Bombay High Court
Ramakant Dattu Magar vs The Union Of India And Others on 11 December, 2014
Bench: B.P. Dharmadhikari
(1) W.P. Nos. 9467 & 9511 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 9467 of 2014
With
Vilas s/o. Rambhau Chaudhari,
Age : 30 years,
Occupation : Business,
R/o. Chaitanyawadi, Buldhana,
Taluka & District : Buldhana. .. Petitioner.
versus
1. Hindustan Petroleum Corporation Ltd.,
17, Jamshedaji Tata Road,
Mumbai.
2. Hindustan Petroleum Corporation Ltd.,
Aurangabad L.P.G. Regional Office,
H-1, M.I.D.C., Chikalthana, Aurangabad,
Through its Chief Regional Manager. .. Respondents.
.........................
Mr. R.N. Dhorde, Senior Advocate, with
Mr. P.S. Dighe, Advocate, holding for
Mr. V.R. Dhorde, Advocate, for the petitioner.
Smt. Anjali Dube (Vajpayee), Advocate, for
respondent nos.1 and 2.
..........................
Writ Petition No. 9511 of 2014
Ramakant s/o. Dattu Magar,
Age : 40 years,
Occupation : Agriculture,
R/o. At Post : Khadgaon,
Taluka & District : Latur. .. Petitioner.
::: Downloaded on - 12/12/2014 23:47:18 :::
(2) W.P. Nos. 9467 & 9511 of 2014
versus
1. The Union of India,
Through Petroleum Ministry,
New Delhi.
2. Hindustan Petroleum Corporation Ltd.,
Jamsethji Tata Road, Mumbai,
Through its Managing Director.
3. Hindustan Petroleum Corporation Ltd.,
LPG Regional Office,
Chakan, Pune,
Through its Senior Regional Manager. .. Respondents.
ig .........................
Mr. A.V. Patil Indrale, Advocate, for the petitioner.
Mr. S.B. Deshpande, Assistant Solicitor General of India,
for respondent no.1.
Smt. Anjali Dube (Vajpayee), Advocate, for
respondent nos.2 and 3.
..........................
CORAM : B.P. DHARMADHIKARI &
A.M. BADAR, JJ.
Date of reserving the
judgment : 18th November 2014.
Date of pronouncing the
judgment : 11th December 2014.
JUDGMENT (Per B.P. Dharmadhikari, J.) :
1. Both these petitions challenge the rejection of offers
(3) W.P. Nos. 9467 & 9511 of 2014
submitted by respective petitioners to the respondents / Oil Company, in
pursuance of the public invitation in various newspapers in September
2013. This advertisement was published in 'Daily Lokmat' on 29th
September 2013, and last date for submitting the application was 29-10-
2013. As the petitioners have found not eligible and the grounds are
common, we have heard both the matters together, by issuing Rule and
making it returnable forthwith with consent of parties.
2. The learned Senior Adv. Mr. R.N. Dhorde with Adv. Mr. P.S.
Dighe argued the matter for the petitioner in Writ Petition No. 9467 of
2014, while Adv. Mr. A.V. Patil Indrale advanced the arguments on behalf
of other petitioner. Adv. Smt. Anjali Dube (Vajpayee) appeared for the
concerned Oil Company in both the matters. The learned ASGI Mr. S.B.
Deshpande has filed appearance for respondent no.1 - Union of India, in
Writ Petition No. 9511 of 2014.
3. The fact, that both the petitioners filed their applications
before last date, is not in dispute. Claim of petitioner Vilas Chaudhari in
W.P. No. 9467/2014, has not been entertained on the ground that he
offered a showroom land held on registered lease agreement for 15 years
from 1-10-2013, while requirement was to have the same for minimum 15
years from last date of submission of application i.e. 29-10-2013. The
petitioner thereafter submitted a representation on 22-7-2014 and pointed
out that necessary correction deed has been executed between parties. He
also submitted that document. The said representation has been rejected
on 7th October 2014, maintaining the earlier stance.
