WA 194/2005 BEFORE HON’BLE MR JUSTICE AFTAB H SAIKIA HON’BLE SMT JUSTICE A HAZARIKA Heard Mr. K.N. Choudhury, Learned Senior Counsel for the Appellant assis ted by Mr. Y. S. Mannan, Advocate for the Appellant in W.A. No. 194/2005, Mr. H. Rahman, Advocate for the Appellants in W.A. No. 312/2005. Also heard Mr. A.M. M azumder, learned Sr. Counsel for the Respondent No. 1/Writ Petitioner assisted b y Mr. M. Nath, Advocate appearing for the private respondent/writ petitioner in both the appeals. 2. Both these appeals are taken up together for disposal since the appeals are directed against the judgment & order dated 7.02.2005 passed by the learned Single Judge in W.P.(C). No. 6063/2003 by which the writ petition was allowed an d the impugned Letter of Intent (hereinafter to be referred to as LOI) dated 18. 07.2003 issued in favour of the writ appellant in W.A. No. 194/2005 along with t he communication dated 18.07.2003 were set aside and quashed. It was further dir ected by the learned Single Judge that the LOI in respect of retail outlet deale rship in question for which the writ petitioner’s husband was selected as the fi rst nominee shall be issued/transferred in favour of the writ petitioner after o bserving all necessary formalities. 3. The facts of the case in brief is that, on 30.12.1997, an advertisement was issued by the Hindustan Petroleum Corporation Ltd. (hereinafter to be referr ed to as ’HPCL’) inviting applications for allotment of retail dealership under open category at Doboka in the district of Nagaon as well as in two other places under open/S.T. category. In pursuant to the said advertisement, the husband of the writ petitioner submitted his application for the dealership at Doboka. How ever, the said advertisement was not acted upon by the Respondents and a fresh a dvertisement was again issued on 11.09.2000. In the said advertisement the follo wing requirements were indicated under the heading Important Note : (a) The applicant should furnish alongwith application details of land which he /she may make available for the dealership, (b) Considering the location of the land from the point of view of commercial an gle, appellants willing to transfer the land on ownership/long lease to the Oil Company at the rate acceptable to the Oil Company would be given preference, (c) If an applicant, after selection is unable to provide indicated by him/her e arlier within a period of 2 (two) months, the allotment of the dealership made t o him/her would be cancelled. Under clause (e) of paragraph 2 of the advertisement under Eligibility Criteria it has been prescribed that the gross family income of the applicant for the fin ancial year of 1999-2000 should not be more than Rs. 2,00,000/- (Rupees two lakh s). 4. Pursuant to the said advertisement, the husband of the Writ Petitioner S iba Kanta Medhi submitted his application afresh praying for allotment of dealer ship at Doboka. Thereafter, Sri Siba Kanta Medhi was asked to appear before the Dealer Selection Board (hereinafter to be referred to as ’DSB’) on 21.06.2001 fo r interview. Accordingly, Sri Siba Kanta Medhi appeared before the DSB for inter view along with other applicants on the said date for allotment of dealership at Doboka. On consideration of the relative merits of the three contenders who app eared in the interview on 21.06.2001, the DSB selected and short listed the cand idates on merit and in the said merit list the name of Siba Kanta Medhi appeared in serial No. 1 while Smti Sahida Rahman Barbhuyan (Writ Appellant in W.A. No. 194/2005) and one Sri Biswajit Bora were placed at Serial Nos. 2 & 3 of the said merit list respectively. 5. It has been stated in the writ petition that in compliance of the condit ions mentioned under the column ’Important Note’, Sri Siba Kanta Medhi had alrea dy entered into an agreement with one Md. Rejaul Karim Choudhury for taking his land on long term lease of 99 years to use the same for retail outlet in the eve nt of his selection by the DSB. Subsequently, on being selected at serial No. 1 of the merit list, Sri Siba Kanta Medhi executed a Deed of Lease with Md. R. K. Choudhury on 5.07.2001 whereby a plot of land measuring 5 Bighas, 4 Kathas and 4 Lechas was taken over by Sri Siba Kanta Medhi for the purpose of retail outlet. The said lease deed was executed on consideration of payment of Rs. 4,000/- mon thly w.e.f. the month of August, 2001 and accordingly a monthly rent @ Rs. 4,000 /- is being paid to Md. R.K. Choudhury regularly till date. 6. In the 3rd and 4th week of July, 2001 one Field Officer, Sri Abhijit Bha ttacharjee was deputed by the HPCL for verification of the abovementioned land t aken on lease by Sri Siba Kanta Medhi. Accordingly, after conducting the field v erification, the said field officer asked Sri Siba Kanta Medhi to develop the la nd and make it ready for installation of retail outlet dealership. 