# Smt. Rekha Mishra v. H.P.C.L. Mumbai & Ors

- **Citation:** (2023) 10 ILRA 959
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Writ-C No. 26239 of 2020
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rekha-mishra-v-h-p-c-l-mumbai-ors-49365
- **Pages:** 15

## Headnote

C.S.C., Sri Komal Mehrotra, Sri Ram Prakash, Sri
Vikas Budhwar

Advertisement
by
Hindustan
Petroleum
Corporation calling applications for award of
MS/HSD retail outlet dealership under open
category-Petitioner declared successful-letter of
intent was issued-an objection was filed online
by
the
respondent
no.4-complaint
was
examined -recorded by the Additional District
Magistrate, Sonbhadra that Respondent is not a
co-tenure holder in Khata No.6 -therefore his
rights are not affected-Complaint rejectedissued a No Objection Certificate- Respondent
No.4 again moved an application before the
District Magistrate, Sonbhadra for cancellation
of No Objection Certificate- re-examined the
matter
and
cancelled
the
No
Objection
Certificate-aggrieved ex-parte- not supplied a
copy of the complaint under Rule 150 of the
Petroleum Rules, 2002-the licensee shall be
given a reasonable opportunity of being heardimpugned order set aside.

W.P. allowed. (E-9)

Cases cited:

## Text

_Characters 0–39,961 of 50,707. This is a partial read: ask again with offset=39961 for what follows._

10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
959
which are approved by the PCI, irrespective
of whether they have challenged the same
or not.

40. Learned counsel for the Board and
learned Standing Counsel are directed to
communicate the decision to the Board not
to go ahead the counselling which stands
quashed in terms of this judgment.
----------
(2023) 10 ILRA 959
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ-C No. 26239 of 2020

Smt. Rekha Mishra ...Petitioner
Versus
H.P.C.L. Mumbai & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Prakhar
Tandon,
Sri
V.K.
Singh
(Sr.
Advocate), Sri Amrendra Pratap Singh

Counsel for the Respondents:
C.S.C., Sri Komal Mehrotra, Sri Ram Prakash, Sri
Vikas Budhwar

Advertisement
by
Hindustan
Petroleum
Corporation calling applications for award of
MS/HSD retail outlet dealership under open
category-Petitioner declared successful-letter of
intent was issued-an objection was filed online
by
the
respondent
no.4-complaint
was
examined -recorded by the Additional District
Magistrate, Sonbhadra that Respondent is not a
co-tenure holder in Khata No.6 -therefore his
rights are not affected-Complaint rejectedissued a No Objection Certificate- Respondent
No.4 again moved an application before the
District Magistrate, Sonbhadra for cancellation
of No Objection Certificate- re-examined the
matter
and
cancelled
the
No
Objection
Certificate-aggrieved ex-parte- not supplied a
copy of the complaint under Rule 150 of the
Petroleum Rules, 2002-the licensee shall be
given a reasonable opportunity of being heardimpugned order set aside.

W.P. allowed. (E-9)

Cases cited:

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors. reported in (1998) 8 SCC
1

2.
Uttar
Pradesh
Power
Transmission
Corporation Ltd. & anr. Vs CG Power &
Industrial Solutions Ltd & anr., (2021) 6 SCC 15

3. Ghanashyam Mishra and Sons Pvt. Ltd.
through the Authorised Signatory Vs Edelweiss
Asset Reconstruction Company Ltd through the
Director & ors. reported in (2021) 9 SCC 657

4. Chiraunji Lal Vs St. of U.P. & anr., 2002 (2)
AWC 946

5. L. Hirday Narain Vs Income Tax Officer,
Bareilly reported in AIR (1971) SCC 33

6. St. of U.P. Vs Mohammad Nooh AIR 1958 SC
86

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This writ petition is preferred
against
the
impugned
order
dated
18.11.2020 passed by respondent no.3,
District Magistrate, Sonbhadra, (wrongly
mentioned as respondent no.4 in the prayer
clause)
cancelling
the
No
Objection
Certificate
dated
13.10.2020.
The
impugned order dated 18.11.2020 is
annexed as Annexure No.10 to the writ
petition. Pleadings have been exchanged in
the present writ petition. At the time of
admission of present petition, after hearing
Counsel
for
respondent-Corporation,
Standing
Counsel
and
Counsel
for
Caveater, effect and operation of the order
960 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 18.11.2020 passed by the District
Magistrate, Sonbhadra was stayed by the
Co-ordinate Bench of this Court vide order
dated 20.1.2021.

