Kerala High Court
Vasanth Kumar vs Hindustan Petroleum Corporation Ltd
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 27TH DAY OF AUGUST 2014/5TH BHADRA, 1936
WP(C).No. 9474 of 2014 (H)
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PETITIONER:
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VASANTH KUMAR, OLLIKKAT SREEDHARAN,
'KRISHNATHILAKAM', OLD BAZAR, KOLLENGODE P.O,
PALAKKAD 678 506.
BY ADVS.SRI.NIRMAL. S
SMT.VEENA HARI
RESPONDENT(S):
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1. HINDUSTAN PETROLEUM CORPORATION LTD.,
REPRESENTED BY SENIOR REGIONAL MANAGER,
KOCHI, LPG REGIONAL OFFICE, SEAPORT-AIRPORT ROAD,
IRUMBANAM P.O, ERNAKULAM 683 501.
2. HINDUSTAN PETROLEUM LTD,
REPRESENTED BY ITS EXECUTIVE DIRECTOR,
REGISTERED OFFICE 17, JAMSHEDJI TATA ROAD,
MUMBAI 400 020.
R1 & R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R1& R2 BY ADV. SRI.P.GOPINATH
R1 & R2 BY ADV. SRI.P.BENNY THOMAS
R1 & R2 BY ADV. SRI.K.JOHN MATHAI
R1 & R2 BY ADV. SRI.JOSON MANAVALAN
R1 & R2 BY ADV. SRI.KURYAN THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2014,
THE COURT ON 27-08-2014 DELIVERED THE FOLLOWING:
AS
WP(C).No. 9474 of 2014 (H)
APPENDIX
PETITIONER'S EXHIBITS :
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EXHIBIT P1 : COPY OF THE NOTICE OF APPOINTMENT OF LPG
DISTRIBUTORS DATED 30.7.11.
EXHIBIT P2 : COPY OF THE APPLICATION FROM DULY FILLED UP BY THE
PETITIONER.
EXHIBIT P3 : COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT
ISSUING SERIAL NO.DATED 31.10.11.
EXHIBIT P4 : PETITIONER HAD FILLED UP THE APPLICATION AFTER
REFERING TO THE GENERAL INSTRUCTIONS PROVIDED
ALONG WITH THE APPLICATION FORM.
EXHIBIT P5 : COPY OF THE GUIDELINES FOR SELECTION OF REGULAR LPG
DISTRIBUTORSHIP APPLICABLE TO ALL LOCATIONS
ADVERTISED BETWEEN APRIL 2011 AND DECEMBER 2012.
EXHIBIT P6 : COPY OF THE LETTER DATED 23.3.12.
EXHIBIT P7 : COPY OF THE REGISTERED ASSIGNMENT DEED 1596/11 OF
SRO DATED 19.8.11.
EXHIBIT P8 : COPY OF THE REGISTRED LEASE DEED ISSUED BY THE
LANDLORD SRI.A.NARAYANAN DATED 23.08.11.
EXHIBIT P9 : COPY OF THE AGREEMENT DATED 20.08.11.
EXHIBIT P10 : COPY OF THE TITLE DEED NO.1597/11 OF SMT. GAURI BIJU
DATED 19.08.11.
EXHIBIT P11 : COPY OF THE LETTER ISSUED BY THE IST RESPONDENT.
EXHIBIT P12 : COPY OF THE RECTIFICATION DEED NO.2279/12 DATED
12.12.12.
EXHIBIT P13 : COPY OF THE AGREEMENT OF LEASE DATED 15.11.13.
EXHIBIT P14 : COPY OF THE GUIDELINES FOR SELECTION OF LPG
DISTRIBUTORS FOR THE YEAR 2013.
EXHIBIT P15 : COPY OF THE JUDGMENT DATED 18.03.13 IN WPC 5866/13.
EXHIBIT P16 : COPY OF THE REJECTION LETTER DATED 28.01.14.
(CONT..)
WP(C).No. 9474 of 2014 (H)
RESPONDENT(S)' EXHIBITS
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EXT. R1(a) : COPY OF THE LETTER DATED 11.4.2012 ISSUED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXT. R1(b) : COPY OF THE FVC REPORT AS REGARDS THE FIELD
VERIFICATION CONDUCTED ON 2.11.2012.
