IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1433 of 2010 In (CIVIL WRIT JURISDICTION CASE NO. 846/2004) Sushil Kumar, son of Birendra Kumar Sharma resident of Kavivar Nepali Path, Lal Bazar, P.O.& P.S. Bettiah, District-West Champaran. ……Respondent…..Appellant. Versus 1. The Union of India, through Managing Director, H.P.C.L., Tata Road, Mumbai. 2. Hindustan Petroleum Corporation Limited through its Managing Director, Petroleum House, 17J, Tata Road, Mumbai-400026. 3. The Senior Regional Manager, Hindustan Petroleum Corporation Limited, Lok Nayak Jaiprakash Bhawan, 6th Floor, Fraser Road, Patna. 4. The Regional Manager, Dealer Selection Committee, Hindustan Petroleum Corporation Limited, Lok Nayak Jaiprakash Bhawan, 6th Floor, Fraser Road, Patna. …..Respondents….Respondents. ---------------------------------- For the Appellant: Mr. Jitendra Singh, Sr. Advocate with Mr. Suraj Samdarshi, Advocate For Respondent Nos. 2 to 4: Mr. Chitranjan Sinha, Sr. Advocate with Mr. Rabindra Nath Kanth, Advocate For Respondent No.5: Mr. Abhay Kumar Singh, Sr. Advocate with Mr. Jagdish Prasad Bhagat, Mr. D.N. Tiwari & Mr. Shaket Tiwari, Advocates. ------------------------------------ With Letters Patent Appeal No.425 of 2009 IN (CIVIL WRIT JURISDICTION CASE NO.18555/2008) Raman Kumar Mishra, Son of late Sachidanand Mishra, resident of Narkatiaganj, P.S. Narkatiaganj, District- West Champaran. ...Respondent No.5…Appellant. Versus 1. The Union Of India, through the Secretary, Ministry of Petroleum & Natural Gas, Government of India, Shastri Bhawan, New Delhi. 2. Hindustan Petroleum Corporation Limited, Petroleum House, 173, Tata Road, Mumbai-400 026 through its Chairman. 3. The Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Lok Nayak Bhawan, 6th Floor, Frazer Road, Patna. 4. The Regional Manager, Hindustan Petroleum Corporation ltd., Lok Nayak Bhawan, 6th Flooor, Frazer Road, Patna. …..Respondents No.1 to 4…. Respondents. 5. Sushil Kumar, son of Birendra Kumar Sharma, resident of Kavivar Nepali Path, Lal Bazar, P.S. Bettiah, District- West Champaran. …….Petitioner…..Respondent. ---------------------------------- 2 With Letters Patent Appeal No.465 of 2009 IN (CIVIL WRIT JURISDICTION CASE NO.18555/2008) 1. Hindustan Petroleum Corporation Limited, Petroleum House, 17J, Tata Road, Mumbai-400026 through its Chairman. 2. The Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Lok Nayak Bhawan, 6th Floor, Fraser Road, Patna. 3. The Regional Manager, Hindustan Petroleum Corporation Ltd., Lok Nayak Bhawan, 6th Floor, Fraser Road, Patna. …..Respondent Nos.2 to 4….Appellants. Versus 1. Sushil Kumar, son of Birendra Kumar Sharma, resident of Kavivar Nepali Path, Lal Bazar, P.O. & P.S. Bettiah, District- West Champaran. ……. Petitioner……Respondent. 2. Raman Kumar Mishra, son of late Sachidanand Mishra, resident of Narkatiaganj, P.S. Narkatiaganj, District- West Champaran. ..…Respondent No.5…Respondent. 3. The Union of India, through the Secretary, Ministry of Petroleum & Natural Gas, Government of India, Shastri Bhawan, New Delhi. ….Respondent No.1…Respondent. ---------------------------------- 04- 19.12.2011 Heard the Parties. 2. LPA No.425 of 2009 preferred by Raman Kumar Mishra and LPA No.465 of 2009 preferred by Hindustan Petroleum Corporation Limited (hereinafter referred to as ‘the Corporation’) arise out of judgment and order dated 3rd March, 2009 passed in CWJC No.18555 of 2008 preferred by Sushil Kumar. Those two LPAs are not of much significance now because LPA No.1433 of 2010 has become the main matter as it arises out of an earlier writ petition bearing CWJC No.846 of 2004 preferred by Raman Kumar Mishra challenging the decision of the Corporation in treating Sushil Kumar as the first qualified candidate for retail dealership of 3 LPG at Ram Nagar in the district of West Champaran. According to the selection list contained in Annexure A/2 to the affidavit of the Corporation, Raman Kumar Mishra was the 2nd qualified candidate followed by another 3rd candidate. During the pendency of CWJC No.846 of 2004 the Corporation issued a letter of intent in favour of Raman Kumar Mishra, the 2nd qualified candidate so that alternative arrangement could be made for dealership of LPG by way of temporary arrangement. That led to filing of CWJC No.18555 of 2008 which was allowed on 3.3.2009 and letter of intent in favour of Raman Kumar Mishra was quashed as legally not valid. That has given rise to LPA No.425 of 2009 and 465 of 2009. Since the matter is now to be decided on merits in the context of larger issues involved in LPA No.1433 of 2010 preferred by Sushil Kumar, judgment in this LPA will govern the rights of the parties in the other two LPAs also. For that reason all the three appeals have been heard together. 