Madhya Pradesh High Court
Vijay Pratap Singh Parihar vs Union Of India on 6 August, 2014
Equivalent citations: AIR 2015 (NOC) 813 (M.P.) (GWALIOR BENCH)
1 W.P. No. 4449/2014
(Vijay Pratap Singh Parihar Vs. Union of India & Ors. )
06/08/2014
Shri K.N.Gupta, Sr. Advocate with Shri C.P.Singh,
Advocate for the petitioner.
Shri N.K.Jain, Sr. Advocate with Shri A.K.Jain, Advocate
for the respondents No. 2 to 7.
By this petition under Article 226 of the Constitution of
India, challenge is made to impugned communication dated
20/6/2014 by which respondent-Indian Oil Corporation Limited
has rejected the application of the petitioner for award of LPG
Distributorship at Gwalior-E, District Gwalior under "OP"
category, advertised on 15/11/2011 on the premise that the
petitioner does not possess suitable land for godown as per the
eligibility criteria as the lease deed of the godown land declared by
him was found to be invalid.
It is contended by the petitioner that as required under
clause VI of the guidelines framed by the respondents and also as
per clause 9 of the General Instructions to the candidates, the
petitioner has submitted the lease deed. Lease deed in respect of
land ad measuring 100 x 100 sq. ft. falling in Patwari Halka No.
23, Revenue Inspector Board Circle No. 1, Ghatigaon
Development Board, Barai, Tahsil and District Gwalior executed
in favour of plaintiff by one Bharat Singh on behalf of his minor
son Kripal Singh dated 31/12/2011 is a validly executed lease deed
fulfilling the requirement of IOCL.
It appears that respondents-Corporation has received a
2 W.P. No. 4449/2014
complaint as regards non-availability of land for godown with the
petitioner. On verification of the lease deed submitted by the
petitioner, it was brought to the notice of respondents-Corporation
that on the date of lease deed i.e. 31/12/2011, Kripal Singh was
major. The lease agreement was executed on 31/12/2011 by Bharat
Singh as guardian stating that Kripal Singh as minor was found to
be factually incorrect. Therefore, Bharat Singh was not competent
to execute the lease deed. Resultantly, lease deed found to be null
and void and consequently, the land for godown shown by the
petitioner in his application form was not found to be fulfilling the
required criteria. The aforesaid facts were brought to the notice of
the petitioner vide communication dated 3/4/2014 (Annexure P/11)
and an opportunity was afforded to him to submit representaion on
the aforesaid issue within seven days. It appears that same was
replied on 4/4/2014 by the petitioner vide Annexure P/12 with the
submissions that due to inadvertence, the lease deed was executed
on 31/12/2011 by Bharat Singh father of Kripal Singh (minor).
Now Kripal Singh is already major and ready to ratify the lease
deed dated 31/12/2011 by making necessary amendments wherever
it is required. Thus, the legal infirmity will be cured and the same
shall not affect the lease deed dated 31/12/2011. With the aforesaid
submissions, petitioner sought permission to submit rectification
deed/amendment lease deed with removal of defects. Petitioner
also submitted consent documents of Kripal Singh on non-judicial
papers in support of aforesaid submissions, however, respondents-
Corporation was not convinced with the aforesaid submissions and
3 W.P. No. 4449/2014
resolved to reject the candidature of the petitioner by the impugned
communication.
Senior Counsel for the petitioner submitted that
respondents/Corporation has acted arbitrarily having rejected the
candidature on the premise that the lease deed dated 31/12/2011
was not legally tenable having been executed by Bharat Singh
father of Kripal Singh (minor) which was on later date
supplemented by a consent letter by Kripal Singh dated 15/4/2014.
Learned counsel for the petitioner referred to meaning of "Own" as
defined in guidelines clause vi issued by the
respondents/corporation and submits that petitioner is covered
with the definition of word "Own". He further submitted that even
if Kripal Singh had attained majority on the date of execution of
lease deed dated 31/12/2011, lease deed executed on the said date
by his father styling Kripal Singh as minor inadvertently, in favour
of petitioner, the same could not have been rejected as Kripal
Singh on 15/4/2014 had signed a consent letter in respect of
aforesaid lease deed. It is submitted that the lease deed dated
31/12/2011, under such circumstances, could not have been said to
be void instrument. At the most, it may be voidable documents at
the instance of Kripal Singh. Following judgments reported in
Premsingh and others Vs. Birbal and others, (2006) 5 SCC 353,
Partap and another Vs. Smt. Puniya Bai and others, AIR 1977
MP 108 and Jinendra Kumar Jain Vs. Union of India and
others, 2011 (4) MPLJ 396 have been cited to support the
contention advanced. It is submitted that there is a distinction
4 W.P. No. 4449/2014
between fraudulent misrepresentation as to the character of a
document and as to its contents. Where the misrepresentation is
merely in respect of the contents of the document, the transaction
becomes voidable and where it relates also to the character of the
transaction, then the transaction is void. He submits that in the
instant case, the lease deed in question at the most could be said to
be a misrepresentation of contents of the documents and therefore,
voidable at the instance of Kripal Singh; however, the same cannot
be said to be void. Hence, same ought to have been accepted.
