Keshav Baburao Awchar vs Hindustan Petroleum Corporation ...
2021 Latest Caselaw 4172 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 7370 OF 2020

 Keshav s/o Baburao Awchar
 Age-21 years, Occu. Business,
 R/o Pratap Nagar, Parbhani,
 Tq. & District - Parbhani                                       .. Petitioner

          Versus

 Hindustan Petroleum Corporation Ltd.,
 Through its Head of Regional Office,
 Solapur Retail Regional Office,
 HPCL, Pakni IRD, Near Railway Station,
 Pakni, Solapur.                                                 .. Respondent

 Mr. V. D. Sapkal, Senior Advocate i/by Mr. Manish P. Tripathi, Advocate
 for the Petitioner.
 Ms. Anjali Bajpai-Dube, Advocate for Sole Respondent.

                               CORAM :    S. V. GANGAPURWALA &
                                          SHRIKANT D. KULKARNI, JJ.

Date on which reserved for order : 26th February, 2021.

Date on which order pronounced : 08th March, 2021.

PER COURT:-

. Pursuant to the advertisement issued by respondent the

petitioner applied for the Retail Outlet (R.O.) dealership for the

location at N.H. 61 from Stone No. 445 to 447, Parbhani-Manwat Road

reserved for candidate of Scheduled Caste.

2. The petitioner applied from Group-I category. The petitioner was

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selected in the draw. The petitioner was directed to submit documents

for verification. The respondent upon verification of the documents

cancelled the candidature of the petitioner from Group-I category and

placed him under Group-III category. The same is assailed in the

present writ petition.

3. Mr. Sapkal, the learned senior counsel strenuously contends that

the respondent failed to consider the agreement to lease in its correct

perspective. The entire document of lease has to be read for arriving at

the conclusion. The petitioner is holding the offered land on lease for

19 years and 11 months under registered agreement dated 24.12.2018.

It is only after registration of document the petitioner filled in the

application for Retail Outlet dealership.

4. The respondent cannot just rely on isolated sentence in the

agreement to arrive at the conclusion. If entire agreement is perused,

the intention of the parties is clear that the offered land is leased to the

petitioner for 19 years and 11 months. The purpose of lease is also

mentioned. Further under the lease deed right is given to the petitioner

to sublease and erect the retail outlet. The lease rent is also fixed at

Rs. 500/- per month. Reading the entire document, it is clear that the

intention of the parties is to create lease and valid lease has come into

existence. The petitioner possesses the leasehold right for 19 years and

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11 months of the offered land under the registered instrument of lease.

No other interpretation is possible. The learned senior counsel relies on

the judgment in the case of Balram Raoji Nasare Defendant 1 -

Appellant Vs. Mahadeo Panduji Plaintiff and Anr., Defendant 2-

Respondents reported in AIR 1949 Nagpur 389. The Nomenclature of

the document is not decisive, but the contents of the lease deed.

5. The learned senior counsel also relies on the judgment of the

Apex Court in case of Trivenibai and another Appellants Vs. Smt.

Lilabai Respondent reported in AIR 1959 SC 620 and submits that

though the agreement is styled as agreement to lease it creates a

present demise. A document executed by laymen must be liberally

construed.

6. The learned senior counsel further contends that subsequently

correction deed to the agreement to lease is executed on 28.12.2020

and the intention of the parties is clarified in the registered correction

deed.

7. Smt. Dube, the learned counsel for respondent submits that the

petitioner was considered from Group-I on the basis of the

representation made by the petitioner that he had leasehold rights of

the offered land pursuant to the registered instrument for period of

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19 years and 11 months. However, during the verification it was

observed that the petitioner does not have leasehold right of the

offered land in the present lease as per the agreement. It is mentioned

that if the petitioner is selected for Retail Outlet dealership, then the

lessor would transfer / lease the piece of land mentioned in the

agreement lease. The leasehold rights were never created in favour of

the petitioner. In view of that the petitioner is not considered from

Group-I. The petitioner belong to Group-III. The learned counsel

further submits that the Corporation has rightly rejected candidature of

the petitioner under Group-I.

8. We have considered the submissions canvassed by the learned

counsel for the respective parties.

9. There cannot be any doubt with the proposition that the entire

agreement will have to be read to conclude the intention of the parties.

10. The applicants applying pursuant to the advertisement for grant

of Retail Outlet dealership are classified into different groups based

upon the nature of land holding. The same is as under :

"Group 1 : Applicants having suitable piece of land in the advertised location / area either by way of ownership / long term lease for a period of minimum 19 yrs 11 mths or as advertised by the OMC.

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Group 2 : Applicants having Firm Offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 yrs 11 mths or as advertised by the OMC.

Group 3 : Applicants who have not offered land in the application."

11. For a person to be placed in Group-I he should have suitable

piece of land in the advertised location either by way of ownership /

long term lease for a period of minimum 19 years and 11 months or as

advertised.

