Allahabad High Court
Aashkar Hussain vs Indian Oil Corporation And Others on 18 December, 2013
Bench: Arun Tandon, Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- WRIT - C No. - 67524 of 2012
Petitioner :- Aashkar Hussain
Respondent :- Indian Oil Corporation And Others
Counsel for Petitioner :- Kshitij Shailendra,S.S.Chauhan
Counsel for Respondent :- P. Padia,Anand Mohan Pandey,Dr.D.K.Tiwari,S.C.
Hon'ble Arun Tandon,J.
Hon'ble Anjani Kumar Mishra,J.
Petitioner before this Court seeks quashing of the orders dated 28.5.2012, 30.5.2013, 24.11.2012/ 27.11.2012 as well as the result declared on 28.5.2012 in respect of the retail outlet dealership under the Kisan Seva Scheme in respect of the location at Allahpur, Bhikan, District Moradabad.
Under the order dated 30.5.2013, copy whereof is enclosed as Annexure 4 to present writ petition, the petitioner has been informed that he has been non-suited in the matter of selection for two reasons:-
(a) from the revenue extracts pertaining to the plot offered by the petitioner, namely Khasra No. 185 of Khata No. 51, Village Allahpur, it is apparent that Khalil Ahmad and Zulfikar Hussain were also co-owners of the plot and the petitioner had not enclosed any registered agreement executed by Khalil Ahmad in respect of his having no objection for the establishment of the retail outlet on the land so offered and therefore the essential conditions of the advertisement had not been satisfied.
(b) Plot No. 185 offered by the petitioner was mortgaged with the Bank for securing the loan of Rs. 10,00,000/- by Zulfikar and that the land was released from mortgage after the last date of submission of the application.
Challenging the findings so recorded, counsel for the petitioner contended that a registered sale deed had been executed in favour of the petitioner of 0.32 acres of Khasra No. 185 by the owner of the property namely, Zulfikar, who was the father of the petitioner. The land so purchased by the petitioner under the registered deed executed on 11.1.2011 satisfied the minimum required area as per the conditions of the advertisement.
It is further stated that since the petitioner had purchased an exclusive area of the plot there was no requirement of any registered agreement being executed by other tenure holder of Khasra No. 185, who had distinct shares. He further submitted that under the conditions of the brochure it was not necessary to disclose that the land offered had been mortgaged or not inasmuch as only title over the land in question had to be disclosed and supported by the documents, and that under the brochure if the property was under mortgage it had to be re-deemed within two months of the issuance of the letter of intent and therefore from the condition of the brochure itself it was established that the property being mortgaged on the date of application cannot be the basis of the cancellation of the candidature of the petitioner.
Sri Prakash Padia on behalf of the India Oil Corporation points out that from the sale deed which has been brought on record by the petitioner himself, (at page 71 of the paper book) it is established that Zulfikar had executed a sale deed of only .32 acre in favour of the petitioner and the deed itself contained a specific recital that the transferor shall retail possession and title over the 1.03 acre of the land covered by the same.
He further points out that during investigation the Khatauni of the land was obtained and it was revealed that same plot No. 185 had been mortgaged for the purposes of securing loan by the father of the petitioner along with one Khalil Ahmad.
It is therefore writ large on the record that Khalil Ahmad and Zulfikar continued to be the co-owners of the plot No. 185. Partition by meets and bounds had not been made at any point of time and therefore in terms of the advertisement the petitioner was required to have a registered agreement with the other co-owners namely, Khalil Ahmad and Zulfikar and therefore the petitioner was held to be ineligible for being considered for the dealership.
Counsel for the respondent no. 4 has taken a similar stand.
We may record that a letter of intent has already been issued in favour of the respondent no. 4 which has been subjected to challenge by means of the amendment application.
Having heard counsel for the parties and examined the record of the present writ petition we find that under the conditions of the advertisement and the brochure published for the purpose it was a mandatory requirement that if the applicant was a joint owner of a particular plot of land along with others then he had to file a registered agreement executed by other co-owners that they had no objection to the establishment of retail outlet on the plot in question.
From the records, specifically the sale deed and the Khatauni of Plot No. 185 as brought on record by the petitioner himself along with the present writ petition (pages 71 and 78 of the present paper book) it is established beyond doubt that Khalil Ahmad and Zulfikar were other co-owners of plot No. 185 and absolutely no agreement executed by Khalil or any notorial affidavit of Zulfikar who is the father of the petitioner was brought on record to suggest that they had no objection to the establishment of retail outlet over the plot in question.
The original application form of the petitioner has been examined by the Court and it is found that the petitioner in the application claim himself to be exclusive owner of the plot in question.
In the totality of the circumstances on record, we are satisfied that the decision taken by the Corporation qua the petitioner having not satisfied the essential conditions for being eligible for the dealership is based on incorrect reading of the condition mentioned in the advertisement and those mentioned in the brochure.
The writ petition is accordingly dismissed.
The original records have been opened by the Court and are returned to Sri Prakash Padia today in Court.
Order Date :- 18.12.2013
Priyanka