Moreover, when the same was supported by consent letter of
Kripal Singh dated 15/4/2014.
On the other hand, respondents' senior counsel has
submitted that rejection of candidature of the petitioner primarily
was for the reason of fraud played by the petitioner while
submitting the lease deed dated 31/12/2011 as the lessee Bharat
Singh despite having full k Partap and another nowledge of the
fact that his son Kripal Singh had attained majority on the alleged
date of execution of lease deed still executed the lease deed
showing Kripal Singh as minor to mislead the Corporation as
regards alleged fulfillment of the requirement of availability of
land for the godown purposes. Such information in fact runs
contrary to the requirement of general instructions to the candidates
applying for LPG distributorship clause 9, which contemplates as
under:-
"Documents pertaining to land/Godown in the name
of applicant or member of 'family unit'
5 W.P. No. 4449/2014
Registered sale deed/Registered Gift Deed/Registered
Lease Deed (15 years minimum)/Mutation and
government record etc.
The Date of the documents have to be on or before the
date of application.
In case land is in the name of member of 'family unit',
consent from the family member in form of Notarized
Affidavit (Appendix 2) is required to be attached with
the application."
Therefore, as on the date of submissions of application, the
alleged lease deed dated 31/12/2011, the same was not legally valid
document i.e. registered lease deed in favour of the petitioner. It is
further submitted that the information submitted by the petitioner
as regard availability of land for godown purposes was false.
Therefore, candidature of the petitioner was liable to be rejected in
terms of clause 22 of Guidelines on Selection of Regular LPG
Distributorship (hereinafter referred to as the 'Guidelines'). For
ready reference clause 22 is reproduced hereinbelow:-
"22. False Information:-
If any statement made in the application or in the
documents enclosed therewith or subsequently
submitted in pursuance of the application by the
candidate at any stage is found to have been
suppressed/misrepresented/incorrect or false affecting
eligibility, then the application is liable to be rejected
without assigning any reason and in case the
applicant has been appointed as a distributor, the
distributorship is liable to be terminated. In such
cases the candidate/distributor shall have no claim
whatsoever against the respective Oil Company."
(Emphasis supplied)
Learned senior counsel for the respondent/Corporation
6 W.P. No. 4449/2014
further submitted that as per brochure clause (vii), the status of the
documents of the godown land can be considered only as on the
last date of submission of the application. Requirement to that
effect is well-explicit as per general instructions of the candidates
applying for LPG distributorship. Clause 9 of the advertisement is
referred to in that behalf. Therefore, documents filed on or before
the date of application shall be relevant for the purpose of
consideration. As such, the consent letter (Sahmati Patra) of
Kripal Singh dated 15/04/2014 cannot be considered. Learned
senior counsel referred to an Order passed by a coordinate Bench
of this Court dated 05/03/2012 in W.P.No.1310/2012 (Atar Singh
Dhakad Vs. Union of India and others) to bolster his submissions.
Learned senior counsel for the respondent/Corporation
further submits that if the alleged consent letter dated 15/04/2014
is perused in its internal page of paragraph 2, Kripal Singh has
stated to the following effect:
";g fd] eSa orZeku esa okfyx gksdj 'kkldh; dkxtkr [kljk ikap lkyk
Hkw&vf/kdkj _.k iqfLrdk dzekad ,Q&100916 ukck- fujLr gksdj ,oa
ljijLrh fujLr okfyx vafdr gS vr% fnukad 31-12-2011 dks fy[kh xbZ
fy[kre yht MhM dks mi iath;d dk;kZy; Xokfy;j esa 31-12-2011 dks
iath;u dzekad 456 ij gqbZ gS eSa lgefr nsrk gwWa vkSj fy[ks nsrk gwWa fd
fy[kre yhtMhM 31-12-2011 ls mlh izdkj mlesa nh xbZ leLr 'krksZa
lEifRr dk fooj.k fdjk;k] fdjk;snkjh dh le; vof/k vFkkZr yht MhM ds
fcUnq dzekad 1 yxk;r 13 rd lHkh eq>s ekU; gSa mDr fy[kre yhtMhM dk
;g lgefr i= iwjd nLrkost gksxkA"
(Emphasis supplied)
As such, Kripal Singh claims to have become major on
7 W.P. No. 4449/2014
15/04/2014 whereas in fact, he had already attained majority before
the date of alleged leased deed executed by Bharat Singh father of
Kripal Singh on 31/12/2011 as per date of birth shown in the X
Class marks sheet, i.e., 28/05/1992.
