Madhya Pradesh High Court
Urmila Tiwari vs Bharat Petroliam Coporation Limited on 22 August, 2012
1
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 658 of 2012
SINGLE BENCH: JUSTICE A.K. SHRIVASTAVA
Petitioner : Urmila Tiwari,
W/o Shri Govind Das Tiwari,
R/o Village Narsinghgarh,
Tahsil Pathriya,
District Damoh, M.P.
Pin-470675.
Versus
Respondents : 1. Bharat Petroleum Corporation Ltd.,
Through Executive Director (LPG),
Bharat Bhawan, 4 & 6 Kareem Bhai
Road, Ballard Estate, PB-688,
Mumbai-400 001
2. Territory Manager
BPCL, Bhitoni LPG,
Territory Bhitoni, Shahpura,
NH-12, District Jabalpur
Pin-483 119
3. Rajendra Bidoliya
S/o Shri Ambica Prasad Bidoliya
R/o Village Sariya,
District Damoh, M.P.
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Petitioner by - Shri Vishal Dhagat, Advocate.
Respondents no.1 & 2 - Shri Kapil Jain, Advocate.
Respondent No.3 - Shri Umakant Sharma, Senior Advocate with
Shri R.K. Patel, Advocate.
Date of hearing - 13/08/2012
Date of order - /08/2012
ORDER
( /08/2012) 2 The petitioner has filed this petition praying to invoke the jurisdiction conferred to this Court under Article 226 of the Constitution of India by challenging the grant of Rajeev Gandhi Grameen LPG Vitrak (in short, RGGLV) in favour of respondent no.3-Rajendra Bidoliya being violative of the Scheme of RGGLV and in violation of Article 14 of the Constitution of India with a further prayer that by issuing a writ against respondents no.1 and 2, the dealership of RGGLV may not be granted in favour of respondent no.3.
2. The facts necessary for the disposal of this petition lie in a narrow compass. Suffice it to say that in pursuant to an advertisement published in Dainik Bhaskar newspaper in Sagar Edition, Sagar on 22.10.2010 (Annexure P/1) for the allotment of distributionship of LPG gas issued by Indian Oil Corporation, Bharat Petroleum and Hindustan Petroleum at different places of Madhya Pradesh. The place 'Narsinghgarh' has been mentioned at Item No.57 in the said advertisement where Bharat Petroleum Corporation (respondent no.1) has to allot dealership of LPG under the said Scheme of RGGLV. Inter-alia other eligible conditions for the allotment, one of the eligibility condition is that a candidate submitting application should be a resident of local area; and he should not have been declared guilty of any of the offences including moral turpitude and economic offence. The petitioner submitted requisite application for the allotment of aforesaid dealership since she is the 3 resident of Village Narsinghgarh of Tahsil Patharia, District Damoh and she fulfills all the requirements as contemplated in the advertisement. Similarly two others persons namely Smt. Savita Shukla and respondent no.3 Rajendra Bidoliya also submitted requisite applications for obtaining the aforesaid dealership and they have obtained 95, 100 and 100 marks respectively. Vide Annexure P/4 dated 20.10.2011 a select list was issued and the aforesaid three persons were found eligible for the allotment of the dealership of RGGLV.
3. It is the further case of petitioner that after going through the select list (Annexure P/4), petitioner found that respondent no.3 had also submitted his candidature for the allotment of dealership but he is not the local resident and is the resident of House No. 92, Village Sariya, Tahsil Batiyagarh, District Damoh. Thus, the petitioner submitted requisite applications/objections on 4.4.2011 and 6.4.2011 (Annexures P/6 and P/5 respectively) for rejection of the name of respondent no.3 as well as of Smt. Savita Shukla who is also not the local resident and is the resident of Village Singhpur, House No. 151, Tahsil and District Damoh. The petitioner when did not receive any information in regard to the decision of her objections, she moved an application under Right to Information Act (Annexure P/7) and when no information was given to her, she preferred first appeal and when again she did not receive any 4 information, she preferred second appeal before the Head Office, Mumbai from where also no information was received and ultimately the petitioner was constrained to write a letter to the Chief Information Commissioner, New Delhi on 03.12.2011 (Annexure P/8). Thereafter, information was received by the petitioner on 29.11.2011 vide Annexure P/9 that Letter of Intent has been issued to the respondent no.3 on 25.6.2011. Thereafter, the petitioner took out a brochure of RGGLV from Internet. In the said brochure, in Clause 16 it has been mentioned that if any information furnished by the applicant is found to be false at any point of time before and after appointment as RGGLV dealership, the allotment shall be cancelled forthwith. The brochure has been placed on record as Annexure P/10.