7. When the matter was rested at that stage and the husband of the petition er Sri Siba Kanta Medhi was waiting for issuance of formal LOI in his favour fro m HPCL, some controversy arose by a decision of the Central Government whereby a llotment of all new dealership was proposed to be cancelled. The said decision o f the Govt. of India was challenged in the Apex Court and various High Courts in cluding this Court and eventually the controversy was resolved by the Apex Court whereby the decision by the Central Govt. was set aside and quashed. 8. When the entire controversy was resolved and the husband of the Writ Pet itioner Sri Siba Kanta Medhi, after investing huge amount of money for setting u p of the retail outlet dealership on being selected for the same, was waiting fo r issuance of the LOI in his favour, he expired on 18.02.2003 leaving the writ p etitioner as his sole legal heir. Thereafter, on 2.06.2003, the writ petitioner submitted a representation to the HPCL authorities for issuance of LOI in her fa vour on account of the death of her husband. When she was waiting for the reply from the respondents, she received a Caveat Application from 2nd empanelled cand idate Smti Sahida Rahman Barbhuyan (Respondent No. 4 in W.P./Appellant in W.A. 1 94/2005) and could come to know that said Smti Sahida Rahman Barbhuyan had been issued the LOI by the HPCL authorities vide Reference No. SM/RET/NEW/RO-DAB/LOI dated 18.07.2003 for retail outlet dealership at Doboka on the death of the 1st empanelled candidate Late Siba Kanta Medhi. Simultaneously, the writ petitioner also received a letter dated 18.07.2003 from the HPCL informing her that since no LOI was issued in the name of her husband, there was no question of transferr ing the same in the name of the writ petitioner and accordingly, her request con tained in the representation dated 2.06.2003 was not considered. After receiving the said letter and the Caveat Application the writ petitioner submitted anothe r application to the HPCL on 26.07.2003 for furnishing her a copy of the LOI dat ed 18.07.2003 issued in favour of Smti Sahida Rahman Barbhuyan. However, no such copy of LOI was furnished to the writ petitioner. It was under these circumsta nces the writ petition being WP(C) No.6063/2003 was filed by Smti Kunti Medhi, w ife of Late Siba Kanta Medhi challenging the issuance of LOI in favour of Smti Sahida Rahman Barbhuyan and praying for further direction to the HPCL authoritie s to grant the dealership of the retail outlet at Doboka in her favour. 9. It has been stated in the said writ petition that Smti Sahida Rahman Bar bhuyan in whose favour the LOI has been issued is not qualified to be granted th e dealership due to non-fulfillment of the eligibility criteria as prescribed in the advertisement dated 11.09.2000 since at the time of filing of the applicati on, i.e. on 31.10.2000 she was a student studying at Doboka Higher Secondary Sch ool. Even on the date of filing of the writ petition she was a student of the De gree class and she did not have any known source of income and was entirely depe ndent on her father Md. Abdur Rahman Barbhuyan. Hence, income of father and othe r members of Smti Sahida Rahman Barbhuyan should be treated as income of Smti Sa hida Rahman Barbhuyan. As per the terms of clause 2 (e) of the advertisement the applicant should not have a gross family income of more than Rs. 2,00,000/- (Ru pees two lakhs) in the financial year 1999-2000. In the instant case, the father of Smti Sahida Rahman Barbhuyan being the Principal of Hazi Anfar Ali College, Doboka was drawing the gross salary of Rs. 2,81,730/- (Rupees two lakhs eighty o ne thousand seven hundred and thirty) p.a. which exceeds the limit prescribed i n the advertisement under Clause 2(e), i.e. gross annual income should not be mo re than Rs. 2,00,000/-(Rupees two lakhs). Further, the father of Smti Sahida Rah man Barbhuyan is also the proprietor of M/S River Valley Stone Crusher set up as an industry at village Nahargaon in the district of Nagaon, the annual income o f which is more than Rs. 4,00,000/- (Rupees four lakhs), inasmuch as, he is also the owner of a public carrier, Tata Truck bearing Registration No. AS U 5616, b esides income from agricultural land which is more