Punjab-Haryana High Court
Shashi Chauhan vs Union Of India And Others on 24 July, 2013
Bench: Sanjay Kishan Kaul, Augustine George Masih
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Letters Patent Appeal No. 1040 of 2010 (O&M)
Date of Decision: 24.07.2013
Shashi Chauhan ..Appellant
Versus
Union of India and others ..Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Raj Mohan Singh, Advocate, for the appellant.
Mr. Raman Sharma, Advocate, for respondent No.2.
Dr. Anmol Rattan Sidhu, Sr. Advocate with
Mr. M.P.Goswami, Advocate, for respondent No. 5.
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SANJAY KISHAN KAUL C.J. (Oral)
Respondent No. 5 Ajay Goswami filed Civil Writ Petition No. 10791 of 2009 before this Court making a grievance about the exclusion of his candidature in selection for awarding dealership of LPG distributorship. The exclusion of the petitioner (now respondent No. 5) was based on a comparative merit where marks awarded to number of candidates were higher and the first three candidates were empanelled for further consideration. It was urged that the marks had not been correctly awarded.
2. The total allocation of marks had to be made out of 100, out of which 35 marks were for a parameter of capability to provide the infrastructure and facilities as per Clause 14.1 of the brochure issued in LPA No. 1040 of 2010 -2- June, 2007. Respondent No. 5 was awarded 15 marks as against the maximum 35 marks allocated towards the said parameter. It is this aspect which was sought to be assailed.
3. The grievance arose out of the fact that against the specification/dimension of the plot, the petitioner had given the area of the land as two acres with 400 feet front at Ambala-Chandigarh National Highway as available for godown and the same was also specified for the suitability of the showroom. In so far as the parameter of ownership was concerned, the petitioner was stated to be owner of 4 Bighas though the family owns 8 Bighas of land equivalent to two acres. The relevant clause 13-A1 of the application dealing with this aspect, as filled in by respondent No.5, is reproduced hereinunder:-
13A-1 Do you have a suitable land at or within 15 KM from the advertised location for LPG godown or LPG godown readily √ / No. available owned/leased (15 yrs minimum) in your own name or Yes in name any member of your 'Family Unit'.
Note: ('Family Unit' in case of married applicant, shall consist of applicant, his/her spouse and their unmarried son(s)/daughter(s). In case of unmarried applicant, 'Family Unit' shall consist of applicant, his/her parents and his/her unmarried brother(s)/sister(s).
4. Respondent No.5 is unmarried man and thus his claim was that the ownership of his parents of 4 Bighas had to be included, as the same has become a family unit in terms of the aforesaid parameters. Thus, respondent No.5 had been awarded marks wrongly. LPA No. 1040 of 2010 -3-
5. Learned Single Judge found that all the parameters had been fulfilled and thus respondent No.5 had been awarded marks wrongly and was entitled to full marks, with the result that his marks would increase to 95.3 marks placing him at 3rd position and comes within the zone of consideration of the panel.
6. The appellant, who was originally at Sr. No. 3 position, has been knocked out of the picture and thus has assailed the said order of the learned Single Judge, deciding the writ petition on 12.03.2010, in the present Letters Patent Appeal. The Review Application filed by the appellant was dismissed on 26.04.2010 inter-alia dealing with the plea of the appellant that the property abuts the public road and thus violates Clause 8 of the terms & conditions. It was held that it was misreading of the said clause and infact it was desirable proper access to the site by availability of the road. Relevant Clause 8 is as under:-
"8. BASIC FACILITIES REQUIRED FOR OPERATION OF LPG DISTRIBUTORSHIP 8.1 GODOWN FOR STORAGE OF FILLED LPG CYLINDERS:-
Godown approved by Chief Controller of Explosives is required for storage of filled cylinders.
Godown/land for construction of Godown will be suitable, if it is located within about 15 Kms or in the area of operation (trading area) of the advertised location, freely accessible through all weather motorable approach road. The plot should be plain, in one contiguous lot, free from overhead power transmission or telephone lines.LPA No. 1040 of 2010 -4-
Pipelines/Canals/Drainage/Nallahs/Public Roads should not pass through the plot.
Minimum Dimensions of plot: 27 m x 26.15 m.
8.2 SHOW ROOM Showroom as per the standard layout can be made in a shop/land located in the area of operation (trading area) of the advertised location for LPG distributorship and should be easily accessible to general public through a suitable approach road.
Minimum Dimensions of plot : 27m x 26.15 m.
....emphasis supplied."
7. During the pendency of the present writ petition, vide an order dated 19.02.2013, it was directed that respondent No.2 should re-determine the inter-se merit/eligibility of the remaining three candidates i.e. the appellant, respondent No.5 and one Sanjiv K.Sharma and the result be produced before this Court. The aforesaid candidates had been granted an opportunity of representation while determining their respective eligibility/merit. In pursuance to this order, an affidavit has been filed in Court today, which is taken on record.
