i!i:^'1i^JJ;^IK!T^y^,-:^;'.:-^:^:.^;^^^ ;':^' %: •: " i^' .\':. ''-:';^'^'^!H' ^ 'i^fys^^ .^(0) HI©HCOURT OF CHH.ATTI.SSARH AT BILASPUR W.P.(C) N0. 903 OF 2008 M/s Gorfesh Automobiles '^D^^ir^E"^r Stute of ChhattigQarh <a others •T°> /^ib, S .^/^" Tl l! %..* ^°S^/\€t 'USI uN \;t) JULy. ^UUB ^endraM^- lud&e E6H COUKT OF Ci-IHATri-S&ARH AT BILA.SPUF W.P.(C) N0. 903 OF Writ netition under* Articie 226 of the Consti'tuti'o'n of Indio ' Ms Ganesh Automobiles ; beaiers Hindustan Petroleu.Ti PETITIONER ^Ai^nni^/Ti'ir'.n '^•'/i iutS/i -^ > iTrfi i i ^.^ 1 proprietor, jamna Gas Kflkkad '. - - .^-- ?~ f\ ......... .'"<.'- /~ i- .: (f^y'^^f i^ ^^ \^^^^^ '*fa< / f~^ ^\ if=l •••'rl i iged aftour oy ) 1/0 Liiudhar Bhai Kakkad, R/o 'Sanesh Bhawn, Tikrapara, Bilaspur (CS) vi^ys' t^, V ien Tvh^a/'^' ^aff 1. State of Chhattisqarh, Throuqh the Secretary, Department of Food, c-ivi! Suppiies Wetn'"' .Bi^*'^' Sm-'f i < \/ i •t.rfiu' ) i >u?t t laya,' bKS Bhawan, Raipu'r (CS) Coliector', BEiaspur (CG} A.E. Dameron Aaed about 60 years, S/o Late Shri C.A. Dameron, R/o Krishnc ApartrTient, vidya Ncigu", Bituspur' (CG) Shri AAanjeet Sinah Sumber nt» Sinyh 5/0 Late 5hri 'Sumber, .Age 50 years, R/o ik, uayaibund, Biiaspur, District BilasDur fC&j ahsil and Pr-esent; Mr. PS Kosiw with Mr. ParuQ Kotecha, Advocates for the oetitione". mr. AS Kachchawahc, uy. Advocate ©enerai for the resoondents No. 1 d 2/State. tw. Monlndro. Shr'ivusto.ya, -Sr- Advoco.te with "A.i''. .AA.ar'c-j ParaniDe, Advocate for the respondent No. 3. Mr. Sanjav K. Aarawal with I'A". Sourabh Sharma, Advocates fcr the Intervener-Hindusl-an Petroleum Corpn. Ltd. ^' ^ 'Siae^"^ ln^ ?'' ^- "^i^ '•ss ^/e' ~:W1SSEES3S!"' f k ii} (Passed on^JuJy, 2008) This petition is directed aqainst the order dated 25 Januarv, 2008 (Annexure P/15) passed by the State Minister (Tndependent Charge), Food Civil Supplies and Consumer Protection [)epartmeni', whereby th.e appeo.i preferred by the- petitioner' o.9ain3t the- order dated 10/14.5.2007 passed by the Collector (Food Branch), Bilaspur, hc's bee-n di-smissed. 2. Briefiy stated, case of the petitioner is that the Coiiector, Bilaspur, th.e licensing authority, under Chhattisgarh motor Spirit and High Speed uiesel (Licence & Controi) Order, 1980 (in shor't 'the Contro! Ordsr, 1980') gronted Iscence to the petitioner w.e.f. 14 nAay^ 1977. The petitioner obtained deQiership fro.i'n fA/s .Hindusta" Petroleum Corporation Ltd. (for brevity 'the Corporat'ori') w.e.f. 28.6.1977 for establishing a petrol/diesel pump. The premi-ias, on which the pump of the petitior.dr is situated, was taken on psrinanent lease by the Corporation from one 1-1. KOSS (hereinafter referre" to as Isssori somewhere in the vear 19'7. It was dulv rsnewed for o. )eriod UD to 30T" SeDtember. 1990. The lesso" died somewhere in the year 1985 after executing a Will in favour of his brother and sisters. four in number - the beneficicries. The beneficiaries of ths Vv'i!! did not coilect ieo.se re-nt from the Coi"poi''o.tion. The respondert No. 3 ciaiming himself to be the power of attorney holder of the beneficiaries, cpproached the Corpor'ation "fter 20 year's and ciaJFned th.at 'ne ho.s o. right to -seii the !and Jn question on the ba-sis of power of o.ttorney. The application of the Cor'poration under Section 25 c'! the. .Accommodo.tion Contro! Ac-t, 1961 to deposit the e-ntire leo.se rent, was "ejected by the Rent controlling Authority^ Bilaspur on the ^^ ground of limitation. The first appeal preferred by the Corporation has also been dismissed and second appeal of the Corporation against the order of dismissat, is pending in the High Couri- as S.A.No.216/07. In the meanwhile, the petitipner filed an objection before the Sub Registrar, Bilaspur requesting not to register the so.Ie deed executed by the respondent No. 3 of the disputed premises on the basis of fake and forged power of attorney. He aiso filed a writ petition i.e. W.P.