In The Matter Of: Soma Saha vs Indian Oil Corporation & Ors.

Petitioner is a candidate for being appointed as LPG distributor under a specific scheme. Mr. Bandyopadhyay, learned senior advocate appears on behalf of petitioner and on 12th October, 2018 had submitted, requirement is capacity to store 8,000 KG LPG in constructed godown. Godown land offered must have nexus with this requirement for storage. From map annexed to supplementary affidavit filed with leave, he had submitted, area of land offered is in excess of 25x30 meters, the plot not being rectangular. Thus, it is apparent that godown constructed thereon will have a maximum of 8500 KG LPG. He relied on order dated 27th April, 2015 in WP 7741 (W) of 2015 (Palash Ray vs. Union of India & Ors.) to submit, on land area offered for godown, this order covers petitioner's case.

So far as lease deed relating to showroom offered is concerned, he had submited, there was necessity for and rectification made thereto for commencement of the lease prior to last date for submission of applications. Lease deed is dated prior. Commencement was rectified to coincide with execution date.

Mr. Yadav, learned advocate appears on behalf of the Oil Company and also on that date had submitted, pursuant to impugned letter, another candidate was notified as up for verification. Today he submits, that candidate's application has been rejected. He submits further, Palash Ray (supra) was not appealed against by his client. However, lease deed dated 16th October, 2017 in respect of show room, though rectified subsequently to commence from 16th October, 2017 but rent payable stands unaltered as agreed in the lease deed to be from 1st November, 2017. His client not only cannot look into deed of rectification but even then said rectification deed, assuming can be looked at, has not rectified defect amounting to ineligibility of petitioner on that ground. The requirement is leasehold land offered must have been enjoyed by offerer as on last date of submission of applications, which in this case was 18th October, 2017 as extended but rent payable being from November, 2017 onwards that still makes the lease effective after 18th October, 2018.

So far as land offered for godown is concerned petitioner's case is covered by Palash Ray (supra). By declaration dated 20th August, 2018 there was rectification made of errors in the lease deed. Two errors appear to have been corrected. Firstly, regarding commencement and second, regarding description of schedule property. A reasonable inference can be drawn that there thus was existence of errors in the lease deed. Still, contention of the Oil Company is that for period between 16th October, 2017 and 31st October, 2017, no rent was paid. Question arises as to whether this renders the lease void. Section 105 of Transfer of Property Act, 1882 gives definition of, inter alia, premium to be price and rent to be the money, share, service or other thing to be so rendered. Said section also defines lease to be transfer of a right to enjoy property in consideration of a price paid or promised etc. Court is not convinced that this period between 16th October, 2017 and 31st October, 2017 is a period of lease for which no consideration was paid and therefore a lease rectified to commence on 16th October, 2017 and continue till 31st October, 2033 fails for lack of consideration when premium by way of salami was paid with execution of the lease on 16th October, 2017. There is also no mention in the lease regarding possession to be given, later, on date of commencement of lease. Thus inference of errors is possible. Both the lease deed and the declaration for rectification have been duly registered. The lessor has said there were these two mistakes in the deed which stood subsequently rectified. It is noticed private respondent, though was served, goes unrepresented.

For reasons aforesaid challenge to impugned letter dated 30th August, 2018 succeeds. Said letter is set aside. The Oil Company will process further candidature of petitioner for award of distributorship on fulfillment of other requirements than those objected to and dealt with by this writ petition.

Writ petition is disposed of as above.