Rakesh Kumar Gupta vs Union Of India And 3 Others

Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 23761 of 2026
Rakesh Kumar Gupta
…..Petitioner(s)
Versus
Union of India and 3 others
…..Respondent(s)
Counsel for Petitioner(s) : Phool Singh Yadav, Ram Pratap
Yadav
Counsel for Respondent(s) : A.S.G.I., Ajay Shankar, C.S.C.,
Dhurva Kant Chaturvedi
A.F.R.
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE INDRAJEET SHUKLA, J.
Delivered by Hon’ble Indrajeet Shukla, J.
1. Heard Mr. Ram Pratap Yadav, learned counsel for the petitioner,
learned Additional Solicitor General appearing on behalf of respondent
no.1/Union of India, Mr. Ajai Shankar, learned counsel for the
respondent no.2 and Mr. Girijesh Kumar Tripathi, learned Additional
Chief Standing Counsel for the respondent nos.3 & 4.
2. By means of the instant writ petition, the petitioner has prayed for
issue of a writ in the nature of mandamus commanding the District
Magistrate, Fatehpur to grant a ‘No Objection Certificate’ in favour of
th
petitioner M/S Ramraj Filling Station situated at 6 Ramganj Pakka
Talab, Tehsil Sadar, District Fatehpur for the purpose of installation of a
retail outlet of petrol at Khasra No.180 located in Village Udaharanpur,
Tehsil Sadar, District Fatehpur forthwith without any further delay.

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Factual Matrix
3. The facts giving rise to the instant writ petition are recapitulated as
under:
3.1. The petitioner applied for the allotment of a retail outlet of the
second respondent oil company and, accordingly, was issued a Letter of
Intent dated 29.03.2024 by Reliance BP Mobility Limited, Eldeco
Corporate Chambers 2, 9th Floor, Vibhuti Khand, Gomti Nagar,
Lucknow (hereinafter referred to as the "oil company"). After the issue
of the letter of intent, the petitioner was required to obtain and submit a
‘No Objection Certificates’ (NOCs) from various authorities, namely the
Revenue Department, Electricity Department, Stamp Department, Fire
Department, Pollution Control Board, and the National Highways
Authority of India (NHAI). The No Objection Certificates issued by the
respective authorities have been collectively brought on record as
Annexure No. 2 to the present writ petition.
3.2. The second respondent/Oil Company, asked for a ‘No Objection
Certificate’ from the office of District Magistrate concerned by virtue of
its letter dated 01.07.2024. The District Magistrate’s ‘No Objection
Certificate’ for setting up a fuel retail outlet at Lalganj was not issued to
the petitioner, despite a lapse of more than two years owing to apathetic
attitude of the District Magistrate and his office including the red tapism
involved in the decision making process which compelled the petitioner
to knock the doors of this Court.
3.3. In the year 2024, when the District Magistrate’s ‘No Objection
Certificate’ was asked for, the prevalent policy was governed by a
Government Order dated 30.01.2023. Subsequently, the State
Government itself issued a revised Policy dated 18.12.2025, whereby the
procedure for grant of the NOC was substantially simplified and
applicable norms were relaxed but even the mandate of Government
order dated 18.12.2025, could not Pursuade the office of the District

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Magistrate to issue the requisite ‘No Objection Certificate’ which is
evident from the personal affidavit of none other than District Magistrate
concerned, as figured in paragraph no.11 of the said affidavit, which
unmistakably demonstrates that despite the revised policy, no decision
was taken on the petitioner’s application.
3.4. In the aforesaid factual background, this Court passed the
following order dated 22.06.2026:
“The District Magistrate, Fatehpur will show cause by day after
tomorrow why he has not granted NOC to the petitioner for the
purposes of establishment of petrol and diesel outlet at Village
Udhannapur, Tehsil Sadar, District Fatehpur.
Mr. D.K. Chaturvedi has appeared on behalf of the respondent-Union of
India, whereas notice on behalf of the State respondent is accepted by
Ms. Priyanka Midha, Additional Chief Standing Counsel.
Put up day after tomorrow.
To be taken up as fresh.
The Registrar (Compliance) is directed to communicate this order to the
District Magistrate, Fatehpur through the learned Chief Judicial
Magistrate, Fatehpur today.”
4. This Court, being dissatisfied with the instructions furnished on
behalf of the respondents, asked for assistance of District Magistrate
concerned, since subsequent Government Order referred as 18.12.2025
could not persuade office of District Magistrate to give a quietus to the
issue of grant of the requisite ‘No Objection Certificate’. Consequently,
On 24.06.2026, this Court passed below quoted order:
“Perused the instructions furnished by the District Magistrate, Fatehpur.

