IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 30010 of 2009(U) --------------------------------------- PETITIONER(S): ----------------------- VARGHESE MATHEW, S/O.E.V. MATHEW AGED 47 YEARS, EMBASSERIL HOUSE, KURUPPAMPADY, PERUMBAVOOR, ERNAKULAM DIST. BY ADV. SMT.JEENA JOSEPH MR.G.D.PANICKER RESPONDENT(S): --------------------------- 1. HINDUSTAN PETROLEUM CORPORATION LTD., 17, JAMSHEDJI, TATA ROAD, MUMBAI, REP.BY GENERAL MANAGER. 2. THE REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., L.P.G. REGIONAL OFFICE, KANJIKODE, PALAKKAD. BY ADV. MR.E.K.NANDAKUMAR, SC, HPC, MR.A.K.JAYASANKAR NAMBIAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON 05/04/2010 DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30010 of 2009-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2010. JUDGMENT The disqualification of the petitioner from the 1st position in the empanelled list of LPG distributorship, selected by the public sector oil companies, is under challenge in this writ petition. 2. The petitioner submitted the application as per Ext.P1, for appointment as LPG Distributor of Hindustan Petroleum corporation Limited at Perumbavoor. What led to the disqualification is the declaration by the petitioner in the application against column 13B.1 that he is having a registered lease deed for the purpose of providing the LPG dealership. On field verification, it was found that it is an unregistered document and accordingly the same resulted in the petitioner becoming ineligible for grant of 10 marks as awardable on a document styled as a registered deed. Thus, it affected his empanelment as No.1 in the list. 3. The requirements in the general instructions to the applicants, contained in Ext.P1 application as items 13B.1 and 13B.2 show the following: wpc30010 /2009 2 “13B.1 xxxxxxxxxx Registered Sale Deed/Mutation/gift/lease (15 years minimum) agreement and government record etc. Date of agreement/mutation has to be before or on the date of application. Consent from the family member in form of affidavit is required. 13.B.2 xxxxxxxxxx Notarised Agreement to sale or lease (15 years minimum from the owner. Date of agreement has to be on or before the date of application. Proof of ownership etc.” 4. According to the petitioner, he fulfills condition No.13B.1 since he has been given on lease a show room for 16 years as per agreement dated 21.1.2008, whereas his application is dated 29.1.2008. Ext.P3 is the copy of the lease agreement. 5. The interview was on 25.4.2008, going by Ext.P4 call letter. Thereafter he was placed as first rank with the highest mark of 94.67, as evidenced by Ext.P5. It was thereafter the field survey was conducted, evidently. The petitioner, by Ext.P7, purchased the leased property also and he was waiting for issuance of the call letter. On coming to know that he is being kept out of the process of appointment, he filed W.P.(C) No.5350/2009 wherein, this Court directed the respondents to decide the matter finally, as per Ext.P8 judgment. By Ext.P9, the petitioner was wpc30010 /2009 3 informed that he stands disqualified. 6. In Ext.P9, the reasons attributed for disqualification show that he was given 10 marks against the column regarding eligibility for show room under own/leased category for minimum 15 years ( column 13B.1). After adverting to the declaration made by the petitioner in the application, in para 4 it is mentioned that during field verification it was found that the above land was not registered (either owned or leased) as on the date of application. It is therefore pointed out that his claim can be considered under column 13B.2 only as 'firm offer' for which the applicable marks is 7 and thus his total marks got reduced from 94.67 to 91.67. The total marks scored by the second empanelled candidate is 94 which is higher than that of the petitioner and therefore the petitioner stands disqualified from the top position in the list. This, in a nutshell, is the reason for his disqualification. 7. Learned counsel for the petitioner submitted that Ext.P9 is vitiated by various infirmities. It is contended that even going by column 13B.1, registration is required only in respect of a sale deed as the word “registered” only qualifies the words “sale deed” and not lease agreement. It is further pointed out that as the petitioner has purchased the land in question, the title is more clear and therefore the said aspect could have wpc30010 /2009 4 been considered. Lastly, it is contended by relying upon various decisions of the Apex Court and this Court that an unregistered lease deed can be relied on for collateral purposes. Herein, it will evidence the possession of the petitioner and therefore what is required for the purpose of grant of dealership is only possession of the property and therefore the action taken to disqualify the petitioner, cannot be supported. 