Jharkhand High Court
Ragini Rani vs Hindustan Petroleum Corporation ... on 22 April, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 313 of 2020
Ragini Rani ... ... Petitioner
Versus
1. Hindustan Petroleum Corporation Limited, Mumbai through
Chairman-cum-Managing Director
2. The Chairman-cum-Managing Director, Hindustan Petroleum
Corporation Limited, Mumbai
3. The Deputy General Manager, Hindustan Petroleum Corporation
Limited, Jamshedpur LPG Regional Office, Adityapur Industrial Area
Seraikella-Kharsawan
4. Senior Regional Manager, Hindustan Petroleum Corporation Limited,
Jamshedpur LPG Regional Office, Adityapur Industrial Area,
Seraikella-Kharsawan
5. The Area Sales Manager (Dhanbad Sales Area), Hindustan
Petroleum Corporation Limited, Jamshedpur LPG Regional Office,
Adityapur Industrial Area, Seraikella-Kharsawan
6. Rajesh Kumar Singh, Nilesh Nagar, Vadodara ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner : Mr. Pandey Neeraj Rai, Advocate For the Respondent Nos.1 to 5 : Mr. M.S. Mittal, Sr. Advocate Mr. Rahul Lamba, Advocate For the Respondent No. 6 : Mrs. Ritu Kumar, Advocate Mr. Samavesh Bhanj Deo, Advocate For the Intervener : Mr. Prabhash S. Chandra, Advocate
-----
Order No. 17 Dated: 22.04.2022 The writ petition is taken up today through Video conferencing.
The present writ petition has been filed for quashing and setting aside the order as contained in letter no. PK/LPG/TER-2001 dated 17.01.2020 issued under the signature of the respondent no. 3
- the Deputy General Manager, Jamshedpur LPG Regional Office, Hindustan Petroleum Corporation Limited (HPCL), whereby the LPG dealership (Domestic & Commercial) agreement dated 04.06.2013 (renewed vide agreement dated 03.06.2018) executed between the petitioner and HPCL, has been terminated. Further prayer has been made for issuance of direction upon the respondent-HPCL and its authorities to allow the petitioner to continue with the said dealership/distributorship agreement.
2. During pendency of the writ petition, I.A No. 327 of 2021 2 was filed by one Krishna Kumar Singh - father of the respondent no. 6 for impleading him as a party respondent. This Court vide order dated 23.03.2021, disposed of the said interlocutory application observing that since his son (the respondent no. 6 herein) had already been arrayed as respondent no. 6 in the present case, there was no reason to implead him as a party respondent. However he was permitted to address this Court as an intervener during the hearing of the present writ petition.
3. Another I.A No. 2559 of 2021 was filed by one Rakesh Kumar Singh - brother of the respondent no. 6 seeking intervention and for impleading him as party respondent. The said interlocutory application was also disposed of by this Court vide order dated 02.08.2021 rejecting his prayer for impleading him as party respondent, however, he was permitted to address this Court through his counsel during hearing of the present writ petition.
4. The factual background of the case as stated in the writ petition is that the respondent-HPCL along with other public sector oil marketing companies published an advertisement on 17.10.2009 (corrigendum issued on 28.10.2009) in a Hindi Daily "Dainik Bhaskar", Ranchi Edition for appointment of LPG distributors under various categories at locations situated in different districts across the State of Jharkhand including the location situated at Hunterganj, Gram Panchayat - Khuntikewal Khurd, District-Chatra in open category under Rajiv Gandhi Gramin LPG Vitrak (RGGLV) Scheme. Pursuant to the said advertisement, the petitioner applied for the distributorship in Chatra district on 26.11.2009. In the meantime, for the purpose of constructing of a gas godown, the petitioner purchased the land from her husband appertaining to Khata No. 1, Plot No. 51, measuring an area of 22 decimals, out of 31 decimals of land belonging to his share situated at Village- Khuntikewal Khurd, District-Chatra through registered sale deed dated 18.08.2010 and thereafter the said land was also