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2014 DIGILAW 965 (MP)

Vijay Pratap Singh Parihar v. Union of India

2014-08-06

ROHIT ARYA

body2014
Judgment Rohit Arya, J.:- 1. Shri K.N. Gupta, Sr. Advocate with Shri C.P. Singh, Advocate for the petitioner. Shri N.K. Jain, Sr. Advocate with Shri A.K. Jain, Advocate for the respondents No. 2 to 7. By this petition under Article 226 of the Constitution of India, challenge is made to impugned communication dated 20-6-2014 by which respondent-Indian Oil Corporation Limited has rejected the application of the petitioner for award of LPG Distributorship at Gwalior-E, District Gwalior under "OP" category, advertised on 15-11-2011 on the premise that the petitioner does not possess suitable land for godown as per the eligibility criteria as the lease deed of the godown land declared by him was found to be invalid. 2. It is contended by the petitioner that as required under clause VI of the guidelines framed by the respondents and also as per clause 9 of the General Instructions to the candidates, the petitioner has submitted the lease deed. Lease deed in respect of land ad measuring 100 x 100 sq. ft. falling in Patwari Halka No. 23, Revenue Inspector Board Circle No. 1, Ghatigaon Development Board, Barai, Tahsil and District Gwalior executed in favour of plaintiff by one Bharat Singh on behalf of his minor son Kripal Singh dated 31-12-2011 is a validly executed lease deed fulfilling the requirement of IOCL. 3. It appears that respondents-Corporation has received a complaint as regards non-availability of land for godown with the petitioner. On verification of the lease deed submitted by the petitioner, it was brought to the notice of respondents-Corporation that on the date of lease deed i.e. 31-12-2011, Kripal Singh was major. The lease agreement was executed on 31-12-2011 by Bharat Singh as guardian stating that Kripal Singh as minor was found to be factually incorrect. Therefore, Bharat Singh was not competent to execute the lease deed. Resultantly, lease deed found to be null and void and consequently, the land for godown shown by the petitioner in his application form was not found to be fulfilling the required criteria. The aforesaid facts were brought to the notice of the petitioner vide communication dated 3-4-2014 (Annexure P/11) and an opportunity was afforded to him to submit representation on the aforesaid issue within seven days. The aforesaid facts were brought to the notice of the petitioner vide communication dated 3-4-2014 (Annexure P/11) and an opportunity was afforded to him to submit representation on the aforesaid issue within seven days. It appears that same was replied on 4-4-2014 by the petitioner vide Annexure P/12 with the submissions that due to inadvertence, the lease deed was executed on 31-12-2011 by Bharat Singh father of Kripal Singh (minor). Now Kripal Singh is already major and ready to ratify the lease deed dated 31-12-2011 by making necessary amendments wherever it is required. Thus, the legal infirmity will be cured and the same shall not affect the lease deed dated 31-12-2011. With the aforesaid submissions, petitioner sought permission to submit rectification deed/amendment lease deed with removal of defects. Petitioner also submitted consent documents of Kripal Singh on non-judicial papers in support of aforesaid submissions, however, respondents-Corporation was not convinced with the aforesaid submissions and resolved to reject the candidature of the petitioner by the impugned communication. 4. Senior Counsel for the petitioner submitted that respondents/Corporation has acted arbitrarily having rejected the candidature on the premise that the lease deed dated 31-12-2011 was not legally tenable having been executed by Bharat Singh father of Kripal Singh (minor) which was on later date supplemented by a consent letter by Kripal Singh dated 15-4-2014. Learned counsel for the petitioner referred to meaning of "Own" as defined in guidelines clause vi issued by the respondents/corporation and submits that petitioner is covered with the definition of word "Own". He further submitted that even if Kripal Singh had attained majority on the date of execution of lease deed dated 31-12-2011, lease deed executed on the said date by his father styling Kripal Singh as minor inadvertently, in favour of petitioner, the same could not have been rejected as Kripal Singh on 15-4-2014 had signed a consent letter in respect of aforesaid lease deed. It is submitted that the lease deed dated 31-12-2011, under such circumstances, could not have been said to be void instrument. At the most, it may be voidable documents at the instance of Kripal Singh. It is submitted that the lease deed dated 31-12-2011, under such circumstances, could not have been said to be void instrument. At the most, it may be voidable documents at the instance of Kripal Singh. Following judgments reported in Premsingh and others vs. Birbal and others, 2007(1) MPLJ (S.C.) 1 : (2006) 5 SCC 353 , Partap and another vs. Smt. Puniya Bai