Himachal Pradesh High Court
Devesh Chandel vs Union Of India & Others on 6 July, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.835 of 2020 Reserved on: 27.06.2023 Pronounced on: 06.07.2023 .
Devesh Chandel ......Petitioner
Versus
Union of India & Others ...Respondents
______________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?
For the petitioner : Mr. L.N. Sharma, Advocate.
For the respondents : Mr. Rajender Thakur, Central Government Counsel, for respondent no.1.
Mr. B.N. Misra, Sr. Advocate with Mr. Aakash Thakur, Advocate, for respondents No.2 to 4.
Mr. Tara Singh Chauhan, Advocate, for respondent No.5.
Mr. Ishan Rathi, Territory Coordinator and Mr. Deepak Nirwal, Manager Legal, Northern Region, in person.
_________________________________________________________ M.S. Ramachandra Rao, Chief Justice.
The Bharat Petroleum Corporation Limited (for short 'the Corporation') issued an advertisement for appointment/allotment of Retail Outlet (Petrol Pump) Dealership in the State of Himachal Pradesh, ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 2 which was published on 25.11.2018, requiring applications to be filed online before 25.12.2018.
2) One retail outlet against OBC category was also advertised for Village .
Patta, Tehsil Arki, District Solan, H.P.
3) The petitioner, who is an unemployed youth and belongs to the OBC category, made an online application for allotment of the same on 21.12.2018, copy of which is filed as Annexure P-2.
4) Respondent No.5 also applied against the same OBC category.
5) As per Clause-4(v) of the Brochure for Selection of Dealers for Regular and Rural Retail Outlet (Annexure P-3), eligibility criteria prescribed was that the applicants would be classified into three groups as under:-
"Group 1: Applicants having suitable piece of land in the advertised location/area either by way of ownership/long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
Group 2: Applicants having Firm Offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
Group 3: Applicants who have not offered land in the application.
Applications under Group 3 would be processed/advertised to offer land only in case no eligible applicant is found or no applicant get selected under Group 1 & 2."
6) Both the petitioner as well as respondent No.5 fell in Group 2, i.e. they had a firm offer for suitable piece of land for purchase/lease which belongs to third party/parties.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 37) Petitioner contends that he gave an affidavit of one Jagdish, owner of land in KK no.51/54, Khasra nos.155/156 and 153/56, in which, the deponent stated that he was ready and willing to transfer the said land to .
the petitioner for establishing the petroleum outlet therein.
8) Respondent No.5 also offered land in KK no.4/5, Khasra No.167/70, measuring 7-6 Bighas, situated at Mauza Patta and had filed affidavit sworn in by one Leeladhar.
9) According to the petitioner, Leeladhar was not the sole owner of the said land; that he was a joint owner alongwith others, including one Dinesh Kumar; that there was a civil suit filed by the said Dinesh Kumar against Leeladhar and his wife, claiming to be joint owner in joint possession of the said land offered by 5th respondent, seeking relief of permanent prohibitory injunction under Section 38 of the Specific Relief Act, 1963, before the Civil Judge, Arki, District Solan, H.P., being Civil Suit no.229/1 of 2018; that on 02.11.2018 the said Dinesh Kumar had obtained an order from the said Civil Court directing the defendant Leeladhar and his wife to maintain status quo qua the nature and construction over the land till the next date of hearing; and that as per Clause 22 of the Brochure, the application of respondent no.5 was liable to be rejected for suppression/misrepresentation/furnishing incorrect or false information.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 410) It is also admitted that the said Dinesh Kumar had filed a complaint Annexure P-10 dt. 27.06.2018, before the Sr. Manager, Retail North of the BPCL, stating that Leeladhar cannot transfer the land to the 5th .
respondent without his consent.
11) However, there was a drawl of lots conducted by respondents 2 to 4 on 17.06.2019 and respondent No.5 was selected and a letter of intent was issued to him on 21.09.2019.
12) Petitioner contends that vide a complaint, Annexure P-6, made on whatsapp on 25.06.2019, he informed respondents no.2 to 4 about the fact that the land was being claimed as joint land by Dinesh; that Leeladhar was not the sole owner of the land; and by giving false information, the 5th respondent had misled the Corporation. Alongwith the whatsapp message, the petitioner also forwarded copy of the status quo order granted by the Civil Court on 02.11.2018 to respondents no.2 to 4.
13) On 10.08.2019, vide Annexure P-8, respondent no.4 informed the petitioner that as regards his complaint, document processing of selected candidates is still under way and that all the process laid down in the Dealer Selection Guidelines will be complied.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 514) Since no action was taken against the respondent No.5 and the Letter of Intent granted to him has not been cancelled, the petitioner filed this Writ petition on 30.01.2020.
