Amarjeet vs Union Of India And 3 Others on 6 May, 2024

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Allahabad High Court

Amarjeet vs Union Of India And 3 Others on 6 May, 2024

1. Heard Shri Navin Sinha, Senior Advocate, assisted by Shri Shashank Shekhar, learned counsel for the petitioner, Shri Rakesh Kumar, learned counsel for Indian Oil Corporation Limited (IOCL in short) and Shri Gaurav Kumar Chand, learned counsel for Union of India.

2. Challenge has been raised to the order dated 6.3.2024 passed by respondent no.4/Divisional Retail Sales Head, Indian Oil Corporation Limited (IOCL in short), Moradabad Divisional Office, Moradabad rejecting the petitioner's representation dated 26.2.2024 filed pursuant to the earlier communication dated 17.2.2024 whereby the petitioner's provisional selection for allotment of retail outlet at Budaun Bilsi Road SH-51, District Budaun was cancelled for the following reason:

"Lease deed submitted by applicant is not executed by all co-owners of land and therefore the lease deed is invalid in line with Dealership Selection Guidelines 2023."

3. Submission of learned senior counsel for the petitioner is, in the present case, the petitioner had submitted the application for allotment of retail outlet on 25.9.2023 supported by lease deed executed by the sole owner of plot no.965 situated at Village Pindaul, Tehsil Bilsi, District Budaun. Though other land owners may have been recorded as joint land owners in the revenue records, at the same time, arising from proceedings under Uttar Pradesh Consolidation of Holdings Act, 1953, order had been passed by the Assistant Consolidation Officer dated 11.2.2023, recognizing a compromise entered into between the said Mahendra Singh and his co-sharers - Phool Singh, Mohar Singh and Netrapal Singh. That order was appealed against by Mahendra Singh, being Case No. 0619/2023. In that proceeding, the Settlement Officer, Consolidation, passed further order dated 20.12.2023 clearly recognizing that the parties were reconciled to their shares, from before. They had disclosed mutually exclusive cultivatory rights over identified portions of land. Therefore, the Assistant Consolidation Officer had erred in not preparing the 'Kurra' accordingly. The Settlement Officer, Consolidation, set aside the order dated 11.2.2023 and recognized that compromise, already entered into by those parties.

4. In such circumstances, reference has also been made to the final partition map prepared in terms of the above noted compromise by the Lekhpal, on 19.12.2023 as was approved on 23.12.2023. .

5. Thus, it has been submitted, the facts of the present case wholly distinguish the ratio laid down by a coordinate bench of this Court in Writ-C No. 7354 of 2024, Rahul Singh Vs. Indian Oil Corporation Ltd. and 3 others, decided on 6.3.2024 as also in Manoj Kumar Singh and 2 others Vs. Union of India And 2 others, Writ-C No. 8788 of 2024, decided on 18.3.2024.

6. It has also been vehemently urged, the above aspect has escaped the attention of the respondent no.4 inasmuch as the impugned order passed by that authority dated 6.3.2024 is wholly non-speaking. It makes no mention of the specific objections raised by the petitioner in his representation dated 26.2.2024.

7. On the other hand, learned counsel for IOCL would submit, the plea being set up by the petitioner is unreal. Though the settlement reached and arrived at by metes and bounds between the Mahendra Singh and his co-sharers cannot be disputed, at the same time, that fact occurrence was of December 2023 and not earlier. Merely because the settlement/compromise as to shares may have been reached as was duly recorded in the order dated 11.2.2023 passed by the Assistant Settlement Officer, it may not be construed as evidence of partition by metes and bounds. Only mutual shares of the co-sharers were identified and determined by that order. Thus, the share of Babloo Sagar, Sunil and Munni Devi were determined as 1/18 each and while those of Mohar Singh and Netrapal Singh were determined as 1/6 each, leaving half share in that plot with Mahendra Singh. Yet, the said order makes no mention of the partition of the property by metes and bounds in terms of apportionment thus made and it makes no mention of the identity of the particular plots where such shares may be located.