and others, 1976 MPLJ 627 : AIR 1977 M.P. 108 and Jinendra Kumar Jain vs. Union of India and others, 2011(4) MPLJ 396 have been cited to support the contention advanced. It is submitted that there is a distinction between fraudulent misrepresentation as to the character of a document and as to its contents. Where the misrepresentation is merely in respect of the contents of the document, the transaction becomes voidable and where it relates also to the character of the transaction, then the transaction is void. He submits that in the instant case, the lease deed in question at the most could be said to be a misrepresentation of contents of the documents and therefore, voidable at the instance of Kripal Singh; however, the same cannot be said to be void. Hence, same ought to have been accepted. Moreover, when the same was supported by consent letter of Kripal Singh dated 15-4-2014. 5. On the other hand, respondents' senior counsel has submitted that rejection of candidature of the petitioner primarily was for the reason of fraud played by the petitioner while submitting the lease deed dated 31-12-2011 as the lessee Bharat Singh despite having full k Partap and another knowledge of the fact that his son Kripal Singh had attained majority on the alleged date of execution of lease deed still executed the lease deed showing Kripal Singh as minor to mislead the Corporation as regards alleged fulfillment of the requirement of availability of land for the godown purposes. Such information in fact runs contrary to the requirement of general instructions to the candidates applying for LPG distributorship clause 9, which contemplates as under:-- "Documents pertaining to land/Godown in the name of applicant or member of 'family unit' Registered sale deed/Registered Gift Deed/Registered Lease Deed (15 years minimum)/Mutation and government record etc. The Date of the documents have to be on or before the date of application. The Date of the documents have to be on or before the date of application. In case land is in the name of member of 'family unit', consent from the family member in form of Notarized Affidavit (Appendix 2) is required to be attached with the application." 6. Therefore, as on the date of submissions of application, the alleged lease deed dated 31-12-2011, the same was not legally valid document i.e. registered lease deed in favour of the petitioner. It is further submitted that the information submitted by the petitioner as regard availability of land for godown purposes was false. Therefore, candidature of the petitioner was liable to be rejected in terms of clause 22 of Guidelines on Selection of Regular LPG Distributorship (hereinafter referred to as the 'Guidelines'). For ready reference clause 22 is reproduced hereinbelow:-- "22. False Information.-- If any statement made in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to have been suppressed/misrepresented/incorrect or false affecting eligibility, then the application is liable to be rejected without assigning any reason and in case the applicant has been appointed as a distributor, the distributorship is liable to be terminated. In such cases the candidate/distributor shall have no claim whatsoever against the respective Oil Company." (Emphasis supplied) 7. Learned senior counsel for the respondent/Corporation further submitted that as per brochure clause (vii), the status of the documents of the godown land can be considered only as on the last date of submission of the application. Requirement to that effect is well-explicit as per general instructions of the candidates applying for LPG distributorship. Clause 9 of the advertisement is referred to in that behalf. Therefore, documents filed on or before the date of application shall be relevant for the purpose of consideration. As such, the consent letter (Sahmati Patra) of Kripal Singh dated 15-4-2014 cannot be considered. 8. Learned senior counsel referred to an Order passed by a coordinate Bench of this Court dated 5-3-2012 in W.P. No. 1310/2012, Atar Singh Dhakad vs. Union of India and others to bolster his submissions. Learned senior counsel for the respondent/Corporation further submits that if the alleged consent letter dated 15-4-2014 is perused in its internal page of paragraph 2, Kripal Singh has stated to the following effect: (Emphasis supplied) 9. Learned senior counsel for the respondent/Corporation further submits that if the alleged consent letter dated 15-4-2014 is perused in its internal page of paragraph 2, Kripal Singh has stated to the following effect: (Emphasis supplied) 9. As such, Kripal Singh claims to have become major on 15-4-2014 whereas in fact, he had already attained majority before the date of alleged leased deed executed by Bharat Singh father of Kripal Singh on 31-12-2011 as per date of birth shown in the X Class marks sheet, i.e., 28-5-1992. 10. Therefore, even Kripal Singh has made an incorrect statement in his aforesaid consent letter only to subserve the interest of the petitioner. 