4. Other petitioner, namely, Ramakant Magar, challenges order
(4) W.P. Nos. 9467 & 9511 of 2014
dated 19-8-2014. He has been informed that he did not have a registered
lease agreement for godown and showroom, for minimum 15 years as on
29-10-2013. The Oil Company has pointed out that as per stipulation in
advertisement, lease deed needed to be valid up to 28-10-2028, and his
agreement was valid only up to 24-10-2028. Other reason given is,
affidavit in relation to godown and showroom was not executed by
landlord as required by Appendix IV.
5. Writ Petition No. 9467/2014 has been amended as per court
orders dated 28-10-2014, to incorporate a challenge that the petitioner
ought to have been given an opportunity to cure the deficiency about
shortfall in lease duration.
6. Learned Sr. Adv. Mr. Dhorde has invited attention to relevant
clauses in the advertisement, to urge that the stipulation in Clause 9 of the
advertisement required application to be submitted by 29-10-2013 and
there was no condition which required the lease to continue for a period of
15 years beyond said date. He further submits, that the petitioner already
had a lease deed in his favour duly registered in accordance with law, on
15-10-2013. The application was submitted by said petitioner - Vilas
Chaudhari on 28-10-2013 along with said lease deed and hence the
document ought to have been accepted as proper and valid. He submits,
that reason for rejection of that lease is unsustainable. It is further
submitted, that the petitioner received a letter dated 17-7-2014, informing
him about said deficiency. But before that, i.e. on 30th June 2014 itself,
the correction deed was executed and duration of lease deed was
mentioned from 29-10-2013 to 28-10-2028. Thus, the petitioner had
(5) W.P. Nos. 9467 & 9511 of 2014
supplied a lease deed which was valid for a period of 15 years when
computed from the last date of submission of application. The petitioner
pointed out all these facts in his representation dated 22-7-2014. Rejection
of that representation vide later communication dated 7-10-2014, is
unsustainable. He further contends that interpretation of Clause 6.1(viii)
by the respondents and calling upon petitioner to show a lease beyond
period of 15 years, from 29-10-2013, is incorrect and unsustainable.
7. The learned Sr. Adv. has relied upon the common order
passed on 9th October 2014 by Division Bench of this Court, in Writ
Petition No. 2812/2014 and other connected matters, at Nagpur.
ig He
submits, that the said Division Bench has correctly noticed confusion and
also provisions in Clause 8.5 of the guidelines. He also states that though
a contrary view has been taken earlier on 10th June 2014, by a Division
Bench of this Court in Writ Petition No. 5020/2014, at Bombay, Division
Bench at Nagpur rightly found that Clause 8.5 of said guidelines was not
pressed into service at Bombay. He further states, that at Aurangabad, the
Division Bench has while deciding Writ Petition No. 5223/2014, on 27th
June 2014, and Writ Petition No. 7094/2014, on 29th September 2014, has
followed the Bombay view and had no occasion to consider Clause 8.5.
Bombay view has been questioned before Hon'ble Apex Court, in S.L.P.
(Civil) No. 20708/2014, and on 6th August 2014, the Hon'ble Apex Court
has granted interim stay in the matter.
8. Adv. Dhorde has also relied upon judgment of Hon'ble Apex
Court, in the case of Girnar Traders Vs. State of Maharashtra & others ,
reported in 2007(7) SCC 555, particularly paragraphs 55 and 56 thereof, to
(6) W.P. Nos. 9467 & 9511 of 2014
substantiate his contentions. He submits, that the opportunity to submit
correct document needed to be extended in the present facts and not doing
so is violative of Articles 14 and 19(1)(g) of the Constitution of India.
9. Adv. Mr. Patil Indrale adopts the arguments of learned Sr.
Advocate, in so far as Writ Petition filed by Ramakant Magar is
concerned. He further submits, that the other ground given in the
impugned order dated 19th August 2014, to reject the application of
Ramakant Magar is equally erroneous. According to him, the brochure
issued by Oil Company clearly shows that affidavit is required only when
the land offered is owned jointly and not otherwise. He states that as the
land offered by the petitioner was not held jointly or by joint family, the
affidavit submitted by the petitioner cannot be stated to be incorrect and
unacceptable. He has, in addition, also relied upon a Division Bench
judgment delivered at Patna, in L.P.A. No. 1159/2011, on 16-12-2011, to
urge that opportunity, as sought for, needed to be granted.