2. Brief facts of the case are that an
advertisement was issued on 25.11.2020 by
Hindustan Petroleum Corporation calling
applications for award of MS/HSD retail
outlet dealership under open category at the
location 2014 at Ghorawal Bardiyan Road,
District Sonbhadra. The petitioner applied
in pursuance to the aforesaid advertisement
for award of MS/HSD retail outlet,
participated in the selection process and
was declared successful. A letter of intent
was issued for the aforesaid location to the
petitioner on 19.5.2020.

3. On 19.5.2020, the respondent no.2,
Chief Regional Manager, Varanasi wrote a
letter to the District Magistrate, Sonbhadra
for issuing No Objection Certificate in
respect to the Gata No. 51Ami, VillageGavkunda,
Pargana-Bardhiya,
Tehsil-
Ghoraval. District- Sonbhadra offered by
the petitioner for constructing the retail
outlet. After the letter dated 19.5.2020
written by the respondent no.2 to the
respondent
no.3,
District
Magistrate,
Sonbhadra, an objection was filed online on
2.9.2020 by the respondent no.4, Shyam
Bihari Dwivedi before the respondent no.3
raising certain grievances. The complaint
so made by the respondent no.4 was
examined and enquired by the Additional
District Magistrate, Sonbhadra and he has
submitted its report dated 12.10.2020
recording therein that in the Khatauni of
1426-1431
Fasli,
Khata
No.6, Arazi
No.51Ami, Area 0.6260 hectare name of
Amresh Chand, Subhash, Chand and Rohit
Tiwari is recorded as Bhumidhar with
transferable rights and in Khata No.2, Arazi
No.51A Miljumla, Area 0.6260, name of
Anil Kumar, Shyam Bihari (respondent
no.4) and Avadh Bihari is recorded as
Bhumidhar with transferable rights. It was
further recorded that Khata No.6 is a
separate Khata and in the aforesaid Khata,
the new retail outlet is proposed by the
petitioner. It was also recorded by the
Additional District Magistrate, Sonbhadra
as the respondent no.4 is not a co-tenure
holder in Khata No.6 but a co-tenure holder
in Khata No.2, therefore his rights are not
affected. Accordingly, the complaint of
respondent no.4 was rejected.

4. After completing the enquiry, the
respondent no.3, District Magistrate issued
a No Objection Certificate on 13.10.2020,
copy of the same is annexed as Annexure
No.4 to the writ petition. It appears that
after grant of No Objection Certificate on
13.10.2020, the respondent No.4, Shyam
Bihari again moved an application before
the District Magistrate, Sonbhadra for
cancellation of No Objection Certificate
dated 13.10.2020 on various grounds. Copy
of the complaint is annexed as Annexure
No. 9 to the writ petition. After receiving
the complaint of the respondent no.4, the
District Magistrate, Sonbhadra re-examined
the matter and cancelled the No Objection
Certificate granted by him on 13.10.2020
by means of order dated 18.11.2020.

5. Being aggrieved with the order
dated
18.11.2020,
the
petitioner
has
preferred the present writ petition. It has
been
contended
by
learned
counsel
appearing on behalf of the petitioner that
the order impugned dated 18.11.2020
passed by respondent no.3 is an ex-parte
order without giving any opportunity of
hearing to the petitioner and, as such, the
order is in violation to the principles of
natural
justice.
It
has
been
further
submitted by the learned counsel for the
10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
961
petitioner that the complaint made by the
respondent no.4 is frivolous, as he has no
right in the land offered by the petitioner
for constructing the retail outlet. It has been
further contended that the respondent no.4
is the Bhumidhar of Khata No.2 and has no
concern with the land of the petitioner
which is Khata No.6. In this connection,
relevant revenue records have been filed by
the petitioner
which
is
annexed
as
Annexure No. 8 to the writ petition. It has
been also contended by learned counsel for
the petitioner that so far as complaint of the
respondent no.4 that some dispute is
pending before the Revenue Court is bogus
in as much as the land on which the outlet
is being installed was purchased by Amresh
Chand, Subhash Chand and Rohit Tiwari
from Amravati Devi, the only daughter and
legal heir of Ram Jiyut, the recorded tenure
holder. After the land was purchased by
Amresh Chand and others, their name were
also mutated in the revenue records and the
proceedings for mutation was contested by
the respondent no.4 and his brothers
challenging the right of Amaravati to
transfer the land which was ultimately
decided in favour of the Amresh Chand and
others. It has also been contended by
learned counsel for the petitioner that after
a lapse of 15 years from the date on which
the proceedings relating to mutation were
finalised, a restoration application was filed
by the respondent no.4 in the court of
Additional Commissioner, Mirzapur on
7.9.2020 on frivolous ground.

