Kerala High Court
Ipe Jacob vs Hindustan Petroleum Corporation ... on 6 August, 2014
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940
WP(C).No. 13230 of 2013
PETITIONER(S):
IPE JACOB,
AGED 38 YEARS, S/O JACOB THOMAS, KACHIRAKAL,
PERUMATTIKKATTIL HOUSE, VENNIKULAM P.O., MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY
HOLDER MR. JACOB THOMAS, S/O SKARIA THOMAS,
RESIDING AT KACHIRAKKAL HOUSE, PERUMATTIKKATTIL HOUSE,
VENNIKULAM P.O., MALLAPPALY
TALUK, PATHANAMTHITTA DISTRICT - 689544.
BY ADVS. SRI.P.JACOB VARGHESE (SR.)
SRI.VARUGHESE M EASO
SRI.VIVEK VARGHESE P.J.
SRI.P.J.VINOD JOSEPH
SRI.K.A.MOHAMED HARIS
RESPONDENT(S):
1. HINDUSTAN PETROLEUM CORPORATION LIMITED,
( A GOVERNMENT OF INDIA ENTERPRISE),
REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE,
17 JAMSHEDJI TATAROAD, MUMBAI - 400020.
2. SENIOR REGIONAL MANAGER,
HINDUSTAN PETROLEUM CORPORATION LIMITED, KOCHI LPG
REGIONAL OFFICE, SEAPORT- AIRPORT ROAD, IRUMPANAM P.O,
KOCHI 682309, KERALA.
3. UNION OF INDIA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF OIL &
NATURAL GASES, NEW DELHI-110001.
*ADDL. R4 IS IMPLEADED
R4. RENUKA BHAI.V.S.
W/O. RAVI VARMA THAMPURAN, NARIYANICKAMANNIL KOICKAL,
EZHUMATOOR P.O., PATHANAMTHITA DISTRICT-689586.
WP(C).No. 13230 of 2013 (C)
*ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 06/08/2014 IN
I.A. NO. 10278/14.
R1,R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
R3 BY ADV. SRI.N.NAGARESH, ASG OF INDIA
R4 BY ADVS.SRI.ARUN.B.VARGHESE
SRI.JAYKAR.K.S.
SRI.P.RAVINDRAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RVS.
WP(C).No. 13230 of 2013 (C)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 22-08-2011 BY THE
PETITIONER FOR LPG DISTRIBUTORSHIP AT EZHUMATTOOR, IN
PAHTANAMTHITTA DISTRICT.
EXHIBIT P2 TRUE COPY OF THE LETTER REF NO KLRO/GVK/LPG/ 12756053006
DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P3 TRUE COPY OF THE LEASE DEED NO 81/12/I OF VENNIKULAM SUB
REGISTRY DATED 12-01-2012 EXECUTED BY MR. JACOB THOMAS IN
FAVOUR OF PETITIONER.
EXHIBIT P4 TRUE COPY OF THE LEASE DEED NO 1340/11 OF VENNIKULAM SUB
REGISTRY DATED 22-08-2011 EXECUTED BY THE MR. JACOB
THOMAS IN FAVOUR OF THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE RESULT OF DRAW DATED 04-10-2012 CONDUCTED
AT THE CONFERENCE HALL OF DISTRICT COLLECTORATE,
PATHANAMTHITTA FOR THE EMPANELLMENT OF THE LPG
DISTRIBUTORSHIP AT EZHUMATTOOR, IN PATHANAMTHITTA DISTRICT
EXHIBIT P6 TRUE COPY OF THE BROCHURE ON GUIDELINES FOR SELECTION OF
REGULAR LPG DISTRIBUTOR.
EXHIBIT P7 TRUE COPY OF THE POWER OF ATTORNEY DATED 31-08-2011
EXECUTED BY THE PETITIONER IN FAVOUR OF MR. JACOB THOMAS.
EXHIBIT P8 TRUE COPY OF THE LETTER NO. KLRO/GVK/LPG/12756053 006
DATED 05/08/2013.
EXHIBIT P9 TRUE COPY OF THE CERTIFICATE NO. 411/2013 DATED 20/08/2013
ISSUED BY THE THELLIYOOR VILLAGE OFFICER.