8. The net result of the process undertaken in compliance of the aforesaid order is as under:-
Sr. No. Name L-1+L-2 Total Marks Merit
Marks position
1. Sanjeev 89+7.6 96.6 1St
K.Sharma
2. Rajiv Jindal 89+6.5 95.5 2nd
3. Ajay Goswami 89+6.3 95.3 3rd
4. Shashi Chauhan 89+6.0 95.0 Not
empanelled
LPA No. 1040 of 2010 -5-
It has been explained that in so far as Rajiv Jindal is concerned, he had relied upon the document which had been found to be fabricated and thus he withdrew his writ petition. In case of Sanjeev K.Sharma the land was found to be 'L-shaped' and thus was not suitable and respondent No.5 being at Sr. No. 3 and the land having been found to be suitable was found entitled to allotment. The occasion thus to scrutinize the suitability as per parameters of the appellant did not arise. The aforesaid has been done in consonance with the brochure where Clause 16 reads as under:-
"16. FIELD VERIFICATION:-
16.1 The field verification will be conducted for 1st candidate in the merit panel. If found eligible and no complaint is pending or no stay is granted by any court, then Letter of Intent (LOI) will be issued.
16.2 If the No.1 candidate is not found suitable/fails to fulfill the terms and conditions of the award of distributorship or the award is to be cancelled for any reason whatsoever, the distributorship will be offered to the 2nd candidate in the merit panel after necessary field verification.
16.3 If the 2nd candidate also fails to fulfill the terms and conditions of offer or found unsuitable for any reason whatsoever, then the distributorship will be offered to the 3rd candidate in the merit list.
16.4 If the 3rd candidate also fails to fulfill the terms and conditions of offer or found unsuitable for any reason whatsoever, or in case where no 2nd or 3rd candidates are available in the 'merit panel' as explained above, the location may be re-advertised at the discretion of the oil company."LPA No. 1040 of 2010 -6-
9. The aforesaid thus shows that in terms of the seniority of marks, the second candidate is considered only if the first is not found suitable and the same is the position for the third candidate if second is not found suitable. Since respondent No.5 as third candidate was found suitable, the viability of the proposal of the appellant was not examined being lower in marks.
10. Learned counsel for the appellant faced with the aforesaid position, thus, seeks to raise the same issue what was raised before the learned Single Judge i.e. the marks were correctly awarded to respondent No.5 originally. The respondent No.5 did not meet the essential parameters of Clause 8.1 in view of location of his land near the National Highway (as held in the Review Application).
11. On consideration of the submissions we find no merit in the second aspect of the matter as the aforesaid parameter is clearly met by respondent No.5. It would be misreading of the clause to state that because the highway passes next to the plot, it would amount to passing through the plot to incur disqualification as per Clause 8.1. The learned Single Judge has thus rightly dealt with this issue in the order dated 26.04.2010 while passing orders on with the review application. We extract the relevant portion as under:-
" 4. The other objection by the counsel for the 5th respondent is that the property abuts a public road and the terms and conditions for locating a godown laid down that public road shall not pass through a plot. In my view, there is a clear misreading of clause 8 LPA No. 1040 of 2010 -7- of the terms and conditions mentioned in the brochure, for, abutment of a public road to a property is not the same as a public road passing through a property. Infact, it will even be desirable that there is an immediate access to the public road and the fact that the property lies adjacent to a highway, cannot be said to be in any way disqualification. It is also contended by him that the property is not an exclusive property of the petitioner and it is owned jointly by others. This objection is also taken for the first time which will have no relevance to the documents which have been submitted already by the petitioner and to which appropriate marks have also been assigned."
12. As far as the first dispute is concerned, vis.a.vis. of the correct marks in the context of criteria laid down in para 14.1 read with Clause 13-A(1) of the application, reproduced hereinabove, we are of the view that once again the reasoning of the learned Single Judge cannot be faulted. As explained it is a family unit which has to be taken into account as per the definition. As respondent No.5 is a bachelor, the land owned by respondent No.5 and his parents which meet the parameters. In para No.4 of the order dated 12.03.2010, it has been observed by the learned Single Judge as under:-
"4. The total extent of property covered under the sale deeds for 8 bighas of which one document stands in the name of the petitioner himself and the another documents stands in the name of his parents. The petitioner claims that he attached the affidavit of his parents also stating that they belong to a one family unit and that they had no objection to the property being offered as a godown. On an ultimate consideration, it could only be seen that the award of lower marks have been made on the basis that the petitioner had not given specific linear measurements. If the property had been merely referred with reference to area then probably the LPA No. 1040 of 2010 -8- Oil Company would be justified in saying that it was not possible to ascertain the specification as it had been set out in the advertisement. The specification in the advertisement is that with reference to a godown, which was required to be 27mx26.15m and with reference to LPG showroom, the measurement was required to be 3mx4.5m. If in the application form, there is a reference to the fact that a property has frontage of 400 feet along the main road, which means that the other dimensions must have been more than 220 feet, for that would make 2 acres of land. The specification would, therefore, remain fulfilled for the petitioner's claim as well. The award of 25 marks appears to be, therefore, incorrect and he would have been entitled to a consideration of full marks. If against 35 marks, the petitioner had been awarded another 20 marks, he would obtain 95.3 marks, which would displace the 5th respondent out of consideration from the panel."
We are in full agreement with the aforesaid view.
13. We are thus of the view that the impugned order of the learned Single Judge cannot be faulted and respondent No.5 is entitled to the allotment in question subject to fulfillment of other parameters. The appeal is accordingly dismissed leaving the parties to bear their own costs.
SANJAY KISHAN KAUL) CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) 24.07.2013 JUDGE 'ravinder Sharma Ravinder 2013.07.26 15:42 I attest to the accuracy and integrity of this document