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Madhya Pradesh High Court · body

2016 DIGILAW 775 (MP)

Banwari Baghel v. Union of India

2016-09-02

ROHIT ARYA

body2016
ORDER 1. This petition, under Article 226 of the Constitution of India, is at the instance of one of the candidates who had applied for award of LPG Distributorship under Rajeev Gandhi Rural LPG Distribution Scheme, pursuant to the advertisement (Annexure P-1) published in the newspaper dated 21.5.2012 for Village Magroni, Tahsil Narpur, District Shivpuri, seeking quashment of the Draw held on 28.1.2014 in favour of respondent No.4 as she, according to the petitioner, is ineligible candidate and for further direction to respondents No.1 to 3 to conduct fresh Draw for award of LPG Distributorship. 2. Amongst other eligibility conditions mentioned in the advertisment (Annexure P-1), the applicant is required to qualify Xth Board examination or its equivalent; the applicant should have the land of his/her ownership at the location of distributorship as specified in the advertisement of area admeasuring 20 meters x 24 meters; the said land should be plain, levelled and accessible, besides no live over head power transmission or telephone line should run over it and no pipeline/rivulet/gutter or Nala should pass through such plot/land; the application should be submitted in good hand-writing or in typed form and after submission of the application, neither there should be any addition, deletion nor any change therein. 3. According to the petitioner, respondent No.4 has made false declaration that she has land of her ownership at Village Magroni. Besides, the land offered by husband of respondent No.4 during FVC visit was not of his exclusive ownership. It is un-diverted land and over the said land, overhead power line passes through, as is apparent from the photographs (Annexure P-9). It is submitted that Nala passes through the said land under a culvert, as is apparent from photocopy of certified copy of the report issued by the Office of Tahsildar (Annexure P-14). Besides, it is submitted that respondent no.4 has further made false declaration in her application form that she has qualified Xth Board examination in the year 1988-1989 and that she has annunal income of Rs.4,000,00/- (Rupees four lacs). It is submitted that as against Column No.9 of the application form, respondent no.4 has given false and misleading statement as regards the location of land falling in Khasra Nos.277/11/4 and 277/11/12 admeasuring 0.38 hectare and 0.02 hectare at Village Magroni, Narwariya Road, whereas, as per the records, the same is situated at Vllage Panghata, Gram Panchayat Quaday. It is submitted that as against Column No.9 of the application form, respondent no.4 has given false and misleading statement as regards the location of land falling in Khasra Nos.277/11/4 and 277/11/12 admeasuring 0.38 hectare and 0.02 hectare at Village Magroni, Narwariya Road, whereas, as per the records, the same is situated at Vllage Panghata, Gram Panchayat Quaday. It is submitted that in view of the aforesaid facts, respondent no.4 was ineligible to apply for LPG Distributorship pursuant to the advertisement. It appears that petitioner had preferred Writ Petition No.1484/14 with the aforesaid grievance and this Court, while disposing of the said writ petition, vide order dated 26.3.2014 (Annexure P-4), has observed as under: “Accordingly, this petition is disposed of by reserving liberty to the petitioner to prefer representation/objection against Annexure P-2 before respondents No.2 and 3 along with copy of this order. In turn, respondents No.2 and 3 are directed to deal with the said objection in accordance with law expeditiously, preferably within 45 days” 4. Petitioner states that he filed a representation on 30.3.2014 (Annexure P-5). The same is disposed of by Bharat Petroleum Corporation Ltd. On 9.5.2014. It is admitted in the reply that the land offered by respondent No.4 is not at Village Magroni, but in Village Panghata and is against the rules. It is further mentioned therein that however, the same is not of much relevance, as according to the policy of the Petroleum Corporation, if the applicant or any of his family member holds any land of his/her ownership on the date of advertisement or before that date, and the same is suitable for Godown purposes, the same can be accepted on verification thereof. As Mukesh Jain, husband of respondent No.4 and a family member, has a plot of his ownership acquired by him vide registered sale deed dated 16.3.2012 i.e. prior to the date of advertisement viz. 21.5.2012, therefore, the said land can be considered for award of LPG Distributorship to respondent no.4 and consequently the representation was rejected. Being aggrieved thereby, the petitioner has filed the instant petition. 