EXHIBIT P10 TRUE COPY OF THE LETTER NO. KLRO/GVK/LPG/21030915/RTI/ACT.
EXHIBIT P11 TRUE COPY OF THE CERTIFICATE NO. C6-2256/13 DATED
24/08/2013 ISSUED BY PURAMATTOM PANCHAYATH.
EXHIBIT P12 TRUE COPY OF THE LEASE AGREEMENT DATED 19/10/2012 EXECUTED
BETWEEN VARGHESE CHACKO & PETITIONER JACOB THOMAS.
EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 07/09/2013 FILED BY
THE PETITIONER BEFORE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE PAPER PUBLICATION IN MALAYALA MANORAMA
DAILY DATED 26/01/2014.
EXHIBIT P15 TRUE COPY OF THE OWNERSHIP CERTIFICATE NO. C6-2256/13 DATED
24/08/2013 ISSUED BY THE PURAMATTOM GRAMA PANCHAYATH.
EXHIBIT P16 TRUE COPY OF THE PAID RECEIPT NO. 21 DATED 24/08/2013 BY
THE PURAMATTOM GRAMA PANCHAYATH.
WP(C).No. 13230 of 2013 (C)
EXHIBIT P17 TRUE COPY OF POSSESSION CERTIFICATE NO. 606/13 DATED
05/10/2013 ISSUED BY THE VILLAGE OFFICER, PURAMATTOM ISSUED
ALONG WITH THE LOCATION SKETCH.
EXHIBIT P18 TRUE COPY OF THE CERTIFICATE NO.A4-5451/13/K.DIS. DATED
28/11/2013 ISSUED BY TAHSILDAR, MALLAPPALLY TALUK.
EXHIBIT P19 TRUE COPY OF THE LOCATION SKETCH DATED 24/09/2013 ISSUED BY
VILLAGE OFFICER, PURAMATTOM.
EXHIBIT P20 TRUE COPY OF LOCATION SKETCH NO. 141/13 DATED 24/09/2013
ISSUED BY VILLAGE OFFICER, THELLIYOOR.
EXHIBIT P21 TRUE COPY OF THE SHORT DESCRIPTION ABOUT THE EZHUMATTOOR
GRAMA PANCHAYATH PUBLISHED IN THE STATE GOVERNMENT WEB
SITE.
EXHIBIT P22 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA
MANORAMA DAILY DATED 30/07/2011.
EXHIBIT P23 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT
DATED 22/06/2014.
EXHIBIT P24 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PETITIONER
CERTIFYING THAT PETITIONER'S SON MASTER JEAN JACOB IS
STUDYING IN BETHANY ACADEMY ICSE PUBLIC SCHOOL AT
VENNIKULAM.
EXHIBIT P25 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PETITIONER
CERTIFYING THAT PETITIONER'S DAUGHTER KUMARI CELINE SUSAN
IPE IS STUDYING IN BETHANY ACADEMY ICSE PUBLIC SCHOOL AT
VENNIKULAM.
EXHIBIT P26 TRUE COPY OF THE RELEVANT PAGES OF FAMILY RATION CARD OF
THE PETITIONER'S FAMILY.
EXHIBIT P27 TRUE COPY OF THE RELEVANT PAGES OF THE BPL LIST IN
EzhUMATTOOR GRAMA PANCHAYATH PUBLISHED IN WEBSITE OF CIVIL
SUPPLIES DEPARTMENT OF KERALA STATE.
EXHIBIT P28 TRUE COPY OF THE BROCHURE ON UNIFIED GUIDELINES FOR
SELECTION OF LPG DISTRIBUTORS.
EXHIBIT P29 TRUE COPY OF THE LETTER NO. KLRO/GBK/LPG DATED 14/02/2018
FROM THE OFFICE OF THE 2ND RESPONDENT.
EXHIBIT P30 TRUE COPY OF THE RELEVANT PAGES OF THE WEBSITE PAGES OF
LSGD DEPARTMENT OF KERALA STATE RELATED TO THE RANNY GRAMA
PANCHAYATH.
