Karnataka High Court
Anupama B Alva, vs The Ministry Of Petroleum And Natural ... on 5 November, 2020
Author: P.B.Bajanthri
Bench: P. B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE P. B. BAJANTHRI
WRIT PETITION NO.55216 OF 2013 (GM - RES)
BETWEEN:
Anupama B Alva,
W/o late B.C.Alva,
Aged about 44 years,
R/o Holebagilu,
Balehonnur Post,
N.R.Pura Taluk,
Chikmagalur District.
... Petitioner
(By Sri. Bipin Hegde, Advocate)
AND:
1. The Ministry of Petroleum and
Natural Gas,
Union of India,
New Delhi - 110 001.
Represented by its Secretary.
2. The Indian Oil Corporation Limited,
Unity Building, IV Floor,
J.C.Road,
Bangalore - 560 002.
Represented by its
Chief Area Manager.
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3. Sri.S.Sanath kumar,
S/o A.G.S. Murthy,
Annapurna Compound,
'B' Kanabur Village,
Balehonnur, N.R.Pura Taluk,
Chikmagalur District - 577 112.
... Respondents
(By Sri.M.R.Shailendra, Advocate for C/R3;
R1 deleted vide order dated 25.08.2014;
Sri.M.S.Narayan, Advocate for R2 (copy not served);
Sri.Dhananjay Joshi, Advocate for
Sri.Ravindra R., Advocate for R2)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
communication dated 28.02.2011 made by the R-2 vide
Annexure - F and etc.,
This Writ Petition coming on for Preliminary
Hearing in 'B' group this day, through physical
hearing/video conference hearing the Court made the
following:-
ORDER
In the instant petition, petitioner has prayed for the following reliefs:
"i) Quash the communication bearing reference No.BAO/RGGLV/11 dated 28.02.2011 made by the 2nd respondent (Annexure-F);
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ii) Quash clause 4(e) dated 04.10.2011 issued by the 2nd respondent vide Annexure-K;
iii) Quash the letter of intent issued by the 2nd respondent to 3rd respondent on 20.01.2012 vide Ref.No.BAO/LPG/RGGLV/ LOI/BHONNURU vide Annexure-M and such other reliefs.
2. The 2nd respondent by its advertisement dated 31.03.2010 invited application from the eligible candidates for allotment of LPG dealership under the Rajiv Gandhi Rural LPG Distributors Appointment Scheme vide (Annexure-A).
3. Amongst petitioner and the 3rd respondent are candidates for the aforesaid LPG distributorship in the place called Balehonnur, Narashimarajapura Taluk, Chikkamgaluru District under general category.
4. Petitioner's application was turned down on 28.02.2011 "Annexure-F" on the score that she did not -4- own the land in terms of the definition of family unit and as per the advertised RGGLV location. Feeling aggrieved by the communication dated 28.02.2011, petitioner preferred writ petition in No.14202/2011, it was disposed on 13.04.2011. On the request of learned counsel for the petitioner therein to permit her to withdraw and approach the official respondents for consideration of her representation, her representation was rejected on 04.10.2011, wherein the official respondents have reiterated that the land offered by the petitioner is of her father's and she does not come under the purview of family unit definition. Thus, the petitioner was made ineligible. In view of these facts and circumstances, the petitioner has questioned the validity of communication dated 28.02.2011, Clause - 4
(e) in Annexure-K and letter dated 20.01.2012 (Annexure-M).
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5. Learned counsel for the petitioner submitted that clause 4 (e) in the brochure dated 04.10.2011 which discriminate insofar as identification of the members of the family. Family unit consists of individual concerned, unmarried son(s)/unmarried daughter(s) and further widow/widower. However, married daughter (widow) has been excluded. Thus, there is a discrimination in the definition of family unit under Clause 4 (e) of Annexure-C brochure in not including married daughter (widow) is liable to be set aside.