10. Adv. Smt. Dube (Vajpayee) on behalf of the respondent - Oil
Company has urged that the matter pertains to domain of contract and as
terms and conditions are very clear, the parties cannot seek any dilution of
or relaxation from the same. The eligibility norms cannot be allowed to be
defeated and as both the petitioners were not eligible, they could not have
submitted the applications. She further submits, that the deficiencies
spoken of, in Clause 8.5, cannot be confused with the eligibility norms.
She has taken us through various clauses of "August 2013 brochure", to
substantiate her submission.
11. The ground in relation to affidavit of land owner mentioned in
(7) W.P. Nos. 9467 & 9511 of 2014
communication dated 19th August 2014, forming subject matter of
challenge in Writ Petition filed by Ramakant Magar can be dealt with first.
Perusal of Clause No. 6.1 of the guidelines for selection reveal that at page
7 of said book of guidelines, with reference to Sub-Clauses (vii) and (viii)
of this Clause 6.1, there is a clarification. The first part of clarification
points out the meaning of word 'own'. Paragraph thereafter is regarding
the land jointly owned by applicants. It states that if such land is jointly
owned and share of land in the name of applicant meets the requirement of
land including dimensions required, that land for godown / showroom also
qualifies for examining eligibility as own land, subject to submission of
no objection certificate in the form of a notarized affidavit from its other
owners. The proforma of this notarized affidavit is given in Appendix IV.
It specifically stipulates that all the joint owners / joint lessees of land
except the applicant have to submit their individual affidavit. Thus, this
affidavit is essential only when it is shown that land offered does not
belong exclusively to Ramakant and some other persons also have
interest in or title to it. Petitioner - Ramakant in his affidavit has pointed
out this position & his sole ownership. However, the same appears not to
have been looked into. There is nothing on record to show that land
offered by petitioner was not available exclusively to him and there are
any joint holders. The rejection of his application on the said ground,
therefore, is unsustainable.
12. The later ground of not holding a lease for 15 years, as on the
last date of submission of application, needs to be considered. The facts
noted supra show, that Ramakant had a lease which fell short just by four
days, while Vilas had a lease which expired about 28 days before the
(8) W.P. Nos. 9467 & 9511 of 2014
prescribed date. Vilas had on 30th June 2014, also got a deed of
rectification which, according to him, cured this lacuna.
13. To understand nature of this requirement, it is essential to find
out the relevant stipulations contained in procedure on guidelines for
selection of regular LPG Distributors. Parties do not dispute that said
brochure published in August 2013, is relevant for present consideration.
Clause 5 is about mode of selection and Clause 6 prescribes eligibility
criteria for individual applicants. Clause 6.1 prescribes eligibility for those
who apply as an individual. While prescribing the minimum educational
qualifications, the guideline 6.1(ii) stipulates that it has to be possessed 'as
on the date of application'. Sub-Clause (iii) prescribing age also co-
relates it with very same date i.e. 'as on the date of application'. Bar on
family member of an employee of Oil Marketing Company is also to be
read with reference to same date. Sub-Clause (vii) is about owning a plot
of land of dimensions mentioned therein and there, the date stipulated is
last date for submission of application. We find it appropriate to reproduce
the relevant part :-
" Should own as on the last date for
submission of application as specified in the
advertisement or corrigendum (if any) ......"
Reference to this date is again appearing in last paragraph of said Sub-
Clause when case of applicant having more than one suitable plots is taken
into consideration. Sub-Clause (viii) is about owning a suitable shop
where again reference is to last date and very same words i.e. 'as on the
last date for submission of application as specified in the advertisement or
(9) W.P. Nos. 9467 & 9511 of 2014
corrigencum (if any)' appear.
