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Himachal Pradesh High Court · body

2001 DIGILAW 209 (HP)

SUNIL KUMAR CHADHA v. UNION OF INDIA

2001-08-24

A.K.GOEL, C.K.THAKKER

body2001
JUDGMENT Per Arun Kumar Goel, J.:- Petitioner has filed this writ petition challenging the action of respondents No.2 and 3, whereby they have appointed Respondent No.4 as a distributor of Bharat Gas under general category at Lad-Bharol Town in the District of Mandi. 2. Facts regarding which the learned counsel for the parties were not at variance at the time of hearing is that vide Annexure P-1. Respondent No.2 invited applications for the appointment of distributor of Bharat Gas (LPG) under general category vide Annexure P-l. Amongst others one of the conditions, with which we are concerned in the present Writ petition was condition No.2 (e) under heading Eligibility was in the following terms: "(e) Having gross family income (family as defined in the application form) not more than Rs.2,00,000/- in the last financial year (1999-2000)" 3. Petitioner also applied along with respondent No .4 and other persons. He also appeared for interview before Dealer Selection Board-Respondent No.3 on 26.2.2001 in terms of communication addressed to him vide annexure P-2. Being un-successful he immediately represented Respondent No.2 and 3 by making a grievance that Respondent No.4 Anil Awasthi in whose favour dealership has been allotted has got income more than Rs.2 lacs. According to him said respondent No.4 was working as L.I.C. Agent, was also running a P.C.O. at Lad-Bharol, besides having a Photostat machine as also was running a business in the name of M/s. Bhawani Traders there. Said respondent was also stated having income from landed property at Lad-Bharol and also as being a press correspondent. In this background, they urged vide Annexure P-3 not to issue letter of intent in favour of respondent. 4. In the aforesaid background, petitioner in paragraph 10 has brought the income of the respondent No.4 during the relevant financial year at Rs.4,15,000/-. Further case of the petitioner is that Annexure P-3 was required to be inquired in to. Needful having not been done action of the respondents No.2 and 3 cannot be sustained. Other grounds pressed into service for allowing the writ petition were that respondent No.4 had given false information and the action of respondent No. 1 to 3 smacks of favoritism (?) besides being arbitrary, illegal and contrary to the records of the case. Thus he has prayed for allowing this writ petition. 5. Respondents when put to notice have filed their replies to the writ petition. Thus he has prayed for allowing this writ petition. 5. Respondents when put to notice have filed their replies to the writ petition. Respondent No. l in its reply has pleaded that writ petition is not maintainable as he had an alternate remedy available to him in terms of the guidelines issued by it. Reliance is placed on Clause 3.15 of the guidelines. Other facts pleaded in the writ petition were denied for want of knowledge except paragraph 13 wherein it is stated that there is no action taken by the said respondent which is illegal, arbitrary or is contrary to law. Thus it has prayed for dismissal of the writ petition. 6. Stand of respondent No.2 is that the writ petition is not maintainable as it involves disputed questions of fact which do not call for determination in proceedings under Article 226 of the Constitution of India and petitioner having an alternative remedy under clause 3.15 of the guidelines for selection of retail outlets dealers/LPG distributors issued by the Government of India, Ministry of Petroleum and Natural Gas. According to it petitioner has already approached the authorities who examined the matter. And after thorough inquiry have come to the conclusion that the annual income of the respondent No.4 was Rs. 1,92,849.22 i.e. below Rs.2 lacs. The outer limit of income to be seen during the relevant year. Whatever grievance was made in Annexure P-3 has been dealt with item-wise in this report. Copy whereof is filed as Annexure R2/2. It was, however, admitted that respondent No.4 was placed at Serial No. 1 and petitioner was placed at Sr.No.2 by the Dealer Selection Board Annexure P3. It has justified the selection of Respondent No.4 being according to law and thus prayed for the dismissal of the writ petition. To similar effect reply of respondent No.3 is and it has also prayed for the dismissal of the writ petition. 7. Respondent No.4 has contested the claim of the petitioner. According to him the petitioner is a business competitor having failed to obtain higher position on merits at the time of consideration by respondent No.3 has filed this writ petition in the circumstances which are purely after thought. There is nothing on record produced by the petitioner to substantiate his plea about the income of the petitioner being more than Rs.2 lacs Thus it remained a bare and vague assertion. 8. There is nothing on record produced by the petitioner to substantiate his plea about the income of the petitioner being more than Rs.2 lacs Thus it remained a bare and vague assertion. 