Himachal Pradesh High Court
Vandana Kumari Guleria & Anr vs Union Of India & Others on 9 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 3327 of 2013
Reserved on 20.8.2015
Decided on: 9-9-2015.
Vandana Kumari Guleria & anr ...Petitioners
Vs
Union of India & others ...Respondents.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt
Whether approved for reporting?Yes
For the Petitioners : Mr. Ajay Sharma, Advocate.
For the Respondents : Mr. Vivek Thakur, Sr. Panel Counsel
for respondent No.1.
Ms. Vandana Panta, Advocate, for
repsndents No. 2 to 4.
Mr. Dushyant Dadwal, Advocate,
for respondent No.5.
Tarlok Singh Chauhan, Judge:
The petitioners, who themselves were contenders for the distributorship of LPG, by the medium of this writ petition, have questioned the allotment of the same in favour of 5th respondent.
The facts in brief may be noticed.
2. The respondents No. 2 to 4 issued advertisement for distributorship of LPG which appeared in daily edition of 'Amar Ujala' dated 10.9.2011, whereby apart from other places, Daulatpur Chowk in District Una, was also advertised for appointment of distributor under general category. Petitioners along with other persons ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 2 applied and after scrutiny, their names found mention in .
the list of eligible candidates. The draw of lots took place on 24.7.2012 at Una, in which 5th respondent was declared as selected.
3. Petitioners have laid challenge to this selection of on the ground that 5th respondent does not fulfill the eligibility criteria and has been selected by misleading rt officials of respondents No. 2 to 4.
4. It is contended that the admitted facts in the instant case are that 5th respondent was not the sole lessee of the land and had taken the same on lease alongwith one Sanjay Kumar her brother-in-law. His (Sanjay Kumar) case had already been rejected by respondents 2 to 4 on the ground that dimensions of showroom and godown were not in consonance with the guidelines as laid down in the brochure, whereas 5th respondent, who was similarly situate and placed like Sanjay Kumar could not have been selected, more particularly being joint lessees in one lease deed, which lease was not divisible particularly in view of clause (e) of the lease deed for godown/showroom annexed with the petition as annexure P-5 which reads thus:
"(e) The lessees shall not be free to assign, transfer, sublet, underlet, or part with possession of the same or any part thereof to any person above named whoever it chooses without the consent of the lesser.".::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 3
.
5. On the strength of this clause, it is vehemently urged that neither of the lessee i.e. Sanjay Kumar nor 5th respondent were free to assign, transfer, sublet, underlet, or part with possession of the property. While in the present of case, the only basis on which 5th respondent has been considered to be fulfilling the eligibility criteria is on the rt basis of the conditional letters of relinquishments executed by both Sanjay Kumar and 5th respondent whereby Sanjay Kumar in the event of his non selection has asked the official respondents to consider the land offered by him to the exiting share of 5th respondent and to similar effect is the letter of relinquishment executed by 5th respondent in favour of Sanjay Kumar.
6. It is averred that affidavit to the same effect was also filed by 5th respondent which for the reasons best known to the official respondents, has not been placed on record.
7. Respondent No.1 has not chosen to contest the petition, whereas respondents No. 2 to 4 have contested the petition by contending that they have scrupulously followed the guidelines as set out in the brochure and it is only thereafter that 5th respondent came to be selected, that too, on the basis of a draw.
::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 48. The respondents No. 2 to 4 have averred that in .
terms of clause 9.5 of the brochure, it was imperative upon it to have asked all the applicants to remove the deficiencies which were found in their respective applications and this procedure was not only followed in of the case of 5th respondent alone, but was followed even in the case of petitioners and a number of other rt applicants. It was on basis of this clause that it issued letters to both 5th respondent as also Sanjay Kumar on 1.3.2012 (Annexure R-2 and R-3 supra) and after satisfying itself not only on the basis of the explanation and documents submitted by 5th respondent, but thereafter on the basis of spot inspection and after getting clarification from the revenue authorities that 5th respondent was considered eligible and on the strength of the draw conducted at Una, was selected for the distributorship of LPG.