14. Thereafter, the concept of owning has been explained and
relevant part reads thus :
" ' Own' means having ownership title of the
property or registered lease agreement for minimum
15 years in the name of applicant / family member
(as defined in multiple distributorship norm of
eligibility criteria) as on the last date for submission
of application as specified in the advertisement or
corrigendum (if any). In case of ownership / co-
ownership by family members(s) as given above,
consent in the form of a Notarized Affidavit from
the family members(s) will be required. "
Thus, the brochure or guidelines very spedifically lay down that
registered lease agreement has to be for minimum 15 years as on the last
date for submission of application. The selection of particular number of
years or its relevance has not been assailed before this court. Similarly,
selection of point of time to decide eligibillity or wisdom behind it i.e.
validity of norm of "last date for submission of application", is again not in
challenge. The fact, that advertisement needed to be understood, and
application form needed to be filled in, as stipulated in the brochure, is also
not in dispute. In fact, the form of application for individual applicant is at
Appendix-I at page 24 of the brochure. Thus, petitioners got this brochure
when they obtained the applications. Advertisement also refers to the same
(10) W.P. Nos. 9467 & 9511 of 2014
expressly. None of the petitioners have argued that they were not aware of
this stipulation.
15. The matter pertains to domain of contract and the stipulation of
having lease agreement for minimum 15 years, as on last date, is expressly
stipulated as an eligibility criterion. The learned Counsel have not even
urged that said condition is not an essential condition but colateral one.
There is no contention that petitioners have substantialy complied with it.
In Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority,
(2013) 10 SCC 95, at page 101, Hon. Apex Court points out the limited scope
available for intervention in such matters. Paragraph 9 therein reads :--
"9. Tata Cellular9 states thus: (SCC pp. 677-78, para
77)
"77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
(1) Whether a decision-making authority exceeded
its powers?
(2) committed an error of law,
(3) committed a breach of the rules of natural
justice,
(4) reached a decision which no reasonable tribunal
would have reached or,
(5) abused its powers.
Therefore, it is not for the court to determine
whether a particular policy or particular decision
taken in the fulfilment of that policy is fair. It is only
concerned with the manner in which those decisions
have been taken. The extent of the duty to act fairly
(11) W.P. Nos. 9467 & 9511 of 2014
will vary from case to case. Shortly put, the grounds
upon which an administrative action is subject to
control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury11
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not
rule out addition of further grounds in course of time.
As a matter of fact, in R. v. Secy. of State for the
Home Deptt., ex p Brind 12, Lord Diplock refers
specifically to one development, namely, the possible
recognition of the principle of proportionality. ‡ In all
these cases the test to be adopted is that the court
should, 'consider whether something has gone wrong
of a nature and degree which requires its
intervention'."
Thus, we have to keep in mind the above principles.
16. Clause (viii) of the brochure stipulates that individual who
fulfills the eligibility criteria, can submit application for LPG
Distributorship in format given in Appendix-I. This, therefore, is again in
the context of eligibility criteria stipulated in Clause 6.1 supra and ,
reference is to Sub-Clauses (vii) and (viii). Hence, only an individual who
satisfies the said eligibility can only submit application. Impliedly, those
who do not meet said requirement cannot apply. Clause 8.5 is about
procedure for receipt of application. Said clause reads as under :-
(12) W.P. Nos. 9467 & 9511 of 2014
" Procedure for Receipt of Application ―
Application would be received in sealed envelope only.
After application is received, serial number would be
put on the envelope and also recorded in a 'Register'.
Acknowledgement for applications received will be sent
to the applicants. In case deficiencies are found in the
application, a letter would be sent to the applicant to
rectify the deficiencies within a specified period of
time."
Clause 9 thereafter, is about 'procedure for draw'.
17. This scheme, when viewed, does not show a stage at which
application submitted by individual applicant can be rejected before stage of
Clause 8.5. The applications are to be received in sealed envelope only, that
too from eligible candidates and acknowledgment is issued to applicant of
having received such application after receipt of such an envelope. The
stage at which envelopes will be opened, or procedure for opening is not
appearing in Clause 8.5, or anywhere else. But then, there is no challenge
raised before this court in that connection.