8. Learned Standing Counsel for the respondents submitted that when the document in question is not a registered one, automatically column 13B.2 alone is attracted. Therefore, grant of 10 marks on the basis of the declaration in the application against column 13B.1 was found incorrect and the petitioner was found eligible only for seven marks on the basis of the unregistered lease agreement. It is further pointed out that the facts averred in the application are subject to local verification and the change herein was required in the light of the result of local verification. Therefore, it is submitted that there is no arbitrariness or vitiating factor as far as issuance of Ext.P9 is concerned. It is further pointed out that the subsequent purchase of the premises will not remove the said disqualification as what is relevant is the qualification as claimed in the application and any accrual of right subsequently to the petitioner cannot come to the rescue of the petitioner. wpc30010 /2009 5 9. It is clear that the petitioner was awarded 10 marks on the basis of the entries made in the application. At the time of field verification the petitioner was asked to produce the lease deed mentioned by him under column 13B.1 which is evident from para 7 of the statement filed on behalf of the respondents. At that time only it was revealed that it is an unregistered lease agreement. 10. What is specified in column 13B.1 is a registered lease agreement, which cannot be disputed. Any argument that the word registered qualifies only the word “sale deed” and not the word “lease” cannot be accepted at its face value. Therefore, what resulted in the reduction of the marks is only because of the non registration of the lease agreement. Therefore, the reduction of marks as such cannot be said to be vitiated by any arbitrariness or irregularities, as the award of marks are governed by the relevant guidelines. The only aspect to be considered is whether the plea raised by the petitioner that the unregistered lease agreement, cannot be refused to be counted for the purpose of para 13B.1. The following are the decisions relied upon by the petitioner: Maneklal v. H.J. Ginwalla & Sons (AIR (37) 1950 SC 1), Mst Kirpal Kuar v. Bachan Singh and others (AIR 1958 SC 199), Rana Vidya Bhushan wpc30010 /2009 6 Singh and another v. Shri Rati Ram {(1969) 1 SCWR 341), Anthony v. K.T. Ittoop and Sons and others (AIR 2000 SC 3523), K.B. Saha and Sons Private Limited v. Development Consultant Limited {(2008) 8 SCC 564} and Ananthan Nadar v. Lakshmanan (1980 KLT 231). 11. In the first of these decisions, viz. Maneklal's case (AIR (37) 1950 SC 1) it was held that an agreement of lease creating a present demise but not registered is admissible under Section 49 of the Registration Act as evidence of part performance. In Mst Kirpal Kuar's case (AIR 1958 SC 199), while considering the admissibility of a document under Section 49 of the Registration Act, it was held as follows: “The agreement between the parties cannot be admitted in evidence to show the nature of possession of one of the parties subsequent to its date. The party being in possession before the date of the document to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and therefore to give effect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by S.49 of the Registration Act.” In Anthony's case (AIR 2000 SC 3523), it was held that compulsory wpc30010 /2009 7 registration is not fatal to the creation of the lease. Their Lordships held as follows: “When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was in fact a lease otherwise than through such deed.” In Rana Vidya Bhushan Singh's case {(1969) 1 SCWR 341), it was held that an unregistered agreement of lease can be admitted as evidence of collateral facts or purposes like character of possession. It was held as follows: “A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.” In K.B. Saha's case {(2008) 8 SCC 564} also, the legal position was explained thus in para 34: “From the principles laid down in the various decisions of the Supreme Court and the High Courts, it is evident that: (i) a document required to be registered, if unregistered, is not admissible in evidence under Section 49 of the Registration Act, (ii) such an wpc30010 /2009 8 unregistered document can however be used as an evidence for collateral purpose as provided in Section 49 proviso of the Registration Act, (iii) a collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration, (iv) a collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards, and (v) if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” The decision in Ananthan Nadar's case (1980 KLT 231), actually concerned with Section 106 of the Kerala Land Reforms Act wherein the question considered was whether the unregistered lease deed is admissible to prove the relationship of landlord and tenant and on an interpretation of