Uttarakhand High Court
WPMS/332/2020 on 22 July, 2021
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 22nd DAY OF JULY, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No.332 of 2020
BETWEEN:
Dheeraj Pal .....Petitioner
(Mr. Sandeep Kothari, Advocate)
AND:
Indian Oil Corporation & Others .....Respondents
(Mr. V.K. Kohli, Senior Advocate assisted by Mr. I.P. Kohli and Mr.
Kanti Ram Sharma, Advocates for respondent nos.1 and 2 and Mr.
Siddhartha Singh, Advocate for respondent no.4)
JUDGMENT
Heard learned counsel for the parties through video conferencing.
2. By means of this writ petition, petitioner has sought the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the order dated 30.01.2020 (annexure no.10 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent authorities to cancel the selection of the respondent no.4 for the aforesaid dealership and to further initiate the process for the 2 selection of dealership, amongst other persons, who have duly been qualified, otherwise.
3. Petitioner had applied for appointment as rural retail dealer pursuant to an advertisement issued by Indian Oil Corporation Limited. Selection for appointment was to be made by draw of lots. Draw of lots was held on 23.07.2019, in which petitioner also participated, however, he was declared unsuccessful and respondent no. 4 was declared to be successful.
4. Feeling aggrieved by selection of respondent no. 4 for appointment as rural retail dealer, petitioner made a complaint to the Grievance Redressal Authority. His complaint has been rejected by the Competent Authority vide order dated 30.01.2020, which is under challenge in the present writ petition.
5. Petitioner has challenged selection of respondent no. 4 only on the ground that the land offered by respondent no. 4 for setting up the retail outlet has been taken on lease while as per provisions of Zamindari Abolition & Land Reforms Act, 1950, agricultural land cannot be let out by a Bhumidhar/tenure holder.
6. Heard learned counsel for the parties through video conferencing and perused the record.
37. The rejection order impugned in this writ petition is Annexure No. 10. The issues raised by petitioner in his complaint have been reproduced in the rejection order, which are as follows:
"1. The offered land of Khasra Number 305, Village-Rahmatpur Mustehkam is taken on lease by applicant Sh Anil Kumar S/o Shri Arjun Dev from Sh Chandrashekhar, the offered land of Khasra no.305 is an Agricultural land and it's conversion in non agricultural land from competent authority is not obtained as per clause 143 before offering this land for Retails outlet. So lease deed of this agricultural land for Retail outlet and offering this agricultural land for Retail outlet is illegal.
2. A HT line of 11000 Voltage is passing over proposed land of Khasra no. 305 and there is possibility of accident due to this.
3. The boundaries are wrongly mentioned in proposed land lease deed of Khasra no. 305. There is no road in Khasra no. 305 as per revenue records."
8. The aforesaid issues have been considered and discussed in page no. 2 of the rejection order, which are as follows:
"1. In regard to offering of agriculture land or by the selected applicant, as per dealership selection guidelines dated 4 24.11.18, the land conversion as per clause no. 143 is not an eligibility criteria.
2. In regards to passing 11 KVA electric line over the offered land by selected candidate, as per the dealership selection guidelines land has no HT line>11 KVA crossing from the land.
3. In regards to wrong boundaries mentioned in lease deed of proposed land in Khasra no. 305 offered by applicant, the issue is verified and found that the boundaries are wrongly mentioned in submitted land lease deed; there is no road adjoining to offered land (West side) in Khasra no. 305 as per revenue records. However, eligibility of the applicant with the above deviation is not to be affected as this can be rectified at later stage.
4. As per the dealership selection guidelines, land selection is done on the following parameters and the offered site conforms to the norms.
a) Land in advertised area/stretch.
b) Land dimension minimum as per advertisement.
c) Meet NHAI norms*
d) Land has no HT line (>11 KVA) crossing.
*Parameter on S. No. "C" i.e. Meet NHAI norms was not checked, as advertised location Mahmudpur Mafi, Tehsil Bilari, 5 District Moradabad is not situated on National Highway.
