Allahabad High Court
Meena Jaiswal vs Indian Oil Corporation Ltd. on 15 September, 2023
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:178930-DB A.F.R. RESERVED IN CHAMBER Case :- WRIT - C No. - 12304 of 2021 Petitioner :- Meena Jaiswal Respondent :- Indian Oil Corporation Ltd. Counsel for Petitioner :- Vinayak Mithal Counsel for Respondent :- Pramod Kumar Rai Hon'ble Manoj Kumar Gupta,J.
Hon'ble Manish Kumar Nigam,J.
(Per Manoj Kumar Gupta, J.) FACTS :
1. An advertisement was issued on 25.11.2018, by the Indian Oil Corporation Limited, inviting applications for appointment of retail outlet dealers in various districts of Uttar Pradesh. The dispute in the instant case relates to the retail outlet dealership between Km. Stone 18 to 23 on State Highway (SH) 87, Varanasi, Bhadohi Road (Sl. No. 1023), reserved for OBC Category. The application was to be submitted online on the website www.petrolpumpdealerchayan.in. The last date for submission of the application form along with non-refundable fee was 24.12.2018.
2. The petitioner submitted online application for the said dealership on 24.12.2018 along with requisite fee under OBC Category.
3. The petitioner offered land of Gata no. 667, Village Gaurai, Pargana Kaswar, Tehsil Raja Talab, District Varanasi, admeasuring 1328.99 sq. meters, located between Km. Stone 18 to 23 on State Highway (SH) 87, Varanasi, Bhadohi Road, as required in terms of the advertisement. The said land was taken by the petitioner on lease from its owner for a period of 19 years 11 months by registered lease deed dated 24.12.2018.
4. As per norms, the minimum dimension of the offered land was to be 35 meters x 35 meters, equivalent to 1225 sq. mts
5. The petitioner in her online application disclosed the dimensions of the offered land as 35 meters x 35 meters. The case of the petitioner is that the dimensions of the land offered was more than the specified norms, i.e. 35.35 meters (116 feet) x 37.56 meters (123.25 feet), but by inadvertence, it came to be mentioned as 33.528 meters (110 feet) x 39.624 meters (130 feet) in the lease deed. As soon as the mistake was discovered, the petitioner got the same corrected through a rectification deed (titimma) dated 29.1.2019 (registered on 1.2.2019).
6. It is the specific case of the petitioner that as a result thereof, there was no change in identity of the demised land. Only the dimensions which were wrongly recorded in the original lease deed were corrected. The boundaries remained the same.
7. The petitioner was selected in the draw of lots and she was intimated by the respondent-Corporation by letter dated 26.9.2019 to deposit Rs. 40,000/- towards initial security deposit and submit all documents for scrutiny.
8. In pursuance of intimation letter, the petitioner submitted the original lease deed dated 24.12.2018 as well as rectification deed dated 29.1.2019/1.2.2019 along with other documents on 17.10.2019.
9. On 23.6.2020, the petitioner received an e-mail from the respondent-Corporation informing her that her candidature had been rejected. The ground for rejection, as mentioned in paragraph 3 of the communication is as follows: -
".................... lease executed for Gata no. 667 having dimensions of 130 ft x 110 ft which does not meet minimum advertised criterion of 35m x 35m."
10. The petitioner was informed that her candidature was found ineligible in Group 1 and now she would be considered for selection along with Group 3 applicants as per guidelines.
11. The specific case of the petitioner is that before cancelling her candidature, she was not afforded any opportunity of hearing. The respondents completely overlooked the rectification deed dated 29.1.2019 wherefrom it was evident that there was mistake in the dimensions of the demised land in the original lease deed and the same was corrected subsequently and much before the respondents required the petitioner to submit the documents for verification. Consequently, the petitioner made a representation on 26.6.2020 giving complete facts. When no heed was paid to the same, she filed Writ Petition No. 12745 of 2020. It was allowed by order dated 8.9.2020 and the order of the respondent-Corporation dated 26.3.2020 was quashed. The respondent-Corporation was directed to pass a fresh reasoned and speaking order after affording opportunity of hearing to the petitioner.
