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2008 DIGILAW 647 (PAT)

Hindustan Petroleum Corpn. v. Union Of India

2008-04-28

BARIN GHOSH, C.M.PRASAD

body2008
Judgment 1. An advertisement was published by the appellant-Hindustan Petroleum Corporation Ltd., a Government Company and a "State" within the meaning of Article 12 of the Constitution of India. The said advertisement invited applications, only from ladies, for establishment of a retail out-let of L.P.G. for catering the needs of customers at Rafiganj (Urban/Rural). The advertisement made it clear that the applicant would be required to have or arrange a suitable plot of land for establishing the out-let. The writ-petitioner-respondent responded to the said advertisement. The Oil Selection Board selected her. Such selection by Oil Selection Board was accepted by the appellant. She was issued a letter of intent dated 20.05.2002. This letter of intent required the respondent to make all-out effort for establishing the dealership within six months from the date of the said letter of intent. It further required the respondent to make available to the appellant the plot of land as was indicated by the respondent in her response to the advertisement within a period of two months from the date of said letter of intent. However, soon after this letter of intent was issued, the same became subject matter of litigation which ultimately travelled to the Hon ble Supreme-Court. In the litigation, originally the letter of intent was pancelled. since it was opined that the selection of the respondent was not proper. Ultimately, however, the Hon ble Supreme Court held in favour of the selection subject to the further verification by a Committee. In view of what had been initially opined in the said litigation on 14th August, 2002, the said letter of intent was cancelled and later in view of the judgment of the Hon ble Supreme Court on 24th January, 2003, the said letter of intent was restored, subject to the final decision of the Hon ble Supreme Court after it received a report of the 2-Judge Committee appointed by the Hon ble Supreme Court by its order dated 20th December, 2002 in Transfer Case (C) No. 90 of 2002 (Onkar Lal Bajaj vs. The Union of India and Another) alongwith several other L.P.As. Restoration of the letter of intent dated 20.05.2002 by the letter dated 24th January, 2003 was, therefore, conditional. Restoration of the letter of intent dated 20.05.2002 by the letter dated 24th January, 2003 was, therefore, conditional. Neither in the counter affidavit to the writ petition, nor in the present appeal, the appellant has brought anything on the record which would suggest that the condition so imposed has been favourably disposed of. 2. Admittedly, in between the date of publication of the advertisement, which was, thus, respondend by the respondent, and 24th January, 2003, the appellant had settled an out-let in favour of one Rekha Kumari, authorizing her to deal in L.P.G. at Rafiganj and in pursuance of such settlement, Smt. Rekha Kumari established her out-let and started serving the customers of L.P.G. at Rafiganj. 3. Soon after restoration of the letter of intent with the condition attached, as was indicated in the letter of the appellant dated 24th January, 2003, the respondent started canvassing about non-feasibility of a second out-let at Rafiganj. This was looked at by the appellant and, according to the appellant, Rafiganj had potentiality of 9000 connections of which 3000 connections were settled by Smt. Rekha Kumari and it was felt that the appellant will be in a position to settle 2000 connections by the third year of establishment of the out-let. In the meantime, the appellant asked the respondent to get the land where she proposes to establish her out-let to be transferred in favour of the appellant. Respondent felt in view of settlement of an out-let in favour of Smt. Rekha Kumari, market potential of Rafiganj has dwindled and, as such, she is entitled to resitement and, accordingly, prayed for the same. The same was not considered and at the same time, the respondent was also not informed that resitement is not permissible. On the contrary, appellant held out to the respondent that a second out-let at Rafiganj is viable and, as such, resitement is not required. In other words, it was not held out that resitement is not permissible. In no uncertain terms, it was mentioned that inasmuch as establishment of a second outlet at Rafiganj is viable, resitement is not required. However, the respondent insisted on resitement on the ground that Smt. Rekha Kumari, in the meantime, has already captured the market. Ultimately, by a letter dated 6th March, 2007, the letter of intent was cancelled. 