EXHIBIT P31 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT
BY THE PETITIONER DATED 28/02/2018 ALONG WITH COPIES OF
COUNTER FOILS OF POSTAL ORDERS AND POSTAL RECEIPT.
WP(C).No. 13230 of 2013 B)
EXHIBIT P32 TRUE COPY OF THE GOOGLE MAP SHOWING EZHUMATTOOR VILLAGE
OFFICE AND EZHUMATTOOR VILLAGE PANCHAYATH OFFICE.
EXHIBIT P33 TRUE COPY OF THE INFORMATION AVAILED BY ONE SRI. THOMAS
JACOB, THE VICE PRESIDENT OF THE PURAMATTOM PANCHAYATH AS
PER LETTER NO. KLRO/GBK/LPG DATED 14/02/2018 FROM THE
OFFICE OF THE 2ND RESPONDENT AND THE LETTER.
EXHIBIT P34 TRUE COPY OF THE LETTER DATED 14/03/*2016 BY THE VICE
PRESIDENT OF THE RANNY GRAMA PANCHAYATH.
RESPONDENT(S)' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 03/05/2013 ISSUED BY THE
SECRETARY, EZHAMATTUR GRAMA PANCHAYATH.
EXHIBIT R4(A) TRUE COPY OF THE NOTIFICATION ADVERTISED IN MALAYALA
MANORAMA DAILY DATED 30/07/2011.
EXHIBIT R4(B) TRUE COPY OF THE JUDGMENT DATED 28/01/2013 IN WP(C)
NO.1308/2013.
EXHIBIT R4(C) TRUE COPY OF THE LETTER DATED 30/01/2014 ISSUED BY THE WRIT
PETITION.
/TRUE COPY/
P.S.TO JUDGE
RVS.
02/08/2018
P.V.ASHA J.
------------------------------------
W.P.(C).No.13230 of 2013
-------------------------------------
Dated this the 26th day of July, 2018
J U D G M E N T
Petitioner challenges the rejection of his candidature for distributorship of Liquid Petroleum Gas. Pursuant to Ext.P22/Ext.R4(a) notification published on 30.07.2011, petitioner submitted Ext.P1 application on 22.08.2011 for distributorship in LPG at Ezhumattoor in Pathanamthitta District under open category. Along with his application, he had furnished all the documents which were required to be furnished. According to the petitioner, on acceptance of his application, the second respondent, as per Ext.P2 letter dated 30.12.2012 directed him to produce registered lease agreement for 15 years in respect of his godown and show room. He thereupon W.P.(C).No.13230 of 2013 2 submitted Ext.P3 lease agreement dated 12.01.2012 registered in Vennikulam Sub Registry. Thereafter on 04.10.2012, petitioner was declared as the successful candidate, on the basis of a draw held from among eligible applicants and he was empanelled for the distributorship at Ezhumattoor, as per Ext.P5 notification.
2. It is stated that even after the verification of documents and site inspection and completion of all formalities by the petitioner for starting the godown and showroom, the letter of intent was not issued. Aggrieved by the delay being caused, petitioner filed this writ petition. During the pendency of the writ petition, petitioner received Ext.P8 letter dated 05.08.2013, informing him that his candidature was rejected because on field verification of the information furnished by him in his application, it was found that the land W.P.(C).No.13230 of 2013 3 offered by him for the showroom in Sy.No.145/1 was not in the advertised location. The writ petition was thereafter amended incorporating challenge against Ext.P8 letter and producing Exts.P9 to P13 also, alleging that distributorship was granted to one Mahima gas Agencies in Kumbanad, which is not functioning in Kumbanad and stating that he owns other lands on lease, producing Ext.P12 lease deed dated 19.10.2012. He has produced Exts.P14 to P22 documents along with I.A. No.1499 of 2013, stating that another draw for selection for distributorship was scheduled on 30.01.2014 as per Ext.P14, stating that he is the owner of a building in Puramattam Grama Panchayat, along with the tax receipt issued in 2013 for the building, possession certificate issued by the Village Officer, Puramattam, stating that Mahima agency Kumbanad is functioning in Puramattam village. Ext.P21 is a description of Ezhumattoor W.P.(C).No.13230 of 2013 4 Grama Panchayat stated to have been published in the website, according to which the Panchayat functions within the area of Ezhumattoor and Thelliyur Villages and the office of the Panchayat is in Thelliyur. Ext.P22 notification inviting application for distributorship was produced along with I.A. No.1581 of 2014. Along with I.A. No. 19071 of 2014, petitioner produced Ext.P27 list of BPL families issued by the Civil Supplies Department, stating that the additional 4th respondent is not eligible for distributorship.
