Allahabad High Court
(Smt.) Mamta Goswami vs Bharat Petroleum Corporation Limited ... on 4 February, 2015
Bench: Arun Tandon, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 10 Case :- WRIT - C No. - 64659 of 2014 Petitioner :- (Smt.) Mamta Goswami Respondent :- Bharat Petroleum Corporation Limited (Bpcl)And Another Counsel for Petitioner :- O.P.Singh Sikarwar Counsel for Respondent :- Prakash Padia Hon'ble Arun Tandon,J.
Hon'ble Harsh Kumar,J.
Heard learned counsel for the petitioner and Sri Prakash Padia, learned counsel for the respondents.
Petitioner seeks quashing of the order dated 20.10.2014, passed by respondent no.2, rejecting the candidature of petitioner for the LPG Distributorship for the Location Garhmukteshwar, District Hapur.
The petitioner had made an application before Bharat Petroleum for grant of LPG dealership at various locations as advertised in newspaper dated 29th of September, 2013. One of the conditions for eligibility to be considered for such awarding of dealership is that the applicant should own suitable plot for construction of showroom as well as for construction of godown. The word 'own' has been defined under Clause 6.1 (vii) and (viii) which read ad under:
6.1 ELIGIBILITY CRITERIA FOR INDIVIDUAL APPLICANTS vii. Should own as on the last date for submission of application as specified in the advertisement or corrigendum (if any);
a plot of minimum dimension of 25 M x 30 M (within 15km from municipal/town/village limits of the location offered in the same State) for construction of LPG Godown for storage of 8000kg of LPG in cylinders. The plot of land for construction of godown not meeting the minimum dimensions of 25 M x 30 M will not be considered.
Or a ready LPG cylinder storage godown (within 15km from municipal/town/village limits of the location offered in the same State) of 8000 kg capacity.
In case there are any state specific requirement/norms applicable for construction of the LPG Godown, then the same will be applicable for the respective Regular Distributorship locations and revised minimum dimensions of plot of land will be required as specified in the advertisement of that respective State.
The plot of land or ready LPG cylinder storage godown should be freely accessible through all weather motorable approach road (public road or private road connecting road connecting to the public road). In case of private road connecting to the public road, the same should belong to the applicant/member of family Unit (as per the multiple dealership/distributorship norm of eligibility criteria) as per the ownership criteria defined below. In case of ownership/co-ownership by family member(s) in respect of such private road, consent letter from respective family member(s) will be required.
The land should also be plain, in one contiguous plot, free from live over head power transmission or telephone lines/canals/drainage/Nalis should not be passing through the plot. The land for construction of LPG godown should also meet the norms of various state or bodies such as PWD/Highway authorities/town and Country Planning department etc. In case an applicant as more than one suitable plot for construction of godown for storage of minimum 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the last date for submission of application as specified in the advertisement or corrigendum(if any), the details of the same case also be provided in the application.
(viii) Own a suitable shop of minimum size 3 metres by 4.5 metre in dimension or a plot of land for construction of showroom of minimum size 3 meters by 4.5 metre as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality mentioned in the advertisement. It should be easily accessible to general public through a suitable approach road.
In case an applicant has more than one shop of minimum size 3 metre by 4.5 metre in dimension or a plot of land for construction of showroom of minimum size 3 meters by 4.5 metre as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality as specified in the advertisement, the details of the same can also be provided in the application.
Reference vii & viii above:
'Own" means having ownership title of the property or registered lease agreement for minimum 15 years in the name of the 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/co-ownership by family member(s) as given above, consent in the form of a Notarized Affidavit from the family member(s)will be required. 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 a Notarized Affidavit from other owner(s)".
