Case: Vilas Vs. Hindustan Petroleum Corporation Limited

may be allowed to be demonstrated by supplying its proof. But such a provision can not be used to bring on record the fact that eligibility norm not met with till the relevant date, has been subsequently satisfied. Thus, it is not an opportunity extended to acquire the eligibility after the relevant date. If arguments of the petitioners are accepted, the logic behind prescribing the last date will itself be frustrated & lead to uncertainty or arbitrariness.25. The judgment delivered by Honble Division Bench of Patna High Court in L.P.A. No.1159/2009, considers the error committed in affidavit by writ petitioner. Instead of word ....... (Court) in his affidavit, he mentioned the word ...... (Office) in his affidavit. He rectified the same and a fresh affidavit was filed in proper format before applications were considered for final selection. His application was not considered and he filed Writ Petition before learned Single Judge. The learned Single Judge held that the defence raised by Oil Company was hyper-technical. The Division Bench found that Oil Company, being State within meaning of Article 12 of the Constitution, was supposed to act fairly, reasonably and uniformly. To remain objective, it had to adhere to standards mentioned in the advertisement. As the application submitted by writ petitioner was not in conformity with said stipulation in advertisement, the Division Bench of Patna High Court found appeal preferred by Oil Company justified and its appeal came to be allowed.26. The Division Bench of this Court at Bombay, while deciding Writ Petition No.5020/2014, on 10th June 2014, considered a lease which was for a period of 15 years from 24th October 2013. Very same advertisement and very same clause has been looked into and the lease period was found short by 5 days for completing the period of 15 years. Though Clause 8.5 permitting deficiencies to be removed, has not been looked into, the contention of said petitioner at Bombay, that he was willing to extend the period of lease by 5 days, has been evaluated and negated. The Division Bench at Aurangabad, while deciding Writ Petition No.5223/2014 and three other matters, has considered same clause and requirement of 15 years with reference to last date of submission of application and rejected the petitions. on 29th September 2014, for the same reasons, four other Writ Petitions were dismissed in motion hearing. Though order dated 27th June 2014 does not make reference to Clause No.8.5 of the brochure, it takes note of the judgment delivered at Bombay in Writ Petition No.5020 of 2014. The later order dated 29th September 2014, mentions the Bombay order and also considers Clause 8.5. It appears that, at Aurangabad, Writ Petition No.4640/2014 was also dismissed on 11-6-2014.27. At Nagpur, Division Bench, on 10-10-2014, considered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application on 29-10-2013 or within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also included & extended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limited & another (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. The ground in relation to affidavit of land owner mentioned in communication dated 19th August 2014, forming subject matter of challenge in Writ Petition filed by Ramakant Magar can be dealt with first. Perusal of Clause No.6.1 of the guidelines for selection reveal that at page 7 of said book of guidelines, with reference to(vii) and (viii) of this Clause 6.1, there is a clarification. The first part of clarification points out the meaning of word own. Paragraph thereafter is regarding the land jointly owned by applicants. It states that if such land is jointly owned and share of land in the name of applicant meets the requirement of land including dimensions required, that land for godown / showroom also qualifies for examining eligibility as own land, subject to submission of no objection certificate in the form of a notarized affidavit from its other owners. The proforma of this notarized affidavit is given in Appendix IV. It specifically stipulates that all the joint owners / joint lessees of land except the applicant have to submit their individual affidavit. Thus, this affidavit is essential only when it is shown that land offered does not belong exclusively to Ramakant and some other persons also have interest in or title to it. PetitionerRamakant in his affidavit has pointed out this positionhis sole ownership. However, the same appears not to have been looked into. There is nothing on record to show that land offered by petitioner was not available exclusively to him and there are any joint holders. The rejection of his application on the said ground, therefore, is unsustainable.The opportunity to rectify deficiencies within specified period of time is contemplated in Clause 8.5. It is obvious, that deficiencies can come to light only after the envelope is opened. Envelope is to be submitted by an individual who fulfills the eligibility criteria. Thus, one who does not fulfill said criteria, cannot submit that envelope. The word deficiencies, therefore, will have to be understood as used in contrast with eligibility criteria. Not possessing any of eligibility criterion, therefore, cannot be allowed to be cured or amended by taking recourse to Clause 8.5.19. We have considered the judgment of the Honble Apex Court, in the case of Girnar Traders Vs. State of Maharashtraothers (supra), cited by the learned Senior Advocate, and perused paragraphs 55 and 56 therein. The Honble Larger Bench of Apex Court has considered the scheme of Section 127 of the Maharashtra RegionalTown Planning Act, 1966, stipulation of time within which notice for acquisition can be given and purpose of providing such time limit in the scheme of enactment. We are unable to connect said precedent with present facts.Here, the reference to point of time, in brochure has been noted by us supra. While prescribing