Calcutta High Court (Appellete Side)
Hezbul Fida Qadir vs Union Of India And Others on 24 May, 2019
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTION WRIT JURISDICTION)
APPELLATE SIDE
W.P. 21104 (W) OF 2018
Hezbul Fida Qadir
VS.
Union of India and Others.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
For the petitioners : Mr. Shamim Ahmed, Advocate,
For the respondent no.1 : Mr. Sankar Sarkar, Advocate,
For the respondent nos. 2 to 4 : Mr. M. S. Yadav, Advocate,
Heard on : 05.02.2019 and 07.03.2019
Judgement on : 24.05.2019
Ashis Kumar Chakraborty, J.
The petitioner has filed this writ petition praying for a writ of mandamus for setting aside the letter dated September 10, 2018 issued by the respondent no. 3, the Deputy General Manager of Indian Oil Corporation, thereby rejecting his candidature as the distributor of Liquidified Petroleum Gas (LPG) at Palsunda, District - Nadia, in the State of West Bengal (hereinafter referred to as "the said area").
The facts leading up to the filing of this writ petition may be shortly stated. On August 31, 2017 the respondent no. 2, Indian Oil Corporation issued an advertisement inviting applications for appointment of LPG distributors at various places in the State of West Bengal including the said area. The last date for submission of an application by any interested person was October 03, 2017 but by a subsequent corrigendum the last date was extended till October 18,2017. As per the Brochure on Unified Guidelines for Selection of LPG Distributor (hereinafter referred to as "the said brochure"), in order to be eligible to apply for appointment as the distributor of LPG, the applicant must either be the owner or the lessee of the land on which the godown/showroom is to be constructed. In case, the applicant is the lessee of the land there must be a registered lease deed in favour of the applicant having minimum 15 years of valid lease period commencing on and from the date of the advertisement up to the last date of submission of the application. Even an applicant having as registered lease deed on any date prior to the advertisement would be eligible to apply for being selected as the LPG distributor provided, the lease in respect of the land is valid for a minimum period of 15 years from the date of the advertisement. On October 14, 2017 the petitioner submitted the application to the respondent no.2 oil company for appointment of LPG distributor of the said area. According to the petitioner, the lease in respect of the land offered by him for construction of the godown/showroom of LPG commenced from September 25, 2017 on which date the lease deed was presented before the registering authority for registration. By a letter dated June 13, 2018 the respondent no. 3 informed the petitioner that he has been declared as the successful candidate as the LPG distributor of the said area and requested the petitioner to deposit Rs. 40,000/- as also to submit various documents. The petitioner was further informed that the field verification of the land will be carried out by the designated officers of the respondent no. 2 when the information submitted by the petitioner in his application form shall be verified with the original documents. As such, the petitioner was requested to produce all the original documents including the land documents relating the godown/showroom. Thereafter, on June 18, 2018 the petitioner deposited a demand draft of Rs. 40,000/- and also submitted the documents mentioned in the said letter dated June 13, 2018 to the respondent no. 3. On July 15, 2018 the respondent no. 3 carried the field verification of the plots of land offered by the petitioner to construct the godown/showroom. A copy of the field verification report dated July 15, 2018 was also made over to the petitioner. However, by a letter dated September 10, 2018 the respondent no. 3 informed the petitioner that at the time of field verification report it was found that the date of registration of the deed for the godown land is recorded as November 3, 2017 which is after the last date for submission of the application and, as such, the petitioner's candidature is rejected and the amount of Rs. 40,000/- deposited with the respondent no. 2 stands forfeited in terms of the conditions of the advertisement.
By a letter dated September 10, 2018 the petitioner through his advocate informed the respondent no. 3 that in fact the lease deed in respect of the land in question was entered into by Abdul Kasem, as the lessor and the petitioner, as the lessee on September 25, 2018 and on the same date the said lease deed was presented before the office of A.D.S.R., Nadia for registration, but due to their own defaults the registering authority registered the said deed lease only on November 6, 2017. It was alleged that the said lease deed expressly mentioned that the lease in respect of the said land in question commenced on September 25, 2017, that is, before the last date of submission of the application of the petitioner and the same is valid for 16 years. The petitioner claimed that the rejection of his candidature by the respondent no. 3 was without any lawful reason. Since the said letter dated September 20, 2018 did not evoke any response from the respondent no.3, the petitioner has filed this writ petition challenging the said letter dated September 10, 2018 issued by the respondent no. 3.
