LPA No. 1083 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1083 of 2011 (O&M) Date of decision: July 7, 2011 Indian Oil Corporation Ltd. and others ...Appellants Versus Kalu Ram and others ...Respondents CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashish Kapoor, Advocate, for the appellants. Mr. Ajay Pal Singh, advocate, for respondent No.1. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? GURDEV SINGH, J. The instant Letters Patent Appeal has been preferred under Clause X of the Letters Patent by the appellants, (who were respondents No. 1 and 2 in the writ petition), against the order dated 23.3.2011, vide which CWP No. 1761 of 2010 filed by Kalu Ram-petitioner, was allowed and direction was issued to the appellants to issue Letter of Intent (LOI) in his name within a period of two months of the receipt of copy of that order. Appellant No.1 issued advertisement in the newspaper dated 24.4.2009 for allotment of KSK Retail Outlet Dealership (hereinafter LPA No. 1083 of 2011 2 referred to as 'the dealership') throughout the State of Haryana, including village Kabri situated on Naphta Cracker Plant Road (Sidhana-Singhpura), laying down eligible criteria for selection. The petitioner also applied for dealership on the ground that he was fulfilling the eligibility criteria. He himself and Kuldeep Garg-respondent were called for interview. The Interview Committee awarded him 89.14 marks and placed him at serial No.1, whereas Kuldeep Garg-respondent was awarded 81.02 marks and was placed at serial No.2. After interview, Field Inspection Report (FIR) was to be conducted and thereafter LOI was to be issued. He approached the appellants, who assured issuance of LOI very shortly, but the same was not done, inspite of making written representations. He filed the writ petition for the issuance of appropriate writ, order or direction in the nature of mandamus directing the appellants to issue LOI in his name and not to issue the same in favour of Kuldeep Garg-respondent. The appellants pleaded in their reply that, as per the policy, before issuing the LOI to the empanelled candidates FIR is conducted regarding the contents, as disclosed in the application form. During that inspection it was found that there was variations in the amount lying in the account of the petitioner in the Oriental Bank of Commerce, Panipat. He had claimed that a sum of `6,400/- was lying in his account as on 26.3.2009 i.e. cut-off date but the balance on that date was found to be `1,320/- only. The petitioner had given an undertaking in the application form itself that furnishing of wrong information/suppression of facts would result in his disqualification for being considered for the dealership. Accordingly, the empanelment of the petitioner was considered in tune with the policy and LOI was issued to Kuldeep Garg-respondent, who was the next candidate. LPA No. 1083 of 2011 3 Learned Single Judge concluded that the change of amount in the saving bank account from `6,400/- to `1,320/- apparently had no connection with the allotment and would hardly be a valid ground to cancell the empanelment of the petitioner and that there is no ground for holding that any wrong information was furnished by the petitioner in the application form. We have heard learned counsel for both the sides. While challenging the order of the learned Single Judge, learned counsel for the appellants placed reliance on judgment of the Hon'ble Supreme Court reported in 2007 (4) SCR 1000 (Shiv Kant Yadav Versus Indian Oil Corpn. and Ors.). He submitted that the petitioner mis-stated the facts in the application submitted by him for the allotment of dealership, as he mentioned therein that he was having `6,400/- in his saving bank account as on 26.3.2009, whereas during the FIR, it was found that he was having only `1,320/- in that account and an undertaking was given by the petitioner in that application form itself that mis-statement of facts will be ground for cancellation of the allotment. It was categorically held by the Hon'ble Apex Court that in such eventuality, the allotment of dealership can be cancelled. According to him, similar proposition of law was laid down by the Hon'ble Supreme Court in B.R.Chowdhury Versus Indian Oil Corporation Ltd. And Ors. (2004) 2 SCC 177. On the other hand, it has been submitted by the learned counsel for the petitioner that it cannot be said that any such fact was mis-stated by the petitioner in the application form. He supported the facts stated in the application by means of photostat copies of the documents, including that of the passbook of the Oriental Bank of Commerce. As per the entries of the LPA No. 1083 of 2011 4 pass book, it was on 18.3.2009 that he was having `6,400/- in his saving bank account. He never stated in the application form that he was having this amount in his account on 26.3.2009. Even if during the FIR, it has been found that he was having `1,320/- in that account on the cut off date i.e. 26.3.2009, even then it will not entail in non-impaneling him. There was no such mis-statement of facts made by the petitioner. It was held by the Hon'ble Supreme Court in Shiv Kant Yadav's case (supra) that in case an undertaking is given that if any factual mis-statement is made, that permits cancellation of the allotment. In B.R. Chowdhury's case (supra), termination of the dealership on account of statement made by the appellant therein in the application form amounting to suppression of material facts, was held to be valid. Before applying the ratio of the judgments to the facts of the present case, it is to be seen that if there was any such mis-statement of facts by the petitioner. Learned counsel for the appellants himself placed on record photostat copies of the application form submitted by him and the documents annexed therewith. Those documents include passbook of the saving bank account of the petitioner. As per the entries of that passbook, a sum of `6,400/- was lying deposited in his account on 18.3.2009. He did not state in the application form that he was having that much amount in his saving account on 26.3.2009. The position would have been different in case he had made a positive assertion that he was having that much amount in his account on 26.3.2009. It cannot be said that there was any such intentional mis- statement or mis-statement at all. The facts in the above said judgments were different. In Shiv Kant Yadav's case (supra), there was mis-statement regarding the income of the appellant, which was found to be much less, as LPA No. 1083 of 2011 5 disclosed by him the application form submitted for obtaining the dealership. In B.R. Chowdhury's (supra), the appellant had furnished wrong information. He was working as a trainee professional sales representative at the time he filled up the application form. Subsequently, his services were confirmed. However, in the application form against the relevant columns, he submitted the following information. “8 (c) Whether temporarily employed ? No 9. Present occupation Nil” It was held that the statement made by the appellant in those columns amounts to suppression of material facts, which was held to be a valid ground for terminating the dealership. The petitioner was not going to achieve much by showing a sum of `6,400/- in his saving bank account instead of `1,320/-. Different marks were awarded on the basis of the information furnished by him and Kuldeep Garg-respondent regarding their capability of providing infrastructure, arranging finance, educational qualification etc. Under the column of capability to arrange the finance, the petitioner was awarded 25 marks, whereas Kuldeep Garg was awarded 22.33 marks. Even if the difference in those marks is ignored and it is taken that Kuldeep Garg was also to be awarded 25 marks, even that will not make much difference in the grand total. There was a difference of 8 marks of both these candidates. It was correctly observed by the learned Single Judge the petitioner had shown `12 lakhs in Fixed Deposit and as such a meagre sum of `6,400/- in the saving bank account had no relevance. In view of the amount lying deposited in the Fixed Deposit, the capability of the petitioner to arrange for finance cannot be doubted. The order of the learned Single Judge does not LPA No. 1083 of 2011 6 suffer from any illegality or infirmity. There is no merit in this appeal and the same is hereby dismissed. No costs. (M.M. KUMAR) (GURDEV SINGH ) JUDGE JUDGE July 7, 2011 prem