EXT. R1(c) : COPY OF THE LETTER DATED 8.10.2012 FROM THE
PETITIONER ONGALLUR GRAMA PANCHAYATH.
EXT. R1(d) : COPY OF THE LETTER NO. A3. S528/12 DATED 8.10.2012 FROM
SECRETARY,ONGALLUR GRAMA PANCHAYATH CERTIFYING
THE WIDTH OF A.K.T.K.M. ROAD.
EXT. R1(e) : COPY OF THE FVC REPORT AS REGARDS THE FIELD
VERIFICATION CONDUCTED ON 16.8.2013.
EXT. R1(f) : COPY OF THE EMAIL DATED 16.11.2013 BY THE SALES
OFFICER OF HPCL, G. SUBRAMANYA, TO THE 1ST
RESPONDENT (WITHOUT ATTACHMENTS).
/TRUE COPY/
P.A. TO JUDGE
AS
A.MUHAMED MUSTAQUE, J.
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WP(C).No.9474 of 2014-H.
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Dated this the 27th day of August, 2014.
J U D G M E N T
The petitioner is an applicant for award of LPG distributorship at Pattambi in Palakkad District. The petitioner would submit that he had submitted all the necessary documents along with the application for appointment of LPG distributor. Based on the application and verification thereon, the petitioner was allowed to participate in the draw conducted on 8.8.2012 at the District Collector's office at Palakkad. The petitioner was selected in the draw and was empanelled as a candidate. Ext.P11 would confirm the above claim of the petitioner.
2. The petitioner approached this Court challenging Ext.P16 proceedings, rejecting the award of the LPG distributorship, issued by the petroleum company. The reasons stated in Ext.P16 are as follows:
WP(C).No.9474/2014-H. 2 "1. The approach road width to the proposed godown was found to be approximate 5.3 m against the required width of 7m as mentioned in the advertisement dated 30.7.2011 for which the application was submitted by you.
2. The alternate land offered to satisfy the above requirement cannot be accepted as per the Regular Distributorship Selection Guidelines as it is not a Registered lease and also the offer is after the date of your application which was 27.8.2011."
3. The petitioner would submit that he has produced documentary proof of his godown and showroom along with Ext.P9 confirming the right of easement by grant to show the access to the proposed godown. According to the petitioner, Ext.P9 clearly indicates that the access to the proposed godown is 7 meters. It is further submitted that there is no requirement to have a registered deed in respect of easement of way in Ext.P9. Ext.P9 is an easement of grant given to the petitioner. Ext.P13 is an agreement of lease. The case of the petitioner is that Ext.P13 was produced because during the field verification, the officials refused to look into Ext.P9 stating that it is only an WP(C).No.9474/2014-H. 3 agreement conferring a right to use a way. Exts.P9 and P13 are in respect of the same way claimed by the petitioner.
4. Apparently, the petitioner's application for distributorship has been rejected for inadequate width of the approach road to the proposed godown and also on account of non registration of the lease (Ext.P9) and also for the reason that the offer (presumably, regarding the way in Ext.P9) is made after the date of application which was dated 27.8.2011. This Court in WP(C).No.12649/2013 and WP(C).No.6453/2014 held that the credentials of the parties will have to be analysed and appreciated as on the date of the application.
5. Based on the award of LPG distributorship, a field verification was conducted. The field verification, as disclosed from the counter-affidavit, was held on 16.8.2013.
Ext.P5 is the brochure on guidelines for selection of Regular LPG distributorship. Clause 7 of Ext.P5 prescribes the eligibility criteria for individual applicants. It is stated in clause 7 (vi) of the eligibility criteria that the plot of land WP(C).No.9474/2014-H. 4 should be freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road). In Ext.P1 notification it is mentioned that the width of the approach road should be 7 meters. There is no mention in Ext.P5 brochure that the approach road should be owned by the applicant under a registered lease or other registered document. Therefore, I am of the view that the stand of the respondents with regard to the registration of Ext.P9 is unsustainable.
