Madhya Pradesh High Court
Radhika K Moolchandani vs Hindustan Petroleum Corporation Ltd on 6 April, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
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HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition 15369/2014
Radhika K. Moolchandani
vs.
Hindustan Petroleum Corporation Ltd. & Anr.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
For petitioner: Shri Ashok Lalwani, Advocate
For respondents: Shri Anoop Nair, Advocate
(O R D E R )
06 .04.2015
The petitioner, an applicant, who has applied for
grant of LPG distributorship from the respondent-
Petroleum Company, has approached this Court
ventilating her grievance by this petition under Article
226 of the Constitution of India in the matter of closure
of the proceedings for such allotment on various
grounds, mainly contending that the closure of the
proceedings for grant of LPG distributorship and in fact
action of respondents of not considering the application
of the petitioner on flimsy grounds is bad in law.
2. It is the case of the petitioner that the respondents
have advertised the availability of the places where
distributorship of LPG cylinders was to be granted. A
brochure containing the guidelines for selection of the
regular dealer was published by the respondents. The
petitioner submitted an application and pursuant to the
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conditions prescribed, information about the availability
of suitable land for the purpose of construction of the
godown was produced by the petitioner. Since the land
in question was obtained by her mother-in-law on lease
from the State Government, with the permission of the
department a sub-lease was executed in favour of the
petitioner by her mother-in-law. All other relevant
certificates of no objection were obtained and produced
by the petitioner, but, instead of considering such a
claim of the petitioner, the proceedings were closed and
later on the petitioner was informed that her application
cannot be considered as the land mentioned by her in
the application was a leased land of which the lease
period was expiring before the completion of the period
indicated in the brochure. Since the eligibility condition
was not fulfilled by the petitioner, therefore, her
application was rejected. It is the case of the petitioner
that since the application of the petitioner was
erroneously rejected whereas she being fully qualified to
be granted the distributorship, was denied her rightful
claim and, therefore, this writ petition was required to
be filed.
3. While entertaining the writ petition, this Court
granted an interim stay on 9.10.2014 staying the
operation of the impugned order dated 20 th September,
2014 (Annexure P/15).
4. Upon service of the notices, the respondents have
filed the reply contending inter-alia that the
distributorship is granted subject to fulfillment of certain
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conditions prescribed under the scheme and since the
petitioner was not satisfying one such condition, the
application of the petitioner was rightly rejected. It is
contended that after rejection of the application fresh
action is required to be taken by the respondents. A
prayer for vacating the interim stay is also made. Mainly
the contention of the respondents is that eligibility
should be on the last date of making of the application
as prescribed in the advertisement. Any event which has
taken place after the cut of date would not make any
candidate eligible for selection.
5. Rejoinder has been filed by the petitioner
contending inter-alia that not only the lease agreement
has been executed, but the mother-in-law of the
petitioner has also applied for declaring the land as free
hold in terms of the scheme made by the State
Government. Such an application was pending
consideration. It is the contention of the petitioner that
this condition as is made applicable to the petitioner by
the respondents was not adhere to in cases of several
applicants, who have been granted the dealership by the
respondent-Company and that being so, the rejection of
the application of the petitioner is bad in law.
6. Heard learned counsel for the parties at length and
perused the record.
7. First of all the scope of interference by this Court
while exercising writ jurisdiction under Article 226 of
the Constitution of India in such contractual matters, has
to be examined. The Apex Court in the case of Sanjay
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Kumar Shukla Vs. Bharat Petroleum Corporation Limited
[(2014) 3 SCC 493] , after summarising all previous views has
held in para-19 thus :-
"19. We have felt it necessary to reiterate the need of
caution sounded by this Court in the decisions referred to
hereinabove in view of the serious consequences that the
entertainment of a writ petition in contractual matters,
unless justified by public interest, can entail. Delay in the
judicial process that seems to have become inevitable
could work in different ways. Deprivation of the benefit of
a service or facility to the public; escalating costs
burdening the public exchequer and abandonment of half
completed works and projects due to the ground realities
in a fast changing economic/market scenario are some of
the pitfalls that may occur."
