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2019 DIGILAW 1176 (GUJ)

Bijalben Manuji Vaghela v. Indian Oil Corporation

2019-12-20

A.J.SHASTRI, VIKRAM NATH

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JUDGMENT : A.J. SHASTRI, J. 1. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent is against the order dated 03.10.2019 passed by the learned Single Judge in the aforementioned petition. 2. The brief facts giving rise to the present appeal are that the appellant was selected for LPG Distributorship in the draw of lots conducted on 10.01.2019 which was held pursuant to the previous advertisement dated 13.11.2018. In response to the same, an application was submitted by the appellant with necessary details, along with Demand Draft dated 11.01.2019. It is the say of the appellant that along with an application, a registered lease deed has also been provided so as to ensure that adequate space is available for the purpose of godown, as well as shop. The said application was processed by the authorities, but the same could not find favour. The appellant has stated that a registered sale deed dated 16.08.2017 executed by the original owner namely Shri Mashrubhai Ranchhodbhai Makwana with respect to land bearing Survey No. 749 at Village Morthal, District : Surendranagar in favour of Shri Kumudchandra M. Dave and Shri Galabhai P. Damor. The lease deed was executed for a period of 17 years and in view of such situation, these two lessees i.e. Shri Kumudchandra M. Dave and Shri Galabhai P. Damor further executed lease with respect to land in question in favour of seven persons including father-in-law of the present appellant ­ petitioner who was named as Shri Naransinh Bhavansinh Chavada. The said lease deed was also registered. Though the requirement of the minimum lease period was fulfilled, according to the appellant, without any just reason, the authorities were not willing to consider the case. The appellant has clarified the situation by way of submitting further reply on 26.03.2019, but no reply was given by the authority. As a result of that, the appellant – petitioner requested the authority to consider the case. However, vide order dated 06.04.2018, request for grant of Distributorship came to be refused. 2.1 The appellant, therefore, had approached this Court by way of petition inter alia contending that the order in question is not only unjust and improper, but is also not in consonance with the relevant record which had been submitted. The appellant had submitted all these facts before the learned Single Judge. 2.1 The appellant, therefore, had approached this Court by way of petition inter alia contending that the order in question is not only unjust and improper, but is also not in consonance with the relevant record which had been submitted. The appellant had submitted all these facts before the learned Single Judge. The learned Single Judge vide order dated 03.10.2019 did not correctly consider the case of the appellant and dismissed the petition. As a result of this, the appellant left with no other alternative has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent before us. 3. Shri Prabhav Mehta, learned counsel appearing on behalf of the appellant has vehemently contended that the approach shown by the authority is too technical in nature. On the contrary, two lease deeds which were registered lease deeds have been provided and the lease tenure was also for a period of 17 years which was meeting the requirement of advertisement. As such there is clear illegality in the decision taken by the Authority and also the learned Single Judge. It has been vehemently contended that simplicitor typographical error which has reflected in subsequent lease deed has been given different dimension and the case of misrepresentation is wrongly made out. The learned Single Judge has not appreciated this mere typographical error. It has been further contended that the action on the part of the authority is not only unjust and arbitrary, but is a violation of the fundamental rights of the appellant and that being so, the learned Single Judge ought not to have passed the impugned order. Shri Mehta, learned counsel has further contended that the land was undisputedly leased out to the father-in-law of the appellant – petitioner along with other persons. The lease in the name of father-in-law is permitted and falling within the criteria laid down as one of the condition. That being so, when registered sale deed already was standing in the name of father-in-law of the appellant, there was hardly any justification for rejecting the claim of the appellant by the authority. Shri Mehta, learned counsel has further submitted that even in similar situation also, Oil companies stand have been examined by the Division Bench of this Court. That being so, when registered sale deed already was standing in the name of father-in-law of the appellant, there was hardly any justification for rejecting the claim of the appellant by the authority. Shri Mehta, learned counsel has further submitted that even in similar situation also, Oil companies stand have been examined by the Division Bench of this Court. In the said proceedings, the petitioner was allowed to offer even an alternative site land within a stipulated period, whereas, in the present case, no such chance was given to even offer alternative site. Shri Mehta, learned counsel has further submitted that it is settled position of law that a bona fide error is not to be given a narrow meaning as the same connotes various facets of non consideration of relevant facts. Consideration of any irrelevant fact would also constitute an illegality and here is the case in which some of the circumstances which has been brought before the learned Single Judge have not been appreciated. That being the position, the very failure to exercise jurisdiction by the learned Single Judge deserves to be corrected. Shri Mehta, learned counsel has vehemently contended that this is a clear example of arbitrary act on the part of the authority. Two registered lease deeds had been very much brought before the authority. However, in an arbitrary manner, the same have been not considered minutely which has led the appellant to approach this Court. 