8. Regarding his income being less than Rs.2 lacs while dealing with paragraph 10 of the writ petition he has categorically dealt with different heads of paras 10(1) to 10(8) and tried to show that most of the figures given by the petitioner are not correct. At the same time he has stated that he is living separately from his father who is running the business. He his father as well as brothers are living separately who have their separate establishments as also separate ration cards. Copies of the relevant revenue records as well as the ration card and Panchayat record have been placed on record as Annexure R4/3 to R4/7. It was specifically emphasized by Mr. Sharwan Dogra at the time of hearing as well as in the pleadings, that his client has no income from his work as a press reporter. From Divya Himachal he gets nothing whereas from Ajit Samachar he gets a sum of Rs.300/- for defraying the postal and fax charges. This amount is totally inadequate and his client has to pay out of his own pocket for meeting such expenses. It has been stated by him that as Panchayat Pardhan what his client gets is in the nature of ex gratia as he gets Rs.500/- as honorarium. So far business of M/s. Bhawani Traders is concerned, his client was running it till 1995-96 since then it has stopped and sale tax licence number etc. have been surrendered to the authorities as required under law. Thus according to him respondent No.4 had income of Rs.1,81,781/- in the relevant financial year 1999-2000. 9. In this behalf it may be noted that on the basis of the inquiry carried out by respondent No.2 income of the petitioner was found Rs. 1,92,849.22. This is inclusive of Rs.3600/- being income as press reporter, interest on FDR as well as deemed interest on Kissan Vikas Patra purchased in the name of his son. According to the stand of respondent No.4 in his sur-rejoinder, these three items could not be added to his income because they did not constitute income as such in the hands of the petitioner. According to the stand of respondent No.4 in his sur-rejoinder, these three items could not be added to his income because they did not constitute income as such in the hands of the petitioner. So far deemed interest on Kissan Vikas Patra in favour of his son is concerned, this income was to be available to the petitioner on maturity. Similar was the position regarding interest on FDR and so far income as press reporter as taken by respondent No.2 is concerned, it was no income but was meager sum of Rs.300/- p.m. paid by Ajit Samachar for defraying postal and other charges. 10. Petitioner has filed rejoinder to the reply of respondent No.3 and 4. He has reiterated the contents of the writ petition and controverted the pleas which are contrary to the facts averred in the petition. 11. At the time of hearing, learned counsel for the petitioner forcefully urged that the income of the respondent No.4 from whatever angle may be viewed was more than Rs.2 lacs during the relevant financial year 1999-2000. He further pointed out that respondent No .4 had disentitled himself for the grant of out let in question because he was disqualified having income more than Rs.2 lacs p.a. as well as being guilty of willfully giving wrong information. In this behalf he pressed into service clause 1.2.7 of the guidelines, copy annexure R2/1. By referring to clause 1.2.7.1. of the said guidelines Sh. Anand Sharma submitted that gross income of the petitioner has to be seen as defined in Sections 5,9 (iv) and 88(iv to vi) of the Income Tax Apt, 1-961. He further submitted that the tax deducted at source being income, under Section 198 of the said Act income received was also to be included. Thus when income of respondent No.4 from all sources is calculated it comes much to beyond Rs.2 lacs. Thereafter, after taking into account the gross income of the said respondent, writ deserves to be allowed. According to him further and only consequence of the writ petition being allowed is that his client being a serial No.2 was entitled for issuance of letter of intent in place of respondent No.4. With a view to buttress his submissions, he made reference to a number of decisions, to which reference will be made hereinafter. 12. On the other hand Mr. Vinod Sharma, learned Addl. Central govt. With a view to buttress his submissions, he made reference to a number of decisions, to which reference will be made hereinafter. 12. On the other hand Mr. Vinod Sharma, learned Addl. Central govt. Standing counsel for respondent No. l stated that no action has been taken by his client which could be termed to be either illegal or needs to be set aside in the present writ petition. Therefore, he prayed for the dismissal of the writ petition. Stand of Mr. B.N. Mishra on behalf of respondent No.2 and 3 is that his client respondent No.2 and 3 have thoroughly looked into the matter after receipt of Annexure P/3 and thereafter it has rightly come to the conclusion that the income of the petitioner in the relevant year from all sources was less than Rs.2 lacs. He further pointed out that letter of intent issued in favour of respondent No.4, thus deserves to be upheld. This was in addition to the fact that the writ petition raises disputed questions of fact and petitioner having already had recourse to file a complaint against the selection of respondent No.4, and the same having been already thoroughly gone into, this petition deserves to be dismissed. 