NEUTRAL CITATION
C/SCA/1481/2023 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1481 of 2023
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VIREN DURLABHBHAI PATEL
Versus
HINDUSTAN PETROLEUM CORPORATION LIMITED
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MR.MANAN BHATT(6535) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/09/2023
ORAL ORDER
1. By way of present petition, the petitioner herein is constrained to approach this Court invoking Article 226 of the Constitution of India, seeking the following reliefs:
"14. A. To allow this petition
B. To issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 05.11.2022 (Ann- A), issued by respondent no.2 and further be pleased to direct the respondents to take immediate necessary action to make the retail outlet functional.
(C) To stay, the execution, implementation and operation of the judgment and order dated 05.11.2022 (Ann. A) passed by the respondent no.2 pending admission, hearing and final disposal of this petition.
(D) To grant ad-interim relief in terms of Para-14 (C) hereinabove.
(E) To award the cost of this petition.
(F) To grant such other and further relief as may be Page 1 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined deemed fit by this Hon'ble Court in the interest of justice."
2. Briefly stated, pursuant to the advertisement issued by the respondent dated 25.11.2018 for setting up retail outlets in different areas across the State of Gujarat, inviting applications from persons interested, for 1102 numbers of locations, under various categories such as Open, SC, ST, OBC, Physically Handicapped etc. the petitioner herein applied for the same.
2.1. The petitioner applied for the same, for the location described as "Sanwala Tiraha to Kakrapar Canal on SH", Revenue District- Navsari and it was reserved for Scheduled Tribe category. After providing providing requisite details, the petitioner herein entered into a lease deed with the owner of the land on 21.12.2018. The petitioner filled in the said column of the prescribed form and mentioned in the application that the petitioner herein offered land owned by Parbhubhai Jivanbhai Patel and described the details of the land as land bearing Survey No.161, village Sanwala, Taluka Mahuwa, District Surat admeasuring 1225 sq. mtrs. A copy of the village form Nos. 7-12 & 8-A of village Sanwala, Taluka Mahuva, District Surat in respect of the land in question are duly produced at Annexure "D".
2.2 Pursuant to the submission of the application, on 19.1.2019, the respondent No.2 sent email to the petitioner inviting for participating in the draw of lots for Page 2 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined selection of RO Dealership to be held on 30.1.2019 at AMA Complex, ATIRA, Ahmedabad. The petitioner herein emerged as successful bidder in respect of location No. 849 and respondent No.2 intimated about the same to the petitioner vide email dated 30.1.2019 and called upon petitioner to make online payment of Rs.30,000/- toward initial security deposit and submit set of documents as mentioned in the said email, which is duly produced at Annnexure "G".
2.3 Pursuant to the said email, the petitioner made payment of Rs.30,000/- to the respondents by online payment on 2.2.20219, the said transaction details is produced at Annexure "H".
2.4 On 11.3.2019, respondents raised query by email regarding sub-lease clause which was not included in the land lease agreement submitted with application. The petitioner replied to the said query and complied with the same.
2.5 On 6.4.2019, the respondent No.2 informed the petitioner that on 15.4.2019, the Land Evaluation Committee would visit the site offered by the petitioner at the subject location for its inspection and on 28.4.2019, the petitioner was informed that its officer would be carrying out Field Verification of Credentials on 7.5.2019 Page 3 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined and the petitioner was asked to remain present. The respondent No.2 wrote a letter to the Collector Office, Surat on 8.8.2019 and requested to issue Petroleum NOC.
2.6 On 30.8.2019, the respondent No.2 issued LOI to the petitioner herein with respect to land admeasuring 1225 meters approx. (frontage) 35 x 35 mtrs. (depth) at Survey no. 161 Village Sanwala, Taluka Mahuwa, Dist. Surat as indicated in the application for the development of the subject Retail Outlet.
2.7 On account of Covid-19 Pandemic, the matter remained idle and no action was taken by the respondents.
2.8 On 9.11.2020, the petitioner wrote letter to the respondent No.2 that the petitioner had applied for retail outlet dealership and LOI was issued to the petitioner on 30.8.2019 and thereafter NOC dated 19.6.2020 was received from the Collector Surat for commencement of retail outlet work and the said was submitted to the respondent No.2, however, the construction work of retail outlet is not yet commenced by the respondents. It was also submitted that the petitioner has incurred expenditure of more than 10 Lakhs for the development of land after getting LOI and the petitioner has started making payment of Rs.30,000/- per month towards Land Page 4 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined Lease rent and requested to expedite the matter. No reply came to be given by the respondents herein.
3. The respondent authority, on 18.7.2022 issued show- cause notice, which is duly produced at Page-86 (Annexure "O") and the following discrepancies came to be noted in the said show-cause notice and the petitioner was asked to explain the same:
"(1) The revenue district of advertised location is Navsari, whereas the land offered by you falls in Surat district, hence it was not in advertised location.
