IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WA.No. 2112 of 2010 ---------------------------- AGAINST THE JUDGEMENT IN WPC.378/2010 .................... APPELLANTS/RESPONDENTS: 1. HINDUSTAN PETROLEUM CORPORATION LIMITED 17, JAMSHEDJI TATA ROAD, MUMBAI REP. BY ITS GENERAL MANAGER. 2. THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LIMITED L.P.G. REGIONAL OFFICE, BALA VILLAGE, (VIA) KATTIPALLA, MANGALORE-575 030. 3. THE ZONAL MANAGER-L.P.G. HINDUSTAN PETROLEUM CORPORATION LIMITED, NATARAJAN BUILDING, IV FLOOR, P.B.NO.3045, GANDHI-IRWIN ROAD, CHENNAI-600 008. 4. THE DEPUTY GENERAL MANAGER-LPG SOUTH ZONE H C P L, THALAMUTHU NATARAJAN BUILDING 1, GANDHI-IRWIN ROAD, P.B.NO.3045, EGMORE, CHENNAI-600 008. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT/PETITIONER: DEEPTHI.P., W/O MR.SREENATH.P.K. 'SREEPADMAM', AYANCHERI.P.O., VADAKARA-673544. BY ADV. SRI.KALEESWARAM RAJ FOR R1 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. --------------------------------------------------- W.A.No.2112 of 2010 --------------------------------------------------- Dated this the 14th day of March, 2011 JUDGMENT Basheer, J. This case is a classic example of how men in authority abuse their power due to sheer impertinence and contempt for fair play and authority of law. 2. A young woman entrepreneur, who applied for dealership in Liquid Petroleum Gas (LPG) more than three years ago, is still groping in the dark despite the fact that she was placed at rank No.1 by the Dealer Selection Board having obtained 99 out of 100 marks. She is in the last leg of this fourth round of litigation in pursuit of justice. 3. In the impugned judgment, the learned single Judge held that the young lady (respondent herein) is entitled to be appointed as the authorised dealer for distribution of LPG at Kuttiyadi in Kozhikode District and directed the appellants to allot the distributorship. The learned Judge categorically found that the objections raised by the appellants are wholly unreasonable and illegal. But, still, the appellants have come up in appeal repeating the very same contentions. WA 2112/10 2 4. As has been mentioned earlier, the respondent, who was one of the applicants for distributorship, was placed at rank No.1 in the select list prepared by the Dealer Selection Board. Exhibit P2 score sheet would show that she had obtained the maximum mark of 99 out of 100 among the candidates. It is on record that the respondent had produced documents like Fixed Deposit Receipts, Salary Certificate, etc. to substantiate her claim that she was financially capable to run the business. She held a Fixed Deposit of `.24,32,289/- and Savings Bank balance of `.3,25,416/-. Moreover, she produced documents to show that she owned and possessed fifty cents of land as well to put up a godown. It is also beyond controversy that the respondent had submitted Form No.16 (Exhibit P4) giving details of her income in the prescribed format, supported by necessary documents. She had also submitted an affidavit in the prescribed format giving details of income for the previous financial year 2007-08 of herself and her husband. This affidavit was attested by a Notary Public as stipulated. 5. It appears that a field inspection was conducted by the appellants to check the veracity of the details furnished by the respondent. Thereafter, the respondent was directed by the appellants over telephone to produce copy of her income tax return for the year 2007-08. According to the respondent, she had not WA 2112/10 3 submitted any returns till that time since she was not an assessee under the Income tax Act. Nevertheless, she submitted her returns with penalty and forwarded a copy to the appellants in order to comply with the direction issued to her. 6. But, since there was no response from the appellants, the respondent filed W.P.(C)No.7424/2009 before this Court. In the said writ petition, the appellants informed the court that the respondent was not found eligible to get the dealership. Therefore, the writ petition was disposed of by this Court directing the appellants to inform the respondent the reasons for her disqualification and to afford an opportunity of hearing to her, if she submitted her objections to the notice of disqualification. 7. But, surprisingly, the appellants did not issue a notice as directed; instead Exhibit P7 order was passed holding that the respondent is ineligible to get the dealership, since she and her husband had filed the income tax return only after the submission of the application for dealership. This, according to the appellants, was in violation of the various clauses in the advertisement and it amounted to furnishing incorrect/false information. 8. Exhibit P7 order was challenged by the respondent before this Court in W.P.(C)No.12290/2009. In the said writ petition, the WA 2112/10 4 primary grievance highlighted was that the appellants had failed to comply with the direction of this Court in the earlier writ petition to issue notice stating the reasons for disqualification. The above contention raised by the respondent was accepted by this Court and the writ petition was disposed of with a direction that Exhibit P7 order shall be treated as a notice giving liberty to the respondent to file her objections to the same within two weeks. The Senior Regional Manager of the Corporation (Appellant No.2) was directed to afford an opportunity of hearing to the respondent and take a decision in the matter. 9. However, Deputy General Manager, LPG (SZ) passed Exhibit P10 order even though the respondent was heard by the Zonal Manager-LPG confirming the earlier order of disqualification. This order was challenged by the respondent before this Court in W.P.