13. Shri Dogra learned counsel for respondent No.4 has submitted that this litigation has been thrust by an unsuccessful business competitor on his client. According to him authorities concerned have to ensure compliance with the policy while examining the case of all eligible candidates in the matter of allotment of distributorship. He further submitted that with a view to get undue liverage in this case, petitioner has taken shelter under wrong statement/mis-statement of facts by projecting his clients income Rs.4.15 lacs which was factually incorrect even to the knowledge of the petitioner. According to him, it was only after having examined the matter after receipt of Annexure P3 and respondent No.2 being satisfied that letter of intent has been issued. He has prayed for not only the dismissal of the writ petition on all these grounds but also on account of fact that it raises serious dispute on facts. His client was neither disqualified nor he has misstated in his affidavit regarding his income being less than Rs.2 lacs. Regarding taking help from the provisions of Income Taxes Act with a view to ascertain the gross income, Mr. His client was neither disqualified nor he has misstated in his affidavit regarding his income being less than Rs.2 lacs. Regarding taking help from the provisions of Income Taxes Act with a view to ascertain the gross income, Mr. Dogra submitted that it was never intended by the policy makers to invoke the said Act. If that was the intention there was nothing that prevented them to have incorporated in the policy itself that for the purpose of gross income shall be taken as per Income Tax Act and to similar effect was his statement regarding the income of the family being taken into account. Thus he has prayed for dismissal of the writ petition with exemplary costs. 14. In Hindustan Petroleum Corporation Ltd. and another v. Dolly Das, 1999(4) SCC 450 in its para 9, the Supreme Court held as under: "9. We may now advert to the contention that the writ remedy is not appropriate in this case. Where interpretation of a contract arises in relation to immovable property and in working such a contract or relief thereof or any other fallout thereto may have the effect of giving rise to an action in tort or for damages, the appropriate remedy would be a civil suit. But if the facts pleaded before the court are of such a nature which do not involve any complicated questions of fact needing elaborate investigation of the same, the High Court could also exercise writ jurisdiction under Article 226 of the Constitution in such matters. There can be no hard and fast rule in such matters. When the High Court has chosen to exercise its powers under Article 226 of the Constitution we cannot say that the discretion exercised in entertaining the petition is wrong." s 15. In New Horizons Limited and another v. Union of India & Ors., 1995( 1) SCC 478 what was held in paragraph 17 and was relied upon on behalf of the petitioner needs to be extracted herein below: " 17. At the outset, we may indicate that in the matter of entering into a contract, the State does not stand on the same footing as a private person who is free to enter into a contract with any person he likes. At the outset, we may indicate that in the matter of entering into a contract, the State does not stand on the same footing as a private person who is free to enter into a contract with any person he likes. The State, in exercise of its various functions, is governed by the mandate of Article 14 of the constitution which excludes arbitrariness in State action and requires the State to act fairly and reasonably. The action of the State in the matter of award of a contract has to satisfy this criterion. Moreover & contract would either involve expenditure from the State exchequer or augmentation of public revenue and consequently the discretion in the matter of selection of the person for award of the contract has to be exercised keeping in view the public interest involved in such selection. The decisions of this court, therefore, insist that while dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and alike a private individual, deal with any person it pleases, but its action must be in conformity with the standards or norms which are not arbitrary, irrational or irrelevant. It is, however, recognized that certain measure of "free play in the joints" is necessary for an administrative body functioning in an administrative sphere." A perusal of this decision clearly suggests and what has been observed in this para shows that while dealing with the public by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will like a private individual and deal with any person it likes. Action of the Government has always to be in conformity with the standards or norms which are not arbitrary or irrational or irrelevant. There can hardly be any dispute with this legal proposition. 16. In Ashutosh Kapil v. Bharat Petroleum Corporation Ltd. & Ors. etc.etc. 1996 (2) Sim. L.C. 309, allotment of dealership for retail outlet of petroleum products of Bharat Petroleum Corporation Ltd. granted in favour respondent No. 3 was challenged on the ground that he is having income more than Rs.50,000/- at the relevant time and was convicted in a criminal case. In Ashutosh Kapil v. Bharat Petroleum Corporation Ltd. & Ors. etc.etc. 1996 (2) Sim. L.C. 309, allotment of dealership for retail outlet of petroleum products of Bharat Petroleum Corporation Ltd. granted in favour respondent No. 3 was challenged on the ground that he is having income more than Rs.50,000/- at the relevant time and was convicted in a criminal case. Court after examining the case of the respondent No.3 found that he was a partner in a hotel and was managing itself and had employed 8 persons in it. Regarding criminal case, the orders of conviction has been stayed in appeal. In this background Division Bench of this court has held as under: "While admitting the conviction in a criminal case it was pleaded by the lady that the said order has been stayed in appeal. In this background on the facts of this case, it was held by this Court as under: "15. Regarding the conviction of respondent No.3, in the criminal case under the Prevention of Food Adulteration Act, he was required to give the information as per item No.21 of the application form. In the affidavit, he gave a wrong information which also misled the Selection Board. 