mutated in her name vide order dated 04.09.2010 passed in Mutation Case No. 745 of 2010-11. The respondent no. 6 - Rajesh Kumar Singh challenged the order of mutation before the LRDC, Chatra by filing Civil Misc. Case No. 11 of 3 2011-12 which was allowed vide order dated 13.08.2014 and the order of mutation passed by the Circle Officer, Hunterganj was set aside. However, vide order dated 27.11.2015 passed in Mutation Appeal No. 05/2014-15 filed by the petitioner, the Additional Collector, Chatra set aside the order of the LRDC, Chatra and confirmed the order of mutation, which attained finality. The petitioner was issued letter of intent dated 26.05.2012 and subsequently letter of appointment dated 04.06.2013 was also issued appointing the petitioner and her husband as RGGLV to carry out distributorship in the name and style of M/s Maa Bhagwati HP Gas Gramin Vitrak at location Hunterganj, District-Chatra, Jharkhand under open category on the terms and conditions contained in the HP Gas (LPG) Distributorship (Domestic & Commercial) Agreement (hereinafter referred to as "the Agreement"). The descendants of other coparceners namely, Ayodhaya Prasad Singh Kanhaiya Prasad Singh sworn an affidavit on 18.07.2013 giving no objection to the award of distributorship offered to the petitioner. The appointment was made for an initial period of five years which was subsequently renewed on 03.06.2018 for a further period of five years. One Krishna Kumar Singh, S/o Ayodhya Prasad Singh and his sons namely, Rajesh Kumar Singh (respondent no. 6) and Sri Rakesh Kumar Singh started creating problems in grant and continuance of RGGLV in favour of the petitioner and on the basis of the complaint made by the respondent no. 6, the petitioner was served a show cause notice dated 04.09.2018 issued under the signature of the respondent no. 3 alleging inter alia that LPC purportedly issued by Mr. A.P. Beg (the then Circle Officer, Hunterganj) was forged and fabricated. It was further alleged that the petitioner had misrepresented and concealed the facts while getting the said distributorship as well as matters relating to the land details submitted by her in the application were pending adjudication in T.S. No. 35 of 2013 and Partition Suit No. 88 of 2014. The petitioner submitted her explanation on 24.09.2018 denying all the allegations, however, she was issued another show cause notice dated 22.11.2018 under the signature of the respondent no. 3 as duly constituted attorney of the HPCL which was also replied 4 by the petitioner on 10.12.2018. However, ultimately the respondent no. 3, vide order dated 17.01.2020, terminated the agreement of the petitioner which gives rise to filing of the present writ petition.
5. Learned counsel for the petitioner submits that the petitioner has already invested a sum of Rs. 20 Lakhs for constructing the godown and office as well as in getting a Bolero pick-up van financed. The petitioner has other liabilities to meet and she is completely dependent upon the said distributorship/dealership. However, due to the impugned termination order, she has been made to suffer tremendously causing serious prejudice to her. The impugned order of termination of distributorship has been passed in violation of the principles of natural justice as pursuant to communication dated 24.08.2019 made by the HPCL giving final opportunity of hearing to the petitioner on 09.09.2019, she could not appear before the concerned authority due to ill-health for which, she sought time of at least 20 days by sending an e-mail on 08.09.2019, however, the same was not responded by the respondent no. 3.
6. It is further contended that as per the norms for providing distributorship/dealership, the land was required to be owned by the applicant or family member of the "family unit" which includes husband also. In case of ownership/co-ownership by family member, consent from the family member was required and in the matter of the petitioner, her husband had consented for award of the dealership to the petitioner.