5. Retail outlet will be developed on receipt of statutory approvals from District Magistrate."
9. From the rejection order, it is apparent that petitioner had challenged eligibility of respondent no. 4 for appointment as rural retail dealer on the ground that declaration under Section 143 of the Zamindari Abolition & Land Reforms Act was not obtained by the Bhumidhar/tenure holder before letting out the land in favour of respondent no. 4. Competent Authority rejected this contention by holding that, as per the Dealership Selection Guidelines, obtaining declaration under Section 143 of Zamindari Abolition & Land Reforms Act, 1950 is not an eligibility criteria.
10. Section 143 (1) of the aforesaid Act is reproduced below for ready reference:
"143. Use of holding for industrial or residential purposes. - [(1) Where a [bhumidhar with transferable rights] uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect."6
11. A perusal of aforesaid provision reveals that declaration contemplated under Section 143 (1) can be made by the Assistant Collector suo motu or on an application by the Bhumidhar.
12. The lease deed executed in favour of respondent no. 4 is on record as Annexure No. 6 to the writ petition. Clause no. 7 of the lease deed contains a recital that the lease land is not recorded as agricultural land in revenue records and a tin shed, admeasuring 300 sq. mtrs., is existing on the lease land. The said recital indicates that the lease land was not used for agriculture and was being used for other purposes.
13. Learned counsel for the petitioner, however, submits that the structure existing over the lease land was in a dilapidated condition, therefore, existence of such dilapidated structure will not affect the nature of lease land and it will continue to be agricultural land.
14. The submission made by petitioner's counsel, if taken on its face value, supports the case of the respondents that tin shed was existing over the lease land since long, which leads to the conclusion that the said land was being used for some purpose other than agriculture, for quite some time.
15. Mr. Sandeep Kothari, learned counsel appearing for the petitioner has relied upon Section 7 156 of the aforesaid Act in support of his contention that lease in respect of agriculture land is impermissible. Section 156 is reproduced below for ready reference:
"156. Letting of land. - [(1) No bhumidhar [* * *] or asami shall let for any period whatsoever any land comprised in his holding except-
(a) in the cases provided for in Section 157; or
(b) to a recognized educational institution for a purpose connected with instruction in agriculture, horticulture or animal husbandry.
[(c) (i) Without prejudice to the restriction content in Section 157 (a) and Section 157(b) of the principle Act, the land for the purposes of agriculture, horticulture, herbs, unseasonal vegetables, medicinal and aromatic plants, production of species, plantation, animal husbandry and milk production, poultry farming and live stock procreation, apiculture, pisiculture and agricultural processing may be leased for maximum period of 30 years with fixed terms and conditions, and leased the land to any person, Institution, Society, Trust and self help finance groups, cash, crops, or any part of the product may be included in lease rent;
(ii)On the expiration of the term of the lease, lease may be renewed on the fresh terms and conditions. The lease agreement may be 8 registered under the Indian Registration Act, 1908, without any fee. Lessee has no right over the land other than those set forth in the lease agreement. Any charge on interest of liability created by the lessee during the lease period shall not be binding on the land owner after expiry of the lease period;
(iii)All fees and cess on the leased land shall be paid by the land owner and shall responsible himself;
(iv)The lessee shall be entitled to obtain any agriculture loan, disaster assistance and any other prevalent facility provided by central and State Government:
(v)The lessee himself shall be entitled for the crop insurance, calamity assistance and any promotional amounts or grants provided by State Government and Central Government;
(vi) During the lease period the boundary of land, marks and survey identification of the boundary neither be removed nor be damaged by the lessee:
(vii) Regarding the leased land, the lessee has no hereditary right, in case of death, incapability of lessee during the lease period his legal successor shall be authorized to make a fresh agreement for the agriculture and allied activities;
(viii)The lesser shall have right to cancelled the lease agreement on the expiration of the lease period, lessee fails to pay the lease rent on agreed time, fails to comply with the terms and conditions of lease agreement uses of lease land for the purpose other than specified in the lease agreement, sub-lease 9 the leased land and damage cost to the land;
(ix) The competent authority or collector shall adjudicate the dispute with in a period 4 weeks and thereafter if the orders does not comply with lessee or not vacate his/her possession then collector shall vacate the land forcefully and revert the land to the lesser with imposing a fine of Rs.300 per day shall be recovered from the date of the land vacation order;
(x) No effect caused on the status of lesser's land of any grant in aid and bank loan taken against the leased property the lessee shall be responsible to pay such all types of pending dues;
