IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 859 of 2010 (O&M) Date of Decision: July 5, 2011 Ramesh Kumar and another …Appellants Versus General Manager, Hindustan Petroleum Corporation Limited and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. J.R. Mittal, Senior Advocate, with Mr. Kashmir Singh, Advocate, for the appellants. Mr. Atul Nehra, Advocate, for respondent Nos. 1, 2 and 5. Ms. Jai Shree Thakur, Advocate, for respondent No. 4. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. 1. The short issue raised in the instant appeal filed under Clause X of the Letters Patent is "whether show cause notice was re- quired to be issued to the appellants before recalling their selection, who were selected for HP Gas Distributorship at Chandigarh in open category"? The respondent Corporation passed a speaking order on 14.9.2009 (P-5), pointing out that interviews for HP Gas distributor- ship were conducted for location Chandigarh on 23/24.6.2008 and LPA No. 859 of 2010 (O&M) the result was declared on 24.6.2008. The appellants were posi- tioned at first place in the merit panel. The respondent Corporation categorically held that the lease agreement in respect of the land for LPG Godown, dated 11.1.2008, as registered on 15.1.2008, was not acceptable because on verification of the record it was revealed that the land shown by the appellants for the purpose of LPG Go- down, as mentioned in their application form, was already under ac- quisition process by the Finance Department of U.T. Chandigarh, vide notification dated 22.9.2006, issued under Section 4 of the Land Acquisition Act, 1894 by the Chandigarh Administration. Therefore, 25 marks awarded in respect of the lease agreement were scored off. By virtue of the aforesaid fact, the name of the ap- pellants was not to appear in the merit panel. Accordingly, the can- didature of the appellants for the HP Gas Distributorship for the lo- cation Chandigarh was cancelled. 2. The learned Single Judge repelled the argument that show cause notice was required to be issued. The view of the learned Single Judge is discernible from para 5 of the judgment, which reads thus:- "5. The petitioner cannot have a relief in the court only on a simple ground that the marks which had been as- signed to him on the basis of a leasehold property could not have validly been allowed to continue when the ad- mitted case is that the property which he had mentioned as fit for establishing a LPG distributorship was not avail- able in his hands or at any rate there had been proceed- ings of acquisition in respect of that property. His plea 2 LPA No. 859 of 2010 (O&M) that he ought to have been issued with show cause no- tice before cancellation must be seen only in the context of whether any prejudice was occasioned to him by not issuing such a notice. The prejudice could have been when it would have been possible for the petitioner to show that the basis of the decision for cancellation was wrong and the assumption of the property as being not available due to land acquisition proceedings was a wrong assumption. In some manner an opportunity of hearing ought to have made a difference for the peti- tioner to point out to some mistake. If such an opportu- nity were to be only utilised for the petitioner to offer some other property or a property which he would there- after scout for and offer to them, then I am afraid it is not an opportunity that shall be permitted to him. The terms of advertisement themselves stipulate that no alternative property could be offered after the 1st offer. Even the Bench decision referred to by the learned Senior Counsel shall have no application, for the Bench was actually con- sidering the case of how the cancellation itself was wrongly made for they were taking into reckoning a crite- rion, which was not enumerated amongst the eligibility criteria. Here the location of the property is one of the most essential features on the basis of which the decision for offering distributorship could have been made. Even after the order was passed cancelling the distributorship and even after the petitioner knew that the property, 3 LPA No. 859 of 2010 (O&M) which he had offered for locating the distributorship could not subsist in view of the Land acquisition proceed- ings, he was only asking for an opportunity for identifying yet another property and till date, the plea is only that if an opportunity is given he will identify a property and hand it over for consideration. Though the petitioner could not be imputed with any mala fide or deliberate misconduct in his application form relating to the avail- ability of the property, the cancellation is not on the basis of any misrepresentation. Pure and simple, it was a case where some marks which had been accorded to him for his leasehold had to be withdrawn and by a relative grad- ing he was not any longer in the race for a favourable consideration for allotment of distributorship." 3. Mr. J.R. Mittal, learned Senior Advocate has argued that had there been an opportunity of hearing given to the appellants then they could have highlighted before the respondent Corporation that the godown site in Chandigarh is allotted on the request of the Corporation by the U.T. Administration who could further allot the same to their distributor (Annexure 'A'). It is claimed that the go- down site which falls on the acquired land was to shift. Therefore, the failure to issue show cause notice consistent with the principles of natural justice, has cause prejudice to the rights of the appel- lants. 