The writ petition has been contested by the respondent nos. 2 and 3. In their affidavit-in-opposition the said respondents have denied all material allegations made against them in the writ petition. The said respondents have alleged that as per clause 8 of the selection brochure the intending candidate was required to offer a plot of land 'owned' by him of the dimension mentioned therein for the purpose of construction of LPG godown/showroom. It is further alleged that the term 'own' has been defined in clause 1(w) of the said brochure to mean that either the applicant holds the ownership/ title in respect of the land on which he proposes to construct the godown/showroom or he has the leasehold interest in the land in question, under a registered lease deed, for a period of minimum 15 years commencing on any day from the date of advertisement up to the last date of submission of the application. As per the definition of the said term 'own' under clause 1(w) of the said brochure, even an applicant having registered lease deed commencing on any day prior to the date of the advertisement will also be eligible, provided that the lease in respect of the land is valid for a minimum period of 15 years from the date of the advertisement. The respondents further alleged that in his application the petitioner claimed that he "owns" a land in village Panchkhela, P.O. Palashi, P.S. Kaliagunj, Dist.- Nadia, under Khasra No. L.R. 612, Plot No. LR 203, Mouza- Panchkhela, J.L. No. 7 and the date of registration of the said document was stated to be on September 25, 2017. In his said application, the petitioner also stated that on verification, if it is found by the oil company that the information provided by him is incorrect/false/misrepresented then his candidature would stand cancelled and he will be declared ineligible for LPG distributorship. He further confirmed that if selected he will present all supporting documents in original in respect of the information given by him in the application. According to the respondents, based on the information supplied by the petitioner in his application he was held to be an eligible candidate for being engaged the LPG distributor for the said area and in the draw of lots conducted on June 12, 2018 the petitioner turned out to the successful candidate. Thus, by the said letter dated June 13, 2018 the respondent no. 3 requested the petitioner to deposit Rs. 40,000/- and to submit the documents mentioned therein in order to carry out the field verification of the petitioner by the designated committee. However, at the time of physical verification of the land offered to construct the godown/showroom when the petitioner produced the original documents to substantiate his leasehold interest in respect of the said plot of land, it appeared that the indenture of lease was registered on November 3, 2017, that is, much after the last date for submission of the application fixed under the original advertisement, even after the date extended by corrigendum. The respondents have claimed that in view of such discrepancy in terms of clause 1(w) of the said brochure, the petitioner became ineligible to participate in the matter of selection of LPG distributorship for the said area and, as such, cancellation of the candidature of the present case is just and lawful.
Mr. Shamim Ahmed, learned advocate appearing for the petitioner submitted that as per Section 47 of the Indian Registration Act, 1908 (hereinafter referred to as "the Act of 1908") once a document is registered it operates from the time as if the registration was not required and not from the date of the registration. The effect of Section 47 of the Act of 1908 is clear in its language and such effect cannot be diluted on any ground. According to Mr. Ahmed, in this case the deed of lease in respect of the land in question was entered into between Abdul Kasem, as the lessor and the petitioner, as the lessee on September 25, 2017 and the said deed was presented before the ADSR, Nadia for registration on the same day. It was stressed that though the registering authority registered the said indenture of lease on November 6, 2017, as per Section 47 of the Act of 1908 the said leasehold interest of the petitioner in respect of the said plot of land commenced from September 25, 2017 itself. In support of such contention, the petitioner relied on the Division Bench decision of the Gujrat High Court in the case of Indian Oil Corporation and Another -Vs - Ranjitsinh Jitusinh Zala reported in 2015 SCC OnLine Guj 6148. Mr. Ahmed further submitted that a Special Leave Petition filed by the Indian Oil Corporation against the said Division Bench judgement of the Gujrat High Court in the case of Indian Oil Corporation (supra) was not entertained by the Supreme Court. In this regard, he referred to an order dated April 1, 2016 passed by the Hon'ble Supreme Court in a Special Leave to Appeal (C) No. 5299 of 2016. Urging all these grounds Mr. Shamim strongly contended that the decision of the respondent no.s 1 and 3 to terminate the distributorship is patently illegal and pressed for quashing of the said letter dated September 10, 2018 issued by the respondent no.3.