18. The opportunity to rectify deficiencies within specified period
of time is contemplated in Clause 8.5. It is obvious, that deficiencies can
come to light only after the envelope is opened. Envelope is to be submitted
by an individual who fulfills the eligibility criteria. Thus, one who does not
fulfill said criteria, cannot submit that envelope. The word 'deficiencies',
therefore, will have to be understood as used in contrast with 'eligibility
(13) W.P. Nos. 9467 & 9511 of 2014
criteria'. Not possessing any of eligibility criterion, therefore, cannot be
allowed to be cured or amended by taking recourse to Clause 8.5.
19. We have considered the judgment of the Hon'ble Apex Court,
in the case of Girnar Traders Vs. State of Maharashtra & others (supra), cited
by the learned Senior Advocate, and perused paragraphs 55 and 56 therein.
The Hon'ble Larger Bench of Apex Court has considered the scheme of
Section 127 of the Maharashtra Regional & Town Planning Act, 1966,
stipulation of time within which notice for acquisition can be given and
purpose of providing such time limit in the scheme of enactment. We are
unable to connect said precedent with present facts.
20. In so far as the judgment in the case of Rashmi Metalinks
Limited & another Vs. Kolkata Metropolitan Development Authority & others ,
reported at 2013(10) SCC 95, is concerned, the Hon'ble Apex Court has
considered the question of a term in tender i.e. when it can be called as
essential term. In paragraph 10.5, the Hon'ble Apex Court has observed
thus :-
" This analysis of the cited case law shows that
there is little or no advantage to be gained from the
manner in which the Court has responded to the
factual matrix as other courts may legitimately place
emphasis on seemingly similar facts to arrive at a
different conclusion. But the ratio decidendi has to
be adhered to. The counsel must therefore exhibit
circumspection in the number of cases they cite.
(14) W.P. Nos. 9467 & 9511 of 2014
The three-Judge Bench in Tata Cellular Vs. Union
of India (1994) 6 SCC 651, is more than sufficient
to adumbrate the law pertaining to tenders; the
later decision of the coordinate Bench in Siemens
Public Communication Networks (P) Ltd. Vs. Union
of India (2008) 16 SCC 215, is in the nature of
annals of previous decisions on the point. "
In facts before it, the Hon'ble Apex Court has in paragraph 18 noted
that the income tax return would have assumed the character of an essential
term if one of the qualifications was either the gross income or the net
income on which tax was attracted. It is found that it is indicative of the
commercial standing and reliability of the tendering entity. As such
stipulation was absent, mere requirement of filing latest income tax return
has been held to be a collateral term by the Hon'ble Apex Court. The
Hon'ble Court, therefore, found that Tendering Authority ought to have
given an opportunity to tenderer to make amounts for its failure to submit
latest income tax return along with its bid by bringing the discrepancy to its
notice. The Hon'ble Apex Court also observes, that if after such
opportunity, tenderer fails to rectify the error, position will be different.
21. Here, the reference to point of time, in brochure has been noted
by us supra. While prescribing eligibility criteria in relation to education
qualification, age or disqualification being a member of a family, the
requirement has been corelated with date of application. While specifying
ownership of a land, it has been connected to the last date for submission of
application. This change in date for examination of eligibility is not argued
(15) W.P. Nos. 9467 & 9511 of 2014
to be either arbitrary or otherwise unsustainable before us. Similarly, when
concept of "owning" is explained, the requirement is of lease agreement for
minimum 15 years. This word 'minimum' also becomes significant.
Intention behind specifying two different dates while undertaking scrutiny
or relevance of last date presribed for submission of application
emphasized by word "minimum" establish that duration of lease held as on
last date is an essential condition.
22. The requirement of having registered lease agreement for
minimum 15 years has been corelated to 'as on the last date for submission
of application'. Thus, having a registered lease agreement for minimum 15
years, is the qualification which individual must possess on the last date for
submission of application i.e. 29-10-2013, in the present facts. Both the
petitioners do not satisfy this. The brochure mandates having lease for
minimum 15 years on 29-10-2013 and this is an eligibility condition. It
cannot be viewed here, as a collateral or non-essential condition. It is an
essential term of the tender.