4. The petitioner then informed the respondent no.2- Territory Manager on 19.12.2011 that respondent no.3 is not the local resident of the location Narsinghgarh, District Damoh, but, is the resident of Village Sariya, District Damoh. Along with this letter, voter lists of Ward No.6 of the said Village of the year 1999, 2004, 2009, 2010 and 2011 has been filed wherein the name of respondent no.3 has been mentioned in Village Sariya where he is residing with his father and mother namely Ambica Prasad and Gulab Rani. The aforesaid letter as well as the voter lists of the aforesaid years have been collectively filed as Annexure P/11. The petitioner has also filed the local resident 5 certificate dated 28.5.2011 (Annexure P/12) issued by Nayab Tahsildar in favour of respondent no.3 wherein it has been mentioned that he is the resident of Village Sariya of Tahsil Batiyagarh, District Damoh. The Certificate issued by the Gram Panchayat, Sariya dated 2.4.2011 (Annexure P/13) was also submitted by the petitioner stating therein that respondent no.3 is the resident of Village Sariya.
5. Hence, it has been prayed by the petitioner that since nothing has been done so far by the respondents no.2 and 3 cancelling the candidature of respondent no.3, this petition be allowed by cancelling his name and the RGGLV dealership may not be allotted to him.
6. The third respondent filed the return refuting the averments made in the petition and stated that he is the resident of Village Narsinghgarh, District Damoh. Umpteen documents have been filed by him indicating that he is the resident of Village Narsinghgarh, District Damoh, they are as under:-
(i) Copy of identity card issued by Election Commission of India on 10.2.2008 (Annexure R-3/D-1);
(ii) copy of driving License issued on 2.2.2012 (Annexure R-3/D-1);
(iii) copy of ration card mentioning the name of respondent no.3 living with his parents namely Ambica Prasad and Shanti Bai (Annexure R-3/D-2);
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(iv) copy of Saving Account Passbook of State Bank of India, Narsinghgarh wherein several transactions have been made with effect from 11.9.2007 (Annexure R-3/D-3);
(v) copies of Income tax return submitted on 26.3.2009 and 23.8.2010 (Annexure R-3/D-4);
(vi) copy of death certificate of mother of respondent no.3 Shanti Devi alias Gulab Rani dated 10.12.2008 (Annexure R-3/D-5);
(vii) copies of voter lists of the years 2003, 2006, 2008, 2010 and 2012 (Annexure R-3/D-6, D-6(A), D-6(B), D-6(C) and D-6(D) respectively;
(viii) copies of permanent resident certificate issued by Nayab Tahsildar, Patharia dated 10.8.2011; permanent resident certificate issued by Tahsildar, Patharia dated 9.12.2012 (Annexure R-3/D-7 and D-7(A) respectively;
(ix) copies of certificates issued by Sarpanch, Secretary and Patwari of Tahsil Patharia dated 5.12.2010 (Annexure R-3/D-8);
(x) copy of resolution of Gram Panchayat, Tahsil Pitharia certifying that respondent no.3 is the resident of Village Patharia (Annexure R-3/D-9);
(xi) copy of certificate issued by Gram Panchayat, Narsinghgarh dated 8.10.2010 (Annexure R-3/ D-10).
7The averment in the return is that aforesaid all documents indicates that respondent no.3 is the permanent resident of Village Narsinghgarh, Tahsil Patharia, District Damoh.