12. One of the findings recorded by this Court in the previous judgment is as follows: -
"13. The lease deed for a period of 19 years & 11 months was executed on 24.12.2018 mentioning the dimensions of the land as 116 feet (35.35 meters) x 123.3 feet (37.56 meters). The material on record shows that inadvertently, the dimensions offered were wrongly mentioned, which were rectified by executing a rectification lease deed on 01.02.2019 and the petitioner has submitted all the documents for verification along with other documents on 17.10.2019. The respondent - Corporation before passing the impugned order ought to have verified the same and should have applied its mind. Without assigning any reason, the Corporation was not justified in passing the impugned order."
13. In compliance of the above direction, the respondent-Corporation passed a fresh order on 30.3.2021 and refused to rely on the titimma dated 1.2.2019 on the sole ground that it was executed after filing of the application whereas, the petitioner should have had "land of the required dimensions" on the date of the application. Aggrieved thereby, the instant petition has been filed.
14. The respondent-Corporation has filed a counter affidavit and in which the stand taken in the impugned order has been reiterated. It is mentioned in paragraph 25 of the counter affidavit that the land offered along with the application form was not having the specified dimensions, i.e. 35 meters x 35 meters. The titimma obtained by the petitioner would be of no help to her as the eligibility was to be assessed with reference to the date on which application was filed. Reliance has been placed on Clause 4 (v)(l) of the brochure.
SUBMISSIONS :
15. Sri Vinayak Mithal, learned counsel for the petitioner submitted that the impugned decision of the respondent-Corporation is manifestly illegal as the rectification deed (titimma) dated 1.02.2019 would relate back to the date of execution of the original lease deed i.e. 24.12.2018. The rectification deed was executed only to correct an inadvertent error. The property demised thereunder has not undergone any change as the total area, sale consideration, the boundaries of all four sides remained the same. It is urged that the scrutiny and verification of documents is carried out at the stage of Field Verification of Credentials (FVC) and since in the instant case, by that time, correction had already been carried out in the original lease deed, therefore, there was no occasion to reject the candidature. He further submits that the guidelines itself provide for making amendments in the original lease deed in certain cases and which goes to show that the respondents themselves permit rectification of the defects in the lease deed.
16. On the other hand, learned counsel for the respondent-Corporation submitted that the eligibility of a candidate is to be ascertained as on the date of filing of the application. The application form was submitted by the petitioner online on 24.12.2018. The lease deed, which is also of the same date, mentions the dimensions of the demised land to be 33.528 meters x 39.624 meters and thus it was not according to the prescribed norm - 35 meters x 35 meters. The subsequent rectification would not enure to the benefit of the petitioner. The candidature of the petitioner was, therefore, rightly rejected.
ANALYSIS :
17. The moot question is whether the petitioner is entitled to benefit of the rectification deed or not and whether it would relate back to the date of the original lease deed.
SELECTION PROCEDURE -
18. The selection is governed by the 'Guidelines on Selection of Dealers for Regular and Retail Outlets through Draw of Lots/Bidding Process' (for short 'Guidelines').
19. Clause 4 (v) specifies the type of land that can be offered, and based on it, the applicants have been classified in three different groups, which are as follows:-
Group 1: Applicants having suitable piece of land in the advertised location/area either by way of ownership / long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
Group 2: Applicants having Firm Offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
Group 3: Applicants who have not offered land in the application.
20. The other conditions, inter alia, with respect to offer of land are as follows:-
a) The land should be available with the applicant as on the date of application and should have minimum lease of 19 years and 11 months (as advertised by respective oil company) from the date or after the date of advertisement but not later than the date of application.
b) If the offered land is on Long term lease, then the Lease agreement should have a provision to sub-lease the land wherever the locations are advertised under Corpus Fund Scheme (CFS), Other Corporation Owned Sites ("A"/ "CC" sites).
In case it is observed that the lease agreement for the land offered by the selected applicant does not have a provision to sub-lease the land, in such cases the selected applicant would be provided 21 days' time from the date of intimation through SMS/e-mall to make suitable amendment / addendum to the lease agreement and submit the same to the concerned OMC.
............................
The applicant(s) under Group-1 should have documents to establish ownership of land offered for the Dealership as on date of application, such as: -
.......................
Registered Lease deed for a minimum period of 19 years and 11 months (as advertised by respective oil company).
....................
l) It should be the responsibility of the applicant to ensure that as on date of application: -
i. Offered land is of required dimension and abutting the Road boundary, after leaving Right of Way (ROW) line of the road.
