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Allahabad High Court · body

2019 DIGILAW 2146 (ALL)

Saroj Gautam v. Union of India

2019-09-16

B.K.NARAYANA, PRAKASH PADIA

body2019
JUDGMENT : Prakash Padia, J. 1. Heard learned counsel for the petitioner, Sri R.K. Jaiswal, learned counsel respondent No. 1 and Sri Vikas Budhwar, learned counsel for respondent Nos. 2 to 4. 2. The petitioner has preferred the present writ petition with the following prayers: "I Issue a writ, order or direction in the nature of certiorari by quashing the impugned order dated 1.8.2016 passed by respondent No. 4 (Annexure 11). II. Issue a writ order or direction in the nature of mandamus by directing the respondents to grant the distributorship of L.P.G. Place - Naini, District Allahabad under Schedule Caste Category in the favour of petitioner. III. Issue such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case; IV. Award cost of this petition to the petitioners." 3. Facts in brief as contained in the writ petition are that the Hindustan Petroleum Corporation Limited (hereinafter referred to as "the corporation") has published an advertisement on 29.9.2013 for appointment of L.P.G. distributors for various locations. Pursuant to the aforesaid advertisement, the petitioner applied for allotment of L.P.G. distributorship in respect of location No. 131 namely H.P.C. Naini Allahabad under Scheduled Caste Category Candidate for Urban Area Vipran Yojna 2013-2014. A letter dated 14.6.2014 was written by the respondent No. 4 namely Senior Regional Manager of respondent Corporation to the petitioner by which she was informed that draw for the location in question was held on 5.7.2014. In the draw the petitioner was found selected and thereafter a letter dated 5.7.2014 was written by the respondent No. 4 to the petitioner directing her to deposit a demand draft of Rs. 25,000/- for field verification. By the aforesaid letter, the petitioner was further directed to place certain papers and documents before the respondent No. 4. 4. It is contended that the petitioner had duly completed all the formalities well within time. During the course of verification, the land offered by the petitioner for construction of godown was not found suitable as such a letter dated 10.10.2014 was written by the respondent-corporation to the petitioner to offer an alternative land either in the name of the petitioner or any other family unit available on or before the date of application. 5. During the course of verification, the land offered by the petitioner for construction of godown was not found suitable as such a letter dated 10.10.2014 was written by the respondent-corporation to the petitioner to offer an alternative land either in the name of the petitioner or any other family unit available on or before the date of application. 5. In the reply, it is stated by the petitioner that objection raised by the respondent-corporation dated 10.10.2014 is not sustainable, since the petitioner has annexed rent agreement in respect of aforesaid Gata No. 844/1 area 1260 sq. meter alongwith No Objection Certificate of other co-owners in the prescribed format. It is further stated that the petitioner has also annexed registered supplementary deed dated 18.10.2014 to the rent agreement dated 26.10.2013. After the aforesaid letter was received in the Office of respondent-corporation, another letter dated 15.11.2014 was written by the respondent-corporation stating therein that the land provided by the petitioner was co-owned by five brothers and share of the lease holder is only 1/5th of 1260 sq. meters, i.e., 252 sq. meters which is less than the required land, i.e., 25 meters x 30 meters, i.e., 750 sq. meters. 6. In response to the same, a letter was written by the petitioner on 4.12.2014 stating therein that the petitioner has another land for godown at Gata No. 903 area 756 sq. meter situated at Mouja Karehada Uparhar Pargana Tehsil Sadar District Allahabad for which there is a registered rent agreement for the period 23.11.2011 to 21.11.2027. In this regard, counsel for the petitioner also relied upon a letter dated 26.3.2015 written by the respondent Corporation to the petitioner asking for land suitable for construction of godown. In the said letter, it is further stated by the respondent corporation to provide an alternate land within a period of seven days as per the terms and conditions otherwise the corporation authorities will take action as per the procedure. In response to the same, again a reply was given by the petitioner on 13.4.2015. Being not satisfied with the petitioner's, reply, another letter was written by the respondent-corporation to the petitioner on 27.5.2015 again asking for providing suitable land for construction of godown. In response to the same, again a reply was given by the petitioner on 13.4.2015. Being not satisfied with the petitioner's, reply, another letter was written by the respondent-corporation to the petitioner on 27.5.2015 again asking for providing suitable land for construction of godown. Since no reply was given by the petitioner in response to the aforesaid letter, a letter dated 1.8.2016 was written by the respondent No. 4 to the petitioner informing him that appointment of the petitioner was cancelled and the security amount deposited by the petitioner towards field verification i.e. Rs. 25,000/- was forfeited. 7. Challenging the aforesaid order/letter dated 1.8.2016, the petitioner has preferred the present writ petition on the ground that the order impugned is absolutely arbitrary and illegal and liable to be set aside. It is stated that all the objections raised in the impugned order are unwarranted and not sustainable in the eyes of law. It is contended that the power of attorney is not mandatory to be registered as per the provisions of Registration Act, 1908. It is stated that since No objection certificate has already been given by the co-owners of the land, the demand of registered power of attorney is illegal. 