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Madhya Pradesh High Court · body

2009 DIGILAW 1232 (MP)

Suresh Chaturvedi v. Indian Oil Corporation Ltd.

2009-10-30

S.K.GANGELE

body2009
Judgment (1) THE petitioner has filed this petition with regard to selection and placement of respondent No. 4 at serial No. 1 for the purpose of award of distribution of Indane Gas. THE petitioner further prays a relief that the respondents No. 1 to 3 be directed to place the petitioner at Serial No. 1 in the list. (2) THE respondents No. 1 to 3 issued a notice inviting applications for the purpose of L.P.G. distributorship for Indane Gas. THE dispute in the present petition is with regard to allotment of distributorship for Indane Gas for Gwalior- D District Gwalior covering the town area of Nai Sadak, Danaoli, Sarafa, Daulatganj, Hanuman Chouraha, Jiwajiganj etc. THE petitioner also applied for the distributorship along with 18 other persons. All the persons called for interview on 22-6-2004 before a selection committee consisting three senior grade officers of the Corporation. After considering the various criteria, the committee prepared a list of three persons on meritwise consisting Mr. Purushottam Das Gupta, Shri Suresh Kumar Chaturvedi and Smt. Madhu Agrawal. THE petitioner submitted a complaint on 10-7-2004 about the selection and after considering the detailed facts, that complaint has been rejected. THEreafter the respondent No. 4 was found eligible for the purpose of allotment of Indane Gas distributorship at Gwaior-D under open category and, consequently, a letter of intent was issued in favour of the respondent No. 4 and thereafter the respondent No. 4 was awarded the dealership and he has been continuing the distributorship of Indane Gas at Gwalior-D, District Gwalior. Learned counsel for the petitioner has submitted that the selection of the respondent No. 4 for distributorship of Indane Gas is arbitrary and illegal and against the criteria fixed by the Corporation. Learned counsel further submitted that the respondent No. 4 has wrongly awarded marks contrary to the Criteria by the selection committee, hence, he has been given undue favour by the selection committee. In support of his contentions, learned counsel relied on the following judgments :- i) 7 993 JLJ 589, Daulat Singh and others vs. Union of India and others; ii) 2000 (9) SCC 270 , Divisional Manager, APSRTC vs. Kondi K. Rambabu and others; iii) 2001(4) MPLJ 419 = 2001(1) M.P.J.R. 71 , Gyan Chand Jain vs. Collector, District Jabalpur and another; and iv) 2002 (4) SCC 16 , Bibhudatta Mohanty vs. Union of India and others. (3) CONTRARY to this, learned senior counsel appearing on behalf of the respondent No. 4 and learned counsel for the respondents No. 1 to 3 have submitted that the petitioner has not challenged the allotment of dealership in favour of the respondent No. 4, hence, the petition is not maintainable. Learned counsel further submitted that the selection committee has considered the merits in detail and has rightly placed the respondent No. 4 at Serial No. 1 in the selection list, and this Court in exercise of powers under Article 226 of the Constitution of India could only consider the selection process and there is no illegality in selection process, hence, the petition is liable to be dismissed. In support of their contentions, learned counsels relied on the following judgments :- i) 2001 (2) MPLJ 205 , Dilip Kumar Sharma vs. Indian Oil Corporation and others; ii) 2003 (2) SCC 107 , Harbanslal Sahnia and another vs. Indian Oil Corporation and others; iii) 2003 10 SCC 681 , K. Vinod Kumar vs. S. Palanisamy and others; iv) 2007 (1) MPJR 202, Prasana Kumar Vashistha vs. Indian Oil Corporation Ltd. and ors.; and v) 2009 (1) SCC 297 , Virender Chaudhary vs. Bharat Petroleum Corporation and others;. (4) WITH regard to preliminary objection taken by the learned senior counsel for the respondent No. 4 about the maintainability of the petition, it is an admitted fact that the petitioner in the writ petition has not challenged the allotment of dealership in favour of the respondent No. 4, neither he challenged the issuance of letter of intent. The petitioner has only prayed for cancellation of selection of respondent No. 4 at position No. 1 in the empanelment displayed on 22-6-2004. The relief claimed by the petitioner is as under :- "7. Relief Claimed. - In view of the facts and grounds mentioned in the Writ Petition and further in view of the documents annexed thereto, the humble petitioner most respectfully prays that this Hon'ble Court may kindly be pleased to allow the writ petition and issue a writ of mandamus and/or any other appropriate writ, order or direction commanding the respondent Nos. 1 to 3 to cancel the selection of respondent No. 4 at position No. 1 in the empanelment displayed on 22-6-2004 for award of distributorship of Indane Gas for the location Gwalior-D being illegal, improper, incorrect, irrational, arbitrary and mala fide. 1 to 3 to cancel the selection of respondent No. 4 at position No. 1 in the empanelment displayed on 22-6-2004 for award of distributorship of Indane Gas for the location Gwalior-D being illegal, improper, incorrect, irrational, arbitrary and mala fide. The petitioner may further kindly be held to be at Sr. No. 1 of the list of empanelment and necessary direction may kindly be issued commanding the respondent Nos. 1 to 3 to treat the petitioner at Sr. No. 1 on the list of empanelment with a further direction to grant the distributorship