7. It is also submitted that in Land Possession Certificate (LPC) dated 06.11.2009, there is reference of an affidavit no. 6373 dated 03.11.2009 executed by the petitioner requesting for issuance of LPC in which she had never claimed that Kanhaiya Prasad Singh and Ayodhya Prasad Singh had died issueless, rather she had claimed that the land measuring an area of 20.20 acres including the land being the subject matter of the agreement belonged to her share out of the land measuring total area of 80.81 acres belonging to her joint family. It is further submitted that for any mistake committed by the Karamchari, the petitioner cannot be held liable. Moreover, from the 5 date of final publication made under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, the land in question was being reflected in the holding of her father-in-law namely, Gaya Prasad Singh and after his death, the same devolved upon the husband of the petitioner, who executed a sale deed dated 18.08.2010 transferring the said land in favour of the petitioner to remove any confusion. However, Krishna Kumar Singh (one of the interveners) filed a writ petition being W.P.(C) No. 4156 of 2013 seeking cancellation of distributorship of the petitioner, however, the same was dismissed vide order dated 14.01.2015 and L.P.A No. 141 of 2015 filed by him was also dismissed for default vide order dated 01.08.2016. The order of mutation of the land in question was also challenged by the respondent no. 6 which was confirmed vide order dated 27.11.2015 passed by the Additional Collector in Mutation Appeal No. 05/2014-15. A title suit being T.S. No. 35 of 2013 filed by Krishna Kumar Singh for cancellation of the sale deed dated 18.08.2010 executed in favour of the petitioner was also dismissed as withdrawn vide order dated 28.08.2019 precluding the plaintiff from filing fresh suit. The heirs of Ayodhya Prasad Singh and Kanhaiya Prasad Singh had sworn Affidavit No. 570 dated 18.07.2013 except Krishna Kumar Singh giving their no objection towards dealership of the petitioner and they also stated that Rajesh Kumar Singh (respondent no. 6), S/o Krishna Kumar Singh was raising objection due to personal malice. The claim of the respondents is that a wrong statement was made in the LPC dated 06.11.2009 to the effect that Kanhaiya Prasad Singh had died issueless, however, for the said mistake which was not intentional, she may not be penalized as the same was not authored by her. The act of the petitioner was bonafide which can be appreciated from the fact that in the genealogical certificate dated 24.11.2009, it was correctly mentioned - "Kanhaiya Prasad Singh - Putra Navald" which means that he did not have any male issue. The genealogical description was mentioned in LPC dated 06.11.2009 to the extent and nature of the land in which error was committed by the Circle Officer, Hunterganj. The mistake committed therein deserves to be ignored 6 and be treated as superseded by the correct genealogical certificate dated 24.11.2009 which was furnished simultaneously. Moreover, the purported certificate dated 14.06.2011 was not produced by the petitioner, rather it was created by someone who wanted to cause damage to her.
8. Learned Senior Counsel for the respondent nos. 1 to 5 submits that the petitioner has been given sufficient opportunity of hearing before passing the impugned order of termination of her dealership. The petitioner was issued first show cause notice on 04.09.2018 which was replied by her on 24.09.2018. Finding the said reply unsatisfactory, she was served second show cause notice on 22.11.2018 which was replied by her on 10.12.2018. Moreover, she was given several opportunities of personal hearing, however, she failed to avail the same and tried to delay the matter for one reason or the other. The petitioner also attempted to get a decree of injunction restraining the respondents from proceeding with the enquiry by filing Original Suit No. 04 of 2019 in the court of Munsif, Chatra, however the same was dismissed as withdrawn vide order dated 20.09.2019.
9. Learned Senior Counsel further submits that the petitioner had furnished forged and fabricated documents for obtaining the distributorship which is clear violation of Clause 14(Ch) of the Advertisement dated 17.10.2009 and also of Clause 28-B(l) of the Distributorship Agreement dated 04.06.2013 (renewed vide Agreement dated 03.06.2018). A complaint of the respondent no. 6 dated 13.05.2017 was received by the respondent-HPCL stating that the subject land was under dispute and hence, the same should not have been considered for allotment of distributorship. In this regard, the petitioner vide letter dated 02.05.2012 submitted letter no. 169/II dated 14.06.2011 issued by Mr. A.P. Beg, the then Circle Officer, Hunterganj before the respondent-HPCL, wherein it was certified that the said complaint filed by the respondent no. 6 was dismissed after enquiry. Treating the contents of the said letter as true, the HPCL issued the letter of intent appointing the petitioner as its distributor, however, subsequently vide letter no. 850 dated 05.12.2017 issued 7 by the Circle Officer, Hunterganj, it was informed that letter no. 169/II dated 14.06.2011 appeared to be forged as it was not issued by Mr. A.P. Beg, the then Circle Officer, Hunterganj, who was transferred from Hunterganj Circle Office on 04.05.2011 itself and one Mr. C.K. Das was posted as Circle Officer of the said Circle between the period from 04.05.2011 to 30.05.2013. The said fact was also corroborated by Certificate No. 675 dated 10.09.2018 submitted by the petitioner herself along with her reply to the show cause notice dated 04.09.2018. The petitioner had furnished false family tree certificate dated 24.11.2009 issued under the signature of Mr. A.P. Beg, wherein it was stated that Kanhaiya Prasad Singh and Ayodhya Prasad Singh had died issueless and father-in-law of the petitioner namely, Gaya Prasad Singh died leaving behind only son i.e., her husband. Thus, she claimed that her husband was the exclusive owner of the land in question. Subsequently, the respondent-HPCL came to know that both Kanhaiya Prasad Singh and Ayodhya Prasad Singh were not issueless and the said fact was also confirmed by the Circle Officer, Hunterganj vide letter dated 08.12.2017. The HPCL has rightly terminated the distributorship of the petitioner since she had breached the conditions of Clause 14(Ch) of the advertisement dated 17.10.2009 as also Clause 12 and Clause 28-B(l) of the Distributorship Agreement dated 04.06.2013 (renewed vide agreement dated 03.06.2018) as well as Clause 8 of the affidavit bearing no. 8042 dated 23.11.2009 furnished by the petitioner to the HPCL.