than Rs. 5 lakhs for the fina ncial year 1999-2000. Hence, in view of the facts stated above Smti Sahida Rahma n Barbhuyan whose income is much above the stipulated limit of Rs. 2,00,000/- (R upees two lakhs) as per Clause 2(e) of the advertisement, she is prima facie not qualified/entitled to be offered or settled with the retail outlet dealership in question. The writ petitioner further stated that on being selected by the a uthority, the husband of the petitioner was to be appointed as a dealer but for delay in issuing LOI by the HPCL for reasons which cannot be attributed to any o f the lapses of either the writ petitioner or her husband. Hence, the petitioner cannot be panalised for no fault of her own and right accrued to her being lega l heir of her husband cannot be taken away in the manner as is sought to be done by the HPCL. 10. The Writ Appellant Smti Shahida Rahman Borbhuyan submitted her detailed affidavit-in-opposition countering the averments made in the writ petition. Acco rding to her, on the date of submission of the application for allotment of reta il outlet dealership in question in her favour she was 22 years, 9 months and 20 days. As such, she has fulfilled the eligibility criteria on the date of applic ation as mentioned in the advertisement (Annexure-I). So far her family income f or the financial year 1999-2000 is concerned, her family income inclusive of her mother and father comes to Rs. 1,90,000/- (Rupees one lakh and ninety thousand) for which she has submitted her declaration as well as certificate issued by th e Circle Officer, Doboka Revenue Circle which belied the statement of the writ p etitioner that the gross family income of the writ appellant is more than Rs. 2, 00,000/-(Rupees two lakhs). Her father has also given her undertaking that if se lected by the authorities, he will give full support to her including financial loan, land and other infrastructural requirements. Thereafter, on conclusion of the interview of the candidates conducted by the DSB, she was placed in 2nd posi tion of the merit list and the husband of the writ petitioner was placed in the 1st position of the merit list. 11. It has been further stated in the said affidavit-in-opposition by the w rit appellant, Smti Sahida Rahman Barbhuyan that in the meantime, the Central Go vernment cancelled all the new allotment of petroleum product dealership includi ng retail outlet of LPG dealership which were issued from the year 2000 onwards. Accordingly, the Respondent No. 1 did not issue any LOI to the selected candida tes. However, the said decision of the Central Government having been challenged before various High Courts as well as before the Supreme Court, the Supreme Cou rt after hearing the parties set aside the decision of the Central Government. I t was only thereafter the process of allotment of dealership at Doboka Town was taken up by the Respondent No. 1(HPCL). However, when the HPCL was going to allo t the abovementioned dealership at Doboka Town, it had come to the knowledge of the HPCL that the husband of the petitioner who was placed at Serial No. 1 of th e merit list had expired on 18.02.2003. Since the husband of the Writ Petitioner died prior to the issuance of the LOI, the LOI was issued to the second empanel led candidate of the merit list, i.e. Smti Sahida Rahman Barbhuyan, vide letter dated 18.07.2003 issued by the HPCL authorities. 12. The case of the writ appellant Smti Sahida Rahman Barbhuyan is that sinc e the HPCL has issued LOI to the appellant as per its procedure and in accordanc e with the merit list, the writ petitioner has got no right to challenge the sam e as she was neither a candidate interviewed by the DSB nor she was selected in the merit list prepared for the purpose of allotment of dealership of retail out let of petroleum products. Therefore, the writ petitioner has no subsisting righ ts to demand LOI in her favour. If the prayer made by the writ petitioner is all owed, it will amount to reconstitution of dealership even before issuance of LOI and signing of agreements between the parties which is not permissible under th e guidelines issued by the Govt. of India, Ministry of Petroleum and Natural Gas . As per Govt. of India’s circular dated 15.01.1999 reconstitution of dealership is not allowed before three years from the date of commissioning. In the instan t case, the LOI was not issued in favour of the husband of the petitioner. Furth er, the issuance of LOI does not construe as an offer of dealership and in the L OI certain conditions are mentioned and after fulfilling