Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2968 of 2013 ====================================================== Rishi Raj S/O Sri Shyam Babu Prasad R/O Village- Kesariya, Post Office & Police Station- Kesariya, District- East Champaran Versus 1. The State Of Bihar through Principal Secretary Revenue & Land .... .... Petitioner/s Reforms Department, Bihar, Patna 2. The District Magistrate, East Champaran 3. The Sub-Divisional Officer, Chakia, East Champaran 4. The Circle Officer, Kesariya Anchal, East Champaran 5. M/S Hindustan Petroleum Corporation Ltd. Through Its Chairman & Managing Director Having Its Registered Office At 17, Jamshedji Tata Road, Mumbai-400020 6. The Senior Regional Manager, Regional Office Hindustan Petroleum Corporation Ltd., Barauni Terminal, N.H. 31 At & P.O.- Papraur, District- Begusarai .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Arun Kumar For the State : Mr. Shailendra Kr. Jha, AC to SC-14 For the HPCL : Mr. Lakshmi Narayan Das ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 3 08-04-2013 Heard learned counsel for the petitioner and
Legal Reasoning
learned counsel for the State. Learned counsel for the Hindustan Petroleum Corporation Limited is also present. The writ application has been filed for a direction to the respondent-authorities of the State to issue NOC in favour of the petitioner with respect to Plot Nos. 2772, 2773 and 2774 of Khata No. 93, Mauza Kesariya, P.S. Kesariya District- East Champaran. The petitioner, pursuant to an advertisement dated 2 Patna High Court CWJC No.2968 of 2013 (3) dt.08-04-2013 2 / 5 22.9.2011, applied for appointment of retail outlet dealer at location Kesariya in the District of East Champaran under open category and after the selection process was over the petitioner was declared successful and Letter of Intent for the retail outlet dealership of the said location was issued in his favour on 24.5.2012. On that very day the respondent-HPCL requested the District Magistrate to issue „No Objection Certificate‟ for the aforesaid lands offered by the petitioner to set up the retail outlet. The Sub-Divisional Officer, Chakia, who is the competent authority, on the basis of the report of the Circle Officer, Kesariya found that the land was admittedly within the Nagar Panchayat, Kesariya and thus outside the preview of Bihar Agriculture Land (Conversion for Non-Agriculture Purposes) Act, 2010 but subsequently on the basis of the talk on mobile phone with the Sub-Divisional Officer, Raxaul arrived at a conclusion that under the Rules, namely, the Bihar Agriculture Land (Conversion for Non-Agriculture Purposes) Rules, 2011, the conversion fee shall be payable. Accordingly, the NOC has not been issued although the Sub-Divisional Officer , Chakia is uncertain about the position as by letter dated 8.10.2012 written to the District Magistrate referring to the provisions of the Act and the Rules he has sought clear direction from the District 3 Patna High Court CWJC No.2968 of 2013 (3) dt.08-04-2013 3 / 5 Magistrate as to whether conversion fee is payable or not. Learned counsel for the petitioner submits that under Section 1(2) of the Act it has been clearly provided that it shall extend to the whole of the State of Bihar except any area constituted as a municipal area or a cantonment whereas the Rules loosely say that they shall extend to the whole of the State of Bihar but since the Act under which the Rules have been framed itself does not extend to the municipal area, there can be no application of the Rules to such area. It is thus, submitted by learned counsel that no conversion fee would be payable if the use of the said plot of land is for establishment of retail outlet and the authorities ought to be directed to issue NOC without any conversion fee. Learned counsel for the State fairly submits that in view of the fact that the Act itself is not applicable to the municipal area and the Rules have been framed under the Act, no conversion fee can be demanded for the land in question. Section 1(2) of the Act reads as follows:- “It shall extend to the whole of the State of Bihar except any area constituted as a municipal area under the Bihar Municipal Act, 2007 or part thereof or which is under a cantonment. The extent of the Act will be the 4 Patna High Court CWJC No.2968 of 2013 (3) dt.08-04-2013 4 / 5 same as provided in the Bihar Tenancy Act, 1885.” Rule 1(ii) is in the following terms:- “It shall extend to the whole of the State of Bihar.” It is evident that the Rules themselves having been framed in exercise of the powers conferred by Section 15 of the Act, their application can only be within the area to which the Act extends and cannot apply to areas to which the Act under which they have been framed itself does not extend. The charge of conversion fee for use of agriculture land for non-agriculture purposes is provided under the Act and the Rules have been framed only for elaborating the provisions of the Act and in exercise of the powers conferred under the Act. If the principal Act itself does not extend to any municipal area then a mere statement in the Rules that they extend to the whole of the State of Bihar shall not have the effect of extending the provisions of the Rules to the said area. Any such application of the Rules beyond the purview of the Act would make them ultra vires the principal Act itself. In my view, the mention of the extent of the Rules to the whole of the State of Bihar in Rule 1(ii) has to be read in consonance with what has been provided in Section 1(2) of the 5 Patna High Court CWJC No.2968 of 2013 (3) dt.08-04-2013 5 / 5 Act and thus the same has to be read down to mean that they shall not apply to any municipal area under the Bihar Municipal Act, 2007 and the extent of the Act and the Rules would be the same as provided in the Bihar Tenancy Act, 1885. In the aforesaid view of the matter, there can be no question of demanding any conversion fee under the Act and the Rules before the NOC is issued. The writ application is, accordingly, allowed and the respondents are directed to act on the application for issuance of No Objection Certificate in the light of what has been laid down in this order. Let the decision be taken within a period of two weeks from the date of receipt/production of a copy of this order and if the petitioner is otherwise entitled to the issuance of the NOC the same shall be issued to him within the same period. S.Pandey/- (Ramesh Kumar Datta, J)