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Supreme Court of India
Anapurna Jaiswal vs Indian Oil Corporation Ltd. And … on 30 September, 2021Author: K.M. Joseph
Bench: K.M. Joseph, Pamidighantam Sri Narasimha
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6119 OF 2021
(Arising out of SLP (C) No.36767 OF 2016)
ANAPURNA JAISWAL APPELLANT(s)
VERSUS
INDIAN OIL CORPORATION LTD. AND ORS. Respondent(s)
J U D G M E N T
K.M. JOSEPH, J.
1. Leave granted.
2. An advertisement was published on 12.10.2011 by the respondent
inviting applications for grant of dealership of petrol pumps. The
appellant made her application on 11.11.2011. On the basis of the
evaluation done, the appellant was placed in the first position.
While so it appears that on the basis of complaint, the matter was
looked into and order dated 12.11.2014 came to be issued by which
the respondent took the view that the lease dated 08.11.2011 which
was the foundation for the offer made by the appellant would
commence from the date of approval of the petrol outlet. This meant
Signature Not Verified
Digitally signed by
Charanjeet kaur
Date: 2021.10.04
that the possession over the premises did not amount to a lease and
16:53:29 IST
Reason:
on the date of the execution of the lease deed the lease had not
come into force. The lease deed was more like a firm offer than
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(Arising out of SLP (C) No. 36767 of 2016.
owned proposition. Thereafter, on 12.12.2014 the appellant got a
rectification/ clarificatory deed registered. Four representations
were made by the appellant. The corporation rejected by order dated
25.02.2015 the request. This led to the Writ Petition, which stood
dismissed by the impugned order.
3. We heard Ms. Kamini Jaiswal, learned counsel for the
appellant and Ms. Priya Puri, learned counsel for the respondent-
corporation.
4. Learned counsel for the appellant would take us to through the
lease deed dated 08.11.2011 which was registered on the same day
and point out that under the lease deed possession was handed over
to the appellant by the lessor on 08.11.2011 itself. In this
regard, she sought support from clause 7 of the said lease deed
which reads as follow: –
“7. That, in case, the petrol pump is not approved,
then, the second party shall have to hand over the
land transferred on rent to the first party.”
She would, therefore, point out that the lease deed had come
into effect on 08.11.2011. Clause 1 reads as follow: –
“1. That, the period of this lease-deed will be 30
years, which shall take into account w.e.f. date of
approval of petrol pump.”
5. She pointed out that this cannot detract from the lease coming
into being in law on 08.11.2011. The lease bearing life from
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08.11.2011 is consistent with and supported by the fact that the
appellant derived possession on the said date under the said lease
deed. In this regard, she also drew our attention to Section 47 of
The Indian Registration Act, 1908 which reads as follows: –
“47. Time from which registered document
operates. – A registered document shall operate
from the time which it would have commenced to
operate if no registration thereof had been
required or made, and not from the time of
registration.”
6. She would further point out that the action of dislodging the
appellant from the first position she has rightfully earned was
based on an alleged complaint. She pointed out with reference to
the document at page 117A produced along with the rejoinder
affidavit, that it is a clear case where the complaint is sprung up
which is not genuine which can be seen from the fact that after
serial No. 333 in place of serial No.334, serial No.335 is over
written.
7. Per contra, Ms. Priya Puri, learned counsel for the
respondent-corporation supported the impugned judgment. She would
point out that letter of intent has already been issued in terms of
the decision which is upheld by the High Court in favour of another
party. However, on the basis of the order of status quo passed by
this Court, effect could not be given to the decision.