9. 5th respondent has contested the petition by filing a separate reply and has defended her selection as being based entirely on merit. 5th respondent has claimed that she was found suitable for the LPG distributorship after a field verification was undertaken by the officials of respondents No. 2 to 4 and it was only after satisfying themselves about her credentials that too strictly as per the policy and guidelines that the selection committee, ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 5 after interviewing large number of candidates, found her .
to be the best amongst the entire lot. It is further averred that the petitioners while making reference to the lease deed, were in fact misinterpreting the provisions of the Transfer of Property Act, whereas true and correct position of was that Sanjay Kumar, the brother in law of the replying respondent had executed a joint registered lease deed rt along with 5th respondent for a period of 15 years without specifying the actual area of each other but thereafter an affidavit to this effect had been executed by Sanjay Kumar on 4.10.2011 (quoted above), wherein it had clearly been stipulated that in the event of selection of 5th respondent being selected, he would have no objection if the godown is constructed on the land in question. It is further averred that 5th respondent fulfills the criteria as laid down in clause 7(vi) and 7(vii) of the brochure and was thus fully eligible for selection.
I have heard the learned counsel for the parties and have gone through the records.
10. It is not in dispute that the selection in question is required to be made on the basis of the guidelines annexed with the petition as annexure P-4. At this stage, certain salient features as are necessary for the adjudication of this petition may be noticed. Clause (vii) ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 6 relates to eligibility criteria for individual applicants. Clause .
(iv) defines 'Family Unit' in the following manner:
"(iv) 'Family Unit' in case of married person/applicant, shall consist of individual concerned, his/her Spouse(s) and their unmarried son(s)/daughter(s). In case of unmarried person/applicant, 'Family Unit' shall consist of individual of concerned, his/her parents and his/her unmarried brother(s) and unmarried sister(s). In case of divorcee, 'Family Unit' shall consist of individual concerned, unmarried son(s)/unmarried daughter(s) whose custody is given to him/her. In case of rt widow/widower, 'Family Unit' shall consist of individual concerned, unmarried son(s)/unmarried daughter(s)."
11. The size of the plot is set out in clause (vi), which provides as under:
"(vi) Should own a plot of land of adequate size (within 15 Km from municipal/town/village limits of the location offered in the same State) for construction of godown for storage of 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application. As per Gas Cylinder Rules 2004, the floor area of the storage shed for storing 8000 kg LPG in cylinders should be 80 sq meters. The length of the storage shed should not be more than 1.5 times of width of storage shed. There should be clear minimum safety distance of 7 meters between storage shed and the boundary wall/fencing. The plot of land with minimum dimension of 26.15 metres by 27 metre is adequate. It should be freely accessible through all weather motorable approach road (pubic road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Canals/Drainage/Nallahs should not be passing through the plot. The land for construction of LPG godown should also meet the norms of various statutory bodies such as PWD/Highway authorities/Town and Country Planning Department etc. In case an applicant has more than one suitable plot for construction of go down for storage of minimum 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 7 the date of application, the details of the same can also be .
provided in the application."
And clause (vii) gives the specification of the shop in the following terms:
'(vii) Own a suitable shop of minimum size 3 metres by 4.5 of metre in dimension or a plot of land for construction of shop of minimum size 3 metres by 4.5 metre at the advertised location of locality as specified in the advertisement as on rt the date of application. 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 shop of minimum size 3 metre by 4.5 metre at the advertised location or locality as specified in the advertised as on the date of application, the details of the same can also be provided in the application.
It is further clarified with respect to clauses (vi) and (vii) supra that:
'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. 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 no objection from other owner(s)."
12. 9.5 of the brochure relate to the procedure for receipt of application and provide that:
"9.5.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'.::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 8
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 a specified period of time."