5. The rejoinder filed by the petitioner is also on record. With the rejoinder, the brochure issued as guideline for selection of Rajiv Gandhi Gramin LPG Vitrak (RGGLV) is placed on record as Annexure P-12. Being aggrieved thereby, the petitioner has filed the instant petition. 5. The rejoinder filed by the petitioner is also on record. With the rejoinder, the brochure issued as guideline for selection of Rajiv Gandhi Gramin LPG Vitrak (RGGLV) is placed on record as Annexure P-12. In addition to the allegation of non availability of land in the name of respondent No.4, it is placed on record by the petitioner that as a matter of fact the Fact Verification Committee (FVC) had found that declaration of land was incorrect. Therefore, in the teeth of false declaration, the alternative land could not have been considered by respondents No.1 to 3 as per the guidelines in vogue at the relevant point of time. By referring to Col.No.9 of Annexure R-3, it is submitted that FVC has not mentioned the date on which the husband of respondent No.4 had informed about the sale deed of the alternative land. Even otherwise, the husband of respondent No.4 did not have clear title over the land offered as there was no partition amongst the co-owners, as is evident from the letter written by Tahsildar Narwar, District Shivpuri to FVC on 12.2.2014 (at Page No.21 of the Compilation of counter affidavit). However, on its second visit on 6.3.2014, the FVC unauthorizedly and illegally gave permission to the husband of respondent no.4 to submit affidavits of his other three partners declaring that partition has taken place amongst them. It is pertinent to note that the affidavits have allegedly been sworn in on 26.2.2014, whereas, as per Annexure R-4, on the orders of Tahsildar the partition is shown to have taken place amongst the husband of respondent No.4 and other co-owners on 15.5.2014 i.e. much after the publication of advertisement, submission of application, and the subsequent visit of the FVC. It is, therefore, contended that on the date of advertisement and even on the dates of two successive visits of the FVC, husband of respondent No.4 did not have clear title of the land offered by respondent No.4. Moreover, there is no provision under the guidelines to act upon such affidavits in absence of availability of land to the member of the family unit, as defined in clause 4(e) of the brochure (Annexure P-12) which reads as under : “ ‘Family Unit’ in case of married person/applicant, shall consist of individual concerned, his/her spouse and their unmarried son(s)/daughter(s). Moreover, there is no provision under the guidelines to act upon such affidavits in absence of availability of land to the member of the family unit, as defined in clause 4(e) of the brochure (Annexure P-12) which reads as under : “ ‘Family Unit’ in case of married person/applicant, shall consist of individual concerned, his/her spouse and their unmarried son(s)/daughter(s). In case of unmarried person/applicant, ‘Family Unit’ shall consist of individual concerned, his/her parents and his/her unmarried brother(s) and unmarried sister(s). In case of divorcee, ‘Family Unit’ shall consist of individual concerned, unmarried son(s)/unmarried daughter(s) whose custody is given to him/her. In case of widow/widower, ‘Family Unit’ shall consist of individual concerned, unmarried son(s)/unmarried daughter(s).” Besides, in the context of assertion that the land is not diverted, there is a public Nala passing through the said Survey Nos.546 and 547/1 (Annexure P-14), learned counsel referred to the relevant conditions of the advertisement and in the context of meaning attributed to ownership of land, referred to clause 7 of the Manual for selection of RGGLV (Annexure R/2) which are as under : ^^¼th½ ,yihth flysaMj dk HkaM+kj.k xksnke LFkkfir djus gsrq foKfIr vkjthth,yoh yksds'ku ij de ls de 20 ehVj X 20 ehVj vkdkj okys mfpr Hkwfe IykV dk ekfyd gksA ¼,Pk½ xksnke LFkkfir djus gsrq Hkwfe dks rHkh mfpr ekuk tk,xk] tc og gj ekSle esa Vªd }kjk igq¡pus okyh lMd ds ek/;e ls ¼lkoZfud lM+d ;k lkoZtfud lM+d ls tqM+h vkosnd dh futh lM+d½ vklkuh ls igq¡pk tk ldrk gks vkSj og lery] ,d gh layXu IykV esa gksuh pkfg,] mlesa dksbZ ykbo vksojgsM ikWoj Vªkalfe'ku ;k VsfyQksu ykbusa ugha gksuh pkfg,] IykV esa ikbiykbUl@ugj@xVj@ukys ugha xqtjus pkfg,A Clause 7 Own means having clear ownership title of the property in the name of applicant/family member of the ‘family unit’ as defined in multiple dealership/distributorship norm. In case of ownership/co-ownership by family member, consent letter from the family member will be required” Learned counsel contends that in view of the aforesaid clauses, respondent No.4 did not have the land of her own and even otherwise there is no such land available in conformity with the aforesaid requirements. Therefore, in all