11. With the aforesaid submissions, learned senior counsel for the respondent/Corporation submits that rejection of the candidature of petitioner is based on misrepresentation of facts in the context of requirement of availability of land for godown to award LPG distributorship. It is submitted that adherence of the conditions stipulated in the advertisement and the brochure issued by the respondent/Corporation is mandatory by each candidate. Non-fulfilment of such conditions or supply of false information shall render cancellation of candidature of a candidate even after award of distributorship, the LPG distributorship can be cancelled or withdrawn. This can be done as per clause 22 of the Guidelines quoted above. It is submitted that under such circumstance, the respondent/Corporation is well within its rights to hold re-draw to select eligible candidate after rejection of candidature of the petitioner. With the aforesaid submissions, petition is prayed to be dismissed. 12. Before adverting to the merits of submissions so advanced by rival parties, it is apposite to mention that the scope of interference in such matters is well-explained and circumscribed as settled by catena of judicial pronouncements. The process of selection for award of dealership by Oil Corporations is essentially an administrative decision which is required to be arrived at in fair manner. Inviting applications through advertisement from amongst the eligible candidates by an Oil Corporation for award of dealership in fact and in effect is in the process of business transaction for which detailed comprehensive terms and conditions are stipulated not only in the advertisement but also in the brochure issued by the Indian Oil Corporation Ltd. Fulfilment of those conditions are stated to be mandatory. Hence, before accepting invitation for award of dealership, a candidate is required to go through the terms and conditions subject whereto claim of a candidate is processed, examined and decided by IOCL. Non-adherence thereto or infraction/variance thereof by a candidate may result into vulnerability of the candidature and it is open for the IOCL to take a final decision as regards acceptance or rejection of a candidature. This is so because it is a contract between IOCL and the candidate having commercial orientation. The decisions taken by the IOCL in such matters are not pregnable though the decision making process by the IOCL is always open for judicial review. The fairness in decision making process is not only the requirement of Article 14 of the Constitution of India but also sine qua non of rule of law. [K. Vinod Kumar vs. S. Palanisamy and others, (2003) 10 SCC 681 - para 11 is referred to which is quoted]: "The law is settled that over proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken. No infirmity is pointed out in the proceedings of the Selection Board which may have the effect of vitiating the selection process. The capability of the appellant herein to otherwise perform as an LPG distributor is not in dispute. The High Court was not, therefore, justified in interfering with the decision of the Selection Board and the decision of BPCL to issue the letter of allotment to the appellant herein." 13. In the instant case, clause 7 of the Guidelines provides for eligibility criteria for individual applicants. Sub-clause (iv) of Clause 7.1 deals with ownership of adequate land and the word "Own" is further defined which provides that ownership title of the property or registered lease agreement for minimum 15 years in the name of applicant/family member as defined in multiple distributorship norm of eligibility criteria. 14. Facts of the case in hand show that the petitioner himself has not submitted the documents as regards availability of land of his ownership. However, he has submitted a lease deed dated 31-12-2011 said to have been executed by one Bharat Singh on behalf of his minor son, Kripal Singh in favour of petitioner showing availability of land in favour of petitioner. However, he has submitted a lease deed dated 31-12-2011 said to have been executed by one Bharat Singh on behalf of his minor son, Kripal Singh in favour of petitioner showing availability of land in favour of petitioner. On verification of facts, the respondent/Corporation has come to know that the alleged document in fact is a product of misrepresentation and otherwise is null and void in view of the fact that Kripal Singh's date of birth as per Class X marks sheet is 28-5-1992. Hence, Kripal Singh is major as on the date of execution of the lease deed, i.e., on 31-12-2011 and, therefore, he could not have been shown to be minor on the date of execution of the lease deed. As such, Kripal Singh's father, Bharat Singh is not competent to execute the lease deed in favour of the petitioner. This lease deed by no stretch of imagination could be said to be validly executed lease deed in conformity with the requirement of sub-clause (vi) of clause 7.1 of the Guidelines for individual applicants. As such, lease deed also does not fall within the