4. To meet with the stand taken by the learned counsel for the appellant, Shri Munjaal Bhatt, learned counsel appearing on behalf of Shri M.R. Bhatt & Co., representing respondent no. 1 has vehemently opposed the stand taken by the appellant. It has been contended that this is a clear example of misrepresentation before the authority, and in no circumstance, the case deserves consideration. It has been submitted that on the contrary original land owner has executed first lease in favour of two persons, as already named earlier, and those two persons have further executed lease deeds in favour of seven other persons, one of which Shri Naransinh Bhavansinh Chavada, who happened to be father­in­law and not a sole licensee. It has been submitted that on the contrary original land owner has executed first lease in favour of two persons, as already named earlier, and those two persons have further executed lease deeds in favour of seven other persons, one of which Shri Naransinh Bhavansinh Chavada, who happened to be father­in­law and not a sole licensee. It has been submitted further by drawing attention to the second lease deed reflecting on page 33, wherein, this lease deed has been executed by the aforesaid two licensees by projecting as if they are the owners and occupiers of the land in question. It is fortunate that the oil Company had an advantage to look at two registered sale deeds which have been submitted by the appellant, which would clearly establish that the subsequent lease is with a clear assertion that those two lessees were undisputedly not the owners, but have approached themselves as the owner and occupier of the land in question and in turn have executed lease in favour of seven persons with respect to this very land. Shri Bhatt, learned counsel has further submitted that even from the application form itself which has been submitted on­line, the relationship which has been mentioned in Column – 2 in para 4 and 5 of the application, there also, instead of father­in­law, the word father is written, which is also again an example of misrepresentation. However, be that as it may, apart from the said facts, the company found that the copies which have been submitted in which, original owner Shri Mashrubhai Ranchhodbhai Makwana is not there in the lease document as lessor. Resultantly, the Company as per the policy and norms has not granted the request of the appellant and a specific order is passed indicating reason as to why such request is not acceded and this fact has been well appreciated by the learned Single Judge. As a result of this, in absence of any material irregularity of any nature, there is hardly any case found in favour of the appellant. 4.1 Shri Bhatt, learned counsel has further submitted that there is a specific declaration form signed by the applicant. As a result of this, in absence of any material irregularity of any nature, there is hardly any case found in favour of the appellant. 4.1 Shri Bhatt, learned counsel has further submitted that there is a specific declaration form signed by the applicant. One of the clause clearly states that the moment any incorrect, false or misrepresentation is found by the Company, the candidature is liable to be cancelled along with forfeiture of amount deposited and thus, the term has been specifically accepted by the applicant by filling and signing the undertaking to that effect. It is in this circumstance, when the learned Single Judge also clearly found such record of the case, the appeal does not deserve to be entertained. Clear observations have been made by the learned Single Judge while dismissing the petition. Hence, no case is made out. 5. Having heard the learned counsel appearing for the respective parties and having gone through the material on record and the documents which have been brought to our notice, we find that two lease deeds have been executed and the second lease deed which has been executed reflects no name of Shri Mashrubhai Ranchhodbhai Makwana as the owner/lessor. Two persons who were merely lessees appear to have been mentioned as if they are the owners and occupiers of the land in question and have executed the lease in favour of seven persons. One of such seven persons happens to be father-in-law of the appellant. Further our drawn attention has been drawn to the contents of the application which had been submitted by the appellant in which also a clear declaratory clause is mentioned in Clause no. 6 along with an undertaking stated therein, which is undisputedly signed by the appellant. Not only there was irregularity reflecting in the last document itself, but there also appears to be incorrect information rendered in the form with respect to the relationship with the appellant with one of the lease holder. So a conjoint effect of these documentary material which has been projected before us, we find that no case is made out for interference with the discretion exercised by the learned Single Judge. So a conjoint effect of these documentary material which has been projected before us, we find that no case is made out for interference with the discretion exercised by the learned Single Judge. 5.1 We also again examined the stand of the appellant from the conduct and we put a specific query to the learned counsel representing the appellant as to whether if in subsequent lease allegedly typographical error is reflecting any step is taken to rectify immediately after noticing the same. The answer was in the negative and insistence is made that such was a mere typographical error and nothing beyond. We are not in a position to accept such lame excuse and apparently as on date, the papers which are brought before the learned Single Judge and before us, we see that subsequent lease deed is reflecting two lessees as the owner and occupier, who in turn have executed lease in favour of seven persons and we also see nowhere the name of the original lessor. So even if, the earlier lease provides an execution of sub lease, then also, at least these two lessees could not have projected themselves as the owners and occupiers of the land in question. The Company had examined those documents and found a case of misrepresentation, we see no reason to dislodge the conclusion arrived at by the learned Single Judge upon such appreciation of material. The learned Single Judge, according to our opinion, has committed no mistake in passing the order. Hence, the appeal deserves to be dismissed. 5.2 Additionally, while parting with this order, we have examined as to whether the decision which has been tried to be relied upon by learned counsel in the case Mineral Development Ltd., v. Union of India and Anr., reported in AIR 1960 SC 1373 . The said judgment does not apply as a straight­ jacket formula in view of the facts and background being quite different. Here, there is no question of construction of word lease’. On the contrary, here is the case of misrepresentation, which is apparently found by the respondent authority, examined by the learned Single Judge and apparently looking at the said subsequent lease also we are not in a position to take a different view from the aforesaid conclusion, as page 35 of the petition compilation reflects such circumstances eloquently. On the contrary, here is the case of misrepresentation, which is apparently found by the respondent authority, examined by the learned Single Judge and apparently looking at the said subsequent lease also we are not in a position to take a different view from the aforesaid conclusion, as page 35 of the petition compilation reflects such circumstances eloquently. That being the position, we are in complete agreement with the view taken by the learned Single Judge. 5.3 Additionally, we have also noticed that the original order is passed on 26.03.2019 and even after such order, seven days period was granted to offer alternative land and that is visible from the communication reflecting from page 16 of the petition compilation. Undisputedly, though seven days were granted, no such compliance was made by the appellant. On the contrary, the petition is filed only in the month of July, 2019 i.e. almost after a period of about four months. There is no justification or explanation given for the said delay. 6. Resultantly, the present appeal lacks merit and is accordingly dismissed. The connected civil application also stands disposed of.