Rajasthan High Court - Jodhpur
Sanjay Choudhary vs Indian Oil Corporation Limited on 29 October, 2018
Author: Dinesh Mehta
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1543/2018
Sanjay Choudhary S/o Shri Prabhu Ram, Aged About 30 Years,
By Caste Jat, Village And Post Lalas, Tehsil Nawan, District
Nagaur (Raj.).
----Appellant
Versus
Indian Oil Corporation Limited, Indane Area Office, SPL 1297,
Sitapura Industrial Area, Goner Road, Jaipur, Through Its Chief
Area Manager (JAO), Marketing Division.
----Respondent
For Appellant(s) : Mr. Deepak Nehra
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Judgment Per Dinesh Mehta, J.
29/10/2018 By way of the present appeal filed under Rule 134 of the Rajasthan High Court Rules, 1952, the appellant has laid challenge to judgment dated 3.5.2018 and the order dated 21.8.2018 passed by the learned Single Judge in his writ petition and review petition respectively.
The writ petition was filed under Article 226 of the Constitution of India, inter alia, challenging the communication dated 1.1.2014 issued by the respondent Indian Oil Corporation (hereinafter referred to as the 'corporation'), vide which the appellant's candidature for the LPG dealership at location Beri Khurd, District Nagaur had been rejected and the application fee of Rs.20,000/- was forfeited.
(2 of 10) [SAW-1543/2018] Briefly stated the facts relevant for the purpose of present appeal are that the appellant had submitted an application dated 21.3.2013 pursuant to the advertisement dated 18.2.2013 for setting up of the LPG dealership issued by the respondent corporation. The date on which the appellant had submitted his application form was incidentally the last date for submitting the form. Claiming himself to be the owner of the land, the appellant had enclosed a lease deed dated 19.3.2013 executed in favour of his wife Smt. Sushila Devi as a document of title of the land. Pursuant to the advertisement in question, draw of lot was conducted on 8.8.2013, in which the appellant succeeded.
Upon enquiry by the corporation they found that the appellant did not have ownership of the land for which a communication dated 10.6.2013 was sent by the respondent corporation and the appellant was called upon to submit sale deed of the land offered by him. In response to the said notice dated 10.6.2013, the appellant submitted a registered sale deed dated 27.6.2013, for the offered land executed in his wife's favour.
During the field verification, finding that the appellant's title documents, namely, the sale deed was registered on 27.6.2013, subsequent to the date of application, the corporation rejected appellant's candidature vide order dated 1.1.2014.
The appellant filed the writ petition under Article 226 of the Constitution of India before this Court, which was dismissed by learned Single Judge, vide judgment dated 3.5.2018, inter alia, holding that the appellant has claimed himself to be the owner of the land, whereas the document submitted alongwith the application was a lease deed, that too, in favour of appellant's wife. That being the fact situation, the learned Single Judge (3 of 10) [SAW-1543/2018] concluded that the appellant's offer cannot be considered to be a valid offer in terms of clause (w) of the guidelines and held that there was no infirmity in the order dated 1.1.2014, vide which the appellant's candidature had been rejected. It will not be out of context to reproduce the conclusion drawn by learned Single Judge:-
"In the case at hand, the land was admittedly not owned by the petitioner. He claims to have acquired the same through a lease. However, the lease deed was executed in favour of the petitioner's wife and manifestly, thus, the same could not be strictly considered to be a valid offer of land in terms of clause (w) of the guidelines. The registered sale deed on which the petitioner emphasized upon was executed in favour of his wife in the month of June 2013 that is well after the stipulated last date for receiving the complete application forms. In this background, manifestly, the petitioner was not having his own or leased land as on the last date provided in the advertisement. By the time, the sale deed was executed in favour of the petitioner's wife, last date for filing the application form had lapsed.
As a consequence, the respondents were perfectly justified in rejecting the petitioner's application form by the order/communication Annex.11 dated 01.01.2014, which ex facie does not suffer from any illegality, irregularity or perversity so as to warrant interference therein while exercising this court's extraordinary writ jurisdiction under Article 226 of the Constitution of India."
The appellant thereafter, filed a review petition with the contention that while deciding the writ petition, the Single Judge failed to appreciate the document of ownership of the plot in question. It was asserted that the ownership document in the form of registered lease deed in favour of the appellant's wife was required to be considered in accordance with the guidelines and policy of the oil corporation. It was argued that the appellant had submitted the sale deed, as a response to the communication (4 of 10) [SAW-1543/2018] dated 10.6.2013, vide which the respondent corporation had asked the appellant to submit sale deed of the land otherwise there was no quarrel about the ownership of the land .