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m) Verification of the supporting documents submitted by the selected candidate, post selection, will be carried out at the time of Scrutiny / Field Verification of Credentials (FVC).
21. Few more clauses of the guidelines relevant for deciding the controversy are as follows:-
14 - SELECTION PROCEDURE E. Application:
Applications are to be submitted only through on-line mode on prescribed web portal www.petrolpumpdealerchayan.in.
All applicants desirous to apply shall submit their applications by visiting web portal www.petrolpumpdealerchavan.in after registering on the same and submitting their application form online, along with requisite application fee (to be submitted through Internet banking, credit card or debit card through the payment Gateway provided by SBI e-Pay).
The applicant will have to register in the web portal www.petrolpumpdealerchayan.in for creating a login id and password. The login id and password once created for an applicant will be used for filling of on-line application in the web portal. Acknowledgement of successful registration on the web portal www.petrolpumpdealerchayan.in will be sent by the portal through SMS/e-mail.
...................
viii. Scrutiny of the documents would be carried out only after receipt of 10% of the Security Deposit (Initial Security Deposit).
ix. In case of rectifiable deficiency in the documents submitted, intimation to the selected candidate to submit the required corrected documents within 21 days.
x. In case the rectified documents (for cases other than related to offered land) are not submitted within stipulated time or the submitted rectified documents are not as per requirement, intimation regarding rejection of his candidature will be sent to the selected candidate. However, if documents related to offered land are not submitted or the offered land cannot be accepted even after receiving rectified documents relating to land, the applicant will be given intimation regarding consideration of his/her candidature alongwith Group 3 applicants.
xii. In case land is not found suitable by LEC, intimation to the candidate regarding rejection of the offered land and subsequent consideration of candidature along with Group 3 applicants.
Land offered by the Petitioner -
22. The petitioner offered the land which she had taken on lease for a period of 19 years 11 months and, therefore, her candidature was considered alongwith Group 1 applicants. She was declared successful and by letter of intimation dated 26.09.2019, she was required to remit online a sum of Rs. 40,000/- towards initial security deposit and submit the documents listed therein which inter alia, included copy of land documents in support of lease rights. Accordingly, the petitioner supplied the original lease deed alongwith rectification deed.
23. As per Clause 4 (v) (m), the verification of documents post selection was to be carried out at the time of scrutiny/field verification of credentials. Before that it was also not possible, as under the Guidelines, application forms were to be filed by online mode and along with which, documents were not required to be attached. Indisputably, much before the said stage arrived, the petitioner had got the error corrected. The petitioner was having the rectification deed and which she duly submitted alongwith other documents in compliance of the letter of the respondent-Corporation dated 26.09.2019.
Rectification Deed -
24. The dimensions of the plot mentioned in lease deed dated 24.12.2018 was 110 feet (33.528 mts) x 130 feet (39.624 mts) equal to 1328.5 sq. mts. It was bounded as follows: -
East : Chak Road, West : Chak Nali North : Remaining land of the lessor South : Varanasi - Bhadohi Road
25. As a result of rectification, only depth of the plot (North - South) has been corrected from 130 feet to 123 feet 3 inch (37.56 mts) and the frontage (East - West) from 110 feet to 116 feet (35.35 mts). Pertinent to note is that the eastern boundary earlier was chak road and the western boundary was chak nali and even after the frontage was corrected from 110 feet to 117 feet, the eastern and western boundaries remained same. The minor correction did not affect the situation of the land. The area remained virtually unaltered. Consequently, there was no change in the premium or lease rent. This lends support to the plea that on actual measurement, the mistake in the dimensions as originally recorded in the lease deed was noticed and the same was corrected at the earliest with the execution of the rectification deed.
Position in Law -
26. The parties to an instrument or a contract can always correct the mistake in the documents by executing a rectification deed. It can also be done through the instrumentality of the court in terms of Section 26 of the Specific Relief Act, 1963. Relevant part of Section 26 of the Specific Relief Act, 1963 is extracted below for convenience of reference: -
26. When instrument may be rectified. - (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956), applies does not express their real intention, then -
(a) either party or his representative in interest may institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.