of those conditions to the satisfaction of the HPCL authorities, the formal agreement for dealership is signed between the parties and only thereafter the retail outlet is commissione d. 13. Regarding Lease Deed as mentioned in the writ petition, the writ appella nt, Smti Sahida Rahman Barbhuyan stated in her affidavit that the said lease dee d is not a registered document and under the law no lease deed for 99 years is v alid unless the same is duly registered. As per the advertisement, a candidate i s required to provide land for the dealership only after selection and after rec eipt of LOI. In the instant case, since no LOI was issued in favour of the petit ioner’s husband, the question of taking lease of land prior to receipt of the LO I did not arise. On the other hand, the writ appellant, Smti Sahida Rahman Barbh uyan received the LOI from the HPCL issued on 18.07.2003 and she had already pro cured the land which was offered to the HPCL and the HPCL has already proposed t o inspect the said land. Further, she has also applied for NOC to the Gaon Panch ayat and the Revenue authorities which are required for opening the retail outle t dealership of petroleum product. 14. The learned Single Judge after hearing the learned counsel appearing for the parties and upon perusal of the record produced on behalf of HPCL authoriti es passed the impugned judgment & order on 7.2.2005 allowing the writ petition t hereby setting aside the LOI dated 18.07.2003 issued in favour of the writ appel lant/respondent No. 4 in writ petition and further directed that the LOI in resp ect of retail outlet dealership in question for which the writ petitioner’s husb and was selected as the first nominee shall now be issued/transferred in favour of the writ petitioner after observing all necessary formalities which is under challenge in the instant writ appeal. 15. Mr. K.N. Choudhury, learned Senior counsel appearing for the writ appel lant in W.A. No. 194/2005 submits that as per the guidelines contained in the Ci rcular dated 29.05.1997 issued by the Govt. of India, Ministry of Petroleum, LOI can be transferred to the next of kin of deceased LOI holder. According to Mr. Choudhury, the above Guidelines for transfer of LOI to the next of kin of deceas ed LOI holder would be applicable when the LOI is issued in the name of the empa nelled candidate. Therefore, the circular dated 29.05.1997 recognizes the rights of next of kin of the empanelled candidate in whose favour the LOI is issued. I n the instant case, on 28.04.2003 the Ministry of Petroleum directed the HPCL to issue the LOI in favour of Siba Kanta Medhi, i.e. the husband of the writ petit ioner. However, before issuance of the said LOI, Siba Kanta Medhi expired on 18. 02.2003. Since no LOI was issued in favour of the empanelled candidate Late Siba Kanta Medhi, the same can not be transferred to the writ petitioner who is not even selected by the DSB. 16. Mr. K.N. Choudhury, learned Senior counsel would further urge that claim of the Respondent No. 1/Writ Petitioner does not fall on any of the conditions as mentioned in the circular dated 29.05.1997, inasmuch as, the husband of the w rit petitioner ought to have sought legal redresses within the time frame as pre scribed for, i.e. immediately after conclusion of the investigation as well as f or issuance of LOI as per the relevant circulars. Further, Mr. Choudhury has rel ied on the decision of the Apex Court reported in AIR 1970 SC 898 [M/S. Tilokcha nd Motichand versus- H.B. Munshi] wherein it has been held that a party claimin g fundamental rights must move the Court before other rights coming to existence . In the instant case, the right of the writ appellant has already accrued befor e the right of the writ petitioner came into existence. Hence, on this ground no relief could be granted to the writ petitioner. 17. Learned Counsel for the Appellant thus contended that the learned Single Judge without recording any findings as to whether the writ petitioner fulfils the conditions laid down in the circular dated 29.05.1997 for transfer of LOI in her favour allowed the writ petition thereby directing the authorities to issue /transfer the LOI in favour of the writ petitioner, which is not permissible und er the guidelines issued by the Government of India, Ministry of Petroleum and Gas, as such the impugned judgment is not sustainable in law and liable to be s et aside and quashed. 