(C) No.3282/07 and the High Court- directed maintenance of status-quo with regcrd to possession of the property by way of interim relief. The petitioner applied for renewal of the licence of his petrof pump, which was to expire on 31 September, 2006, however, the Collector terminated the licence vide ordsr dated 14 AAay, 2007. The petitioner's appeal against the order of the Collector was also dismissed by the impu9ned order dated 25 January, 2008 by the State ©ovt.without affording o" oppor'tunity of h.eoiring to the petitioner. 3. The respondent-s No. 1 <& 2 in their reply have stated that the answering respondents exercising their rights under Clause 9 and Cl.ause 16 of the Control Order, 1980, h.aye passe-d the afore-said order whereby licence issued to the petitioner was cancelled, the order passed by them is quasi judicial in nature and the same does not r'equire ony comm.ent. However, records of bot.h the forums haye been produced. 4. Respondent No. 3, in hi.s fxsrowise reply, ha-s stated th.at the lessor died on 21 June, 1985, the lease agreement executed between the parties has already expired; no rent has been paid by the Corporation as per agreement for the last 16 years and \e.asewas 'v.s^ 'SF.'^wTE-:^'1""' never rsnewed after 30 September, 1990 and thsrefope, the Corporation has no right to use the site for storing petrol. Sub-rule (1) of Ru!e 151 of the Petroleum Rules, 1976 (for brevity 'the Rutes, 1976) proyides that 'no objection cert'ifico.te' gron+ed under Rule 144 of the Rules, 1976 con be cancelled whenever the licensee ceases to hove any right to use the site for storing petrol. Since the leo.se was not rene'A'ed after 30 Septembe", 1990 and there is no document to evidence the renewa! of lease thereafter, the lease could not be r'enewe-d autoiTio.tically. The resDonde-nt No. 3 moyed an aDDiico+ion be.fore the Collector, Bilaspur for cance-llo+ion of iice-nce of the. petitioner and also raised objection o.gainst renewal of the licence. The Co!!ector issued notice to the Corporation ond also issued show- cause notice to the petitioner. The saidnotice was duly replied by the petitioner ond only after obtaining reply, the licence was canceied on 10 May, 2007. Ths original owner has executsd registered power of attorney in favour of respondent No. 3 (Annexure R-3/6). Eariier order of the Coilector canceling the licence of the petitioner, wo.s stayed by th.e State (5ovt. 6n the ground that the Corporation was not given proper opportunity of hearing, howe-ver, subsequently after dismissal of the appeal by the appellate authority, the petitioner's pump hds been sealed. It has been further submitted that if the bis+rict .Authoritv or the State ©ovt.is satisfied tho.t the licensee has ceased to have o"y right to use the site for storing petro!, they can cancel the 'no objection cert'ificate' granted under Rule 144 of the Rules, 1976. The impugned order passed by the Collector, which was subsequently confirmed in appeal, was, in fact, passed after giying full opport'unity of hearing to the Corporation as wel! as the petitioner. -—-——— 5. The respondent No. 4, in its separate reply, has stated that the disputed premises has been purchased by him from its erstwhiie owner. He has reiterated the objections raised by the respondent No. 3. 6. Shri P.5. Kosh.y with Shri Parag Kotecha, learned counsel appearing for the petitioner contended that the petitioner was isgjed licence to operate the petro! pump in the year 1977 ond the gome wa-s periodically renewed till 31 becember, 2006 by the licensing authority even o.fter expiry of the lease deed in favour of the Corporation. The license to run petrol pump is granted under the Control Order 1980. After- receiving the letter of Annexure P/2 from the re-spondent No. 3 for renewo.l of leo.se, paymerit of rent and other matters, the Corporation had demanded death certificate of the lessor and o. fresh power of attorney duly executed and authenticated. H.owever, the afore-so.id letter was never rep!ied to and forged and fake document was submitted by the respondent No. 3 as power of ottorney. The respondent No. 3 on the basis of forged and fake power of attorney, transferred the property to the respondent No. 4. The legal heirs of the lessor have sworn affidavits in which they