6. Amresh Chand and others,
bhumidhar of land of Khata No.6 filed an
application under section 80 of the U.P.
Revenue Code, 2006 and the Competent
Authority
namely
Sub
Divisional
Magistrate, Ghoraval, District-Sonbhadra
vide order dated 13.6.2019 has declared the
land of Khata No.6 as non-agricultural land
free from land revenue. In that case too, a
frivolous restoration application was filed
by the respondent no.4 which was
dismissed by the Competent Authority on
8.10.2020 (copy of the order has been filed
as Annexure 14 to the writ petition).

7. Per contra, learned counsel
appearing on behalf of the respondent no.4
contended that the property in dispute
belong to one Harihar Ram who had two
sons namely Ram Jiyut and Govind. Ram
Jiyut had one daughter Amravati while
Govind had three sons namely Anil Kumar,
Shyam Bihari ( respondent no.4) and Avadh
Bihari. After the death of Harihar Ram, the
landed property was divided between his
sons, namely Ram Jiyut and Govind. After
the marriage of Amravati, daughter of Ram
Jiyut, he was looked after by the
respondent no.4 and his other real brothers
and as Ram Jiyut was happy with the
respondent no.4, he executed a registered
will dated 16.12.1997 in respect of his
entire landed property, including the land,
which is subject matter in the present case
in favour of respondent no.4 and his other
real brothers, namely Anil Kumar and
Avadh Bihari. Amravati along with others
have signed the will executed by Ram Jiyut
as a witness to the aforesaid will. After the
death of Ram Jiyut, respondent no.4 and his
other real brothers have filed a case No.
71/660 of 1998 and case No.71/660A of
1998 under Section 34 of the U.P. Land
Revenue Act for recording their name in
the revenue records in place of Ram Jiyut
in the agricultural properties left by Ram
Jiyut. In the aforesaid case, the notices
were issued and after receiving the notices,
Amaravati daughter of Ram Jiyut filed
objections which was registered as Case
No. 71/660 of 1998 and case No.71/660A
of 1998 claiming succession, being the real
daughter of deceased Ram Jiyut. Both the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid cases were decided by a common
judgement dated 20.1.2005 passed by the
Tehsildar, Sonbhadra. The claim of the
petitioner and his other real brothers was
rejected by Tehsildar, Sonbhadra vide order
dated 20.1.2005 and the claim of Amravati
Devi was accepted and it was directed that
the name of Amravati be recorded as
Bhumidhar in place of Ram Jiyut. It was
further contended that during the pendency
of the aforesaid proceedings under section
34 of the Land Revenue Act, Amravati
executed an agreement to sale dated
8.6.2001 in favour of Amresh Chand
Tiwari, Subhash Chand Tiwari and Dinesh
Chand Tiwari, all sons of Basant Lal in
respect of property in dispute. Against the
order dated 20.1.2005 passed by the
Tehsildar, Sonbhadra, rejecting the claim of
the respondent no.4 and his brothers, an
appeal No.34 of 2004-05 under section 210
of the Land Revenue Act was filed before
the court of Sub Divisional Officer,
Sonbhadra. In the aforesaid appeal an
interim order dated 10.3.2005 was passed
by Sub Divisional Officer, Sonbhadra
staying the order dated 20.01.2005. By
another order dated 21.03.2005, the Sub
Divisional Officer, concerned summoned
the lower court record.

8. Learned counsel for the respondent
further contended that against the order
dated 21.3.2005 passed in appeal No.34 of
2004-05 under section 210 of the Land
Revenue Act, the agreement holders
namely Amresh Chand Tiwari, Subhash
Chand Tiwari and Dinesh Chand Tiwari
filed a Revision No.122/21 of 2005 under
Section 219 of the Land Revenue Act
before the Commissioner, Mirzapur. During
the pendency of Revision No.122/21 of
2005, a fake compromise was prepared on
10.8.2005 and was produced in the court of
Commissioner, Mirzapur on 16.8.2005. In
the said compromise, signatures of the
respondent no.4, were fraudulently made
by some imposter as the respondent no.4
was present at his posting place situated at
a long distance that is Jorhat (State of
Assam). By order dated 24.8.2005, the
Commissioner,
Mirzapur
decided
the
revision in terms of the fake compromise
behind the back of the respondent No. 4.
True copy of the order dated 24.8.2005
deciding the revision is filed as Annexure
No.8 to the counter affidavit. It has been
further contended by learned counsel for
the respondent that after the order dated
24.8.2005, the agreement holders namely
Amresh ChandTiwari, Subhash Chand
Tiwari, Dinesh Chand Tiwari leased out the
land to the petitioner vide a lease dated
17.7.2020 for establishing the petrol pump
for a period of 29 years 11 months. When
the respondent no.4 came to know about
these facts , he moved a recall application
on 7.9.2020 for recalling the order dated
24.8.2005 passed in Revision No.122/212005 under Sectin 219 of the U.P. Land
Revenue
Act.
The
aforesaid
recall
application was rejected by the Additional
Commissioner, Mirzapur on the ground of
delay vide its order dated 3.3.2021. Against
the order dated 3.3.2021 rejecting the recall
application filed by respondent no.4 by the
Additional Commissioner, the respondent
no.4 has filed Revision No. 759 of 2021
before the Board of Revenue, Prayagraj. It
has also been brought on record by means
of a supplementary affidavit that the
revision so filed by the respondent no.4
before the Board of Revenue was allowed
vide a judgment and order dated 8.10.2021
and by the aforesaid order, the Board of
Revenue has set aside the order dated
3.3.2021
passed
by
Additional
Commissioner,
Mirzapur,
order
dated
21.3.2005
passed
by Sub
Divisional
Magistrate, Ghorawal, Sonbhadra and order
10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
963
dated 20.1.2005 passed by Tehsildar,
Ghorawal, Sonbhadra and remanded the
matter to the trial court i.e. Tehsildar,
Ghorawal, Sonbhadra to decide afresh
within a period of six months.

