' MUKHTAR AHMED JUNEJO, J.--- Short point involved in this Constitution petition is, whether the Petrol Filling Station of Pakistan State Oil Company limited (hereinafter referred to as P.S.O.) initially sanctioned for a place 1.5 KM. From the Sukkur-Karachi National Highway (hereinafter referred to as Highway) can be installed at a place 1.17 K.M. From the Highway, if the Government of Pakistan had amended the sanction to that effect.
2. Indisputably the Government of Pakistan through the Ministry of Petroleum and Natural Resources (hereinafter referred to as the Federal Government) under a letter dated 24-1-1984 (Copy Annexure 'A') approved, at request of P.S.O., installation of M.S./H.S.D. Filling Station at the bypass road between Babarlo and Rohri at a distance of 1.5 K.M. Off the Highway. Armed with such approval, the P.S.O. Under their letter dated 21-3-1984 (Copy Annexure `B') moved the District Magistrate Khairpur (hereinafter referred to as the D.M.) for grant of No-Objection Certificate (N.O.C.) to installation of M.S./H.S.D. Filling Station by P.S.O. At said place 1.5 K.M. Off the Highway. On his turn the D.M. Under his letter dated 27-3-1984 (Copy Annexure `D') invited objections from (i) S.P.
Khairpur, (ii) Executive Engineer Highway Division Khairpur, (iii) Mukhtiarkar and F.C.M. Khaipur through his Assistant Commissioner, and (iv) the Divisional Engineer Telephone Coaxial Cable Sukkur, for installation of M.S./H.S.D. Filling Station by P.S.O. At said place at distance of 1.5 K.M. Off the Highway. Similar objections were also invited from the Deputy Director Coordinator Third IBRD/Highway Project. All the aforesaid functionaries raised no objection to installation of such M.S./H.S.D. Filling Station at said place 1.5 K.M. From the Highway (vide some of the letters copies Annexures `E-1, E-2, E-3 and E-6'). After receiving no objections from aforesaid functionaries, the D.M. Issued on 22-1-1985 the N.O.C. (copy annexure T) for installation of Petrol Pump/Filling Station at said place 1.5 K.M. Off the Highway. The Inspector of Explosives Government of Pakistan under his letter dated 24-1-1985 (copy Annexure `Ic) approved the site and constructional plan submitted by the P.S.O. For storage of Petrol and H.S.D. At the said place 1.5 K.M. Off the Highway.
3. However, the construction for the Filling Station was raised, not at the proposed place 1.5 K.M.
From the Highway, but at a different place. On receiving such complaint from one Channesar, the D.M. Issued to the P.S.O. a show-cause notice and directed the Local Assistant ommissioner and the Executive Engineer Highways to visit the site and to get the work stopped if it was being carried on at a place different from the one where the Filling Station was proposed to be installed as per the N.O.C. Viz. 1.5 K.M. Off the Highway. On finding the construction for the Filling Station being carried on at a place other than the one given in the N.O.C., the S.D.M. Got stopped the work by posting police personnel at the site on 14-3-1985.
4. P.S.O. Moved the Federal Government for amendment of the sanction on the grounds that during general survey of the site the entire area of RohriBabarloo bypass was Katcha with no stones of K.M.
Installed and that the Highway Department had advised P.S.O. That the site sanctioned for Filling Station was 1.17 K.M. Off the Highway. Accepting such representation of P.S.O., the Federal Government under a letter dated 16-5-1985 (copy Anexure 'N-1') requested the D.M. That the location of the Filling Station be read as 1.17 K.M. Off the Highway.
5. Since construction of the Filling Station was hindered by the local administration, petitioner Mumtaz Hussain, who claimed being owner of S. Nos.1035 and 1036 of Deh Babarloo where the Filling Station was to be installed, and who claimed having leased out said land to P.S.O., filed at Sukkur Circuit of this Court Constitutional Petition No,D-36 of 1985 with prayer that the respondents be restrained from obstructing construction of the Petrol Pump and from cancelling the N.O.C. Said petition was decided on 16-6-1985 in terms of a consent statement, by which the petitioner was restored the dispensing units removed from the site with condition that he would not sell petrol or diesel oil from the same in contravention of law.
6. Under his letter dated 12-6-1985 the D.M. Informed the Ministry of Petroleum Government of Pakistan that the P.S.O. Was unauthorized constructing the Filling Station at a place 1.25 K.M. From the Highway in violation of the N.O.C. Which permitted installation of Filling Station at 1.5 K.M. From the Highway and that the amendment in the sanction proposed under Government of Pakistan letter dated 16-5-1985 could not be considered due to pendency of Writ Petition No,D-36 of 1985 in the High Court. However, after disposal of said petition the D.M. Cancelled the N.O.C. On 12-6-1986 and as such the Chief Inspector of Explosives declined to amend the licence in terms of Government of Pakistan letter dated 16-5-1985. Hence this petition.