have categorically denied that the power of at+omey in favour of respondent No. 3 bea.rs their signatures and the above document is false and fabricated. The affidavits of legal heirs of the !essor ho.ve been filed o.iong with reply to the application for impleadment filed by the respondent No.4. Neither the Control Order, 1980 nor the conditions mentiQhed in the licence shows that requirement of a lease dee-d of the premi-ses, whe-re petrol pump is to be installed, is necessary for grcmt of llcence. The licen°ing cujthgrity cance!!ed the !icen<;e rejying i.ipo" the decision of the Hon'ble Supreme Court in the mat^eT'M^yogesh Kumor cmd ol-hersj/s, M/s. Bharat Petroleum Corpn. Lfd. and o+hers report'ed in AIR 1990 SC 2216. However, the above decision was not applicable to the facts of the pre-sent case as in the aboye- decision, the iicence wo.-s gron+ed under Petroleum Rules, 1976 which are not applicable in the State of Chhattisqarh where l.icence is gronted unde-r the C'ontro! Grder, 1980. 7. The appelto.te- author-ity dismissed the appeal of the petitioner without affording proper and reasono.ble opportunity of hearing to the petitioner and the order was pas-sed behind his back. Clause 11 of the Control Order, 1980 deo.ls with corscellation and syspension of the licence. It envisages that coince!!ation of the licence can be done only if there is o"y contro.ve.ntion of o-ny of thp- te-rms and conditions of the licence or Control Order, 1980. The orders passed by the Collector and the o.ppellate .Authority do not mention as to for which contravention of the terms ond conditions of the licence or provigions of the Contro! Order, 1980, the licence has been canceiled. First proviso to C!o.use 11 of the C'ontrol Order, 1980 mandate-s that no order shall be made under this Ciause unless the licensing authority has obtoined the opinion of the oil company with whom the agreement has been made by the licensee. However, in the instant case, the impugned order has been passed without giving notice or without calling any opinion from the Corporation. The Collec-tor h.ad no power to enquire into the ownership of the land as per Control Order, 1980 and therefore, the order of the Collector is without jurisdiction. The lessor has not initiated any eviction proceedings against the petitioner before any Court of law and there is no order of eviction in favour of the priyate respondents, therefore, the occupation of the petitioner oyer the land in question, cannot be assumed to be illegal or uriauthorized. ,S!f' 8. It has been further contended that Section 12 of the Chhattisgarh Accommodation Control Act, 1961 protects the petitioner against eviction. The grant of licence under the Controt Orde-r, 1980 is a mo.tter between the licensee and the licensing fluthority. Respondent No. 3 or re-sponde-nt No. 4 do not ho.ve o-ny locus standi to file a complaint for cancellation of licence of the oetitioner. 9. The Hindustan Petro!eum Corporation Ltd. Has been permitted to intervene in the instant petition. In thejntervention application i+ has been stated that the Corporation is iessee of the disputed land and t-he petitioner was appointed deater vide Dealership Agreement dated 4.7.1977. .After th.e death of lessor, the Corporo.tion requested the legal representatiyes tosubmit indemnity bond and declaro.tion. Dealership of the petitioner had alreo.dy been extended for a period of 16 years w.e.f, 16 Novsmber 2004. The Corporation submjtted an applicdtion before th®Rent Controlling Authority for deposing the rent, howeyer, th.e- so.id application was rejected by the Rent Controlling Authority. The appeal preferred by the Corporation wa.s furl'her dismissed by the .Additiona! District Judge and the Corporation preferred second appeai bearing No.216/07 in the High Court. Since the Corporation is the lessee of the suit land, the petitioner is deojer of the Corporo+ion, which is also licensee of the petrol pump, the licence of the petitioner could not be cance!!ed without notice to the Corporation as envisaged in proviso to Clause 11 of th.e Control Order, 1980. It has