9. It has been further contended by
learned
counsel
appearing
for
the
respondents that as per paragraph No.13 of
the No Objection Certificate, in case any
dispute is pending before any court in
respect to the land where outlet is to be
established, the No Objection Certificate
will be deemed to be cancelled. Since, there
is a dispute pending regarding the land in
dispute between the petitioner and the
respondent no.4, therefore, the respondent
No.3
has
rightly
cancelled
the
No
Objection Certificate.

10.

The
learned
counsel
for
respondent no.4 as well as counsel
appearing for the respondent nos.1 and 2
and learned Standing counsel appearing for
the respondent no.3 contended that the
order dated 18.11.2020 passed by the
respondent
no.3
cancelling
the
No
Objection Certificate granted earlier was
passed in exercise of powers under Rule
150 of the Petroleum Rules, 2002 and the
petitioner has a statutory alternative remedy
of appeal under Rule 154(2) of the
Petroleum Rules, 2002 and, as such, the
present writ petition is not maintainable.

11. The learned counsel for the
petitioner in reply has submitted that
against the order dated 8.10.2021 passed by
the Board of Revenue, a writ petition has
been filed by the petitioner being Writ
Petition No.2185 of 2021 and in the
aforesaid writ petition by means of interim
order dated 3.1.2022, the Hon'ble High
Court has stayed the order dated 8.10.2021
passed by the Board of Revenue and the
aforesaid writ petition is pending. It was
further contended by learned counsel for
the petitioner that after the order dated
20.01.2005
passed
by
the
Tehsildar,
Ghorawal, Amravati executed sale deed
dated 24.01.2005 in favour of Amresh
Chand and others. After execution of sale
deed, Amresh Chand and others intervened
in
mutation
proceeding
and
during
pendency of proceedings, respondent No.4
and his brothers compromised the matter
and accepted the claim of Amravati and
sale deed executed by Amravati. Thereafter
name of Amresh Chand and others was
mutated in revenue records. The respondent
no.4 did not take any steps till the year
2020 and it was only when the retail outlet
was allotted to the petitioner and a request
for No Objection Certificate was made, the
respondent no.4 has moved an application
for recall of order on frivolous grounds.
Other brothers of respondent no.4 did not
join the respondent in filing the recall
application
and
have
accepted
the
compromise. Learned counsel for the
petitioner further contended that after the
interim order was granted by this Hon'ble
Court vide order dated 20.1.2021, the
respondent no.3, the District Magistrat,
Sonbhadra has passed an order dated
17.2.2021 by which the No Objection
Certificate dated 13.10.2020 was revived
till further order and the order dated
17.1.2021 was made subject to final order
passed in Writ Petition No. 26239 of 2022
(the present writ petition). It has been
further contended by learned counsel for
the petitioner that as the No Objection
Certificate was revived, the petitioner has
invested a huge amount in establishing the
retail outlet and the same is being run by
the petitioner.

12. It has also been contended by
learned Counsel for the petitioner that the
964 INDIAN LAW REPORTS ALLAHABAD SERIES
present writ petition was entertained by this
Court, affidavits have been exchanged by
the parties and as there is no factual
controversy in the matter in dispute, no
useful purpose will be served by relegating
the petitioner to avail the alternative
remedy after the lapse of three years. So far
as maintainability of the present petitioner
on the ground of availability of alternative
remedy, learned counsel for the petitioner
has
submitted
that
since
the
order
impugned has been passed in violation of
the principles of natural justice, the
availability of alternative remedy of appeal
under Rule 154(2) of 2002 Rules will not
be a bar for entertaining the present writ
petition.

