Andhra HC (Pre-Telangana)
Kanala Obula Konda Reddy vs 1. Hindustan Petroleum Corporation ... on 27 August, 2012
Author: B.Seshasayana Reddy
Bench: B.Seshasayana Reddy
THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.25971 of 2010 27-08-2012 Kanala Obula Konda Reddy 1. Hindustan Petroleum Corporation Limited, rep. by its Chairman and Managing Director & Ors. COUNSEL FOR PETITIONER: SRI C.V.BHASKAR REDDY COUNSEL FOR RESPONDENT No.1 TO 3: SRI THOOM SRINVIAS ^COUNSEL FOR RESPONDENT No.5: SRI O.MANOHAR REDDY <Gist: > Head Note: ? CITATIONS: 1) (2009) 1 SCC 297 2) AIR 1978 S.C. 851 ORDER:
This writ petition has been taken out by Kanala Obula Konda Reddy seeking mandamus declaring the action of the Senior Regional Manager, Hindustan Petroleum Corporation Limited, LPG Regional Office, Anantapur, A.P.-2nd respondent in issuing the proceedings vide Ref.No.SSP/LPG, dated 06.05.2010, disqualifying him as LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District, as illegal and arbitrary. The consequential relief to set aside the letter of intent, dated 09.08.2010, issued in favour of Ms.Arundhathi Gangi Reddy- 5th respondent, has also been sought for.
2. 1st respondent is a Company incorporated under the Companies Act, 1956. It is 'State' within the meaning of Article 12 of the Constitution of India. Its function, inter alia, is allotment of grant of LPG Distributorship. An advertisement was issued by the 2nd respondent on 01.10.2007 in EENADU daily newspaper in Andhra Pradesh inviting applications for appointment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District, Andhra Pradesh, under open category. The petitioner completed his Bachelor Degree of Engineering in Mechanical Branch in the year 1980 from Mysore Univesity and Post Graduation in the same Branch in the year 1992 from Bharathiar University. He is a gold-medalist in Graduation and Post-Graduation. He submitted application on 31.10.2007 for allotment of LPG Dealership of Duvvur. Ms.Arundhathi Gangi Reddy-5th respondent also submitted application pursuant to the notification, dated 01.10.2007 issued by the 2nd respondent. The selection committee empanelled the candidates for appointment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District. The petitioner stood at Sl.No.1. Whereas, the 5th respondent stood at Sl.No.2 in among the empanelled candidates. The field verification committee of the 1st respondent noticed certain variations with regard to financial items in the application of the petitioner and submitted its report. Basing on the said field verification report, the 2nd respondent issued a show cause notice, dated 22.03.2010, calling the petitioner to submit necessary documents as to proof of balance of Rs.3,00,000/- in his S.B. account as on the date of application i.e., 30.10.2007. The petitioner submitted explanation to the show cause notice. He asserted in the explanation that on the date of submitting the application, he got requisite amount to his credit in the S.B. Account. The 2nd respondent found the explanation not satisfactory and thereby proceeded to disqualify the petitioner for allotment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District and informed the same to the petitioner under letter, dated 06.05.2010, and consequent on disqualifying the petitioner, letter of intent, dated 09.08.2010, came to be issued to Ms.Arundhathi Gangi Reddy-5th respondent, who stands at Sl.No.2 among the empanelled candidates. Hence, the petitioner filed this Writ Petition questioning the proceedings issued by the 2nd respondent in disqualifying him and also in issuing letter of intent, dated 09.08.2010, in favour of the 5th respondent. For better understanding the grievance of the petitioner, I deem it appropriate to refer para.8 of the affidavit filed in support of the writ petition, and it is thus:
"08. I respectfully submit that in all respects I have submitted my application on 31.10.2007 along with bank statement dated 31.10.2007 and other relevant documents. The relevant portion of column No.14.2, on which ground the respondent No.2 disqualified me, is as follows:
"Amount in the Saving Account in the name of self & the member of the "Family Unit" as on the date of application. Amount in the name of joint account of the member(s) outside the "Family Unit" should not be mentioned."
According to the above condition, I have to show my bank account or Family Unit as on the date of application. Admittedly, I have submitted my application on 31.10.2007 along with bank statement dated 31.10.2007 but I have mentioned the date on my application as 30.10.2007 as I have filled the same on 30.10.2007. It is pertinent to mention that I have not shown the account outside the "Family Unit" and I have not submitted my application on 30.10.2007 without funds in bank account. After getting funds in my account on 31.10.2007 only, as a prudent man without any intention to mislead the HPCL, I have submitted my application on 31.10.2007. Therefore, the action of the respondent No.2 in issuing Letter of Intent vide Ref.No.SSP/LPG, dated 09.08.2010 in favour of the respondent No.5 is illegal, arbitrary, unconstitutional and in gross violation of principles of natural justice and contrary to the Articles 14 and 21 of the Constitution of India and non application of mind."