12. The petitioner relied upon the agreement to lease dated

24.12.2018. Clause 3 of the agreement to lease would be relevant. The

same reads as under :

"3. That in case he Keshav Baburao Awchar is selected for RO dealership will either sell/transfer/lease the above mentioned piece of land to Oil Company or to Shri Keshav Baburao Awchar for setting of Retail Outlet facilities at the above mentioned location as per the site plan duly signed by me/all co-owners. In case of lease, I further confirm that I have no objection if the subject piece of land leased to Shri Keshav Baburao Awchar is further leased/sub-leased to the Oil Company by him/her as per terms of the Oil Company.

That I have no objection if the above mentioned land is used for setting up of Retail Outlet facilities by Shri Keshav Baburao Awchar at the above mentioned location, as per the site plan duly signed by me/all co-owners."

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13. Perusal of clause 3 of the agreement to lease, it is manifest that

the said agreement was contingent. In case, the petitioner is selected

for Retail Outlet dealership, then the owner would either sell, transfer

or lease the offered land to the oil company or to the petitioner for

setting up of Retail outlet. It further states that in case of lease, the

owner confirms that he will have no objection if the subject piece of

land leased to the petitioner is further subleased to oil company as per

the terms of the oil company.

14. Paragraph no. 3 of the said agreement to lease is unambiguous

and does not permit any other interpretation.

15. It appears that, the petitioner realized that the owner has not

executed lease deed in his favour, but has only agreed to lease the land

that is, in case the petitioner is awarded the Retail Outlet, as such got

correction deed to the agreement to lease deed executed on 18.12.2020

viz. after filing of the present writ petition before this Court. In the

correction deed, it is mentioned that in the context of lease by

inadvertent mistake necessary portion is described. Clauses 1 and 3 in

the agreement to lease dated 24.12.2018 were deleted by the

corrigendum and replaced the following clauses.

"(1) That, the lessor has leased the land Gat No. 163 adm. 40M (frontage) × 50m (depth),having 2000 sqm as per Lease

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Agreement executed registered vide Sr. No. 2392, dated 24.12.2018.

(2) That, the lessor and lessee state that, para No. 1 & 3 in the agreement lease registered vide Sr. No. 2392 dated 24.12.2018 stands deleted and replaced as follows :

That, lessor Sarswati Ganesh Tare is owner and possessor or land Gat No. 163 adm. 50R out of which, lessor has lease out the land Gat No. 163 to the extent of 40m (frontage) × 50m (depth) at rate of Rs. 500/- per month.

(3) That, the lessor-Sarswatibai Ganeshrao Tare has no objection in case of lessee Keshav B. Avchar - lessee is selected for RO Dealership and developed the leased portion of land for same purpose. Lessor-Sarswati Ganeshrao Tare has further no objection in case lessee Keshav B. Awchar sublease the said portion of land to Oil Company as per terms of oil company."

16. Thus, it is abundantly clear upon reading the agreement to lease

dated 24.12.2018 and the corrigendum dated 28.12.2020 that the

agreement to lease was a contingent contract. The agreement to lease

was agreeing to lease the property to the petitioner only upon the

petitioner selected for Retail Outlet dealership as per the lease deed

dated 24.12.2018. It was the agreement to lease dated 24.12.2018 filed

with the application and submitted for verification of the respondent.

17. The judgment of the Division Bench of this Court at Nagpur High

Court in case of Balram Raoji Nasare (supra) would not be of any

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assistance to the petitioner. In the said case the dispute was whether

the document is a sale or lease. The Court interpreting the various

clauses in the agreement concluded that the said document would be a

lease. The judgment of the Apex Court in case of Trivenibai and

another (supra) would also not inure to the benefit of the petitioner.

The Apex Court observed that the document executed by laymen must

be liberally construed. In that case, the agreement specifically recited

terms under :

"I have this day given to you the land described below which is owned by me. Now you have become occupancy tenant of the same. You may enjoy the same in any way you like from generation to generation. My estate and heirs or myself shall have absolutely no right thereto. You shall become the owner of the said land from date 1-6-1944. I will have absolutely no right thereto after the said date."

After mentioning the properties and describing them in detail, the document proceeded :

"All the above fields are situate at Mouza Mohammadpur, mouza No. 312, tahsil Arvi, district Wardha. The estate described above has been given to you in lieu of your Rs. 8,700 due to you, subject to the condition that in case your amount has not been paid to you on date 1-6-1944, you may fully enjoy the estate described above in any way you like from generation to generation."

18. It is also worth to note that under the agreement to lease the

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possession was never handed over to the petitioner. The document

never recites that, the petitioner is put in possession. These aspects also

go to show that the agreement entered between the owner and the

petitioner pursuant to the agreement to lease dated 24.12.2018 was a

contingent agreement, wherein the owner agreed to lease the offered

land only if the petitioner is selected for Retail Outlet dealership.

19. In the light of the above, the respondent has not committed any

error in rejecting the candidature of the petitioner from Group-I.

20. Writ petition, as such, is dismissed. No costs.

 ( SHRIKANT D. KULKARNI )                          ( S. V. GANGAPURWALA )
         JUDGE                                               JUDGE




 P.S.B.




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