eligibility criteria in relation to education qualification, age or disqualification being a member of a family, the requirement has beenwith date of application. While specifying ownership of a land, it has been connected to the last date for submission of application. This change in date for examination of eligibility is not argued to be either arbitrary or otherwise unsustainable before us. Similarly, when concept of "owning" is explained, the requirement is of lease agreement for minimum 15 years. This word minimum also becomes significant. Intention behind specifying two different dates while undertaking scrutiny or relevance of last date prescribed for submission of application emphasized by word "minimum" establish that duration of lease held as on last date is an essential condition.22. The requirement of having registered lease agreement for minimum 15 years has beento as on the last date for submission of application. Thus, having a registered lease agreement for minimum 15 years, is the qualification which individual must possess on the last date for submission of application i.e.in the present facts. Both the petitioners do not satisfy this. The brochure mandates having lease for minimum 15 years onand this is an eligibility condition. It cannot be viewed here, as a collateral orcondition. It is an essential term of the tender.23. Having a registered lease for minimum 15 years, as onitself implies that lease must be valid for 15 years next from the said last date. A person who has sometime in the past entered into a registered lease and obtained it for a period of 15 years from the date of execution thereof in his favour cannot contend that he has got a registered lease agreement for 15 years. Hypothetically, a person who has entered into a registered lease agreement, for a period of 15 years, on 31st October 1998, can legitimately urge that he has an agreement of 15 years of lease with him onMerely possessing an agreement is not sufficient to meet the eligibility norm as prescribed by Oil Company in the present matter. The stipulation along with its clarification makes it clear that lease agreement has to be for a duration of minimum 15 years next, and that period of 15 years has to be calculated after the last date i.e.Considering the purpose for which advertisement is issued and the nature of business for which petitioners aspire, it is abundantly clear that the minimum period of 15 years sought for by Oil Company cannot be said to be irrelevantunfair. The Oil Company is free to decide said period and terms and conditions of contract. Unless and until this selection of period is shown to be perverse or arbitrary, or with any oblique motive, the same cannot be judicially reviewed by this court. This unambigious stipulation in the advertisement / brochure document, therefore, needs to be honoured.At Nagpur, Division Bench, onconsidered a challenge in Writ Petition No.282 of 2014. That Division Bench found that the petitioner before it, should have furnished the document of title of members of his family unit or a lease deed for a period of 15 years in his name and hence, rejection of his offer by Oil Company was found correct. The Division Bench also looked into Clause 8.5 of the guidelines and held that only where there was any minor technical defect in the application, it could have been allowed to be corrected. Very same Bench has, a day earlier, i.e. on 9th October 2014, allowed about 21 Writ Petitions i.e. Writ Petition No.2812/2014 with connected matters. There the challenge as is being looked into by us, has been considered in the background of Clause 8.5. Oil Company had rejected the applications of those petitioners on the ground that though lease period was required to be of 15 years, as on last date of submission of application; in all cases, it was short by few days. The shortfall was between one day to 7 days. The Division Bench at Nagpur has noted that the petitioners before it had entered into lease deeds with the owners of the property for a period of 15 years, either on the last date of submission of application onor within a period of 7 days preceding the date of filing of the application. At page 22, the Division Bench has recorded its finding in the background of guidelines in force till year 2012. Old guidelines did not provide for submission of a lease deed for a period of 15 years from the last date for submission of application. It appears that the Oil Companies till then required only a lease deed for a period of 15 years. Said Division Bench then found that the stipulation in 2013 guidelines resulted in some confusion. It has mentioned that this confusion resulted in filing of petitions before various High Courts in the country.28. The parties before this Court have not pointed out the judgments delivered by other High Courts on said Clause. The Division Bench at Nagpur has mentioned some internal communications between offices of Oil Companies and looking to the confusion in the mind of office bearers of Oil Company, it felt that the petitioners needed to be given an opportunity to produce the correction deed by invoking Clause 8.5 of the guidelines of 2013. No such communications revealing any confusion are pointed out to us. The Division Bench was not required to consider whether deficiencies contemplated in Clause 8.5 also includedextended to the eligibility norms. The judgment of Honble Apex Court, in the case of Rashmi Metalinks Limitedanother (supra) was also not pressed into service before said Bench.29. In the light of arguments advanced before us, we find that the eligibility norm of having a registered lease deed for minimum 15 years, as on the last date for submission of application, cannot be construed as deficiency, and as it is essential term, an opportunity in terms of Clause 8.5 cannot be extended.30. In this situation, rejection of application of both the petitioners, on the ground that they have failed to satisfy eligibility norm, cannot be faulted with.