2017 Supreme(UK) 375

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAJIV SHARMA, J.
Om Prakash Gupta & Ors. - Petitioners
Versus
Union of India & Others - Respondents
Writ Petition (M/S) No. 67, 248 of 2014
Decided On : 18-12-2017

The Court held that the GOC-in-Chief had not acted reasonably and in accordance with the law in rejecting the petitioner's application for relaxation of restrictions under Section 181(2) of the Cantonments Act.

Headnote:

CANTONMENT ACT - SECTION 181(2) - RELAXATION OF RESTRICTIONS - JUDICIAL REVIEW - REASONABLENESS - PUBLIC INTEREST - ADMINISTRATIVE ACTION - DISCRETION - ARBITRARINESS - MALA FIDE - PROPORTIONALITY - FUNDAMENTAL FREEDOMS - ARTICLE 14 - ARTICLE 19 - ARTICLE 21 - WRIT PETITION - QUASHING OF IMPUGNED ORDER - RESTRAINT ON INTERFERENCE - COSTS.

Fact of the Case:

Petitioner purchased bhumidhar land and obtained possession. Mutation was attested in his favour. Petitioner applied for dealership and was interviewed. Letter of Intent was issued in his favour. Petitioner submitted an application to the Cantonment Board, Dehradun seeking permission. It was rejected. Petitioner filed an application before the Executive Officer, Cantonment Board, Dehradun. The Executive Officer sent a communication to Principal Director, Defence Estates, Ministry of Defense, Central Command, Lucknow for granting permission and relaxing the restriction for construction/installation of petrol pump over the land, in question. Petitioner obtained No Objection Certificates from various agencies. The Cantonment Board also issued No Objection Certificate with the rider that before construction is commenced, the map would be got approved from the Cantonment Board. The No Objection Certificate was also issued by District Magistrate, Dehradun. The lease agreement was entered into between the petitioner and the oil company. The Cantonment Board passed a resolution declining the lifting of restrictions. The case of the petitioner was rejected for erection of retail outlet of MS/HSD over the land, in question. Petitioner sought information from the MDDA whether the area fell in its jurisdiction or it fell under green-belt. The Public Information Officer, MDDA, Dehradun sent a communication to the petitioner that the area under the Cantonment Board, Dehradun is neither within the jurisdiction of MDDA, Dehradun nor MDDA has sanctioned any map of the area. The restriction on the construction in the said area is imposed by the Cantonment Board, Dehradun. Petitioner challenged the letter dated 18.03.2006 by filing a Writ Petition before the High Court. The same was allowed and the impugned order was quashed and set-aside. The Division Bench held that the establishment of this Petrol Filling Station will not have any danger to the security of I.M.A. The case of the petitioner was again rejected vide Annexure No.9 dated 13.02.2007. Petitioner again assailed the order dated 13.02.2007 by filing a Writ Petition. It was decided by learned Single Judge of the High Court. The General Officer Commanding, Headquarters, Central Command-respondent no.2 was directed to reconsider the matter positively within a further period of eight weeks from the date of production of certified copy of the order. The case was again rejected by GOC-in-Chief vide Annexure No.13 dated 08.05.2008. Petitioner obtained letters from IMA dated 14.11.2005 and 20.11.2012, whereby the IMA has categorically stated that the installation of the Petrol Pump outlet over the land, in question would not affect the IMA. Petitioner also filed Contempt Application. Thereafter, the petitioner was constrained to file yet another Writ Petition. It was allowed and the order dated 08.05.2008 was quashed and set-aside. Respondent no.2 was directed to reconsider the matter afresh in the light of the observations made in the judgment coupled with the no objection letter of IMA and the observations made by the Division Bench of the High Court in the earlier judgments. The case was again rejected by GOC-in-Chief vide Annexure No.13 dated 15.06.2010. Petitioner obtained NOC from the Executive Engineer, National Highway, Public Works Department Roorkee. The District Magistrate, Dehradun sent a letter to Joint Chief Explosive Controller, Petroleum and Explosive Security Institute, Agra, U.P. The Joint Chief Controller of Explosive granted the permission to BPCL for installation of Petrol Outlet. Petitioner started running the petrol pump on 04.12.2013 by constructing the boundary wall. The Chief Executive Officer, Cantonment Board, Dehradun sent a letter to the District Magistrate, Dehradun referring the order dated 15.06.2010 that the permission has been declined by GOC-in-Chief on 30.03.2010. The District Magistrate, Dehradun sent the information to Joint Chief Explosive Controller and Manager (Sales) Bharat Petroleum Corporation Meerut informing him that the NOC granted by District Magistrate, Dehradun be treated as cancelled.

Finding of the Court:

The Court found that the petitioner had obtained all necessary permissions and NOCs from various authorities, including the IMA, and that the GOC-in-Chief had acted mechanically and had not applied his mind while rejecting the case of the petitioner. The Court also found that the restrictions imposed in the year 1942, which were renewed in the year 1967, had lost their efficacy with the passage of time.

Issues: Whether the GOC-in-Chief had acted reasonably and in accordance with the law in rejecting the petitioner's application for relaxation of restrictions under Section 181(2) of the Cantonments Act.

Ratio Decidendi: The Court held that the GOC-in-Chief had not acted reasonably and in accordance with the law in rejecting the petitioner's application for relaxation of restrictions under Section 181(2) of the Cantonments Act. The Court held that the GOC-in-Chief had failed to take into account relevant factors, such as the fact that the petitioner had obtained all necessary permissions and NOCs from various authorities, including the IMA, and that the restrictions imposed in the year 1942, which were renewed in the year 1967, had lost their efficacy with the passage of time.

Final Decision: The Court allowed the writ petition, quashed and set-aside the impugned order dated 15.06.2010, and restrained the respondents from interfering in running the petrol pump outlet over the Plot No.140/1 & 140/2 NH-72 situated at Arkedia Grant, Prem Nagar, Dehradun.