Gauhati High Court
Page No.# 1/12 vs Bharat Petroleum Corporation Ltd And 2 ... on 4 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/12
GAHC010283732018
2025:GAU-AS:1135
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8851/2018
RIMPI BORA
W/O. ABHIJIT HAZARIKA, VILL. PONKIAL, P.O. DOIGRUNG, P.S.
GOLAGHAT, DIST. GOLAGHAT, ASSAM-785702.
VERSUS
BHARAT PETROLEUM CORPORATION LTD AND 2 ORS.
( A GOVT. OF INDIA ENTERPRISES) REP. BY ITS CHAIRMAN CUM
MANAGING DIRECTOR (CMD) HAVING ITS REGD. OFFICE AT BHARAT
BHAVAN, 4 AND 6 CURRIMBHOY ROAD, BALLARD ESTATE, P B NO.688,
MIMBAI-400001.
2:TERRITORY MANAGER (LPG)
NORTH EAST LPG TERRITORY
1ST FLOOR
MEXIA PART
GMCH ROAD
ANANDA NAGAR
CHRISTIAN BASTI
GUWAHATI-05
ASSAM.
3:MANAGER SALES (LPG)
BHARAT PETROLEUM CORPORATION LTD. (JORHAT SALES) 1ST FLOOR
MEXIA PART
GMCH ROAD
ANANDA NAGAR
CHRISTIAN BASTI
GUWAHATI-05.
4:STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
Page No.# 2/12
ENVIRONMENT AND FOREST DEPARTMENT
JANATA BHAWAN
DISPUR
ASSAM-781006
5:PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST
FORCE
ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI-781037
6:CIRCLE OFFICER
SARUPATHAR REVENUE CIRCLE
SARUPATHAR
GOLAGHAT
ASSAM
PIN-78560
For the Petitioner(s) : Mr. T. J. Mahanta, Sr. Advocate
: Mr. P. P. Dutta, Advocate
For the Respondent(s) : Mr. S. Borthakur, Advocate
: Mr. I. Borthakur, Standing Counsel
: Mr. S. Dutta, Standing Counsel
Date of Hearing : 04.02.2025
Date of Judgment : 04.02.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. T. J. Mahanta, the learned Senior counsel assisted by Mr. P.
P. Dutta, the learned counsel appearing on behalf of the Petitioner and Mr. S.
Borthakur, the learned counsel appearing on behalf of the Respondent Nos.
1, 2 and 3. I have also heard Mr. I. Borthakur, the learned Standing counsel
appearing on behalf of the Forest Department of the Government of Assam
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and Mr. S. Dutta, the learned Standing counsel appearing on behalf of the
Revenue Department of the Government of Assam.
2. The issue involved in the instant writ petition is regarding a challenge
to the rejection of the application submitted by the Petitioner for award of
LPG distributorship at Kekuri Borchapori GP: Tengani; Block: Golaghat South,
Category: OBC, Type of Distributorship: Gramin Vitrak, Market Plan 18-19
vide the communication dated 13.11.2018.
3. From a perusal of the materials on record, it is seen that a Notice
Inviting Tender was issued on behalf of Bharat Petroleum Ltd. (BPCL), Indian
Oil Corporation Ltd. (IOCL) and Hindustan Petroleum Corporation Ltd.
(HPCL) in the Assamese Daily Newspaper 'Asomiya Pratidin' in its issue dated
25.05.2018 inviting tenders from eligible candidates for LPG distributorship
at various locations of Assam.
4. The present writ petition pertains to the location at Serial No.47 i.e. at
Kekuri Borchapori under Gaon Panchayat Tengani, Block Golaghat South in
the District of Golaghat, Assam, Category OBC, Type of Distributorship
GRAMIN Vitrak under BPCL for LPG distributorship. The petitioner being
interested, submitted her application on 22.06.2018. A perusal of the said
application enclosed as Annexure-3 to the writ petition would show that the
petitioner had offered a plot of land with the dimension of 100 metre in
length and 60 metre in breadth bearing Khasra No./Survey No.
FRA/NO(N)/2009/9(C)/25 at village Borchapori P.O Bilgaon, Tengani Gaon
Panchayat. In the said application, it was mentioned that the said document
was a registered document dated 19.06.2018. Annexure-4 to the writ
petition is the said document. A perusal of the said document under no
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circumstances can be said to constitute a registered lease deed. Rather, the
document is a notarized document whereby a plot of land admeasuring 3
Kathas was leased out to the petitioner by one Shri Premadhar Doley for a
period of 99 years for the purpose of submitting a tender in BPCL under
Gramin Vitarak Chayan for Tengani Borchapori under Tengani Gram
Panchayat.
5. It is further seen that on 19.09.2018, a communication was issued by
the FVC of the Bharat Petroleum Corporation Ltd. to the petitioner stating
inter alia that the application for the LPG distributorship at location at Kekuri
Borchapori in the District of Golaghat had deficiency and the petitioner was
asked to correct the documents in seven days. The deficiencies mentioned
were (i) The Appendix-4 submitted by the land owner Mr. Premadhar Doley
to be resubmitted duly notarized; (ii) Appendix-4 to be submitted by the co-
owner of land Mrs. Ulpi Doley in stamp paper duly notarized; (iii) Appendix-
P1B to be submitted in applicable stamp paper duly notarized; (iv) Certificate
for non-Creamy Layer status to be obtained from the District Administration
in original; and (v) Declaration in the form of affidavit for DOB.
6. Subsequent thereto, it is also seen that the petitioner thereupon
submitted another document in the name and style of "Memorandum of
Understanding" dated 19.06.2018 which was registered on 14.09.2018
executed by and between Shri Premadhar Doley and the petitioner whereby
a plot of land admeasuring 3 Kathas was to be leased out to the petitioner
by execution of a lease deed. The record further reveals that the petitioner
was informed vide a communication dated 25.10.2018 that the document
which was submitted though registered but it was registered on 14.09.2018
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which is after the last date of submission of the application i.e. 25.06.2018
and further that the land offered belongs to forest area and is issued by the
State Government to the lessor on non-transferable basis i.e. cannot be
offered on subsequent lease/sale. It was further mentioned that as the
offered land does not meet the eligibility criteria, the petitioner was again
asked to submit an alternate land within a period of 15 days from the receipt
of the letter dated 25.10.2018. The petitioner could not submit an alternate
land and it is under such circumstances, on 13.11.2018, the impugned
communication was issued thereby cancelling the candidature of the
petitioner. Being aggrieved, the instant writ petition was filed challenging the
communication dated 13.11.2018.
7. The record reveals that this Court vide an order dated 21.12.2018
issued notice and further directed the respondents not to take consequential
steps following the rejection of the petitioner's LPG distributorship vide letter
dated 13.11.2018. It was further directed that taking into account the
submission made by the learned counsel for the petitioner, Bharat Petroleum
Corporation Limited may revisit the terms and conditions for allotment of
LPG distributorship at Kekuri Borchapori in view of the fact that the said area
under South Golaghat Block in the district of Golaghat was a forest area and
there was no revenue village. The writ petition remained pending thereafter
and on 11.11.2024, this Court arrayed the Forest Department of the State of
Assam as well as the concerned Revenue Circle Officer as respondents to the
instant proceedings.
8. The record further reveals that the Respondents have filed an affidavit
supporting the impugned communication dated 13.11.2018 and further
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stated that the petitioner had produced a notarized lease agreement dated
19.06.2018 for the land whereas, as per the brochure, the land to be offered
(if not owned) should be taken by the applicant by means of a registered
lease deed. It was further mentioned that during the field verification, the
petitioner submitted a Memorandum of Understanding between the land
owner Shri Premadhar Doley and the petitioner and the date of the MoU was
19.06.2018, but the same was registered on 14.09.2018. It was mentioned
that the said is also not a recognized land document as per the Brochure on
Unified Guidelines for Selection of LPG Distributors' June, 2017.
9. This Court heard this matter on 10.01.2025 wherein Mr. T. J. Mahanta,
the learned Senior counsel submitted that within the area of advertised
location, there is no revenue village. The entire area falling under Kekuri
Borchapori under Gaon Panchayat Tengani, Block Golaghat in the district of
Golaghat, Assam is a forest area and as such there is no question of having
any registered sale deed or registered lease deed.
10. Mr. S. Borthakur, the learned counsel appearing on behalf of the
Respondent Nos. 1, 2 and 3 had submitted that as per Clause-1 of the
Brochure on Unified Guidelines for Selection of LPG Distributors, it defines
the various types of distributorship areas. The distributorship which is the
subject matter of the instant writ petition relates to a Gramin Vitrak. The
learned counsel submitted that as per the definition of the type of
distributorship i.e. Gramin Vitrak, it would show that it would cover all
villages falling within 15 Kms from the boundary limits of the LPG
distributorship location and/or the area specified by the respective OMCs.
The learned counsel further submitted that it is impossible that the entire
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area of the advertised location can be said to fall within the forest area as
has been submitted by the learned Senior counsel for the petitioner. It is
under such circumstances, this Court sought for instructions from both the
Revenue Department as well as the Forest Department as to whether within
the radius of 15 Kms of the distributorship location there is any Revenue
Village.
11. Mr. I. Borthakur, the learned Standing counsel appearing on behalf of
the Forest Department, Government of Assam had placed before this Court
an instruction dated 29.01.2025 issued by the Divisional Forest Officer,
Golaghat Forest Division wherein it was mentioned that an enquiry was
made by the Range Officer, Golaghat Range and submitted that the Kekuri
Borchapori village is completely within the Nambor North Revenue Forest. It
was further mentioned that Kekuri Borchapori is a village formed by
encroachers within North Nambor Reserve Forest and as such, the land
status of the village area is still Reserved Forest. However, it was mentioned
that since the Geo-reference point of the proposed LPG distributorship
location was not made available, it was not possible to find out the exact
distance of the revenue villages adjoining the forest. It was mentioned that
on an average, on the North and the West of the village is forest area and
on the North-East and South-East beyond 4.5 Km (Approx. average aerial
distance) there is no forest area. The said instruction is kept on record and
marked with the letter "X".
12. Mr. S. Dutta, the learned Standing counsel appearing on behalf of the
Revenue Department of the Government of Assam also produced an
instruction issued by the Circle Officer, Sarupathar Revenue Circle wherein it
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was stated that the area falling within 15 Kms from the boundary limits of
the LPG distributorship i.e. Kekuri Borchapori would come within the ambit of
Tengani Forest Area of Sarupathar Co-District and there are more than one
revenue villages within the location. The said instruction is also kept on
record and marked with the letter "Y".
13. The question therefore arises as to whether the impugned order
requires to be interfered with. From the above documents which have been
kept on record and marked with the letters "X" and "Y", it can be therefore
assumed that the entire area falling within 15 Kms from the boundary limits
of the LPG distributorship would not come within the forest area. This aspect
therefore makes it clear that the submission of the learned counsel for the
Petitioner has no merit.
14. Be that as it may, this Court further finds it relevant to take note of the
Brochure on Unified Guidelines for Selection of LPG distributors' June, 2017
(hereinafter referred to as "the Brochure"). From a perusal of the Brochure,
it would be seen that Clause-1(w) defines the terms 'Ownership' or 'Own' for
godown/showroom for Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and
Durgam Kshetriya Vitrak Type of Distributorship to mean (a) Ownership title
of the property; or (b) Registered lease deed having minimum 15 years of
valid lease period commencing on any day from the date of advertisement
up to the last date of submission of the application as specified either in the
advertisement or corrigendum (if any). It is further seen that for the purpose
of godown and showroom, the applicant should 'Own' a plot of land of the
capacity, minimum dimensions and location as specified for the construction
of the LPG Godown or 'Own' a ready LPG cylinder storage godown as on the
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last date for submission of the application. In respect to showroom, the
applicant should also 'Own' a suitable shop for showroom of a minimum size.
The Petitioner had with open eyes applied pursuant to the advertisement
and knew what was required to be submitted. The Petitioner did not
challenge the conditions of the Brochure insofar as the term 'own' and
'ownership' as defined in Clause-1(w) of the Brochure. Having submitted the
tender, it was not open to the Petitioner to challenge the requirement of a
registered Sale Deed or a registered lease deed.
15. In the backdrop of the above, let this Court analyze as to whether the
documents which were submitted by the petitioner would come within the
expression 'Own' or 'Ownership' as defined in Clause-1(w) of the Brochure.
16. The first document which was submitted is a notarized lease deed for
a period of 99 years in respect to a plot of land dated 19.06.2018. The
second document so submitted is a 'Memorandum of Understanding' dated
19.06.2018 which is a registered document. A further perusal of the said
'Memorandum of Understanding' dated 19.06.2018 shows that the said
document is a document to get a lease deed executed and is not a lease
deed.
17. At this stage, this Court finds it relevant to observe that the lease deed
dated 19.06.2018 is only a notarized document granting a lease for 99 years
to the Petitioner. But the question arises as to whether the said lease deed
dated 19.06.2018 which is not registered would effect the property. In this
regard, this Court finds it relevant to take note of Section 17 and 49 of the
Registration Act, 1908 as well as Section 107 of the Transfer of Property Act,
1882. Section 17(1) of the Registration Act, 1908 stipulates which are the
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documents where registration is compulsory. In terms with Sub-Clause (b) of
Section 17(1) of the Registration Act, 1908, non-testamentary instruments
which purport or operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right title or interest, whether vested or
contingent, of a value of Rs.100/- and upwards to or in immovable property
is compulsorily registrable. A perusal of the lease deed dated 19.06.2018
would show that the lease is for an immovable property for a period of 99
years and a value of more than Rs.100/-. Under such circumstances, the
lease deed dated 19.06.2018 is compulsorily registrable.
18. Now the next question which arises is what is the effect of a document
which is compulsorily registrable but not registered. Section 49 of the
Registration Act, 1908 is the answer for which the said Section is reproduced
herein under:
"49. Effect of non-registration of documents required to be registered.--
No document required by section 17 [or by any provision of the Transfer of
Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or
conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and
required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as
evidence of any collateral transaction not required to be effected by registered
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instrument."
19. A reading of the above quoted Section would show that a document
which compulsorily registrable but not registered would not affect any
immovable property comprised then. Additionally, the said document cannot
confer any power to adopt and also cannot be received as evidence of a
transaction affecting such property or conferring any power.
20. This Court further finds it relevant to observe that a perusal of Section
107 of the Transfer of Property Act, 1882 would show that a lease of
immovable property from year to year or for any term exceeding one year
or reserving a yearly rent can only be made by a registered document.
21. In view of the above analysis, it would be seen that the document
submitted by the Petitioner being a lease deed dated 19.06.2018 was
required to be registered. The said lease deed being only a notarized
document, the same would not affect the property comprised therein. Under
such circumstances, there is no error on the part of the Respondent
Authorities in refusing to receive the said document as a document of
ownership within the meaning of Clause 1(w) of the Brochure.
22. In the case of the document being the Memorandum of Understanding
dated 19.06.2018, which was registered on 14.09.2018, the said document
also in the opinion of this Court would not affect the property taking into
account that is only a document to get a lease deed and not a lease deed
itself.
23. Under such circumstances, the documents which were submitted by
the petitioner did not meet the criteria as set out in the Brochure for which
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the Respondents have rightly issued the impugned order dated 13.11.2018.
Consequently, this Court finds no merit in the writ petition for which this
Court dismisses the same.
24. In the facts of the instant case, this Court is not inclined to impose any
cost.
25. Interim order passed earlier stands vacated.
JUDGE
Comparing Assistant