3. Petitioner has also got a case that the respondents have adopted a different approach while selecting Mahima Gas agencies as distributors at Kumbanadu and in selecting the distributor at Ranni; producing Exts.P30 and P31, along with I.A. No.4916 of 2018, petitioner stated that the distributorship given at Ranni, based on the very same advertisement W.P.(C).No.13230 of 2013 5 in Ext.P22 is not in Ranni but in Pazhavangadi Panchayath. Petitioner has produced Ext.P33 letter of the Vice President of that Panchayat, along with I.A. No.13445 of 2018 stating that there is no gas agency in that Panchayat.
4. Petitioner has also produced the Google map of Ezhumattoor Grama Panchayat as Ext.P32 along with I.A.No.13445 of 2018, and asserts that the land offered by him is within the Panchayath and within the Sub District. It is stated that the location is near to Ezhumattoor Grama Panchayat office, Edakkad Public market, Bus stop, Thelliyoor Village office, Vennikulam Sub Registry Office and Thelliyoor Primary Health Centre etc., as seen from Ext.P21 details in the official website and Ext.P32 Google map. It is therefore asserted that the land offered by him is in Ezhumattoor itself. Petitioner also relies on Ext.P28 guidelines, which defines location in clause 1.9. W.P.(C).No.13230 of 2013 6
5. According to the petitioner, he had fulfilled all the conditions as prescribed in the notification and in Ext.P6 guidelines. According to him, the showroom is in Ezhamattoor itself and the respondents had got the credentials verified on 22.03.2013, but they did not inform the petitioner of any deficiency in his applications or the documents or properties covered by Exts.P3 or P4 documents. He was therefore waiting for the letter of intent after spending lakhs of rupees for setting up the business and it is stated that petitioner has got several other properties adjacent to the same which could have been utilized for the godown or show room and therefore, he cannot be denied the distributorship. It is also stated that before rejection of the application, the first respondent did not give him an opportunity to rectify the defects, if any and that no notice was issued to him for rectification before W.P.(C).No.13230 of 2013 7 rejecting his candidature.
6. Petitioner's case is that the land covered by Ext.P3 for the show room is very near to Panchayat Office, Ezhumattoor and Village Office at Thelliyoor and would be beneficial to the general public of Ezhumattoor, Thelliyur, Vennikulam and nearby areas. It is stated that the Godown is at Thodiyoor, which is a remote area and is within the permissible distance from the Godown and Ext.P4 lease agreements are having all characteristics required in Ext.P1 and are in Ezhumattoor.
7. The additional 4th respondent has filed a counter affidavit after getting himself impleaded.
She had also submitted application for distributorship at Ezhumattoor, pursuant to
Ext.R4(a)/Ext.22 notification. She was also found to be an eligible candidate and was invited for draw of lot held on 04.10.2002, in which petitioner was W.P.(C).No.13230 of 2013 8 selected. He thereafter conducted inquiry and found that petitioner was not entitled to participate in the draw. She filed W.P.(C) No.1308 of 2013 challenging the selection when the first respondent filed a statement stating that the veracity of the details mentioned by the applicants in the application would be verified by field inspection and in the event of any information being found to be false, selection would be cancelled. As per Ext.R4(a) judgment, the writ petition was disposed of, directing to complete the verification proceedings and communicate the position with regard to the eligibility of the petitioner as well as the 4 th respondent before finalization of the selection. Ext.P8 was issued thereafter. The 4th respondent was thereafter informed as per Ext.R4(c) letter dated 30.01.2014 that he was selected, on the basis of re- draw held on 30.01.2014. It is stated that further W.P.(C).No.13230 of 2013 9 proceedings have not been held on account of the interim order passed by this Court. The 4 th respondent stated that Ext.P3 lease agreement, which the petitioner produced was one executed on 12.01.2012, subsequent to his application submitted on 22.08.2011, contrary to the guidelines in Ext.P6, which provides that the applicant should own or have lease over the property on the date of application. Moreover the property covered under Ext.P4 was not in the advertised locality. She therefore stated that she is the person most eligible.