10. Learned counsel appearing on behalf of the private respondent and the Interveners submit that intervener - Rakesh Kumar Singh (brother of the respondent no. 6) filed a complaint dated 10.06.2016 before the CBI, Anti-Corruption Branch, Ranchi and a complaint dated 06.04.2018 before the Ministry of Petroleum & Natural Gas (MoP&NG), Government of India, New Delhi to probe the matter with respect to illegal allotment of LPG Dealership to the petitioner. On the application of Rakesh Kumar Singh, CBI conducted a discreet enquiry and recorded the illegalities committed by both the HPCL and the petitioner. As per the findings of the said enquiry, it 8 reflected that the petitioner in collusion with her husband had got the said distributorship on the basis of forged and fabricated document and thereafter, the CBI sent a Self Contained Note to Chief Vigilance Officer, HPCL, Mumbai vide office letter dated 10.10.2017 recommending to take further action from its end. It is also submitted that LPG distributorship was granted to the petitioner ignoring the fact that the piece of land offered for L.P.G godown fell in the catchment area of an old natural pond.
11. Learned counsel for the respondent no. 6 and the interveners further submits that the father-in-law of the petitioner namely, Late Gaya Prasad Singh had himself submitted an affidavit being land holder objector in the Land Ceiling Case No. 997 of 1975 before the court of Additional Collector, Chatra stating that the descendants of recorded tenant namely, Late Bindeshwari Prasad Singh jointly owned and possessed the entire Grade-VI land admeasuring 261.96 acres and sought amalgamation of all the three land ceiling cases of coparceners i.e., Ceiling Case Nos. 996/1975, 997/1975 and 979/1975. The Additional Collector dropped the aforesaid land ceiling proceedings vide order dated 30.06.1982 observing that six members of the joint family were entitled to be treated as separate units on 09.09.1970 enabling them to retain maximum 270 acres (45x6) of Grade-VI land under the Bihar Land Ceiling Act, 1961. After passing of the said order, no partition was effected between the descendants of Late Bindeshwari Prasad Singh through mutual consent. Hence, Partition Suit No. 88 of 2014 has been filed by Krishna Kumar Singh (father of the respondent no. 6) which is still pending. The Land Possession Certificate dated 06.11.2009 also bearing the signature of the petitioner's husband Nagendra Kumar Singh indicated that Ayodhya Prasad Singh had died issueless despite the fact that he had six sons and two daughters. Moreover, the said LPC and genealogical table dated 24.11.2009 submitted by the petitioner before the HPCL did not contain specific khata number and plot number. Thus, it was uncertain as to which specific land was being given for allotment of LPG distributorship. The petitioner and her husband by dishonest 9 means prepared forged documents to claim right and title over the joint ancestral property. Title Suit No. 35 of 2013 filed by Krishna Kumar Singh was withdrawn in order to avoid multiplicity of suit proceedings. The petitioner has not approached this Court with clean hands. She has also not exhausted available alternative remedy including arbitration clause as agreed between her and the HPCL. Since partition of the land in question has not yet been done, the question of exclusive possession and ownership of the petitioner's husband namely, Nagendra Kumar Singh doesn't arise and, therefore, he could not have sold a part of HUF land to the petitioner who is his wife. The partition suit being Original Suit No. 88 of 2014 is still pending before the Civil Court, Chatra, Jharkhand and the land in question belonging to HUF property shall be partitioned as per the outcome of the said suit. The petitioner is neither the member nor the coparcener in the HUF family, she can rather claim her right through coparceners. Unless the share of each coparcener is divided in accordance with law, neither Nagendra Kumar Singh nor the petitioner can have any separate and exclusive right over the property of HUF.
12. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the order dated 17.01.2020 issued by the respondent no. 3 terminating her LPG dealership on the ground that she had furnished false and fabricated documents and had provided incorrect information for obtaining the LPG distributorship under RGGLV Scheme, which is breach of the terms of guidelines for selection of LPG distributors particularly Clause 14(Ch) of the advertisement dated 17.10.2009 as well as Clause 28-B(l) of the Distributorship Agreement.