13. Learned counsel for the petitioners invited my of attention to the letters dated 1.3.2012 annexed with the reply of respondents 2 to 4 as Annexures R-2 and R-3, rt respectively, wherein both Smt. Ruchi Kumari and Sanjay Kumar were directed to clarify the following position:
"The land for the godown is jointly owned by you and your brother-in-law. The plot size of godown as indicated in your application is 35 mtr x 26 mtr. Kindly clarify your share in the aforesaid land."
14. In response to this letter, Sanjay Kumar replied in the following terms:
"To The Territory Manager (LPG) Bharat Petroleum Corporation Ltd.
Lalru, PO Tiwana, Distt. Mohali (Pb)-140501 Sub: Representation on the Letter No. LRU/DPC/05 dated 01-03-2012 Sir, The applicant respectfully submits as under:-
1. That the applicant has attached two affidavits along with the application regarding the detail of the Plot of Land for Godown.
2. That the Lease Deed no. 1779 dated 27-09-2011 registered in the office of Sub Registrar Amb, Distt. Una H.P. in respect of Land of Khasra no. 527, 525 Land measuring 0-13-44 hects situated at Village Dangoh Khas, Tehsil Amb, Distt. Una H.P. has been executed and registered in favour of the applicant and Sanjay Kumar son of Sh. Pritam Chand resident of Ward No. 7, Palampur PO and Tehsil Palampur, Distt. Kangra, H.P. who is a co-lessee with the applicant and is within the definition of reference 7.1 (vi, vii) of Guidelines on selection of Regular LPG Distributorship.::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 9
3. That the applicant fulfill the criteria of land as detailed in the definition of reference 7.1 (vi, vii) of Guidelines on selection .
of Regular LPG Distributorship as the above named Sanjay Kumar has given No Objection by way of affidavit as required by your goodself. No doubt Sanjay Kumar is brother-in-law of the applicant but so far as the land is concerned he is a co-lessee and the lease is for 15 years subject to renewable.
4. That the plot size of the godown fulfill the basic requirement rather the size of the plot is more than the requirement. The of affidavit of Ruchi Kumar have not been appreciated properly as she is a co-lessee as well as sister in law. She be treated as co-lessee and she has given no objection.
Therefore your good self is requested to consider the rt application of the applicant and treat Ruchi Kumari as co- lessee with the applicant and plot size which is much more than requirement.
Thanking you in anticipation.
Date: 21-03-2012 Place: Palamput Sd/-
Applicant Sanjay Kumar S/o Sh. Pritam Chand R/o Ward No. 7 Palampur"
Insofar as 5th respondent is concerned, she too
15. filed a verbatim reply as filed by Sanjay Kumar, which has been annexed with the reply as Annexure R-5.
16. The petitioners have also drawn my attention to the notarized affidavit submitted by Sanjay Kumar, relevant portion whereof reads as under:
"1. That I am married and my sister in law Smt. Ruchi Kumari has applied for LPG distributorship of BPC at Doulatpur Chowk, HP under open category against the advertisement made in 'Amar Ujala news paper dated 10 Sep.2011.
2. That in case she is selected for LPG distributorship, I have no objection for construction of godown/showroom on the land specified in item No.9 and 10 in my name as a Lease holder.
3. That in case she is selected for LPG distributorship I will provide financial assistance to the extent of amount which is mentioned at Item No 11 & 12 under my name in the ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 10 application submitted by Ruchi Kumari for LPG distributorship .
of BPC at Doulatpur Chowk,( HP)."
17. As per the allegations of the petitioners, similar affidavit had also been sworn by 5th respondent to the effect that in the event of her non-selection, the official of respondents should consider the land offered by her to the existing share of Sanjay Kumar, but the same had not rt been placed on record.
