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2017 DIGILAW 3853 (MAD)

T. Valli v. General Manager, Indian Oil Corporation Ltd.

2017-11-17

K.RAVICHANDRABAABU

body2017
JUDGMENT : 1. The petitioner is aggrieved against the notification issued by the 3rd respondent dated 06.04.2017 and consequently seeking for a direction to the respondents 1 to 3 to consider her written representation dated 12.04.2017 and grant a chance to rectify the fault in the lease deed dated 31.10.2014 under Document No.4719/2014. 2. The case of the petitioner is as follows: The respondents Company invited an application for awarding Indian Oil Corporation Retail Outlet dealership, through newspaper advertisement at various locations. The petitioner was interested in applying for the same at Harur to Theerthamalai Road (Mambadi) locating and thus, entered into a lease deed with the owners of the property in respect of a vacant land in S.No.38/1A2 of Mambadi Village measuring an extent of 25.25 sq.mts., on 31.10.2014 and got the same registered as Document No.4719/14 on the file of Sub-Registrar at Harur. Only after execution of the above lease deed, it was noticed that the land should be sub-leased to the respondent Company whereas the lease deed contained a clause that the petitioner should not sub-let the property to anybody. Hence, the petitioner approached the Registering Authority for the purpose of rectifying the lease deed, however, she was informed that the limitation for doing the same was already over. Therefore, the petitioner's lessors executed a notorised affidavit dated 15.11.2014 in favour of the petitioner that they were willing to sub-let the property to the respondents company. Accordingly, the petitioner filed the application on 18.11.2014 for KSK RO dealership of the respondent company along with prescribed fee and all necessary documents. The 3rd respondent, sent a letter on 17.08.2016 stating that the petitioner's application was accepted and the evaluation committee would be visiting the site for inspection on 07.09.2016. Accordingly, the Inspection was conducted on 07.09.2016. The petitioner received a letter from the 3rd respondent dated 11.10.2016 stating that her application has been qualified for draw of lot and that she should be personally present on 02.11.2016 at the 3rd respondent office. The petitioner participated in the draw of lots conducted on 02.11.2016, wherein she was selected for the retail outlet dealership and she was also issued with declaration of results on the same day. Thereafter, the lessors of the petitioner namely, the owners of the property came forward to sell the property to the petitioner herself which the petitioner readily agreed. The petitioner participated in the draw of lots conducted on 02.11.2016, wherein she was selected for the retail outlet dealership and she was also issued with declaration of results on the same day. Thereafter, the lessors of the petitioner namely, the owners of the property came forward to sell the property to the petitioner herself which the petitioner readily agreed. Hence, she addressed the 3rd respondent on 08.03.2017 seeking permission to purchase the land and then lease out the same to the respondent company. When the petitioner was awaiting the assent of the respondent company, she was issued with the impugned communication stating that her selection has been cancelled as it was observed by the Field Verification Committee that the sub-lease clause was not available in the lease deed submitted by the petitioner along with her application. The petitioner was also given 10 days time to make a representation, in case; she had any grievance on her cancellation. Accordingly, the petitioner sent a representation to the respondents 1 to 3 on 12.04.2017 but she did not receive any feed back. Therefore, the present writ petition is filed before this Court. 3. The respondent filed a common counter wherein it is stated as follows: The writ petition is not maintainable. The representation of the petitioner dated 06.04.2017 has been considered and rejected by the respondent Corporation on 09.05.2017. As per the broacher for selection, a candidate applying for dealership has to comply with the prime condition, i.e., offer a suitable land in his name or under long term lease or a firm offer for a land for purchase or a firm offer for long term lease and the same should be on the date of the affidavit filed in support of the application. In case of selection under SC/ST category, the Corporation provides Corpus Fund Scheme i.e., the offered land would be taken on lease or purchased and fully developed by the Corporation as Corporation owned site. In this case, the petitioner offered the land which she got through the lease under lease deed dated 31.10.2014 and the said lease deed should have contained a provision to sub-lease the land wherever the location falls under Corpus Fund Scheme. On initial scrutiny of the application of the petitioner, she was found eligible for selection. The lands offered by the candidate will be evaluated by the Land Evaluation Committee. On initial scrutiny of the application of the petitioner, she was found eligible for selection. The lands offered by the candidate will be evaluated by the Land Evaluation Committee. By letter dated 17.08.2016, the petitioner was informed that the Land Evaluation Committee will visit the site on 07.09.2016 for spot verification. On receipt of the report from the LEC, by letter dated 11.10.2016, the petitioner herein was called upon to attend for draw of lots, scheduled on 02.11.2016. The petitioner was selected in the draw of lots under the SC category. Pursuant to the selection, the field verification will be carried out for the selected candidate in respect of the details provided under the application form. During such field verification, it was found that the lease deed submitted by the petitioner does not contain the sub lease clause. Based on the findings of the field verification committee, candidature of the petitioner was cancelled and the same was intimated on 06.04.2017. The petitioner was given ten days time to make an appeal/ representation. She gave her representation dated 12.04.2017. While the representation was under consideration, the petitioner filed the above Writ Petition. In the meantime, the representation dated 12.04.2017 was considered by the Corporation and the same was rejected on 09.05.2017. The selection of the petitioner in the draw of lots will not make the petitioner automatically eligible for award of dealership, since the petitioner has to necessarily satisfy the other conditions before award of dealership. 