6. The next question is whether the approach road was available with the petitioner at the time of submitting the application on 27.8.2011. It is admitted that there is no requirement to furnish the details of the approach road along with the application. The principal contention taken by the petroleum company in the counter-affidavit and the additional counter-affidavit is that on the date of field verification, the approach road, now claimed to have the width of 7 meters as per Ext.P9, was not there as claimed by the petitioner. It is contended that the petitioner did not WP(C).No.9474/2014-H. 5 produce Ext.P9 along with Exts.P7 and P8. The respondent relies on Ext.R1(a). The case of the respondent company is that Ext.P9 agreement is backdated and procured after the field verification was completed.
7. Thus, a disputed question in this writ petition has arisen as to the claim of the petitioner based on Ext.P9. The outcome of the writ petition will be based on the findings of the disputed facts. If the petitioner was having the right to use the way in Ext.P9 at the time of submitting the application, as it was not a requirement to produce Ext.P9 along with the original application, the petitioner necessarily would succeed. However, if the petitioner was not in use of the way in Ext.P9 at the time of submitting the application, he will not be entitled for the relief sought in this writ petition.
8. Ext.P16 apparently refers to Ext.P9. However it is rejected on the ground that it is not registered. In view of the discussion as has been made above there is no requirement of a registered access to the petitioner's WP(C).No.9474/2014-H. 6 property. The petitioner has a case that he has shown Ext.P9 to the field verification team. Ext.P9 is dated 20.8.2011, which is after the issuance of Ext.P1 notification but before the application made by the petitioner as per Ext.P2 which is dated 27.8.2011. Ext.R1(e) is the field verification report. In column 9 it is clearly mentioned that the approach road is found width of 5.3 meters instead of 7 meters. It appears that the petitioner has made a request to the first respondent to re-visit the godown and the concerned official of the respondents has also visited the godown and the petitioner provided Ext.P13 (referred as an agreement in the communication of the respondent). Ext.R1(f) refers to such an agreement. Ext.R1(f) particularly mentions that an agreement was made available by the petitioner on the visit on 15.11.2013. It appears that the reference made in Ext.P16, that the alternate offer of land is made after the date of the application, is based on the above request made by the petitioner on 15.11.2013. It is apparent that Ext.P9 is WP(C).No.9474/2014-H. 7 produced subsequent to the field verification as the petitioner was encountered with a situation of rejecting the application for want of access of the width of 7 meters as mentioned in the application. I affirm the stand of the respondent that Ext.P9 is produced only subsequently, on appreciation of exchange of communications, field verification report, etc.
9. However, the question that arises in this case is whether non-production of Ext.P9 itself will give a right to reject the application. As has been noted earlier, there is no requirement as such to produce the document to show access along with the application. Therefore, production of the document on a subsequent stage after the field verification was over, is inconsequential. The question is whether there was any access as on the date of submitting the application which would determine the eligibility. If the way claimed by the petitioner was in existence and available for the petitioner as on the date of the application, the fact that the document produced for evidencing the way was WP(C).No.9474/2014-H. 8 subsequently after the field verification was over, is immaterial. The determination of the eligibility is based on the rights available to the petitioner in respect of the property and in the way as on the date of the application. The respondent on the other hand proceeded on the assumption that subsequent production of document cannot be acted upon. Though it mentioned that the offer is made after the application, I am of the view that it requires a reconsideration and an enquiry has to be made by the officials of the respondents after giving an opportunity to the petitioner to find whether the way claimed in Ext.P9 was in existence as on the date of the application. On such enquiry if it is found that the way was in existence as on the date of the application, necessarily the petitioner has to be considered for award of the distributorship as there is no other impediment in granting such distributorship. However, if no way as claimed in Ext.P9 is in existence on the date of the application, his claim has to be rejected. Accordingly Ext.P16 is set aside. I would hasten to say that WP(C).No.9474/2014-H. 9 the anomaly that has arisen in this writ petition is occasioned on account of the reason that there is no requirement of furnishing the details of the access road along with the application. The petroleum company shall make necessary provision in the application itself to obtain the details of the access, so as to avert claims being made subsequently. Needful shall be done by the respondent in the light of direction as above within a period of one month from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, (Judge) Kvs/-
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