7. It is the further case of respondent no.3 in the return that on coming to know that foul game has been played by the petitioner's husband in obtaining a forged permanent resident certificate in the name of the respondent no.3 certifying that he is the resident of Village Sariya, Tahsil Batiyagarh, District Damoh, the respondent no.3 submitted requisite application on 4.10.2011 (annexure R-3/ D-11) praying that husband of the petitioner namely Govind Das Tiwari by submitting a forged affidavit of respondent no.3 and by forging his signatures submitted an application to Nayab Tashildar that respondent no.3 is the resident of Village Sariya. The photograph of respondent no.3 which has been pasted in the said certificate (annexure P/12) is 10 years old and has been cut from a group photograph and thus, it has been prayed that the said certificate dated 28.5.2011 (annesxure P/12) be cancelled. In this case, before Naib Tahsildar the husband of the petitioner was noticed but despite he was served, he did not appear as a result of which he was directed to appear by issuing a non bailable warrant and after considering his objections it was found by the Naib Tahsildar that Govind Das Tiwari (husband of the petitioner) obtained a forged certificate in 8 the name of respondent no.3 certifying him to be the resident of Village Sariya. Thus, the Naib Tahsildar on 6.3.2012 passed an order that the certificate dated 28.5.2011 issued by him be cancelled and the Station Officer Incharge of Police Station, Batiyagarh was intimated to lodge an FIR and to proceed against the petitioner's husband by registering a criminal case. The entire proceedings of each and every date including the final order dated 6.3.2012 have been collectively filed as Annexure R-3/D-12. The letter dated 27.2.2012 was sent by Naib Tahsildar, Batiyagarh to T.I. Police Station, Batiyagarh (Annexure R-3/D-14) to register a case against Govind Das Tiwari (petitioner's husband). The respondent no.3 has also filed a certificate of Gram Panchayat, Sariya dated 27.4.2011 (annexure R-3/D-18) certifying that respondent no.3 is not the resident of Village Sariya. Respondent no.3 has also filed another resident certificate issued by Nayab Tahsildar, Patharia dated 10.2.2012 (Annexure R-3/D-19).
8. A rejoinder has been filed by the petitioner by filing a document Annexure R-J/1 which is an order dated 25.2.2012 of Collector and District Election Officer, Damoh holding that the name of respondent no.3 has been deleted from the voter list of Village Narsinghgarh, Tahsil Patharia and eventually the name of respondent no.3 was deleted from the Village Narsinghgarh. Certain revenue records have also been filed along with the rejoinder indicating 9 therein that father of respondent no.3 is having his agricultural land in Village Sariya of Tahsil Batiyagarh. The petitioner has also filed a document as R-J/11 issued by the respondent no.1 informing her that upon enquiry the claim of the petitioner has not been found to be proved while respondent no.3 fulfills the requirement as well as eligibility for providing the dealership of RGGLV and has further directed that the petitioner, if so advised, may file an appeal.
9. In the rejoinder another U turn has been taken by the petitioner with new facts that respondent no.3 is having a criminal history and has submitted that at Crime No. 57/2010 of Police Station, Damoh a case has been registered against the respondent no.3 under Sections 294, 506B, 336/34 IPC and at Crime No.422/2003, another case was registered under Sections 341, 323, 294 and 506B/34 IPC against respondent no.3.
10. The respondent no.3 thereafter filed two additional returns on 9.7.2012 as well as on 6.8.2012 wherein it has been pleaded that respondent no.3 has been acquitted on 17.1.2012 by the Chief Judicial Magistrate, Damoh (Annexure R-3/A) pertaining to the offence registered against him under Section 336 IPC. Further it has been pleaded in additional return dated 9.7.2012 para 4 that all the allegations which were leveled against respondent no.3 by the petitioner before respondent no.1 Bharat 10 Petroleum Corporation, upon due enquiry they were found to be baseless and vide order dated 23.2.2012 (annexure R-3/ B), it was informed to the petitioner by the respondent no.1 that upon strict scrutiny of the eligibility in regard to the local resident of respondent no.3, the complaint of the petitioner is found to be baseless. The additional return has been submitted on 6.8.2012 along with a copy of order dated 21.8.2005 which is in regard to the criminal case against respondent no.3 registered under Sections 341, 294, 323/506B/34 IPC showing that the offences was compounded.