There are the matters which require serious clarification that have been
left unexplained. In this case, the letter of intent was issued way back in
the year 2024 and the government order, upon which the District
Magistrate relies, is dated 18.12.2025.
Let all these matter be explained in-person by the District Magistrate,
Fatehpur before this Court tomorrow at 2.00 p.m.
Put up tomorrow as fresh at 2.00 p.m.
Let this order be communicated to the District Magistrate, Fatehpur
through the learned Chief Judicial Magistrate, Fatehpur by the Registrar
(Compliance) today.”

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5. On 25.06.2026, the District Magistrate concerned filed her
personal affidavit appending therewith the requisite ‘No Objection
Certificate’. Taking note of ‘No Objection Certificate’ issued in favour of
the petitioner, this Court directed District Magistrate to take up the
matter with the oil company for further recourse in pursuance to the
letter of intent.
6. A perusal of the ‘No Objection Certificate’ brought on record by
virtue of personal affidavit of the District Magistrate reveals that it is
preceded by twin conditions. First, the sanction of a building plan/map
for the entire area (measuring 4200 square meteres) proposed to be
utilised for the retail outlet is mandatory. The second limb of condition is
deposit of process fees for sanction of the map. These conditions are said
to be in terms of policy/Government order dated 18.12.2025.
Submissions Advanced On Behalf of Petitioner
7. The learned counsel for the petitioner strenuously urged that his
fundamental right to carry on trade and business has been infringed on
account of a hostile discrimination and apathetic attitude of office of
District Magistrate, who swiftly made a clerk the scapegoat without
realizing her responsibility, though she exhibited scant regard to the
government orders issued for swift issue of a ‘No Objection Certificate’.
8. The further submission advanced is, that the right to practise any
profession or to carry on any occupation, trade or business is guaranteed
by the virtue of Article 19(1)(g) of the Constitution of India, subject to
the certain reasonable restrictions in terms of Article 19(6) but non
taking any decision, by the District Magistrate for a period of more than
two years, despite there being no plausible explanation for such inaction,
constitutes an arbitrary and unreasonable exercise of power, which is
again hit by Article 14 of the Constitution of India. Thus, it infringes the
petitioner’s fundamental right so guaranteed.
9. No explanation/cause of delay could come forth either in personal
affidavit of District Magistrate or she herself could justify her action.

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Submission Advanced on behalf of State-Respondents
10. Per contra, learned counsel for the State-respondents vehemently
submitted that no further cause of action survives as the requisite ‘No
Objection Certificate’ has already been issued pursuant to the receipt of
police report dated 22.06.2026 and in terms of order dated 24.06.2026.
The further submission is that the delay in the issue of a NOC was on
account of the belated submission of a police report by the concerned
police authorities. Since the requisite ‘No Objection Certificate’ could
not be issued with promptitude on account of such delay, the concerned
clerk has been taken to task by awarding him the punishment of a
censure entry.
11. The record of this case, including the personal affidavit of the
District Magistrate exhibits that there is no explanation/cause what to
say reasonable and plausible cause regarding the non issue of a ‘No
Objection Certificate’ for an indefinite period which could issued only be
after the institution of instant petition, where also initially an attempt
was made for protract litigation. Thus, in the background of this case, the
principal question that arises for consideration is whether the failure to
issue the ‘No Objection Certificate’ without any reasonable or plausible
justification would attract the ‘doctrine of malice in law’.
12. The Non-issue of ‘No Objection Certificate’ without any plausible
cause, as evident from the personal affidavit submitted by the District
Magistrate before this Court, who could not defend her inaction for a
period of two years attracts the doctrine of malice in law and, by itself,
indicates the mala fide and arbitrariness. Mala fide and arbitrariness are
distinct manifestations arising from the same vice, with the latter being
broader in scope and encompassing the former.
13. Any action taken wrongfully and intentionally, without just cause,
excuse, or lawful justification, is distinct from personal ill-will or malice
in fact and would be construed as malice in law. The District Magistrate
concerned has palpably failed, in her personal affidavit, to show any
justifiable cause for the non issue of ‘No Objection Certificate’ for a