3. The relevant facts for deciding the dispute may be noticed in brief. In the year 1997 the Corporation issued advertisement for the LPG distributorship in question. No final decision appears to have been taken pursuant to the 1st 4 advertisement dated 31.12.1997 and hence another advertisement for the same distributorship was published on 28.8.2000 along with distributorship for several other places. According to the 2nd advertisement, a candidate who had applied earlier would be considered along with those who may apply pursuant to fresh advertisement, but he had to make a fresh application for that purpose enclosing the details of earlier applications. The appellant Sushil Kumar had applied pursuant to the 1st advertisement and he renewed his application in terms of 2nd advertisement of the year 2000. He disclosed in his application that he is son of Birendra Kumar Sharma and none of his close specified relatives were having any dealership/distributorship of any public-sector oil company. 4. On the basis of facts disclosed by the appellant including the name of his father as Birendra Kumar Sharma, he was placed as the 1st qualified candidate in the final selection made in the year 2003. However, before letter of intent could be issued to the appellant, a complaint was made that the appellant has wrongly given the name of his father as Birendra Kumar Sharma because he is adopted son of Narendra Kumar Sharma who is having a LPG 5 distributorship at Bettiah. The basis of such complaint was a written statement filed by the appellant in a title suit bearing T.S. No.63 of 2000 filed by Smt. Nutan Devi, wife of Narendra Kumar Sharma in the Court of Munsif, Bettiah. The plaintiff of that suit claimed title to a land/property which was purchased by virtue of a sale-deed in the year 1975 in the name of Sushil Kumar, son of Narendra Kumar, husband of the plaintiff. The plaintiff’s case was that her son Sushil Kumar in whose name the property was purchased died at a tender age of about two years and, therefore, she had title to the land of her deceased son. On receipt of notice in that suit the appellant who is defendant no.2 in the suit filed a written statement wherein he denied the claim that Sushil Kumar was son of Narendra Kumar and that he died at the age of two years. This appellant claimed that the property was purchased in his name because he happened to be the adopted son of Narendra Kumar Sharma. This written statement was supported by an affidavit dated 15.5.2000. Even after a complaint was lodged as indicated above, when the Corporation did not cancel the selection of Sushil Kumar as qualified candidate no.1, the writ petition in question was filed on 19.1.2004 by Raman Kumar Mishra, respondent no.5 6 herein. The writ petition has been allowed by the learned Single Judge mainly on the ground that when the appellant has claimed in the written statement filed in Title Suit No.63 of 2000 that he was adopted son of Narendra Kumar Sharma, he was required to disclose this fact in the informations supplied to the Corporation because the adoption has allegedly taken place in the year 1975, but since this fact was not disclosed either pursuant to the advertisement made in the 1997 or pursuant to the later advertisement made on 28.8.2000, the selection board was required to now take a fresh decision after applying its mind to all the relevant facts. 5. On behalf of the appellant elaborate arguments were advanced on the basis of a large number of documents such as judgment in a probate case dated 23.5.1985, his driving licence and his passport etc. that father’s name of the appellant is Birendra Kumar Sharma and there was no error in mentioning this name in the various applications/documents submitted to the Corporation. The writ Court had noticed that the appellant had produced an amendment petition filed in Title Suit no.63 of 2000 for the purpose of explaining that in fact only the intention was there for adoption in the year 1975 but actually no adoption ever 7 took place. The writ Court observed that although amendment petition had been filed but the same was still pending. By way of subsequent development, the order of the Munsif, Bettiah dated 24.7.2010 allowing the amendment petition has been brought on record as Annexure 1/A to the memorandum of this appeal. There was some confusion as to the effect of the prayer made in the amendment petition and of the order allowing the amendment petition and hence in order to dispel the confusion learned counsel for the appellant has produced before us a certified copy of the amended written statement support by verification of the appellant which appears to have been prepared on 30th March, 2011. On his request the amended written statement is taken on record to be kept for use in future, if required. 