(1 of 9) [CW-1754/2019] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1754/2019 Pooja Joshi W/o Vivek Joshi, Aged About 40 Years, 1-C-14, R.c. Vyas Colony, Bhilwara (Raj.).
----Petitioner Versus
1. Union Of India, Through The Secretary, Ministry Of Petroleum And Natural Gas, Shastri Bhawan, New Delhi - 110001.
2. Indian Oil Corporation Limited Ali Yavar Jung Mard, Bandra East, Mumbai 400051 Through Its Chairman And Managing Director.
3. General Manager, Incharge (Lpg), Indian Oil Corporation Limited, Rajasthan State Office, Indian, Oil Bhawan, Ashok Chowk, Adarsh Nagar, Jaipur.
4. Chief Area Manager, Indian Oil Corporation Limited, Indane Are Office, Spl 1297, Sitapura Industrial Area, Goner Road, Jaipur.
----Respondents
For Petitioner(s) : Mr. Suresh Shrimali, through Cisco
Webex App
For Respondent(s) : Mr. Nishant Bora
JUSTICE DINESH MEHTA
Order
01/03/2021
1. The matter comes for consideration of application under Article 226(3) of the Constitution of India. Having regard to the controversy involved, learned counsel for the rival parties submitted that the petition itself be heard and decided on its merit as the arguments for application seeking vacation of stay and writ petition are common.
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2. By way of the present writ petition, petitioner has challenged communication dated 23.01.2019 whereby petitioner's application for appointment of LPG distributor at Mandal, Bhilwara under open category, advertised on 23.08.2017, has been rejected.
3. The facts relevant for the present case are that pursuant to the advertisement dated 23.08.2017, petitioner submitted an application form for award of dealership in her name on 25.09.2017.
4. In relation to the ownership of land for infrastructure facility, under para 2 of the brochure, the petitioner offered land admeasuring 58m x 48m situated in Aaraji No.57/1 at village Dhuwala, Tehsil Mandal, District Bhilwara.
5. In the application form aforesaid, petitioner categorically relied upon the lease deed dated 08.02.2013, executed by Mr. Tara Shankar Joshi, in favour of petitioner's husband, Mr. Vivek Joshi. It is pertinent that a copy thereof was enclosed in Appendix- 2 of the application form.
6. The respondents issued a notice dated 02.05.2018 to the petitioner inter alia stating that the land for showroom offered by the petitioner is not acceptable. A concern was also expressed for the land offered for establishment of godown, as according to them, though registered lease-deed was for 15 years, but the same was not in accordance with the dealership guidelines/brochure.
7. Petitioner submitted her response to the above notice dated 02.05.2018 and tried to satisfy the respondents that though the lease deed dated 08.02.2013 was originally for a period of 15 years, however, the same has been got extended by way of an (Downloaded on 02/03/2021 at 09:31:48 PM) (3 of 9) [CW-1754/2019] agreement dated 25.09.2017, which was duly notarized and the lease has been extended for a further period upto 07.02.2033.
8. In the reply so submitted, the petitioner stated that the land offered for showroom belongs to the petitioner's family and the same should be considered as land owned by her in the family unit. While contending that land offered for Godown fulfills the requirement of brochure, petitioner offered two alternative lands; one for godown situated at Bhim Road, Near Gopal Dwara, Mandal-311403, District Bhilwara in aaraji No.2659 and second land was situated at Ghambirpura, Data Kala, Mandal-311403, District Bhilwara, in aaraji No.105 & 106.
9. The respondents considered petitioner's reply and vide impugned order dated 23.01.2019, rejected her candidature inter alia indicating that though the lease-deed dated 08.02.2013 had validity for 15 years, but the same was not valid for a period of 15 years from the date of advertisement (23.08.2017).
10. Mr. Shrimali, learned counsel appearing for the petitioner argued that rejection of petitioner's candidature by way of impugned order dated 23.01.2019 is illegal and deserves to be quashed. He argued that the terms of the advertisement simply requires that a candidate should offer a leasehold land having 15 years' validity.
11. He informed that the application form contains following condition with respect to land :-
"Provide following details for the plot(s) of land for construction of LPG godown or constructed LPG godown owned or registered lease for minimum 15 years in the name of applicant/member of Family Unit commencing on any date from the date of advertisement upto last date of submission of application as specified either in the advertisement or (Downloaded on 02/03/2021 at 09:31:48 PM) (4 of 9) [CW-1754/2019] in the Corrigendum (if any) and meeting the norms specified."
12. Learned counsel argued that as per clause 4 of the application form, the petitioner's application form could not have been rejected inasmuch as on the date of submitting application form i.e., 25.09.2017, the petitioner had got the lease-deed extended upto 07.02.2033 and said supplementary lease agreement was also got registered on 15.01.2018.
13. Learned counsel argued that in light of provision of Section 47 of the Registration Act, the registration will relate back to the date of execution of lease agreement dated 25.09.2017 and thus, it cannot be said that the petitioner was not having a land in her favour on the date of application. He emphasized that on 25.09.2017, the lease-deed was valid upto 07.02.2033, thus rejection of petitioner's candidature was illegal.
14. Mr. Shrimali also argued that in response to the notice dated 02.05.2018 issued by the respondent-Corporation, though the petitioner had offered two alternative lands, but the respondents have rejected petitioner's candidature by stating that the applicant has not submitted any alternative land.
15. Inviting Court's attention towards the reply dated 11.08.2018, Mr. Shrimali highlighted that petitioner had offered alternative lands and the respondents were under an obligation to consider the same.
16. Mr. Bora, learned counsel appearing for the respondent- Corporation submitted that petitioner's candidature has rightly been rejected.