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period of more than two years. Such unexplained inaction would
definitely constitute malice in law.
14. Malice in fact requires proof of personal ill-will, or improper
motive, whereas malice in law may be inferred when a public authority
or an individual acts in deliberate defiance of the law or on
extraneous/misconceived grounds. Malice in law in the instant case is
writ large as the District Magistrate concerned had absolutely no
explanation for the delay in issue of a ‘No Objection Certificate’ except
slashing one petty clerk by her mighty sword.
15. There are authoritative pronouncements of the Supreme Court
elucidating the doctrine of malice in law and its effect on the validity of
administrative action.
16. It is well settled that malice in law does not necessarily imply
personal ill-will, spite or animosity on the part of the authority
concerned. Rather, it denotes an action taken without lawful justification,
for an unauthorized purpose, or in disregard of the statutory scheme
governing the exercise of power.
17. The following decisions of the Supreme Court authoritatively
expounds the aforesaid principle:
18. In the case of Ratnagiri gas and power Private Limited vs RDS
Projects and others, 2013 (12) SCC 786, the Supreme Court has held:
30. Coming then to the question whether the action taken by the appellant-
RGPPL was vitiated by malice in law, we need hardly mention that in cases
involving malice in law the administrative action is unsupportable on the
touchstone of an acknowledged or acceptable principle and can be avoided
even when the decision maker may have had no real or actual malice at work
in his mind. The conceptual difference between the two has been succinctly
stated in the following paragragh by Lord Haldane in Shearer v. Shields
(1914) A.C. 808 quoted with approval by this Court Additional District
Magistrate, Jabalpur v. Shivkant Shukla (1976) 2 SCC 521:
“410.
Between 'malice in fact' and 'malice in law' there is a broad distinction
which is not peculiar to any system of jurisprudence. The person who
inflicts a wrong or an injury upon any person in contravention of the
law is not allowed to say that he did so with an innocent mind. He is
taken to know the flaw and can only act within the law. He may,
therefore, be guilty of 'malice in law', although., so far as the state of
ins mind was concerned he acted ignorantly, and in that sense

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innocently. 'Malice in fact' is a different thing. It means an actual
malicious intention on the part of the person who has done the
wrongful act.”
31. Reference may also be made to the decision of this Court in State of AP
& Ors. v. Goverdhanlal Pitti (2003) 4 SCC 739 where the difference
between malice in fact and malice in law was summed up in the following
words:
“11. The legal meaning of malice is “ill-will or spite towards a party
and any indirect or improper motive in taking an action”. This is
sometimes described as “malice in fact”. “Legal malice” or “malice
in law” means 'something done without lawful excuse'. In other
words, 'it is an act done wrongfully and wilfully without reasonable
or probable cause, and not necessarily an act done from ill feeling
and spite'. It is a deliberate act in disregard of the rights of
others'. [See Words and Phrases legally defined in Third Edition,
London Butterworths 1989].
.Where malice is attributed to the State, it can never be a case of
personal ill-will or spite on the part of the State. If at all, it is malice
in legal sense, it can be described as an act which is taken with a
oblique or indirect object...” (emphasis supplied)
32. To the same effect is the recent decision of this Court in Ravi Yashwant
Bhoir v. District Collector, Raigad and Ors (2012) 2 SCC 407 where this
Court observed:
“MALICE IN LAW:
37. This Court has consistently held that the State is under an
obligation to act fairly without ill will or malice- in fact or in law.
Where malice is attributed to the State, it can never be a case of
personal ill-will or spite on the part of the State. “Legal malice” or
“malice in law” means something done without lawful excuse. It is
a deliberate act in disregard to the rights of others. It is an act
which is taken with an oblique or indirect object. It is an act done
wrongfully and willfully without reasonable or probable cause, and
not necessarily an act done from ill feeling and spite. Mala fide
exercise of power does not imply any moral turpitude. It means
exercise of statutory power for “purposes foreign to those for
which it is in law intended.” It means conscious violation of the
law to the prejudice of another, a depraved inclination on the part
of the authority to disregard the rights of others, where intent is
manifested by its injurious acts.
Passing an order for unauthorized purpose constitutes malice in
law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla,
AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry and
Anr. v. V. Ramakrishnan and Ors.,2005) 8 SCC 394; and
Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors.,
AIR 2010 SC 3745).”