4. In no uncertain terms, it was mentioned that inasmuch as establishment of a second outlet at Rafiganj is viable, resitement is not required. However, the respondent insisted on resitement on the ground that Smt. Rekha Kumari, in the meantime, has already captured the market. Ultimately, by a letter dated 6th March, 2007, the letter of intent was cancelled. 4. It is true that the respondent failed to discharge her obligations under the letter of intent on time or at all. However, the state of affair as prevalent is such that whether restoration of the letter of intent, after its cancellation, is final or not is not clear even to us. At the same time, admittedly, after the advertisement was published, a settlement was made in favour of Smt. Rekha Kumari and Smt. Rekha Kumari captured a substantial part of the market. The dispute between the appellant and the respondent was whether even after capture of the market to some extent by Smt. Rekha Kumari, Rafiganj had potentiality for a second out-let or not. It was not held out that resitement as was being sought is not permissible. Market potentiality is a matter of opinion. In the present litigation no effort has been made by the appellant to establish the authenticity of the statement made by it that establishment of a second out-let at Rafiganj is viable. A statement made, which has not been corroborated by any research material, cannot be treated as an opinion pertaining to market potentiality, even though made by a high authority. Such a statement has no value. An opinion, without back up materials may be of highest authority, has no value as an opinion. 5. When in the advertisement it was held out to the public that the dealership that would be granted to the successful applicant would cater L.P.G. need of customers of Rafiganj (Rural/Urban), under no circumstance, the area of operation could be altered at the behest of either the appellant or the respondent, for such alteration would be contrary to representation and, as such, result in an arbitrary action and, accordingly, be barred by Article 14 of the Constitution of India. Therefore, instead of going into the question whether Rafiganj has potentiality or not, the appellant ought to have had informed the respondent that the resitement as was being sought for by the respondent is not permissible in law. Therefore, instead of going into the question whether Rafiganj has potentiality or not, the appellant ought to have had informed the respondent that the resitement as was being sought for by the respondent is not permissible in law. For the grant of settlement in favour of Smt. Rekha Kumari, if the respondent felt that the potentiality of her business has been affected, it was open to the respondent to challenge the said grant, but for such grant the respondent could not seek resitement. 6. While it was not ruled out by the appellant that resitement is not possible, the appellant purported to hold out only on the basis of the statement of the Chief Manager, L.P.G., Sales of the appellant, without any material to support the same, that Rafiganj had still potentiality for establishment of a second out-let. The respondent on the other hand being apprehensive that Rafiganj does not have such potentiality went on seeking resitement. In such a situation, after giving a 15 days notice, as was given on 17th October, 2005, we feel that a "State" within the meaning of Article 12 of the Constitution could not cancel the letter of intent accorded in favour of a selected woman candidate for establishment of a L.P.G. dealership on the basis of a policy of Union of India for empowering women. 7. Under the circumstances,we feel that cancellation of the letter of intent was not proper. However, we have already held that the respondent was not entitled to have resitement and, accordingly, the question of the appellant considering the request of the respondent for resitement did not arise. 8. Under the circumstances, proceeding on the basis that the condition imposed by the letter dated 24th January, 2003, while restoring the letter of intent dated 20.05.2002, has been finally decided favourably and knowledge thereof has been gathered only today, as the appellant is seeking, upon cancellation of the letter of intent dated 20.05.2002, as submitted in Court today, to award a letter of intent to the second selected person without of course attaching any such condition, we allow the appeal in part and quash that part of the judgment and order under appeal by which the appellant has been directed to consider the request of the respondent for resitement of her L.P.G. dealership. It must be deemed that in view of the statement made at the bar, the condition attached to restore the letter of intent dated 20.05.2002 has been finally removed from today and, accordingly, the respondent must comply with the requirements of the letter of intent within the time frame, as mentioned therein to be counted from today. 9. There shall be no order as to costs.