IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12104 of 2010 ====================================================== 1. Nirmal Kumar Choubey S/O Late Sahdeo Prasad Choubey R/O T.N.Singh Lane, Manik Sarkar (Bangali Tola), P.O.- Bhagalpur City, P.S.- Adampur In The Town And District Of Bhagalpur .... .... Petitioner/s Versus 1. The Indian Oil Corporation Limited G-9, Ali Yavar Jung Marg Bandra (East), Mumbai- 400051, Through Its Managing Director 2. The Managing Director Indian Oil Corporation Limited G-9, Ali Yavar Jung Marg Bandra (East), Mumbai- 400051 3. The Senior Area Manager, Indian Oil Corporation Ltd. (M.D.), Indane Area Office, Patna Shahi Bhawan, Exhibition Road, Patna- 800001 4. The General Manager, Indian Oil Corporation Ltd. (M.D.), Bihar State Office Lok Nayak Bhawan, Dak Bunglow Chowk, Patna- 800001 5. The Deputy General Manager, L.P.G. Indian Oil Corporation Ltd., Jai Prakash Bhawan, Dak Bunglow Chowk, Patna- 800001 6. Smt. Babita Singh Widow Of Late Dharmendra Kumar Singh R/O Vill.- Kunjbanna, P.O. & P.S.- Pirpainty, Distt.- Bhagalpur, At Present R/O T/55 Separate Quarter Circular Road Danapur Cantt. Distt.- Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. N.K. Agrawal, Senior Advocate Mr. Diwakar Upadhyaya For the I.O.C. : Mr. Anil Kumar Sinha Mr. Amlesh Verma For Respondent No.6 : Mr. Basant Kumar Choudhary, Senior Advocate Mr. Neeraj Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 5 07-05-2012 Heard learned counsel for the petitioner and learned counsels for the respondent Indian Oil Corporation and respondent No.6. The petitioner has approached this Court for a direction to the respondent Indian Oil Corporation to cancel the candidature of respondent No.6, Smt. Babita Singh, from the initial stage itself on Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 2 the ground that she failed to show/indicate any land for showroom either in her application form or even at the time of field investigation and consequently the Letter of Intent, if any, issued in favour of respondent No.6 may be cancelled and the petitioner may be appointed as L.P.G. Distributor of the respondent company for the location at Kahalgaon, District- Bhagalpur in defence category. To cut short the matter both the petitioner and respondent No.6 apart from others applied pursuant to an advertisement dated 17.10.2007 published in the daily newspaper “Hindustan” for the appointment of LPG Distributorship for location Kahalgaon in the District of Bhagalpur under defence category and on the basis of documents and interview, the results were finally published on 29.5.2009 in which one Om Prakash Sahni was placed in first position in the merit panel having obtained 103.4 marks out of 140 marks. The respondent No.6 was placed in second position obtaining 95.3 marks and the petitioner was placed in third position having obtained 88.23 marks. The petitioner claims to have not filed any complaint/representation as he had no grievance against the selection of Om Prakash Sahni but subsequently on learning that the said Om Prakash Sahni was a mere dummy candidate and steps are being taken to appoint Smt. Babita Singh, Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 3 respondent No.6, as L.P.G. Distributor of the company for location Kahalgaon, the petitioner filed complaint/representation on 13.1.2010 before respondent Nos. 3 and 4, Senior Area Manager, Indian Oil Corporation, Patna and the General Manager, Indian Oil Corporation, Patna respectively but when no steps were taken by them, the petitioner also filed representation before the Secretary, Ministry of Petroleum, Government of India, the General Manager, respondent No.4 and the Chief Vigilance Officer, I.O.C. through registered post on 25.6.2010. Thereafter, the petitioner obtained a copy of the main application form of respondent No.6 from a person who had obtained it under the RTI Act and learnt that under the column for LPG showroom she stated that she had a suitable land in the location for construction of showroom or showroom is readily available but the details of the land are not filled up. A copy of the application has been brought on the record. Thus, according to the petitioner, respondent No.6 was not eligible in terms of the Advertisement and Guidelines and aggrieved by the inaction of the respondents in not proceeding with her complaint in terms of Rule 21 of the Selection of Indane Distributorship, June 2007, the petitioner filed the present writ petition. In the writ petition, the petitioner has expressed his Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 4 apprehension that respondent authorities of the Oil Company hurriedly issued the Letters of Intent in favour of respondent No.6 in order to frustrate the claim of the petitioner. When the matter was first taken up on 5.8.2010, this Court while issuing notice to respondent No.6 directed that in the meantime time no Letters of Intent should be issued in the matter, if not already issued. According to learned counsel for the respondents, the letter of intent has been issued on 6.4.2010 prior to the grant of stay by this Court. It is also their case that subsequently the letter of appointment has also been issued on 29.4.2011. Learned counsel for the petitioner in support of his stand refers to the copy of the original application of respondent No.6 in which under column 13B, the respondent No.6 had written “ I have my our land for Show-Room in my name having clear titld”. Under Column-13B1 in answer to the question “Do you have a suitable land in the location advertised for construction of showroom or showroom is readily available Owned/Leased (15 years minimum) in your own name or in the name of any member of your „Family Unit,‟ she has answered „Yes‟. It is also pointed out that in column 13B1, it is further provided that if the answer is „Yes‟ to column 13B1 then details and notorised affidavit as per Annexure-C of the land for showroom are to be provided as given Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 5 in the said application form but no such details are mentioned. Thereafter, the application form states that if „No‟ to 13B1 then 13 B2 is to be filled up which relates to a firm offer of sale/lease (15 years minim) from any owner of the suitable land in the location advertised for showroom also which has not been filled up and it is only stated by respondent no.6 “as Column 13 B1”. Similarly, after column 13 B2 it is provided in Column 13 B3 that “if you do not have a suitable showroom and do not have firm offer can you arrange the same in the location advertised, if selected”. The same has also evidently not been answered. I may here point out that the column provided for striking off what is not applicable between the „Yes‟ and „No‟ but it appears from the application form of respondent No.6 that a Tick mark has been made against the column „Yes‟. The other two columns of Yes/No have not been filled up either by Tick or striking off. Learned counsel for the petitioner in support his stand relies upon clause-9 of the Brochure for Selection of Indane Distributor, June 2007, which is in the following terms:- “9. Construction of Godown/Showroom on the site as mentioned in application form. The applicants who readily have Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 6 suitable godown/land for construction of godown for storage of filled LPG cylinders and shop/land for construction of shop for Indane showroom for setting up of Indane distributorship or have a firm commitment from the land owner for purchase/lease or can arrange it are accordingly awarded marks. The details given in the application alone will be considered for this purpose and the applicant will not be given any opportunity to offer any other land subsequently (even at the time of interview). For this purpose, the land owned by the family members (as defined in multiple distributorship norm) would also be considered as belonging to the applicant subject to attaching the consent of the concerned family members. After selection of the applicant, physical verification of the godown land/godown as well as the showroom will be undertaken. In the event it is found that there is variance in the details given in the application form and or the plot is not found suitable for Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 7 construction of godown or the godown is not approved by CCOE the allotment of the distributorship will stand automatically cancelled. Or if an applicant, after selection on the above basis, is unable to make Godown duly approved by the Chief Controller of Explosives on the land/godown indicated in the application and or Showroom as per the oil company‟s standard layout on the land/shop indicated in the application then the allotment of Indane distributorship made to the applicant will automatically stand cancelled.” Learned counsel also relies upon clause 14 of the Advertisement which is to the same effect. On the basis of the above conditions given in the advertisement also the details of the land had to be provided and it was stipulated that no other land will be permitted to be shown by the applicant even at the time of interview. Learned counsel for the petitioner submits that respondent No.6 was ineligible for being considered for distributorship of Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 8 LPG in terms of the Selection of Indane Distributors, June 2007, and her case should have been rejected by the authorities of the Indian Oil Corporation but just in order to favour respondent No.6, the authorities have not only not rejected her case but also given her five marks under the heading “Capability to provide infrastructure for Showroom”. It is submitted by learned counsel that undue favour has been shown to respondent No.6 by the respondent authorities. She was not at all eligible when the application was submitted by her. It is also alleged by learned counsel that the whole matter was proceeded with under a scheme by setting up the said Om Prakash Sahni for being declared the first candidate in the merit panel and although there was no eligibility of the respondent No.6 the petitioner was thereby misled into not taking any steps to verify the details of respondent No.6 who was the candidate at serial No.2 of the panel. It is submitted that subsequently on learning about the game of the respondents, the petitioner took steps to verify the matter and on the complaint filed by the petitioner not being proceeded with by the Indian Oil Corporation, the petitioner has approached this Court by filing the writ petition. Learned counsel for the Indian Oil Corporation, on the other hand, submits that so far as details of land are concerned, the Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 9 same is only required to be submitted by those candidates, who have their own land or Showroom or who have a firm offer of sales/lease of 15 years from owner of the suitable land in the location advertised for showroom or showroom, whereas so far as those who come forward with a stipulation to arrange the same in the advertised location, no such details are required to be mentioned. In support of the said stand, learned counsel for the Indian Oil Corporation relies upon Column 13B3 of the application form which does not provide for any details being given by the candidates who can arrange the land in the advertised location. It is further submitted by learned counsel that even if five marks allotted to respondent No.6 for capability to provide infrastructure for showroom is deducted, she still would have more marks than the petitioner and thus would be entitled to be selected. For the said reason, it is