3. Rule Nisi came to be issued on 31.10.2011.
4. The respondents entered appearance. The respondents 1 to 3 filed a common counter-affidavit. Whereas, the 5th respondent filed a separate counter- affidavit.
5. S.Surya Prakash, Senior Regional Manager, Hindustan Petroleum Corporation Limited, Ananthapur LPG Regional Office, has sworn to the counter-affidavit filed on behalf of the respondents 1 to 3. It is stated in the counter- affidavit that the petitioner has been placed at Sl.No.1 in the selection list since he secured 97.5 marks, whereas the 5th respondent is placed at Sl.No.2 in the selection list as she secured 95 marks. It is further stated in the counter-affidavit that the petitioner had no bank balance of Rs.3,00,000/- as on the date of his filling the application i.e., on 30.10.2007 and therefore, he has been disqualified.
6. The 5th respondent stated in her counter-affidavit that there are laches on the part of the petitioner in approaching the court and therefore, he does not deserve for grant of any relief. It is also stated in the counter-affidavit that the 2nd respondent has given letter of intent in her favour on 09.08.2010 i.e., after three months of passing of the order impugned in the writ petition. She has taken further steps like getting permissions from the Gram Panchayat, Explosives Department, purchase of building material and completed 70% of the construction work. As she spent huge amount, cancellation of her allotment at this stage would cause substantial loss to her.
7. The petitioner filed reply affidavit. It is stated in the reply affidavit that he filed the writ petition on 19.10.2010 and as on the date of writ petition, no licence has been granted in favour of the 5th respondent and even she has not applied for seeking licence from the competent authority. Therefore, the allegation of the 5th respondent that she applied for licence by the date of writ petition is absolutely false. The 5th respondent has proceeded with the construction only after receiving the notice in the writ petition and that too after taking time for filing counter-affidavit. Therefore, the plea of the 5th respondent that she spent Rs.12.00 Lakhs for constructing a go-down is absolutely false and invented for the purpose of claiming equities.
8. Heard Sri C.V.Bhaskar Reddy, learned counsel appearing for the petitioner; Sri Thoom Srinivas, learned counsel appearing for the respondents 1 to 3 and Sri O.Manohar Reddy, learned counsel appearing for the 5th respondent.
9. Sri C.V.Bhaskar Reddy, learned counsel appearing for the petitioner submits that as per the general instructions to the applicant for making application for LPG Dealership/ Distributorship, as per Clause No.14.2, what is required is the amount in the savings account in the name of self and the members of family unit as on the date of application. The relevant date for consideration is the date of submitting the application and not the date of filling the application. As on the date of submitting the application i.e., 31.10.2007, the petitioner has sufficient amount in the account. The leaned counsel took me to the copy of the application submitted by the petitioner to substantiate his contention that the petitioner had sufficient amount in his account in the bank as on the date of submitting the application i.e., on 31.10.2007.
10. Sri Thoom Srinivas, learned counsel appearing for the respondents 1 to 3 submits that the relevant date for consideration is the date on which the petitioner filled the application and as the petitioner filled the application on 30.10.2007, he has to satisfy that necessary amount has been to his credit in the S.B. Account and that an amount of Rs.3,00,000/- credited to his S.B.Account on 31.10.2010, the said amount cannot be taken into account to satisfy the necessary requisite of the deposit of the amount in the S.B. Account. In a way, his contention is that as on the date of filling the application, an amount of Rs.3,00,000/- was not to the credit of the S.B. Account of the petitioner and therefore, the 2nd respondent was justified in disqualifying the petitioner after putting on show-cause notice and considering the explanation. Since the action of the 2nd respondent is after giving opportunity to the petitioner to explain the deficiencies, it cannot be found fault. It is also submitted by him that there are other deficiencies in the eligibility criteria of the petitioner and therefore, he does not deserve for allotment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District.
11. Sri O.Manohar Reddy, learned counsel appearing for the 5th respondent submits that the petition is liable to be dismissed on the ground of laches. It is further submitted by him that the 5th respondent spent huge amount and any interference in the allotment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District, to the 5th respondent would cause substantial loss to her, and therefore, on the principle of equity, the relief sought for by the petitioner cannot be granted. In support of his submissions, reliance has been placed on the judgment of the Supreme Court in Virender Chaudhary v. Bharat Petroleum Corporation1.