fairness, candidature of respondent No.4 ought to have been cancelled, but that has not been done. 6. Therefore, in all fairness, candidature of respondent No.4 ought to have been cancelled, but that has not been done. 6. During the course of arguments and upon persual of application form of respondent No.4 (Annexure R-1) and the original thereof, it has transpired that respondent No.4 has also declared that she has qualified Class Xth M.P. Board Examination in the academic year 1988-1989 and her annual income is Rs.4 lacs. Disputing the above, learned counsel for the petitioner contended that patently false declarations have been made in the application form, inasmuch as neither respondent no.4 has qualified the Xth Board Examination nor her annual income is Rs.4 lacs. In this regard, he has referred to the mandatory provisions as clauses 4(c) and 16 of the Brochure (Annexure P-12) which read as under : “4. Common eligibility criteria for all categories Applicant applying for RGGLV should (a) …. … …. (b) … … … (c) have passed minimum Xth Standard examination or equivalent from recognized Board.” “16. Furnishing false information. -– If any information furnished by the applicant is found to be false at any point of time before or after appointment of RGGLV, the allotment shall be cancelled forthwith and RGGLV terminated in case commissioned.” Referring to the above clauses, learned counsel contends that in the wake of false information submitted by respondent No.4, her candidature was liable to be cancelled. While referring to the the FVC report, learned counsel contends that the FVC has altogether ignored the fact that there is no document on record in support of the fact that respondent No.4 has qualified the Xth Board examination from M.P. Board in the year 1988-1989. Besides, though the FVC has found that income of respondent No.4 in the relevant year, as per her income tax return, was Rs.1,25,000/-, yet, has ignored the factum of false declaration as referred to above and concluded that the information as given, though was found at variance yet it has no impact on applicant’s (respondent No.4’s) marking and respondent No.4 has thus been held eligible by adding income of her husband to the tune of Rs.1,50,000/- on the basis of certificate issued by Tahsildar, Narwar. It is submitted that the manner in which FVC prepared appraisal report suggests that the FVC was hell bent upon to justify the candidature of respondent No.4 by hook or by crook, throwing the mandatory provisions of the guidelines under the brochure to the winds. Learned counsel further criticized the FVC report and submitted that the FVC also did not consider the fact that even the land offered by the husband of respondent No.4, had Nala and culvert (as is evident from letter issued by Office of Tahsildar, Narwar Annexure P-14) and overhead power line (apparent from photographs Annexure P-9) running through it, much against the norms as mentioned in the advertisement. It is, therefore, contended that not only false declaration was made in the application form, but the FVC has also not acted fairly and reasonably in accordance with the conditions of the brochure in the matter of fulfilment of eligibility condition by respondent No.4. The FVC in fact and in effect has acted in a personalized manner to accord undue benefit to respondent No.4 and such action, therefore, cannot be sustained. Learned counsel has relied upon the judgment of Hon’be apex Court in the case of Shiv Kant Yadav v. Indian Oil Corpn. and others [2007(II) MPWN 65= (2007)4 SCC 410 ], and that of this Court in the case of Vijay Pratap Singh Parihar v. Union of India and others [2014(4) MPLJ 668], wherein the Hon’ble apex Court and this Court have taken strong exception to the false information supplied by the petitioner therein for obtaining dealership/LPG distributorship. 7. On notice, respondents No.1 to 4 have entered appearance. Respondents No.1 to 3 have filed counter affidavit. Respondent No.4 has adopted the counter affidavit filed by respondents No.1 to 3. It is contended that after making draw in favour of respondent No.4 for field verification credentials, the FVC visited the land. During verification, respondent No.4 with her husband offered the alternate land purchased before submitting the application and the said land was considered by the FVC. Thereafter, respondent No.4 was found suitable candidate and, accordingly, she was selected. 8. It is contended that after making draw in favour of respondent No.4 for field verification credentials, the FVC visited the land. During verification, respondent No.4 with her husband offered the alternate land purchased before submitting the application and the said land was considered by the FVC. Thereafter, respondent No.4 was found suitable candidate and, accordingly, she was selected. 