11. Thus, on the basis of the averments made hereinabove in the additional return, it has been prayed that this petition be dismissed.
12. The respondents no.1 and 2 have also filed a separate return and they have also pleaded in para 7 while replying the averments made in para 5.6 of the petition that in the lucky draw the name of respondent no.3 was taken out. Further it has been stated that as per clause 12 of the Selection Guidelines of RGGLV, respondent no.3 was found to be selected. In the return it has also been pleaded by these respondents that upon close scrutiny and after holding an enquiry it was found that respondent no.3 is the resident of Village Narsinghgarh, Tahsil Patharia, District Damoh. The further stand of these respondents is that petitioner who applied for the dealership of RGGLV after having lost the 11 lucky draw was not interested to make any objection and the complaint has been initiated at the initiation and under the instance of her husband Govind Das Tiwari who has filed an affidavit along with the complaint. The petitioner's husband had no locus standi to initiate complaint and to file any such type of affidavit and it has been prayed that this petition be dismissed. It has also been pleaded by these respondents that guidelines does not provide that a candidate should be a permanent resident of Town/Village and the criteria is that he should be the resident of Town/Village and, therefore, the objections which were raised before respondents no.1 and 2 by the petitioner as well as the grounds which have been taken in this petition have no merit.
13. The further stand of respondents no.1 and 2 as stated in para 12 of their return is that in order to decide the complaint of the petitioner in regard to the dispute about the residential place of respondent no.3 as well as that of petitioner, the respondent no.1 formed a Committee of two responsible officers to investigate the issue and the Committee submitted its report that respondent no.3 is the resident of Village Patharia and the complaint is baseless. It is also pleaded that the petitioner has not come with the clean hands. Thus, it has been prayed that this petition be dismissed.
14. I have heard Shri Vishal Dhagat, learned counsel for the petitioner who has submitted his arguments on the 12 basis of the documents which he has filed along with the memorandum of writ petition and rejoinder. Learned counsel submits that all the documents which have been filed along with the return by the respondent no.3 have been procured later on and thus they have lost their significance and they have procured with the utmost object to obtain dealership of RGGLV. Hence, it has been prayed that this petition be allowed and the respondents no. 1 and 2 be directed not to provide dealership to respondent no.3, on the contrary the same may be provided to the petitioner.
15. Shri Umakant Sharma, learned senior counsel appearing for the respondent no.3 submitted that the averments made in the return and the documents which the respondent no.3 has filed it has become luminously clear that respondent no.3 is the resident of the Village Narsinghgarh,Tahsil Patharia and this fact is also proved on bare perusal of several documents including Identity Card issued by Election Commission, Income tax return etc. Shri Sharma, learned senior counsel submits that so far as two criminal cases are concerned, they are not of moral turpitude and in that cases, respondent no.3 has been acquitted. Learned senior counsel submits that since no case was registered against the respondent no.3 against the moral turpitude, it will not disqualify him from submitting the application for obtaining the dealership of LPG. In support of his contention, learned senior counsel has placed heavy 13 reliance on the decision of Supreme Court Pawan Kumar Vs. State of Haryana and another 1996 AIR SCW 2529
16. Shri Kapil Jain, learned counsel appearing for respondents no. 1 and 2 submitted that after due enquiry upon the complaint made by the petitioner, the respondent no.3 has been chosen and rightly the Letter of Intent has been issued to him. The action of respondents no.1 and 2 is fair and hence it has been prayed that this petition be dismissed.