13.

Before
adverting
to
the
contentions raised by the learned counsel
for the parties, it will be appropriate to look
into the provisions of law under which the
No Objection Certificate is being granted.
In this connection, it will be relevant to
note that section 3 of the Petroleum Act,
1934 provides that no person shall import,
transport or store, any petroleum save in
accordance with the rules made under
section 4. Section 3 of the Petroleum Act,
1934 is quoted as under:-

3. Import, transport and storage of
petroleum.-

(1) No one shall import, transport or
store any petroleum save in accordance
with the rules made under section 4.

(2) Save in accordance with the
conditions of any licence for the purpose
which he may be required to obtain by rules
made under section 4, no one shall import
[petroleum Class A], and no one shall
transport or store any petroleum.

14. Section 4 of the Petroleum Act,
1934 provides for rules for the import,
transport and storage of petroleum.
Section 4 of the Petroleum Act, 1934 is
quoted as under :-

4. Rules for the import, transport
and storage of petroleum.-The [Central
Government] may make rules-

(a) .......

(b) .......

(c) .......

(d) .......

(e) .......

(f) regulating the places at which
and prescribing the conditions subject to
which petroleum may be stored;

(g) specifying the nature, situation
and condition of all receptacles in which
petroleum may be stored;

(h)
prescribing
the
form
and
conditions of licences for the import of 12
[petroleum
Class A],
and
for
the
transport or storages of any petroleum,
the manner in which applications for
such
licences
shall
be
made,
the
authorities
which
may
grant
such
licences and the fees which may be
charged for such licences;

(i) .......

(j) .......

(k) .......

(l) .......

15. Clause (f), (g) and (h) of Section
4 of the Petroleum Act, 1934 provides
that the Central Government may make
rules regulating the places at which and
prescribing the conditions subject to
which petroleum be stored, specifying the
nature, situation and condition of all
receptacles in which petroleum be store,
prescribing the form and conditions of
licenses for the import of (petroleum Class
A), and for the transport or storage of any
petrolem, the manner in which applications
for such licenses shall be made, the
10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
965
authorities which may grant such licenses
and the fees which may be treated for such
licences.

16. In exercise of powers conferred
under Section 4 of the Petroleum Act, 1934,
Petroleum Rules, 2002 has been framed by
the Government of India. Rule 144 of the
Petroleum Rules, 2002 provides for grant
of No Objection Certificate. Rule 144 of
the Petroleum Rules, 2002 is quoted as
under:-

144.
No-objection
certificate.-(1)
Where the licensing authority is the Chief
Controller or the Controller, as the case
may be, an applicant for a new licence
other than a licence in Forms III, XI, XVII,
XVIII or XIX shall apply to the District
Authority with two copies of the site-plan
showing the location of the premises
proposed to be licensed for a certificate to
the effect that there is no objection, to the
applicant receiving a licence for the site
proposed and the District Authority shall, if
he sees no objection, grant such certificate
to the applicant who shall forward it to the
licensing authority with his application
Form IX.

(2) Every certificate issued by the
District Authority under sub-rule (1) shall
be accompanied by a copy of the plan of
the proposed site duly endorsed by him
under his official seal.

(3) The Chief Controller or the
Controller, as the case may be, may refer
an
application
not
accompanied
by
certificate granted under sub-rule (1) to the
District Authority for his observations.

(4) If the District Authority, either on a
reference being made to him or otherwise,
intimates, to the Chief Controller or the
Controller, as the case may be, that any
licence which has been applied for should
not, in his opinion, be granted, such licence
shall not be issued without the sanction of
the Central Government.

(5)
The
District Authority shall
complete his inquiry for issuing no
objection certificate (NOC) under sub-rule
(1) and shall complete the action for issue
or refusal of the NOC, as the case may be,
as expeditiously as possible but not later
than three months from the date of receipt
of application by him.

(6) Where the location of storage of
petroleum is within the notified area of a
Port or Airport under the control of the
state, or establishment of Indian Space
Research Organisation or Department of
Atomic
Energy,
NO
OBJECTION
CERTIFICATE from the District Authority
referred to in sub-rules (1) to (5) shall not
be required :

Provided
that
consent
for
establishment of petroleum storage from
the competent authority of concerned
notified area or head of the establishment,
as the case may be, is obtained.

(7) The district authority shall issue a
no objection certificate in the following
proforma, namely :-

PROFORMA

NO OBJECTION CERTIFICATE

(See rule 144)

No.............

