1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6049 of 2002 Sau.Anjani Sanjay Mane, Adult, Occu Nil, Residing at Ashta, Taluka Walva, Dist. Sangli. ..... Petitioner V/s. 1. Lokmanya Indane Ashta, through its Chairman Ashta Lokmanya Nagari Sahakari Patsanstha Maryadit, Ashta, Tal. Walva, Dist. Sangli. 2. Dealer Selection Board, Hotel Kohinoor Executive Room Nos.102/104, Apta Road, Deccan Gymkhana, Pune – 4. 3. Indian Oil Corporation Ltd. (Marketing Division), Indane, Area Office at 11, M.G. Road, Pune 411 001. 4. Indian Oil Corporation Ltd., Maharashtra State Office, 1st and 3rd Floor, Badamia Manor, Keshavrao Khade Marg, Mahalaxmi, Mumbai – 400 034. 5. Union of India, through its Ministry of Petroleum and Natural Gas. ..... Respondents Mr.P.S.Dani a/w Shri S.V.Sakhare, for the petitioner. Mr.S.R.Borulkar a/w A.B.Vagyani, for respondent No.1. Mr.Sunil Gangan i/by M/s.RMG Law Associates, for respondent Nos.3 and 4. 2 Mr.Y.R.Mishra a/w Shri D.A.Dubey, for respondent No.5. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 29th June, 2010 ORAL JUDGMENT (PER R.M.SAVANT, J.) :­ 1. By this petition filed under Article 226 of the Constitution of India, the petitioner takes exception to the Award of distributorship of Indane LPG made in favour of respondent No.1 at Ashta, Taluka Walva, District Sangli by the impugned order dated 14­11­2001. The petitioner also seeks a relief that the respondent Nos.3 and 4 to consider the grant of distributorship of Indane (LPG) to the petitioner. 2. As indicated above, the bone of contention in the petition is the Award of LPG distributorship at Ashta, Tal.Walva, Dist. Sangli. The respondent No.3 is one of the oil companies, which distributes LPG. An advertisement in respect of the site in question, came to be issued on 13­09­2000 by the respondent No.3, a brochure was published containing the eligibility criteria etc. Considering the nature of the challenge raised in the petition, it would be relevant to quote the opening part of the Part I of the application form, which reads as under : ­ Eligibility Criteria for Award of Dealerships/ Distributorships under Open Category Part I 3 Please note the following carefully : ­ ‘You should submit the application form only if you confirm to the following eligibility criteria. In case, you do not meet the prescribed eligibility criteria or the application is not complete in all respects, it is liable to be rejected without assigning any reasons and no correspondence will be entertained in this regard. 1. Nationality : Indian 2. Age : Min. 21 years Max. 60 years on the date of application. 3. Educational : Minimum Matriculation or Qualification recognized equivalent 4. Residence : Resident of the concerned district as stated in the advertisement. 5. Relationship :(a) No person shall be awarded a new dealership/distributor­ ship if he/she already holds a Letter of Intent (LOI) or a dealership/distributorship of MS/HSD/Kerosene/LDO/ LPG of any public sector oil company. (b) No person shall be awarded a new dealership/distributor­ ship if any of the following close relatives (including step relations) of the person already holds a Letter of Intent or a dealership/ distributorship of MS/HSD/Kerosene/ LDO/ LPG of any public sector oil company. (i) Spouse (ii) Father/Mother ( Not applicable to daughter) (iii) Brother/Brother’s wife ( not applicable for women applicants) 4 (iv) Son/daughter in law 6. Gross Income : The candidate should not have gross income of more than Rs.2 lacs for the last financial year as specified in the advertisement. The income for this purpose will include that of self, spouse and dependent children. If the candidate is dependent on the parents, then their income will also be taken into consideration for computing the total income. 7. Partnership : Each partner should individually meet each eligibility norms. If any of the partners is found ineligible, the applications of all the partners shall be rejected. 8. Co­operative :(a) The co­operative society must be registered. (b) No society shall be awarded a new dealership/ distributorship if it or any of the members already hold(s) a Letter of Intent or a dealership/distributorship of MS/HSD/Kerosene/LDO/ LPG of any public sector oil company. (c) Only co­operative Societies making a net profit for the previous three consecutive financial years as certified by a Chartered Accountant will be eligible. 