7. Mr. Musthaq Memon, learned counsel for the petitioner relying on the case of Burmah Shell Oil Storage and Distributing Co. Pakistan Ltd. And another v. The Deputy Commissioner (D.M.) Karachi Law Notes 1969 SC 25 argued that N.O.C. Once granted by the District Magistrate cannot be cancelled by him. He also referred to a circular letter dated 6-12-1962 from the Ministry of Industries, Government of Pakistan to all the Chief Secretaries of the then Provinces of Pakistan to the effect that the District authority cannot cancel or withdraw a No-Objection Certificate once granted by it, if on the strength of such N.O.C. The Chief Inspector of Explosives has granted the licence. Learned counsel referred to previous Constitutional Petition No,D-36 of 1985 disposed of on 16-6-1985 with a consent order one of the terms of which was that the petitioner would get his licence amended to show the correct location, and argued that the respondents were bound by the consent order which was made rule of the Court. It was next argued that institution of criminal case against the petitioner for the offence punishable under section 23 of the Petroleum Act at behest of the D.M. Indicated that the latter's action in cancelling the N.O.C. Was mala fide. Referring to Rule 131-A of the Petroleum Rules, 1937, learned counsel for the petitioner argued that the various functionaries acting under Chapter VII of the said Rules had to perform their duties subject to control of the Federal Government and as such the D.M. Cannot refuse to amend the N.O.C. When the Federal Government asked him to do so and that refusal by the D.M. To amend the N.O.C. In flagrant violation of Federal Government's directive was mala fide. Replying to the objection of learned A.-G. Sindh about incompetency of the petitioner to file this petition, learned counsel for the petitioner referred to the consent order dated 16-6-1985 passed in Constitutional Petition No,D- 36 of 1985 and argued that the said order gave locus standi to the petitioner to challenge cancellation of the N.O.C.
8. Mr. Nooruddin Sarki, learned counsel for the respondent No,8 supported case of the petitioner.
9. Mr. Abdul Hafcez Lakho, learned Advocate-General appearing for respondents Nos.1 to 5 vehemently opposed the petition, and argued that in the main petition, the petitioner had not given particulars of the site where the Filling Station was proposed to be installed. It was next argued that if the new site of the Filling Station was 1.7 K.M. Away from the National Highway then it must be situated within Sukkur District, where the District Magistrate, Khairpur had no jurisdiction. It was further argued that the N.O.C. Was issued by the District Magistrate, Khairpur in respect of a particular place and consequently site of the Filling Station cannot be shifted to some other place.
It was added that the N.O.C. Was issued by the D.M. Khairpur, after having obtained N.O.Cs. From the local S.P., the Executive Engineer Highways, the Deputy Director Coordinator Third IBRD/Highway Project, the S.D.M. And the Mukhtiarkar, in respect of a particular site which was 1.5 K.M. From the National Highway, and if the petitioner wanted the Filling Station at a site other than the site for which the various N.O.Cs. Were issued, then he had to move a fresh application which could be granted by the D.M. After seeking no objection of all the functionaries required to be consulted.
Learned Advocate-General further argued that the petitioner had no locus standi to file the present petitioner because he was not holder of the licence, which stood in name of P.S.O. Company. That before invoking his right, if any, in respect of the Filling Station the petitioner was first required to obtain the licence in his own name from the Ministry of Petroleum or get amended the licence in his own name from name of P.S.O. Company. It was finally argued that shift of a Filling Station from one place to another place was not so simple as to be effected through an amendment in the licence. Learned A.-G. Defended impugned action of the District Magistrate to be legal, proper and in consistency with the Rules.
10. Federal Government Circular letter dated 6-12-1962 supports first contention raised by learned counsel for the petitioner. It lays down that the district authority cannot cancel or withdraw N.O.C.