4. Mr.AR.L.Sundresan, learned senior counsel appearing for the petitioner submitted as follows: The respondents have not construed the lease deed in a proper and perspective manner, as the entire reading of the recitals of the document would amply satisfy the requirements of the Corporation with regard to sublease. The very lease deed was executed specifically by stating that it was meant to establish the Petroleum outlet. However, a sentence referred to in the lease deed barring sub-lease is meant for doing the same to others and not to the respondent Corporation. The very lease deed was executed specifically by stating that it was meant to establish the Petroleum outlet. However, a sentence referred to in the lease deed barring sub-lease is meant for doing the same to others and not to the respondent Corporation. In any event, as the very owners of the property themselves have executed another document namely, the notorised affidavit expressing and reiterating their willingness to sublease the property once again with the specific terms which was followed by the subsequent development namely, the purchase of the property itself by the petitioner herself on 08.06.2017, there cannot be any impediment for the respondents to award the dealership to the petitioner, as admittedly, she was selected in the draw of lot. Learned senior counsel relied on an unreported decision of this Court made in W.P.No.38245/2016 dated 10.07.2016 to contend that the respondent Corporation in another case has considered the alternative land provided by the candidate therein even after the submission of the application. 5. Per contra, the learned counsel for the respondents submitted as follows: As per the selection guidelines issued by the respondent Corporation, the lease agreement should contain a specific clause for sublease especially, when the petitioner comes under the category of Corpus Fund Scheme which falls under Group-I category. The subject matter, lease deed does not contain a clause to sublease the property. Mere selection by draw of lots will not confer the right on the petitioner to award the dealership, since she failed to satisfy the mandatory requirements as stated supra. In support of the above contention the learned counsel relied on 2012(5) CTC 577 (Indian Oil Corporation vs. J. Ranjith) of the Supreme Court of India made in Civil Appeal No.6928-6929/2015 dated 08.09.2015. 6. Heard both sides and perused the materials placed on record. 7. The point for consideration in this writ petition is as to whether the cancellation of the selection of the petitioner's candidature is just and proper, based on the reasons set out in the impugned communication, namely, that the lease deed does not contain the clause for sub-lease. 6. Heard both sides and perused the materials placed on record. 7. The point for consideration in this writ petition is as to whether the cancellation of the selection of the petitioner's candidature is just and proper, based on the reasons set out in the impugned communication, namely, that the lease deed does not contain the clause for sub-lease. Therefore, the only question that is to be considered and decided in this case is as to whether the lease deed, as submitted by the petitioner, dated 31.10.2014 is not having a clause for sub leasing the property in favour of the respondent Corporation and whether such lease deed, as such disable the Corporation to act further to award the dealership to the petitioner. In order to answer the above questions, it is better to consider and appreciate the recitals of the lease deed in its entirety to gather the intention of the parties to such document. For immediate reference, the said lease deed is extracted hereunder. “TAMIL” (emphasis supplied) 8. A careful perusal of the entire recitals of the said lease deed would only lead to an irrebutable conclusion that the contention of the respondent Corporation is not justifiable and liable to be rejected for the following reasons. (a) The lease deed was for a period of 20 years with specific reference permitting the lessee to put up construction, compound wall, seek for electricity service connection, water service connection, facilitating the vehicles to have access to the property. Thus, it is evident that the lessors are aware that the property let out to the petitioner is for the purpose of running the petrol bunk. (b) To put it more clearly and precisely, the lease deed further proceeded to recite that the petitioner is entitled to get no objection certificate and other license for running the Petrol and Diesel Bunk Retail Sales & Agro Products. (c) Apart from generally stating the purpose as stated supra, the lessors have specifically consented for the respondent Corporation to have access to the property by making the improvement therein for the purpose of running the dealership. At the risk of repetition, the said clause is extracted hereunder. “TAMIL” 9. Therefore, the