18. The records produced by respondents No. 1 to 4 reveal that 5th respondent had sworn an affidavit on 4.10.2011, which reads thus:
"I Ruchi Kumari wife of Sh. Ajay Kumar, age 29 year resident of Ward No. 7, Teh & P.O. Palampur, Distt. Kangra, H.P. do hereby affirm and say as under:
1. That I am married and my brother in law Mr. Sanjay Kumar has applied for LPG distributorship of BPC at Doulatpur Chowk (H.P.) under open category against the advertisement made in Amar Ujjala news paper dated 10 Sep. 2011.
2. That in case he is selected for LPG distributorship I have no objection for construction of godown/showroom on the land specified in item No. 9 & 10 in my name as a lease holder.
3. That in case he is selected for LPG distributorship I will provide financial assistance to the extent of amount which is mentioned at item No. 11 & 12 under my name in the application submitted by Shri Sanjay Kumar for LPG distributorship of BPC at Doulatpur Chowk (HP).
I hereby verify that what has been stated above is true and correct to the best of my knowledge and nothing material has been concealed therefrom. Solemnly affirmed and declared before me. This 4 day of Oct. 2011.
Sd/-
Ruchi Kumari."
::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 1119. It is on the strength of the aforesaid documents .
that it is contended that since 5th respondent and Sanjay Kumar were joint tenants, the contract of tenancy amongst them was a single and indivisible contract and therefore, it was not open for either of them to divide the of same in the aforesaid manner. He has in support of his contention relied upon the judgment of the Hon'ble rt Supreme Court in Miss S.Sanyal Vs. Gian Chand AIR 1968 SC 438 , wherein, it held as follows:
"3. In the present case the First Appellate Court held that the house was "let out for running a school and for residence". The High Court held that where there is a composite letting, it is open to the Court to disintegrate the contract of tenancy, and if, the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which "is being used"
by the tenant for residential purposes. In so holding, in our judgment. the High Court erred. The jurisdiction 'of the Court may be exercised under s. 13(1)(e) of the Act only when the, premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non- residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts-one of letting for residential purposes, and the other for non- residential purposes, and to grant relief under s. 13(1)(e) of the Act limited to the portion of the demised property which "is being used" for residential purposes.
6. In this case the letting not being solely for residential purposes, in our judgment, the Court had no jurisdiction to pass the order appealed from. We may note that a Division Bench of the Punjab High Court in Kunwar Behari v. Smt. Vindhya Devi, AIR 1966 Punj 481 has held in construing S. 14(i)(e) of the Delhi Rent Control Act 59 of 1958, material part whereof is substantially in the same terms as S. 13(1)(e) of the ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 12 Delhi & Ajmer Rent Control Act, that "where the building let .
for residence is the entire premises it is not open to the Court to further sub-divide the premises and order eviction with respect to a part thereof". In our view that judgment of the Punjab High Court was right on the fundamental ground that in the absence of a specific provision incorporated in the statute the Court has no power to break up the unity 'of the contract of letting and attribute incidents and obligations to of a part of the subject-matter of the contract which are not applicable to the rest.
20. rt Fundamentally, the concepts of joint tenancy and tenancy-in-common are different and distinct in form and substance. Herein, it is important to note that the incidents regarding the co-tenancy and joint tenancy are different. Joint tenants have unity of title, unity of commencement of title, unity of interest, so as in law to have equal shares in the joint estate, unity of possession, as well of every part as of the whole, and right of survivorship.
21. Tenancy-in-common on the other hand is a different concept. There is unity of possession but no unity of title, i.e. the interests are differently held which mean that none of the co-tenure-holders has title over the entire estate. The title varies. The tenants-in-common need have only unity of possession; they may have unequal shares, and there is no right of survivorship. Each tenant-in-
common could at common law make a lease in respect of his own share alone, the interest of each being ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 13 separate and distinct, and if tenants-in-common all joined .
in one lease it operated as a lease by each of his respective share and a confirmation by each as to the shares of the others. The principle will apply with equal force to tenancy rights held in common.
of
22. The joint tenancy can be converted and changed into tenancy-in-common by effecting a division rt of the same whereby the joint tenancy shall then change and become tenancy-in-common.