been furt-her submitted that in the appeal preferred by the petitioner before the State Sovt., the Corpor-ation has also submitted an affidavit stating therein that the disputed land, where the pe-trol pump i.s loc-ated, was token on leo.se by the Corporation from Shri H. Ross, who died on 21.6.1985 leaving Will in favour of AArs. AAargaret Kesilany <& AAr. Fedrick Stuart. AAr. Fedrick also died on 18.7.1989 and thereafter, AAr. G.C. Stuart was directed to produce indemnity bond, declaration <& auth.orization from all the legal representatives; Mr. A.E. Damer'on/respondent No. 3 contacted the Corporation and filed authori2ation; he was directed to produce power of attorney duly executed in accordance with-law for payment of rent of lease premises. However, it was not replied to. Before cance!in9 th.e licence,the Co!!ector'/licensing author'ity hasnot sought opinion of the Corpor-ation and the order impugned has been passed without notice to the Corporation, 10. Shri Sanjay K. Agrawal, iearned counsel appear-ing for the intervener contended that the licence granted to the petitioner has been cancelled under the provisions of the Control Order, 1980 on the ground that possession of the petitioner has become unauthorized, which could not be cancelled without obtaining opinion of the Corporation and without affording a reasonable opport'uni+y of hearing o.gainst the proposed cancellation or suspension of the licence. The Corporation was inducted in the premise-s in question under a valid lease deed ond continued to be a lo.wful lessee. The o.ccomn'odo.tion in question is located in the are-o. where provisions of Chhat+isgarh .Accommodation Contro! .Act are appiicable and therRfore, the Corporation cou!d not be evicted ignoring the proyisions of the Rent Contro! Act o.s it-s posse-ssion i.s du!y protected as statutory tenant. The appellate authority fixed the case for hearing on two interim applications, however, instead of hearing the parties'on th.ose applications, final order was passed dismissing the appeal itself. The petitioner and the Corporation were not afforded opport'unity of hearing by the appellate authority and thus, the very object of providing remedy of appeal, is defeated. i----—-- ^ 11. It was further argued that where the order passed by the statutory authority, porticularly the reasons whereof, a citizen of India would be visited with civil or evil consequences, must meet the test of reasonableness. It was submitted that judgment in the matter of Yogesh Kumar an.d others Vs. Bharat Petroleutn Corpn. Ltd, cmd others, AIR 1990 SC 2216, reiied upon by the Collector/licensing au+hority as o.lso by th.e o.ppelloj-e author'ity, is distinguishoAle as in the aforesaid case, 'no objection certificate' granted under Rule 144 of the Ruies, 1976, was cancelled on the ground that licensee ceased to have any right to use the site for storing petroleum. However, in the instant co.se, the licence issued to the petitioner under the Control Order, 1980 has been cancelled. 12. On the other hand, Shri AAonindra Shrivastaya, Sr. Advocate with -Shri AAanoj Paronjpe, leorned counse-1 o.ppearin9 for the respondents No. 3 <& 4 vehemently argued that the petitioner has impu9ned the order of the appellate authority mainly on the ground of vioio+ion of principles of natura! justice o.s the order has been passed without affording opportunity of hearing to the petitioner. The !egality of the order of thg iicensing auth.ority ahs atso be-en questioned on the ground that the same has been passed without notice to the Corporation and without seeking its opinion. However, from perusa! of the record of the Collec-tpr, it wou!d be evident that the licensing authority issued notice dated 10 AAay, 2006 to the Corporation, which followed by anothsr notice dated 23 AAay, 2006. The Corporqtion replied to the aforesaid two notices o" 31 AAay, 2006. Thereoftep, the petitioner was served with the notices dated 28th February, 2007 and 6th AAarch, 2007. From perusal of the obove notic-e, it wou!d be eyident that the proceedings were initiated under Clause 9 of the Control Order, 