AMIR HANI MUSLIM, J.---Through this Petition, the petitioner has challenged the order of the Respondent No,1 passed on 14-11-2003 cancelling the 'No Objection Certificate' of the petrol pump of the petitioner. From the pleadings of the parties, it appears that the petitioner claims to be the owner of two acres of land in Survey No,177 in Deh Tando Ghulam Ali Taluka Matli, District Badin, in his exclusive possession for the last many years, besides another four acres of land in Survey No,34/3 in Deh Tando Ghulam Ali, Taluka Matli, District Badin by virtue of a registered sale-deed with the Sub-Registrar Matli. The record further shows that at the representation of the petitioner, the land was partitioned by the D.D.O. On 28-5-2003 after conducting requisite enquiry. After the land was partitioned the concerned Mukhtiarkar had effected mutation of the land in the records of right in favour of the Petitioner.
2. The Petitioner entered into an agreement with Shell Pakistan Limited-and by virtue of the said agreement started raising construction of the petrol pump on the land purchased and partitioned by him. Prior to entering into the agreement with Shell Pakistan, the Petitioner obtained N.O.C. For installation of petrol pump through Shell which N.O.C. Was granted on 11-3-2003. The construction work on the petrol pump was completed. The record further shows that the N.O.C. Granted on 11-3- 2003 was cancelled by the Respondent No,1 by his order dated 7-4-2003 without prior notice to the Petitioner but on account of intervention of the respectable people of the area the Respondent No,1 on 21-5-2003 restored the N.O.C. Recalling the cancellation order.
3 After some time the Petitioner was again threatened by the Respondent No,1 to cancel the N.O.C.
Which compelled the Petitioner to approach the Circuit Bench of this Court at Hyderabad in Constitutional Petition No,D-135/2003. The Petitioner claims that after filing of the said Petition the Respondent No,1 vide his letter of31-5-2003 cancelled the N.O.C. Of the petrol pump without assigning reasons and without prior notice to the Petitioner.
4. The petitioner has pleaded that the Constitutional Petition 'No,D-135 of 2003 was disposed of by the Circuit Bench of this Court at Hyderabad on 3-9-2003 on the basis of a statement of the learned Addl. A.-G. That the Respondent No,1 would be withdrawing the order of cancellation of the N.O.C. In view of the said statement of the Addl. Advocate-General the petitioner did not press the petition which was accordingly disposed of and the order cancelling the N.O.C. Was subsequently recalled by letter dated 6-10-2003 of the Respondent No, 1.
5. The record further reveals that the Respondent No,3 preferred an appeal on 12-7-2003 before the District Officer (Revenue) challenging the order of partition of the land dated 28-5-2003 of the D.D.O. Matli which form subject-matter of this petition which appeal of the Respondent No,3 was dismissed. However, during the pendency of the above referred Appeal of the Respondent No,3 before the District Officer (Revenue), an application was made by the Respondent. No,3 before the Respondent No,1 challenging the title of the Petitioner on the portion of land, on which the petrol pump of the Petitioner is constructed. In the application, the respondent No,3 had requested the respondent No,1 to order ejectment of the Petition and get vacated the land on which the petrol pump was, constructed. The respondent No,1 entertained the application of the respondent No,3 by issuing notice. The petitioner appeared before the respondent No,1 and who orally informed him that he was not satisfied with the petitioner's claim of ownership and on 14-11-2003 the Respondent.
No,1 had again cancelled the N.O.C. Of the petrol pump which order of the Respondent No,1 has been impugned in the petition.
6. According to the petitioner's counsel after the filing of the present petition, the concerned E.D.O.
Had passed an order in appeal filed by the respondent No,3 holding therein that the order of the partition was proper and no infirmity was found by him in the order of the District Officer (Revenue) dismissing the application of the respondent No,3 in the partition matter. It has been submitted by the learned counsel for the petitioner that the respondent No,1 has never communicated the order dated 14-11-2003 and the petitioner only came to know about the impugned order when Shell Pakistan received a letter from the Ministry of Industries and Production, Department of Explosives, Government of Pakistan. In which it was stated that the respondent No,1 on 14-11-2003 had cancelled the N.O.C. Of the petrol pump. Copy of the said letter and the order of the E.D.O. Referred to hereinabove have been placed before us during the arguments.
7. Mr. Arifin has submitted that the respondent No,1, in law, had no authority to resolve the title dispute and Rule 130 of the Petroleum Rules, 1985 does not empower the respondent No,1 to cancel the N.O.C. Of a petrol pump on the representation of the respondent No,3. The respondent No,3 having lost the appeal and revision preferred by him in respect of the land in question on which the petrol pump was functioning could not approach the respondent No,1, to seek cancellation of the N:O.C. Of the petrol pump, inter alia, on the ground of title of the land. He submitted that the respondent No,3 happens to be political figure and exercises undue influence upon the respondent No,1 who has his affiliations with the same political party and, therefore, the respondent No,1 in order to favour the petitioner has passed erroneous orders against the interest of the petitioner. He submitted that the question of title falls outside the purview of the Zila Nazim and the N.O.C. Cannot be cancelled on such a ground raised by the Respondent No,3. He submitted that the Zila Nazim has abused his authority by cancelling the N.O.C. Of the petrol pump by exercising powers under Rule 130.