23. On the aforesaid basis it can conveniently be concluded that the status of 5th respondent with Sanjay Kumar was that of joint tenants and not tenant-in-
common. If that be so, then there was a unity of equal shares in the joint estate which status could have been brought about only by a division of the same. But in no event, could the share of one of the joint tenant exceed the share of the other without there being a lawful division of the same.
24. Since there are admittedly only two joint tenants in the instant case then the necessary corollary is that they have undivided equal share in the lease deed.
25. Now, the further question that arises for consideration is as to whether there was a lawful division brought about in the land so as to convert the status from joint tenants to joint tenants-in-common by executing an ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 14 undertaking and affidavits to this effect? The answer .
would be in the negative for the simple reason that as per the "Clause (e) of the lease deed, neither of the lessee is free to assign/transfer sublet, underlet or part with possession of the same or any part thereof to any person of above named whoever it chooses without the consent of the lesser." Admittedly, no such consent has been rt obtained from the lesser and if at all it had been taken, then the same atleast has not been placed on the record.
26. That apart, the relinquishment or assignment are not mere empty words, but have definite legal connotations. 5th respondent and Sanjay Kumar could not have executed documents which are in the nature of "either or remainder" thereby making a reservation of berth for either of them in the selection. This is an unconscionable contract and therefore violates the provisions of the Indian Contract Act.
27. Learned counsel for the respondents would however contend that the petitioners after having participated in the selection process were estopped from questioning the allotment made in favour of 5th respondent. I am afraid that this contention is not available to the respondents for the simple reason that the petitioners could be said to be estopped to a fact or action, which is professed, but such estoppel would not ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 15 be attracted to a condition of a brochure that has not .
been followed or where the procedure followed is not only arbitrary, capricious but even illegal. The grievance of the petitioners is not in respect of the criteria advertised, but the manner of applying such a criteria for making of allotments and therefore, the plea of estoppel would not be attracted to the facts of the present case.
rt
28. Insofar as 5th respondent is concerned, heavy reliance is placed on a recent judgment of the Hon'ble Supreme Court in Sunita Gupta vs. Union of India and others 2015 (1) SLJ 83 to contend that there was no embargo in considering the land of Sanjay Kumar, who was non-other than the brother-in-law of 5th respondent to her share, more particularly, after he had relinquished the same in her favour by way of affidavit. Reliance in particular was placed upon the following observations of the Hon'ble Supreme Court:
"7. We have heard the rival legal contentions for the parties. The appellant was initially found eligible and was called for the interview. After the interview, she was shown as selected and the visit to the land mentioned along with the application for the dealership was accepted as sufficient and 35 marks were awarded in that regard. Subsequently, it was changed to zero, as per clause 12 of the guidelines, on the ground that consent letters of the co-owners were not submitted before the due date along with the application but much later and as per the said clause, no addition/deletion or alteration will be permitted in the application once it is submitted.::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 16
In our considered viewpoint, this approach of the .
