IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 97 of 2009(O&M) Date of Decision: 15.07.2010 M/s Nav Durga Petro Sales ..Appellant Versus State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE AJAY TEWARI 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Karan Nehra, Advocate, for the appellant. Mr. Randhir Singh, Addl. A.G. Haryana for respondents No.1 to 6. None for respondent No. 7. ***** MUKUL MUDGAL, C.J. (Oral) 1. This appeal has been filed by the appellant challenging order dated 6.2.2009 passed by the learned Single Judge disposing of LPA No. 97 of 2009(O&M) [2] Civil Writ Petition No. 2004 of 2009 with a direction to District Magistrate, Panchkula, to forward the appellant's application for seeking permission/No Objection Certificate to the Forest Department, if it was not been sent to the said Department so far and further directing that in case the aforesaid application has already been forwarded to the Forest Department, the Principal Chief Conservative of Forests, Haryana or the competent authority in the Forest Department, whosoever may be, would consider the petitioner's application and take a decision in accordance with law, within a period of one month from the date of receipt of the certified copy of this order and/or the receipt of the said application, as the case may be. 2. Briefly stated, the facts giving rise to the present appeal are that the appellant was initially granted a licence to run a retail outlet on National Highway No. 73-V, Saha-Panchkula Road by the Indian Oil Corporation. The petitioner on behalf of Indian Oil Corporation applied for 'No Objection Certificate' for commissioning the petrol pump which was granted on 17.2.2004 by District Magistrate, Panchkula in favour of Indian Oil Corporation for installation of retail outlet on the land bearing khasra No. 7//21, 22/2 of village Golpura, Tehsil Panchkula. However, later on, Indian Oil Corporation was not able to set up retail out let on the said land and therefore the Senior Divisional Manager (Sales) of the said Corporation issued a 'No Objection Certificate' to the appellant to approach some other company for setting up of a retail outlet. On getting the said NOC from Indian Oil Corporation, the appellant entered into a contractor with ESSAR Company for setting up the retail outlet. Thereafter the appellant applied for transfer of NOC LPA No. 97 of 2009(O&M) [3] which was granted in favour of Indian Oil Corporation for installing the retail outlet in favour of ESSAR to the District Magistrate, Panchkula. The District Magistrate, Panchkula after completing all the formalities vide letter dated 28.2.2005 granted No Objection Certificate for installation of petrol pump in favour of ESSAR Oil Ltd. In the meantime, on application which the Indian Oil Corporation had moved to the Central Government directly for grant of permission to set up retail outlet on forest land, the necessary permission was grantedby the Government of India, Ministry of Environment and Forest, vide its letter dated 15.9.2005 for diversion of the forest land for approach road to the retail outlet. On receipt of the said permission, the appellant set up the retail outlet under the aegis of Essar oil Ltd. But later on the forest department of State of Haryana started harassing the appellant and obstructing the approach road by erecting barbed wires fencing. Thus, the appellant filed a writ petition challenging the hindrances being created by the Forest Department, in running the retail outlet though it had set up the same after completing all the formalities as envisaged under the Petroleum Act, 1934. 3. Learned Single Judge after hearing learned counsel for the petitioner passed the impugned order. Hence this appeal. 4. In the appeal, the appellant has taken a ground that it is not being allowed to peacefully operate the retail outlet due to conduct of respondents No.2 to 6 and that respondents No. 3 to 6 had dug the entrance and exit points of the petrol pump outlet of the appellant before filing of the writ petition but subsequently i.e. after passing of the order dated 6.2.2009, they have fenced the petrol pump with the LPA No. 97 of 2009(O&M) [4] barbed wires. 5. Originally, in the memorandum of parties, respondent No. 7, namely, Conservator of Forests (Central), Northern Regional Office, Ministry of Environment and Forests, Government of India, was not arrayed as party to the appeal. However, during the course of hearing of appeal, a Division Bench of this Court vide order dated 16.3.2009 called the Deputy Commissioner, Panchkula to remain present in Court and to explain why the appellant was not being granted 'No Objection Certificate'. Pursuant to order dated 16.3.2009, Deputy Commissioner, Panchkula appeared in Court and explained that the copy of the application given by the appellant was forwarded by him to the Principal, Chief Conservator, Haryana, who in turn had sent it to the Ministry of Environment and Forest who had to take a final decision with regard to grant of 'No Objection Certificate' to the appellant. This Court vide order dated 5.5.2009 impleaded Conservator of Forests (Central), Northern Regional Office, Ministry of Environment and Forests, Government of India, as respondent No. 7 to the appeal keeping in view the submission that a proposal on 30.03.2009 had been sent by the State to it. The Division Bench ordered that notice to the newly impleaded respondent No.7 be issued for 26.5.2009 with a direction to produce the complete record on that date. On 26.5.2009, no body appeared on behalf of respondent No.7 despite service. Thus, the following order was passed by this Court:- “Despite service, no one has put in appearance on behalf of respondent No.7. Accordingly, we direct that Shri Krishan Sekhawat, who is Conservator of Forests LPA No. 97 of 2009(O&M) [5] (Central), Northern Regional Office, Ministry of Environment and Forests, Government of India, Bays No. 24-25, Dakshin Marg, Sector 31-A, Chandigarh, to be present in person alongwith complete record. List again on 29.5.2009. Dasti process.” 