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2012 DIGILAW 466 (JK)

Rifat Jabeen v. Union & Others

2012-07-27

MANSOOR AHMAD MIR

body2012
1. A notice inviting applications for appointing LPG distributors of the Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited under various categories at locations specified in the notice within the State of Jammu and Kashmir was issued and published in a local daily in its issue dated 12-04-2007. The petitioner was one of the candidates for such distributorship for the Pattan area mentioned at serial No. 6 of the advertisement notice. 2. As per the averments made in the petition, she was called for interview on 28-09-2007 and the results were declared on the same day. It is contended that the petitioner stood first and was declared to have secured 92 marks. It is, however, alleged that the respondents were instead interested in one Mst. Mymoona Banoo D/O Ghulam Mustafa Yatoo R/O Sultanpora, Pattan, who filed a civil suit before the learned Sub-Judge, Pattan. Along side, she filed an application for interim relief wherein an order of status quo was passed by the Court. Consequently, the petitioner’s appointment as distributor could not be made. However, ultimately, the application was dismissed on merits on 19-11-2008, which order was upheld by the appellate Court. Nevertheless, the Appellate Court reserved the right of the respondents to look into the complaint, if any, made by the plaintiff in the aforesaid suit, that is, respondent No. 8 herein. 3. It is the further case of the petitioner that in the advertisement notice, a condition was incorporated with regard to requirement of showroom, which prescribed that showroom as per the standard layout can be constructed in a shop/land located in the area of operation (trading area) of the advertised location for LPG distributorship and should be easily accessible to general public through a suitable approach road. A separate clause for construction of Godown was also incorporated. It is submitted that petitioner already possessed a shop since 2004 in the trading area on National Highway, which fell within the operation area at Pattan and that its owner had entered into an agreement to sell with the petitioner in respect of the said premises long back. A separate clause for construction of Godown was also incorporated. It is submitted that petitioner already possessed a shop since 2004 in the trading area on National Highway, which fell within the operation area at Pattan and that its owner had entered into an agreement to sell with the petitioner in respect of the said premises long back. The petitioner was issued the letter of intent dated 16-10-2009 and while her case for obtaining requisite licenses from different concerned authorities was in process, the Municipal Committee, Pattan asked the petitioner to obtain no objection from the Beacon authorities who are maintaining the National Highway on which the showroom of the petitioner was located. The Beacon Authorities denied the permission to her, which constrained the petitioner to relocate the showroom and, in that behalf, she made a communication to respondents 1 to 7. Petitioner requested and offered the alternative sit for construction of showroom/godown which was rejected by the respondents. 4. The respondents in their reply have stated that during the course of physical verification of the showroom stated by the petitioner to be belonging to her, she produced a lady, named, Shamshada Begum in veil who disclosed that she was the actual owner of the property and that she had entered into an agreement to sell with the petitioner with respect to the site in question. However, later a lady, claiming herself to be the actual Shamshada Begum and owner of the property, made a complaint. On the basis of that complaint another team was sent to Pattan to make the verification of the location and the showroom. During such verification, it was revealed that the petitioner herein had made a false statement about the showroom in her application form as well as during the course when the first on the spot verification was made by the concerned respondent about the genuineness of the claims made by the petitioner. In this manner, besides falsely representing a lady as being the owner of the property in question, petitioner had furnished false information in her application form for distributorship and, accordingly, the letter of intent was cancelled. They have vehemently resisted the writ petition and submitted that in terms of conditions 11 and 13 of the advertisement notice, the letter of intent issued to the petitioner was liable to be revoked and cancelled. 5. They have vehemently resisted the writ petition and submitted that in terms of conditions 11 and 13 of the advertisement notice, the letter of intent issued to the petitioner was liable to be revoked and cancelled. 5. It would be advantageous to extract conditions 11 and 13 of the advertisement notice hereunder: “11. Selection Process and Evaluation criteria: ....The evaluation on the parameters (a) to (f) above are document based and will be done on the basis of information given in the application. The evaluation on the parameter (g & h) will be based on the interview. On verification if it is found that the information given in application is incorrect/false/misrepresented then the applicants candidature will stand cancelled and will not be eligible for distributorship...........” 