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(emphasis supplied by us)
19. Reference may also be made to authority in the case of West
Bengal State Electricity Board Vs. Dilip Kumar Ray reported in 2007
(14) SCC 568, wherein Supreme Court held:
“19. Malice in law. "Malice in law" is however, quite different.
Viscount Haldane described it in Shearer Shields, (1914) AC 808 as:
"A person who inflicts an injury upon another person in contravention
of the law is not allowed to say that he did so with the innocent mind:
he is taken to know the law, and he must act within the law. He may,
therefore, be guilty of malice in law, although, so far the state of mind
is concerned, he acts ignorantly, and in that sense innocently". Malice
in its legal sense means malice such as may be assumed from the doing
of a wrongful act intentionally but without just cause or excuse, or fro
want of reasonable or probable cause. (See S.R. Venkatarcunan v.
Union of India (1979) 2 SCC 491)
Analysis and Reasoning
20. The ambit of Article 14 of the Constitution of India was
substantially expanded by the Supreme Court by including executive
discretion under its ambit. In the case of E.P. Royappa Vs. State of
Tamilnadu, (1974) 4 SCC 3, the Supreme Court held that Article 14
gives a guarantee against the arbitrary action of the State. The right to
equality is antithetical to arbitrariness. They both are enemies of each
other so the arbitrary action in not taking a prompt decision in utter
disregard to the spirit of government orders are clearly indicative of the
fact that the petitioner is a victim of red tapism in the bureaucratic set up
in democracy. The relevant excerpts from E.P. Royappa (supra) is
reproduced hereinbelow:
85. The last two grounds of challenge may be taken up together for
consideration.
Though we have formulated the third ground of challenge as a distinct
and separate ground, it is really in substance and effect merely an
aspect of the second ground based on violation of Articles 14 and 16.
Article 16 embodies the fundamental guarantee that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. Though
enacted as a distinct and independent fundamental right because of its
great importance as a principle ensuring equality of opportunity in
public employment which is so vital to the building up of the new
classless egalitarian society envisaged in the Constitution, Article 16

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is only an instance of the application of the concept of equality
enshrined in Article 14. In other words, Article 14 is the genus while
Article 16 is a species, Article 16 gives effect to the doctrine or
equality in all matters relating to public employment. The basic
principle which, therefore, informs both Articles 14 and 16 is equality
and inhibition against discrimination.
Now, what is the content and reach of this great equalising principle?
It is a founding faith, to use the words of Bose, J., "a way of life",
and it must not be subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with many aspects
and dimensions and it cannot be "cribbed, cabined and confined"
within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary
it is implicit in it that it is unequal both according to political logic
and Constitutional law and is therefore violative of Article 14, and if
it affects any matter relating to public employment, it is also
violative of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment.
They require that State action must be based on equivalent relevant
principles applicable alike to all similarly situate and it must not be
guided by any extraneous or irrelevant considerations because that
would be denial of equality. Where the operative reason for State
action, as distinguished from motive inducing from the antechamber
of the mind, is not legitimate and relevant but is extraneous and
outside the area of permissible considerations, it would amount to
mala fide exercise of power and that is hit by Articles 14 and 16. Mala
fide exercise of power and arbitrariness are different lethal radiations
emanating from the same vice : in fact the latter comprehends the
former. Both are inhibited by Articles 14 and 16.
(Emphasis added by us)
21. In the case of Maneka Gandhi Vs. Union of India, (1978) 1 SCC
248, the Constitution bench of the Supreme Court speaking through his
lordship Hon’ble Mr. Justice P.N. Bhagwati, held that the concept of
equality enshrined under Article 14 of the Constitution of India is against
the arbitrariness of the State action. The Court further expounded the
doctrine of the “golden triangle” by holding that Articles 14, 19 and 21
are not mutually exclusive but are interrelated and must be read
harmoniously. The delay in taking decision for issue of a ‘No Objection