Therefore, even Kripal Singh has made an incorrect
statement in his aforesaid consent letter only to subserve the
interest of the petitioner.
With the aforesaid submissions, learned senior counsel for
the respondent/Corporation submits that rejection of the
candidature of petitioner is based on misrepresentation of facts in
the context of requirement of availability of land for godown to
award LPG distributorship. It is submitted that adherence of the
conditions stipulated in the advertisement and the brochure issued
by the respondent/Corporation is mandatory by each candidate.
Non-fulfilment of such conditions or supply of false information
shall render cancellation of candidature of a candidate even after
award of distributorship, the LPG distributorship can be cancelled
or withdrawn. This can be done as per clause 22 of the Guidelines
quoted above. It is submitted that under such circumstance, the
respondent/Corporation is well within its rights to hold re-draw to
select eligible candidate after rejection of candidature of the
petitioner. With the aforesaid submissions, petition is prayed to be
dismissed.
Before adverting to the merits of submissions so advanced
by rival parties, it is apposite to mention that the scope of
interference in such matters is well-explained and circumscribed as
8 W.P. No. 4449/2014
settled by catena of judicial pronouncements. The process of
selection for award of dealership by Oil Corporations is essentially
an administrative decision which is required to be arrived at in fair
manner. Inviting applications through advertisement from
amongst the eligible candidates by an Oil Corporation for award of
dealership in fact and in effect is in the process of business
transaction for which detailed comprehensive terms and conditions
are stipulated not only in the advertisement but also in the brochure
issued by the Indian Oil Corporation Ltd.,. Fulfillment of those
conditions are stated to be mandatory. Hence, before accepting
invitation for award of dealership, a candidate is required to go
through the terms and conditions subject whereto claim of a
candidate is processed, examined and decided by IOCL. Non-
adherence thereto or infraction/variance thereof by a candidate may
result into vulnerability of the candidature and it is open for the
IOCL to take a final decision as regards acceptance or rejection of
a candidature. This is so because it is a contract between IOCL
and the candidate having commercial orientation. The decisions
taken by the IOCL in such matters are not pregnable though the
decision making process by the IOCL is always open for judicial
review. The fairness in decision making process is not only the
requirement of Article 14 of the Constitution of India but also sine
qua non of rule of law. (K. Vinod Kumar Vs. S.Palanisamy and others,
(2003) 10 SCC 681 - para 11 is referred to which is quoted):
"The law is settled that over proceedings and
decisions taken in administrative matters, the scope
9 W.P. No. 4449/2014
of judicial review is confined to the decision-
making process and does not extend to the merits of
the decision taken. No infirmity is pointed out in
the proceedings of the Selection Board which may
have the effect of vitiating the selection process.
The capability of the appellant herein to otherwise
perform as an LPG distributor is not in dispute.
The High Court was not, therefore, justified in
interfering with the decision of the Selection Board
and the decision of BPCL to issue the letter of
allotment to the appellant herein."
In the instant case, clause 7 of the Guidelines provides for
eligibility criteria for individual applicants. Sub-clause iv of
Clause 7.1 deals with ownership of adequate land and the word
"Own" is further defined which provides that ownership title of the
property or registered lease agreement for minimum 15 years in the
name of applicant/family member as defined in multiple
distributorship norm of eligibility criteria.
Facts of the case in hand show that the petitioner himself
has not submitted the documents as regards availability of land of his ownership. However, he has submitted a lease deed dated 31/12/2011 said to have been executed by one Bharat Singh on behalf of his minor son, Kripal Singh in favour of petitioner showing availability of land in favour of petitioner. On verification of facts, the respondent/Corporation has come to know that the alleged document in fact is a product of misrepresentation and otherwise is null and void in view of the fact that Kripal Singh's date of birth as per Class X marks sheet is 28/05/1992.