6. On the basis of the amended written statement it is the unequivocal stand of the appellant that he has no claim of any kind that he is adopted son of Narendra Kumar Sharma. He has described himself in the amended written statement as son of Birendra Kumar Sharma and now his case is that there was only an intention of adoption in the year 1975 but the same was never followed by any actual adoption. The explanation for the earlier stand is that the same was on 8 account of wrong legal advice and misunderstanding on the part of the Lawyer in appreciating the stand of the appellant at the time of filing of the original written statement. 7. In reply it has been submitted on behalf of respondent no.5 that the issue is not what may be the outcome of Title Suit No.63 of 2000 but whether the appellant had disclosed true and complete facts for claiming allotment of distributorship. According to learned counsel for the Corporation as well as respondent no.5, there was a clause in the advertisement requiring full and true disclosure of all the relevant facts. It is their case that the appellant failed to fulfill the requirement of such a clause and, therefore, the writ Court has rightly remitted the matter back to the Corporation for taking a fresh decision as to who should be the 1st qualified candidate among the three candidates shortlisted by the Corporation. On behalf of the respondents a categorical stand was taken that instead of quashing the selection of the three candidates, the matter should only be remanded for fresh consideration by the Corporation as to whether the appellant should remain in the list of qualified candidate or not otherwise there will be unnecessary burden of reconsidering the cases of even those 9 who were earlier not found qualified and suitable. 8. On behalf of the appellant a pointed objection was raised with regard to the observation in the order under appeal to the effect “that there is no doubt that respondent no.5 (appellant herein) suppressed the fact and while taking a decision with regard to the appointment of distributor for LPG at Ram Nagar these matters were not placed or presented before the Selection Board. The stand of the appellant is that on account of some error in the communication and legal advice the appellant did take a wrong stand that he was adopted son of Narendra Kumar Sharma but this was contrary to the earlier judgment with respect to family property itself in a probate case as well as contrary to unimpeachable documents such as passport, driving licence and educational certificates. Hence there was no concealment of real fact because in fact Birendra Kumar Sharma is a natural father of the appellant and this fact was correctly disclosed to the Corporation. It was further submitted that had the appellant any intention of claiming to be adopted son of Narendra Kumar Sharma he would have laid claim over his other property as adopted son but that was never done and only to clarify the confusion, if any, the 10 appellant had taken a firm stand before this Court that he is not the adopted son of Narendra Kumar Sharma and remain son of his natural father Birendra Kumar Sharma. 9. It would not be proper for us to make any observation with regard to the matters involved in Title Suit No.63 of 2000 because those matters and issues must be decided by a competent court in accordance with law. We would like to make it clear that the appellant had no doubt suppressed the stand taken on his behalf in his written statement and the same stand continued for few years but that has been ultimately given up by taking a firm stand before this Court and in the amended written statement and hence it cannot be held that he actually suppressed his real parentage but in all fairness to the Corporation, the appellant, at the relevant time ought to have disclosed and made available whatever was claimed by him in his written statement. Now when the written statement stands amended, it will be for the Corporation to consider all the documents made available on behalf of the appellant regarding his parentage including the amended written statement for coming to a conclusion whether he has suppressed any material or real facts in respect of his parentage or not. The observations made by the 11 writ Court in favour or against any of the parties will not cause prejudice to either of the parties. 10. With the aforesaid clarification and observation we endorse the view taken by the writ Court that the Corporation should itself first decide the controversy raised with respect to the candidature of the appellant on the basis of relevant facts without being prejudiced by the order or this Court. That should be done at an early date preferably within a period of three months. The select list contained in Annexure A/2 shall abide by such decision. 11. These appeals are disposed of accordingly. No costs. (Shiva Kirti Singh, J.) (Shivaji Pandey, J.) S.K.Pathak/