Once granted by it under the Petroleum Rules, 1937 and the Explosives Rules, 1940, if on the strength of such certificate a license has been granted by the Chief Inspector of Explosives. This direction appears to be based on the principle of Locus Penitential which means power of repenting and going back on a decision available to an authority only up to the time such decision has not been carried into effect. This principle, which is exception to section 21 of the General Clauses Act, is recognized by the Supreme Court of Pakistan in the cases of (i) Shahbaz v. Crown PLD 1956 FC 46,
(ii) G.L. Bhattacharya v. State PLD 1964 SC 508 and (iii) Burmah-Shell etc. v. Deputy Commissioner, Karachi Law Notes 1969 SC 25. In the last mentioned case, which was cited by learned counsel for the petitioner, it was observed that where a No-Objection Certificate for storage of petrol on a site having been issued by a District Magistrate under Rule 115(5) of the Petroleum Rules, 1937, was supended, such suspension does not affect operation of licence for storage of petrol duly obtained on the basis of the N.O.C. There can be no cavil with the principle of law enunciated by the aforementioned authority.
11. Under the order dated 16-6-1985 passed by a Division Bench of this Court in Constitutional Petition No,D-36 of 1985 (Constitutional Petition No,D374 of 1985 Karachi) on the basis of a consent statement in writing filed in said case, the petitioner was required to get his licence amended to show the correct location. This order was binding on the D.M. Who was respondent No,1 in said petition. After having conceded the above position it was incumbent upon the D.M. To allow fair opportunity to the petitioner to move necessary application and to consider such application after hearing the petitioner. This does not appear to have been done. Moreover after having agreed to the terms of the consent statement, it did not lie in mouth of the D.M. To challenge locus standi of the petitioner in whose land the Filling Station was being installed and who was appointed by P.S.O.
As their Dealer/Licensee for the proposed Filling Station.
12. Rule 131-A of the Petroleum Rules, 1973, cited at the Bar, lays down that every authority, other than the Central Government, acting under Chapter VII of the Petroleum Rules, 1937, shall perform his duties subject to control of the Central Government. This does not mean that a District Magistrate while exercising his discretion under Rule 115(3) of the Petroleum Rules, 1937 would blindly follow the Federal Government. This does not appear to be intention of framers of said Rules under which specific powers have been assigned to the District Magistrate with discretion to allow installation of a Filling Station or not. Hence Rule 131-A is to be read subject to Rule 115(3) which obliges the District Authority to issue Certificate of No Objection only when, he sees 'no-objection'.
13. The rule emphasizes on subjective satisfaction of the District Authority, for issuance of N.O.C. The idea behind this appears to be that a proposed site of a Petrol Filling Station is more accessible to the District Authority rather than to the officers of the Federal Government. Moreover the District Magistrate has to co- ordinate between the various departments like Police, Highways etc. Words `subject to control of Central Government' appearing in Rule 131-A, do not curtail power of the authority issuing N.O.C. Under Rule 115(3). Had the intention been otherwise, the Federal Government would have retained the power to issue N.O.C. Power of the Chief Inspector of Explosives is again controlled by the District Authority by virtue of sub-rule (5) of Rule 115 of said Rules. Former cannot issue a license in case of any opposition from the latter. Although the District Authority was not bound to make amendment in the No-Objection Certificate, on the basis of Government of Pakistan letter dated 16-5-1985, but he was supposed to reconsider the issue in the light of said letter.
13. On appraisement of the facts and circumstances of this case, it is clear that P.S.O. Company was granted 'approval' by the Federal Government and 'No-Objection Certificate' by the District Magistrate, for installation of Filling Station at a particular place. If the Filling Station was being constructed not exactly at the place for which N.O.C. Was issued but at some other place in the same locality and at the same bypass, then the matter deserved being reconsidered by the D.M., more particularly when he was requested by the Federal Government to read location of the Filling Station as 1.17 K.M. Off the Highway. The D.M. Could have treated Federal Government's letter dated 16-5-1985 as a fresh move for the N.O.C. And taken necessary steps. On the one hand the D.M.
Under his letter dated 12-6-1985 gave impression to the Federal Government that he would consider the amendment in the sanction as proposed by the latter, after decision of Writ Petition No,D-36 of 1985. On the other hand he proceeded to cancel the N.O.C. After decision of the said writ petition without considering the amendment and without giving chance to the petitioner to move for amendment of his licence. Such a conduct by the D.M. Was most unfortunate. There is nothing on record to show if D.M. Heard the P.S.O. Or the petitioner before cancelling the N.O.C.
14. In the circumstances, the order of the D.M. Cancelling the N.O.C. Cannot be sustained. We would, therefore, accept the petition and hold order of the D.M. Cancelling the N.O.C. To be without lawful authority and of no legal effect and would call upon the D.M. To reconsider the matter and pass a fresh order under Rule 115(3) of the Petroleum Rules, 1937 after considering the Federal Government letter dated 16-5-1985 and after hearing the petitioner and the P.S.O. And after consulting the local functionaries who were consulted before issue of the N.O.C. There would be no order as to costs.