10 W.P. No. 4449/2014Hence, Kripal Singh is major as on the date of execution of the lease deed, i.e., on 31/12/2011 and, therefore, he could not have been shown to be minor on the date of execution of the lease deed. As such, Kripal Singh's father, Bharat Singh is not competent to execute the lease deed in favour of the petitioner. This lease deed by no stretch of imagination could be said to be validly executed lease deed in conformity with the requirement of sub-clause vi of clause 7.1 of the Guidelines for individual applicants. As such, lease deed also does not fall within the meaning of word "Own" as explained in the aforesaid clause. On the contrary, alleged execution of lease deed in fact and in effect is misleading in nature and rights cannot be said to have been transferred in favour of the applicant/petitioner over the land in question. Respondent/IOCL is justified having treated the aforesaid instrument as misreprsentation tantamounting to false information as provided in clause 20 of the eligibility conditions and, therefore, the IOCL is well within its rights to reject the application under the said clause. The contention of respondent/IOCL, that the documents supplied alongwith the application must be of the date on or before the date of application in respect of details of land/godown as provided under clause 9 of General Instructions to the candidates applying for LPG Distributorship (Annexure R/2) at page 15. The requirement to the aforesaid effect is also clear in the general conditions of the advertisement issued inviting applications by IOCL. Hence, any document subsequently executed even otherwise shall have no bearing on the candidature of a candidate.
11 W.P. No. 4449/2014In the case in hand, the alleged consent letter submitted by Kripal Singh on 15/04/2014 much after the date of submission of application by the petitioner, at the first instance did not deserve any consideration. Besides, the fact that even this declaration itself is of no consequence in the context of requirement of sub-clause
(vii) of clause 7.1 of the Guidelines as regards availability of land/ godown of the ownership or that of lease deed in his or her favour. Further, consent letter was contained false statement wherein it says that as on the date of alleged document/consent letter dated 15/04/2014, Kripal Singh attained majority whereas he attained majority much prior to the date of execution of the lease deed on 31/12/2011 by Bharat Singh styling his son, Kripal Singh is minor. Therefore, this document has rightly been rejected under clause 22 of the Guidelines.
Having thus, considered the submissions of learned senior counsel for the parties, this Court is of the view that the respondent/IOCL has not committed any illegality or acted contrary to the terms and conditions of the NIT or the General Guidelines issued while rejecting the candidature of the petitioner for award of distributorship of LPG.
The contention of learned senior counsel for the petitioner is that there is a clear distinction between the fraudulent misrepresentation as to character of a document and as to its contents where the misrepresentation is merely in respect of contents of the document, the transaction becomes voidable, where it is related to character of the transaction, that transaction is 12 W.P. No. 4449/2014 rendered void, may be a relevant proposition in the matter of inter se rights between the parties in an action of a party for declaration that in a given set of facts the alleged document is not binding upon him and construction of the document whether void or voidable may be addressed in such proceedings. However, the said proposition does not have any relevancy to the facts in hand inasmuch as the candidature of the petitioner is rejected on the ground that the alleged lease deed not duly executed by a competent person as on the date of its execution could not be accepted as a validly executed lease deed in terms of sub-clause
(iv) of clause 7.1 of the Guidelines and where such information supplied falls within the net of clause 22 of the Guidelines referred to hereinabove it provides justification for rejection of candidature of the petitioner. There is misrepresentation in the lease deed that Kripal Singh is a minor. Kripal Singh himself has not executed the lease deed. These two-fold facts tantamount to fraudulent misrepresentation of facts as regards character and contents of the instrument. Therefore, the respondent/IOCL has rightly found that the alleged lease deed as null and void. Guiding principles laid down by Supreme Court reported in AIR 1968 SC 956, Ningawwa Vs. Byrappa Shiddappa Hirekurabar supports the view taken by this Court.
The judgments cited by learned senior counsel are distinguishable on facts and in particular, Partap and another (supra), the question was as regards payment of fixed Court fee or ad velorem Court fee, looking to the nature of allegations made in 13 W.P. No. 4449/2014 the suit and, hence have no bearing to the controversy involved in this petition. There appears to be misplaced reliance thereon.
In view of the above, this Court is of the view that there is no illegality in the action of respondent/IOCL in rejecting the candidature of the petitioner for award of distributorship of LPG.
The petition sans merit and is hereby dismissed. No order as to cost.
(Rohit Arya) Judge jps/- + b/-