8. Learned counsel for the respondents, while referring to definition of ‘family unit’ and clause 7 of Annexure R-2 as quoted above, have contended that during FVC proceedings the FVC has authority and competence to consider another plot of land offered by the applicant as per family unit norms if the land offered for godown in the application is not found suitable. Reference has also been made to clause 8 of Annexure R-2 which reads as under : “8. During the FVC process, it has been observed in some cases that the land mentioned by the applicant for godown in his application is not suitable. However, the applicant has offered another plot of land (in the advertised RGGLV location) in his name as per ‘family unit’ norms with date of registration on or before the date of application. In such cases it is clarified that since land is a requirement under eligibility criteria and not a criteria for evaluation, it would be in order to consider the alternat land if it is in the name of the aplicant/member of applicant’s family unit and date of registration of the same is on or before the date of application. However, the same if considered has to be duly verified for it suitability during the FVC.” It is submitted that in the instant case, as the husband of respondent no.4 had offered the land at Village Magroni of his ownership purchased vide registered sale deed dated 16.3.2012, no illegality was committed while accepting the said land, as the same conformed to the conditions stipulated in Annexure R-2. Further, while referring to clause 12.9 of the brochure (Annexure P-12), learned counsel submitted that upon field verification since the information given by respondent No.4 was found to be correct, therefore, Letter of Intent was issued respondent No.4. Further, while referring to clause 12.9 of the brochure (Annexure P-12), learned counsel submitted that upon field verification since the information given by respondent No.4 was found to be correct, therefore, Letter of Intent was issued respondent No.4. For ready reference, clause 12.9 is quoted as under: “12.9 Field verification will be carried out for the selected candidates and if the information given in the application by the applicant is found to be correct, Letter of Intent will be issued to the selected candidate.” It is submitted that in view of sale deed dated 16.3.2012 (Annexure P-8), affidavits dated 26.2.2014 (enclosed with FVC report Annexure R-3) and partition order (Annexure R-4) dated 15.5.2014, no illegality has been committed. Learned counsel further contended that prior to the present draw, three draws were held and cancelled. Respondent No.4 had eligibility to apply for distributorship of LPG under the RGGLV Scheme. It is submitted that she has qualified Xth examination in the year 1988-1989 and the certificate dated 19.6.2012 with details of marks has been issued by the Principal of Sanatan Dharm Kanya Uchhtar Madhymik Vidyalaya. Besides, the FVC since is competent body for verification of facts has verified the income of the respondents as per income tax return as 1,25,000/- and the income of her husband to the tune of Rs.2,50,000/- has rightly been added to the same and the combined income has rightly been determined as Rs.2,75,000/-. Therefore, no illegality has been committed by the respondent Corporation by holding respondent No.4 eligible and selected for award of LPG Distributorship. With the aforesaid submissions, it was contended that the petition deserves to be dismissed. 9. Heard, learned counsel for the parties. 10. Following questions emerge for consideration : (i) Whether, on facts and in the circumstances of the case, despite false declaration of facts furnished in the application form, candidature of respondent No.4 was liable to be rejected in the teeth of provision contained in clause 16 of the brochure (Annexure P-12)? (ii) Whether the FVC has acted in excess of its authority and jurisdiction while it considered and found the candidature of respondent No.4 suitable? (iii) Whether, on facts and in the circumstances of the case, fresh draw is liable to be drawn from amongst the remaining eligible candidates including the petitioner? 11. The sanctity and solemnity attached to the word “declaration” are of immense importance. (iii) Whether, on facts and in the circumstances of the case, fresh draw is liable to be drawn from amongst the remaining eligible candidates including the petitioner? 