5 9. Corporations : Corporations owned or owned or controlled controlled by the Government by the Government and all PSUs are eligible to and PSUs apply. Restrictions relating to annual income, residence and multiple dealerships/ distributorships would not be applicable to Corporations owned or controlled by Government /PSUs. 10. Unsound persons : Totally paralysed and mentally unsound persons are not eligible to apply. 11. Conviction : Candidates convicted for any criminal offence involving moral turpitude and/or economic offence (other than Freedom struggle) and those against whom charges have been framed by the Court (other than Freedom struggle) would not be eligible for dealership/ distributorship and if such a person is allotted the dealership/distributorship by suppression of information, it will be cancelled. 3. In so far as the present case is concerned, the relevant clause is Clause 8, since the respondent No.1 is a Co­operative Society. The respondent No.1 therefore, had to satisfy the conditions mentioned in sub­clauses (a), (b) and (c) of the said Clause 8. The respondent No.1 was 6 called for interview on 13­02­2001, pursuant to his application dated 11­10­2000. It appears that a list was prepared of the applicants in terms of the marks allotted to them under various heads, which were envisaged in the scheme and in terms of the said marks, the respondent No.1 had secured the highest number of marks followed by one Kolhapure at Serial No.2 and thereafter, followed by the petitioner at Serial No.3. It appears that the said Kolhapure had made a grievance in respect of the petitioner’s eligibility to the Oil Selection Board, pursuant to which an inquiry was conducted by the Oil Selection Board, which inquiry concluded by holding that the respondent No.1 was entitled to participate for the said LPG distributorship. Thereafter, on 14­11­2001, a letter of intent came to be issued to the respondent No.1. The petitioner made a grievance to the Oil Selection Board in respect of the said Letter of Intent on 22­01­2002 and thereafter, filed the instant petition in September 2002. 4. The Award of the LPG distributorship to the respondent No. 1 has been challenged principally on the ground that the respondent No.1 was not eligible on the date when it had applied i.e. on 11­10­2000, in view of the fact that one of its members one Appasaheb Rukade, was having dealership of the petroleum products of the respondent No.3 company. Reliance is placed on the Clauses of the Scheme, as are reproduced hereinabove, in support of the said ground of challenge. 7 5. The petition is opposed on behalf of the respondents by filing affidavits­in­reply dealing with the claims and contentions raised in the petition. In so far as the respondent No.3 Oil company is concerned, apart from saying that necessary inquiry was conducted on the complaint of the said Kolhapure, who was serial No.2 of the merit list. To the said affidavit, is appended a letter dated 12­04­2001 of the then Chairman of the Oil Selection Board, Pune. We would allude to this letter in the latter part of this judgment. 6. We have heard the learned counsel for the parties. On behalf of the petitioner, Mr.Dani submitted that the scheme postulates at the inception that only if a person fulfills the requirements which are mentioned in the part I of the Brochure, he could apply for the said LPG distributorship. Fulfillment of the requirements or eligibility is on the date when the application is made and the applicant cannot be allowed to cure the defect and become eligible by taking corrective methods. The learned counsel for the petitioner submitted that in so far as respondent No.1 is concerned, since the application was made on 11­10­2000, that would be the crucial date for considering the eligibility of the respondent No.1 for the said LPG distributorship. The learned counsel submitted that on the said day, the said Appasaheb Rukade, a member of the respondent No.1, was holding the distributorship in the form of petrol pump from 8 respondent No.3 company and therefore, the respondent No.1 was not eligible to apply for the said distributorship in terms of Clause 8 read with other clauses of the said scheme. 7. Per contra, it is submitted by the learned counsel appearing for respondent No.1 and the respondent No.3 that the petitioner has not even raised an objection as regards the eligibility of the respondent No.1 and it was only Shri Kolhapure who was at serial No.2 of the merit list, who had raised the objection and in respect of whose objection, an inquiry was conducted and everything was found in order. The learned counsel for respondent Nos.1 and 3 placed strong reliance on the letter of the Chairman of the Dealer Selection Board, to buttress their submission that the respondent No.1 was eligible on the date of Award of the Contract. 