above specific recitals of the lease deed would undoubtedly show that the lessors have consented for subletting the property to the respondent Corporation. At the risk of repetition, the said clause is extracted hereunder. “TAMIL” 9. Therefore, the above specific recitals of the lease deed would undoubtedly show that the lessors have consented for subletting the property to the respondent Corporation. In other words, when the intention of the lessors are very clear, there cannot be any impediment for the respondent Corporation to act further based on the above said lease deed, that too, after having selected the petitioner in the draw of lot. 10. No doubt, a single line recital in the very same lease deed is pointed out by the learned counsel for the respondent Corporation to contend that apart from not having a specific clause for subletting the property, the lessors have also specifically barred the petitioner from subletting the property to any other persons. The said sentence reads as follows: “TAMIL” 11. Before answering the above contention of the learned counsel for the respondents, it is better to understand the array of the parties to the document. The party Nos. 1 to 4 are the lessors and the party No.5 to the said document is the lessee namely, the petitioner herein. Thus, the above recital bars the petitioner and others (“TAMIL”) from subletting the property. To put it more clearly, the bar was not on the petitioner to sublet the property to others in toto and on the other hand, the bar is against the petitioner as well as the "others", which, in this case, can be reasonably inferred to mean only "the Corporation" from subletting the property to any other person. If really the intention of the lessors is not to allow the petitioner from subletting the property, the incorporation of the word “TAMIL” has no meaning at all and hence, it ought not to have been recited. One can understand without any ambiquity if the recital proceeds as; “TAMIL” If it has been recited so, then there will be a clear bar of sublease. But the recital is otherwise as extracted supra. Certainly, there is a clear cut difference between the words “TAMIL” and “TAMIL”. Therefore, it is evident that the lessors are fully aware that the respondent Corporation is having role as the sublessee and such awareness and knowledge are explicitly disclosed in so many words in the other part of the document. But the recital is otherwise as extracted supra. Certainly, there is a clear cut difference between the words “TAMIL” and “TAMIL”. Therefore, it is evident that the lessors are fully aware that the respondent Corporation is having role as the sublessee and such awareness and knowledge are explicitly disclosed in so many words in the other part of the document. Thus, the above expression only will lead to an irrebutable conclusion that the lessors had in fact agreed to sublet the property for respondent Corporation. 12. In any event, the lessors themselves have further clarified such position by way of a notorised affidavit dated 06.11.2014, specifically stating that the petitioner shall have the right to sub-let the said property to the Indian Oil Corporation Limited. In my considered view, when the very lease deed itself is sufficient for the respondent Corporation to act and award the dealership to the petitioner, there is no necessity for executing the above said notorised affidavit as well. However, as the said affidavit was also executed and filed before the respondent by way of abundant caution, that too, well before intimating the petitioner on 17.08.2016 that her application was accepted followed by selecting the petitioner on 02.11.2016 by draw of lots, the respondents are not justified in cancelling the selection by passing the impugned order later on 06.03.2017. 13. It is stated that the objection/representation filed by the petitioner made after the impugned order of rejection was subsequently considered and rejected by passing an order on 09.05.2017. Therefore, it is sought to be contended that the petitioner has to challenge the said order. I do not think that the said contention of learned counsel for the respondents can be appreciated as this Court has found that the very cancellation order itself is bad in law and on facts and thus, liable to be set aside. 14. The learned counsel for the respondent Corporation invited various provisions in the guidelines to contend that the offered lease should have a provision to sublet. As my above discussions and findings are to the effect that the lease deed, as such, itself would certainly satisfy the requirement of the respondent Corporation, I do not find any of the rules referred by the learned counsel for the respondent Corporation is violated. As my above discussions and findings are to the effect that the lease deed, as such, itself would certainly satisfy the requirement of the respondent Corporation, I do not find any of the rules referred by the learned counsel for the respondent Corporation is violated. No doubt, the petitioner, by way of abundant caution sought to rectify the lease deed and thus, filed the present writ petition. In my considered view, no such action is needed at all as I am fully satisfied that the respondents can act based on the very lease deed itself. The subsequent development in this case, after the execution of lease deed is that the petitioner herself has purchased the property on 08.06.2017. True such purchase was made only after the cut off date for submitting the application. When the lease deed enclosed with the application itself is sufficient and found as the one satisfying the requirement, the respondent Corporation can certainly act on such lease deed itself and grant dealership to the petitioner. In fact, their interest is further protected and strengthened strongly by the very purchase of the property by the petitioner herself, who is also ready and willing to execute the sub-lease in favour of the Corporation. 