8. Referring to the order passed by Settlement Officer, Consolidation, it has been submitted, that order cites an error made by the Assistant Consolidation Officer, in not acting on the compromise that may have been reached between the parties and in not preparing the 'Kurra' in terms of the settlement reached between the parties to that dispute, including as to the identity and location of the share claimed by the petitioner, before the Assistant Consolidation Officer. The Settlement Officer, Consolidation, took note of the actual partition by metes and bounds set up by the parties to the dispute and directed for preparation of the 'Kurra' accordingly. Though the portion of the individual plots of the parties to the dispute may therefore be identified in terms of the order passed by the Settlement Officer, Consolidation, at the same time, it cannot be lost sight that that order was passed on 20.12.2023, and not earlier.

9. Therefore, as per submission of Shri Rakesh Kumar, the rights of Mahendra Singh qua the portion of the land offered by the petitioner for allotment of the retail outlet stood settled in terms of the order of the Settlement Officer, Consolidation, dated 20.12.2023, and not earlier. Therefore, the petitioner would remain ineligible in terms of the Brochure for the Selection of Dealers For Regular & Rural Retail Outlet, June, 2023, insofar as on the date of submission of application i.e. 25.9.2023, Mahendra Singh alone was not owner of the particular plot offered for allotment of retail outlet.

10. As to the procedural error in the order, it being passed without assigning any reasons, he would submit, the said error fades into the realm of academics. On substantive basis, no rights are seen to exist in favour of the petitioner as may lead to a different conclusion, other than a rejection of the provisional selection.

11. Having heard learned counsel for the parties and having perused the record, the present case is squarely covered by the coordinate bench decision of this Court in Writ-C No. 7354 of 2024, Rahul Singh Vs. Indian Oil Corporation Ltd. and 3 others, decided on 6.3.2024. That writ petition was dismissed on the following reason:

"9. In view of the above, we find that the Brochure stipulates amongst others two contingencies (discussed here namely), one where the land may be owned by a person other than the applicant or his family members, second, where the land may be owned by the applicant along with others or others alongwith his family members or both. Considering the present facts land is owned by third parties to the exclusion of the applicant and his family members. That situation is dealt with in terms of Clause 4 (vi) (a).

10. The situation were the land may be owned by the applicant either in his own name or alongwith his family members and/or other persons has been dealt with in Clause 4 (vi) (m) under situations 1, 2 and 3 dealt with in the tabular chart under the heading "GROUP 1" appearing in that Clause.

11. Then, without reference to Clause (a), (m) or any Sub-Clause of Clause 4 (vi) of the Brochure, Note 3 thereto only provides- whereever consent letter is required, it may be submitted on form Appendix III.

12. As noted above, in the present facts, the land offered in the allotment is not owned by the petitioner/applicant or the petitioner/applicant alongwith his family members or by the petitioner/applicant alongwith other owners and his family members. Therefore, Clause 4 (vi) (m) would not apply to the present facts.

13. On the contrary, the only Clause applicable to such facts would be Clause 4 (vi) (a). That Clause clearly stipulates that the land offered for allotment should be available to the applicant on the date of submission of he application against a long term lease executed by "all co-owners". The consequence of non execution of such lease deed is also provided in the said Clause. Thus it has been stipulated, in case such lease deed is not executed by all co-owners, the same shall be invalid. Once invalid that ineligibility attaches to the application submitted by the petitioner on the date of submission of his application.

14. For the purpose of application of the said Clause the requirement remains- execution of lease deed by all co-owners, therefore, consent letters cannot fulfil that stipulation. In face of the consequences of invalidity of the lease deed having been specified, there survives no occasion to consider if the defect in such application could ever been cured, after its submission.

15. Consequentially, the method of curing the defect considered under Note-3 (noted above) would remain confined to the cases falling under Clause 4 (vi) (m), only.

16. For the reasons noted above, we conclude, the petitioner's case would remain covered by Clause 4 (vi) (a) of the Brochure. It is admitted that the lease deed relied by the petitioner was not executed by all co-owners before the date of submission of the application. Therefore, there is no error on the part of the respondent in rejecting the application submitted by the petitioner."

