Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 724 (RAJ)

Kamla v. Hindustan Petroleum Corporation Ltd.

2022-03-03

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : 1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. This writ petition has been preferred claiming the following reliefs: “(i) By an appropriate writ order or direction the writ petition may kindly be accepted and by an order or direction the order dated 18-01-2011 at Anex.P/10 qua the respondent No.4, impugned order dated 22- 01-2011 at Annex.P/12 and impugned order dated 21- 09-2012 at Annex.P/26 be declared illegal and be quashed and set aside. (ii) By an appropriate order or direction respondents may be directed to allow the distributorship to the petitioner. (iii) Exemplary cost be imposed for causing undue harassment.” 3. The petitioner in person, submitted that the respondent-Hindustan Petroleum Corporation (for short, ‘HPCL’), along with two other Oil Companies, issued a common notice, dated 13.03.2010, at Annexure P/1, whereby applications were invited for appointment of LPG Distributors at various locations specified therein, and that the petitioner filed an application for the same. 4. The petitioner in person further submitted that the selection process was concluded after the interviews, that were held on 19.06.2010 and the result, at Annexure P/3, was declared. The petitioner in person also submitted that respondent No.4- Mr. Jagdish Suthar, was shown as the first empanelled applicant, following which one Mr. Laxman Singh was shown as the second and the petitioner was shown as the third, empanelled applicant. 5. The petitioner in person further submitted that she, upon being informed by one Advocate, Mr. Khetaram Choudhary (who had sought information under the Right to Information Act, 2005, and that the same was provided to him vide letter dated 18.01.2011, issued to him by the respondent-Corporation) informed her that certain misrepresentations made by the second empanelled applicant were found to be substantiated and established, and that despite certain glaring issues pertaining to the candidature of the first empanelled applicant, i.e. respondent No. 4, the respondent-Corporation incorrectly found that he was eligible for grant of LPG Distributorship. 6. The petitioner in person further submitted that the respondent No.4 was in fact, not eligible to be selected, citing the following reasons for the same: 6.1 Respondent no. 6. The petitioner in person further submitted that the respondent No.4 was in fact, not eligible to be selected, citing the following reasons for the same: 6.1 Respondent no. 4 was in fact, a Non Resident of India (hereinafter referred to as ‘NRI’), which is clearly violative of the qualification, as laid down under Point 2 (b) of ‘Common Eligibility Criteria for all Categories’ in the Notice for Appointment of LPG Distributors, dated 13.10.2010, which states that an eligible candidate must be a resident of India. 6.1.1 Respondent No.4, of his admission in Para. 12 in his application made in pursuance of the notice, at Annex P/4, states that he had been serving as a Customs Clerk in UPS Supply Chain Solutions Inc. in Dubai since 07.11.2007 until after March 2010, when the said application was made. 6.1.2 Respondent no. 4 was in fact not a Resident of India, as he did not fulfil the criteria for the same as per Section 6 of the Income Tax Act, as on the date of the affidavit, which he submitted alongwith his application made under the aforementioned notice. Section 6 of the Income Tax Act, 1961 reads as follows:- “6.For the purposes of this Act,— (1) An individual is said to be resident in India in any previous year, if he— (a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more ; or (b) [***] (c) having within the four years preceding that year been in India for a period or periods amounting in all to three hundred and sixty-five days or more, is in India for a period or periods amounting in all to sixty days or more in that year. Explanation 1.—In the case of an individual,— (a) being a citizen of India, who leaves India in any previous year as a member of the crew of an Indian ship as defined in clause (18) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958), or for the purposes of employment outside India, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted ; (b) being a citizen of India, or a person of Indian origin within the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted 20[and in case of 21[such person] having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, for the words "sixty days" occurring therein, the words "one hundred and twenty days" had been substituted].] Explanation 2.—For the purposes of this clause, in the case of an individual, being a citizen of India and a member of the crew of a foreign bound ship leaving India, the period or periods of stay in India shall, in respect of such voyage, be determined in the manner and subject to such conditions as may be prescribed.22 [(1A) Notwithstanding anything contained in clause (1), an individual, being a citizen of India, having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year shall be deemed to be resident in India in that previous year, if he is not liable to tax in any other country or territory by reason of his domicile or residence or any other criteria of similar nature.] [Explanation.—For the removal of doubts, it is hereby declared that this clause shall not apply in case of an individual who is said to be resident in India in the previous year under clause (1).] 6.2 Respondent No.4 was in clear contravention of the Regulations 3 and 4 of the Foreign Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 (hereinafter referred to as ‘the Regulations of 2000’) issued by the Reserve Bank of India vide Notification No. FEMA 21/2000 – RB dated 3rd May 2000, under the powers conferred upon it under Section 6 (3)(i) and Section 47 (2) of the Foreign Exchange Management Act, 1999 (hereinafter referred to as ‘the Act of 1999’). Regulations 3 and 4 read as follows: “3. Acquisition and Transfer of Property in India by an Indian Citizen resident outside India:- A person resident outside India who is a citizen of India may - (a) acquire any immovable property in India other than agricultural/plantation/farm house, and (b) transfer any immovable property in India to a person resident in India. (c) transfer any immovable property other than agricultural or plantation property or farm house to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India. 4. (c) transfer any immovable property other than agricultural or plantation property or farm house to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India. 