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Heenaben Nagarsinh Palas v/s Bharat Petroleum Corporation Limited & Others


Company & Directors' Information:- BHARAT PETROLEUM CORPORATION LIMITED [Active] CIN = L23220MH1952GOI008931

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- BHARAT CORPORATION PVT LTD [Strike Off] CIN = U74999CH1946PTC001103

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

    R/Special Civil Application No. 12986 of 2014

    Decided On, 13 September 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE ALPESH Y. KOGJE

    For the Appellant: Prabhav A. Mehta, Advocate. For the Respondents: Mitul K. Shelat, Advocate.



Judgment Text


1. RULE. Learned Advocate Mr. Mitul Shelat waives service of Rule on behalf of the respondents.

2. This petition under Article 226 of the Constitution of India is filed challenging the decision of the respondent-Oil Company dated 08.08.2014, by which the petitioner was treated as ineligible for LPG distributorship.

3. Learned Advocate for the petitioner submitted that in response to the advertisement for LPG distributorship at Dahod in the category of Scheduled Tribe, the petitioner was the sole applicant. It is submitted that on the basis of dimension of godown and showroom, the petitioner was treated as ineligible. It is submitted that the petitioner does meet with the requirements of dimension of both the godown as well as showroom, but under created ground, with malafide intention, the petitioner is treated as ineligible. It is submitted that insofar as the area for the showroom is concerned, the petitioner had submitted necessary documents in the form of lease for long period. However, by mistake or typographical error, the dimension of the area offered was mentioned in terms of feet in place of meters, though the petitioner was actually having under the lease area much more than the required. It is submitted that the typographical error was sought to be overcome by submitting corrigendum to the lease deed, where correct dimension and the unit of measurement was mentioned. Despite this, creating an artificial ineligibility and not carrying out the Field Verification Credentials (FVC) in its right spirit, the decision is taken.

3.1. If is further submitted that another ground for treating the petitioner ineligible is dimension of the plot of land available for the purpose of godown. The place offered for godown was of joint ownership with the sister of the petitioner and to purposefully disqualify the petitioner, without giving an opportunity, the officer of the respondent-Oil Company divided entire plot of land offered for godown into half as if the two sisters are the joint owners to the extent of 1/5 of the portion. It is submitted that the petitioner ought to have been given an opportunity to explain the fact situation and convince the respondent-Oil Company that the plots of land offered for both godown and showroom are sufficient and as per the requirements in the advertisement.

3.2. Learned Advocate for the petitioner lastly submitted that against the advertisement for the place in question, the petitioner is the only applicant and therefore also, the petitioner should have been given an opportunity to explain.

4. As against this, learned Advocate for the respondent-Oil Company submitted that the requirements as prescribed under the advertisement are in consultation with the Petroleum and Explosive Safety Organization for storage capacity of LPG cylinders and therefore, specific dimensions mentioned in the advertisement assume importance from safety point of view and cannot be compromised.

4.1. It is submitted that the applicant is required to give full and correct information in the application and the respondent-Oil Company has to consider information as given in the application and on its own cannot deviate. It is submitted that FVC carried out indicated measurement as given in the lease agreement which was mentioned as 30 ft. X 34 ft. against the requirement of 25 mtrs. X 30 mtrs. Therefore, as the dimension of the plot offered by the petitioner was not matching with the requirement of the respondent-Oil Company and also not as per the requirements mentioned in the advertisement, the decision of the Oil Company was justified.

4.2. It is submitted that the petitioner was not meeting with the eligibility criteria in terms of the measurement and dimension of the plot offered for godown as well as showroom, which is as under:-

a) As per the eligibility criteria, an applicant should have a plot of land having minimum dimension of 25 M X 30 M for construction of LPG Godown for storage of 8000 kg of LPG in cylinders. Whereas the land offered for LPG Godown by the petitioner is 30 ft. X 34 ft. i.e. around 1050 sq. ft.

b) The applicant should own a suitable shop of minimum size 3 M (Length) X 4.5 M (Breadth) in dimension. The petitioner offered a readily built showroom at survey no. 5581, the area of showroom available with the petitioner is 2.88 X 4.74 M which is not matching with the minimum requirement (length X breadth (as per the advertisement and guidelines."

4.3. It is submitted that the respondent-Oil Company has relied upon the averments made in the affidavit in sur-rejoinder with regard to FVC and it is stated that in the letter dated 09.04.2014, it is specifically stated that the details furnished by the petitioner in her application were physically verified by the nominated FVC committee. It is also stated that as per the PSU Oil Marketing Company's Manual for Selection of Regular LPG Distributors, the dimensions required for godown are stated as 25 M X 30 M. It is submitted that in the application submitted by the petitioner, the petitioner had mentioned the size of the land for construction of godown as 25 M X 30 M. It is submitted that the land offered by the petitioner was a piece of land which was obtained under 20 year long lease and the FVC observed that as per the Lease Agreement, the size of the land was 30 ft. X 35 ft. i.e. 1050 sq. ft. only, which is much less than the required size of land (25 mts X 30 mts) The FVC committee also measured the land as per the size of the land mentioned in the Lease Agreement and the same was found to be 30 ft. X 35 ft. only. The said Lease Deed is a registered document and the stamp duty paid for the same is only Rs. 750/-, which clearly proves that the size of the land is less than the required size of land.

5. Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner was selected for the purpose of award of LPG distributorship for District Dahod in the Scheduled Tribe category. From the pleadings, it appears that for the area, the respondent-Oil Company had received 26 application forms for Dahod distributorship. From the contents of the application forms, it was found that the petitioner was the only eligible candidate and therefore, declared as successful. The petitioner vide letter dated 20.03.2014 was communicated about this and directed to pay deposit for an amount of Rs. 25,000/-, i.e. 10% of applicable security deposit before the FVC.