13. Construction of Godown/Showroom on the site as mentioned in application form: The applicants who readily have suitable godown/land for construction of godown for storage of filled LPG cylinders and shop/land for construction of shop for showroom for setting up of LPG distributorship or have a firm commitment from the land owner for purchase/lease or can arrange it are 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 are defined in eligibility/criteria would also be considered as belonging to the applicant. However 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 submitted with the application form and or the plot is not found suitable for construction of godown or the godown is not approved by Chief Controller of Explosives the allotment of the distributorship will stand automatically cancelled...........” 6. A plain reading of the aforementioned conditions reveals that if the information submitted by any person/applicant is found incorrect, his candidature will not be accepted and he/she will not be eligible for distributorship. The petitioner in the instant writ petition has again made her claim on the basis of the alleged agreement to sell and her being in possession of the showroom. This claim of the petition is categorically and clearly denied by the respondents. The petitioner in the instant writ petition has again made her claim on the basis of the alleged agreement to sell and her being in possession of the showroom. This claim of the petition is categorically and clearly denied by the respondents. She further states to have offered an alternate site for the purpose of establishing a showroom and the respondents are denying its feasibility. 7. Obviously, thus, the petitioner has approached this Court with unclean hands. It is reiterated that the petitioner has placed reliance in this writ petition on her claim of possessing the showroom and being in possession of the agreement to sell on behalf of its real owner. These claims made by the petitioner are categorically refuted by the respondents. It is the cardinal principle of law that he who seeks equity must come to the Court with clean hands. The petitioner has failed this test and, therefore, she cannot claim an equitable relief. Further, there are disputed facts involved in the petition. The very fact that the petitioner was in possession of the site or that the real owner thereof had entered into an agreement to sell within the petitioner is denied by the respondents. The real owner of the site, namely, Shamshad Begum, is also stated to have refuted to have entered into any such sale agreement with the petitioner. That matter is stated to be pending investigation with CBI. In that view of the matter, this petition involves disputed questions of fact. This Court in its extra ordinary writ jurisdiction cannot go into such questions of fact and determine whether the petitioner is actually in possession of the showroom in question or whether she had actually entered into an agreement to sell with its real owner. 8. Further, this Court cannot substitute its own opinion for that of the competent authority with respect to the feasibility of the site alternatively offered by the petitioner. Offering of alternative site is itself a ground for cancellation of distributorship in terms of Clause 13 of the advertisement notice. Moreso, the Beacon authorities have refused to grant NOC, constrained the petitioner to offer the alternative site which amount to automatic cancellation of distributorship in terms of condition 13 of the advertisement notice supra. Therefore, the submissions and arguments of learned counsel for the petitioner advanced in this behalf are inconsequential and devoid of any force. Moreso, the Beacon authorities have refused to grant NOC, constrained the petitioner to offer the alternative site which amount to automatic cancellation of distributorship in terms of condition 13 of the advertisement notice supra. Therefore, the submissions and arguments of learned counsel for the petitioner advanced in this behalf are inconsequential and devoid of any force. It may be reiterated here that under Clauses 11 and 13 of the advertisement notice, the respondents reserved their right to cancel the letter of intent issued in her favour. 9. In the aforementioned backdrop and in the totality of circumstances, the petitioner has failed to carve out a case for admission of the writ petition. As a result, writ petition merits dismissal in limine. I do so accordingly. 10. Dismissed along with connected CMP. Interim direction shall stand vacated. However, there will be no order as to costs. While parting, it is made clear that in case the petitioner was allowed to raise the construction of the Godown and showroom, she would be at liberty to seek compensation and the dismissal of the writ petition at hand shall not come in the way of the petitioner to seek appropriate remedy, if she so chooses and if so advised. Petition dismissed.