16. For the above reasons, in the affidavit, filed on behalf of, it has been specifically stated that the Selection Board will reconsider the matter if more particulars are placed before it which would disentitle respondent No.3 from obtaining dealership. 17. For what has been stated above, we are of the opinion that due to non disclosure of full information, the Selection Board wrongly selected respondent No.3 for dealership and, therefore, the grant of dealership to respondent No.3 is liable to be quashed, which we hereby do." This decision in no manner advances the case of the petitioner, as it was based on admitted facts. 17. Reliance was also placed on behalf of the petitioner on the decision in Bhagwan Dass Jain v. Union of India & Ors., 1981 (2) SCC 135. In this case Supreme Court was dealing with a case under Income Tax Act, 1961 and interpreted what is meant by income under different heads and declared the provisions of Sections 22 and 23(2) being not unconstitutional when examined within the meaning of Entry 82 of List 1 and entry 49 of List II of Schedule VII to the Constitution of India. 18. 18. In U.P. State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey & Ors., 1999 (1) SCC 741 while dealing with the question whether the High Court was right in holding the State Bank to be an authority or insrumentality of State within the meaning of Article 12, thus being amenable to writ jurisdiction of the High Court under Article 226 of the Constitution what was observed in para 2 and is relevant for this case in the present writ petition is extracted herein below: "27.....The Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit there jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226." 19. In Central Bank of India v. Roop Lal Bansal, 1999(9) SCC 254 while dealing with a dispute between a bank and its customer wherein the amount of the customer had been appropriated towards the loan of a third party wherein customer was the guarantor, it was held as under in paragraph 6: "6. In our opinion, the High Court was not right in entertaining the writ petition. In our opinion, the High Court was not right in entertaining the writ petition. The transaction between the parties was purely a commercial one. Admittedly, the respondent had stood as guarantor in respect of the loans which had been advanced by the appellant. For the realization of the amount, the appellant had filed a suit in a court of competent jurisdiction. If the respondent had any grievance in respect to the letter dated 7.10.1986, then the proper remedy available to the respondent was to file a civil suit and the High Court ought not to have entertained a writ petition under Article 226 of the Constitution especially when disputed questions of fact had to be gone into. On this ground alone, the judgment of the High Court is liable to be set aside. While allowing the appeal, of the bank writ petition filed by the customer was dismissed. 20. In case CM. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushand & Ors., 2000 (8) SCC-696 a claim for determination of date of birth who produced a certificate showing his date of birth being not the one as entered in the service record, it was held that it being a disputed question of fact, High Court should not undertake inquiry into it. What was observed in paragraph 15 of this judgment was in the following terms: "15. What was observed in paragraph 15 of this judgment was in the following terms: "15. Before entering into the question of validity and sustainability of the judgment passed by the Single Judge and the Division Bench of the High Court in this case we would like to make the observation that in a case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority concerned and has been determined by following the procedure prescribed under the service rules or general instructions issued by the employer and it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the fact of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer." Reference in this behalf can also be made to the decisions reported in Haryana Urban Development Authority and another v. Anyupama Patnaik, 2000 (10) SCC 649 and Trade Tax Officer Gorakhpur, U.P. & Ors .v, Roadways India & Ors., 2000 (9) SCC 343. 21. Examining the present case in the light of the facts enumerated hereinabove as well as the decisions referred to in the preceding paras, and for the reasons to be recorded hereinafter we feel that the same deserves to be dismissed. 22. We may observe that after examining the whole case, we are satisfied that the dispute raised by the petitioner is neither bonafide nor it is prima facie based on merits of what has been alleged in the writ petition. So far respondent No.2 and 3 are concerned, they are totally disinterested in the allotment of retail dealership to respondent No .4 and for that matter they have fairly stated that petitioner is at serial No.2. 