Rajasthan High Court - Jodhpur
Abhishek Agrawal vs Bharat Petroleum Corporation Limited ... on 22 March, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:13275]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2932/2024
Abhishek Agrawal S/o Shri Suresh Agrawal, Aged About 26
Years, Resident Of Ward No. 14, Behind Bikaner Road, Accorse
Dainik Bhaskar Office, Sri Ganganagar.
----Petitioner
Versus
1. Bharat Petroleum Corporation Limited (Bpcl), Through Its
Chairman And Managing Director, Bharat Bhawan, 4 And
6 Currimbhoy Road, Ballard Estate, Mumbai-400 001.
2. The Senior Manager (Lpg), Sales, Fvc Member, Bharat
Petroleum Corporation Limited, Territory Office And
Bottling Plant, Spl 308, Riico, Igc, Khara, Bikaner- 334
006, Rajasthan
----Respondents
For Petitioner(s) : Mr Manoj Bhandari, Sr Advocate
assisted by Mr. Aniket Tater
For Respondent(s) : Mr Nishant Bora
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on 18/03/2024 Pronounced on 22/03/2024
1. Though the matter is listed in the fresh category, However on joint request of the counsel for the parties the matter is being heard today itself.
2. This writ petition has been filed under Article 226 of the Constitution of India with the following prayers:-
"i) By an appropriate writ, order or direction, the communication and order dated 6th February, 2024 (Annex-
9) and notice dated 28th December, 2023 (Annex-7) may kindly be declared illegal and be quashed and set aside.(Downloaded on 25/03/2024 at 08:40:26 PM)
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ii) By an appropriate writ, order or direction, the respondents be directed to accept the land submitted for the purposes of establishment of the Godown and Showroom for the purposes of LPG Distributorship to be granted by the respondent Corporation in favour of the petitioner with all consequential benefits and directions.
iii) By an appropriate writ, order or direction, the respondents be issued final Letter of Intent (LOI) in favour of the petitioner to start the LPG Distributorship on the location advertised by the respondent at Bikaner in pursuant to the Advertisement issued by the respondent corporation dated 23rd March, 2023 (Annex-1)."
3. Brief facts of the case are that an advertisement (Annexure-
1) was issued and published in Rajasthan Patrika by the respondents for allotment of LPG Distributorship at Bikaner under open Category on 23.03.2023 for which the petitioner applied online vide application (Annexure-2).
4. Thereafter vide communication dated 1.09.2023 (Annexure-
3) the petitioner was informed that he is declared as a successful candidate and selected for LPG distributorship after the draw of lots conducted on 31.08.2023. Thereafter a rent deed was executed on 30.05.2023 (Annexure-4) wherein the petitioner had taken on rent the godown owned by Tej Bhan S/o Shri Hukam Chand and Neelam Nagpal W/o Rakesh Nagpal through the power of attorney holder Tej Bhan S/o Shri Hukam Chand, vide power of attorney dated 10.1.2011 (Annexure-5) which was subsequently renewed on 24.05.2023.
5. Furthermore the petitioner rented a land of 4000 Sq ft at Jai Narain Vyas Colony, Bikaner from Shri Anil Kumar Gupta S/o Shri Lal Chand Gupta in whose favour the land was released by his (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (3 of 12) [CW-2932/2024] sisters Smt Kavita Goyal and Neelam Bansal through registered release deed dated 23.11.2021 (Annexure-6). The release deed was executed through power of Attorney holder Smt Usha Rani W/ o Shri Anil Kumar Gupta vide special power of attorney dated 10.11.2021 (Annexure-6)
6. After submission of documents, a communication dated 28.12.2023 (Annexure-7) was issued by respondent corporation wherein it was communicated to the petitioner to produce registered copy of the Power of Attorney dated 10.11.2021 which was executed by Smt Kavita Goyal and Neelam Bansal in favour of Usha Rani W/o Shri Anil Kumar Gupta and the registered copy of the power of attorney dated 10.1.2011 executed by Smt Neelam Nagpal in favour of Shri Tej Bhan within 7 days.