23. Having a registered lease for minimum 15 years, as on 29-10-
2013, itself implies that lease must be valid for 15 years next from the said
last date. A person who has sometime in the past entered into a registered
lease and obtained it for a period of 15 years from the date of execution
thereof in his favour cannot contend that he has got a registered lease
agreement for 15 years. Hypothetically, a person who has entered into a
registered lease agreement, for a period of 15 years, on 31st October 1998,
can legitimately urge that he has an agreement of 15 years of lease with him
on 29-10-2013. Merely possessing an agreement is not sufficient to meet
(16) W.P. Nos. 9467 & 9511 of 2014
the eligibility norm as prescribed by Oil Company in the present matter.
The stipulation along with its clarification makes it clear that lease
agreement has to be for a duration of minimum 15 years next, and that
period of 15 years has to be calculated after the last date i.e. 29-10-2013.
Considering the purpose for which advertisement is issued and the nature of
business for which petitioners aspire, it is abundantly clear that the
minimum period of 15 years sought for by Oil Company cannot be said to
be irrelevant & unfair. The Oil Company is free to decide said period and
terms and conditions of contract. Unless and until this selection of period is
shown to be perverse or arbitrary, or with any oblique motive, the same
cannot be judicially reviewed by this court. This unambigious stipulation in
the advertisement / brochure document, therefore, needs to be honoured.
24. Clause 8.5 mentioned supra needs to be understood in this
background. Deficiency which can be cured after envelope submitted by
applicants is opened, is therefore, not in relation to the eligibility norm.
Clause 8.5 only permits inadvertant errors to be rectified or corrected. Such
an inadvertent error may be in relation to submission of a demand draft of a
Co-operative Bank instead of demand draft of a Nationalized Bank,
substitution of a residence certificate already on record by allowing
production of a certificate issued by competent authority in proper format,
etc. Thus eligibility already possesed before the prescribed date or last date,
may be allowed to be demonstrated by supplying its proof. But such a
provision can not be used to bring on record the fact that eligibility norm
not met with till the relevant date, has been subsequently satisfied. Thus, it
is not an opportunity extended to acquire the eligibility after the relevant
date. If arguments of the petitioners are accepted, the logic behind
(17) W.P. Nos. 9467 & 9511 of 2014
prescribing the last date will itself be frustrated & lead to uncertainity or
arbitrariness.
25. The judgment delivered by Hon'ble Division Bench of Patna
High Court in L.P.A. No. 1159/2009, considers the error committed in
affidavit by writ petitioner. Instead of word ' नयायालय' (Court) in his affidavit,
he mentioned the word 'कायालय' (Office) in his affidavit. He rectified the
same and a fresh affidavit was filed in proper format before applications
were considered for final selection. His application was not considered and
he filed Writ Petition before learned Single Judge. The learned Single
Judge held that the defence raised by Oil Company was hypertechnical.
The Division Bench found that Oil Company, being State within meaning of
Article 12 of the Constitution, was supposed to act fairly, reasonably and
uniformly. To remain objective, it had to adhere to standards mentioned in
the advertisement. As the application submitted by writ petitioner was not
in conformity with said stipulation in advertisement, the Division Bench of
Patna High Court found appeal preferred by Oil Company justified and its
appeal came to be allowed.
26. The Division Bench of this Court at Bombay, while deciding
Writ Petition No. 5020/2014, on 10th June 2014, considered a lease which
was for a period of 15 years from 24th October 2013. Very same
advertisement and very same clause has been looked into and the lease
period was found short by 5 days for completing the period of 15 years.
Though Clause 8.5 permitting deficiencies to be removed, has not been
looked into, the contention of said petitioner at Bombay, that he was willing
to extend the period of lease by 5 days, has been evaluated and negated.
(18) W.P. Nos. 9467 & 9511 of 2014
The Division Bench at Aurangabad, while deciding Writ Petition No.
