Chief Justice's Court
Case :- WRIT - C No. - 10959 of 2018 Petitioner :- Prabhat Chandra Tripathi Respondent :- Union Of India And 04 Others Counsel for Petitioner :- Bhagi Rathi Tiwari Counsel for Respondent :- A.S.G.I.,Tarun Varma
Hon'ble Dilip B. Bhosale,Chief Justice Hon'ble Suneet Kumar,J.
Heard Mr. Bhagi Rathi Tiwari, learned counsel for the petitioner and Mr. Tarun Varma, learned counsel for respondent Nos. 2 to 4.
This petition seeks the following reliefs:
"(i) Issue a writ order or direction in the nature of certiorari quashing the impugned orders dated 19.12.2017 (Annexure-1) and 03.02.2018 (Annexure-2), including results dated 26.02.2013 and 24.02.2014.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondents (2, 3 & 4) to declare the land of the respondent no. 5 unsuitable for retail outlet in question in view of lease deed and advertisement dated 26.10.2011."
By impugned orders, the petitioner's complaints dated 19.4.2014 and 22.06.2014 have been rejected on the basis of the findings recorded by the revenue authorities. The grievance made, as reflected in the impugned order dated 19.12.2017, reads thus:
"i. To fulfill the NH requirement of 30m (ROW-60m) from middle of the road about 12m land has to be left, then plot size of Shri Pramod Shankar Dubey shall remain 35m front x 23m in depth. Hence the proposed plot/land size by Shri Pramod Shankar Dubey is against the requirement of IOCL advertisement and laid down guideline fixed by NHAI and MORTH to set up new Retail Outlet of Diesel/Petrol on National Highways road. Therefore the plot/land size proposed by Shri Promod Shankar Dubey is unsuitable.
ii. If it is presumed that Shri Pramod Shankar Dubey has taken 1225 sq mtrs (35m front x 35m depth) after leaving 12m of the actual land area 2556 sq mtrs at road side i.e. Eastern side. In this his proposed plot/land does not fall on the road NH-330. Since the 12m land adjacent to road belongs to actual owner, though right to take this land is NHAI/PWD for road widening but after giving the compensation to actual owner. Hence proposed plot/land size (35m x 35m) by Shri Pramod Shankar Dubey is again against the requirement of IOCL advertisement and laid down guideline fixed by NHAI and MORTH to set up new Retail Outlet of Diesel/Petrol on National Highways road. Therefore, the plot/land size proposed by Shri Pramod Shankar Dubey is unsuitable."
The allegations of the petitioner were investigated by the Vigilance Department. It appears that in the course of investigation, the concerned Vigilance Officer also gave opportunity to the petitioner of hearing and he recorded findings as under:
"i. SDM-Patti, Dist. Pratapgarh vide letter ref. 1524/S.T-2015 dated 14.04.2015 based on the report of Tehsildar-Patti has clarified that the land leased to Pramod Shankar Dubey has a frontage and depth of 35m each and that the said land is available physically and in revenue records. The leased land is 17.6m form the centre of the road as per Revenue records and 30m as per PWD. The land leased to Shri Pramod Shankar Dubey starts at 30m from the centre of the road and is abutting the road. Gata no. 2 leased to Pramod Shankar Dubey is abutting the Pratapgarh-Sultanpur Road and the land was leased to him for setting up a Retail Outlet (which is also enshrined in the lease deed) after leaving the PWD ROW.
ii. The matter pertaining to the 2nd allegation was an 'interpretation of policy' issue and the Head of the Functional Department i.e. Retail Sales at Head Office in this case was the Competent Authority to clarify the issue. Hence the issue was referred to the Functional Department who vide their letter dated 08.02.2017, clarified that as such the land between the current ROW as per revenue map (17.6 mtrs from the road centre) and the 30m ROW of NH, is due for acquisition and shall merge in the road. Based on this principle, applications to MORTH are made showing the plot starting at 30m from road centre.
However, till such time, the plot is acquired, a strip of land belonging to the land owner shall be there, through which the land owner needs to provide access to the RO. Since this portion is not part of the offered land, the consent for access could be obtained by Land Evaluation Committee. Subsequent to this clarification the matter was again referred back to the Functional department asking them to review their clarification. The Functional Department vide their letter dated 14.12.2017 have reiterated their earlier clarification and have clarified that the Executive Director, UPSO-I vide note dated 11.05.2015 has duly recommended that the land offered by Shri Pramod Shankar Dubey is meeting the requirement of the advertisement, based on the report dated 14.04.2015 from Sub Divisional magistrate, Patti, Pratapgarh, the appropriate authority on matters of land.
Since the revenue authorities of the State are the Competent Authority to decide any matter pertaining to the land and in the instant case, Sub- Divisional Magistrate, Patti has clarified that the land leased to Pramod Shanker Dubey has a frontage and depth of 35m each and that the said land is available physically and in revenue records. The leased land is 17.6m from the centre of the road as per Revenue records and 30m as per PWD. The land leased to Shri Pramod Shankar Dubey starts at 30m from the centre of the road and is abutting the road. Gata no. 2 leased to Pramod Shankar Dubey is abutting the Pratapgarh-Sultanpur Road and the land was leased to him for setting up a Retail Outlet (which is also enshrined in the lease deed) after leaving the PWD ROW.
Since, the above confirmation has given in writing by SDM, Patti District- Pratapgarh, the same is accepted."
Having regard to the nature of controversy and the manner in which it has been dealt with by the concerned authority, we do not find any reason to interfere with the same. In any case, this Court cannot enter into disputed questions of fact and examine the same in a writ jurisdiction under Article 226 of the Constitution of India. Petition is dismissed.
Order Date :- 27.3.2018 VMA (Dilip B Bhosale, CJ) (Suneet Kumar, J)