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Certificate’ without any plausible cause is definitely unpardonable, if
tested on the anvil of Article 14, 19(1)(g) read with Article 21 of the
Constitution of India. The right to establish and operate a retail fuel
outlet, subject to fulfillment of the statutory and regulatory requirements,
constitutes an integral facet of the right to carry on trade and business
guaranteed under Article 19(1)(g) of the Constitution. Where the
establishment of such an enterprise is unjustifiably impeded by arbitrary
and unexplained administrative inaction, the resultant deprivation also
bears upon the individual’s right to livelihood and to live with dignity,
which forms an inseparable facet of Article 21 of the Constitution. The
relevant paragraph from Maneka Gandhi (supra) is reproduced
hereinbelow:
56. Now, the question immediately arises as to what is the
requirement of Article 14 what is the content and reach of the great
equalising principle enunciated in this article. There can be no doubt
that if is a founding faith of the Constitution. It is indeed the pillar on
which rests securely the foundation of our democratic republic. And,
therefore, it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to truncate its all-
embracing scope and meaning for, to do so would be to violate its
activist magnitude. Equality is a dynamic concept with many aspects
and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits. We must reiterate here what was pointed out by the
majority in E. P. Royappa v. State of Tamil Nadu and Anr.
MANU/SC/0380/1973 : (1974)ILL J172SC namely, that "from a
positivistic point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to the rule
of law in a republic, while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is
therefore violative of Article 14".Article 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the best of reasonableness in
order to be in conformity with Article 14. It must be "right and just
and fair" and not arbitrary, fanciful or oppressive; otherwise, it would
be no procedure at all and the requirement of Article 21 would not be
satisfied.
Emphasis added by us

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22. The Supreme Court has read Articles 14, 19 and 21 together as an
inseparable constitutional framework, popularly known as the doctrine
of “golden triangle”. Since infringement of right to practice any
profession or to carry any occupation, trade or business is guaranteed
under Article 19(1)(g) of the Constitution of India, its infringement
automatically attracts the tenets of Article 14 of the Constitution of
India, since arbitrariness is antithetical to Article 14; and, as such, an
arbitrary infringement of the right of occupation, trade or business in its
natural course erodes and subverts the basic facet of Article 21 of the
Constitution of India which guarantees right to live with dignity. Thus,
an unjustified and arbitrary denial or delay in permitting a citizen to
carry on a lawful trade or business must withstand the combined
constitutional scrutiny of Articles 14, 19(1)(g) and 21 of Constitution of
India.
23. Equality is a dynamic concept with many aspects and dimensions,
and it cannot be cribbed, cabined and confined with traditional and
doctrinaire limits. From a positive point of view equality is antithetical
to arbitrariness. In fact, equality and arbitrariness are sworn enemies;
one belongs to rule of law in a republic while the other, to the whims and
caprices of an absolute monarch, who possess arbitrary discretion.
Conclusion
24. Before proceeding further, this Court must remark that the learned
counsel for the petitioner endeavoured to impeach certain conditions
carried in the 'No Objection Certificate', which we cannot examine in the
absence of any challenge to such conditions at this stage. We notice that
a clerk has been punished with a censure entry, when the higher officers
were reminded of their duties. We would say that the action now taken to
issue the 'No Objection Certificate' in haste could have been taken at
leisure long back. We are also of opinion that the District Magistrate's
office and successive incumbents in that office were sitting tight over the
matter for more than two years, in violation of the Government Order
dated 30.01.2023 and the later order dated 18.12.2025. The delay in

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decision-making, without any plausible cause, itself is an indication of
malice in law, also exhibiting arbitrariness writ large.
25. Since the 'No Objection Certificate' has now been issued, nothing
survives further for adjudication in this petition on merits.
26. The oil company/second respondent shall proceed further in the
matter on the basis of Letter of Intent issued by them way back on
29.03.2024, contained as Annexure No. 1 to the writ petition,
expeditiously.
27. We would expect the District Magistrate, Fatehpur/third
respondent, whoever is incumbent, to act with promptitude in all matters
where rights of citizens are involved and pay heed to proceedings of this
case as a guide for the future and keep the Office of the District
Magistrate responsive and in order.
28. Subject to the above remarks, this petition stands disposed of.
29. No order as to costs.
(Indrajeet Shukla,J.) (J.J. Munir,J.)
July 30, 2026
Mohit
Digitally signed by :-
MOHIT KUMAR KUSHWAHA
High Court of Judicature at Allahabad