6. It was further contended that petitioner's father gave Gift Deed on 20.08.2011 whereas allotment of LPG dealership to the 3rd respondent is 20.01.2012. Consequently, the petitioner was eligible to be considered pursuant to the Gift Deed dated 20.08.2011. It was also contended that the 3rd respondent also do not fulfill the eligible criteria as on the last date -6- assigned as on 05.01.2011. For the reasons that 3rd respondent original Sale Deed in favour of 3rd respondent's father was on 04.01.2011, Exchange Deed is dated 28.05.2012 and Rectification Deed is dated 21.03.2013. Therefore, 3rd respondent do not fulfill the eligible criteria as on 05.01.2011 as his father was not in possession of the required land as on 05.01.2011. If the 3rd respondent eligibility is taken into consideration which is beyond the last date as 05.01.2011, in such an event petitioner's Gift Deed dated 20.08.2011 should have been taken into consideration. Thus, there is a discrimination meted out to the petitioner in respect of allotment of LPG dealership on 20.01.2012 to the 3rd respondent.
7. The learned counsel for the 2nd respondent submitted that 3rd respondent's father purchased Sy.No.256 on 04.01.2011 from one Smt. Umadevi. But she was also erstwhile owner to Sy.No.17/3 whereas -7- possession was given to the 3rd respondent of Sy.No.17/3 which is adjacent to Sy.No.256. Sy.No.17/3 owner is one K.C.Srinivas who has sold the property to Shivaramu. Smt. Umadevi and K.C.Srinivas are wife and husband. Even though, sale deed is in respect of Sy.No.256 insofar as 3rd respondent is concerned, physically possession was given Sy.No.17/3 in order to rectify the aforesaid issue, parties have entered into Exchange Deed on 28.05.2012. Further Rectification of Deed was executed on 23.01.2013. The Rectification of deed dated 23.01.2013 would relate back to 04.01.2011 the original sale deed date 04.01.2011, since it is only rectification of survey numbers 256 to 17/3. Consequently, 3rd respondent is eligible in view of the fact that 3rd respondent's father owns a land as on 05.01.2011 which is the last date for consideration of application for LPG dealership pursuant to Annexure-A, notification.
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8. It was further contended that the family unit in the brochure incorporated after due examination of pros and cons of family unit has been defined who are all fall under the definition of family unit. If a daughter is married in such an event she would not be the member of parental family unit. Thus, petitioner has not made out a case so as to interfere with the definition of family unit under Clause 4(e) brochure. The allotment of LPG dealership to the 3rd respondent was way back to the year 2012. Therefore, at this distance of time, it is not appropriate to disturb the allotment since both 3rd respondent and 2nd respondent have invested sufficient money in the LPG distributorship unit. On this point, learned counsel for the 2nd respondent cited a decision in the case of Sanjay Kumar Shukla v. Bharat Petroleum Corpn. Ltd.., reported in (2014) 3SCC 493, Para Nos.17, 19 and 20 are reads as under:
"17. In Air India Ltd. V. Cochin International Airport Ltd. there was a further -9- reiteration of the said principle in the following terms: (SCC pp.623-24, para 7) "7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklala N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not
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amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and shouled exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
19. We have felt is necessary to reiterate the need of caution sounded by this Court in the decisions referred to herein above in view of the serious consequences that the entertainment of a writ petition in contractual matters, unless justified by public interest, can entail. Delay in the judicial process that seems to have become inevitable could work in different ways. Deprivation of the benefit of a service or facility to the public; escalating costs burdening the public exchequer and abandonment of half completed works and projects due to the ground realities in a fast- changing economic/ market scenario are some of the pitfalls that may occur.
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20. In the present case, fortunately, the litigation has not been very time-consuming. Nothing has been suggested on behalf of the Corporation that the establishment of a retail outlet at Areraj, East Champaran District in the State of Bihar is not required as on date. It can, therefore, be safely understood that in the instant case the public of the locality have been deprived of the benefit of the service that the outlet could have generated. We have already indicated that the present litigation initiated by respondent 7 does not constitute a very bona fide exercise on the part of the said respondent and the entire litigation appears to have been driven by the desire to deny the fruits of the selection in which the appellant was found to be the most eligible candidate. Whether the outlet is operated by the appellant or respondent 7 is of no consequence to the ultimate beneficiaries of the service to be offered by the said outlet. The above highlights the need of caution that was imperative on the part of the High Court while entertaining the writ petition and in passing orders therein. Be that as it may, in the totality of the facts of the present case, we are of the view that it would be just and proper to direct the Corporation, if it is of the view that the operation of the retail outlet is still justified by the exigencies, to award the same to the appellant by completing the requisite formalities in accordance with the procedure laid down by the Corporation itself."