8. The appellant undoubtedly secured 85.93 marks. A part of the
85.93 marks is attributable to 35 marks which she derived on the
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basis of her being a lessee under lease deed dated 08.11.2011 which
we have adverted to. The relevant provision under which marks were
awarded in this regard to her reads as follow: –
Parameter Sub- Description Max Evaluation
heads Marks
Capability to provide Suitable “……..” 35 Based on
land and land for verifying
infrastructure/facilities retail ‘B’ site the
(Max. 35 marks applicable outlet Having clear documents
to individual and non- title to land submitted
individual) “own and
land”/Registered evaluation
sales deed of
/having land on committee
long lease as
(registered) for explained
a minimum period in Pt.14
of 19 years 11 and 15
months as on below.
date of
application.
‘…. ‘ 25
‘B’ site
Having “firm offer”
of land for
purpose/long lease
9. The learned counsel for the appellant would point out that the
lease deed in fact was for the period of 30 years and, therefore,
the lease deed was fully compliant with the requirement. In fact,
it was much more as the required period was 19 years and 11 months
whereas the lease in her favour was for a period of 30 years.
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10. However, this is not to be the end of the inquiry. The
requirement under the clause is that to earn 35 marks the applicant
must have inter alia a long lease (Registered for a minimum period
of 19 years and 11 months as on the date of the application). What
has weighed with the corporation in deciding to dislodge the
appellant from the first position is that the lease dated
08.11.2011 was to become operative only from the date of the
approval of the petrol pump. In other words, there was no lease
deed in effect as on the date of the application which is
admittedly 11.11.2011.
Section 5 of the Transfer of Property Act, 1882 read as
follow: –
5. “Transfer of property” defined- In the following
sections “transfer of property” means an act by
which a living person conveys property, in present
or in future, to one or more other living persons,
or to himself, [or to himself] and one or more
other living persons; and “to transfer property” is
to perform such act.
11. This provision has been subject matter of discussion by this
Court and we need only refer to Jugalkishore Saraf v. M/s. Raw
Cotton Co. Ltd., AIR 1955 SC 376. Therein in his concurring opinion
Justice Bhagwati held:
“The words “in present or in future” qualify the
word “conveys” and not the word “property” in the
section and it has been held that a transfer of
property that is not in existence operates as a
contract to be performed in the future which may be
specifically enforced as soon as the property comes
into existence.
As was observed by the Privy Council in 12 Moo Ind
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App 275 (PC) (E):
“But how can there be any transfer, actual or
constructive, upon a contract under which the
vendor sells that of which he has not possession,
and to which he may never establish a title? The
bill of sale in such a case can only be evidence of
a contract to be performed ‘in future’, and upon
the happening of a contingency, of which the
purchaser may claim a specific performance, if he
comes into Court shewing that he has himself done
all that he was bound to do.”
It is only by the operation of the equitable
principle that as soon as the property comes into
existence and is capable of being identified,
equity taking as done that which ought to be done
fastens upon the property and the contract to
assign thus becomes a complete equitable
assignment. In the case of a decree to be passed in
the future therefore there could be no assignment
of the decree unless and until the decree was
passed and the agreement to assign fastened on the
decree and thus became a complete equitable
assignment. The decree not being in existence at
the date of the transfer cannot be said to have
been transferred by the assignment in writing and
the matter resting merely in a contract to be
performed in the future which may be specifically
enforced as soon as the decree was passed there
would be no transfer automatically in favour of the
“transferee” of the decree when passed.
It would require a further act on the part of the
“transferor” to completely effectuate the transfer
and if he did not do so the only remedy of the
“transferee” would be to sue for specific
performance of the contract to transfer.”
12. Section 105 specifically deals with lease of immovable
property, and it reads as follows: –
“105. Lease defined- A lease of immovable property
is a transfer of a right to enjoy such property,
made for a certain time, express or implied, or in
perpetuity, in consideration of a price paid or
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promised, or of money, a share of crops, service or
any other thing of value, to be rendered
periodically or on specified occasions to the
transferor by the transferee, who accepts the
transfer on such terms.”