This law has been made applicable in the case of
Rajesh Kumar Rathore & others vs. Indian Oil
Corporation Limited and others, Writ Petition
No.10938/2014 by this Court and thus it is necessary to
examine the factual aspects in the present case to see
whether it is a case where exercise of such power of
judicial review of action of respondents is necessary or
not.
8. It is vehemently contended by the learned counsel
for the petitioner that the requirement as indicated in
the brochure prescribes that an applicant is required to
fulfill multiple dealership or distribution norms. One of
such norm is that the applicant should own as on the
last date for submission of the application as specified in
the advertisement or corrigendum a plot of land of
minimum dimensions as indicated within 15 Km. from
municipal/town/village limits of the location in the same
State for construction of LPG Godown for storage of
8000 Kg. Of LPG in cylinders. The plot of land for
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construction of godown not meeting the minimum
dimensions will not be considered. It is also prescribed
that the applicant should own a shop of minimum size
indicated or a plot of land for construction of showroom
of minimum size, as on the last date for submission of
application as specified in the advertisement or
corrigendum. In terms of the conditions prescribed
under the scheme, the showroom should be as per the
standard layout and should be made in a shop or land
located in the advertised location. As far as the godown
is concerned, for the said purpose, availability of the
land is to be shown. The land could be owned by the
applicant himself/herself or could be obtained from a
family member by execution of an appropriate deed. It
is the requirement that the land should be readily
available for the purpose of construction of godown.
9. It is contended that the mother-in-law of the
petitioner has the land which is suitable for establishing
a godown in terms of the requirement indicated in the
scheme. Since the lease is obtained by Smt. Mohini Devi
Moolchandani the mother in law of the petitioner from
the State Government, the said land has been obtained
on a sub-lease by the petitioner. The lease is for the
period of 16 years. This deed was produced alongwith
the application submitted by the petitioner. Further, for
the purpose of showroom, an agreement was executed
and that too was placed alongwith the application. Since
the lease obtained by the mother-in-law of the petitioner
from the State was to expire in the year 2008, a renewal
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lease was executed by the State Government for a
further period of 30 years. This period of 30 years was
expiring before the expiration of the sub-lease executed
in favour of the petitioner by Smt. Mohini Devi
Moolchandani, the mother-in-law of the petitioner.
However, before executing the sub-lease, the necessary
no objection certificates were obtained from the Nazul
Officer, Mandla. In between, since the State Government
has made rules known as Madhya Pradesh Grant of
Freehold Right in respect of Land on Lease situated in
Urban Areas Rules, 2010, the mother-in-law of the
petitioner has applied for conversion of the lease for
freehold and that application is pending consideration
before the competent authority. That being so, even
when the sub- lease was executed in favour of the
petitioner by said Mohini Devi Moolchandani, it would
not expire as the period of lease would come to an end
the moment it is declared a freehold land and,
therefore, this would not be a valid objection that the
petitioner was not fulfilling the condition in respect of
the land and her application was rejected.
10. Per contra, it is contended by the learned counsel
appearing for the respondents that there are specific
conditions stipulated in the scheme of the respondents
that all the eligibility should be on the date of making
of the application by the applicants who are willing to
obtain the dealership from the respondents. Specially
under paragraph-21 it is prescribed in the scheme that
furnishing of any false information will entail rejection
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of the application of the applicant. It is contended that
though it was well within the knowledge of the
petitioner that the lease obtained by her mother-in-law
in respect of the land offered by her is to expire before
the period prescribed under the scheme, yet wrong
information was given that a sub-lease was obtained for
a longer duration to fulfill the requirement of making
the application. It is contended that the law is well
settled in respect of such a condition as in one of the
writ petition a coordinate Bench of this Court at Indore
in the matter of W.P. No.1197/2014-Pawan s/o Shri
Hemar Singh Nagar vs. Hindustan Petroleum Corporation
Ltd. and Anr. (decided on 13 th May, 2014) has
considered this aspect and has held that in case the
applicant is not fulfilling the conditions as stipulated in
the scheme on the last date of filing of the application
shown in the advertisement, such application is to be
rejected. It is contended that the law in respect of
availability of the lease was considered by this Court
and since it was found that the conditions prescribed in
the scheme was not fulfilled by the said applicant, his
candidature was rightly rejected and the writ petition
was rejected. The order of the Single Bench has been
affirmed by the Division Bench in Writ Appeal
No.609/2014 decided on 15.7.2014. It is contended that
since the petitioner was not fulfilling such a condition as
prescribed in the advertisement (Annexure R/1) on the
last date mentioned, her candidature was rightly
rejected.