15. The Division Bench decision relied on by the respondent Corporation reported in 2012(5) CTC 577 (Indian Oil Corporation vs. J. Ranjith) does not apply to the facts and circumstances of the present case as it is in respect of an issue where an alternative site offered by the applicant therein was rejected and such rejection was upheld by the Division Bench holding that if any such indulgence is shown to such an applicant, the same should also be given to other candidates. The facts of the case on hand are totally different, as admittedly, the petitioner is not providing an alternative site as against the site already shown by her. Therefore, the said decision is not applicable to the facts and circumstances of the present case. 16. The facts of the case on hand are totally different, as admittedly, the petitioner is not providing an alternative site as against the site already shown by her. Therefore, the said decision is not applicable to the facts and circumstances of the present case. 16. The other unreported decision of the Apex Court made in No.6928-6929/2015 dated 08.09.2015 relied by the respondents' counsel is also not applicable to the facts and circumstances of the present case as the Apex Court therein has pointed out that the notorised document was formalised into the lease deed only on subsequent date i.e., 20.12.2012 and therefore, the applicant therein was not eligible on the date of the application namely 13.09.2011. In this case, admittedly the petitioner enclosed the lease deed along with her application which is a registered document and when this Court finds that the said document itself is sufficient, the above decision of the Apex Court is not helping the respondents in any manner. In fact in another case cited by the learned senior counsel for the petitioner in W.P.No.38245/2016 dated 10.07.2017, the alternative land offered by the applicant therein before this Court was agreed to be considered by the very same respondent Corporation. 17. It is well settled that the construction of a document is to be done and the intention of the parties to the said document has to be gathered not by reading a sentence or two in isolation and on the other hand, it should be done only by reading the entire document as a whole. Otherwise, if a sentence inadvertently written without having the actual intention, is taken to mean as if it conveys the intention, it would certainly defeat the actual intention of the parties, which otherwise could be gathered by reading the entire recitals of the document as a whole. 18. A clause generally or casually incorporated in a particular type of document will certainly hold the field only in the absence of any other specific contra clause stipulated therein with clarity and without any ambiguity. 18. A clause generally or casually incorporated in a particular type of document will certainly hold the field only in the absence of any other specific contra clause stipulated therein with clarity and without any ambiguity. In other words, in a given case, if both the clauses are present in one document, the specific clause expressly indicating the mind of the parties to the document will prevail over such general or casual clause and expose itself as the actual and real intention of the parties to the document, even though the said general clause and the said specific clause are contradicting with each other in respect of the purported intention of the parties to the document. 19. The intention of the lessor to the document in this case, is evident and apparent on the reading of the whole of the document. Moreover, their execution of further notorised affidavit also explicitly spelt out such intention of sublease in clear and categorical terms. 20. In this connection, it is useful to refer to the following decisions of the Honourable Apex Court. (i) In 2004(2) SCC 504 (Devaru Ganapathi Bhat v. Prabhakar Ganapathi Bhat), it has been observed as follows: "The rule of construction is well settled that the intention of the executor of a document is to be ascertained after considering all the words in their ordinary natural sense. The document is required to be read as a whole to ascertain the intention of the executant. It is also necessary to take into account the circumstances under which any particular words may have been used." (ii) In 2007(1) SCC 571 (CIT v. Hoogly Mills Co. Ltd.), the same view has been reiterated that an agreement has to be read as a whole. (iii) In AIR 1951 SC 103 (Gnambal Ammal v. Raju Ayyar) it has been observed at paragraph No.10 as follows: 10. The cardinal maxim to be observed by courts in constructing a will is to endeavour to ascertain the intentions of the testator. This intentions has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. This intentions has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In constructing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarthy [42 I.A. 51 at p. 70], "the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The court is entitled to put itself into the testator's armchair'..... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions..... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life." 21. Considering all these aspects, I find that the impugned order cannot be sustained and accordingly, the same is liable to be set aside. Thus, the writ petition is allowed and the impugned order is set aside. The respondents are directed to award the dealership to the petitioner by following the other due procedures. Such exercise shall be done by the respondents within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.