On the other hand Mr. M. S. Yadav, learned counsel appearing for the respondent nos. 2 and 3, that is, the Oil Company and its Deputy General Manager contended that as per clause 1(w) of the said brochure any per person having registered lease deed for a period of minimum 15 years commencing on any day from the date of the advertisement upto the last date of submission of the application as specified either in the advertisement or corrigendum (if any) is entitled to submit an application for appointment of a dealer/distributor of LPG. It was stressed that the term 'registered lease deed' appearing in clause 1(w)(b) of the said brochure enjoins that as on the date of filing of the application the applicant must hold a registered lease deed in respect of the plot of land offered for setting up of the LPG showroom/godown. In other words, registration of the lease deed in respect of the concerned plot of land is the condition precedent to be fulfilled by the applicant for being eligible to apply for LPG dealership/distributorship. Learned counsel for the contesting respondents submitted that in the present case the last date of submission of the application for appointment of LPG distributor was October 03, 2017 and by a corrigendum issued by the concerned respondent the said date was extended till October 18, 2017. The writ petitioner, submitted the application before the respondent no.2 on October 14,2017 stating that by virtue of the lease deed dated September 25, 2017, which was registered on the same day, he became the lessee in respect of the plot of land on which he intends to set up the showroom/godown for a period of 16 years. However, during the field verification carried out by the concerned officer of the respondent no. 2 it appeared that the said lease deed was registered on November 03, 2017, that is, even after October 18,2017, the extended date of submission of application as specified in the corrigendum issued by the concerned respondent. Therefore, according to Mr. Singh, as on the date of filing of the application by the petitioner, that is, on October 14,2017 he had no interest in the plot of land in question and the argument advanced by the petitioner, based on the provisions contained in Section 47 of the Registration Act has no merit. In support of such contention, learned counsel for the respondent no.s 2 and its officers relied on a Single Bench decision of this Court in the case of Arun Bhusan Guha & Ors. -Vs- Amal Roy & Another, reported in AIR 2009 Cal
182. He also cited an unreported decision dated September 28, 2015 of the Division Bench of this Court in the case of Oil Corporation Ltd. & Ors. -Vs-Samir Barman & Anothter. In the case of Arun Bhusan Guha (supra), Jyotirmoy Bhattacharya, J. (as His Lordship then was) held that so long as the sale deed is not registered or in other words, the registration of the sale deed is not compete it is not a valid document and no one can claim title on the basis of such invalid document before completion of its registration. His Lordship further held that it is, however, true that once the invalid document gains validity on completion of registration upon fulfilment of the necessary requirements as per Section 47 of the Registration Act, the title of the purchaser will relate back to the execution document by operation of law, but during the period between the date of execution document and the completion of registration thereof, the purchaser cannot project himself as the owner of the said property. In the unreported decision dated September 28, 2015 in the case of Indian Oil Corporation Ltd. & Ors. -vs- Samir Barman & Another, the Division Bench of this Court construing the term 'own' as referred to in clauses (vii) and (viii) of the relevant guideline issued by the respondent no. 2 herein for inviting application for appointment of LPG dealership providing, inter alia, that the said term would also include a registered lease agreement for minimum 15 years in the name of the applicant/family member, the Division Bench held that the applicant must be either the owner or he must have a registered lease deed. In the said case, when the writ petitioner filed his application for appointment of LPG dealer on the basis of a lease deed, which was registered after the last date for submission of the application, the respondent no. 2 Oil Company herein had cancelled the selection of the writ petitioner and the Division Bench of this Court upheld such cancellation. The Division Bench held that strict compliance of the condition laid down in the guidelines of Indian Oil Corporation requiring existence of a registered lease deed as on the last date of filing application to be essential. It was urged by Mr. Yadav that in view of the said Division Bench and Single Bench decisions of this Court there is no merit in the contention raised by the writ petitioner and this writ petition is liable to be rejected.
The short point that falls for consideration by this Court in the writ petition is whether the application submitted by the petitioner on the basis of the lease deed dated September 25, 2017, which was admittedly registered even after the extended date of submission could be rejected by the respondent Oil Company. There cannot be any doubt that grant of distributorship for LPG by the respondent no. 2 Oil Company, a public sector undertaking is in discharge of its social obligation. Thus, the said respondent is required to comply with the terms and conditions stipulated in the said guidelines in its letter and spirit. As per Section 107 of the Transfer of Property Act a lease in respect of an immovable property from year to year or from any term exceeding one year can be made only by a registered instrument. The requirement of an applicant having a registered lease deed for a period of minimum 15 years of a valid lease in respect of the plot of land offered by himself to set up the showroom/godown of LPG is to ensure that the applicant has an existing interest in respect of the said land. As held by a learned Single Judge of this Court in the case of Arun Bhusan Guha (supra) until the completion of its registration the lease deed dated September 25, 2017 as submitted by the petitioner was an incomplete document and as on the date of filing the application, the petitioner had no interest in the said plot of land. Further, as held by the Division Bench of this Court in the said unreported decision dated September 28, 2015 in the case of Indian Oil Corporation Ltd. & Ors. -vs- Samir Barman (supra) if we take a view other than that what is stated above an unregistered document holder whose document is registered only after one month or one year or five years or 10 years can also claim such equity. The said Division Bench decision as well as the Single Bench decision relied by the respondent no.s 2 and 3 are binding upon me. Considering the principle of law enunciated by the Division Bench and the Single Judge of this Court in the said cases of Samir Barman (supra) and Arun Bhusan Guha (supra), I am unable to convince myself to accept the decision of the Division Bench of the Gujrat High Court to be correct.
For all the foregoing reasons, I do not find any illegality in the decision of the respondent no.2 to terminate the candidature of the petitioner for LPG distributor by the respondent no. 2 and there is no merit in the writ petition. Accordingly, the writ petition, W.P. NO. 21104(W) of 2018 stands rejected.
There shall, however, be no order as to costs.
Urgent certified copies of this judgement, if applied for, be made available to the parties subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)