7. Thereafter the petitioner wrote a mail dated 5.1.2023 (Annexure- 8) to the respondents attaching letters, rules and regulations of office of Sub Registrars. Thereafter another communication and an order was passed on 6.02.2024 (Annexure-
9) stating therein that the showroom and godown are through registered lease deeds however, power of attorneys are not registered and thus the godown and the showrooms are not meeting the eligibility conditions as stipulated in the Manual and Brochure and therefore, the petitioner should provide alternate land details within a period of 15 days from the date of the communication failing which the candidature of the petitioner shall be cancelled.
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8. Thereafter the petitioner sent a communication (Annexure-
10) and submitted the details and the letter of registration department which stated therein that the provisions contained in section 18 of the Indian Registration Act 1908, it is clearly mentioned that if special power of attorney is issued then, there is no requirement of the same to be registered and also that if the power of attorney is issued by notary public then the same is legal and valid.
9. Furthermore, as per Clause 31 of the Manual and brochure dated 1.04.2022 (Annexure-11) issued for LPG Distributorship defines 'ownership' that the applicant should have his own land for godown/showroom and if the applicant does not have his own land then he should have the land through registered lease deed valid for 15 years commencing in any of the days from the date of advertisement upto the last date of submission for the application.
10. Aggrieved by the communication dated 28.12.2023 (Annexure-7) and 06.02.2024 (Annexure-9) issued by respondent corporation to the petitioner to produce registered copy of the Power of Attorney, the petitioner has preferred this writ petition with the following grounds:-
11. Learned counsel for the petitioner submitted that as per Section 17 1 (b) of the Act of 1908 the registration of Power of Attorney it is not mandatory as it does not create any right/title or interest in the immovable property. He also submitted that as per Section 17 2 (v) of the Act of 1908, the documents which do not by itself creates, declares, assigns, limit or extinguishes any right, (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (5 of 12) [CW-2932/2024] title or interest the registration of those documents is not compulsory. He also submitted that as per Section 18 of the Act of 1908 which mentions about the documents for which registration is optional and further submitted that the Section 18 (f) mentions that registration is optional for all other documents which are not required by Section 17 to be registered and therefore the registration of power of attorney submitted by the petitioner is not compulsory. He further submitted that as per Section 1A of the Power of Attorneys Act 1882 the meaning of power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it and thus the registration of the same is not mandatory.
Section 17 1 (b), 2 (v), 18 of the Act of 1908 and 1A of the Power of Attorneys Act 1882 are reproduced here as under:-
"1 (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
2 (v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or "
18. Documents of which registration is optional.--Any of the following documents may be registered under this Act, namely:--
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(f) all other documents not required by section 17 to be registered.
1A. Definition.--In this Act, "Power-of-Attorney"
includes any instrument empowering a specified person to act for and in the name of the person executing it."
12. Learned Counsel for the petitioner further submitted that he has sent a communication to the respondents and also attached the letter of department of registration which stated therein that as per the provisions contained in section 18 of the Indian Registration Act 1908, it is clearly mentioned that in the case of power of attorney there is no requirement of it to be registered and also that if the power of attorney is attested by Notary Public then the same is legal and valid.
13. Learned counsel for the petitioner also submitted that it is no where mentioned in the advertisement that if the lease is executed on the basis of power of attorney the same has to be registered and moreover, non requirement of the non registration of power of attorney is also clarified by the registration department that if it is a special power of attorney it need not be registered and the power of attorney attested by the Notary Public would suffice. He further submitted that the lease deed executed is a registered document and there is no such requirement of registration in the special power of attorney and therefore the respondents have acted illegally in not accepting the land as mentioned by the petitioner and thereby cancelling the candidature of the petitioner for LPG Distributorship is illegal. (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (7 of 12) [CW-2932/2024]
14. Learned counsel for the petitioner also submitted that the petitioner has the complete chain of title to show that the registered lease issued in favour of the petitioner is legal and thus, there is no requirement of registration of the special power of attorney when it is attested by Notary public and furthermore, for the purpose of showroom, the registered lease deed has already been submitted by the petitioner and thus the Communications dated 28.12.2023 (Annexure-7)and 06.02.2024 (Annexure-9) are liable to be dismissed.