6. It appears that after FVC, discrepancy was found to the effect that the plots of land which were offered by the petitioner for putting up godown and showroom were not matching with the dimensions which were prescribed under the advertisement and therefore, by communication dated 08.08.2014 (impugned), the petitioner was declared and treated as ineligible. The amount of 10% applicable security deposit was forfeited. The impugned communication mentioned as under:-

"As per the eligibility criteria (Clause no. 9.1.(vii) of PSU manual) an applicant should have 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 godown. If Land offered is not meeting the minimum dimensions of 25 M X 30 M, it will not be considered.

However, you have offered the land for LPG godown at Block/Survey No 150/paiki 5/paiki 2, Dahod under 20 years' long lease. As per the lease agreement, size of land offered for LPG godown is 30 ft. X 34 ft. i.e. 1050 Sq. Ft. only which is much less than our required size of land (25 meters X 30 meters). Hence, the land offered for construction of godown does not meet the eligibility criteria.

As per PSU Oil Marketing company's manual for selection of Regular LPG Distributors, as per clause no 9.1 (vii), an applicant should own a suitable shop of minimum size 3 meter by 4.5 meter in dimension or a plot of land for construction of shop of minimum size 3 meter by 4.5 meter at the advertised location or locality as specified in the advertisement. It is also clarified in the manual that "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 (s) 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 no objection from other owner (s).

However, the showroom offered by you during Field Verification Credential (FVC) it is found that the showroom is of size 4.75 Mtr X 2.88 mtr. Hence, the showroom offered does not meet the eligibility criteria."

7. The first objection was with regard to godown, where the lease agreement in support of the application was for Block/Survey No 150/paiki 5/paiki 2, Dahod under 20 years' long lease. However, the dimension mentioned therein was 30 ft. X 34 ft. as against requirement of 20 mtrs. X 30 mtrs. The case of the petitioner is that measuring unit of feet mentioned in the lease deed was a typographical error. What was conveyed under the lease deed was actually 30 mtrs. X 34.4 mtrs. and the petitioner, upon realization of such mistake, has came out with corrigendum to the lease agreement dated 24.08.2014, which goes on to indicate that the actual measurement of the plot offered by the petitioner was 30 mtrs. X 34.466 mtrs. (see Annexure-III). The Court is therefore inclined to accept that so far as godown is concerned, the offer made by the petitioner for Block/Survey No 150/paiki 5/paiki 2 admeasuring 30 mtrs. X 34.466 mtrs. meets with the eligibility criteria and therefore, cannot be treated to be a parameter for declaring the petitioner as ineligible.

8. The case of the respondent-Oil Company is that such corrigendum is subsequent to the advertisement by the Oil Company treating her to be ineligible need not be considered as the policy of the Oil Company itself in relaxing the guidelines in case of successful selected candidate to make offer of alternative land in case FVC finds that the land mentioned in the application to be non-suitable. The other ground for treating the petitioner ineligible is pertaining to plot of land for construction of showroom of minimum size of 3 mtrs. X 4.5 mtrs., against which what was offered by the petitioner as found during FVC is plot admeasuring 4.75 mtrs. X 2.88 mtrs. It is pertinent to observe here that what was offered by the petitioner for the shop was readily built showroom at survey N. 5581, Shop No. 1, Maruti Complex, Dahod, which was running in the name of the petitioner and her sister Vaibhaviben Palas. The total dimension of the land was 9.5 mtrs. X 2.88 mtrs. The respondent-Oil Company considered it to be a joint ownership between petitioner and her sister, who was not treated as 'family unit' and divided total area of the plot into two, thereby concluding that the share of the petitioner is half of 9.5 mtrs. X 2.88 mtrs., which comes to 4.75 mtrs. X 2.88 mtrs. The respondent-Oil Company has proceeded on the footing that firstly the sister does not fall in the definition of 'family unit' as contemplated in the definition under the guidelines for selection of regular LPG distributorship and that the petitioner is owner of only half of the portion of such joint ownership. In absence of any document to the effect of ownership to the extent of 50% of the plot and in absence of any opportunity to the petitioner to give explanation to that effect, the Oil Company ought not to have arrive at such a conclusion. With reference to Clauses-7 and 8 of the guidelines, the word "own" is to mean in case of land jointly owned by the applicant/member of the family unit with any other person and the share and the land in the name of the applicant/member of the family unit should meet requirement of land including dimensions required then that land for showroom would qualify for eligibility as own land, subject to submission of no objection certificate in the form of notarized affidavit from other owner. In the opinion of this Court, this part does not appear to have been brought to the notice of the petitioner and there is nothing in the

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guidelines to indicate that it is open for the Oil Company to straightaway decide share of the petitioner in jointly owned land by dividing the land into number of joint owners. In a given case, the extent of ownership between the two or more joint holders may vary from proportionate share amongst joint holders. Therefore, in the instant case also, an opportunity ought to have been given to the petitioner to brought her extent of share in the joint holding and the NOC in form of notarized affidavit from other joint holder. 9. The Court is persuaded to accept stand of the petitioner on an important and relevant aspect that the petitioner is the only eligible candidate and there is no other eligible candidate amongst those who had applied for the said distributorship. This aspect is verified upon instructions by the learned Advocate for the respondent-Oil Company. Therefore, to avoid any further delay in entering into another exercise of re-advertisement, it would be appropriate to direct the respondent-Oil Company to consider the case of the petitioner in light of the observations made by this Court hereinabove and from the stage subsequent to communication dated 20.03.2014 by the respondent-Oil Company to the petitioner. 10. The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. No order as to costs.
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