13. A lease of immovable property is a transfer of immovable
property. The transfer consists of the transfer of a right to enjoy
immovable property. It creates an interest in the property. One of
the essential elements of the lease is the period of time for which
the demise holds good. A lease may be for certain time which may be
express or implied. It may also be in perpetuity. Therefore, when
one thinks of a lease of an immovable property one of the essential
terms would be the period for which the lease operates. In this
case, the lease or the period of the lease is 30 years. The
question would immediately arise as to when the lease bears life.
The expression ‘certain time’ is premised on there being a
beginning in point of time and the end again with reference to
time. ‘Certain time’ would in other words be a period of time. The
answer is given by the lease itself, namely that the period begins
with effect from the date of approval of the petrol pump. In other
words, here is a lease deed which contemplated the period of the
lease commencing at a point of time in the future. What is more it
would commence only with effect from the date of approval of the
petrol pump. The parties in fact contemplated in clause 7 that in
case the petrol pump was not approved then the second party (the
‘appellant’ herein) must handover the land transferred on rent to
the first party.
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14. Whatever doubts one may have is dispelled by clause 5 which
reads as follows: –
“5. That after completion of leased period, viz.,
after expiry of 30 years, both parties shall have
option renewal period by a lease deed in respect of
land transferred on rent on the basis of mutual
consent.
A perusal of clause 5 would reveal that lease period is
explained as after ‘the expiry of 30 years’ and it speaks about the
renewal of the lease period. The completion of the lease period
which is after the expiry of the 30 years again would have to be
reckoned only with effect from the date of approval of the petrol
pump. Therefore, it is clear that the lease which the appellant
laid store by contemplated the period of the lease commencing not
on the date of the lease but at a point of time in the future. In
fact, the point of time or the event upon which the period of lease
was to begin with itself uncertain. Maybe it is true that it could
come into effect upon future events taking shape on the principle
that in equity on the future event happening relating to the
subject matter of the lease, the lease could have affected the
property in the future. But we need not explore the matter on those
lines any further as it is clear that the lease did not take effect
on the date of the lease namely 8.11.2011. If that be so there was
also no lease in place as on the date of the application namely
11.11.2011.
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15. The appellant attempted to derive support from Section 47 of
the Registration Act, 1908. Section 47 of the Registration Act,
1908 is only intended to give effect to the lease deed which is
registered at a later point of time than when it is executed. It is
intended to provide that the document which is registered will have
efficacy on its own terms with effect from the time when it was
supposed to have come into effect under the document. In other
words, the fact that it is registered at a later point of time
could not detract from the document commencing to operate when it
would have commenced but for it not having been registered. In
fact, if one applies Section 47 of the Registration Act, to the
facts of this case it would not have the effect of preponing the
period of the lease as commencing from the date of the execution of
the lease. The lease would operate on its terms and the period of
the lease would commence only upon approval being granted despite
it being registered.
16. The result of this discussion is that the appellant cannot be
possibly entitled to the benefit of 35 marks which is vouchsafed
only for those applicants who inter alia had a long-term lease as
on the date of the application.
17. There is another aspect we must bear in mind. We are dealing
with a case where what is sought is judicial review of the decision
to award largesse. A fairly large measure of free play in the
joints is vouchsafed to a public authority when it comes to
understanding the terms under which the offer is made. We cannot be
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oblivious to this aspect as well. The fact that in the
rectification deed also which was executed much after the date of
the advertisement and application an attempt is made to correct the
original lease deed and to indicate that it was as a result of an
error that clause 1 which we have referred to came to be inserted
also would fortify us in our reasoning which we have employed in
finding that appellant is not entitled to 35 marks.
18. In the light of above discussion, we see no reason to
interfere with the impugned judgment passed by the High Court. The
appeal is dismissed.
No order as to costs.
Pending application(s), if any, stand disposed of.
…………………………………………J.
[K.M. JOSEPH]
…………………………………………J.
[PAMIDIGHANTAM SRI NARASIMHA]
New Delhi
30th September, 2021.
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