The review petition was opposed by the respondent corporation on all counts while pointing out that the appellant had placed on record the guidelines of 2017, whereas the appellant's case was to be considered as per the guidelines of 2012; as the selection process took place in the year 2013. It was also highlighted that the petitioner's writ petition had been decided (dismissed) on the basis of provisions of guidelines of 2017, whereas the provisions of the relevant guidelines of 2012 were starkly different and there was no stipulation regarding lease hold land.
Having considered the argument of the rival parties and after perusal of the material available on record, learned Single Judge dismissed the review petition filed by the appellant, while observing that a candidate is required to own and possess the land on the last date of submission of application form. Learned Single Judge recorded a finding that the appellant did not have any registered sale deed in his favour till 23.3.2013 and the sale deed in question has been acquired after the last date of submission of the application form, while also making observation that the appellant has tried to mislead the Court by way of placing on record guidelines applicable to the selection process of 2017. Apart from the above, the learned Single Judge, after considering clause 6(h)(iii) of the guidelines of the year 2012, held that the purported ownership of the land on the basis of the lease deed in favour of the appellant's wife cannot be treated to be a land owned.
(5 of 10) [SAW-1543/2018] Mr. Nehra, learned counsel for the appellant challenging the order dated 3.5.2018 passed in appellant's writ petition, so also, the order dated 21.8.2018 passed in his review petition, submitted that the learned Single Judge has seriously erred in rejecting the appellant's writ petition and review petition. He submitted that the appellant owned the subject land even on the date of furnishing his application, as he had a lease deed in favour of his wife. According to the appellant, the wife is included in the 'family unit' and ownership of the land in his wife's name falls in the extended definition of land owned by 'family unit'. The case of the appellant has been that the lease deed in question is a document of ownership and in face of a duly stamped lease deed dated 19.3.2013, the land in question deserves to be declared as owned land of the appellant. He argued that the appellant had subsequently furnished the registered sale deed only as a compliance of notice dated 10.6.2013; that the corporation had already scrutinized the documents of the appellant and then only considered his candidature for the lottery; and that during the process of field verification, the corporation can only examine the genuineness of the documents and the situation of land because the issue of ownership already stands decided. With these arguments he contended that learned Single Judge has erred in concluding that the said sale deed dated 27.6.2013 having executed after the last date of application form, cannot be considered for the purpose of holding the appellant to be an owner of the contentious plot.
We have heard the learned counsel for the appellant and perused the material available on record. The appellant's contention that the land in question was undeniably owned by his (6 of 10) [SAW-1543/2018] wife Smt. Sushila Devi, as is evident from perusal of lease deed dated 19.3.2013 (Annex.2 filed with the writ petition), is unsustainable in the eye of law. Merely because the lease deed in question is for a period of 19 years and 11 months and duly registered, the same cannot be treated to have conveyed a title in favour of his wife. The fact that wife is covered under the "family unit", does not strengthen the appellant's case, as the lease deed itself is not a document of title.
With a view to decide the present appeal and adjudge the appellant's candidature, it will not out of place to refer to and reproduce relevant clause 6(h)(iii) of the guidelines of 2012, which reads thus:
"6h. (iii) Own means having clear ownership title of the property in the name of applicant/family member(s) of the 'Family Unit' as defined in multiple dealership/distributorship norm or land belonging to parents & grandparents (both maternal and paternal) of the applicant 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."
Clause (w) of the guidelines of 2017 is also reproduced, based upon which the appellant's writ petition was decided on 3.5.2018.
"w. 'Ownership' or 'Own' for godown/ showroom for Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak Type of Distributorship means having :
a. Ownership title of the property Or (7 of 10) [SAW-1543/2018] b. Registered lease deed having minimum 15 yrs of valid lease period commencing on any day from the date of advertisement up to the last date of submission of application as specified either in the advertisement or corrigendum (if any).
Additionally, applicants having registered lease deed commencing on any date prior to the date of advertisement will also be considered provided the lease is valid for a minimum period of 15 years from the date of advertisement. The applicant should have ownership as defined under the term 'Own' above in the name of applicant / member of "Family Unit" (as defined in multiple dealership / distributorship norm of eligibility criteria)/parents (includes Step Father/Step Mother), grandparents (both maternal and paternal), Brother/Sister (including Step Brother & Step Sister), Son/Daughter (including Step Son/Step Daughter), Son-inlaw/ Daughter-in-law of the applicant or the spouse (in case of married applicant) as on last date for submission of application as specified either 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 declaration from the family member(s) will be required.