8. Having heard the learned counsel for the parties and having gone through the proceedings, in our view, since the Dealer Selection Boards are no more in existence and since the method of granting distributorship has undergone a sea change, it would be appropriate if the issue as regards the eligibility of the respondent No.1, is remanded back to the concerned authority of respondent No.3 for a fresh consideration in view of the following reasons. 9. It would be significant to note that the above petition has been admitted in the year 2003. Ad­interim reliefs were refused thereby 9 allowing the respondent No.1 to continue the said LPG distributorship . The respondent No.1 has made a substantial investment to carry out the said distributorship in the form of premises and other infrastructure required, as per the conditions prescribed by the respondent No.3. It would also be pertinent to note that the respondent No.3 services large number of customers in the said area and therefore, abrupt stoppage of the distributorship at this stage, would greatly cause prejudice to the said customers. Now, coming to the Clauses of the Scheme with which we are concerned, though, on behalf of the petitioner, much emphasis was sought to be laid on the cumulative effect of all the Clauses. One thing cannot be lost sight of is Clause 8, which postulates that no Society shall be awarded new dealership/distributorship if any of the member hold(s) a Letter of Intent or dealership/distributorship of the petroleum products mentioned therein. Therefore, what flows from this Clause is that at the time of Award of the distributorship/dealership, if the applicant holds the letter of Intent of the dealership/distributorship, then the said applicant would not be qualified for Award of the said dealership/distributorship. No doubt, the said clause read with the other clauses, gives an effect that the eligibility has to be on the date when the application is made and the applicant cannot be allowed to make himself eligible by taking corrective steps thereafter. However, since we are remanding the matter back to the 10 concerned authority of the respondent No.3 Oil Company, we do not wish to go into the said aspect and therefore, express no opinion as regards whether the respondent No.1 was eligible on the relevant date on the applications of the said clauses and would leave the said issue to the authority to decide in accordance with the scheme as contained in the brochure published in the year 2000 for allotment of the LPG said distributorship. 10. In so far as the letter of the Chairman of the Dealer Selection Board is concerned, the said letter proceeds only on the basis of Clause 8, oblivious of the other clauses of the said scheme, which in our view, are required to be taken into consideration for deciding the eligibility of respondent No.1. We have therefore, our own doubts as regards the interpretation sought to be propounded by the then Chairman of the Dealer Selection Board. We therefore, direct the concerned authority of the respondent No.3 to decide the said issue dehors the said letter and arrive at its conclusion independently. 11. Since the respondent No.1 is conducting the distributorship from the year 2001, the respondent No.1 would continue to operate the said distributorship pending the decision of the concerned authority of respondent No.3 Company. The concerned authority would be entitled to take its own decision including the decision to continue the distributorship 11 with the respondent No.1 or a decision to invite fresh applications for the said distributorship. The learned counsel for the petitioner and the respondent No.1 have acceded to the above course of action being followed, subject to their rights if any, contingent on the orders to be passed by the concerned authority of the respondent No.3. The concerned authority may decide the said issue within a period of six months of a copy of this order being produced before it by either of the parties, by giving an opportunity to the concerned parties. Rule is accordingly made absolute in the above terms, with parties to bear their respective costs. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )