Pooja Joshi vs Union Of India
2021 Latest Caselaw 5826 Raj

(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

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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

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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,

(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."

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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

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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.

(8 of 9) [CW-1754/2019]

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.

(9 of 9) [CW-1754/2019]

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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