1980. The interim order was obtained 10 Q^ ^- from the appetlate authority by distorl-ion of facts as complete records were not produced. When the respondent No. 3 co-me to knpw obout the passing of the interim order, he apptied for vacating the stay order. However, the appellate authority instead of passing any order on the apptication for vo.cating the stay, dismissed the appeal itself. It was argued that keeping in view the overo.Il facts of the case, the impugned order passed by the appeltate authority does not ca!l for- any interference mere-ly on the ground that the petitioner was not afforded atTyopportunity of hearing. The principle of natural justice is applied having regard to the facts, situation obtaining in each case. 13. In the present co.se, the- lice-nsing author'ity ho.s CGncelied the licence of the petitioner on the ground that the petitioner's right to the site to store petroleum, has extinguished with the expiry of the leo.se in the year 1990. Relying upon the judgment in the matter of Yogesh Kumar, the licence has been cancelled by both the Courts below. The orders passed by both the Courts beiow are strictly in accordance with the principles of law laid down in the matter of C. Albert MaTis Vs. K. Chandrasekaran and others. (2006)1 SCC 228. Since the licensing au+hority initiated proceedings under Clause- 9 of the Control Order, 1980 for renewal of the licence, there was no lego.1 requirement of obto.ining fresh opinion of the oil company in terms of Clause 11 of the Control Order, 1980 as the said proceedings cannot be termed as proceedings for canceitation of licence. Since the penod of iic.ence has already expired on 31s becember 2006, the question of canceilation of licence, does not anse. r-—' 11 w: / 14. I have heard leamed counsel for the parties, gone through the material available on record as also the orders passed by the Courts below. 15. From perusal of the record of the licensing authority, it is observed that the pood Controller registered a case for canceliation of licence of the petrol pump of the petitioner on the basis of letter dated 1 Februapy, 2007 of one A.E. bameron/pespondent No. 3. Said A.E. Demrom claiming himself to be the power of attomey holder of AArs.. AA.argaret Kesilany and other owners of the land in Que-stion. informed thot the suit Dre-n'ise-s wa-s leose-d to th.e Corporation for a period up to 30 September, 1990, the same has not been renewed; monthiy re-nts ho.ve also not been paid from July, 1989; the leo.se has been terminated and since the licensee does not possess the.required title deed of the land, he has no permission to run the business; therefore, the- licence i-ssued to him be suspended/cancelted. The Coilector, Bilaspur directed issuance of notice on 26 February, 2007 and accordingly, show-causenotice dated 28th February, 2007 was issued to the petitioner. The petitioner submitted his reply on 12 AAarch, 2007 and informed that he is doing his business from the so.id premisesas adeaier of the Corporation, the matter relating to renewa! of lease deed between the Corporation and said A.E. Dameron, is pending in the Court and information can be obtained from the Corporation. Along with reply, copy of the two letters vuritten by the Corporation to A.E. Dameron /respondent No. 3, was also annexed. The licensing authority vide order- datsd 10/14th AAay, 2007 cancelled the diesel-petrol iicence of the petitioner with an observation that the petitioner does not have the le-90.! posse-ssion oye-r the disputed iand in absence of rene-wa! of the lease deed. ' 12 rI 1-,, \-"' 16. The petitiorier preferred an appeal under Clause 16 of the ContrQl Order, 1980 before the State Govt. and the appelldte ciuthor'ity vide orde" dated 25 June, 2007 aiiowed the appiicatior, for stay of the petitioner and stoyed.execution of the order of Go!lsctor. On 22 Qctober/SC®7the appea! WGS dismissed on ths ground of absence of the parties. However, it was resfored on 27t October, 200,7 andthestayorder was alsodir'ectedto be continued and the matter was fixedfor^inal arguments. Uitimately,the motter wos