Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Pat) 828

IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. Ansari and Anjana Mishra, JJ.
Dhrub Prasad son of Late Harihar Prasad - Appellant
Versus
The State of Bihar through its Principal Secretary – cum - Commissioner Urban Development Department & Ors. - Respondents
LPA No. 98 of 2016 in CWJC No. 7726 of 2011
Decided On : 16-05-2016

Advocates Appeared:
For the Appellant : Mr. Navin Kumar.
For the Respondents: Mr. Rajesh Singh, Mr. Lalit Kishore, Mr. Madhuresh Prasad.

The main legal point established is that the denial of a 'No Objection Certificate' (NOC) by the Housing Board was arbitrary, discriminatory, and in excess of its jurisdiction, violating constitutional articles and legal provisions.

Headnote:
No Objection Certificate - Land Use - Bihar State Housing Board Act, 1982, Section 28(2); Bihar Shops and Establishment Act, 1953, Section 2(16) - The judgment discusses the denial of a 'No Objection Certificate' (NOC) for opening a petrol pump on a commercial plot, the legal provisions of the Bihar State Housing Board Act, 1982, and the Bihar Shops and Establishment Act, 1953. It highlights the interpretation of the lease deed, the definition of 'Shop' under the Bihar Shops and Establishment Act, and the authority of the Housing Board to grant NOC for different land uses.
Fact of the Case:

The appellant sought a writ to quash the rejection of the 'No Objection Certificate' (NOC) for opening a petrol pump on a commercial plot. The Housing Board rejected the NOC despite the appellant fulfilling all necessary criteria and obtaining clearances from other authorities. The appellant invested a substantial amount for the petrol pump but was denied the NOC.
Finding of the Court:

The court found the rejection of the NOC by the Housing Board to be arbitrary and illegal. It held that the appellant's case fit within the definition of 'Shop' under the Bihar Shops and Establishment Act, and the denial of NOC was discriminatory and violative of constitutional articles. The court also noted that the Housing Board's act of sealing the premises was in excess of its jurisdiction.
Issues: The main issues were the legality of denying the NOC, the interpretation of land use provisions, and the authority of the Housing Board to reject the NOC despite clearances from other authorities.
Ratio Decidendi: The court held that the Housing Board's rejection of the NOC was arbitrary and violative of constitutional articles. It also emphasized that the Housing Board's act of sealing the premises was in excess of its jurisdiction.
Final Decision: The court allowed the appeal, set aside the rejection of the NOC, and directed the Housing Board to remove the seal from the petrol pump. It also allowed the appellant to dispose of the stored petrol but prohibited further sales until clearance from the District Magistrate.

JUDGMENT :

Anjana Mishra, J.

The Present Letters Patent Appeal is directed against the judgment and order, dated 29.10.2015, passed, in C.W.J.C. No. 7726 of 2011, whereby and where under the learned single Judge has dismissed the writ application, filed by the petitioner-appellant, seeking a writ, in the nature of certiorari, quashing Letter No. 6844, dated 04.11.2010, issued by the Estate Officer, Bihar State Housing Board, whereby the application of the appellant for grant of a 'No Objection Certificate' for opening a petrol pump on Commercial Plot No. DS-24/L, situated at Lohia Nagar, Kankarbagh, District-Patna, has been rejected.

2. The factual matrix of the case, which gave rise to the present writ application, out of which this appeal arises, is as follows:-

(i) By virtue of a Deed of Tripartite Lease, dated 25.08.2004, (Annexure-1), executed between the original allottee, namely, Bajarang Lal Bajaj, the petitioner, and the Housing Board, Plot No. DS-24/L at Lohia Nagar Housing Colony, Lohia Nagar, P.S.-Kankarbagh, District-Patna, the aforementioned plot came into the possession of the petitioner. The plot, namely, DS-24/L, was earmarked for office/shops/godowns.

(ii) The petitioner submitted a representation before the competent authority/officer of the Housing Board for granting a 'No Objection Certificate' for running a petrol pump over the land, in question.

(iii) The Managing Director of the Housing Board submitted a report recommending that permission for opening a petrol pump over Plot No.DS-24/L can be given and, accordingly, after proper site verification and enquiry, the matter was processed in favour of the petitioner-appellant and the file was sent for calculation of extra cost plus compound interest accruable thereon.

(iv) The Housing Board has also granted 'No objection Certificate' for opening a petrol pump on Plot No.DS-7 and a petrol pump was running on the said plot, but the matter, with regard to grant of 'No Objection' to the petitioner, was kept, however, pending.

(v) In the meanwhile, the petitioner-appellant obtained 'No Objection Certificate' from the District Magistrate, Patna, for opening petrol pump and Bharat Petroleum Corporation Ltd. also proceeded to grant licence in favour of the petitioner-appellant for opening petrol pump and service station on the aforesaid commercial plot being No.DS-24/L.

(vi) Accordingly, the petitioner-appellant invested huge amount of money for establishing the petroleum storage tank in anticipation of grant of approval/'No Objection Certificate' from the Housing Board and he also commenced his business. However, to the utter shock and surprise of the petitioner-appellant, the Respondent-Housing Board, vide order, dated 04.11.2010 (Annexure-9), issued under the signature of Estate Officer of the Housing Board, rejected the case of the petitioner-appellant for grant of 'No Objection Certificate'.

(vii) The petitioner-appellant, again, represented before the respondent authority seeking recall of the aforesaid refusal order, vide letter, dated 24.02.2011 (Annexure-11), but when no action was taken on the same, the petitioner-appellant has knocked at the doors of this Court for redressal of his grievance by way of a writ application under Article 226 of the Constitution of India.

3. I.A. No.364 of 2016 has been filed by the appellant-applicant seeking a direction from this Court to permit him to carry on the petroleum outlet business over Commercial Plot No.DS-24/L, which has been sealed by the Bihar State Housing Board (hereinafter referred to as 'the Housing Board'), pursuant to an order, dated 28.12.2015, whereby the appellant has been directed to vacate Plot No.DS-24/L; or else, the same will be sealed.

4. In the said interlocutory application, the appellant-applicant has submitted that the Housing Board had, in fact, already proceeded to seal the petroleum business of the appellant, though it was having full knowledge regarding the pendency of the present Letters Patent Appe

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