respondents was erroneous as the application form of the appellant was initially accepted along with the consent letters of her husband and father-in-law to whom the land belonged and the site visit was completed satisfactorily and she was called in for the interview. After the interview, her name was on top of the results list and she was shown as selected. She was awarded 35 marks under the head 'Land of and Infrastructure'. Later, the respondents made an about turn and declared that she was ineligible as she had given the consent letters of the co-owners after the due date and rt hence, the marks awarded under 'Land and Infrastructure' were reduced to zero. Hence, the review order passed by the respondents is bad in law as the appellant was originally found to have fulfilled all the criteria for the land offered which was greater in area than the land required as per the rules and guidelines of the respondent Corporation. The review committee, on a mere technicality, denied the appellant her right to the dealership, after it was previously declared that she was selected for the same. It is evident that the documents the appellant provided at first were seen to be sufficient, and the fact that she chose to give some additional documents to buttress her application cannot be a ground to nullify her appointment, given that clause 14, 'Preference for applicants offering suitable land' of the HPCL "Guidelines for Selection of Retail Outlet Holders" details that the land owned by the family members namely spouse/unmarried children will also be considered subject to the consent of the concerned family member. Since, in this case, the land was owned by her husband and father-in-law, she gave their consent letters along with the application form within the due date. We feel that the appellant has sufficiently met the conditions of the application and the respondent Corporation has erred in subsequently cancelling the appointment on a flimsy technicality and has acted in an arbitrary and unfair manner. It is relevant to quote the case of Mahabir Auto Stores & Ors. v. Indian Oil Corporation and Ors.[1], wherein it was held that -
"Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the contractual field, it should be governed by the incidence of the contract. It is true ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 17 that it may not be necessary to give reasons but, in our opinion, in the field of this nature fairness must be .
there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. We must, however, evolve such process which will work."
of For the reasons stated supra, we hold that the respondent- Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant for the retail outlet dealership in question and not rt issuing the letter of intent to her. The appellant has competed for the appointment and was selected fairly after satisfying the requirements. Therefore, we direct the respondents to restore the appointment to the appellant within six weeks from the date of receipt of the copy of this order. The appeal is accordingly allowed on the above terms with no order as to costs."
29. I have gone through the aforesaid judgment and find that the same is not at all applicable to the facts of the instant case. The Hon'ble Supreme Court in the aforesaid case was dealing with a case where the appellant therein alongwith the application form, had appended a land map showing the plot in question to be divided into three parts, out of which the middle part belonged to the appellant and the same was also accompanied by the consent letter of her husband and her father-in-law. The total land measured 2980 sq.m.
whereas the land required was only 900 sq.m. It was the contention of the appellant therein that once the land was far in excess of the requirement, then there was no requirement or occasion to submit the consent letters of ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 18 other co-owners. It was in this factual background that the .
observations, as quoted above, were made and the appeal filed was allowed. Whereas, the facts in the instant case are entirely different because admittedly unlike in Sunita Gupta's case (supra) Sanjay Kumar and respondent of No.5 are joint owners. It is also not in dispute that in case they are held to be joint owners to the extent of equal rt shares then none of them fulfill the eligibility as prescribed in the brochure.
30. It is further not in dispute that unlike in Sunita Gupta's case (supra), where there was a single applicant, here both Sanjay Kumar and 5th respondent are applicants having separately applied for the allotment and pertinently the application of Sanjay Kumar already stands rejected. Therefore, judgment aforesaid, is of no assistance to 5th respondent.
31. Another intriguing fact in the present case is as to how the shares of 5th respondent came to be determined when admittedly she was a joint lessee in equal shares with Sanjay Kumar. Vide letter dated 4.2.2013, 5th respondent was asked to clarify her share including the dimensions of the land for showroom as well as godown as would be clear from the relevant portion of the letter dated 4.2.2013 which reads thus:
::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 19"........During the FVC, the team visited sub-registrar .
office at Amb to verify the genuineness of registered lease deed no. 1779/2011 dt. 27/09/2011. The sub- registrar, Amb vide his letter no. 71/RC dt. 27/12/2012, has confirmed that the said lease deed has been duly registered in his office. However, the said office could not clarify on your share including dimensions in the of lands for showroom as well as godown.
'As per Boucher on Guidelines for selection of regular LPG distributors, April 2011 rt Reference to point no. vi & vii of Land for Godown & showroom, 'Own' means having ownership title of the property or registered long (minimum 15 yrs) in the name of applicant/ family member as defined in multiple distributorship norm of eligibility criteria.
