Ranjitsinh Jitusinh Zala vs Indian Oil Corporation & on 30 March, 2015

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Gujarat High Court

Ranjitsinh Jitusinh Zala vs Indian Oil Corporation & on 30 March, 2015

Bench: A.J.Desai

        C/SCA/17577/2014                                       JUDGMENT



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             SPECIAL CIVIL APPLICATION NO. 17577 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE A.J.DESAI
==========================================================
1   Whether Reporters of Local Papers may be allowed to see
    the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy of the
     judgment ?

4    Whether this case involves a substantial question of law as
     to the interpretation of the Constitution of India or any order
     made thereunder ?
================================================================
                 RANJITSINH JITUSINH ZALA....Petitioner(s)
                                Versus
              INDIAN OIL CORPORATION & 1....Respondent(s)
================================================================
Appearance:
MR PRABHAV A MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR AKSHAY A VAKIL, ADVOCATE for the Respondent(s) No. 1 - 2
================================================================
         CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

                              Date : 30/03/2015
                             ORAL JUDGMENT

1. Rule. Mr. Akshay A. Vakil, learned advocate waives service of notice of rule on behalf of the respondents. With the consent of the parties, the matter is taken up for final hearing.

2. By way of present petition under Article 14 , 19(1)(g) and 226 of Constitution of India, the petitioner has prayed as under : "20.(A) Your Lordships may kindly be pleased to issue writ of mandamus and/or writ in the nature of Page 1 of 9 C/SCA/17577/2014 JUDGMENT mandamus and/or appropriate writ, order or direction to quash and set aside order dated 14.11.2014 passed by the respondent Corporation bearing No.IAO/AHD/DEHGAM(ZAK)/05 and be further pleased to direct the respondent - Indian Oil Corporation Ltd. to grant LPG Distributorship at Dehgam (Zak), District Gandhinagar pursuant to advertisement dated 30.09.2013, in accordance with law ;

(B) Pending admission and final disposal of the present petition, Your Lordships may kindly be pleased to restrain the respondent - Indian Oil Corporation Ltd. and/or its agent and/or servants from issuing readvertisement and/or processing any other application for the purpose of LPG Distributorship at Dehgam (Zak), District Gandhinagar pursuant to advertisement dated 30.09.2013, which is subject matter in issue of the present petition ;

(D) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted."

3. The brief facts from the record are as under : 3.1 That the respondent issued a public advertisement on 30.09.2013 for the purpose of award of LPG distributorship at Dehgam (Zak), District Gandhinagar. The eligibility criteria for applying the distributorship was subject to certain terms and conditions referred in the public advertisement itself.

3.2 Since the petitioner was interested in getting the LPG Page 2 of 9 C/SCA/17577/2014 JUDGMENT distributorship, he applied to the respondent authority. He produced all the relevant documents as required by the respondent corporation. The petitioner had offered four different immovable property available for him for storage of the LPG cylinders. One of them was a godown as per the requirement of advertisement itself. The petitioner received a communication on 19.06.2014 issued by the respondent corporation by which he was declared as selected candidate pursuant to draw for the dealership held on 18.06.2014. He was asked to deposit an amount of Rs.25,000/ through a demand draft in favour of the respondent corporation and accordingly, he had paid the said amount. Since, there was no direction on the part of the respondent corporation subsequent to allotment of distributorship, the petitioner send a communication on 08.10.2014 and requested to issue a letter of intent for regular LPG distributorship and had again produced relevant documents. Similarly, a reminder was sent by the petitioner on 22.10.2014 to the respondent corporation. The petitioner received a communication dated 14.11.2014 from the respondent corporation by which he was informed that his candidature for LPG distributorship was rejected on four grounds. Hence, this petition.

4. Pursuant to issuance of notice, the respondent corporation filed an affidavit and opposed the petition. Mr. Prabhav Mehta, learned advocate appearing for the petitioner would submit that the impugned order dated 14.11.2014, issued by the respondent corporation refers four reasons for refusal of his candidature, though he was initially granted the dealership. However, he would like to focus on second reason for cancelling his candidature for the dealership. He would submit that the guidelines, issued by the Oil Companies of India, deals with the definition of "own" which includes the person having agreement of lease for a minimum Page 3 of 9 C/SCA/17577/2014 JUDGMENT period of 15 years in the name of person or his family members who has applied for distributorship. He would submit that the case of the petitioner is covered under the definition of "own" of the said guidelines, since the advertisement permits only those persons who have either land or godown for getting LPG Distributorship. He would submit that last date of submission of such application was 31.10.2014. The petitioner had entered into an agreement with third party on 28.10.2013 for a period of 20 years and the same was submitted in the office of Registrar as provided under the Registration Act, 1908 (hereinafter referred to as 'the Act') on 28.10.2013. On the same day i.e. on 28.10.2013, the petitioner had submitted his application along with the said agreement, which was produced before the Registrar for its registration. He would submit that the authority registered the sale document on 11.04.2014 i.e. after about six months from the date of its presentation. He would submit that second ground raised by the respondent corporation for cancellation of his agency is that the agreement was not registered on or before 31.10.2013 and was registered only on 11.04.2014 i.e. subsequent to the last date of submission of application, which would not be maintainable in view of provisions of Section 47 of the Act. He would submit that in the eye of law when the document is produced before the authority, by all means, it is to be treated as registered from the date of presentation itself. He would submit that the only query put forward by the Registrar for not registering, as the same was not putting thumb impression on the first page of the agreement to sale entered into between the petitioner and third party which was presented on 28.10.2013. By taking me through the communication dated 10.09.2014 issued by SubRegistrar Dehgam, he would submit that the said aspect i.e. non applying thumb impression on the first page, has been clarified by the Sub Page 4 of 9 C/SCA/17577/2014 JUDGMENT Registrar.