In case the share of land in the jointly owned property by the applicant / member of 'Family Unit' as defined in multiple dealership / distributorship norm)/parents & grandparents (both maternal and paternal) of the applicant or the spouse with any other person(s) meets the requirement of land including the dimensions required, then that land for godown/showroom will qualify for eligibility as 'own' land subject to submission of 'No Objection Certificate' in the form of declaration from other owner(s)."
A perusal of the aforesaid clause (w) of the guidelines of 2012 leaves no room of ambiguity that an applicant is supposed to have a clear title of the land in the name of applicant himself or family members of the family unit.
(8 of 10) [SAW-1543/2018] The guidelines which were in vogue in the year 2012 did not have any provision regarding lease hold rights. In our considered view, the lease hold rights cannot be equated with ownership nor can a lease deed, may it be registered one, treated to be a document of title.
The argument of the appellant that he was owner of the land even on the date of filing of the application, having a registered lease deed in favour of his wife, is unsustainable and untenable in the eye of law. There is a clear distinction between the ownership and lease hold rights. According to the provisions of Transfer of Property Act, 1882 rights in immovable property gets transfer by way of sale or gift. As far as the ownership by sale is concerned, the same takes place pursuant to a duly registered sale deed. A person having a lease deed in his favour for whatever term cannot claim to have ownership right over the property.
According to the provisions contained in Section 105 of the Transfer of Property Act lease of immovable property is a transfer of a right to enjoy the property for a period mentioned in the lease deed and the same does not amount to transfer of the ownership rights. In a sale, the buyer gets ownership of the property and the seller no longer retains ownership therein and looses all rights in relation to such property after the sale. Pursuant to a valid sale the buyer is free to transfer, alienate or sale the property in whatever manner he likes. Whereas in case of a lease, the ownership rights or the right to transfer does not vest in the lessee.
In view of the aforesaid, the appellant cannot be said to be the owner of the land in question. Apart from above, the registered sale deed which had been submitted by the appellant in (9 of 10) [SAW-1543/2018] response to notice dated 10.6.2013 was executed and registered on 27.6.2013 and the same cannot be considered as it was got executed after the last date of submission of the application form, i.e., 23.3.2013.
Argument of Mr. Nehra that once the appellant's application has been considered in the process of lottery, his candidature cannot be rejected on the ground that the appellant does not have ownership of the land, is equally fallacious. The stand of the appellant that during the course of field verification only the genuineness or authenticity of the document is required to be checked, also falls flat in view of the clear stipulation in clause (10) of the guidelines. A bare reading of the clause (10) of the guidelines reproduced hereunder reveals that the corporation is required to carried out verification of the information given in the application by the applicant.
"10. FIELD VERIFICATION OF CREDENTIALS (FVC) 10.1 Verification of the information given in the application by the applicant with the original documents and with the issuing authorities wherever required is called Field Verification of Credentials (FVC).
10.2 Field Verification will be carried out for the selected candidates as per laid down procedure. If in the FVC, the information given in the application by the applicant is found to be correct, Letter of Intent (LOI) will be issued with the approval of competent authority.
10.3 If in the FVC, it is found that information given in the application is at variance with the original documents and that information affects the eligibility of the candidate, then a letter would be sent by Registered post AD/Speed Post pointing out the discrepancy. Candidature of selected candidate in such a (10 of 10) [SAW-1543/2018] case will be cancelled and 10% of security deposit i.e. Rs.20000/- (Rupees Twenty thousand) deposited by the selected candidate before FVC ill be forfeited if false/incorrect/misrepresented information has been given in the application."
As a matter of fact the petitioner has led/misled the court to decide the writ petition in light of clause (w) of the guidelines of 2017, which were not at all applicable. As per the prevailing guidelines, particularly clause 6(h)(iii) thereof the lease deed in favour of petitioner's wife could not have been considered for the purpose of ownership of the land. The appellant had projected himself to be the owner of land, f which only a document of title, such as registered sale deed or gift deed could be considered. Having examined appellant's candidature in learned counsel for the ight of the guidelines of 2012, we hold that the appellant was not the owner of the land on the last date of submitting application which was a condition of clause 6(h)(iii) of the guidelines.
In view of the above, we do not find any error in the orders impugned in the present appeal nor do we find any illegality in rejection of the appellant's candidature for the subject dealership.
The appeal thus, fails.
(DINESH MEHTA),J (SANGEET LODHA),J
cpgoyal/chamber
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