8. In the counter affidavit filed by the respondents 1 and 2, it is stated that in the application submitted by petitioner, the land provided for distributorship for both the showroom as well as the godown was in the same Re-Sy.No.145/1. As per the information he had furnished, he was found eligible and selected by draw of lots; but while W.P.(C).No.13230 of 2013 10 verifying the veracity of the information furnished by petitioner, in his application, it was found that land provided by the petitioner for the showroom and godown was in a different Grama Panchayat i.e., Puramattom Grama Panchayat; therefore the respondents sought for a clarification from the Panchayat. The Secretary of the Panchayat issued Ext.R1(a) letter stating that the property mentioned in the application of the petitioner is in Puramattam Grama Panchayat and therefore Ext.P8 letter was issued to the petitioner rejecting his candidature. Explaining the procedure followed after opening the applications received, it is stated that scrutiny of the applications is made by two officers nominated for the same; in case any document is not seen attached, applicants would be asked to produce those documents within 21 days; a list of eligible candidates is thereafter prepared for draw. Thereafter draw of lots W.P.(C).No.13230 of 2013 11 of all eligible candidates is conducted in presence of State Govt. Officials or MP or MLA, etc. The candidate selected in the draw would be the empanelled candidate; but letter of intent would be given only after being found eligible after conducting final scrutiny by field verification of the credentials. It is stated that petitioner had not produced the registered lease deed along with the application and therefore Ext.P2 letter was sent to him asking him to produce the lease deed for the land mentioned in the application. Petitioner thereupon produced Ext.P3 lease deed dated 12.01.2012, which was executed subsequent to the date of his application and with respect to a land which was not mentioned in his application. It is stated that he was found eligible for the draw of lots only because of the information he had furnished in the application and Ext.P4 lease deed which was executed W.P.(C).No.13230 of 2013 12 on 22.08.2011 as on the date of application. But his selection in the draw alone would not confer any right on him to get the letter of intent issued to him. In the field verification, it was found that the land offered by him as per Ext.P4 was not in the advertised location and it was found to be in Puramattam Grama Panchayat, as stated in Ext.R1(a) letter dated 13.05.2013 of the Secretary of Ezhumattoor Grama Panchayat. In the case of Mahima Gas agencies, Kumbanad, it is stated that it was commissioned under the Marketing Plan 1993-94 and requirement in the guidelines of 1993-94 was to have the show room in a prominent location within the distributorship area of operation and the godown site was required to be as close as possible. It is stated that the area of operation of that gas agencies included the neighboring Panchayats. It is stated that the guidelines of 1993-94 when number of W.P.(C).No.13230 of 2013 13 distributorships was very less cannot be compared to those for the selection in question governed by Ext.P6 guidelines.
9. The learned Standing Counsel for the respondents 1 and 2 points out that petitioner has furnished a declaration to the effect that the information furnished by him are correct and in case, it is found incorrect on field verification, he would be in-eligible. Therefore when the land offered by the petitioner covered by Ext.P4 document was not in the advertised location namely Ezhumattoor Grama Panchayat but only in Puramattom Grama Panchayat, as evident from Ext.R1(a), he has become ineligible.
10. Learned Senior Counsel for the petitioner relied on the judgment of the Apex Court in Mahabir Auto Stores and others v. Indian Oil Corporation and others [1990 (3) SCC 752] and the judgment of the Kolkata High Court in Swapnil Singh v. Bharat W.P.(C).No.13230 of 2013 14 Petroleum Corporation Ltd. & Others [A.S.T.Nos. 158 of 2013 & 93 of 2013] in support of the contention that once the petitioner was selected, if at all any defects were found he should have been granted an opportunity to rectify the defects, in fairness to be adopted by public limited companies/state. Learned Senior counsel also relied on the the meaning of the 'locality' Law Lexicon in which it is given as follows:
b