17. Having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed.
18. Several documents have been filed by the petitioner along with the memorandum of writ petition indicating therein that the respondent no.3 is not the resident of Village Narsinghgarh Tahsil Pathoriya District Damoh but is the resident of Village Sariya of Tahsil Batiyagarh, District Damoh and thus he does not qualify the eligibility criteria flashed in the advertisement Annexure P/1 dated 22.10.2010. Much emphasis has been placed upon the permanent resident certificate of respondent no.3 dated 28.5.2011 (annexure P/12) wherein it has been certified by the Nayab Tahsildar that respondent no.3 is the resident of Village Sariya, Tahsil Batiyagarh, District Damoh. Similarly, emphasis is put upon the voter lists of the year 1999, 2004, 2009, 2011 and 2012 wherein the name of respondent no.3 has been mentioned in the voter list of Village Sariya. 14 Similarly, reliance has also been placed on the order of the Collector and District Election Officer dated 25.2.2012 wherein it was decided to delete the name of respondent no.3 from the voter list of Patharia. However, I do not find any merit in these contentions.
19. Before deciding the aforesaid contentions, I would like to mention here that if the advertisement Annexure P/1 is visualized from the angle of eligibility criteria, only this much is gathered that a candidate should be the resident of said locality where the dealership of RGGLV is to be given. Indeed this is not one of the conditions that a person should be the permanent resident of that locality. As a matter of fact, rightly it has been so pleaded by the respondents no.1 and 2 in their return in para 7. The respondents no.1 and 2 after hearing the objections of the petitioner found the objections to be baseless.
20. So far as the authenticity of permanent resident certificate dated 28.5.2011 (annexure P/12) of respondent no.3 of Village Sariya, Tahsil Batiyagarh, District Damoh is concerned, suffice it to say that upon knowing by respondent no.3 that some foul game has been played by the petitioner's husband in procuring a forged certificate in his name from Nayab Tahsildar, Tahsil Batiyagarh, he submitted requisite application before the Nayab Tahsildar complaining against the petitioner's husband that by 15 submitting a forged affidavit in his name and by putting his forged signatures on the affidavit and the application and by pasting a photograph which is 10 years older by cutting it from a group photograph, said certificate annexure P/12 has been procured. Respondent no.3 submitted the entire order- sheets of the said proceedings. On going through those proceedings it is found that husband of the petitioner was noticed but he did not appear and ultimately he appeared upon sending non bailable warrant to him. Ultimately, on 6.3.2012, an order was passed by Nayab Tahsildar after considering the objections of petitioner's husband holding that he (petitioner's husband) by submitting a forged affidavit, application and documents in the name of respondent no.3 obtained a residence certificate (annexure P/12) in the name of respondent no.3 showing him to be the resident of Village Sariya. Hence directed to cancel the said certificate issued by him by further holding that an FIR be registered against the petitioner's husband. There is nothing on record in order to show that this order was ever challenged by the husband of the petitioner and was set aside in appeal. The entire order sheet of the proceedings have been filed along with the return collectively as Annexure R-3/D-12. A letter dated 6.3.2012 (Annexure R-3/ D-17) has also been issued to Town Inspector, Police Station Batiyagarh to register a criminal case against petitioner's husband Govind Das Tiwari. Thus, there is 16 overwhelming evidence on record that annexure P/12 was procured by petitioner's husband by submitting forged application, affidavit and documents in the name of respondent no.3 in order to prove that he is the resident of Village Sariya of Tahsil Batiyagarh, District Damoh and with utmost object that dealership of LP Gas be provided to petitioner who is his wife.
21. So fas as the inclusion of name of respondent no.3 in the voter list of Village Sariya is concerned, the respondent no.3 has also filed the voter list indicating that he is the resident of Village Patharia. Even if the voter list filed by respondent no.3 is ignored, the respondent no.3 has also submitted the Income tax return dated 26.3.2009 and 23.3.2010 in order to prove that he is the resident of Village Narsinghgarh Tahsil Patharia, District Damoh. Apart from these two very important documents, the respondent no.3 has also filed a photocopy of Pass Book of State Bank of India of Village Patharia wherein the transactions were initiated by the respondent no.3 since 2007. These documents are prior to the advertisement Annexure P/1 which was published in Dainik Bhaskar news paper Sagar Edition in 22.10.2010 and thus it can be said that they have been procured to obtain the dealership of RGGLV.