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 no objection from other owner(s).' You are requested to furnish documents from revenue records clarify your share including the dimensions in the lands for showroom as well as godown as per registered lease deed no. 1779/2011 dt. 27/09/2011 as on date of application within 15 days of receipt of this letter failing which your candidature for the above LPG distributorship will be treated as in-eligible."
32. In response to the aforesaid letter, 5th respondent submitted the following reply:
".....That pursuant to my application for the LPG distributorship at Daulatpur Chowk & after my selection the field verification of my land was carried out by the officials of your company which is jointly leased by me with my brother in law, who has executed an affidavit ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 20 in favour, with clear stipulation in the same that in case .
of my selection he would be having no objection, which affidavit was submitted alongwith the application form.
Sir, when even the verification from the office of Sub- Registrar, Amb about the lease deed has also been done & confirmed, it is not understood that how and of on what basis the objection with respect to the share and its dimensions is being taken without any justification and reasoning, when there was no rt requirement of the same in the advertisement, which also loses its significance when affidavit has been executed by the other lessee i.e. Sh. Sanjay Kumar, my brother in law, who in clear and unequivocal terms has given undertaking that he has no objection with regard to establishment of LPG distributorship if the same is allotted to me. For the sake of clarification it is again submitted that the ladn which was mentioned in the lease deed meets out the specific requirements mentioned in the advertisement, the veracity of which has been confirmed and verified after field inspection and confirmation from the office of Sub-Registrar, therefore it is humbly submitted that the same may please be dropped, which is unjustifiable and improper as the same is being raked up for some extraneous reasons as far as the undertaking of the applicant goes.
The applicant is eligible and is fulfilling all the requirements strictly as per the brochure therefore, it is humbly requested that the applicant may please be issued letter of intent as soon as possible without wasting any further time.
So far as the lease deed is concerned the same is for a period of 15 years, which confirms the requirement as per the advertisement as also as per the brochure. Since the applicant has earlier also submitted that after execution of affidavit by Sh. Sanjay Kumar, the other lessee, she is the lessee of the entire land therefore ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 21 there is no question of mentioning or specifying the .
share of the applicant.
For the sake of clarification once again the applicant is submitting the documents from the revenue officer stating therein the dimensions of the land and the affidavit executed by the co lessee mentioning therein the area and dimensions of the land."
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33. It appears that thereafter the Deputy Manager of the respondent-Corporation approached the Sub-
rt Registrar, Amb vide letter dated 8.3.2013 asking him to confirm the date on which the individual share of 5th respondent was incorporated in the registered lease deed no. 1779/2011 dt. 27/09/2011. It is on the basis of this letter that a certificate came to be issued by the concerned Patwari and counter-signed by the Naib-Tehsildar, the copy whereof was appended as Annexure R-16 with CMP No. 3734 of 2014 wherein the length and width of the land offered by 5th respondent was stated to be 26 mtr x 35.3 sq. mtrs.
34. At this juncture, it may be worthwhile to refer to another facet of the case. When the case had been argued for some time on 22.9.2014 this Court passed the following orders:
"Heard for some time. Respondent No.3 is directed to file an affidavit to the effect as to whether the land mentioned by Sanjay Kumar in his application for grant of dealership of LPG, which included the land of respondent No.5, were excluded at the time of calculating and computing the land disclosed by ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 22 respondent No.5, Ruchi Kumari in her application for .
grant of dealership of LPG. This be done within a period of three weeks. List on 17.10.2014, on which date the records of the case shall also be made available."
35. Thereafter, when the case came up for further consideration on 17.10.2014, the Court after not being of satisfied with the affidavit filed by respondent No.4, passed the following orders:
rt "The affidavit filed by respondent No.4 does not comply with the directions passed by this Court on 22.9.2014. The respondent No.4 is directed to file supplementary affidavit strictly in accordance with the directions passed by this Court on 22.09.2014, failing which he shall appear before this Court in person. List on 04.11.2014."