17. He highlighted that the lease deed which the petitioner had relied upon and placed on record, along with her application form, (Downloaded on 02/03/2021 at 09:31:48 PM) (5 of 9) [CW-1754/2019] was a registered lease deed, executed on 08.02.2013, having its validity for 15 years, whereas the terms of the brochure/advertisement requires that lease deed should be executed on any date between date of advertisement till the last date of submitting application form, having its validity for 15 years.
18. According to the learned counsel for the respondent, the Corporation requires a leasehold land having its validity of 15 years and thus, petitioner's argument that on the date of application, petitioner had a lease agreement for 15, years cannot be accepted.
19. He argued that the fact that petitioner had enclosed a duly notarized agreement purportedly extending the lease period till 07.02.2033, cannot be accepted inasmuch as the agreement dated 25.09.2017 was got registered on 15.01.2018.
20. In relation to furnishing of alternative land, Mr. Bora invited Court's attention towards the reply filed by the respondents and argued that even the said alternative land offered by the petitioner does not meet the norms.
21. In rejoinder, Mr. Shrimali relied upon the judgment of Hon'ble the Supreme Court reported in (1995) AIR(SC) 73 (Thakur Kishan Singh Vs. Arving Kumar) particularly para No.3 of the judgment aforesaid which reads as :-
"Section 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced to operate if no registration thereof have been required or made and not from the time of its registration. It is well established that a document so long it is not registered is not valid yet once it is registered it takes effect from the date of its execution."(Downloaded on 02/03/2021 at 09:31:48 PM)
(6 of 9) [CW-1754/2019] 22. Heard.
23. The respondents have rejected petitioner's candidature vide impugned order dated 23.01.2019. Precise reason for rejection was as under :-
"This notarized agreement/lease deed was registered only on 15.01.2018 i.e. after the last date of submission of application i.e. 25.09.2017. Therefore subject lease deed would be valid for only 10 years, 5 months, 15 days as on the date of subject advertisement i.e. 23.08.2017. Hence these lease extension agreements cannot be considered. Further you have not submitted any documents for alternate godown land confirming to the applicable Unified Guidelines for Selection of LPG Distributors."
24. In considered opinion of this Court, the facts are not in dispute that on the date of submitting application form i.e. 25.09.2017, the petitioner had in her husband's favour land having lease hold rights for 15 years, but the lease hold rights were from 08.02.2013 to 07.02.2028.
25. True it is that along with the application form, the petitioner had placed an agreement dated 25.09.2017, vide which lease hold rights were extended upto 07.02.2033, however, the same was not a registered document. It was got registered on 15.01.2018.
26. This being the position, on the date of submitting application form i.e. 25.09.2017, the period of lease-deed, which the petitioner's husband was having, was indisputably less than 15 years.
27. Following the proviso appended after definition clause in para 1 (W) unequivocally shows that an applicant having a registered lease-deed commencing on any date, prior to the date of advertisement will also be considered, provided the lease-deed is (Downloaded on 02/03/2021 at 09:31:48 PM) (7 of 9) [CW-1754/2019] valid for a minimum period of 15 years from the date of advertisement.
28. On the date of furnishing application form, the petitioner did not have a valid lease-deed for a period of 15 years.
29. The fact that the petitioner had enclosed a supplementary lease document dated 25.09.2017, will not convey lease-hold right in favour of her husband, as the lease-deed was not registered.
30. Section 47 of the Registration Act does not lend any statutory support to the petitioner inasmuch as the said provision is applicable in a contingency, when the document was not required to be registered, when the same was made and was got registered afterwards.
31. Section 47 requires that registered document shall operate from the date of its execution, provided its registration was not required when executed, if the document is registered, after a subsequent date.
32. In the instant case, such is not the situation. As per the norms set by the respondent-Corporation, a candidate applying for awarding of LPG Distributorship, was required to have a registered lease-deed in his/her favour.
33. The judgment of Hon'ble the Supreme Court in the case of Thakur Kishan Singh (supra) is not of any help to the petitioner, as the same deals with a situation when the document got registered later on and on the date of execution, the document dated 05.12.1945 was not required to be registered.
34. In considered opinion of this Court, the respondents have committed no illegality or error in rejecting petitioner's candidature.
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35. So far as the land situated in Khasra (Aaraji) No.57 of village Dhuwala, Mandal is concerned, this Court finds that the petitioner had offered alternative land by way of her response to the notice dated 02.05.2018.
36. While passing the impugned order dated 23.01.2019, the respondents have stated that the petitioner has failed to submit any document for any alternative godown land, but in the reply to the writ petition, the respondents have indicated that her alternative land was not found suitable.
37. There is a clear contradiction in the order dated 23.01.2019 if the reply filed by the respondents is carefully read.
38. If respondents were of the view that the alternative land offered by the petitioner was not suitable, such stand ought to be reflected in the impugned order dated 23.01.2019.
39. As an upshot of discussion aforesaid, the writ petition is partly allowed. It is held that petitioner's candidature has rightly been rejected qua the land situated in Aaraji No.57/1 in village Dhuwala, Mandal.
40. The matter is remanded back. The order dated 23.01.2019 is quashed to the extent it stipulates that the petitioner had not submitted documents for alternative godown land.
41. The respondents shall issue a notice providing an opportunity of personal hearing to the petitioner within a period of seven days from today. They shall consider the alternative land if offered by the petitioner and pass a fresh order qua her alternative land, in accordance with law, preferably within a period of four weeks from today. The order shall be intimated to the petitioner.
42. Petitioner's right to take her remedies against any such order (if passed against her), shall remain reserved. (Downloaded on 02/03/2021 at 09:31:48 PM)
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43. All interlocutory applications including the application under Article 226(3) of the Constitution of India stand disposed of.
(DINESH MEHTA),J 86-Amar/-
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