(C) No.20398/2009. The above writ petition was disposed of with a direction to the Senior Regional Manager to conduct an hearing and take a decision in the matter after due notice. Thereafter, Exhibit P15 order was passed by the said Officer confirming the earlier decision of disqualification. The said order was challenged in W.P.(C)No. 378/2010, which has resulted in the impugned judgment. WA 2112/10 5 10. Learned standing counsel for the appellants submits that the respondent cannot be heard to say that she had furnished all the details and relevant documents in compliance with the instructions contained in the advertisement issued by the Corporation. It is pointed out by the learned counsel that in the general instructions attached to the Application Form it had been clearly stated that the details of income, as shown in the Annual Income Declaration, should conform to those indicated in the income tax return if the applicant was an income tax assessee. The failure of the respondent to attach a copy of the income tax return for the relevant assessment year was obviously a grave defect which could not have been condoned. 11. It may at once be noticed that the respondent was awarded five marks by the Dealer Selection Board under the sub heading 'Income', as could be seen from Exhibit P3 produced by her. Clause 14.1 of Exhibit P3 is extracted hereunder: Income (d) Income from all sources such as salary, property, business, agricultural, interest, royalty, etc. per annum. Based on information of application. Income as per Income Tax Return of the last financial year and or affidavit on Income. Maximum Marks. Award 0.1 marks on every unit of `.10,000/- or more in multiples of `.10,000/- and amounts less than complete unit of `.10,000/- will not be considered for award of marks. WA 2112/10 6 12. The specific case of the respondent is that she had not submitted the income tax return for the previous year. But, she had furnished all necessary information about the sources of her income in the application, in the prescribed format. She had also produced “an affidavit of income” as provided in the clause extracted above. The said affidavit was duly notarised as stipulated. 13. It is submitted by the learned senior counsel, who appears for the respondent, that pursuant to a telephonic intimation received from the office of the appellants, the respondent had filed income tax returns with penalty only with a view to comply with the oral instructions and also out of her anxiety not to lose the dealership. According to the learned senior counsel, the respondent did not furnish any incorrect or false information. The appellants did not have a case that the information furnished by the respondent in her application, in the prescribed format or in the affidavit, was in any way incorrect. The respondent had produced duly attested certificates from the banks concerned in respect of the Fixed Deposits, Saving Bank account, etc. All other documents, which were called for were also produced by her. She had produced an affidavit of income, since, at the time of submission of the application for dealership, she did not have a copy of the income tax return for the WA 2112/10 7 obvious reason that she had not filed any income tax return till that date. 14. We have carefully perused the entire materials available on record. It is significant to note that the respondent had submitted a notarised affidavit in the prescribed format (Annexure-B). In the said declaration of annual income, the respondent had furnished the details relating to gross salary, property (net income), interest/dividend, professional income, income from agriculture, etc. etc. 15. It is true that at the foot note of Annexure-B, it is indicated that “if the applicant is payee of Income Tax, a copy of Income Tax Return should be attached” (emphasis supplied). It is contended by the respondent that she had submitted the affidavit of income containing all particulars since she was not a payee of income tax at that point of time. But, in Exhibit P15 order, the Senior Regional Manager, who has passed the said order, has taken the following view: “As the income of the petitioner is more than `.1,35,000/- (woman) and that her spouse's income is more than `.1,00,000/- (men), it is mandatory that both file returns and that both are tax assesses as per law in force and is therefore liable to pay income tax for the relevant financial year in that assessment year. Therefore, in view of the clause 19(h) & (g) of the advertisement dated 27.12.2008 as well as WA 2112/10 8 declaration under clause 16 & 17 of the application, in my view the information given is incorrect/ false/misrepresented and hence being declared ineligible for LPG Distributorship is correct and without any error.” We are of the view that Exhibit P15 order is totally misconceived and erroneous, to say the least. The learned single Judge has rightly held that the respondent cannot be denied the dealership or distributorship of LPG at Kuttiyadi in Kozhikode District, in the facts and circumstances of the case. 16. The appellants have undoubtedly abused the process of this Court and therefore, they are liable to be mulcted with exemplary cost, which we quantify at `.25,000/-. The cost shall be paid by the appellants to the respondent within one month from the date of receipt of a copy of this judgment. Similarly, the appellants shall issue appropriate orders awarding dealership to the respondent as directed by the learned single Judge within one month from the date of receipt of a copy of this judgment. The appeal is dismissed. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv