Madhya Pradesh High Court
Ku.Shriya vs Hindustan Petroleum Corporation Ltd. on 4 August, 2015
1
W.P. No.9097/2014
4.8.2015
Shri Nilesh Sharma, learned counsel for the petitioner.
Shri S.R. Kochatta, learned counsel for the
respondents.
Heard finally with consent.
This writ petition has been filed by the petitioner challenging the order dated 23.9.2014, whereby the petitioner's candidature for LPG distributorship for Soyatkala, District Agar has been rejected.
In brief, the petitioner had submitted the application for the LPG distributorship under Rajeev Gandhi Gramin LPG Distributor Scheme for location including village Soyatkala, Tehsil - Susner, District - Agar Malwa in pursuance to the advertisement dated 18.9.2013. Subsequently some more information was supplied by the petitioner as per the notice of the respondents and thereafter, the respondents have passed the impugned order dated 23.9.2014 rejecting the candidature of the petitioner.
Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that vide order dated 23.9.2014 the candidature of the petitioner has been rejected on the ground that the petitioner had furnished the incorrect information in the application in terms of Clause 6.g 2 of the brochure for selection of the distributor. The clause
6.g provides for the requirement of having minimum total amount of Rs.4 Lacs as the closing balance on the last date of submission of application in the specified accounts in the name of self or family members. The family unit has also been defnied. The definition of family units as contained in clause 6.f and the requirement of Rs.4 Lacs as contained in clause 6.g are quoted as below :-
"6-f. 'Family Unit' in 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 individual concerned, unmarried son(s)/unmarried daughter(s).
6-g. Have minimum total amount of Rs. 4 Lakhs as the closing balance on the last date for submission of application, as specified in the advertisement or corrigendum (if any). This amount can be put together from Saving accounts in Bank/Post Office, free and un- encumbered Fixed Deposits in Scheduled 3 Banks, Post Office, Listed Companies/Government Organisation/ Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF, Surrender value of Life Insurance Policies in the name of self or family members of the "Family Unit" as defined in Multiple dealership/distributorship norm who pledge in writing such assets in favour of applicant."
The impugned order reveals that though the petitioner had mentioned in the application about having Rs.4 Lacs as F.D. in the account of his brothers but during the field verification, it was found that the brothers of the petitioner were married and they were not the members of the family in terms of the 'Family Unit' as defined above. Since it was found that the condition of having minimum Rs.4 Lacs in the name of members of the family was not fulfilled, therefore, the candidature of the petitioner was rejected. So far as the FDR of Rs.15 Lacs in another account of or during the field verification is concerned since it was not disclosed in the application, therefore, it was rightly not accepted.
The issue relating to the non disclosure of the correct particulars in the application and the rejection of candidature on this ground, has already been considered by this Court in 4 the matter of Rodmal Vs. H.P.C.L. and others, vide order dated 7.4.2015 passed in W.P. No.1750/2014 whereby this Court after considering the earlier judgments on the point, has held as under :-
"This court in the matter of Badrilal Patidar Vs. Indian Oil Corporation Ltd. and another reported in 2014(3) MPLJ 524 in similar case where the incorrect information in respect of balance in saving bank account was furnished and the candidature was cancelled on that ground, has upheld the order of cancellation by holding as under:
6. It is undisputed that in the panel which was prepared by the respondents on 13/7/2010, the petitioner was placed at Sl.No.1 in the order of merit. It is also undisputed before this Court that the petitioner had submitted the application for empanelment in pursuance to the advertisement on 9/12/2009 disclosing that in his current account No.00362000012025 the balance of Rs.82,388/- was available. It is also undisputed that in terms of the requirement of the advertisement the petitioner was required to disclose the deposits in the account as on the date of the application. In the field investigation report, it was found that on the date of the application the balance amount in the said account was Rs.77,153.61 instead of Rs.82,388.61 as disclosed through the application. Therefore, there was a discrepancy of Rs.5235/- in that account. This field investigation report has not been disputed by the petitioner but a plea has been raised that the mistake was unintentional and it was not misrepresentation.
7 Clause 10(h) of the advertisement dated 16th October, 2009 reads as under:- "10 (h) ;fn vkosnu esa dgk x;k dksbZ dFku ;k mlds lkFk layXu dksbZ dkxtkr ;k 5 vkosnu ds laca/k es mEehn~okj }kjk ckn esa izLrqr fdlh dkxtkr dks fdlh Hkh voLFkk esa xyr ;k >wBk ik;k tkrk gS rks fcuk dksbZ dkj.k crk, vkosnu jn~n djus ds ik= gksxk rFkk vxj vkosnd dks Mhyj ds :i esa fu;qDr fd;k x;k gks rks Mhyjf'ki jn~n djus ds ik= gksxh- ,slh fLFkfr;ksa esa mEehnokj@Mhyj }kjk vkbZvkslh ij fdlh izdkj dk nkok ugh fd;k tk ldsxk-** [08] The petitioner had submitted the application form (Annexure P/3) which contains the following undertaking by the petitioner:-
"eS cnzhyky ikVhnkj ,rn}kjk izekf.kr djrk gq fd mijksDr nh xbZ lHkh lwpuk,W esjs loksZRre Kku ,oa fo'okl ls lR; gS- dksbZ xyr lwpuk@rF;ksa dk Nqikuk Mhyjf'ki gsrq eq> ij fopkj dks v;ksX; Bgjk ldrk gSA** [09] The similar issue had come up before the Supreme Court in the matter of Shiv Kant Yadav Vs. Indian Oil Corporation and others reported in (2007) 4 SCC 410 wherein the plea was raised that in the preliminary enquiry report the income of the petitioner was found as Rs.1,64,000/- per annum vis-a-vis Rs.84,000/- disclosed in the application form whereas the criteria was the income should not be above rupees two lakh in the financial year. Therefore, even after the discrepancy, the eligibility criteria was satisfied. The Supreme Court considering the said plea in the matter of Shiv Kant Yadav (supra) and taking note of the declaration and undertaking has held as under:-
7. The decision not to allot the 6 dealership to the appellant was on account of the fact that he did not correctly disclose the income and thus violated his own declaration in his undertaking incorporated in the application.
8. With reference to the application form and the undertaking the High Court held that it was obviously clear that the income was not fully disclosed. The plea that the income was less than rupees two lakhs, did not materially affect the eligibility of the appellant, was not accepted and accordingly, the writ petition was dismissed.
9. In support of the appeal, it is submitted that there was no mens rea and mere mistake and unintended omission cannot be a ground for cancellation. The income of S.K. Fertilizers was not necessary to be disclosed. In the affidavit before the Selection Board it was clearly stated that S.K. Constructions may have come into existence in 2002-2003.
10. Learned counsel for the respondents on the other hand supported the order saying that once there is suppression in view of the undertaking the allotment was to be cancelled.
11. The fact of making a wrong statement in the application form and the effect of the undertaking though rendered in different context in Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav [(2003) 3 7 SCC 437]; State of A.P. vs. T. Suryachandra Rao [(2005) 6 SCC 149] and Bhaurao Dagdu Paralkar vs. State of Maharashtra [(2005) 7 SCC 605] need to be noted.
14. There was a requirement to disclose the true and correct fact which does not appear to have been done.
15. The undertaking reads as follows:
"That I am fully aware that Indian Oil Corporation (name of the Oil Company) under its policy will not appoint me as their dealer/distributor, if I am employed. I shall have to resign from the service and produce proof of acceptance of my resignation by my employer to Indian Oil Corporation Ltd.
(Name of the Oil Company) before issuance of Letter of Appointment for the dealership/distributorship.
That if any information/ declaration given by me in my application or in any document submitted by me in support of my application for the award of SKO/LDO dealership/distributorship or in this undertaking shall be found to be untrue or incorrect or false Indian Oil Corporation (name of the Oil Company) would be within its rights to withdraw the letter of 8 intent/terminate the dealership/ distributorship (if already appointed) and that, I would have no claim, whatsoever, against Indian Oil Corporation (name of the Oil Company) for such withdrawal/ termination."
16. In view of the undertaking that if any factual misstatement or declaration is made that permits cancellation of the allotment. The order of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed with no order as to costs."
Thus, in the above judgment, the similar plea raised before the Supreme Court in respect of the unintentional omission has been rejected. [10] Similar issue had come up before this Court in the matter of Rakesh Dora Vs. Union of India and others in WP No.342/2014 and this Court vide order dated 3/2/2014 has held as under:-
8/ In the field verification report dated 14/10/2013 (Annexure R/5), it was found that on 30.12.2011 i.e. the date of submitting the application for grant of distributorship, the petitioner did not have a sum of Rs.11,25,987/- in his Bank account but had only Rs.59,450/- in his Bank account. The details of the Bank account of the petitioner are on 9 record. It is not disputed by the counsel for the petitioner that as on 30.12.2011 the petitioner did not have the balance of Rs.11,25,987/- in his account, but had the balance of only Rs.59,450/- in his account. The contention of the counsel for the petitioner that the application for distributorship was not submitted by the petitioner on 30.12.2011 but on a prior date when he was having the sufficient amount in his account, can not be accepted in view of the petitioner's own case in paragraph 5.2 of the Writ Petition, wherein he has admitted that the application was submitted by the petitioner on 30.12.2011. Even otherwise, the communication dated 23.1.2012 (Annexure P/3) sent by the respondent to the petitioner as also the petitioner's own representation dated 19.9.2013 and filed verification report (Annexure R/5), reveal that the application was submitted by the petitioner on 30.12.2011.
9/ The above analysis clearly indicates that the petitioner had furnished incorrect information in the Column 11 of the application dated 30.12.2011 that he had balance of Rs.11,25,987/- in his Saving Bank account.10
10/ The Supreme Court in the matter of Shiv Kant Yadav Vs. Indian Oil Corporation and Others reported in (2007) 4 SCC 410 has approved the judgment of the High Court, wherein the High Court had refused to interfere in the cancellation of allotment when true and correct facts were not disclosed inspite of the undertaking that all particulars supplied were true and correct. It has been held by the Supreme Court that in view of the undertaking and on account of the factual misstatement or declaration, the cancellation of allotment is valid".
[11] This Court in the said judgment has noted the earlier judgments in the matter of Pankaj Mantri Vs. Indian Oil Corporation and Another and Smt Anju Khanelwal Vs. Indian Oil Corporation Ltd as under:-
11/ The similar issue had come up before this Court in the matter of Pankaj Mantri Vs. Indian Oil Corporation and Another in W.P. No.2657/2012 decided by order dated 2.4.2013, wherein the Single Bench of this Court placing reliance upon the judgment in the matter of Shiv Kand Yadav (supra) has held as under :-
"12. In the aforesaid case, the eligibility criteria reflected that a candidate should not have income of Rs. two lacs in the last 11 financial year. The person selected was having income of Rs.84,000/- against a sum of Rs. 1,64,000. Meaning thereby, misstatement of fact was not affecting the eligibility criteria. Even in those circumstances, the Apex court has held that cancellation based upon the misstatement of fact to be justified.
13. Resultantly, keeping in view the judgment delivered by the apex court, once there is a misstatement of facts on the part of the petitioner, the question of selection of the petitioner in the peculiar facts and circumstances of the case does not arise.
14. This court in the case of Smt Anju Khandelwal Vs. Indian Oil Corporation Ltd., Writ Petition No.999/2004 decided on 07-03-2005 in paragraphs 12, 13 and 14 has held as under :-
"12. In my humble opinion the declaration given is to say the least makes no sense. It is absurd and hence liable to be rejected. This only shows how causally and in mechanical way the petitioner has signed it little realizing as to what she has to sign. The object of making declaration is solemn one. It has a definite purpose behind it. It is the duty of every applicant to give proper and correct 12 disclosure of his/her status and details which concerns him/her. The applicant must realise the consequence of wrong disclosure if discovered at a later stage. It is really unfortunate that even the respondent did not take note of this vital defect in the declaration submitted by the petitioner.
13. In view of the aforesaid discussion or I may say fatal infirmities in the application submitted by the petitioner the respondent was justified in not entraining it and further justified in rejecting the application. No arbitrariness can be noticed in the action of the respondent while dealing with the case of petition so as to empower this court to interfere in writ jurisdiction.
14. As a consequence the petition fails and is hereby dismissed with no order as to costs."
15. In the aforesaid case, on the basis of misstatement of facts, the candidature of Smt Anju Khandelwal was cancelled and the same was upheld by this court. Resultantly, keeping in view the judgment delivered by this court also the question of interference does not 13 arise".
In the matter of Rakesh Dora (supra) finally it has been held by this Court as under:-
"13/ Even otherwise, it is the settled position in law that the judicial review of the administrative action, is limited to decision making process. The impugned order dated 6.1.2014 has been passed by the respondents after giving an opportunity of hearing to the petitioner. The facts on record also indicate that the respondents had considered the petitioner's candidature after the earlier selected candidate was found to be lacking in the eligibility conditions. There is no material to show any bias or malafides against the concerned authority of the respondent- Corporation. It is a simple case where the facts disclosed by the petitioner in respect of the eligibility conditions in the application, have been found to be incorrect and false and the candidature has been rejected in terms of the conditions of the guidelines and the declaration given by the petitioner himself".
[12] The Division Bench in WA No.117/2014 in the matter of Rakesh Dora (supra) by order dated 6/3/2014 while rejecting the writ appeal has held as under:-
10/ In the aforesaid circumstances, even if the application of the appellant was not misrepresentation, it certainly contains incorrect information".14
[13] In view of the above judgment, even if the misrepresentation or furnishing of incorrect information does not affect the eligibility condition, then also it was open to the respondents to reject the candidature in view of the discrepancy found in the material information disclosed in the application and in the Field Information Report in view of the undertaking which is furnished and in view of the Clause 10(h) of the advertisement, and no error can be found in the impugned decision of the respondents in this regard."
In view of the aforesaid judgment the petitioner is not right in contending that respondents have committed any error in cancelling the candidature of petitioner. Since the petitioner had furnished incorrect information in the application form therefore, respondents have rightly cancelled the candidature of petitioner.
Thus no case for interference in the writ petition is made out which is accordingly dismissed."
In view of the aforesaid position in law, I am of the opinion that no error has been committed by the respondents in cancelling the candidature of the petitioner. Even otherwise the record reflects that after cancellation of the candidature of the petitioner, respondent-Company has issued fresh advertisement on 1.1.2015 for various locations including the location under consideration and in pursuance 15 to the aforesaid advertisement, the petitioner has submitted fresh application for grant of LPG distributorship. Since the petitioner has already taken steps to participate in the fresh process of allotment of tender in pursuance to the new advertisement, therefore, also the case for exercising the writ jurisdiction in favour of the petitioner does not arise.
Hence the writ petition is found to be devoid of any merit, which is accordingly dismissed.
C.C. as per rules.
(Prakash Shrivastava) Judge trilok