Date...........

Subject:- No objection certificate

With reference to the application
No..........dated...........submitted
by..........and in pursuance of rule 144 of
the Petroleum Rules, 2002, there is no
objection for granting licence under the
Petroleum
Rules,
2002
to
Shri/Smt./M/s............address............for
storage of petroleum products in their
premises
at
Survey
No............/Gat
966 INDIAN LAW REPORTS ALLAHABAD SERIES
No............/Khasra
No...........Plot
No............Village.............Taluka/Tehsi
l.............District.............State............
as shown in the site plan duly endorsed and
enclosed herewith.

(1) The following particulars have
been considered while issuing this no
objection certificate, that-

(a) possession of the site by the
applicant is lawful and authorisation from
land owner or lease holder for developing
premises under these rules for storage of
petroleum products;

(b) interest of public, specially the
facilities
like
schools,
hospitals
or
proximity to places of public assembly and
the mitigating measures, if any, is provided;

(c) traffic density and impact on
traffic;

(d) conformity of proposal to the local
or area development planning;

(e) accessibility of the site to fire
tenders
in
case
of
emergency
and
preparedness of fire services for combating
the emergencies;

(f) genuineness of purpose;

(g) any other matter pertinent to public
safety;

Signature of the district authority
issuing no objection certificate with his
office
seal
(in
towns
having
a
Commissioner of Police, the Commissioner
or a Deputy Commissioner of Police and
for any other place the District Magistrate).

Note.- The licensing authority shall
accept the no objection certificate within a
period of three years from the date of its
issue for considering grant of licence.]

17. Rule 150 of the Petroleum Rules,
2002 provides for cancellation of No
Objection Certificate. Rule 150 of the
petroleum rules is quoted as under:-

150. Cancellation of no-objection
certificate.-(1) A no-objection certificate
granted under rule 144 shall be liable to be
cancelled by the District Authority or the
State Government, if the District Authority
or the State Government is satisfied, that
the licensee has ceased to have any right to
use the site for storing petroleum:

Provided that before cancelling a noobjection certificate, the licensee shall be
given a reasonable opportunity of being
heard.

(2) A District Authority or a State
Government cancelling a no-objection
certificate shall record, in writing, the
reasons for such cancellation and shall
immediately furnish to the licensee and to
the licensing authority concerned, copy of
the order cancelling the no-objection
certificate.

18. Rule 154 of the Petroleum Rules,
2002 provides for appeals. As per sub-rule
(2) of Rule 154, an appeal against any order
of the District Authority, refusing to grant
or cancelling a No Objection Certificate
shall lie to the authority which is
immediately superior to the said District
Authority. Rule 154 of the Petroleum
Rules, 2002 is quoted as under :-

154. Appeals.-(1) An appeal shall lie
against any order refusing to grant, amend
or
renew
a
licence
cancelling
or
suspending a licence to-

(i) .......

(ii) .......

(iii) .......

(iv) .......

(2) An appeal against any order of the
District Authority refusing to grant or
cancelling a no-objection certificate shall
lie to the authority which is immediately
superior to the said District Authority.
10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
967

(3) Every appeal shall be in writing
and shall be accompanied by a copy of the
order appealed against and shall be
presented within sixty days of the order
passed.

1[(4) The Appellate Authority shall
dispose of the appeal within 60 days of
receipt of the appeal]

19. There is no dispute that sub-rule
(2) of Rule 154 of the Petroleum Rules,
2002 provides for an appeal against the
order of the District Authority, cancelling
the No Objection Certificate, which is
statuary in nature. It is equally well settled
that the availability of an alternative
remedy does not prohibit the High Court
from entertaining the writ petition in
appropriate cases. Constitutional Bench of
the Apex Court in case of State of UP Vs.
Mohammad Nooh reported in AIR 1958
SC 86 in paragraph Nos.10 and 11 has held
as under :-