In such a suit, the court is empowered to direct rectification of the instrument so as to express real intention of the parties, provided it can be done without prejudice to the rights acquired by third persons in good faith and for value.
27. In the instant case, as noted above, there was only minor correction in the dimensions, without any change in the land actually offered for the dealership. In law, there is no illegality attached to the rectification deed as it is duly recognised mode of carrying out correction in documents to reflect true intent of the parties. It is not even the case of the respondent-Corporation that the rectification deed is in any manner invalid.
Any absolute bar to accept documents after date of application -
28. Under the Guidelines, as noted, the applicants have been classified in three groups. Those applicants who already have suitable piece of land to offer, whether self owned or on lease, were placed in Group I. Those who didn't had ownership or leasehold rights in the land, but were having firm offer, were placed in Group II. The remaining were to fall in Group III.
29. The object of Clauses 4(v) (a), (d), (l) of the Guidelines was to ensure that only those qualify under Group I who were having self owned/leasehold land on the date of application. If any applicant obtains ownership/leasehold right for the first time on basis of any document obtained after filing of the application form, he/she would fall in Group II. Such an applicant would not be eligible under Group I.
30. As the purpose of executing a rectification deed is to express real intention of the parties, it generally relates back to the date of execution of the original contract/instrument, provided it does not affect right of any third party. The Guidelines, more particularly those referred to above, does not put any complete bar in accepting a document, executed after date of filing of the application, even for Group I applicants. In some situations, Guidelines itself contemplates acceptance of documents executed after filing of the application by Group I applicants. One such instance is contemplated under Clause 4(v)(b) where the lease agreement does not have a provision to sub-lease the land. In such cases, 21 days time is provided to the selected applicant to get the lease deed amended, incorporating a provision therein to sub-lease the land, albeit such a right being a legally recognized right under Section 108 of the Transfer of Property Act, 1882 [Clauses 4 (v) (b) and 14 E (ix)]. There could be several such curable or rectifiable deficiencies, which upon correction, would not change the basic nature of the document or its subject matter. For instance, there could be mistake in spelling or figures or wrong description of line of succession of the transferor, etc. It could take the shape of some minor mistake in description of property which upon correction, does not result in change in the property conveyed or transferred. These changes would not have the effect of modifying, changing or altering the original offer of land. Such changes would be covered under Clause 14-E(ix) and (x) of the Guidelines which itself contemplates grant of opportunity to the applicant to correct 'rectifiable deficiency' at the stage of scrutiny of documents.
31. Thus, in limited cases, where the defect is of a curable nature, without materially changing the offer of land originally made, rectification is permissible. The Guidelines does not conceive any absolute bar in acceptance of documents after filing the application, rather itself comprehends various situations where rectification deed was acceptable.
CONCLUSION -
32. In the original application form, there was no mistake in mentioning the dimensions, as the petitioner had clearly stated that the land offered by her was having depth and frontage as per required norms, i.e. 35 meters each. At the next stage i.e., at the stage of filing of documents and affidavit, the petitioner gave specific details of the frontage and depth as per rectification deed which were according to the prescribed norms. The respondent-Corporation was supplied the original lease deed and rectification deed at same point of time, in pursuance of the letter dated 26.9.2019.
33. The correction made in the original lease deed did not result in any material change in the offer originally made. The rectification carried out was fully permissible under the enabling provisions of the Guidelines. The respondent-Corporation committed an apparent illegality in harbouring under a wrong impression that in no case, rectification deed obtained after filing of the application was acceptable under the Guidelines in case of Group I applicants. In our considered opinion, the minor changes made by the rectification deed did not materially affect the offer of land made at the initial stage and would therefore fall under Clause 14E(ix) and (x) of the Guidelines. Consequently, the impugned decision as contained in order dated 30.3.2021 is held to be illegal and is quashed.
34. It being an admitted position that the dealership for the site in question has yet not been finalized in view of interim order passed in the instant petition, there would be no impediment in directing the respondent-Corporation to proceed further in the matter from the stage of field verification of the credentials of the petitioner and take it to its logical conclusion in terms of the Guidelines within a period of six weeks from the date of communication of the instant order. We order accordingly.
35. The writ petition stands allowed.
36. No order as to costs.
Order Date :- 15.09.2023 Jaideep/SL (Manish Kumar Nigam, J.) (Manoj Kumar Gupta, J.)