22. So far as the objection of petitioner that respondent no.3 is not the permanent resident of Village Narsinghgrh is concerned, suffice it to say that in the 17 advertisement nowhere it is mentioned that a person should be a permanent resident of that locality. In this context the stand of respondents no.1 and 2 in their return is very firm wherein it has been categorically pleaded that a candidate should not be a permanent resident of town/Village and the only requisite condition is that he should be the resident of the town/Village of that locality. Since the respondent no.3 has submitted the Income tax return and Saving Account Pass-book, it can be inferred that he is the resident of Village Narsinghgarh, Tahsil Patharia, District Damoh. This should also be examined along with the order of Nayab Tahsildar in the proceedings initiated against the petitioner's husband wherein it has been found that he procured a forged resident certificate of respondent no.3 of Village Sariya. Thus, it is obvious that petitioner has not come with the clean hands. The grant of relief under Article 226 of the Constitution of India is a discretionary, and it should not be exercised in favour of a person who has not come with clean hands. Obviously, it appears that petitioner may procure and respondent no.3 may not get the dealership of RGGLV, a vile game has been played by husband of the petitioner in procuring the residence certificate annexure P/12 which has also been set aside later on by the Nayab Tahsildar by order dated 6.3.2012 Annexure R-3/D-16. There is nothing on record to show that the said order has been set aside. 18
23. Rightly it has been submitted by Shri Jain, learned counsel appearing for respondents no.1 and 2 that after loosing the lucky draw, indeed it is petitioner's husband Govind Das Tiwari who has lodged the complaint on behalf of petitioner and he himself has filed an affidavit along with the complaint. The husband of the petitioner never submitted any application to provide dealership of RGGLV.
24. One important fact which cannot be marginalized and blinked away is that respondent no.1 upon the complaint received on behalf of the petitioner formed a Committee of two responsible Officers to investigate the matter. The Committee submitted its report along with the documents that the objections made by the petitioner are not correct and the complaint is baseless. After satisfactory investigation of the complaint of petitioner, the respondent no.3 was selected on 25.6.2011 and a Letter of Intent has also been issued to him. There is no material on record that against the said order Annexure RJ/11 dated 13.9.2011 by which the complaint of petitioner was not found true, any appeal has been preferred by the petitioner although in this order it has been mentioned that if the petitioner wants to file an appeal to the Appellate Authority, she is free to file the same within 30 days from the date of receipt of the order and the name of the Appellate Authority as well as the full address has also been mentioned in the order. Thus, the 19 order of respondents dated 13.9.2011 has also become final. The enquiry which has been made by respondents no.1 and 2 in regard to the residential status of respondent no.3 is a pure finding of fact and cannot be assailed in this petition under Article 226 of the Constitution of India particularly when the appeal has not been filed against the said order by the petitioner.
25. So far as the pendency of two criminal cases against respondent no.3 at the time when he submitted application for obtaining the dealership of RGGLV is concerned, it is gathered that none of the two cases were registered against the respondent no.3 against any moral turpitude. Later on he has been acquitted from the charge under Section 336 IPC on 17.1.2012 by JMFC, Damoh in Case No. 378/2010 (Annexure R-3/A). Similarly he was already acquitted long back on 21.8.2005 (i.e. much before submission of application to obtain dealership of RGGLV) since the matter was compounded for the offences under Sections 341, 294, 323/506(B)/34 IPC. Even otherwise, none of the offences are of moral turpitude.
26. On bare perusal of the advertisement Annexure P/1 it is gathered that a candidate should not have been declared guilty of any offence including mortal turpitude/economic offence. In none of the aforesaid two cases, the respondent no.3 was declared an accused and those offences were neither of moral turpitude or any 20 economic offence, the decision of Supreme Court in case of Pawan Kumar (supra) relied by learned senior counsel for respondent no.3 in regard to moral turpitude is squarely applicable in the present case.
27. For the reasons stated hereinabove, I do not find any merit in this petition, the same is hereby dismissed with costs. The petitioner is directed to bear the costs of respondent no.3, counsel fee Rs.5000/-.
(A.K. Shrivastava) Judge rao 21