5223/2014 and three other matters, has considered same clause and
requirement of 15 years with reference to last date of submission of
application and rejected the petitions. on 29th September 2014, for the
same reasons, four other Writ Petitions were dismissed in motion hearing.
Though order dated 27th June 2014 does not make reference to Clause No.
8.5 of the brochure, it takes note of the judgment delivered at Bombay in
Writ Petition No. 5020 of 2014. The later order dated 29th September 2014,
mentions the Bombay order and also considers Clause 8.5. It appears that,
at Aurangabad, Writ Petition No. 4640/2014 was also dismissed on 11-6-
2014.
27. At Nagpur, Division Bench, on 10-10-2014, considered a
challenge in Writ Petition No. 282 of 2014. That Division Bench found that
the petitioner before it, should have furnished the document of title of
members of his family unit or a lease deed for a period of 15 years in his
name and hence, rejection of his offer by Oil Company was found correct.
The Division Bench also looked into Clause 8.5 of the guidelines and held
that only where there was any minor technical defect in the application, it
could have been allowed to be corrected. Very same Bench has, a day
earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ
Petition No. 2812/2014 with connected matters. There the challenge as is
being looked into by us, has been considered in the background of Clause
8.5. Oil Company had rejected the applications of those petitioners on the
ground that though lease period was required to be of 15 years, as on last
date of submission of application; in all cases, it was short by few days.
The shortfall was between one day to 7 days. The Division Bench at
(19) W.P. Nos. 9467 & 9511 of 2014
Nagpur has noted that the petitioners before it had entered into lease deeds
with the owners of the property for a period of 15 years, either on the last
date of submission of application on 29-10-2013 or within a period of 7
days preceding the date of filing of the application. At page 22, the
Division Bench has recorded its finding in the background of guidelines in
force till year 2012. Old guidelines did not provide for submission of a
lease deed for a period of 15 years from the last date for submission of
application. It appears that the Oil Companies till then required only a lease
deed for a period of 15 years. Said Division Bench then found that the
stipulation in 2013 guidelines resulted in some confusion. It has mentioned
that this confusion resulted in filing of petitions before various High Courts
in the country.
28. The parties before this Court have not pointed out the
judgments delivered by other High Courts on said Clause. The Division
Bench at Nagpur has mentioned some internal communications between
offices of Oil Companies and looking to the confusion in the mind of office
bearers of Oil Company, it felt that the petitioners needed to be given an
opportunity to produce the correction deed by invoking Clause 8.5 of the
guidelines of 2013. No such communications revealing any confusion are
pointed out to us. The Division Bench was not required to consider whether
'deficiencies' contemplated in Clause 8.5 also included & extended to the
eligibility norms. The judgment of Hon'ble Apex Court, in the case of
Rashmi Metalinks Limited & another (supra) was also not pressed into
service before said Bench.
29. In the light of arguments advanced before us, we find that the
(20) W.P. Nos. 9467 & 9511 of 2014
eligibility norm of having a registered lease deed for minimum 15 years, 'as
on the last date for submission of application', cannot be construed as
'deficiency', and as it is essential term, an opportunity in terms of Clause
8.5 cannot be extended.
30. In this situation, rejection of application of both the petitioners,
on the ground that they have failed to satisfy eligibility norm, cannot be
faulted with.
31. Both the Writ Petitions are accordingly dismissed. Rule
discharged. No costs.
( A.M. BADAR ) ( B.P. DHARMADHIKARI )
JUDGE JUDGE
................................
Date : 11th December 2014
32. At this stage, the learned Counsel appearing for petitioner in
Writ Petition No. 9467 of 2014, states that arrangement continued till today,
because of statement made by respondent nos.1 and 2, should be continued
further for a period of four weeks. Request is being opposed by the
respondents.
33. However, in the interest of justice, we continue the position
prevailing today, for a period of four weeks from today. The interim
(21) W.P. Nos. 9467 & 9511 of 2014
direction shall cease to operate automatically thereafter.
( A.M. BADAR ) ( B.P. DHARMADHIKARI )
JUDGE JUDGE
................................
puranik / WP9467.14etc