12. Further, in Manoj Kumar Singh and 2 others Vs. Union of India And 2 others, passed in Writ-C No. 8788 of 2024, decided on 18.3.2024, it has been observed as under:

"6. Further, it may be observed, Note-3 appended below clause-(iv) and Appendix-III would be relevant to cases where land offered may belong to the applicant and/or his family members along with or without third parties. It would have no application to cases where the land offered belongs to third parties only viz-a-viz the applicant.

7. Undoubtedly, petitioners have applied as Group-1 candidate. At present, draw of lots has taken place amongst Group-1 candidates. Therein, petitioners were successful. The deficiency noted by the IOCL thereafter is with respect to the entitlement of the petitioners to be treated as Group-1 candidates. Insofar as it is admitted to the petitioners that they applied for allotment of retail outlet not on the strength of registered lease deed but on the strength of a notarized agreement dated 05.10.2023, the petitioners may not claim to be truly entitled as Group-1 candidate. That category of candidates must have eligibility of duly registered lease deed/sale deed etc. on the date of their application. Clause 4(vi)(a) leaves no element of doubt in that regard. It reads as below :

"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. If the offered land is on Long-term lease and there are multiple owners, then lease deed should be executed by all co-owners of the offered plot. Incase lease deed is not executed by all co-owners; such lease deed shall be treated as invalid."

8. Then Clause 4(vi)(i) reads as below :

"i) For Group 2 applicants, the "firm offer" of land will include land offer from third party based on Agreement to purchase/long term lease (as per terms and conditions of the OMCs). Land offer letter in the form of an Affidavit (Appendix - III) tendered by the third party (landowner) on or before the date of application, should be available with the applicant along with documents mentioned in clause (e and f) above to establish the ownership of land offered for the Dealership which will have to be submitted by the applicant as and when advised by OMCs."

9. Thus "firm offer" is a term used under the Brochure to describe eligibility of such applicants who may not offer any land owned by them or land leased to them, along with their application for allotment. That term describes eligibility of candidates not having the eligibility of ownership or lease hold rights over the land offered by them but such candidates who may have entered into an agreement with a third party-either to purchase such land or to obtain lease hold rights over land they propose to offer for allotment.

10. On the surface of things itself, such candidates may only claim contingent right in the land proposed to be offered. Therefore, under the scheme for allotment applicable, the Oil Corporations consider such candidates on a lower pedestal than those who have ownership or lease hold rights over the land offered by them along with their application for allotment. Thus, the petitioners may remain to be described as Group-2 candidates.

11. Coming to Clause 4(vi) of the Brochure referred to by the learned Senior Counsel for the petitioners, it reads as below :

"In case land offered by all the applicants under Group - 1 & Group - 2 is found not suitable/not meeting requirements, then these applicant/s under Group - 1 & Group - 2 along with applicants under Group - 3 (who did not offer land along with application) would be advised by the OMCs to provide suitable land in the advertised location / stretch, within a period of 90 days from the date of issuance of intimation letter to them through SMS/e-mail. In case the applicant fails to provide suitable land within the prescribed period, or the land provided is found not meeting the laid down criteria, the application would be rejected."

12. The above clause only applies in a contingency where in peculiar facts of a case, upon successive draw of lots, candidates in Group-1 and Group-2, are found to be ineligible for reason of land offered by them being not acceptable to the Oil Corporation. Then and at that stage (after completion of such draw of lots and failure met in that process), the Oil Corporation may include such candidates in a fresh draw of lots along with the candidates falling in Group-3 after allowing the parties 90 days' time to make available suitable land.

13. In the scheme of the Brochure, the said clause is not for the benefit of the applicants. Rather, it is a clause built in by the Oil Corporations in their own interest to escape the otherwise unavoidable conclusion of fresh advertisement to allot retail outlet.