8. A detailed counter-affidavit has been filed on behalf of the respondent-corporation/respondent Nos. 2, 3 and 4. It is stated in the counter-affidavit that the procedure and manner according to which selections are made for the award of regular LPG distributorship are set out in the Brochure on Guidelines for Selection of Regular LPG Distributors, August, 2013. Copy of the aforesaid Guidelines is annexed as Annexure-1 to the counter-affidavit. The eligibility criteria for individual applicants is contained in clause 6 of the aforesaid guidelines which is reproduced below: 6. ELIGIBILITY CRITERIA FOR INDIVIDUAL APPLICANTS All applicants fulfilling the eligibility criteria will become eligible for the draw for selection of the LPG distributorship. The eligibility Criteria is as under: 6.1. Common Eligibility Criteria for all Categories applying as Individual The applicant should '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 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). (vii) Should own as on the last date for submission of application as specified in the advertisement or corrigendum (if any) A plot of land of minimum dimensions 25 Metre x 30 Metre (within 15 km from municipal/town/village limits of the location offered in the same State) for construction of LPG Godown for storage of 8000 Kg of LPG in cylinders. The plot of land for construction of godown not meeting the minimum dimensions of 25 Metre x 30 Metre will not be considered. Or a ready LPG cylinder storage godown (within 15 km from municipal/town/village limits of the location offered in the same State) of 8000 Kg capacity. In case there are any state specific requirements/norms applicable for construction of the LPG Godown, then the same will be applicable for the respective Regular Distributorship locations including revised minimum dimensions of plot of land will be required as specified in the Advertisement of that respective State. The plot of land or ready LPG cylinder storage godown should be freely accessible through all weather motorable approach road (public road or private road connecting to the public road). In case of private road connecting to the public road, the same should belong to the applicant/member of Family Unit (as per the multiple dealership/distributorship norm of eligibility criteria) as per the ownership criteria defined below. In case of ownership/co-ownership by family member(s) in respect of such private road, consent letter from respective family member(s) will be required. The land should also be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Canals/Drainage. Nallahs should not be passing through the plot. The land for construction of LPG godown should also meet the norms of various statutory bodies such as PWD/Highway authorities/Town and Country Planning Department etc. The land should also be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Canals/Drainage. Nallahs should not be passing through the plot. The land for construction of LPG godown should also meet the norms of various statutory bodies such as PWD/Highway authorities/Town and Country Planning Department etc. In case an applicant has more than one suitable plot for construction of godown for storage of minimum 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the last date for submission of application as specified in the advertisement or corrigendum (if any), the details of the same can also be provided in the application. (viii) Own a suitable shop of minimum size 3 metre by 4.5 metre in dimension or a plot of land for construction of showroom of minimum size 3 metre by 4.5 metre as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location i.e. within the municipal/town/village limits of the place which is mentioned under the column of 'location' in the advertisement. In case locality is also specified under the column of 'location' in the advertisement, the candidate should own a suitable shop of minimum size 3 metre by 4.5 metre in dimension or a plot of land for construction of showroom of minimum size 3 metre by 4.5 metre as on the last date for submission of application as specified in the advertisement or corrigendum (if any) as per the standard layout in the said 'locality'. It should be easily accessible to general public through a suitable approach road. In case an applicant has more than one shop of minimum size 3 metre by 4.5 metre in dimension or a plot of land for construction of showroom of minimum size 3 metre by 4.5 metre as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality as specified under the column of 'location' in the advertisement, the details of the same can also be provided in the application. 'Own' means having ownership title of the properly or registered lease deed having minimum 15 yrs of valid lease period from the date of advertisement in the name of applicant/member of "Family Unit" (as defined in multiple dealership/distributorship norm of eligibility criteria). 'Own' means having ownership title of the properly or registered lease deed having minimum 15 yrs of valid lease period from the date of advertisement in the name of applicant/member of "Family Unit" (as defined in multiple dealership/distributorship norm of eligibility criteria). The applicant should have clear ownership as defined under the term 'Own' above as on last date for submission of application as specified in the advertisement or corrigendum (if any). In case of ownership/co-ownership by family member(s) as given above, consent in the form of a Notarized Affidavit from the family member(s) will be required. In case the land is jointly owned by the applicant/member of 'Family Unit' (as defined in multiple dealership/distributorship norm) with any other person(s) and the share of the land in the name of applicant/member of the 'Family Unit' meets the requirement of land including the dimensions required, then that land for godown/showroom will also qualify for eligibility as own land subject to submission of 'No Objection Certificate' in the form of an Notarized Affidavit from other owner(s)." 