13. The primary argument of learned Senior Counsel for the respondent nos. 1 to 5 (HPCL) is that the issue involved in the writ petition is purely contractual in nature and no public law element is involved in the same. Hence, the present writ petition is not maintainable more so when the petitioner has the alternative/efficacious remedy available under Clause 38 of the Distributorship Agreement to get the dispute adjudicated through the 10 process of arbitration as agreed between the petitioner and HPCL. Moreover, the petitioner has not approached this Court with clean hands.
14. In support of the said contention, the learned Senior Counsel for the respondent-HPCL puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "K. Jayaram & Ors. Vs. Bangalore Development Authority & Ors." reported in 2021 SCC OnLine SC 1194, wherein it has been held that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side, then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
15. Learned Senior Counsel further puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "Joshi Technologies International Inc. Vs. Union of India"
reported in (2015) 7 SCC 728, wherein it has been held as under:
69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such discretion:
69.1. The Court may not examine the issue unless the action has some public law character attached to it.
69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of 11 arbitration.
69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.
69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.
70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:
70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations.
70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed.
Otherwise, the party may sue for damages.
1270.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.
70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction.
70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.
70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.
70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.
16. Learned Senior Counsel for the respondent-HPCL also puts 13 reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "Bharat Coking Coal Ltd. Vs. AMR Dev Prabha"
reported in (2020) 16 SCC 759, wherein it has been held as under:
29. This position of law has been succinctly summed up in [Tata Cellular v. Union of India, (1994) 6 SCC 651] , where it was famously opined that: (SCC pp. 677-78, para 77) "77. ... Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury [Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn., (1948) 1 KB 223 (CA)] unreasonableness.
(iii) Procedural impropriety."
32. Such a proposition has been noticed by this Court even earlier in [JagdishMandal v. State of Orissa, (2007) 14 SCC 517] in the following words: (SCC p. 531, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil 14 court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."
(emphasis supplied)
17. To counter the argument of the learned counsel for the respondent-HPCL, the learned counsel for the petitioner puts reliance on the judgment rendered by the Hon'ble Apex Court in the case of "Unitech Limited & Ors. Vs. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors." reported in 2021 SCC OnLine SC 99, wherein it has been held that recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well-settled parameters.
18. In the case of "Harbanslal Sahnia & Anr. Vs. Indian Oil Corpn. Ltd. & Ors." reported in (2003) 2 SCC 107, the Hon'ble Supreme Court has held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is failure of the principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
19. In the case of "Ram Barai Singh & Company Vs. State of Bihar & Ors." reported in (2015) 13 SCC 592, the Hon'ble Supreme Court has held that availability of alternative remedy is definitely a permissible ground for refusal by a Writ Court to exercise its jurisdiction in appropriate cases. However, if the respondents had not objected to entertaining the writ petition on ground of availability of alternative remedy, the final judgment 15 rendered on merits cannot be faulted and set aside only on noticing by the Division Bench that an alternative remedy by way of arbitration clause could have been resorted to.
20. On bare perusal of the impugned order, it appears that the dealership agreement of the petitioner has been terminated for alleged violation of the terms of guidelines for selection of distributors under RGGLV Scheme particularly Clause 14(Ch) of the Advertisement dated 17.10.2009 and Clause 28-B(l) of the Distributorship Agreement.
21. Thus, before appreciating the contentions of the learned counsel for the parties, it would be appropriate to refer Clause 14(Ch) of the Advertisement dated 17.10.2009, which is quoted in the impugned order itself and reads as under:
"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 be incorrect or false, the candidature and the application is liable to be rejected without assigning any reason and in case the applicant has been appointed as a RGGLV, the same is liable to be terminated. In such cases the candidate/RGGLV shall have no claim whatsoever against the respective Oil Company."
22. Further Clause 28-B(l) of the Distributorship Agreement reads as under:
28B. Notwithstanding anything to the contrary herein contained, the Corporation shall also be at liberty at its entire discretion to terminate this Agreement forthwith upon or at any time after the happening of any of the following events, namely:-
(l)If any information given by the Dealer in his application for appointment as a Dealer shall be found to be untrue or incorrect in any materials particular.
23. Perusal of the aforesaid conditions would suggest that the agreement of a dealer is liable to be terminated if the information furnished in the application regarding any material particulars by him/her is found to be untrue or incorrect at any stage.