8. As against this the Counsel for the respondent No, l. Submitted that if there is a dispute in regard to ownership, the respondent No,1 was fully competent to order cancellation of the N.O.C. The counsel appearing for the respondent No,3 submitted that the respondent No,3 is' a co-owner of the entire Survey No,177 and unless the land was lawfully partitioned, it cannot be held that the land is owned by the petitioner and, therefore, the respondent No,1 was justified in law to cancel the N:O.C. In exercise of powers conferred under Rule 130.
9. We have heard the learned counsel and have gone through the record. The Respondent No, 1 has the authority to cancel the NOC of a petrol pump in terms of Rule 130 of the Petroleum Rules, 1985 if he is satisfied that the licensee has ceased to have any right to the site for A storing the Petroleum.
For the sake of convenience Rule 130 of the Petroleum Rules, 1985 is reproduced herein below:-- "130. Cancellation of No Objection Certificate.---(1) A No Objection Certificate shall be liable to be cancelled by the District Authority or the Federal Government if the District Authority or the Federal Government is satisfied that the licensee has ceased to have any right, to the site for storing petroleum: Provided that before cancelling a No Objection Certificate the licensee shall be given reasonable opportunity of being heard.
(2) A District Authority or the Federal Government cancelling the No Objection Certificate shall record in writing the reasons for such cancellation and shall immediately furnish to the licensee and the licensing Authority concerned a copy of the order cancelling the No Objection Certificate."
10. From the plain reading of the aforesaid rule, the question of title of the land on which the petrol pump has been constructed by the petitioner, cannot be gone into by the Zila Nazim under the garb of the aforesaid rule. The functions and powers of the Zila Nazim has been ' mentioned under the Sindh Local Government Ordinance, 2001 and by the said statute, he is authorized to grant or cancel N.O.C. Of petrol pump which powers were previously exercised by the Deputy Commissioner/District Magistrate. Such powers are however, limited and do not authorize the Zila Nazim to encroach upon the powers of the Revenue Official to examine the validity of an order passed under the hierarchy of the revenue law in terms of the Land. Revenue Act. The Revenue Officers exercise their authority by virtue, of Land Revenue Act B and, the respondent No,1 cannot pass an order overlooking and/or ignoring the order of a Revenue Officer in regard to the title of the land. If a matter is under litigation before the Revenue Authority the Zila Nazim in exercise of powers under Rule 130 cannot order cancellation of the N.O.C. Merely on the ground that the title of land was in dispute. The word "satisfied" used in Rule 130 would mean objective satisfaction and not subjective in nature. Mere dispute raised by one party on the land on which the petrol pump was already functioning can hardly be made a justifiable ground to cancel the N.O.C. Of the petrol pump. The Zila Nazim has no authority under the Petroleum Rules, 1985 to decide the title of land between the two litigating private parties. Moreover there was hardly any material before the respondent No,1 to order cancellation of the N.O.C. Once a registered instrument showing the petitioner as owner was placed before him by the Petitioner. Under section 39 of the Specific Relief Act even the Revenue Authority cannot ignore and or overlook a registered instrument while exercising their powers under the Land Revenue Act as a registered instrument can only be cancelled by filing a suit in a Civil Court of law.
11. The conduct of the respondent No,1 was regrettable as within one year he had passed 3 orders one after the other, cancelling the N.O.C. Of the petrol pump which prima facie shows that he had abused his authority by exercising powers under Rule 130. The public functionaries are accountable in law and orders of the nature can expose them to consequential penalties. The public functionaries including Zila B Nazim are bound to respect and could not be given licence to deprive the lawful rights of parties with the malicious intent to give favour to the political figures by exercising powers in such manner which the law does not recognize.
12. In the instant proceedings we have noticed that the respondent No,1 has acted in excess of his authority and had passed the orders of cancellation of the N.O.C. Not once but three times and no explanation justifying such orders has been given. Excessive use of power is also without jurisdiction. The Zila Nazim has exercised powers under Rule. 130 by cancelling the N.O.C. Of the Petitioner on the ground of title of land ex facie, amounts to abuse .Of authority.
13. We, therefore, for the aforesaid reasons by our short order of 15-4-2004 had allowed this petition holding that the impugned order of the respondent No,1 cancelling the N.O.C. Of the petrol pump was without lawful authority.