of L.P.G./Indane Gas. The cost of the petition and/or any other relief which this Hon'ble Court finds suitable may kindly be awarded." From the return filed by the respondents No. 1 to 3, it is clear that on the basis of the empanelment of the respondent No. 4 at Serial No. 1 by the Selection Committee; a letter of intent was issued to the respondent No. 4 on 14-7-2004, copy of which has been filed as Annexure-R/4 and since then the respondent No. 4 has been continuing with the distribution of Indane Gas. For the last five years, the petitioner has not amended the petition, neither challenged the order of letter of intent. Although, this Court vide order dated 4-8-2004 has observed that finalisation of the contract shall be subject to final decision of the petition, however, it was a duty of the petitioner to amend the petition and challenge the order of letter of intent. (5) THE Hon'ble Supreme Court in the case of Virender Chaudhary vs. Bharat Petroleum Corporation and others, reported in (2009) 1 SCC 297 , has held as under with regard to delay and laches, in this case the petitioner challenged the letter of intent in a subsequent writ petition :- "14. He, however, filed a writ application only on or about 23-11-2004. THE High Court may be correct in its view that the purported cancellation of empanelment of the fifth respondent was made on a wrong premise. Though the advertisement published in Navbharat Times mentioned "framing of charge in a criminal case" as a disqualification, in the advertisement published in THE Tribune and Dainik Tribune framing of charge in a criminal case was not mentioned as a disqualification. Though the advertisement published in Navbharat Times mentioned "framing of charge in a criminal case" as a disqualification, in the advertisement published in THE Tribune and Dainik Tribune framing of charge in a criminal case was not mentioned as a disqualification. In the application form also, the applicant was not required to furnish any information regarding any framing of charge in a criminal case. It was neither necessary nor possible for the fifth respondent to disclose the fact that two first information reports had been lodged against him and in one of them he had been charge-sheeted. THE purported disqualification attributed to him, therefore, led to an unjust decision. THE High Court, however, in our opinion failed to take into consideration the effect of delay and laches on the part of respondent 5 in approaching the High Court. A writ remedy is a discretionary remedy. THE court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or laches, indisputably, are the relevant factors. 15. THE superior courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the Court although not oblivious of the fact that no period of limitation is provided for filing a writ petition, but emphasis is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and laches. 16. In Uttaranchal Forest Development Corpn. vs. Jabar Singh, this Court held : (SCC p. 137, para 43) "......It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. THE termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. THE High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches." 17. In NDMC vs. Pan Singh, this Court held : (SCC p. 283, paras 16-17) "16. In NDMC vs. Pan Singh, this Court held : (SCC p. 283, paras 16-17) "16. THEre is another aspect of the matter which cannot be lost sight of. THE respondents herein filed a writ petition after 17 years. THEy did not agitate their grievances for a long lime. THEy, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. THEy did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long lime. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. vs. Tarun K. Roy, U.P. Jul Nigam vs. Jaswant Singh and Karnataka Power Corpn. Ltd. vs. K. Thangappan.) 17. Although there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. vs. Union of India and M. R. Gupta vs. Union of India). 18. In Ramdev Food Products (P) Ltd. vs. Arvindbhai Rambhai Patel, it was held : (SCC p. 769, para 104). "104...... 26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name, etc.'." 19. Recently in Khoday Distilleries Ltd. vs. Scotch Whisky Assn., 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. 20. THE fifth respondent did not acquire an indefensible 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. 20. THE fifth respondent did not acquire an indefensible 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 the appellant in May, 2004. In his writ application, the fifth respondent 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 the insurance (sic issuance) of the letter of intent granting dealership in favour of the appellant. 21. Considering the fact that starting of a business in LPG dealership requires a huge investment and infrastructure therefor is required to be provided and a large number of employees are to be appointed therefor, 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." (6) FROM the aforesaid case law, it is clear that it was obligatory on the part of the petitioner to challenge the letter of intent. The petitioner has not challenged the same even during the pendency of the petition, In such circumstances, in my opinion, the petition of the petitioner is liable to be rejected on the ground of delay and laches and also on the ground of non-challenging of letter of intent issued in favour of respondent No. 4. Hence, the petition of the petitioner is dismissed. No order as to cost. Petition dismissed.