the object and purpose of Section 106 of the Act, it was held that the relationship of landlord and tenant can be proved in a case where a person claimed the benefit under Section 106 of the Act which does not satisfy the requirement of Section 107 of the T.P. Act. 12. Even though it is true that an unregistered agreement could be put in use for the purpose of proving the transaction for a collateral purpose, wpc30010 /2009 9 the question is whether the said principle will apply in the light of the specific requirements contained in the application. We are concerned with the case of selection to the distributorship of LPG. Various requirements are provided in the application itself. Column 13B.1 seeks an answer to the question – Do you have a suitable land in the location advertised for construction of showroom or showroom is readily available Owned/Leased (15 years minimum) in your own name or in the name of any member of your ‘Family Unit’. The petitioner has put tick mark against the column “yes”. It is accordingly he was awarded the ten marks for this qualification. Under the general instructions to the applicants for producing supporting documents, against column 13B.1 what is required is “Registered Sale Deed/Mutation/Gift lease (15 years minimum) agreement or government records, etc.” Against column 13B.2, what is required is “Notarised agreement to sale or lease (15 years minimum) from the owner.” There is clear distinction between column 13B.1 and 13B.2 with regard to the nature of the document. Therefore, the petitioner having given the answer as ‘yes’ against column 13B.1, he was bound to produce a registered lease agreement. What is produced herein is only an unregistered lease agreement. Therefore, the petitioner is automatically taken out of the benefit of column 13B.1 and what is applicable to him is column 13B.2, i.e. wpc30010 /2009 10 a “firm offer”. It is not a case where the unregistered lease agreement is completely eschewed from consideration. Only distinction is that registered and unregistered lease deeds are kept under different categories for awarding marks. Therefore, the principles relied on by the petitioner in various decisions pointed out above, cannot help him. 13. What is required to be analysed is whether the petitioner fulfills the criteria which was declared by him against column 13B.1. As the selection was based on the said criteria and when later it is found that the award of marks against the said column is incorrect after the facts were verified at the time of local inspection, the petitioner cannot turn round and plead for full 10 marks on the basis of the unregistered lease agreement. The petitioner is entitled for marks only in the category of unregistered agreement of lease or lease under column 13.B2. 14. The attempt now made by the petitioner to argue that the unregistered lease agreement can be used for collateral purposes, cannot therefore help the petitioner. Learned Standing Counsel for the respondents has rightly pointed out that the declaration made in the application is so crucial as the applicant is bound by the same and on subsequent verification if it is found that the facts stated in the application cannot tally with the true state of affairs, then the adverse effect of the same cannot be said to be wpc30010 /2009 11 wrongly applied. In fact, the declaration in the application is that: “on verification if it is found that the information given by the applicant is incorrect/false/misrepresented, then the candidature will stand cancelled.” He will be declared ineligible for LPG distributorship. He has also to declare that he is in possession of supporting documents in original for the information given by him in the application and if selected, failure to present those documents in original will result in cancellation of selection due to submission of false/unsupported information in documents. This is the crucial aspect as far as the petitioner herein is concerned. 15. Therefore, even the subsequent purchase of the building cannot help the petitioner to get out of the rigor of the declaration. The particulars ought to have been properly placed by him in the application. In this context, a decision of the Apex Court in Shiv Kant Yadav v. Indian Oil Corpn. and others {(2007) 4 SCC 410) relied upon by the learned Standing Counsel for the respondents is relevant. That was also for award of dealership by the IOC. It was held in para 16 that “in view of the undertaking that if any factual misstatement or declaration is made that permits cancellation of the allotment, the order of the High Court does not suffer from any infirmity to warrant interference.” In the light of the above wpc30010 /2009 12 legal position also, Ext.P9 order cannot be said to be illegal and hence the writ petition fails. The same is accordingly dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/