9. It is stated in the counter-affidavit that pursuant to the advertisement dated 29.9.2013, an application form was submitted by the petitioner on 27.10.2013. The last date for submission of application form was 28.10.2013. Column nine of the application form is pertaining to the land offered by the petitioner for LPG godown. The petitioner offered Khasra No. 844/1 showing herself to be owner of the land by virtue of registered lease deed dated 26.10.2013. From perusal of the aforesaid lease deed, it appears that same was in respect of Gata No. 844/1 and the same was executed by one Vijay Kumar in favour of the petitioner. The total area mentioned in the application form was 1260 square meters. On the basis of the aforesaid disclosure made by the petitioner in her application form, a call letter was issued to the petitioner on 14.6.2014. The draw of lot was conducted on 5.7.2014. In the aforesaid draw, the petitioner was declared successful. As per the procedure prescribed in the brochure, the field verification was conducted by the officials of the Corporation on 10.10.2014 in which it was found that in Gata No. 844/1 share of Vijay Kumar was 1/5th, i.e., total area 252 square meters whereas the requirement as per Clause 6(iii) is 25 meters x 30 meters, i.e., 750 square meters. As per the procedure prescribed in the brochure, the field verification was conducted by the officials of the Corporation on 10.10.2014 in which it was found that in Gata No. 844/1 share of Vijay Kumar was 1/5th, i.e., total area 252 square meters whereas the requirement as per Clause 6(iii) is 25 meters x 30 meters, i.e., 750 square meters. In view of the same, a letter dated 10.10.2014 was issued by the respondent Corporation to the petitioner to provide any other alternative piece of land in her name or in the name a member of her "family unit" available on or before the date of submission of application form. Pursuant to the same, a letter dated 22.10.2014 was written by the petitioner to the respondent corporation stating therein that Gata No. 844/1 area 1260 square meters is in the joint ownership of five persons and alongwith the said letter, the petitioner appended No Objection Certificate of four other owners and also an unregistered power of attorney dated 27.4.2013. Apart from the same, the petitioner has also appended a copy of the correction lease deed dated 18.10.2014. 10. It is argued that Sri Vikas Budhwar, learned counsel appearing on behalf of respondent corporation that as per clause 6 (vii), the applicant should have a plot of land having minimum dimension of 25 meters x 30 meters on the last date of submission of application form. The petitioner has neither submitted No Objection Certificate on or before the said date nor any correction deed was executed by her before the last date of submission of her application form, i.e., 28.10.2013. In view of the same, the aforesaid papers submitted by the petitioner were not taken into consideration by the respondent-corporation. It is further argued that alleged no objection certificate dated 26.10.2013 which is on record cannot be taken into consideration, since it does not contain any recital to the effect that other co-owners are ready and they have no objection about the lease of land to the petitioner. 11. Pursuant to the same, the petitioner offered another registered lease agreement so executed by one Sheshdhar in favour of the petitioner showing lease of land for 16 years from execution from the date of lease deed, i.e., 23.11.2011. 11. Pursuant to the same, the petitioner offered another registered lease agreement so executed by one Sheshdhar in favour of the petitioner showing lease of land for 16 years from execution from the date of lease deed, i.e., 23.11.2011. The registered lease deed was executed on 23.11.2011 by Sheshdhar for Arazi No. 903 area 756 square meters does not confer the requirement mentioned under clause 6.1 (vii) since the lease was not of minimum 15 year on the last date of submission of the application form, i.e., 28.10.2013. 12. In the circumstances, another letter dated 15.11.2014 was written by the respondent corporation to the petitioner permitting the petitioner to offer another alternative piece of land having registration on or before the last date of submission of application form, i.e., 28.10.2013 within seven days of receipt of the letter either in the name of the petitioner or a member of her family unit as prescribed in the brochure. 13. Apart from the same, a rent agreement dated 2.12.2014 was also provided by the petitioner, copy of which is appended as Annexure 8 to the writ petition. Although the same was executed in favour of the petitioner but the same was not taken into consideration on the ground that the aforesaid agreement was executed after the last date of submission of application form i.e., 28.10.2013. Subsequently, taking a lenient view, another letter dated 26.3.2015 was written by the respondent corporation to the petitioner by which again a request was made by the corporation to the petitioner to submit alternative piece of land registered on or before the last date of submission of application form, i.e. 28.10.2013. 14. The reply submitted by the petitioner was not found satisfactory, since no alternative land was provided by the petitioner as per requirement of the Brochure, the order dated 1.8.2016 was passed by the respondent corporation rejecting the candidature of the petitioner and forfeiting a sum of Rs. 25,000/-. It is further argued by Sri Vikas Budhwar, learned counsel that the petitioner is not an illiterate person and knew the terms and conditions applicable for LPG distributorship. The application form was filled up by the petitioner with her open eyes. The petitioner was fully aware that she should own the land for a period of 15 years on the last date of submission of application form, i.e., 28.1.2013. 