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15) His main contention is that respondents no.2 to 4 had connived with respondent no.5 and granted him the dealership of the petroleum outlet in question in violation of the guidelines laid down by the Corporation in its brochure for selection of dealers issued on 24.11.2018 and in particular Clause-22 thereof.
Events after filing of the Writ Petition.
16) Notice was issued in the Writ petition on 26.02.2020.
17) Later, respondent No.5 entered appearance through a counsel on 25.08.2022 and filed reply.
Stand of respondent no.5.
18) In his reply, respondent no.5 contended that he offered the land in question for the purpose of setting up the petroleum outlet to the Corporation; though the Civil Suit No.229/1 of 2018 was filed by Dinesh Kumar, who was one of the co-sharers alongwith Leeladhar, the suit was withdrawn subsequently on 20.08.2019 and Dinesh Kumar gave an affidavit on 27.07.2019, stating that he had no objection if the petrol pump is allotted to respondent no.5 in the said land.
19) He further contended that lease-deed was executed for 30 years on 20.12.2019, that the dispute if any, was only between co-sharers, and ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 6 respondent no.5 was not a party thereto, and the land became free from all encumbrances as the dispute was settled. He also stated that Letter of Intent was issued on 21.09.2019 to him.
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Stand of respondent no.2 to 4.
20) Respondents no.2 to 4 supported the stand of respondent no.5 and contended that only after meticulously going through all the documents, including land papers provided by respondent no.5, his case has been processed, and he had been issued the Letter of Intent by respondents no.2 to 4 strictly in conformity with the Selection Brochure, 2018.
21) It is reiterated that before issuing the Letter of Intent, a compromise was reached between Leeladhar and Dinesh and the other co-owners of the offered land and Dinesh submitted an affidavit mentioning the Out of Court Settlement of the dispute between the co-owners of the land offered for establishment of the petrol pump by respondent no.5; and an application was also filed before the Civil Judge, Arki, for withdrawal of the pending Civil Suit and after such withdrawal only, registered lease-
deed dt. 20.12.2019 was taken by respondent no.5 from Dinesh and Leeladhar.
22) It is also admitted that there was an order of the Civil Court pending suit to maintain status quo qua the nature of the land and not to raise any construction or cut trees.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 723) It is contended that the petitioner is only an interloper having no right whatsoever to ask for cancellation of allotment of the retail outlet in favour of respondent no.5.
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Consideration by the Court.
24) We have noted the contentions of the parties.
25) From the facts narrated above, it is apparent that both the petitioner and the 5th respondent had given online applications for allotment of the retail outlet dealership in Category-2 to respondents no.2 to 4; that a draw of lots was held on 17.06.2019; and on 21.09.2019, letter of intent was issued to respondent no.5, for locating the petroleum outlet in KK no.4/5, Khasra no.167/70, measuring 7-6 Bighas, situated at Mauza Patta.
26) The said land, according to respondent no.5, was offered by one Leeladhar for setting up the retail petroleum outlet.
27) Copy of the application form submitted by respondent no.5 has been produced by respondent no.s 2 to 4 before this Court and it shows that in Column-13 where "land details" were required to be furnished, only the name of Leeladhar was mentioned as owner of the land and it was asserted that the land belongs to said Leeladhar and had been offered to the respondent No.5 for putting up the retail outlet of the BPCL.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 828) In the said application, there was also an undertaking given in Clause 15(a) that if it is found that the information given by the applicant/respondent no.5 is incorrect/false/misrepresented, then his .
candidature will stand cancelled and he would be declared ineligible for the retail outlet dealer.
29) At the end of the said application of respondent no.5, he also gave a declaration confirming that the information given in his application, (including the fact that the land is owned by Leeladhar alone) is true and correct and that any wrong information/ misrepresentation/suppression of fact would make him ineligible for the retail outlet dealership.
Alongwith the application, he had enclosed a notarized affidavit of Leeladhar, who claimed to be owning the land singly.
30) But admittedly, Leeladhar was not the sole owner of the land in question.
31) Dinesh Kumar was his brother and said Dinesh Kumar had initiated against Leeladhar a Civil Suit for permanent prohibitory injunction on 02.11.2018, much before the advertisement was issued by the BPCL, which suit was, in fact, pending as on the date of drawl of lots conducted on 17.06.2019. Admittedly, there was also a status quo order granted by the Civil Judge, Arki, District Solan, on 02.11.2018, directing Leeladhar and his wife, who were defendants in the suit, to maintain status quo qua the nature and construction over the suit land till the next date of hearing.
::: Downloaded on - 07/07/2023 20:37:28 :::CIS 932) None of these facts had been disclosed by respondent no.5 in his application.