urged that the authorities of the Indian Oil Corporation issued the Letter of Intent and subsequently the letter of appointment to the respondent No.6. Learned counsel for respondent No.6 while adopting the submission of learned counsel for the Indian Oil Corporation further elaborates that under clause 14 of the Advertisement, the specific requirement of giving the land is only for the first and Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 10 second category of applicants, who had their owned/leased land for showroom or who have a firm offer of sales/lease ( 15 years minimum) from any owner of the suitable land in the location advertised for showroom, whereas it is not required for a person who can arrange the land. It is contended by him that in view of the fact that no details of land or showroom are given under clause 13B1 and 13B2 in the application form of respondent No.6 clearly shows that she comes in the third category of a person who can arrange the same in the advertised location and thus the Selection Board has rightly treated her as belonging to that category and given her five marks for the same. It is submitted that the Selection Board has at least leeway in the matter of selection and granting marks. Learned counsel also submits that there is no variance from the details given in the application form of the respondent No.6 and what she had provided and thus it is evident that the Selection Board might have asked her on the basis of application form as to whether she can arrange the land and only thereafter the marks must have been allotted to her. The mere absence of Tick mark by respondent No.6 in the concerned column cannot be a ground to reject the application of respondent No.6 and the Selection Board itself according to learned counsel has not made any illegal Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 11 exercise of power showing undue favour to respondent No.6. The other submission of learned counsel for respondent No.6 is that the Letter of Intent was issued on 6.4.2010 whereas the order of stay was passed on 5.8.2010 directing that no Letter of Intent shall be issued if the same has not been issued, and thus effectively there was no stay order operating against the respondent No. 6. It is also submitted that subsequently on 29.10. 2011 the letter of appointment was also issued in favour of respondent No.6 but the same was never challenged by the petitioner nor stay of the letter of appointment was sought or granted to the petitioner. It is also contended by learned counsel that respondent No.6 after obtaining all the necessary licences and permission and No Objection Certificate started running her distributorship since 29.10.2011 when the letter of appointment was issued in which process she has made huge investment. Thereafter as many as 9 truck- loads of LPG cylinders have been obtained and supplied by her and in view of the huge cost incurred by respondent No.6, no interference is required to be made by this Court in the matter . It is urged that a person, who is sleeping and sitting idle, cannot be given any advantage by the Courts of law. In support of the said stand, learned counsel relies upon a decision of the Supreme Court Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 12 in the case of Virendra Chaudhary v. Bharat Petroleum Corporation and Ors. : AIR 2008 S.C. (Suppl.) 1160, in the last part of paragraph No. 16 and paragraph Nos. 17 and 18 of which it has been held as follows: “16. ………… Recently in Khoday Distilleries Limited (now known as Khoday India Ltd.) v. The Scotch Whisky Association & Ors. [2008 (9) SCALE 40], this Court applied the principle of waiver and acquiescence being a case involving equity and justice. Conduct of the parties has also been considered to be a ground for attracting the doctrine of estoppel by acquiescence or waiver. 17. The 5th respondent did not acquire an indefeasible right. He was selected by the Oil Selection Board. The said selection was subsequently cancelled and a letter of intent was issued in favour of the appellant in May, 2004. It was not questioned immediately after issuance of the letter of intent in favour of appellant in may, 2004. In his writ application, the 5th respondent Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 13 did not question the grant of dealership in favour of the appellant. He was afforded an opportunity to amend the writ petition. He filed such an application only after 16 months. However, the writ petition itself was withdrawn and only in October, 2006 the present writ application was filed. From the facts as noticed hereinbefore, there can, therefore, be no doubt that from May 2004 to October 2006, the respondent did not take any step to challenge issuance of the letter of intent granting dealership in favour of appellant. 18. Considering the fact that starting of a business in LPG dealership requires a huge investment and infrastructure therefore is required to be provided and a large number of employees are to be appointed therefore, we are of the opinion that the High Court committed a serious error in not taking these factors into consideration in proper perspective. The impugned judgment, therefore, cannot be sustained and is set aside accordingly.” Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 14 Learned counsel for the petitioner in reply, however, submits that there was never any laches nor any waiver or acquiescence of her rights as immediately after learning about the fact that the LPG distributorship is not being given to the first empanelled candidate, Om Prakash Sahni, rather it is being given to respondent No.6 who was the second empanelled candidate, the petitioner took steps in the matter and lodged complaint before the respondents authorities on 13.1.2010 much before the issuance of L.O.I. on 6.4.2010 by the respondents and despite his reminders and further complaints to the higher authorities, no action having been taken by the respondents rather they have issued L.O.I. and the letter of appointment to the second empanelled candidate, respondent No.6, which fact was not known to the petitioner. The petitioner ultimately approached this Court in the month of July, 2010 itself clearly praying for the cancellation of the letter of intent, if any, issued in favour of respondent No.6. It is further submitted that prayer for stay was made which was granted by this Court. In view of the said facts it is urged by learned counsel that issuance of letter of appointment or the expenditure made by respondent No.6 can be of no avail as she had full knowledge of the writ petition which was pending before this Court. It is submitted by learned counsel that once the writ Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 15 petition has been filed by the aggrieved party then any action of the respondents can only be subject to the result of the writ petition and no benefit can be taken by the other side for having acted further in the matter and made expenditure. In support of the same, learned counsel relies upon a decision of this Court in the case of Tribhuwan Kumar vs. The Union of India and others: 2011 (1) PLJR 188, in paragraph No.28 of which it has been held as follows:- “28. This Court also does not find any force in the submission of learned counsel for respondent No.3 that since the letter of intent has been issued on 7.6.2010 and the respondent has incurred a huge expenditure already his candidature ought not to be cancelled. Once the writ petition has been filed any action of the authorities would be subject to the result of the writ petition. It is not a case where the petitioner has acted with any delay so as to allow the arising of any rights before filing of the writ petition. In the present matter the issuance of L.O.I. has been taken in full knowledge that the Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 16 decision of the authorities is under challenge before this Court and thus no benefit can accrue in favour of respondent No. 3 in view of issuance of L.O.I. and of any expenditure incurred by him pursuant to the same. “ I have considered the rival contentions of learned counsels for the parties. The only issue to be considered in the present case appears to be as to whether the respondent No.6 had filled up her application form with respect to showroom in terms of the advertisement or the Brochure for Selection of Indane Distributors, June 2007, and what exactly was the option exercised by her. It is evident that against column 13B, the petitioner has clearly stated that she had her own land for showroom in her own name for which she had clear title. In view of the hand-written statement, it is evident that the respondent No. 6 had under column 13B1 given answer „Yes‟ rather than striking off the same stating that she had suitable land for construction of showroom at the location advertised. It is held that when the respondent No.6 had given answer under column 13B1 as „Yes‟, she was obliged to give the details of the land as provided in the application form which she has not done as is evident from the application form and Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 17 from the remarks made against column 13B2 and 13B3 stating that the details are as per column 13B1. Thus, the submission of learned counsel for the Indian Oil Corporation and respondent No.6 that the case of respondent No.6 has to be treated as one under the category of being able to arrange the showroom in the location advertised is clearly stretching the point too far. In the application of respondent No.6 itself it has been specifically stated that she had own land for showroom. Once the statement is there respondent No.6 cannot take a stand that she can arrange the suitable land for the location advertised. Even otherwise from a reading of clause 9 of the Guidelines along with clause 14 of the Advertisement, it is evident that the details of land have to be provided in the application itself. It is true that in column 13B3 it is provided whether the candidate can arrange suitable showroom in the location advertised, if selected but no columns for giving details are provided in the application form. In my view the application form cannot override what is provided in the Brochure for Selection of Indane Distributors, June 2007, as also in clause 14 of the Advertisement. It has clearly been stated in both the documents that details are to be mentioned in the application and in the absence of such details the application would not be considered and no other land would be permitted to Patna High Court CWJC No.12104 of 2010 (5) dt.07-05-2012 18 be shown even at the time of interview. It is thus evident that details of land/showroom have to be provided in the application form itself and it is not open to any candidate to show the land subsequently. Thus, the case of respondent No.6 falls to the ground on the basis of what has been stated in the application form itself. In the present case as I have already pointed out earlier a candidate under column 13B3 may state that she can arrange a suitable showroom in the location advertised if selected but respondent No.6 in her application form has clearly stated that she had own land in her name having clear title and thus the said submission of learned counsel for the respondents can have no legs to stand. Coming to the plea of learned counsel for the respondent No.6 that the petitioner is guilty of delay and laches, the same has to be rejected straightaway as the petitioner much earlier to the issuance of letter of intent has filed the complaint before the respondent authorities of the Indian Oil Corporation which they were obliged to consider and