18. Mr. A.M. Mazumder, learned Senior Counsel for the Writ Petitioner/Respon dent No. 1 herein at the very outset brought to the notice of the court the foll owing facts: 30.12.1997 An advertisement was issued by the HPCL for Retail Outlet Dealer ship at Doboka Town under open category. Husband of the petitioner Sibakanta Med hi applied for the dealership. 11.09.2000 Another advertisement issued by the HPCL. Criteria -Income of the candidates should not be more than Rs. 2 lakhs. Petitioner’s husband Siba Kanta Medhi applied again. HPCL asked Siba Kanta Medhi to appear before Selection Board. 21.06.2001 Siba Kanta Medhi was placed in Sl. No. 1 of the Merit List. Smti Shahida Rahman Barbhuyan was placed in Sl. No. 2 of the said list. 5.07.2001 Lease Deed Agreement signed by Siba Kanta Medhi for 99 years for taking land on lease for which monthly Rent of Rs. 4000/- was fixed and being p aid. 12.07.2001 One complaint was lodged by a private organization i.e. Doboka A nchalik Youth Parishad which was not an applicant for the dealership. 3rd & 4th week One Field Officer, Sri Abhijit Bhattacharjee deputed by of July, 2001 Respondent Oil Company inspected and verified the above land of Siba Kanta Medhi and asked him to improve the said land. The husband of the petitioner Siba Kanta Medhi spent huge amount of money after being selected. 2.02.2002 Investigation was done by the concerned authority dismissing the above private complaint and report was submitted to the higher authorities on 1 1.02.02. 18.02.2003 Siba Kanta Medhi, husband of the Writ Petitioner expired. 28.04.2003 Petroleum Ministry gave a direction to the HPCL to issue LOI to the husband of the Writ Petitioner. 2.06.2003 The Writ Petitioner who is the wife of Late Siba Kanta Medhi sub mitted representation to the HPCL authority to issue letter of intent (LOI) in h er favour. 18.07.2003 The HPCL authority informed the writ petitioner that since LOI w as not issued to her husband, no question arises to transfer LOI in her name and on the same day Letter of Intent (LOI) was issued in favour of the Writ Appella nt Smti Shahida Rahman Barbhuyan. 26.07.2003 Writ Petitioner filed application to Respondent No. 3 to furnish her a copy of abovementioned LOI dated 18.07.03 issued to the writ appellant of W.A. No. 194/2005 without any result. 19. Referring to the above facts, Mr.Mazumdar has submitted that the Ministr y of Petroleum and Natural Gas, Government of India issued a Guidelines in the n ame of Citizens Charter (a charter of rights) informing the customers about th eir rights, services offered by the OIL companies, PROCEDURE FOR SELECTION OF DE ALERS & DISTRIBUTORS etc., terms of which are binding on both the parties and as per Clause 7.5 of the Guideline which deals with sequence of procedures followe d in the selection of dealerships/distributorships, the LOI should be issued wit hin 15 days from the date the empanelled list is forwarded to the OIL Companies by the DSB for necessary action. There is no provision of withholding or delayin g the issue of the LOI to the eligible empanelled candidate, i.e. Sl. No. 1 of t he merit list under any circumstances. In the instant case, on 21.06.2001, Siba Kanta Medhi, husband of the wri t petitioner was selected as first empanelled candidate. As per the above Guidel ines the HPCL authorities ought to have issued LOI to Siba Kanta Medhi within 15 days from the date when the DSB sent the abovementioned empanelled lists to the HPCL authorities. However, inspite of receiving the said empanelled list, no LO I was issued to Siba Kanta Medhi by the HPCL authority on the ground that a comp laint was lodged by one Doboka Anchalik Youth Parishad, a fictitious body to the HPCL authority on 12.07.2001 which was ultimately found to be false by the inve stigating authority on 2.02.2002. Assuming but not conceding that such fictitiou s complaint could be entertained by the authorities, there was no reason for non -issuance of the LOI within 15 days (as per Clause 7.5. of the Charter) from 2. 2.2002, i.e. the date on which the complaint was found to be false thereby exone rating the writ petitioner’s husband from the allegation made against him. Howev er, due to the reason best known to the authority it was directed to be issued only on 28.4.2003 by the Petroleum Ministry, i.e. after more than 1 year 2 month s and 26 days from the date on which the complaint was found to be false by the Investigating Agency. However, in the meanwhile, Siba Kanta Medhi, husband of th e Writ Petitioner who was placed at Sl. No. 1 of the merit list had expired on 1 8.2.2003. 20. Mr. Mazumder has vehemently urged that the issue of the LOI was delayed illegally, without any authority of law and on account