33) Admittedly, Annexure P-3 Brochure issued by the Corporation for .
selection of dealer for retail outlets, contains Clause 22 which states as under:-
"22 FALSE INFORMATION If any statement made in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to have been suppressed/misrepresented/incorrect or false, then the application is liable to be rejected without assigning any reason and in case the applicant has been appointed as a dealer, the dealership is liable to be terminated. In such cases the candidate/dealer shall have no claim whatsoever against the respective Company."
34) Thus, if any statement made in the application submitted by an applicant like respondent no.5 was at any stage found to have been false, incorrect or certain facts are found to have been suppressed or misrepresented, then the application was liable to be rejected by the Corporation without assigning any reason and in case, an applicant had been appointed as a dealer, the dealership was liable to be terminated.
35) Strangely, notwithstanding such a Clause having been incorporated in the Brochure issued by the Corporation, and notwithstanding the fact ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 10 that the petitioner had informed about the false information furnished by respondent no.5 to respondents no.2 to 4 on 25.06.2019 ( including the factum of pendency of a Civil Suit between Leeladhar and his brother .
Dinesh Kumar), respondents no.2 to 4 went ahead and issued the Letter of Intent on 21.09.2019 to respondent No.5 in gross violation of Clause-
22, referred to above.
36) In our considered opinion, it was not open to respondents no.2 to 4/ Corporation to grant the retail outlet dealership to respondent no.5 in the face of Clause-22 of the Brochure, merely on the ground that there was a subsequent Out of Court Settlement between Leeladhar and his brother Dinesh Kumar and Dinesh Kumar later gave an affidavit stating that he has no objection for grant of retail outlet dealership to respondent no.5.
37) This is because in the application filed by respondent no.5 at Sr. no.13 where land details are to be furnished, respondent no.5 could have mentioned that Leeladhar and others were co-owners of the land, but instead, he mentioned only Leeladhar and did not mention either about the other co-owners or about the pendency of the civil suit between Leeladhar and his brother Dinesh Kumar.
38) In view of the undertaking given in the said application as well as declaration signed by respondent no.5 that wrong information/ misrepresentation/ suppression of facts would make him ineligible for ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 11 the retail outlet dealership, which would bind the 5th respondent, not only respondents no.2 to 4 cannot grant him the retail outlet dealership but cannot also they cannot defending their action in giving him the Letter of .
Intent by calling the petitioner as a medlesome interloper.
39) We fail to see how the petitioner can be considered as a medlesome interloper in the facts and circumstances of the case, when he was also a contender for the allotment of the retail outlet alongwith the respondent no.5.
40) As held in the decision of r Ramana Dayaram Shetty versus The International Airport Authority of India & Others,1 if an executive agency lays down certain standards which it professes its actions to be judged, it must scrupulously observe those standards. In the said case, the Supreme Court held that today the Government in a welfare State is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licenses, quotas etc.; the valuables dispensed by Government take many forms; many individuals and many more businesses enjoy largess in the form of Government contract, and the discretion of the Government or its agency is not unlimited, in that, it cannot give or withhold largess in its arbitrary discretion or its sweet will.
1(1979) 3 SCC 489 ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 12
41) This was reiterated in B.S. Minhas versus Indian Statistical Institute & Others,2 where the Supreme Court held that it is obligatory on the part of the respondent to follow its bye-laws since they have been framed for .
the conduct of its affairs to avoid arbitrariness and the respondent cannot escape liability for not following the procedure prescribed in the bye-
laws.
42) Recently, this was reiterated in M.P. Power Management Company Limited versus Sky Power Southeast Solar India Private Limited & Others3 and it was held that if an agency of the State had laid down a standard or a norm of eligibility and if a person submitting a tender did not satisfy this condition of eligibility, his tender would not be eligible for consideration. It held that this Principle had an independent existence apart from Article 14 of the Constitution of India.
43) Having regard to the settled legal position, we are of the opinion that the award of the retail outlet dealership by respondents No.2 to 4-BPCL to respondent no.5, cannot be sustained since respondent no.5 had misrepresented in his application that Leeladhar was the sole owner of the land offered for setting up the said outlet, but the truth was otherwise, and the land was co-owned by Dinesh Kumar and there was 2 (1983) 4 SCC 582 3 (2023) 2 SCC 703 ::: Downloaded on - 07/07/2023 20:37:28 :::CIS 13 also a civil litigation pending before the Civil Court, which was not disclosed by respondent no.5.
44) Accordingly, the Writ petition is allowed; the letter of intent issued on .
21.09.2019 by respondents no.2 to 4 to respondent no.5 is set aside; and the respondents are directed to consider the case of the petitioner for grant of the retail outlet dealership in the said village within six weeks.
The respondents no.2-4 together and the respondent no.5 shall pay costs of Rs.10,000/- each to the petitioner.
45) Pending miscellaneous application(s), if any, shall stand disposed of.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
July 06, 2023 Judge
(Yashwant)
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