23. After receipt of Annexure P3 they when looked into the matter and with a view to ascertain the facts regarding income of respondent No.4 being more than Rs.2 lacs, inquired into the allegations made in the said annexure by the petitioner. It was only thereafter that they have found the income of the petitioner to be less than Rs.2 lacs in the relevant financial year. 24. It was only thereafter that they have found the income of the petitioner to be less than Rs.2 lacs in the relevant financial year. 24. In our opinion considering the income from the FDR, deemed income on the Kissan Vikas Patra and receipt of Rs.3600/- could not have been added i towards the income of the petitioner as has been done in the instant case by respondent No.2 while working out the income of petitioner in Annexure R2/2. So far income from FDR and Kissan Vikas Patra is concerned; it was to be the income of the petitioner on maturity of both these investments. As on date when he filed the application for dealership, by no stretch of imagination this could be said to be income in his bank. 25. So far the income from being a press reporter is concerned, suffice it to say that the stand of respondent No.4 has not been controverted by any authentic proof, that he was getting Rs.300/- p.m. with a view to defray the expenses of postage and fax which was far less than the actual expenditure. 26. Another argument urged on behalf1 of the petitioner was that the tax deducted from the income of the petitioner derived as LIC Agent needs to be added to his income. In this behalf when a reference is made to Annexure R4/1 it is clear that while arriving at his income of Rs.63091/- it is certified by the Branch Manager that the tax deducted from income from respondent No.4 out of his commission and stands remitted to the income tax authorities. It is thus clear from this document that this amount is included in Rs.63091/-. 27. Here stand of the petitioner in rejoinder also needs to be looked into. With a view to substantiate his plea that the income of the petitioner is more than Rs.4 lacs he has placed reliance on Annexure P5 which is a photo copy of GPF statement of the wife of the petitioner. According to the learned counsel amount of Rs. 16504/- i.e. of interest allowed during the year 1999-2000 in the account of his wife needs to be added to the income of the petitioner Thus it works out to more than Rs.2 lacs, therefore, writ deserves to be allowed. This argument has been again urged simply to be rejected. According to the learned counsel amount of Rs. 16504/- i.e. of interest allowed during the year 1999-2000 in the account of his wife needs to be added to the income of the petitioner Thus it works out to more than Rs.2 lacs, therefore, writ deserves to be allowed. This argument has been again urged simply to be rejected. Because we have held that sum of Rs.3600/- as income as press reporter, Rs.6848.22 from FDR and Rs.620/- from deemed interest of Kissan Vikas Patra could not have been added by the respondent while concluding his income as Rs.l ,92,849/-. If this amount is excluded, his total income comes to Rs.l,81,780.78. 28. Wife of the petitioner is admittedly employed in H.P. government service. Another plea urged on behalf of the petitioner is that for taking into account total gross income of respondent No.4, provisions of Income Tax Act should have also been looked into by respondent No.2 and 3. This argument cannot be accepted. In case provisions of Income Tax Act were to be invoked as claimed by the petitioner, then the income of the wife could not be clubbed with that of the husband. Reason being that she is independently employed and was liable to be dealt with under the said Act and in the similar manner her husband-respondent No.4 was liable to be dealt with accordingly. They were not covered by Section 64 of the Income Tax Act. This is in addition to the fact that authorities while framing the policy were well aware that the income total income and gross income is defined under the Income Tax Act. Still they have chosen not to apply those definitions under the said Act while framing the policy in question which has been framed in general terms. As such the plea that the provision of Income Tax Act need to be invoked while calculating the total gross income of the petitioner is hereby rejected. 29. After having come to this conclusion, we are satisfied on the basis of the material on record that the petitioner was not disqualified as per policy as his income was not more than Rs.2 lacs during the relevant financial year as he was not guilty of willfully giving wrong information. 30. 29. After having come to this conclusion, we are satisfied on the basis of the material on record that the petitioner was not disqualified as per policy as his income was not more than Rs.2 lacs during the relevant financial year as he was not guilty of willfully giving wrong information. 30. Now after applying the decisions referred to hereinabove, we are satisfied that there is enough transparency in the action of respondent No.2 and 3 while dealing with the case of the petitioner on receipt of the complaint annexure P3. With a view to ascertain the factual position, they held inquiry and thus having come to the conclusion that the income of respondent No.4 was less than Rs.2 lacs at the relevant point of time. They have included some income in Annexure R2/2, which could not have been included as held hereinabove. 31. No other point is urged. 32. For the aforesaid reasons, there is no merit in this writ petition, which is accordingly dismissed with no order as to costs.