5. He would therefore, submit that Section 47 of the Act, makes it clear that the document which has been submitted for registration, will relate to the execution of a document, though it may be subsequently registered by the authority. In support of his submission, he has relied upon the case of Hamda Ammal versus Avadiappa Pathar and three others reported in (1991) 1 SCC 715 and submitted that the reasons assigned by the respondent corporation for not allotting the land, are contrary to the provisions of the Act as well as the ratio laid down by the Hon'ble Apex Court. Therefore, he would submit that order impugned in this petition is required to be quashed and set aside.

6. On the other hand, learned advocate Mr. Akshay Vakil appearing for the respondent corporation vehemently opposed this petition and would submit that the common guidelines issued by the Oil Companies of India clearly makes it clear that the person who applies for distributorship must be having ownership of title of the property or registered lease agreement for a minimum period of 15 years. He would submit that it is a undisputed fact that when the petitioner had submitted an application for distributorship on 28.10.2013, the lease deed was not registered and therefore, the petitioner had no registered lease agreement in his favour and, therefore, the corporation has rightly cancelled the candidature granted in favour of the petitioner. He would further submit that it is not in dispute that the said lease deed has been registered only on 11.04.2014 and, therefore the petition is required to be dismissed.

7. I have heard learned advocate appearing for the parties.

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C/SCA/17577/2014 JUDGMENT

8. The last date of submission of application for dealership was 31.10.2013. However, the petitioner had applied on 28.10.2013 along with necessary documents including lease deed agreement entered into between petitioner as well as third party on 28.10.2013. It is evident from the communication dated 10.09.2014 issued by SubRegistrar Dehgam that the petitioner as well as third party, who are the authors of the lease deed, on 28.10.2013 had remained present before the authority and all the procedure provided under Section 52, 58 and 59 of the Act had been completed on the same day i.e. 28.10.2013. Agreement was was numbered as 1564 of 2013 and the date mentioned of production is 28.10.2013 itself. The Registry accordingly had also made it clear by the said communication that on the first page of the lease deed, one thumb impression was not applied and, therefore same was not registered. However, subsequently, the lease deed has been registered at numbered 701 on 11.04.2014.

9. In view of the above factual aspect, I would like to reproduce relevant definition of 'own' which is referred in the guidelines issued by the Oil Companies, reads as under : " 'Own' means having ownership title of the property or registered lease agreement for minimum 15 yrs 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/coownership by family member(s) as given above, consent in the form of a Notarized Affidavit from the family member(s) will be required.

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C/SCA/17577/2014 JUDGMENT In case the land is jointly owned by the applicant / member of 'Family Unit' (as defined in multiple dealership / distributorship norm) with any other person(s) and the share of the land in the name of applicant / member of the 'Family Unit' meets the requirement of land including the dimensions required, then that land for godown/showroom will also qualify for eligibility as own land subject to submission of 'No Objection Certificate' in the form of an Notarized Affidavit from other owner(s)."

10. As far as the eligibility for getting distributorship for godown for storage of LPG cylinders is concerned, the same reads as under : "a. Godown for storage of LPG in Cylinders LPG Distributorship would require a storage godown duly approved and licensed by Chief Controller of Explosives of Petroleum and Explosives Safety Organisation (PESO) for storage of 8000 kg LPG in cylinders.

The applicant should own :

a plot of land of minimum dimensions 25M x 30M (within 15 km from municipal/town/village limits of the location offered in the same State) for construction of LPG Godown for storage of 8000 kg of LPG in cylinders. The plot of land for construction of godown not meeting the minimum dimensions of 25M x 30M will not be considered.

Or a ready LPG cylinder storage godown (within 15 km from municipal/town/village limits of the location offered in the same State) of 8000 kg capacity.

b. Showroom A showroom of minimum dimensions 3 metre by 4.5 metre as per the standard layout is to be made Page 7 of 9 C/SCA/17577/2014 JUDGMENT in a shop / land located in the advertised location or locality as specified in the advertisement for LPG distributorship and it should be easily accessible to general public through a suitable approach road."

11. On combined reading of both the things, I am of the opinion that as far as ownership is concerned, the case is covered. Since the petitioner has entered into an lease agreement for a period of 20 years. As far as the arguments made by Mr.Vakil, learned advocate for the respondent about non existence of registered lease deed is concerned, I am of the opinion that same cannot be accepted in view of provisions of Section 47 of the Act which reads as under : "47. Time from which registered document operates . A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration"

12. The definition itself is clear that the operation of a document would commence from the date of its execution, even though it is pending for registration. This aspect is dealt with by the Hon'ble Apex Court in the case of Hamda Ammal (supra). It has been held by the Hon'ble Apex Court that the operation of the documents shall start from the date of its presentation and not from the time of its registration. In view of above facts and circumstances of the case and in view of above provisions of the Act as well as law laid down by the Hon'ble Apex Court and when the petitioner had presented his lease deed prior to 31.10.2013, I am of the opinion that the petition requires to be accepted and is, accordingly, allowed. The order dated 14.11.2014 passed by the respondent corporation is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.

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        C/SCA/17577/2014                 JUDGMENT




                                        (A.J.DESAI, J.)
Amar




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