10. In the next place it must be borne in
mind that there is no rule, with regard to
certiorari as there is with mandamus, that
it will lie only where there is no other
equally effective remedy.
It
is
well
established that, provided the requisite
grounds exist, certiorari will lie although a
right of appeal has been conferred by
statute, (Halsbury's Laws of England, 3rd
Ed., Vol. 11, p. 130 and the cases cited
there). The fact that the aggrieved party
has another and adequate remedy may be
taken into consideration by the superior
court in arriving at a conclusion as to
whether it should, in exercise of its
discretion, issue a writ of certiorari to
quash the proceedings and decisions of
inferior courts subordinate to it and
ordinarily the superior court will decline to
interfere until the aggrieved party has
exhausted his other statutory remedies, if
any. But this rule requiring the exhaustion
of statutory remedies before the writ will be
granted is a rule of policy, convenience and
discretion rather than a rule of law and
instances are numerous where a writ of
certiorari has been issued in spite of the
fact that the aggrieved party had other
adequate legal remedies. In the King v.
Postmaster General Ex parte Car-michael,
(1928) 1 KB 291, a certiorari was issued
although the aggrieved party had an
alternative remedy by way of appeal. It has
been held that the superior court will
readily issue a certiorari in a case where
there has been a denial of natural justice
before a court of summary jurisdiction. The
case of Rex v.Wadsworth Justices Ex parte
Read, (1942) 1 KB 281 is an authority in
point. In that case a man had been
convicted
in
a
court
of
summary
jurisdiction
without
giving
him
an
opportunity of being heard. It was held that
his remedy was not by a case stated or by
an appeal before the quarter sessions but
by application to the High Court for an
order of certiorari to remove and quash the
conviction. At page 284 Viscount Caldecote
C.J. observed:

" It remains to consider the argument
that the remedy of certiorari is not open to
the
applicant
because
others
were
available. It would be ludicrous in such a
case as the present for the convicted person
to ask for a case to be stated. It would
mean asking this court to consider as a
question of law whether justices were right
in convicting a man without hearing his
evidence. That is so extravagant an
argument as not to merit a moment's
consideration. As to the right of appeal to
quarter sessions, it may be that the
applicant could have had his remedy if he
had pursued that course, but I am not
aware of any reason why, if in such
circumstances as these, he preferred to
968 INDIAN LAW REPORTS ALLAHABAD SERIES
apply for an order of certiorari to quash his
conviction, the court should be debarred
from granting his application."

Likewise in Khurshed Modi v. Rent
Controller, Bombay AIR (1947) Bom 46, it
was held that the High Court would not
refuse to issue a writ of certiorari merely
because there was a right of appeal. It was
recognized that ordinarily the High Court
would require the petitioner to have
recourse to his ordinary remedies, but if it
found that there had been a breach of
fundamental principles of justice, the High
Court would certainly not hesitate to issue
the writ of certiorari. To the same effect are
the following observations of Harries C.J.
in Assistant Collector of Customs v.
Soorajmull Nagarmul (1952) 56 CWN 453,
467 at page 470:

" There can, I think, be no doubt that
Court can refuse to issue a certiorari if the
petitioner has other remedies equally
convenient and effective. But it appears to
me that there can be cases where the court
can and should issue a certiorari even
where such alternative remedies are
available. Where a Court or Tribunal,
which is called upon to exercise judicial or
quasi-judicial functions discards all rules
of natural justice and arrives at a decision
contrary to all accepted principles of
justice then it appears to me that the court
can and must interfere."

It has also been held that a litigant
who has lost his right of appeal or has
failed to perfect an appeal by no fault of his
own may in a proper case obtain a review
by certiorari. (See Corpus Juris Secundum
Vol. 14, art. 40, p. 189). If, therefore, the
existence of other adequate legal remedies
is not per se a bar to the issue of certiorari
and if in a proper case it may be the duty of
the superior court to issue a writ of
certiorari to correct the errors of an
inferior court or tribunal called upon to
exercise judicial or quasi-judicial functions
and not to relegate the petitioner to other
legal remedies available to him and if the
superior court can in a proper case
exercise its jurisdiction in favour of a
petitioner who has allowed the time to
appeal to expire or has not perfected his
appeal, e.g., by furnishing security required
by the statute, should it then be laid down
as an inflexible rule of law that the
superior court must deny the writ when an
inferior court or tribunal by discarding all
principles of natural justice and all
accepted rules of procedure arrived at a
conclusion which shocks the sense of
justice and fair play merely because such
decision has been upheld by another
inferior court or tribunal on appeal or
revision? The case of In re, Authers (1889)
LR 22 QBD 345 referred to in Janardan
Reddy's case, (1951) SCR 344 furnishes the
answer. There the manager of a club was
convicted under a certain statute for selling
beer by retail without an excise retail
license. Subsequently he was convicted of
selling intoxicating liquor, namely, beer
without a license under another statute.
Upon hearing of the later charge the
magistrate treated it as a second offence
and imposed a full penalty authorised in
the case of a second offence by the latter
statute. His appeal to the quarter sessions
having been dismissed, he applied for a
writ of habeas corpus and it was granted
by the King's Bench Division on the ground
that the magistrate could not treat the later
offence as a second offence, because it was
not a second offence under the Act under
which he was convicted for the second
time. Evidently the point was taken that if
there had been any error, irregularity or
illegality committed by the magistrate, the
quarter sessions could have on appeal
corrected the same and that the quarter
sessions having dismissed the appeal the
10 All. Smt. Rekha Mishra Vs. H.P.C.L. Mumbai & Ors.
969
court of Queen's Bench Division could not
issue the writ of habeas corpus. This was
repelled by the following observation of
Hawkins J.:

" This is true as a fact, but it puts the
prosecution in no better position, for if the
magistrate had no power to give himself
jurisdiction by finding that there had been a
first offence where there had been none, the
justices could not give it to him."