36. In terms of the supplementary affidavit filed in compliance to the order dated 22.9.2014, it would be noticed that respondent No.4 in para 8 thereof, has made the following averment:
"8. That subsequently, during field verifications of credentials, it was verified from the revenue authorities (Sub-Registrar, Amb) that Smt. Ruchi Kumari has a share of 916 sq.mtrs in the lease land pertaining to khasra No. 527 and 525 with a dimension of 26 mtr x 35.3 mtr which is effective from 27/09/2011 i.e. from the date of execution of the lease deed."
37. Since this Court was not prima facie satisfied as to on what basis the certificate had been issued, this Court vide order dated 11.12.2014, directed the personal presence of the Patwari as well as Naib Tehsildar, Amb, ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 23 District Una. The concerned officials appeared before this .
Court on 18.12.2014 and candidly conceded that since the lease deed was jointly executed by the 5th respondent and Sanjay Kumar, the shares of co-lessees would essentially be equal unless so specified and made clear in of the lease deed itself. It was clarified that the matters of shares are determined by the document and the rt agreement between the parties and the revenue officers are not competent to work out the shares unless the document so specifies.
38. Here, it is pertinent to note that the total area of khasra No. 525 is 0-08-94 hectares, out of which 0-02-22 hectares has been taken on lease by Sanjay Kumar and 5th respondent jointly. Thus, the area of the two persons, will be 222/894 share, but how the share of Sanjay Kumar in the lease deed has been worked out to the extent of 428/1344 share and Smt. Ruchi Kumari to the extent of 916/1344 share is not forthcoming.
39. Once, it was a joint lease wherein 5th respondent and Sanjay Kumar were joint tenants then they would be lessees to the extent of 222/894 shares respectively. This clearly goes to show that a clear mischief has been played by the revenue authorities simply in order to extend undue benefit by manipulating a document in favour of 5th respondent. After all the ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 24 revenue staff had no "magical wand" to divide a lease .
deed in the aforesaid manner which was jointly executed by 5th respondent and Sanjay Kumar.
40. It is further not in dispute that the requirement of the land as per brochure is 27 mt x 26.15 mtrs as against of which the dimensions of the land offered by 5th respondent on the basis of the illegal certificate rt and other documents illegally manufactured by the revenue staff is still admittedly less and is 26 mtr x 35.3. mtrs. When confronted with this short-fall, the respondents No. 1 to 4 would claim that the difference was very marginal and could conveniently be ignored. I am afraid that this contention is not available to the official respondents for the simple reason that it is they, who have laid down the guidelines and having laid the same, they are estopped from questioning the validity thereof.
41. In view of the aforesaid discussion, the selection of respondent No.5 for the distributorship of LPG at Daulatpur Chowk, District Una cannot be sustained and is accordingly quashed.
42. Since the selection of 5th respondent was primarily made on the basis of the documents illegally manufactured and thereafter issued by the revenue authorities, let departmental proceedings be initiated against the then Patwari and Naib-Tehsildar, Amb, who ::: Downloaded on - 15/04/2017 18:54:03 :::HCHP 25 illegally and in order to extend undue benefit to 5th .
respondent, who otherwise was not eligible for being LPG distributorship issued the same.
43. At the same time, respondents No. 1 to 4would be well advised in future to adhere to the time of schedule as provided in the brochure and desist from permitting the rt applicants from manipulating and manufacturing the documents under the garb of removing the deficiencies by invoking Clause 9.5 of the brochure as has been done in the present case.
The writ petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending applications are also disposed of. Interim stay granted by this Court, from time to time, is vacated.
44. Let copy of this order alongwith the complete paper book be sent to the Principal Secretary (Revenue) so as to enable him to initiate the departmental proceedings as aforesaid.
September 9th , 2015 (Tarlok Singh Chauhan)
(GR) Judge
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