The petitioner had disclosed that she had obtained lease of suitable land for godown and date of the registration of the lease deed was mentioned as 24.10.2013 and similarly she had land for purposes of showroom obtained on lease which was executed on 21.10.2013. The petitioner has been non-suited in the matter of consideration for dealership vide order dated 20.10.2014 on the ground that lease of the petitioner for godown expires on 23.10.2028 whereas in accordance with the terms and conditions of Brochure, she should have lease for a period of fifteen years to be counted from the last date of making of the application which was 28.10.2013, meaning thereby that the terms of lease should have been upto 28.10.2028. To put it simply the period of lease of the plot for construction of godown is short by 5 days to be counted from last date of submission of application. The lease-deed of the plot for construction of showroom was executed on 21.10.2013 which expires on 20.10.2028 and that too is short by 7 days to be counted from the last date of submission of application as per the advertisement.
Counsel for the petitioner submits that clause referred to by the respondent which is quoted above admits of two meanings i.e. (a) The applicant must have a lease of a period of 15 years on the last date of making of the application (b) The applicant must have a lease of a period of 15 years is to be counted from the last date provided for in the advertisement for making of the application. He submits that if the petitioner had interpreted the provision in out of the two ways, which is a possible interpretation her candidature should not have been cancelled on such technical ground. Learned counsel has also referred to clause 8.5 of the Brochure which is quoted below:
" 8.5. Procedure For Receipt of Application Application would be received in sealed envelope only. After application is received, serial number would be put on the envelope and also recorded in a 'Register'. Acknowledgement for applications received will be sent to the applicants.
In case deficiencies are found in the application, a letter would be sent to the applicant to rectify the deficiencies within as specified period of time."
It is submitted that the deficiency referred to above is hyper-technical and respondent corporation was under legal obligation to afford an opportunity to rectify the said deficiency within time.
A counter affidavit on behalf of respondents has been filed.
Sri Prakash Padia, learned counsel for the respondents submitted that the order of the corporation is based on the true and correct reading of clause 6.1 (vii) & (viii). It admits no ambiguity. He also referred to the judgement of the Indore High Court in Pavan versus Hindustan Petroleum Corporation Ltd. and Km.Soniya versus Hindustan Petroleum Corporation Ltd. wherein cancellation of application in the matter of grant of LPG dealership on an identical ground had been upheld. He also referred to the judgement of Hon'ble Supreme Court in Sangeeta Singh versus Union of India and others reported in AIR 2005 Supreme Court 4459 with regards to the interpretation of statute.
In the instant case what is to be examined by us is as to whether clause 6.1 vii & viii admits of two meanings or not. On the bare reading of the clause we are satisfied that there is substance in the contention raised on behalf of the petitioner. We may record that Brochure is not a statute nor it is required to be read as a statute. The guidelines were framed for the purposes of inviting application from the person desirous of participation. There should be no hyper technical objections in the matter of consideration of the case of the applicants. It is in this background that Brochure's Clause 8.5 provides that deficiencies found in the application should be permitted to be rectified within time to be specified by the corporation.
From the facts which we have noted hereinabove, we find that the petitioner was right in believing that the term of lease as mentioned had to be 15 years in respect of the date from which this period of 15 years was to be counted.
If the interpretation placed by the petitioner is accepted there is no deficiency. If the Interpretation of the corporation is accepted, it would mean that there is deficiency of 5 days in the case of lease deed for construction of godown and 7 days in respect of lease for construction of showroom. In our opinion, if the objection of the corporation is permitted to stand it would defeat the petitioner's claim who had completed all the necessary formalities. Hyper technical objection need not be permitted to stand. As provided under clause 8.5 of Brochure the corporation has to afford an opportunity to the petitioner to rectify the deficiency. The deficiency could have been easily removed by the petitioner, if it had been brought to the notice of the petitioner. We have no hesitation to hold that the stand taken by the corporation is not legally justified.
In view of above order dated 20.10.2014 is quashed. The corporation is directed to permit the petitioner to remove the deficiency in lease period of 5 days and 7 days in respect of lease for construction of godown and showroom respectively within one month from today. The candidature of the petitioner for LPG dealership shall be considered thereafter in accordance with terms of the Brochure.
The writ petition stands allowed accordingly.
Order Date :- 4.2.2015 MN/-