6. On 13.7.2009, Ms. K.K.Kahlon appeared on behalf of respondent No.7 and in her presence, the appeal was admitted for hearing and a restraint order against the respondents was passed. Even after effecting of service and putting in appearance, respondent No.7 did not choose to file any reply to the writ petition out of which the present appeal has arisen, though a period of one year has elapsed. Today, the appeal has been listed for final hearing but no body is present on behalf of respondent No.7. Therefore, we have no other opinion but to take up appeal for hearing in absence of respondent No.7. With the assistance of learned counsel for the appellant, and Addl. Advocate General, Haryana appearing for respondent No.1 to 6, we have gone through the appeal and heard the arguments raised by them. 7. The fact which emerges from the record as well as from the arguments advanced is that originally, when the retail outlet in question was allotted to the appellant by the Indian Oil Corporation, the necessary 'No Objection Certificate' had been granted by respondent No.7 on an application moved by the Indian Oil Corporation. It is not in dispute that later on Indian Oil Corporation showed its inability in regard to setting up of petrol pump and permitted the appellant to approach some other company for setting up retail out let on the same land for which it had got permission from the Central Government. It is LPA No. 97 of 2009(O&M) [6] also not in dispute that after having been permitted by the Indian Oil Corporation, the appellant approached the ESSAR Oil Ltd. who allotted the outlet to be set up under its aegis. It is borne out from the record that the objection which has been taken by the Forest Department, is that no objection certificate ought to have been obtained prior to setting up of outlet by the ESSAR company again. The case of the appellant is that the appellant had applied for transfer of 'No Objection Certificate' granted to Indian Oil Corporation for installing the petrol pump, in favour of ESSAR company, which transfer has not so far been granted by the respondents. It has also come on record that pursuant to the order passed by the learned Single Judge, the Deputy Commissioner has already forwarded the application moved by the appellant on behalf of ESSAR company to the Forest Department who further forwarded the same to the Nodal Officer, Ministry of Environment & Forest, Government of India, New Delhi for final decision for grant of 'No Objection Certificate'. 8. The fact that 'No Objection Certificate' was granted to the Indian Oil Corporation for setting up of a petrol pump by Government of India, vide its letter dated 15.9.2005 is not a bone of contention in this case. The objection being taken by the Forest Department of Haryana that ESSAR company has not got 'No Objection Certificate' in its name for setting up of the retail outlet afresh is not tenable because we are of the view that once the 'No Objection Certificate' had been granted, though in favour of Indian Oil Corporation, for setting up of a retail outlet at a particular land, the transfer of site for setting up of petrol pump to another company i.e. ESSAR Oil Ltd. would not require LPA No. 97 of 2009(O&M) [7] the process of granting 'No Objection Certificate' to start again and earlier 'No Objection Certificate' would stand automatically transferred in favour of ESSAR Oil Ltd. because with the change of owners, the circumstances under which the certificate was granted, would not change, and mere change of franchisor can in no way affect the ground situation. If any change of circumstances which require the ESSAR company to take 'No Objection Certificate' afresh had come into play, it was for respondent No.7 to explain to this Court but reluctance on the part of respondent No. 7 to appear in the proceedings in this Court have left us with no option but to take up the matter for decision in its absence. In the appeal, the respondent No.7 had been given adequate opportunity to deal with the issue raised, but the said respondent did not avail of these opportunities and studiously kept away from the proceedings. There is no rebuttal on behalf of respondent No.7 to the pleas raised in the appeal or in the original writ petition. The stand of the State Government is only limited to the extent that they have already forwarded the case of the appellant to respondent No.7. In the absence of respondent No.7, we have no other option but to accept the pleas raised by the appellant in the writ petition as well as in the grounds of this appeal. We have already held that environmental clearance which was granted to the predecessor i.e. Indian Oil Corporation could not be denied to the successor unit i.e. ESSAR,especially when there is no case brought out by the respondents with regard to change of ground LPA No. 97 of 2009(O&M) [8] situation. 9. In these circumstances, we dispose of this appeal with a direction that environmental clearance granted to the Indian Oil Corporation which is still valid shall automatically stand transferred to the ESSAR company under whose aegis the appellant is running the petrol pump now. There shall be no order as to costs. (MUKUL MUDGAL) CHIEF JUSTICE (AJAY TEWARI) 15.07.2010 JUDGE 'ravinder'