(xi) In special circumstances as mentioned in sub-section (viii) the lesser/lessee shall have the right to cancel the lease with three months prior reasoned notice to pay with all encumbrances. The District Magistrate shall act as an arbitrator in respect of the leased property utilisation and inquired the actual position of the land provided for specific purpose and shall recommend the leased land on annual basis. If the District Magistrate is not satisfied with the optimum utilisation of land in any situation, can be terminated the lease of the land with all encumbrances. The lessee will obtain maximum 30 acres of land on lease according the need of the purpose. In special circumstances if the government land is situated in the middle of the leased land, the land shall allotted with cost on lease with the 10 permission of the State Government by the District Magistrate. The lesser promote the local products, vegetables, pulses, traditional crops and horticulture on preference the local citizen to provide the opportunity of self employment. The local citizens will prefer in employment excluding the specialized post of developed industry on the basis of products on leased property. The State Government monitor the prescribed policy regarding the distribution, sales and protection of the local products; WO the concerning district magistrate shall withdraw the lease forcefully and revert back the land to lesser, in violation of the terms and conditions of the lease agreement or on expiration of the terms of the lease. The small size of holdings of several land owners shall accumulate upto that extent, that land can be utilized for agriculture and its allied activities in beneficial stage or to create employment in leased agriculture land in Uttarakhand;
(xiii) If any difficulty arise to implement the aforesaid provisions, the State Government can clear by an order and also frame rules in connection of the lease.] (2) In this Chapter the word "Lease" and its cognate expression have the meaning assigned to them in the Transfer of Property Act, 1882 (IV of 1882).
[* * *]"
16. Learned counsel for the petitioner further submits that Section 157 of the said Act permits 11 letting of whole or part of holding by a Bhumidhar under certain circumstances, but according to him, the lease executed in favour of respondent no. 4 does not fall under any of the contingencies enumerated under Section 157 (1), consequently, the lease executed by the Bhumidhar in favour of respondent no. 4 is void.
17. Per contra, Mr. Siddharth Singh learned counsel appearing for the respondent no. 4 submits that, from the stipulation made in the lease deed, it is clear that the leased land was not being used for agriculture; but, it was used for other purposes since long. He further submits that declaration under Section 143 of the Act has also been made by the Assistant Collector. Mr. V.K. Kohli appearing for respondent nos. 1 to 3 submits that even if the lease is said to be in contravention of the provisions contained in Section 156 or 157 of the Act, then also the lease shall not be void and provision contained in Section 165(a) shall come into play.
18. Section 165 of the Act relied upon by Mr. V.K. Kohli is extracted below:
"165. Effects of lease in contravention of Section 157. - [ Where a bhumidhar has let out his holding or any part thereof in contravention of the provisions of Section 156 or Section 157] the lessee will, notwithstanding anything contained in any law or contract or document of lease, become and be deemed to be-12
(a) [where the total area of the land held by him together with the land held by his family including the land, if any, let out to him or any member of his family, does not exceed twelve and a half acres, [bhumidhar with non-transferable rights] thereof; and]
(b) where the total area as aforesaid exceeds [twelve and a half acres], a purchaser thereof and the provisions of Sections 154 and 163 shall mutatis mutandis apply.
[Explanation. - For the purpose of this section, the term "family" shall have the meaning assigned to it in Section 154.]"
19. This Court finds substance in the submission made on behalf of respondent nos. 1 to
3. From perusal of Section 165, it is apparent that if a Bhumidhar lets out his holding or part thereof in contravention of the provisions contained in Section 156 or 157, then the lessee will become Bhumidhar with non-transferable rights in respect of leased land, provided total area of the land held by him and his family, including the leased land, does not exceed 12.5 acres.
20. In such view of the matter, the contention raised on behalf of the petitioner that lease deed executed by the Bhumidhar in favour of petitioner would be void ab initio, cannot be accepted.
21. Even otherwise also, selection of respondent no. 4 for appointment as retail outlet 13 dealer cannot be faulted, as he fulfills all conditions of eligibility in terms of dealership selection guidelines. The Chief General Manager, Indian Oil Corporation Limited was, therefore, justified in rejecting petitioner's complaint after considering all relevant aspects in the matter.
22. In such view of the matter, there is no scope for interference with the impugned rejection order.
23. According the writ petition fails and is dismissed.
(MANOJ KUMAR TIWARI, J.) Rajni