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9. The learned counsel for 3rd respondent submitted that at the outset that the petitioner is not eligible in view of the fact that she do not fulfill the eligibility criteria laid down in the para 4 of the brochure. Even though, she is a widow, her status in the family unit would not fit into so as to contend that she is eligible pursuant belated Gift deed dated 20.08.2011, which is subsequent last date i.e., 05.01.2011.
10. Further, learned counsel for the 3rd respondent submitted that with reference to memo dated 12.10.2020 document No.2 and 3, dated 12.07.2013 and 23.01.2013 relating to possession letter issued by the Tahsildar and Rectification of Deed. These two documents reflect that error committed in the Sale Deed dated 04.01.2011 has been rectified. The Rectification Deed dated 23.01.2013 would be effective from 04.01.2011 for the reasons that it is only
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rectification of Sale deed dated 04.01.2011 to the extent of Sy.No.256 and Sy.No.17/3 and it is only an inter changed among the 3rd respondent and Sri. Shivaram property. There was a confusion in respect of possession and survey number shown in the sale deed. The respondent No.3 was in possession of Sy.No.17/3 with reference to Sale Deed dated 04.01.2011. However, in the sale Deed dated 04.01.2011 inadvertently Sy.No.256 has been cited instead of Sy.No.17/3. Therefore, Rectification Deed would relates back to 04.01.2011 and 3rd respondent fulfilled eligibility criteria laid down in para 4 relates to common eligibility criteria for all categories.
11. The learned Counsel for the petitioner countered the 2nd respondent's counsel contention with reference to Sanjay Kumar Shukla's case cited (supra) decision with reference to para -9. He has also pointed out para 20.
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"9. After the selection for the dealership was finalized by the Corporation on 30.12.2010, a reference was made to the District Authority on 24.01.2011 for grant of NOC to enable the Corporation to apply for the necessary license under the Petroleum Rules, 2002. By communications dated 11.07.2011 and 16.07.2011 the District Authority informed the Corporation that NOC cannot be granted on account of the fact that the land on which outlet was proposed was involved in Partition Suit No.7 of 2006. It would be of some significance that the appellant was impleaded as defendant in the said suit on 04.02.2011 i.e., after 5 years of its institution and that too after the finalization of the select list/ merit panel by the Corporation. An order of injunction to restrain the District Authority from issuing NOC was sought by the plaintiff in Partition Suit No.7 of 2006 which was refused by the learned trial court on 19.07.2011. Taking note of the aforesaid fact i.e., refusal of injunction, the District Authority, once again, sought for a report from the Sub-divisional Officer whether NOC can be granted. This was on 04.08.2011. The Sub-divisional Officer sought the opinion of the Government Advocate and submitted a report dated 18.08.2011 recommending grant of NOC. These documents, though vital, were not before the High Court but have been placed before us."
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12. The cited decision do not assist the 2nd respondent's version.
13. Heard learned counsel for the parties.
14. Clause-(4) 'e' of brochure is reproduced here under:
"e. Fulfill multiple dealership/ distributorship norm Multiple dealership/ distributorship norms means that the applicant or any other member of 'family unit' should not hold a dealership/ distributorship/ RGGLV or Letter of Intent (LOI) for a dealership/ distributorship/ RGGLV of a PSU Oil Company ie., only one Retail Outlet/ SKO- LDO dealership/ LPG distributorship/ RGGLV of PSU Oil Company will be allowed to a 'Family Unit'.
'Family Unit' in a case of married person/ applicant, shall consist of individual concerned, his/ her Spouse and their unmarried son(s)/ daughter(s). In case of unmarried person/ applicant, 'Family Unit' shall consist of individual concerned, his/ her parents and his/ her unmarried brother(s) and unmarried sister(s). In case of divorcee. 'Family Unit' shall consist of individual concerned, unmarried son(s)/ unmarried daughter(s) whose custody is given to him/ her. In case of widow/ widower. 'Family Unit' shall consist of
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individual concerned, unmarried son(s)/ unmarried daughter(s)."