24. Now, reverting back to the fact of the present case. I have perused the Land Possession Certificate dated 06.11.2009 issued by the office of the Circle Officer, Hunterganj, wherein the genealogy of 16 Late Bindeshwari Prasad Singh has been given and his two sons namely, Kanhaiya Prasad Singh and Ayodhya Prasad Singh are shown to have died issueless. In the said LPC, there is reference of Affidavit No. 6373 dated 03.11.2009 according to which 20.20 acres land had come in the share of the petitioner. Further, in the genealogical certificate dated 24.11.2009 issued by the Circle Officer, Hunterganj, Chatra, it has been mentioned - "Kanhaiya Prasad Singh - Putra Navald". Moreover, the sons and daughters of Ayodhya Prasad Singh have not been shown in the said genealogical certificate. Undisputedly, Kanhaiya Prasad Singh and Ayodhya Prasad Singh had not died issueless and thus both in the LPC as well as in the genealogical certificate, wrong/incomplete fact was mentioned which were submitted by the petitioner before the respondent-HPCL for grant of LPG dealership. The claim of the petitioner is that the said mistake was not intentional and the same was committed by the revenue Karamchari of the Circle Office, Hunterganj. This Court is of the view that since the said documents were submitted by the petitioner before the HPCL and on taking into consideration the fact stated in the said documents, the LPG dealership was awarded to her, the HPCL on finding the facts mentioned in those documents as false, was competent enough to issue show cause notice so as to terminate the dealership agreement invoking the conditions of the Advertisement as well as the dealership agreement.
25. Apart from that, letter no. 169/II dated 14.06.2011 purportedly issued by the then Circle Officer namely, Mr. A.P. Beg was also brought to the knowledge of the HPCL, wherein it was certified that the complaint of respondent no. 6 with respect to the land in question was dismissed after enquiry. Believing the content of the said letter as true, the respondent no. 3 issued LoI in favour of the petitioner. However, the said letter was subsequently found to be forged. The claim of the petitioner is that the letter dated 14.06.2011 was not produced by her before the respondent no. 3. Even if the said claim of the petitioner is taken to be true, the HPCL has the discretion to cancel the dealership of the petitioner since the same was granted to her on incorrect/incomplete facts.
1726. In the case of "Shiv Kant Yadav Vs. Indian Oil Corpn. & Ors." reported in (2007) 4 SCC 410, a complaint was made against the allottees of dealership alleging that they did not disclose the correct information in their applications and thereafter inquiry was made by the IOCL and relying on the report received after enquiry, the dealership allotted to the appellant was cancelled. When the matter reached the Hon'ble Supreme Court, the appeal was dismissed holding that the order of the High Court did not suffer from any infirmity to warrant interference in view of declaration given by the appellant in his undertaking incorporated in the application form that if any factual misstatement was made, the same would permit cancellation of the allotment.
27. In the present writ proceeding, the petitioner vis-a-vis the private respondents and the Interveners have made claims and counter claims in support of their respective stands. On the one hand, the petitioner is claiming her exclusive title over the land in question and on the other hand, the private respondents as well as the interveners have claimed jointness of title amongst the coparceners stating that the partition suit for separation of their shares is still pending. This Court does not feel it appropriate to entertain all these arguments which are purely in the nature of civil dispute.
28. This Court is confined here to the issue as to whether there is sufficient reason to interfere with the order of termination of LPG dealership agreement of the petitioner. In view of the contents of Clause 14(Ch) of the Advertisement dated 17.10.2009 and Clause 28-B(l) of the Distributorship Agreement as quoted hereinabove read with the facts of the case which clearly suggest that the information provided by the petitioner on her behalf at the time of allotment of LPG dealership was incorrect/incomplete, this Court finds no infirmity in the decision of the respondent no. 3 terminating the LPG dealership agreement of the petitioner so as to warrant interference with the same.
29. Moreover, the petitioner has sought interference of this 18 Court against the order of termination of LPG dealership on the ground of violation of the terms and conditions of the agreement which is purely a contractual dispute and there is no ingredient of public law involved in the present case.
30. In view of the aforesaid legal and factual position, I do not find any reason to interfere with the order as contained in letter bearing Ref.No:-PK/LPG/TER-2001 dated 17.01.2020 issued under the signature of respondent no. 3, whereby the LPG dealership agreement of the petitioner has been terminated.
31. The writ petition is accordingly dismissed.
(Rajesh Shankar, J.) Manish/AFR