14. Thus, in the first instance, Group-1 candidates stand in preference to Group-2 candidates who in turn stand in preference to Group-3 candidates. However, if Group-1 and Group-2 candidates remain from claiming benefit of their otherwise higher order of preference for reason of unsuitable land or no land offered by them, the Oil Corporation in that eventuality may conduct a fresh draw of lots of all candidates including Group-3 candidates after giving a fresh opportunity (to such Group-1 and Group-2 candidates), to offer another/suitable land.

15. In the facts of the present case that stage has yet not reached. At present, petitioners were provisionally selected in the first draw of lots. The status of the proceedings that may follow is not known and need not be contemplated or examined at this stage."

13. Insofar as the present facts are concerned, it is not the case of the petitioner that the plot no. 965 (entire) was in the exclusive ownership of the Mahendra Singh. The petitioner admits that there were co-sharers in that plot along with Mahendra Singh. At the same time, the Brochure required lease deed to be executed by all co-sharers of the plot being offered for allotment. Also, there can be no dispute to the fact that the above eligibility condition was to be met on the date of application i.e. 25.9.2023. Therefore, the rights of Mahendra Singh in plot no. 965, are to be seen on the date of filing of the application dated 25.9.2023, only. Subsequent developments or change of circumstances would have no bearing on the rights being claimed by the petitioner. In any case, they may not alter the eligibility requirement that has been enforced under the Brochure.

14. Tested on that principle, while the petitioner claims existence of a compromise reached prior to the eligibility date 25.9.2023 as acknowledged in the order dated 11.2.2023 passed by Assistant Consolidation Officer, at the same time, it is the own case of the petitioner that the said order was erroneous to the extent it failed to fully recognize the compromise in entirety and it failed to recognize the partition by metes and bounds that had taken place between the parties to that dispute. Therefore, the petitioner appealed against that order before Settlement Officer, Consolidation and was successful in that appeal to the extent the Settlement Officer, Consolidation vide his order dated 20.12.2023 clearly provided for preparation of the 'Kurra' in terms of settlement/compromise reached between the parties, both as to the shares as also to the exact allocation of the apportioned shares.

15. Though the said order dated 20.12.2023 may relate back inter parties (to the dispute before the Consolidation authorities), and no other right may be claimed by the co-sharers, yet, IOCL was a stranger to that dispute. It may not have acted upon it. It could only recognize the rights of the parties as were seen to exist i.e. were adjudicated on the date of the application i.e. 25.9.2023. What transpired thereafter may not alter the status of eligibility conditions. The exact allocation of the apportioned shares not enforced on that date - by metes and bounds, no benefit may be drawn against the I.O.C.L., by the subsequent events arising from the appeal filed by Mahendra Singh being allowed. To that extent, Clause 4(vi)(a) of the Brochure is specific and consequence of its non-compliance is also unequivocally clear. It was for the petitioner to act accordingly, and offer non-litigious land, as stipulated, in the Brochure.

16. To the extent the order of the Settlement Officer, Consolidation dated 20.12.2023 did not exist on the date of eligibility claimed and there was no 'Kurra' prepared, the partition by metes and bounds was not visible to I.O.C.L. Merely because there may not survive any dispute between Mahendra Singh and his co-sharers on the strength of some private partition held, in absence of public recognition granted in law, either through the order of the Settlement Officer, Consolidation, and/or through appropriate revenue entries, the IOCL may have remained within its rights not to recognize and/or act on such developments as may have involved alteration of its own position viz-a-viz the proposed Retail Outlet.

17. In matters of contract, the Writ Court may leave it open to the contracting parties to act in the manner they may deem fit. Insofar as the action of the IOCL is not seen to be plainly arbitrary and/or unreasoned, we are not inclined to offer any interference under Article 226 of the Constitution of India to reverse the commercial decision of the IOCL - to not enter into the contract with the petitioner.

18. In view of that reason arising, we are not inclined to act on the otherwise sustainable ground of challenge that the order impugned is non-speaking. Intervention if made, on that count would only result in an academic exercise.

19. In view of the above, writ petition lacks merit and is accordingly dismissed. No order as to costs.

Order Date :- 6.5.2024 Prakhar (Donadi Ramesh, J.) (S.D. Singh, J.)

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Allahabad High Court