4. Mr. Atul Nehra and Ms. Jai Shree Thakur, learned Counsel for the respondent Corporation and the Chandigarh Administration have argued that the appellants did not have any right to the issu- 4 LPA No. 859 of 2010 (O&M) ance of show cause notice because the lease deed, which was con- dition precedent as specified in the advertisement dated 1.12.2007, published in the English Daily 'The Tribune' (R-1/3), under Clause 11 for capacity to provide infrastructure, 35 marks have been allocated and on the basis of the lease deed the appellants were awarded 25 marks. However, on verification of facts concerning lease deed dated 15.1.2008 (P-1), the land was found to be under acquisition since 22.9.2006. Obviously, there cannot be any lease deed in re- spect of the aforesaid land and the appellants could not have been awarded any marks. The speaking order passed by the respondent Corporation exhaustively deal with the aforesaid facts. 5. Having heard learned counsel for the parties and perus- ing the paper book with their able assistance we are of the view that the principles of natural justice are not mechanical in their applica- tion. The appellants, in fact, made complete misrepresentation of facts and presented a lease deed to secure unfair benefit. By no stretch of imagination the appellants could claim that they were en- titled to the award of 25 marks, which have been knocked down by considering their case on merit. It is well settled that if quashing of an order passed against the appellants would result into revival of an illegal order then such an order could not be quashed on the ground that principles of natural justice have not been followed. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court rendered in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828. In that case, the Panchayat Samithi passed a resolution, dated 28.5.1960, to locate a Primary Health Centre at Dharmajigudem. Thereafter, it passed an- 5 LPA No. 859 of 2010 (O&M) other resolution dated 29.5.1961, to locate the same at Lingapalem. The second resolution was set aside by the Government, vide order dated 7.3.1962, on the representation made by the villagers of Dharmajigudem, which resulted into restoration of resolution dated 28.5.1960. The necessary consequence was that the Primary Health Centre was to continue at Dharmajigudem. Before passing the order by the Government accepting the representation of the villagers no notice was given to the Panchayat Samiti. The afore- said order by the Government was passed under Section 62 of the Andhra Pradesh Panchayat Samitis and Zilla Parishads Act, 1959 (for brevity, 'the 1959 Act'), which mandated issuance of notice to the Panchayat Samiti. The Government again passed another order dated 18.4.1964 cancelling its order dated 7.3.1962 and thereby ac- cepting the shifting of the Primary Health Centre to Lingapalem. This time the order was passed without notice to the villagers of Dharmajigudem. This order passed by the Government was chal- lenged by the villagers of Dharmajigudem before the Andhra Pradesh High Court. On appeal by the villagers to Hon'ble the Su- preme Court it was held that the later order of the Government, dated 18.4.1963 suffer from legal defects as it was issued by the Government without prior show cause notice to the villagers of Dharmajigudem and that the Government had no power to review in respect of its order issued under Section 62(1) of the 1959 Act. The Bench further held that such an order could not be quashed even though it was passed in breach of principles of natural justice be- cause setting aside of order dated 18.4.1963 would restore the ear- lier order passed by the State Government on 7.3.1962 which was 6 LPA No. 859 of 2010 (O&M) also passed without notice to the Panchayat Samiti and it would also result into setting aside a valid resolution passed by the Panchayat Samiti. It was in the aforesaid facts and circumstances that Hon'ble the Supreme Court refused to interfere by holding as under:- "17. ......Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, be- cause it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an il- legal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discre- tionary power in the circumstances of the case." 6. It is, thus, evident that the judgment in Gadde Venkates- wara Rao's case (supra) is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because it has been passed in breach of principles of natural justice and it can validly refuse to exercise its discretion if such a course would result in restoration of an earlier order passed in fa- 7 LPA No. 859 of 2010 (O&M) vour of the claimants which was not in accordance with law. The aforesaid principles were followed and applied by Hon'ble the Su- preme Court in the case of M.C. Mehta v. Union of India, (1999) 6 SCC 237. 7. In view of the clear principles enunciated by Hon'ble the Supreme Court and the precedents, we find that the conclusion reached by the learned Single Judge does not call for interference. The rationale and reasoning for us to reach that conclusion is, how- ever, different. In a situation like the one in hand, the compliance with the principles of natural justice would result into mechanical application of law and would result into restoration of allotment let- ter issued to the appellants earlier which has become absolutely ille- gal. Therefore, the appeal is without any merit and the same does not deserve admission. Accordingly, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) July 5, 2011 JUDGE PKapoor 8