This judgment shall dispose of Writ Petitions No, 26208 Amjid Ali Khan Niazi v. The Deputy Commissioner, Mianwali etc. and 28742 Haji Zia Ullah Khan v. M/s. Shell Pakistan Ltd. and others of 1997 and Criminal Original No, 133-W/98 Haji Zia Ullah Khan v. Amjid Ali Khan Niazi as they raise common questions of law and facts.
2. Facts as given in Writ Petition No, 26208 of 1997 are that, the petitioner Amjid Ali Khan Niazi was lease out six Kanals of land by the Board of Revenue vide order dated 19-12-1995 (for a period of five years) on the recommendation and at the price fixed by the District Price Committee vide letter dated 4-12-1995 at the rate of Rs,2,000 per Acre for installation of a Petrol Pump. Pursuant to the grant of afore-referred lease, in 1996, the petitioner applied to Burmah Shell Company for the grant of requisite licence. On 18-9-1996, the Burma Shell Company wrote a letter to the Deputy Commissioner, Mianwali for the grant of No-Objection Certificate. On 23-9-1996, the Deputy Commissioner, Mianwali, called for the comments of Superintendent of Police; Executive Engineer, Highway; Executive Engineer, Buildings Department; District Forest Officer; Executive Engineer, Canals and Civil Defence Officer, Mianwali. The concerned departments granted the N.O.C. whereafter the Deputy Commissioner, on 22-10-1996 issued N.O.C. on the basis of which, the Burma Shell Company issued licence to the petitioner. On 4-11-1997, the Deputy Commissioner, issued a show-cause notice to the Regional Manager, Shell Pakistan Ltd. Faisalabad that as the Superintending Engineer, Highways had objected to the location of the Petrol Pump in question at the proposed site, why the N.O.C. issued on 20-10-1996 may not be withdrawn.
3. The issuance of this show-cause notice has been challenged in this petition inter alia on the ground that the Deputy Commissioner, Mianwali having once issued the N.O.C. had become functus officio and he has no. power to withdraw the same; that the only relevant provision through which, the licence can be cancelled is resort to Rule 130 of the Petroleum Rules, 1985 which is not applicable to the facts and circumstances of this case; that the Deputy Commissioner, has not applied his mind and has merely acted on the advice of the Superintending Engineer, Highways; that the site in question is not a crossing at the Highways; that after the issuance of N.O.C. the petitioner was allowed to raise constructions and he has almost completed the Petrol Pump with a cost of almost 30/35 lacs; that it would be unfair and unjust to withdraw the sanction at this belated stage and that the impugned notice has been motivated by political consideration as petitioner's father had lost to a sitting M.N.A. in the last general elections.
4. Learned Additional Advocate-General, on the other hand, has supported the impugned notice by submitting that petitioner had obtained State land at extremely low price; that the N.O.C. had wrongly been issued; that the site in question is not suitable for the installation of a Petrol Pump and that there being no jurisdictional defect, the writ is not competent.
5. In Writ Petition No, 28742 of 1997, the petitioner submitted that he wanted to install a Petrol Pump
(sic) in the vicinity; that he had given application on a prior date on 15-2-1995 to the Deputy Commissioner but the said application was not processed; that the petitioner in Writ Petition No,26208 of 1997 had got State land leased out in his favour and had got issued N.O.C. for installation of a Petrol Pump by exerting political influence as his father was then a sitting Minister; that the site qua which the N.O.C. had been issued was not fit for installation of a Petrol Pump and the Deputy Commissioner, had rightly issued show-cause notice for withdrawal of the N.O.C.; that under section 20 of the General Clauses Act, the right is available to a public functionary to rescind or withdraw the earlier order. In the afore-referred circumstances, it was prayed that the N.O.C. issued on 20-10-1996 and 23-11-1995 in favour of respondent No, 5 (petitioner in Writ Petition No,26208 of 1997) may be declared illegal, discriminatory and without lawful authority.
6. Heard. I have given anxious thoughts to the arguments addressed at the Bar.
7. It is not denied that the Board of Revenue, had granted lease of State land for five years at a price fixed by the District Price Committee, that the Board can refuse to extend the lease and can enhance the money, that prior to issuance of No-Objection Certificate, the Deputy Commissioner, Mianwali had made a reference to all the concerned departments and it was only on a positive note from all of them that he issued N.O.C. dated 20-10-1996. It is further not denied that after the grant of N.O.C. petitioner started construction of the Petrol Pump. The respondents have alleged that till the filing of this petition, the petitioner had only done some earth work whereas the petitioner says that the entire work is almost complete. At no stage, the respondent authorities gave an application for appointment of a commission to ascertain the factual position. The Deputy Commissioner, Mianwali has sought to cancel the N.O.C. at the instance of Highway Department which earlier had granted N.O.C. more than a year back. In the afore-referred circumstances, the question which crops up for consideration is, as to whether at this belated stage, the Deputy Commissioner was competent to rescind the earlier N.O.C. There is no cavil to the proposition that in terms of principle of locus-poenitentiae an authority has the power to vary, rescind or withdraw an order but this right or authority is a qualified authority before certain rights have been created in favour of a party. In Pakistan through the Secretary, Ministry of Finance v. Muhammad Hamayatullah Farukhi (PLD 1969 SC 407), the Hon'ble Supreme Court held as under:-- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the 1/2 Clauses Act, locus poenitentiae, i,e, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass the orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
The petitioner (in Writ Petition No, 26208 of 1997), having been issued N.O.C. a year prior to the impugned notice, had started construction and major part of the project in question is complete. In these circumstances, the Deputy Commissioner has no authority to rescind the N.O.C.
Notwithstanding the afore-referred legal position, on a query made by this Court, the Deputy Commissioner (who appeared in Court today) admitted that no action has been taken against those who were instrumental in issuance of N.O.C. or grant of the lease. He was however, asked as to whether in the event of cancellation of N.O.C. would the Government be prepared to compensate the petitioner for the money spent at the site, the Deputy Commissioner replied in the negative. With such credentials and conduct of the respondent authorities, it would be unfair to the petitioner to withdraw the N.O.C. In Burmah Shell Oil Storage and Distributing Co. Pakistan Ltd. and another v. The Deputy Commissioner (District Magistrate), Karachi (Law Notes 1969 SC 25), the no objection certificate issued by the Deputy Commissioner was withdrawn on the objection of the local residents as it was contended that the installation of a Petrol Pump would prove nuisance for the area. The order of the Deputy Commissioner was upheld by the Sindh High Court but on an appeal filed by the Burmah Shell Company; the august Supreme Court, set aside the order of the High Court; allowed the appeal and observed at page 29 as under:-- "But the real point that arose in the case and which was pointedly made the subject of grievance by the appellants in writ petition was missed by the learned Judges. It was that the suspension of the "No Objection Certificate" could not affect the operation of the licence for the storage of petrol which the appellants had duly obtained although on the very basis of the "No Objection Certificate".
While it was necessary to obtain the certificate from the District Authority or if it refused to give, it from the Central Government under rule 115(5) of the Petroleum Rules for getting the licence for the storage of the petrol; the continued validity of the licence did not depend on the certificate itself. In fact, the District Authority became functus officio in that respect after it issued the certificate. It does not under the law have any powers to control the operation of the licence during the period for which it is granted. The suspension or the revocation of the "No Objection Certificate" was thus a futile effort if it was intended also to stop the operation of the storage licence. Similarly, even assuming that the suspension was rightly made although the High Court itself agrees that it was not so after the stage for locus penitential for the respondent was over, the respondent had no power to stop the installation and construction of the pump which had been started after dde sanction by relevant authorities. This part of the order of the respondent was obviously without any legal authority."
The afore-referred view was reiterated by the Hon'ble Supreme Court in Haji Ferozedin v. The District Magistrate, Lahore and another (1995 SCM R 705).
8. To meet the objection of the respondent authorities that the petitioner had installed the Petrol Pump within the crossings of the roads in question, and that on both sides no empty spaces have been left, the petitioner has placed on record an affidavit to the effect that he shall leave 20 feet wide space on both sides of the Petrol Pump from his own land and shall maintain a grassy plot over the same and shall not run any restaurant. This affidavit should be enough to allay the apprehension of the respondent authorities. If at any stage, the petitioner dishonours the undertaking given before this Court, the respondent authorities shall be at liberty to withdraw the N.O.C. or the Board of Revenue may not extend the lease.
9. The preliminary objection raised by the learned Additional Advocate-General, Punjab that the writ is premature as only a show-cause notice was issued for cancellation of N.O.C. is not tenable as in the comments submitted, the Deputy Commissioner, has almost decided the matter and has finally observed that the respondent authorities shall not remit the petitioner to run the Petrol Pump. In this view of the matter, it would be futile to send the petitioner back to the Deputy Commissioner.
10. In Writ Petition No, 28742 of 1997, the petitioner has challenged the issuance of N.O.C. granted by respondent authorities on 20-10-1996 inter alia on the grounds that the site in question is not suitable for the installation of a Petrol Pump; that he had applied earlier for installation of a Petrol Pump near the site in question; that the Deputy Commissioner, without passing any order on the said application had issued N.O.C. in favour of respondent No,6 which was not tenable. The petitioner filed this writ petition on 13-12-1997 i,e, after a lapse of more than one year of the issuance of the D. He never pursued the application and started agitating about the issuance of N.O.C. granted to respondent No,6 only when a notice was issued to the latter for cancellation of the afore-referred N.O.C. which he challenged in Writ Petition No, 26208 of 1997. The District Magistrate appearing in Court on Court query, submitted that the site where this petitioner wants to install the Petrol Pump is only at a distance of 50 feet from the one which is subject-matter of the earlier writ petition. Prima facie, the instant petition has been filed on account of business rivalry and is also hit by laches.
11. In the afore-referred circumstances, the Writ Petition No, 26208 of 1997 is allowed. The show- cause notice dated 4-11-1997 issued by the Deputy Commissioner, Mianwali set aside with no order as to costs.
12.For reasons given in para. 9 above, the Writ Petition No, 28742 of 1997 is dismissed.
13.As the main petitions have already been disposed of, no further action is called for in Criminal Original No, 133-W of 1998. This is also dismissed.