no. 2 (Annexure-13 to the petition). The petitioner has further sought a writ in the nature of mandamus commanding the respondents to reconsider the case of the petitioner and grant him relaxation in the restriction imposed by order dated 16- 1-1942. 2. Relevant facts giving rise to the present petition in brief are that the petitioner is a permanent resident of Dehradun Cantt. and is having his house situated at 50 Prem Nagar Dehradun Cantt. Dehradun. On 26-5-2000, the petitioner purchased land measuring 4 Bigha of Plot Nos. 140/1 and 140/2 situated at village Kehri, Arkedia Grant, Prem Nagar, Dehradun, hereinafter referred to as the land in question from Mrs. Anamika Agrawal and Mrs. Pushpa Garg, who were Bhumidhar in possession over the same. The name of the 2 petitioner has been mutated in the revenue records and he is in possession of the land in question. 3. It appears that the petitioner approached the Bharat Petroleum Corporation Ltd. for obtaining the retail outlet dealership of MS/HSD and ultimately, the letter of intent was issued in favour of the petitioner by the said Corporation with certain terms and conditions. The petitioner made an application to the Executive Officer, Cantonment Board, Garhi Cantt. Dehradun for development of land in question for installation of a petrol pump as per letter of intent. On 3- 3-2005, the Executive Officer wrote a letter to Principal Director, Defence Estates, Ministry of Defence, Central Command, Lucknow for granting permission and relaxing the restriction for installation of petrol pump over the land in question. The petitioner also obtained no objection certificates from all the concerned departments including the Cantonment Board Dehradun and the District Magistrate Dehradun vide letter dated 28-8-2005 issued a no objection certificate to the petitioner. The petitioner also executed an agreement of lease with the Corporation on 7-10-2005 for a period of 29 years, 11 months w.e.f. 1- 10-2005. 4. It also appears from the record that the General Officer Commanding- respondent no. 2 did not accede to the request of the petitioner and the permission to that effect had been turned down by letter dated 28-3-2006 (Annexure-4 to the writ petition), Cantonment Executive Officer, Cantonment Board, Dehradun was informed by the Headquarter Uttaranchal Sub Area, Dehradun Cantt. In this letter there is reference of letter dated 18th March 2006 issued by the Head Quarter Central Command regarding stopping unauthorized construction of Petrol Pump at Premnagar (Dehradun). 5. It appears that dissatisfied by the order dated 18-3-2006 whereby the General Officer Commanding Headquarters Central Command, Lucknow refused the permission to the petitioner to 3 establish a petrol filling outlet of MS/HSD, the petitioner filed a Writ Petition No. 693 of 2006 (M/B) Om Prakash Gupta Vs. Union of India and others before this Court. The writ petition was ultimately allowed by the Division Bench of this Court vide order dated 20-11-2006. The order dated 18-3-2006 of the General Officer Commanding, Central Command Lucknow was set aside. The Principal Director, Defence Estates, Ministry of Defence, Central Command, Lucknow was directed to reconsider the matter in the light of the report of the Executive Officer dated 24-6-2005 within a period of two months from the date of production of certified copy of the order. 6. Instead of allowing or refusing the permission to the petitioner as directed by this Court, it appears that the General Officer Commanding in Chief has consented to a CNG Outlet at the impugned land site of Sri O.P. Gupta under the provision of Section 240 of the Canotnment Board Act 2006 and the entire case would be reconsidered after a public notice is issued by C.E.O. Dehradun inviting views from the public as mentioned in the order dated 13-2-2007, which has been annexed as Annexure-9 to the writ petition. 7. Again aggrieved by the said order, the petitioner preferred a Writ Petition No. 1541 of 2007, Om Prakash Gupta Vs. Union of India and others. That writ petition was disposed of by order dated 28- 12-2007 whereby the General Officer Commanding, Headquarters, Central Command, Lucknow, U.P. was directed to reconsider the matter positively within a period of further eight weeks from the date of production of certified copy of this order, as per direction of this Court given in the earlier Writ Petition No. 693 (M/B) of 2006 vide order dated 20-11-2006. 8. The Headquarters, Central Command, Lucknow by order dated 29th February 2008 asked the Director of Defence Estates, Government of India/Ministry of Defence Lucknow Cantt. to submit detailed report on certain points mentioned in the order. The Principal 4 Director, Defence Estates, Central Command Lucknow sent it reply by letter dated 26-3-2008 stating therein thart the Board vide CBR No.68- 29 dated 14-11-2005 had resolved that in view of the current security scenario at the moment there should not be any change in the restrictions imposed by the GOC-in-C under Section 181(2) of the Cantonments Act, 1924. The Board further resolved that these restrictions may be reviewed when the security situation improves. 9. Ultimately, the General Officer Commanding-in-Chief, Central Command, did not find favour with the petitioner and by order dated 8-5-2008 held as under:- “Keeping in view the evidence on record and recommendations of the President of Cantonment Board Dehradun, views of CEO Dehradun Cantonment and the PDDE Central Command, I direct that restrictions imposed under section 181(2) of Cantonment Act 1924 by the GOC-in-C Eastern Command in 1942 and later on reviewed in 1967, cannot be relaxed for construction of a Petrol Pump on Khasra No 140/1 & 140/2 in Kheri Village, Dehradun Cantonment by Sh Om Prakash Gupta, and will continue to remain in force.” 10. The grievance of the petitioner is that direction given in the order dated 20-11-2005 passed by the Division Bench of this Court in Writ Petition No. 693(M/B) of 2006, Om Prakash Gupta Vs. Union of India and others had not been adhered to by the authority concerned while passing the impugned order, therefore, the order dated 8-5-2008 is liable to be set aside. 