11. The sanctity and solemnity attached to the word “declaration” are of immense importance. Black’s Law Dictionary attributes meaning to the word “declaration” as a formal statement, proclamation or announcement especially one embodied in an instrument CF affidavit. The meaning attributed to word “declarant” is -- One who has made a statement and the statement was offered to prove the declarant’s state of mind. Therefore, the expression “Declaration” has a definite connotation. It is a submission of material facts. It may constitute a formal announcement or a deliberate submission. A declaration must be announced solemnly or officially and must be with a view to make known (B.S.N. Joshi and Sons v. Nair Coal Services Ltd. [2006 AIR SCW 5834], referred to. 12. The respondent/Bharat Petroleum Corporation, in its brochure and application form, has also struck a note of caution against furnishing of false information and consequences flowing therefrom under clause 16 quoted above, as well as, the clause appended to the application form under the head “Declaration” which reads as under : “Declaration by the Applicant I am aware that the evaluation of candidates will be done based on the information given in the application above. On verification by the Oil Company if it is found that the information given by me is incorrect/false/misrepresented then my candidature will stand cancelled and I will be declared ineligible for RGGLV.....” 13. Undisputedly, as per the advertisement, besides other eligibility conditions, a candidate is required to have land of the prescribed dimensions at Village Magroni for consideration of his/her candidature for award of LPG distributorship. Admittedly, respondent No.4 does not have land of her ownership at Village Magroni. In the application form she has declared that land bearing Khasra Nos.277/11/4 and 277/11/2 is at Magroni-Narwar Road. In fact this declaration is false as admittedly the aforesaid land is at Village Panghata; a distant place in different Gram Panchayat. That apart, respondent No.4 has further made a declaration that she has passed Xth class examination from M.P. Board, Bhopal in the academic year 1988-1989, with an intention to become eligible and fall within the zone of consideration. In fact this declaration is false as admittedly the aforesaid land is at Village Panghata; a distant place in different Gram Panchayat. That apart, respondent No.4 has further made a declaration that she has passed Xth class examination from M.P. Board, Bhopal in the academic year 1988-1989, with an intention to become eligible and fall within the zone of consideration. However, neither the marksheet of Xth Board examination issued by the M.P. Board, nor any certificate thereof, has been brought on record. On the contrary, a hand-written certificate by Principal of Sanatan Dharm Kanya Uchhtar Madhymik Vidyalaya has been produced to contend that she is Xth pass. The said certificate has been issued by the Principal of the school on 19.6.2012 i.e. after 23 years stating that respondent No.4 has passed the Xth Class Examination in the year 1988-1989, but there is no basis for the same as the mark-sheet issued by the M.P. Board has not been produced in evidence. Therefore, no credence or solemnity can be attached to such a letter of Principal of a Private School. In all fairness, if respondent no.4 had passed Xth Board Examination from M.P. Board in the year 1988-1989 as declared in her application, she was obliged to produce the mark-sheet issued in the same year by the Board and not a letter from a Principal of a Private School issued after 23 years of alleged passing of the examination. As such, the declaration is patently false in the context of eligibility as a candidate for LPG Distributorship. Further, a declaration has been made of annual income of Rs.4,000,00/- of respondent No.4 in the application form, whereas the Income Tax Return filed of the relevant period discloses her income as Rs.1,25,000/- and, therefore, the declaration, as made in the application in this behalf, is also false. Under these circumstances, in the opinion of this Court, the applicant/respondent No.4 was not even eligible for consideration of her candidature for award of LPG Distributorship at Village Magroni. The FVC could not have further processed her application as the same was liable to be rejected in view of clause 16 of the brochure (Annexure P-12) and the declaration clause appended to the application form. The FVC could not have further processed her application as the same was liable to be rejected in view of clause 16 of the brochure (Annexure P-12) and the declaration clause appended to the application form. Hence, the first question as formulated above, is answered in the affirmative and it is held that candidature of respondent No.4 was liable to be rejected in terms of clause 16 of the brochure. 