15. Learned counsel for the petitioner also submitted that the action of the respondents in calling the petitioner to submit alternative land details and rejecting the given land details and registered lease deeds submitted by him along with notarised power of attorney is untenable and arbitrary. He further submitted that as per the 'Manual for Selection of LPG Distributors' and Brochure issued for LPG Distributorship on 1.04.2022 the Clause 31 (a) and (b) defines the 'ownership' that the candidate should either have ownership title of the property or a registered lease deed having minimum 15 years validity commencing on any day from the date of advertisement upto the last date of submission of the application. He also submitted that as per the 'Manual for Selection of LPG Distributors' there is no restrictive clause in the lease agreement contrary to the ownership clause and therefore the petitioner fulfills the eligibility criteria for getting the LPG Distributorship as per the 'Manual for Selection of LPG Distributors' dated 01.04.2022.
(Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (8 of 12) [CW-2932/2024] In support of his submissions the learned counsel for the petitioner placed reliance on judgement passed by the Hon'ble Apex Court in the case of State of Rajasthan and Ors versus Basant Nahata decided on 07.09.2005 (Civil Appeal No. 7800/2001); Suraj Lamp and Industries Pvt. Ltd. Versus State of Haryana and Ors. Decided on 11.10.2011 (SLP (c) No. 13917/2009); Asset reconstruction company (India) Limited versus S.P Velayutham and Ors decided on 04.05.2022 (Civil Appeal No 2752-2753/2022); Karumuga Velaiah versus P.R Ramasamy and Ors decided on 27.01.2022 (Civil Appeal No. 2564/2012); Korukonda Chalapathi Rao and Ors versus Korukonda Annapurna Sampath Kumar decided on 1.10.2021 (Civil Appeal No. 6141/2021) and placed reliance on the judgement passed by the Hon'ble High Court of Allahabad in the case of Krishna Kant Mishra versus State of U.P decided on 30.05.2014 (Civil Misc. Writ petition (P.I.L) No. 26711/2014).
16. Per contra learned counsel for the respondent submitted that as per the advertisement issued on 23.03.2023 and the last date for submitting the application for the location Bikaner was on 24.04.2023. Thereafter the corrigendum for location Bikaner was issued on 23.04.2023 and the last date for submission for the application was 24.05.2023 however, the petitioner submitted lease deed for godown with certificate issued on 23.05.2023 and registration endorsement dated 30.05.2023 and furthermore the petitioner submitted lease deed for showroom with certificate issued on 23.05.2023 and registration endorsement dated 27.05.2023 ie after the last date mentioned for receipt of the (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (9 of 12) [CW-2932/2024] application and as per the 'Manual for Selection of LPG Distributors' the lease deed submitted for the godown and the showroom cannot be accepted as the endorsement date of the lease deed is after the last date of receipt of the application furthermore, the power of attorney is however notarised but the same is not registered. He further submitted that as per the provisions of Section 17 1 (b) of the Registration Act 1908 the power of attorney is compulsorily required to be registered. In support of his submissions the learned counsel for the respondent placed reliance on judgement passed by the Hon'ble Apex Court in the case of Shakeel Ahmed versus Syed Akhlaq Hussain decided on 1.11.2023 (Civil Appeal No. 1598/2023) and also relied on the judgement passed by Hon'ble Madras High Court in the case of S.Geethan C.Winson versus Inspector General of Registration and Anr (W.P. No. 21145/2011).