(2) You had applied under Group 1 and had submitted lease No. MHV/622/2018 registered on 22.12.2018 at Sub- Registrar office, Mahuva, District -Surat. The lease is registered in your favour and the lessors are 1)Prabhubhai Jivanbhai Patel 2) Gaurangkumar Parbhubhai Patel 3) Ratanben Parbhubhai Patel 7 4) Hirenkumar Parbhubhai Patel. The lease is signed by only three lessors and one of the lessor, Shri Parbhubhai Jivanbhai Patel, has signed the lease on behalf of himself as well as POA holder for Shri Gaurangkumar parbhubhai Patel who was not present in the sub-registrar office during lease registration. However, it is observed that Shri Gaurangkumar Parbhubhai Patel has given the Power of Attorney to Shri Parbhubhai Jivanbhai Patel on 24.12.2018, which is after the date of lease registration.
(3) It is also observed that the power of attorney issued by Shri Gaurangkumar Parbhubhai Patel is not registered."Page 5 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023
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4. The petitioner herein replied to the said show-cause notice and replying to the first discrepancy, it was submitted that the land in question was in Surat district and not in Navsari District.
5. Clarification were also submitted by the petitioner herein by filing reply dated 26.7.2022.
6. Without considering the reply filed by the petitioner herein dated 26.7.2022, the respondent No.2 proceeded to pass the impugned order with respect to withdrawal of LOI for location (Sanwala tiraha to Kakrapar Canal on SH, District Navsari, State: Gujarat, Category: ST), by impugned communication dated 5.11.2022 on the ground that on reviewing of the documents filed by the petitioner, it was observed that the land offered by the petitioner falls in Surat district as the advertisement was for Navsari district.
7. Ms. Lilu Bhaya, the learned advocate appearing for the petitioner submitted that the land in question falls in Surat district and not in Navsari District. The aforesaid was substantiated by placing reliance on the following documents:
(i) Communication by the respondent No. 2 dated 8.8.2019 at Page-74;
(ii) Communication by respondent No.2 dated 30.8.2019 Page 6 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined duly addressed to the petitioner at Page-75 (Annexure "L") and, at Page-78, the respondent No.2 has stated that respondent No.2 is inclined to develop the retail outlet with respect to the subject land, situated at Sanwala tiraha to Kakrapar Canal on SH, District Surat State Gujarat.
(iii) The communication of the Union of India dated 15.10.2019 wherein the subject land is included in District Surat and also Map which was attached by the respondent No.2 along with application duly filed before Union of India at Page-101.
8. Mr. Asim Pandya, the learned Senior Counsel was not in a position to controvert the fact that the land in question is included in Surat District and not in Navsari District.
9. Considering the aforesaid submissions made by the Ms. Bhaya, the learned advocate appearing for the petitioner, in the opinion of this Court, documents which have been relied upon by Ms. Bhaya, the learned advocate appearing for the petitioner, are uncontroverted.
10. This Court has perused all the documents which have been relied upon by the petitioner and from the aforesaid, it emerges that the land in question being Survey No.161, village Sanwala, Taluka Mahuwa, District Page 7 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023 NEUTRAL CITATION C/SCA/1481/2023 ORDER DATED: 04/09/2023 undefined Surat is included in Surat District. For the said reason, the show-cause notice which is subject matter of challenge before this Court, which culminated into passing of order dated 5.11.2022 by the respondent No.2 herein is required to be interfered with, invoking 226 of the Constitution of India more particularly, considering the fact that show-cause notice issued by the respondent No.2 herein is self-contradictory considering the communications at the instance of respondent No.2 with the petitioner and the Central Government, as referred above.
11. Considering the documents produced on record, undisputely, though the land in question was advertised as Navsari, the same falls under Surat District. The foundation of the said show-cause notice dated 18.7.2022 itself does not inspire confidence of this Court and in view thereof, the said order dated 5.11.2022 , duly produced at Annexure "A", whereby LOI issued in favour of the petitioner, has been cancelled on the ground that the land offered to the petitioner falls within Surat District being self-contradictory in view of the following communications:
(a) 15.10.2019 - communication by the Union of India to the respondent wherein the subject land falls within Surat District;Page 8 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023
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(b) The lay-out plan submitted by the respondent authority to the Union of India also indicates that the subject land is in Surat District;
(c) Communication dated 8.8.2019 to the Collector Office, Surat wherein the subject land falls within Surat District.
12. For the aforesaid reasons, the impugned order dated 5.11.2022 passed by the respondent No.2 is quashed and set-aside. The show-cause notice dated 18.7.2022 qua Issue No.1 stands quashed and set-aside for the reasons recorded above. Liberty is reserved in favour of the respondent authority to take appropriate steps in accordance with law with respect to Issue Nos.2 and 3 in the show-cause notice dated 18.7.2022, after granting sufficient opportunity of hearing to the petitioner herein.
The aforesaid exercise be undertaken within a period of two weeks from the receipt of this order.
In exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India, the petition stands allowed. Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 9 of 9 Downloaded on : Sat Sep 16 16:02:27 IST 2023