14. Even otherwise, the FVC has not acted in accordance with the relevant clauses of the guidelines and in a fair manner. The respondents-Corporation has not adhered to the selection process, as prescribed under clause 12 of the brochure (Annexure P-12). There is no proper scrutiny of applications and award of marks, as well as, preparation of list of eligible candidates to draw lots. It appears that surreptitiously respondent no.4 has been declared as a selected candidate. The field verification carried out under clause 12.9 of the brochure (Annexure P-12) has not been fair and with due advertence to the clauses relating to fulfilment of requirement of eligibility and selection. After verification, the FVC in its appraisal report has found that the land described in the application form under Item No. 9 is not at Magroni but is situated at Village Panghata which is a separate Village. Therefore there was no occasion for the FVC to consider the land offered by husband of respondent No.4 as the suitability of the land mentioned in the application form (Village Panghata) could not have been considered under clause 8 of Annexure R-2 whereunder the FVC is empowered to consider alternate land provided the offered land is in Village Magroni for which distributorship was advertised and found unsuitable. As such FVC has acted contrary to clause 8 of Annexure R-2. Even otherwise, the land offered by Mukesh Jain, husband of respondent No.4 was not of his exclusive ownership but was also in the name of his three partners on the date of advertisement i.e. 21.5.2012 and no division had taken place amongst them till 15.5.2014. Further, there is no date mentioned as to when this land was offered. Therefore, again in terms of clause 8 (above), the same could not have been considered. Further, there is no date mentioned as to when this land was offered. Therefore, again in terms of clause 8 (above), the same could not have been considered. Also, the FVC has consciously avoided to further verify the suitability of land offered by husband of respondent no.4 as it has overhead power line passing over it (apparent from photographs – Annexure P/9) and there is a Nala passing through the said land over which a culvert has been illegally made by husband of respondent No.4, as is evident from the letter (Annexure P-14) issued by the Office of Tahsildar, Narwar. Further, the FVC has found that declaration of income of respondent no.4, as mentioned in the application form of Rs.4 lacs annually, was false as Income Tax Return of the said year reflected her income to be Rs.1,25,000/-. But, ignoring the factum of false declaration as regards income, the FVC tried to club the income of her husband shown at Rs.1,50,000/- not on the basis of Income Tax Return but on the basis of a certificate issued by Tahsildar. It is not known under which provision of law, the Tahsildar is competent to give certificate of income of a person. On one hand, to ascertain the income of respondent No.4, Income Tax Return has been seen and, on the other hand, certificate of Tahsildar has been considered to ascertain the income of husband of respondent No.4. This strange weird approach of the FVC leads to the irresistible conclusion that it had acted in a partisan manner, with ulterior motive to achieve the collateral purpose of favouring resopndent No.4. Therefore, the FVC has acted contrary to guidelines and in excess of its authority while declaring the candidature of respondent No.4 suitable. Accordingly, the second question, as formulated above, is answered in the affirmative. In view of the aforesaid facts and circumstances, this Court is of the considered view that candidature of respondent No.4 was liable to be rejected on the ground of furnishing false information as provided for in clause 16 of the brochure (Anneuxre P-12), as well as, for the reason that the FVC has acted unfairly and its decision is influenced by extraneous considerations contrary to the conditions stipulated in various clauses of the brochure, referred to above. The aforesaid view of this Court finds support from the judgment of the apex Court in the case of Shiv Kant Yadav v. Indian Oil Corporation and others (supra), wherein the Hon’ble Supreme Court for the reason of false declaration of income in the application form had justified cancellation of allotment of dealership, and is also in consonance with the judgment of this Court in the case of Vijay Pratap Singh Parihar v. Union of India and others (supra), wherein decision of the Oil Corporation for cancellation of LPG Distributorship on the ground of false information furnished by the applicant has been upheld, as well as judgment of coordinate Bench of this Court in the case of Pankaj Mantri v. Indian Oil Corporation, Bhopal [2013(3) MPLJ 466]. 15. Consequently, selection of respondent No.4 for award of LPG distributorship and the Letter of Intent issued are hereby quashed. It is directed that respondents No.2 and 3 shall draw fresh lot of eligible candidates including the petitioner for award of LPG Distributorship. Thus, question No.3, as formulated above, is answered accordingly. Writ petition succeeds and is hereby allowed. No order as to costs.