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11. After due consideration of these aspects and after
going through the decision rendered by this Court in the
case of Pawan s/o Shri Hemar Singh (supra), one thing
is clear that the nature of the lease was not taken note
of either by the learned Single Judge or by the Division
Bench. It is the settled position of the law that if a
permanent lease is granted, even after its expiration, the
same can be got renewed. The availability of the period
of lease was not the sole criteria prescribed in the
scheme. The scheme of the respondents in so far as the
availability of the land is concerned, prescribes the
following conditions, which are reproduced hereinbelow:
"6.1. Common Eligibility Criteria for all Categories applying as
individual:
The applicant:
vii Should own as on the last date for submission of
application as specified in the advertisement or
corrigendum (if any):
A plot of land of minimum dimensions 25 M x 30 M
(within 15 km from municipal/town/village limits of the
location offered in the same State) for construction of
LPG Godown for storage of 8000 Kg of LPG in cylinders.
The plot of land for construction of godown not meeting
the minimum dimensions of 25 M x 30 M will not be
considered.
........
viii Own a suitable shop of minimum size 3 metres by 4.5 metres in dimension or a plot of land for construction of showroom of minimum size 3 metres by 4.5 metres as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality mentioned in the advertisement. It should be easily accessible to general public through a suitable approach road. .........
9reference vii & viii above:
'Own' means having ownership title of the property or registered lease agreement for minimum 15 yrs in the name of applicant / family member (as defined in multiple distributorship norm of eligibility criteria) as on the last date for submission of application as specified 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 Notarized Affidavit from the family member(s) will be required.
In case the land is jointly owned by the applicant / member of 'Family Unit' (as defined in multiple dealership / distributorship norm) with any other person(s0 and the share of the land in the name of applicant / member of the 'Family Unit' meets the requirement of land including the dimensions required, then that land for godown/showroom will also qualify for eligibility as own land subject to submission of 'No Objection Certificate' in the form of an Notarized Affidavit from other owner(s)."
12. The above conditions nowhere stipulate that the lessor must have the lease of specific period to be subleased to the applicant. Secondly a permanent lease within the State if granted has to remain in operation for all time to come unless the right to re-enter is exercised by the State authorities. Therefore, if the lease was obtained by the petitioner from the original lease holder for a period of 16 years, the condition, as prescribed in the advertisement and the scheme, was fulfilled. It is not the case that the period of lease obtained by the petitioner from her mother-in-law was less than 15 years. It was for a period of 16 years as was categorically mentioned. If the land obtained by the mother-in-law of the petitioner is ultimately declared under the rules a freehold land, there would not be any condition of renewal of the lease period and, therefore, 10 the renewal of the said lease even after its expiry would not be necessary. When these facts were brought to the knowledge of the respondents, they were required to look into the same and were required to consider these aspects as well.
13. Though it has been contended by the learned counsel for the respondents that application of the petitioner was liable to be rejected on account of Clause 21 of the scheme, but it could not be pointed out as to what was the wrong statement made by the petitioner before the respondents or misleading information was given by her. In fact the information as given by the petitioner was with respect to the lease agreement with her mother-in-law, and that information was not incorrect in any manner, as alleged. Therefore, on this count as well the application of the petitioner could not be rejected.
14. In view of the above discussion, the impugned action of the respondents in not considering the application of the petitioner or rejecting her application by the impugned order dated 20.9.2014 cannot be sustained. The impugned order is quashed. The matter is remitted back to the respondents to consider the claim of the petitioner, and to ascertain whether the petitioner fulfills the norms prescribed in the scheme for grant of such LPG Distributorship or not and to pass the appropriate orders in that respect afresh. Let the aforesaid exercise be completed within a period of three months from the date of this order.11
15. In the facts and circumstances of the case, there shall be no order as to costs.
(K.K. Trivedi) Judge shukla-