12. In responding to the arguments advanced by the learned counsel appearing for the respondents, it is contended by the learned counsel appearing for the petitioner that the respondents 1 to 3 cannot sustain the order impugned in the writ petition on the grounds other than the reason mentioned therein. In support of his contention, reliance has been placed on the judgment of the Supreme Court in Mohinder Singh v. Chief Election Commissioner2, wherein it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.
13. In view of the judgment of the Supreme Court in Mohinder Singh's case (2 supra), the order impugned in the writ petition has to succeed or fail basing on the reason mentioned therein.
14. Indisputably, the petitioner stands at Sl.No.1 in the empanelled list having secured highest marks in the selection. The 5th respondent is placed at Sl.No.2 in the empanelled list for allotment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District. The only ground on which the petitioner came to be disqualified is on the date of filling of the application, there was no credit of Rs.3,00,000/- in his S.B. Account. The core issue involved in this writ petition is: what is the relevant date to consider as to whether the petitioner has satisfied necessary requisites for allotment of LPG Dealership/Distributorship? Clause 14.2 of General Instructions to the applicants for making LPG Distributorship application reads as hereunder:
"Amount in the Saving Account in the name of self & the member of the "Family Unit" as on the date of application. Amount in the name of joint account of the member(s) outside the "Family Unit" should not be mentioned."
It is not in dispute that on the date of the petitioner submitting the application, he had deposit of Rs.3,00,000/- to the credit of his S.B. Account. He also submitted a bank statement along with his application as proof that an amount of Rs.3,00,000/- was credited to his S.B. Account. What is relevant is the date of submitting the application and not the date on which the petitioner signed in the application. Therefore, the reason assigned by the 2nd respondent for disqualifying the petitioner for allotment of LPG Dealership/Distributorship of Duvvur Village and Mandal, Kadapa District, cannot be sustained.
15. Learned counsel appearing for the 5th respondent placing heavy reliance on the judgment of the Supreme Court in Virender Chaudhary's case (1 supra), contended that the petition is liable to be dismissed on the ground of delay/laches. In the cited case, the petitioner therein submitted application for grant of LPG Distribution on 23.11.2004. He filed the writ petition questioning the cancellation of his empanelment and subsequently withdrew the writ petition. Thereafter, he filed second writ petition in October, 2006. Such is not the situation in the present case on hand. The 2nd respondent disqualified the petitioner for allotment of LPG Dealership/Distributorship, and communicated the same to him on 06.05.2010. The petitioner secured the letter of intent issued in favour of the 5th respondent in the month of September, 2010 and filed the writ petition on 19.10.2010. Therefore, it cannot be said that there are laches on the part of the petitioner in approaching the Court invoking the jurisdiction under Article 226 of the Constitution of India.
16. The contention advanced by the learned counsel appearing for the 5th respondent that the 5th respondent herein spent huge amount and therefore, cancellation of allotment of dealership in favour of the 5th respondent would cause substantial loss to her has no substance. It is a matter of record that as on 24.11.2010, the 5th respondent has not applied for grant of LPG Distributorship license vide the letter dated 24.11.2010 of the Joint Collector, YSR Kadapa District, addressed to the Government Pleader, marking a copy to the counsel appearing for the writ petitioner. For better appreciation, I may refer the relevant portion of the said letter, which reads as hereunder:
"The Collector (CS) Kadapa is only the Licensing Authority under Clause 2(j) of APPP (L&RS) Order, 1980 for issue of the Licences to the LPG Distributors on the appointment letters issued by the concerned Oil Company.
I further submit that the Respondent No.5 Sri Arundhathi Gangi Reddy of Gopayapalli Village of Rajupalem Mandal, who is said to be proposed as LPG Dealer/Distributor as stated by the Writ Petitioner in the Petitioner's affidavit did not apply for grant of LPG distributor Licence so far."
The material brought on record clearly indicates that whatever amount spent by the 5th respondent, even if it is true, is only pending the writ petition. Therefore, the contention advanced by the learned counsel appearing for the 5th respondent that the 5th respondent spent huge amount for establishing LPG Distributorship at Duvvur Village and Mandal, Kadapa District, needs no consideration.
17. In view of the above discussion, the writ petition is allowed quashing the impugned proceeding vide ref.No.SSP/LPG, dated 06.05.2010 issued by the 2nd respondent and also the letter of intent, dated 09.08.2010 issued in favour of the 5th respondent. No order as to costs.
______________________ B.SESHASAYANA REDDY, J.
Date:27th August, 2012.