meaning of word "Own" as explained in the aforesaid clause. On the contrary, alleged execution of lease deed in fact and in effect is misleading in nature and rights cannot be said to have been transferred in favour of the applicant/petitioner over the land in question. Respondent/IOCL is justified having treated the aforesaid instrument as misrepresentation tantamounting to false information as provided in clause 20 of the eligibility conditions and, therefore, the IOCL is well within its rights to reject the application under the said clause. The contention of respondent/IOCL, that the documents supplied along with the application must be of the date on or before the date of application in respect of details of land/godown as provided under clause 9 of General Instructions to the candidates applying for LPG Distributorship (Annexure R/2) at page 15. The requirement to the aforesaid effect is also clear in the general conditions of the advertisement issued inviting applications by IOCL. Hence, any document subsequently executed even otherwise shall have no bearing on the candidature of a candidate. In the case in hand, the alleged consent letter submitted by Kripal Singh on 15-4-2014 much after the date of submission of application by the petitioner, at the first instance did not deserve any consideration. Hence, any document subsequently executed even otherwise shall have no bearing on the candidature of a candidate. In the case in hand, the alleged consent letter submitted by Kripal Singh on 15-4-2014 much after the date of submission of application by the petitioner, at the first instance did not deserve any consideration. Besides, the fact that even this declaration itself is of no consequence in the context of requirement of sub-clause (vii) of clause 7.1 of the Guidelines as regards availability of land/godown of the ownership or that of lease deed in his or her favour. Further, consent letter was contained false statement wherein it says that as on the date of alleged document/consent letter dated 15-4-2014, Kripal Singh attained majority whereas he attained majority much prior to the date of execution of the lease deed on 31-12-2011 by Bharat Singh styling his son, Kripal Singh is minor. Therefore, this document has rightly been rejected under clause 22 of the Guidelines. 15. Having thus, considered the submissions of learned senior counsel for the parties, this Court is of the view that the respondent/IOCL has not committed any illegality or acted contrary to the terms and conditions of the NIT or the General Guidelines issued while rejecting the candidature of the petitioner for award of distributorship of LPG. 16. The contention of learned senior counsel for the petitioner is that there is a clear distinction between the fraudulent misrepresentation as to character of a document and as to its contents where the misrepresentation is merely in respect of contents of the document, the transaction becomes voidable, where it is related to character of the transaction, that transaction is rendered void, may be a relevant proposition in the matter of inter se rights between the parties in an action of a party for declaration that in a given set of facts the alleged document is not binding upon him and construction of the document whether void or voidable may be addressed in such proceedings. However, the said proposition does not have any relevancy to the facts in hand inasmuch as the candidature of the petitioner is rejected on the ground that the alleged lease deed not duly executed by a competent person as on the date of its execution could not be accepted as a validly executed lease deed in terms of sub-clause (iv) of clause 7.1 of the Guidelines and where such information supplied falls within the net of clause 22 of the Guidelines referred to hereinabove it provides justification for rejection of candidature of the petitioner. There is misrepresentation in the lease deed that Kripal Singh is a minor. Kripal Singh himself has not executed the lease deed. These two-fold facts tantamount to fraudulent misrepresentation of facts as regards character and contents of the instrument. Therefore, the respondent/IOCL has rightly found that the alleged lease deed as null and void. Guiding principles laid down by Supreme Court reported in AIR 1968 SC 956 , Ningawwa vs. Byrappa Shiddappa Hirekurabar supports the view taken by this Court. 17. The judgments cited by learned senior counsel are distinguishable on facts and in particular, Partap and another (supra), the question was as regards payment of fixed Court fee or ad velorem Court fee, looking to the nature of allegations made in the suit and, hence have no bearing to the controversy involved in this petition. There appears to be misplaced reliance thereon. 18. In view of the above, this Court is of the view that there is no illegality in the action of respondent/IOCL in rejecting the candidature of the petitioner for award of distributorship of LPG. The petition sans merit and is hereby dismissed. No order as to cost.