15. The application form was filled up by the petitioner with her open eyes. The petitioner was fully aware that she should own the land for a period of 15 years on the last date of submission of application form, i.e., 28.1.2013. 15. Heard learned counsel for the parties and perused the record. 16. From perusal of record, it transpires that pursuant to the advertisement dated 29.9.2013, an application form was submitted by the petitioner on 27.10.2013. Alongwith application form, the petitioner offered a land for LPG godown situated at Gata No. 844/1. In the application form, she showed herself to be owner of the land by virtue of registered lease deed dated 26.10.2013. During field verification, it was found that Sri Vijay Kumar who executed lease deed in favour of the petitioner having only 1/5th share of the total area of land, i.e., 252 square meters. In view of the same, the petitioner does not have a minimum land for the construction of godown as per requirement of the advertisement. A letter was written by the Corporation to the petitioner with a request to offer alternative piece of land in her name, though no objection certificate was submitted by the petitioner but the same was not found suitable by the respondent corporation. Subsequently, the petitioner submitted registered lease agreement so executed by one Sheshdhar in favour of the petitioner. The aforesaid lease deed was executed on 23.11.2011. The same was also not found suitable since the same did not confirm with the requirement contained under Clause 6.1 (vii) of the brochure as the lease was not for minimum 15 years on the last date of submission of application form. Insofar as the correction lease deed dated 18.10.2014 is concerned, the same was also not taken into consideration by the Corporation since as per the terms and conditions of the brochure a document cannot taken into consideration which was submitted after the last date of the application form. 17. It is settled law that the terms and conditions contained in the brochure cannot be relaxed by the Court of law. In the case of Durgawati Devi v. Union of India and others, 2019 (6) AWC 6252, the Supreme Court was pleased to hold that High Court should not exercise power under Article 226 of the Constitution of India to relax the terms and conditions of the tender notice. In the case of Durgawati Devi v. Union of India and others, 2019 (6) AWC 6252, the Supreme Court was pleased to hold that High Court should not exercise power under Article 226 of the Constitution of India to relax the terms and conditions of the tender notice. Relevant paragraphs of the aforesaid judgment is quoted below: "4. Clause 6H (iii) explains 'own' to mean having clear ownership title of the property in the name of the applicant, or in the name of family members of the 'Family Unit' of the applicant as defined in multiple dealership/distributorship norms, or land belonging to parents and grandparents (both maternal and paternal) of the applicant, as on the last date for submission of applications as specified in the advertisement or corrigendum (if any) in case of ownership/co-ownership) by family members. 5. Admittedly, as on the last date for submission of applications in terms of the advertisement referred to above, the petitioner did not own land as required. The petitioner only had an agreement for sale in her favour. It is well-settled that execution of a sale agreement does not transfer ownership/title. Ownership can only be acquired by a registered deed of conveyance. The petitioner was not eligible as on the last date for submission of applications. 6. Counsel appearing on behalf of the petitioner strenuously contended that a deed of conveyance has since been executed and the petitioner is now the owner of the land. However, it is not disputed that as on the relevant date, that is the last date for submission of applications, the petitioner was not the owner of the land. 7. The High Court cannot, and rightly did not, in exercise of power under Article 226 of the Constitution of India, relax the terms and conditions of a tender notice. 8. Such relaxation would be patently discriminatory, for it would then be open for other applicants ineligible on the last date for submission of applications to contend that, they could have acquired eligibility subsequently. 9. In our view, the High Court rightly dismissed the Writ Petition, challenging the rejection of the candidature of the petitioner as devoid of merit. The impugned judgment and order does not call for interference. Accordingly, the special leave petition is dismissed." 18. 9. In our view, the High Court rightly dismissed the Writ Petition, challenging the rejection of the candidature of the petitioner as devoid of merit. The impugned judgment and order does not call for interference. Accordingly, the special leave petition is dismissed." 18. In view of the facts as stated above, it is clear that the petitioner does not have a clear title of land for construction of godown as per the Clause 6.1 of the Guidelines issued by the respondent-corporation for selection of regular LPG distributors. 19. In view of the aforesaid facts as stated above, in our view the respondent corporation rightly rejected the candidature of the petitioner. The order passed by the respondent corporation dated 1.8.2016 is a perfect and valid order and does not call for any interference by this Court especially under Article 226 of the Constitution of India. 20. The writ petition being devoid of merits is liable to be dismissed. 21. The writ petition is dismissed. No order as to costs.