11. It is pertinent to mention that on 24-6-2009, learned counsel for the respondent nos. 1, 2 and 4 prayed for three weeks’ time to file counter affidavit, which was granted by this Court. But no counter affidavit was filed till today on their behalf. 5 12. On behalf of the respondent no. 3, counter affidavit has been filed in this writ petition. 13. I have heard learned counsel for the parties and perused the material placed before this Court. 14. Learned counsel for the petitioner has vehemently contended that the Division Bench of this Court while setting aside the order dated 18-3-2006 passed by the General Officer Commanding Headquarters, Central Command, Lucknow has specifically directed the Principal Director, Defence Estates to reconsider the matter in dispute in the light of the report of the Executive Officer dated 24-6- 2005 but the same was not complied with. 15. The petitioner has annexed the copy of the letter dated 24th June 2005 sent by the Cantonment Executive Officer to the Principal Director, Defence Estate, Lucknow as Annexure-7 to the petition. From a bare perusal of this letter it is obvious that the GOC- in-Chief, HQ Eastern Command Nainital has imposed restriction on the area of Prem Nagar, Kehri village, Smith Nagar, etc. under Section 181(2) of the Cantonments Act, 1924. It also comes out that initially restriction was imposed on entire area, but later on in the year 1967, the restriction was lifted from some area which was known as Prem Nagar Camp area vide letter dated 27th June 1967. It is also mentioned that the Board has already submitted a proposal for lifting restriction from this area vide letter nos. 11-7-2001 and 19-11-2001, which is not yet finalized. The site involved in the matter is about 2,1/2 km. away from Indian Military Academy, Dehradun. The Division Bench of this Court called for the report relating to date of entry of Mrs. Animika Agarwal from the District Magistrate Dehradun and in the order dated 20-11-2006 in paragraph 2 has inter alia observed that the GOC-in- Chief has partly lifted the restriction in the year 1967 from the area which is hardly 100 mts. away from I.M.A. while the petitioner’s place for establishment of petrol filling is about 2 ½ kms away from the 6 I.M.A. It was also observed that “in view of this report, it cannot be said that the establishment of this Petrol Filling Station will have any danger to the security of I.M.A.” 16. Undisputedly, it is the third round of litigation. It is an admitted fact that the restrictions imposed under Section 181(2) of the Cantonments Act 1924 can only be relaxed by the General Officer Commanding-in-Chief Central Command in the present matter. It is also not disputed that this Court vide order date 28-12-2007 passed in WPMS No. 1541 of 2007 had directed the General Officer Commanding, Headquarter, Central Command, Lucknow to reconsider the matter as per direction of this Court given in Writ Petition No. 693(M/B) of 2006 vide order dated 20-11-2006. 17. Whether there is any security threat to the Indian Military on account of installation of MS/HSD retail outlet is concerned, the Indian Military Academy, Dehradun by its letter dated 14-11-2005 addressed to HQ Uttaranchal Sub Area, Dehradun Cantt. has already given its no objection to the proposed BPCL outlet at Premnagar, Dehradun. Copy of this letter has been placed on record as Annexure RA-1 to the rejoinder affidavit filed by the petitioner. The entire letter reads as under:- “PROPOSED BPCL OUTLET AT PREMNAGAR: DEHRADUN 1. Ref our letter No 126901/Gen/I: dt 21 Oct 05. 2. On verifying records, it has been found that Khasra Nos 140/1 and 140/2 is private land and is about 2.0 KM from IMA MT. The proposal has been cleared by the Cantt Bd. Dehradun. 3. In view of the above this office has no objection on the a/m matter. Our letter mentioned at Para I may please be cancelled.” 18. Having considered the contentions of the learned counsel for the petitioner as well as the learned counsel for the respondents and having gone through the averments made in the memo of writ petition along with its annexures, the counter affidavit filed on behalf of 7 respondent no.3 and the rejoinder affidavit filed by the petitioner, it is crystal clear that while passing the impugned order dated 8-5-2008, the General Officer Commanding-in-Chief Central Command Lucknow lost sight that the Division Bench of this Court had directed to reconsider the matter in dispute in the light of the report of Executive Officer dated 24-6-2005. Moreover, it had also been observed by the Division Bench of this Court that it cannot be said that the establishment of the petrol filling station will have any danger to the security of I.M.A. Admittedly the order dated 20-11-2006 passed by the Division Bench of this Court had not been challenged before the Apex Court and the same had attained finality. Admittedly the proposed site is at a distance of not less than 2 kms. from the IMA MT and the Indian Military Academy itself has no objection to the proposed BPCL retail outlet at Prem Nagar (Dehradun Cantonment). 19. For the reasons and discussion above, the impugned order dated 8-5-2008 passed by the General Officer Commanding-in-Chief Central Command, Lucknow is liable to be set aside and the writ petition deserves to be allowed. 20. The writ petition is allowed. The impugned order dated 8-5-2008 (Annexure-13 to the petition) is set aside. The respondent no.2 is directed, by a writ of mandamus, to reconsider the matter afresh in the light of the observations made in the body of this judgment coupled with the no objection letter of the I.M.A. (Annexure-RA-1 to the rejoinder affidavit and the observations made by the Division Bench of this Court, referred to above, within a period of eight weeks from the date of production of certified copy of this order and to grant relaxation to the restrictions imposed under Section 181(2) of the Cantonments Act 1924 and to permit the petitioner to install the proposed MS/HSD BPCL outlet in the Cantonment Area on his private land of plot no. 140/1 and 140/2. (B.S.Verma,J.) RCP 8 9