11. On the authorities referred to
above it appears to us that there may
conceivably be cases-and the instant case
is in point-where the error, irregularity or
illegality touching jurisdiction or procedure
committed by an inferior court or tribunal
of first instance is so patent and loudly
obtrusive that it leaves on its decision an
indelible stamp of infirmity or vice which
cannot be obliterated or cured on appeal or
revision. If an inferior court or tribunal of
first
instance
acts
wholly
without
jurisdiction or patently in excess of
jurisdiction or manifestly conducts the
proceedings before it in a manner which is
contrary to the rules of natural justice and
all accepted rules of procedure and which
offends the superior court's sense of fair
play the superior court may, we think, quite
properly exercise its power to issue the
prerogative writ of certiorari to correct the
error of the court or tribunal of first
instance, even if an appeal to another
inferior court or tribunal was available and
recourse was not had to it or if recourse
was had to it, it confirmed what ex facie
was a nullity for reasons aforementioned.
This would be so all the more if the
tribunals holding the original trial and the
tribunals hearing the appeal or revision
were
merely
departmental
tribunals
composed of persons belonging to the
departmental hierarchy without adequate
legal training and background and whose
glaring lapses occasionally come to our
notice. The superior court will ordinarily
decline to interfere by issuing certiorari
and all we say is that in a proper case of
the kind mentioned above it has the power
to do so and may and should exercise it. We
say no more than that.

20. Again the Hon'ble Apex Court in
case
of
Whirlpool
Corporation
Vs.
Registrar of Trade Marks, Mumbai and
others reported in (1998) 8 SCC 1, (in
Paragraph Nos.14 and 15 of the Judgment
at Page 9 & 10) has held that alternative
remedy would not operate as a bar in at
least three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of principle of natural justice or where
order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. Paragraph Nos. 14 and 15 of
the judgment in case of Whirlpool
Corporation (supra) is quoted as under :-

14. The power to issue prerogative
writs under Article 226 of the Constitution
is plenary in nature and is not limited by
any other provision of the Constitution. The
power can be exercised by the High Court
not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the
enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for "any other
purpose".

15.
Under
Article
226
of
the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
970 INDIAN LAW REPORTS ALLAHABAD SERIES
Court would not normally exercise its
jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or where
there has been a violation of principle of
natural
justice
or
where
order
or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There
is a plethora of case-law on this point but
to cut down this circle of forensic
whirlpool, we would rely on some old
decisions of the evolutionary era of the
constitutional law as they still hold the
field."

21. Recently in case of Uttar Pradesh
Power Transmission Corporation Ltd and
another Vs. CG Power and Industrial
Solutions Ltd and another reported in
(2021) 6 SCC 15, (in paragraph 67 of the
judgment at Page 52), the Apex Court has
held as under :-

67. It is well settled that availability of
an alternative remedy does not prohibit the
High Court from entertaining a writ
petition in an appropriate case. The High
Court may entertain a writ petition,
notwithstanding the availability of an
alternative remedy, particularly (1) where
the writ petition seeks enforcement of a
fundamental right; (ii) where there is
failure of principles of natural justice or
(iii) where the impugned orders or
proceedings are wholly without jurisdiction
or (iv) the vires of an Act is under
challenge. Reference may be made to
Whirlpool Corporation v. Registrar of
Trade Marks, Mumbai and Ors. reported in
AIR 1999 SC 22 and Pimpri Chinchwad
Municipal
Corporation
and
Ors
Vs.
Gayatri Construction Company and Ors,
reported in (2008) 8 SCC 172, cited on
behalf of Respondent No.1.

22. Again in case of Ghanashyam
Mishra and Sons Private Ltd through the
Authorised Signatory Vs. Edelweiss Asset
Reconstruction Company Ltd through the
Director and others reported in (2021) 9
SCC 657 (in Paragraph 137 at Page 726),
the Apex Court has reiterated the same
which is quoted as under :-

"137. As held by this Court in catena
of cases including

in the cases of Babu Ram Prakash
Chandra Maheshwari

vs. Antarim Zilla Parishad Muzaffar
Nagar reported in AIR 1969 SC 556,
Whirlpool Corporation vs.