15. Learned counsel for the petitioner submitted that non-inclusion of married daughter-widow amounts to discrimination. The said contention cannot be appreciated for the reasons that family unit is required to be examined with reference to parents children. Undisputedly, petitioner was married and later on her husband died. On account of status of widow, she cannot be a member of family unit of her parents. Thus, the petitioner has not made out a case so as to contend that family unit referred in 4 (e) do not consist of married daughter-widow as member of her parent and she would be member of her parent unit. Therefore, there is no infirmity in the definition of 'Family Unit'.
16. Challenge to rejection of her application, it is in order for the reasons that as on the last date of submission of application i.e., 05.01.2011, the
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petitioner did not own land. She got gifted land from her father only on 20.08.2011. In this backdrop, the petitioner has been made ineligible which is in accordance with the brochure read with Annexure-A, Advertisement and Prescription of last date as 05.01.2011.
17. The learned counsel for the petitioner vehemently contended that the 3rd respondent is also not eligible and allotment of LPG dealership as on 20.08.2012 (Annexure-N) is liable to be set aside on the score that 3rd respondent's father owns a land on 04.01.2011 with reference to Sy.No.256. Since, the same has been rectified like Exchange Deed dated 28.05.2012 and further Rectification Deed dated 23.01.2013. If the Rectification Deed read with Exchange Deed is taken into consideration, 3rd respondent is not eligible as on 05.01.2011. Thus, consideration of 3rd respondent name for allotment of
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LPG dealership is contrary to clause 4(g) of the brochure. 4(g) copy reads as under
"g. Own a suitable land (plot) of minimum 20 metre X 24 metre in dimension at the advertised RGGLV location for construction of LPG cylinder Storage Godown.
Own means having clear ownership title of the property in the name of applicant/ family member of the 'Family Unit' as defined in multiple dealership/ distributorship norm. In case of ownership/ co-ownership by family member, consent letter from the family member will be requires.
Land for construction of Godown will be considered suitable, if it is freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Pipelines/ Canals/ Drainage/ Nallahs should not be passing through the plot."
18. The learned counsel for the petitioner vehemently submitted that with reference to the aforesaid clause, one must have a clear ownership of the property with reference to last date as on
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05.01.2011. The 3rd respondent did not fulfill the aforesaid criteria. Consequently, allotment of LPG dealership to the 3rd respondent is illegal and arbitrary.
19. The aforesaid contention of the petitioner cannot be appreciated for the reasons that as on 05.01.2011, the 3rd respondent's father was in possession of Sy.No.17/3. Sy.Nos.256 and 17/3's original owners are husband and wife i.e., K.C.Srinivas and Umadevi. Both Sy.Nos.256 and 17/3 were sold to 3rd respondent and one Sri. Shivaramu. In the aforesaid transaction on 04.01.2011, there were certain errors in respect of mentioning survey number. 3rd respondent's father sale transaction was inadvertently referred to Sy.No.256 instead of 17/3 in order to rectify the aforesaid error, both Sri. Shivaramu and 3rd respondent's father Sri. A.G.S.Murthy, the parties have proceeded for Exchange Deed and further Rectification of Deed on 20.05.2012 and 23.01.2013 respectively.
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Rectification of Deed dated 23.01.2013 in respect of Sale Deed dated 04.01.2011 has the effect of retrospectivity, since rectification of survey number in the Sale Deed dated 04.01.2011.
20. In view of these facts and circumstances, the 2nd respondent rightly held that 3rd respondent is eligible pursuant to (Annexure-A) brochure and further Sale Deed dated 04.01.2011, Exchange deed dated 20.05.2012 and Rectification Deed dated 23.01.2013. The petitioner contention that 3rd respondent is ineligible since as on the last date of submission of application, 3rd respondent do not fulfill requisite criteria, is hereby rejected on the score of the Rectification Deed dated 23.01.2013 has retrospective effect from the original Sale Deed dated 04.01.2011.
21. Citation cited on behalf of 2nd respondent has no relevancy to the present case, when petitioner has not made out case on merit.
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In view of the above facts and circumstances, the writ petition stands dismissed.
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JUDGE Mkm