Khushwinder Singh Sidhu v. Bhatat Petroleum Corporation Ltd.(Bpcl) And Others
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"" He also supported the contentions raised by the learned counsel for the Corporation by submitting that the case of respondent No.3 was falling in Sr. No.1 and not in Sr. No.3 of Sub clause (j) of Clause 4(v) and there was no requirement of giving any kind of consent from the other co-owners in the facts and circumstances of the present case. He submitted that so far as the present land which is subject matter of the second LOI is concerned, the same was purchased by the grand-father of respondent No.3 in 1978 with specific boundaries and the area and therefore, there was no requirement of giving any form in the nature of Appendix III A and also since the land falls within the Municipal limits, the jamabandi as relied upon by the learned counsel for the petitioner loses its significance.
He further submitted that the entire area is fully constructed as is evident from the site plan and the photographs ( attached as Annexure R3/4 to R3/6.
been issued by the Department of Town and Country Planning and NOC has been issued by all the concerned departments. He further submitted that the site plan was also sanctioned by the Municipal Corporation and the Deputy Commissioner for the purpose of construction. Learned Senior Counsel further submitted that the petitioner has no locus standi to file the present case because of two reasons. Firstly, he had applied in Group-3 whereas first of all, the draw of lots has to be conducted for Group-1 of which respondent No.3 was successful and therefore the petitioner has got no locus standi to challenge the same because he does not fall in the category of Group-1 and secondly, sister-inlaw (Bhabhi) of the petitioner had filed a civil suit for injunction against respondent No.
3 and no interim order was passed in favour of the aforesaid sister-in-law of the petitioner by the Civil Court and thereafter the present petition has been filed. He further submitted that the argument raised by the learned counsel for the petitioner that the undertaking given by respondent No.3 was false, is also incorrect in view of the fact that as per the brochure even lease holder is also deemed to be an owner and therefore it cannot be said to be a false undertaking given by respondent No.3. He further referred to the judgement of this Court in Ude Singh and others Versus Ram Chander [RSA No.643 of 1980,, decided on 27.02.2008] to contend that when the land is constructed, then the jamabandi will not apply. I have heard learned counsel for the parties.
Taking up the preliminary objection raised by the learned Senior Counsel for respondent No.
) prescribed that first of all the draw of lots is to be held from candidates amongst Group-1 and in default of the same, it goes to Group-2 and then ultimately from amongst Group-1 and 2, who are not eligible, it is put in a common pool alongwith Group-3 and thereafter the entire process starts again. As per Annexure P-6, there were 14 candidates for Group-1 and 2 candidates for Group-3 but no candidate for Group-2. In case respondent No.3 is found to be not eligible then remaining 13 candidates of Group-2 are to be considered and in case the remaining 13 candidates are also by way of following the process not found to be eligible, then ultimately the entire pool is made common alongwith Group-3 which comprises the petitioner as well. In other words, there is a process of elimination by which it leads till the end upto Group-3.
Therefore, at this stage, it cannot be said that in case respondent No.3 is found to be not eligible, then it will go to anybody else in Group-1 because the candidates of Group-1 are again to be considered on their own merits and thereafter ultimately the petitioner may fall within the zone of consideration as per the selection procedure given in the brochure. Since the petitioner at this stage cannot be excluded from the overall zone of consideration even abiding by the steps which are to be followed, he does fall within the zone of consideration for the purposes of maintaining the present petition and therefore it is held that the petitioner does have locus standi to file the present petition.
So far as second objection that a civil suit was filed by sister-in-law of petitioner is concerned, the same is also not sustainable because the present petitioner was not a party to suit. Now coming on the merits of this case, respondent No.3 was earlier granted LOI vide Annexure P-7 pertaining to a piece of land of which respondent No.
of Appendix III A was violated but on the same day, respondent No.3 had offered an alternative piece of land and on that piece of land, the second LOI Annexure P-8 was issued by the respondent-Corporation. In the second LOI the land has been defined and the learned counsel for the petitioner has referred to a jamabandi to show that the entire land which has been mentioned was owned by about 50 co-owners and therefore e had relied upon Sub clause (j) of Clause 4(v) that the case of respondent No.3 falls at Sr. No.3 and in that eventuality Appendix III A was required to be given by all the co-owners for the purposes of giving 'No Objection Certificate' since the entire land was owned by various co-owners.
During the course of arguments, a specific query was raised to both the learned counsel for the Corporation and the learned Senior Counsel for respondent No.3 as to whether there are large number of co-owners of the entire land or not, to which they replied that it is correct that there are large number of co-owners pertaining to the entire land. However, they raised an argument that so far as the plot on which the Petrol Pump is to be set up, the same is owned by respondent No.3 only being within Municipal limits, and therefore, there was no requirement of getting 'No Objection' from the co-owners by filing affidavits on stamp paper by way of Appendix III A.
A perusal of the aforesaid provision of brochure would show that whenever the land where the Petrol Pump is to be set up is owned by various co-owners, then Appendix III A has to be appended.
6 purchased by grand-father of respondent No.3. A perusal of the aforesaid brochure would show that such kind of eventuality is neither foreseen nor so specifically incorporated in the aforesaid terms and conditions of the brochure. On the one hand, learned counsel for the petitioner states that the land would fall in the category of Sr. No.3 of Sub clause (j) of Clause 4(v) for which the consent of the co-owners is required in the form of an affidavit and on the other hand, learned counsel for the respondents including the Corporation states that the land falls in the category of Sr. No.1 for which no such document is required. However, a perusal of Sr.No.
1 of Sub clause (j) of Clause 4(v) would show that in the second column it is so stated that it will apply only when the share of the applicant of land is full whereas in the present case, the meaning of 'share' has not been defined anywhere in the brochure and therefore the aforesaid Sub clause (j) of Clause 4(v) appears to be totally unclear and ambiguous. In other words, there is no order passed by any authority in this regard after due application of mind as to whether the aforesaid condition of getting 'No Objection Certificate' from the other coowners was required or not in the peculiar facts and circumstances of the present case where the land has now become a municipal land but it is owned by large number of co-owners.
1 "" )"" # , which are peculiar in nature, this Court is of the view that the respondentCorporation has to apply its mind afresh. In case, the requirement of 'No Objection Certificate' from the co-owners was required and it has not been fulfilled then respondent No.3 would not be entitled for the same but in case, the Corporation after application of mind takes a conscious decision that there is no requirement in the facts and circumstances, then certainly respondent No.3 will have a right to get the allotment.
; Consequently, the present petition is partly allowed. The allotment LOI Annexure P-8 is hereby set aside and quashed. The Executive Director, Retail shall now consider the entire case in a fresh perspective in the light of the aforesaid discussion and after hearing both petitioner and respondent No.3 and shall pass a well-reasoned speaking order with regard to the aforesaid entitlement of respondent No.3 and also as to whether in the facts and circumstances of the present case there was any requirement of getting 'No Objection Certificate' from the coowners in the form of Appendix III A or not. Let the exercise be completed within a period of three months from today after hearing both petitioner and respondent No.3. In case, respondent No.3 is found to be entitled, then a fresh LOI shall be issued to him and in case he is not found to be entitled, then fresh process shall be started qua all the remaining candidates including the petitioner and in accordance with the procedure prescribed in the brochure.
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