17. Heard learned counsel for the parties; perused the material available on record and the judgments cited at Bar.
18. This Court observes that Section 17 of the Registration Act 1908 deals with document/s of which registration is compulsory and Section 18 of the Act of 1908 speaks about the document/s for which registration is optional and particularly Sub Section (f) of Section 18 states that all the other documents not required by Section 17 to be registered may be registered at the option of the parties. Furthermore, power of attorney is not required to be compulsorily registered and as per Section 17 (1) (g) of the Act of 1908. Only an irrevocable power of attorney relating to transfer of (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (10 of 12) [CW-2932/2024] immovable property is required to be registered compulsorily. Moreover, the power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property and thus the above mentioned discussion goes in favour of the petitioner. Thus the reason assigned under order dated 28.12.2023 (Annex.7) requiring the petitioner to get the power of attorney(s) registered is illegal and arbitrary, the same is therefore, set aside. However, by perusal of the Clause 31 of the 'Manual for Selection of LPG Distributors' (Annexure-11) which defines the term 'Ownership' as the candidate should either have ownership title of the property or a registered lease deed having minimum 15 years validity commencing on any day from the date of advertisement i.e. 23.03.2023 upto the last date of submission of the application i.e. 24.05.2023. It is seen that the petitioner is not eligible to have the distributorship of the LPG, as the lease deed which was executed by One Tejbhan in favour of the petitioner for godown was registered on the date 30.05.2023, which is beyond the cut off date for the submission of the application i.e. 24.05.2023 and the other lease executed for the showroom was registered on the date 27.03.2023 which is also beyond the cut off date for submission of application ie. 24.05.2023 and thus the petitioner is not entitled for award of the distributorship of the LPG.
The 'ownership' has been described in the 'Manual for Selection of LPG Distributors' dated 01.04.2022, the definition of 'ownership' to the relevant extent, reads as under: (Downloaded on 25/03/2024 at 08:40:26 PM)
[2024:RJ-JD:13275] (11 of 12) [CW-2932/2024] "3. '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 b. Registered lease deed having minimum 15 yrs of valid lease period commending on any day from the date of advertisement up to last date of submission of application as specified either in the advertisement or corrigendum (if any)."
19. It is also seen from the Clause 4 of the application for appointment of LPG Distributorship (Annexure-2) filled by the petitioner for allotment of LPG distributorship wherein the Clause 31 of the 'Manual for Selection of LPG Distributors' is reiterated regarding the condition of having a registered lease deed from the date of advertisement upto the last date of submission of application form and the petitioner filled the said application for appointment of LPG Distributorship with open eyes and was well aware that he was not fulfilling the eligibility criteria as stipulated in the application. The petitioner despite knowing that he does not have the eligibility in light of Clause 31 of the Manual and Clause 4 of the Application participated in the process. The petitioner has also not given challenge to both the conditions mentioned in the Clause 31 of the 'Manual for Selection of LPG Distributors' and Clause 4 of the 'Application for Appointment of LPG Distributors' The Clause 4 of the application form is reproduced hereas under:-
"provide following details of the plot(s) of land for construction of LPG godown owned or having registered lease for minimum 15 years (4 years 11 months for locations falling under CNT act in Jharkhand) in the name of applicant/member of Family Unit commencing on any date from the date of advertisement up to the last date of (Downloaded on 25/03/2024 at 08:40:26 PM) [2024:RJ-JD:13275] (12 of 12) [CW-2932/2024] submission of application as specified either in the advertisement or in the Corrigendum (if any) and meeting the norms specified."
20. As discussed above the lease-deed produced by the petitioner qua godown has been registered on 30.05.2023 i.e. much after the last date for receipt of the application i.e. 24.05.2023 and the lease deed qua showroom, was registered on 27.05.2023, which is also after the last date for receipt of the application thus, the decision of the respondents that the land offered by the petitioner is not meeting the eligibility conditions/requirements as stipulated in the advertisement/brochure as per the 'Manual for Selection of LPG Distributors' does not require any interference.
21. In view of above discussion, the impugned order dated 06.02.2024 (Annex.9) passed by Senior Manager, (LPG) Sales, FVC Member rejecting the petitioner's candidature on the ground that the lease deeds qua showroom and godown were registered after the last date of submitting the application form, do not call for any interference by this Court.
22. The writ petition is, accordingly, dismissed.
(DR. NUPUR BHATI),J 359-/devesh/-
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