tc^enupon4 j(muary/2008 and the drgumsFrt-sweFe heard^^o^ •t-he two interiH' applicoition^ — one under Or'der' 41 Ru!e 27 read with Section 151 of CPG and another under Order 19 IS.u!e 2 of GPC-for permission to cross-examine the respondent No. 3 and the matter was fixedfwor'der's.on the above applications. However, the yingl order W(K passed on 25 Jo&ary/ 2008 where appeal of the petitioner it^lf was dismissed with the following findings: (i) (ii) that the lease ogreement has expired on 4T Ssptember, 1990. The land owners, Smt. Margcret Kesilany and otherg thpough their Advocate, have sent anotice to the Corporation terminating the lease agreerrient and directed it to deposjt balance of rent The Cof^nrcri'ion's applicort'ion for permission to deposit rent, Itas been rejected by •t'he Rent Controiling jAuthority and the order of the Rerit Controlling Authority has been conflrmed by the Acfclitional District <& Sessions Judge, Bilaspuif, thaf possessioh of the licensee over the leasehQld land is not legal after termination^of the |lease. VI 13 ^ \, ^. 17. It is not in dispute that the petitipner was granted licence under C!ause 6 of the Control Order, 1980. The application for issuance of iicence is to be made in Form-A under Clause 5 whereas licence is issued in Form-B under Clause 6 of the Control Order, 1980. Clo.use 7 provides for period of licence and fees chargeable whereas Clause 9 empowers the licensing authority to refuse, issue or renew a lice-nce. Clause 11 deojs with calcellation or suspension of licence, which reads as under: "11 Cancelhtion or Suspension of Licence. - No holder of a licence issued under fhis order or his aaenf or servant or any other person acting on his behalf shall contravene any of the terms and conditionsof the licence or any provision of this order and if any such holder or h/s agent or servant or any person acfing on his behalf contravenes any of the said terms or conditions or provisions then withQut prejudice to any ofher action that may be taken against him his licence may be cancelted or suspended by order in writing of the licensing authority. Provided that no order shall be made under fhis clause unless the licensing authority has obtained the opinion of the Oil Company with whom the agreement has been made by the licensee and the licensee has been given a reasonable opportunity of stating his case against the proposed cancetlafion or suspension; Provided further that if no communication containing the opinion of ihe Oil Company is received svithin thirty days of the date of receipt of a lettep to that effect under the foregoing proviso by the District Manageror an offtcerequivalent rank of that company, it shall be presumed that the Oil Company agrees with the proposed action and the li'censing authority shatl be free to passsuch order as may be deem fit. 18. Any person aggrieved by the order of the licensing authority refusing to gro.nt, reissue or renew a licence or canceling, suspending the licence or forfeiting the security deposit, can prefer appeat 14 under Clause 16 of the Control Order, 1980 within 30 days before the oippellate authority. 19. An applicant desirous of obtaining licence, is required to submit his application in the Form-A detailing the information such as, part-iculars of the person/firm, locatiQn of premises where the business is to be conducted and oit is to be stored, nome of the oil for which licence is required, experience in trading in oil along with quontity of the oil handled; deto.i!s of municipal licence, if any,name of the oil company of which the petitioner is dealer etc. There is no coloum in the application whereby applicant is required to state abou't' the tit!e of the accomiTtodflition/premises from where he intends to conduct the business. \ 20. Form-B in which the licence is to be issued under Clause 6 of the Control Order, 1980 authorizes the licensee to purchase, sale, storage for sale of oil subject to provisions of the Control Order, 1980 and the terms and conditions of the licence. None of the conditions mentioned in Forir-6 pertains to the title of ownership