4. Acquisition and Transfer of Property in India by a Person of Indian origin A person of Indian origin resident outside India may - (a) acquire any immovable property other than agricultural land/farm house/ plantation property in India by purchase, from out of (i) funds received in India by way of inward remittance from any place outside India or (ii) funds held in any non-resident account maintained in accordance with the provisions of the Act and the regulations made by the Reserve Bank under the Act; (b) acquire any immovable property in India other than agricultural land/farm house/plantation property by way of gift from a person resident in India or from a person resident outside India who is a citizen of India or from a person of Indian origin resident outside India; (c) acquire any immovable property in India by way of inheritance from a person resident outside India who had acquired such property in accordance with the provisions of the foreign exchange law in force at the time of acquisition by him or the provisions of these Regulations or from a person resident in India; (d) transfer any immovable property in India other than agricultural land/farm house/plantation property, by way of sale to a person resident in India; (e) transfer agricultural land/farm house/plantation property in India, by way of gift or sale to a person resident in India who is a citizen of India; (f) transfer residential or commercial property in India by way of gift to a person resident in India or to a person resident outside India who is a citizen of India or to a person of Indian Origin resident outside India.” 6.3 Respondent-Corporation turned a blind eye towards the conditions stipulated in the aforementioned notice regarding the location of the land as offered by respondent no.4, which did not fulfill the criteria prescribed therein, namely it did not have an all weather approach road. 7. 7. The petitioner in person further submitted that the above mentioned grievances were brought to the notice of the respondent-Corporation by the petitioner alongwith the requisite documents, some of which have been placed on the record before this Court, but that the respondent-Corporation, through order passed on 21.09.2012 set aside the grievances on arbitrary and unreasonable grounds. 7.1 The petitioner in person also submitted that the first ground of rejection was that the respondent no. 4 was a citizen of India, but that the petitioner did not in fact raise the issue whether respondent no. 4 was a citizen of India, but had raised the issue that he did not qualify as a resident of India. The petitioner in person placed reliance on the judgments of Bhagwan Dass Vs. Kamal Abrol (2005) 11 SCC 66 and Rashmi Pandey Vs. HPCL (2007) (1) AIILJ-799. 7.2 The petitioner in person also submitted that the second ground for rejection was that the reply filed by the respondent no. 4 to the show cause notice, dated 05.11.2011, issued to him by the respondent-Corporation, satisfied the respondent-Corporation that even if there is any violation with regard to the acquisition of property, it is compoundable and a master circular to that effect was issued by the RBI on 01.07.2011, and that he was also granted an opportunity of hearing. The petitioner in person further submitted that the respondent-Corporation thus incorrectly held that the contravention of the provisions of law laid down in the Regulations of 2000 were minor and technical, and that, the same is categorically unsustainable on count of the fact that the Respondent no. 4 has not been issued any cautionary advice but that a compounding order was passed against him with a penalty of Rs. 2000/-, at Annexure R/3. The petitioner in person referred to Section 13 sub-section (2) of the Act of 1999, which reads as follows:- “13. Penalties. 4 has not been issued any cautionary advice but that a compounding order was passed against him with a penalty of Rs. 2000/-, at Annexure R/3. The petitioner in person referred to Section 13 sub-section (2) of the Act of 1999, which reads as follows:- “13. Penalties. - (2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf. Explanation.—For the purposes of this sub-section, “property” in respect of which contravention has taken place, shall include— (a) deposits in a bank, where the said property is converted into such deposits; (b) Indian currency, where the said property is converted into that currency; and (c) any other property which has resulted out of the conversion of that property. 7.3 The petitioner in person further submitted that under the Master Circular issued, the classification of contraventions rests not with the contravener but solely with the Reserve Bank of India and the compounding rests at the absolute discretion of the compounding authority, and also that if the contraventions are technical or minor in nature, then it needs only an administrative cautionary advice, whereas those serious in nature are compounded. The petitioner in person therefore, submitted that the contravention of the provision of law by the Respondent no. 4, as aforementioned, laid down under the Act of 1999, is not minor or technical in nature, by the simple fact that a compounding order was passed against him. 8. The petitioner in person further submitted that the map, at Annexure R/8 of Khasra Nos. 435/328 and 434/328, being the land in the application so made by the respondent No.4, for establishing the LPG Distributorship, compared with the ‘Blue Print’, at Annexure P/30, which he submitted to the concerned District Collector for conversion of the land use of the said land, is inconsistent to the extent of details regarding the road on the said land. 435/328 and 434/328, being the land in the application so made by the respondent No.4, for establishing the LPG Distributorship, compared with the ‘Blue Print’, at Annexure P/30, which he submitted to the concerned District Collector for conversion of the land use of the said land, is inconsistent to the extent of details regarding the road on the said land. And that the same, when cross verified with the Lattha Trace, at Annexure P/31, obtained under the Act of 2005, reveals gross inconsistencies. 9. The petitioner in person further submitted that in the application made by the respondent no. 4, the roads on the property therein, do not comply with the criteria laid down in the aforementioned notification, and is in fact, not an all weather motorable approach road but merely a gravel road where cross drainage works etc. are absent. 10. The petitioner, in person, placed on reliance of the following judgments, 10.1 Ram Chandra Singh Vs. Savitri Devi and Ors. (Civil Appeal 8216 if 2003) (SC) 10.2 Kanta Chouhan Vs IOCL & Ors. D.B. Spl. Appl. Writ No. 49 of 2019 (Raj.) : 2019 (4) RLW 3433 (Raj.) 10.3 Ramana Dayaram Shetty Vs. The International Airport Authority of India and Ors. AIR 1979 SC 1628 10.4 Mohinder Singh Gill and Anr. Vs. the Chief Election Commissioner AIR 1978 SC 851 10.5 Indian Oil Corporation Ltd & Ors. Vs. Shashi Prabha Shukla & Anr (Civil Appeal No. 5565 of 2009) (SC) 11. Learned counsel for the respondent no. 4 submitted that Regulation No. 9 of the Appointment of the LPG Distributor provides for a grievance redressal mechanism, and also provides that any such person aggrieved by the selection may file a complaint within one month from the date of declaration of result and that in the present case, the first complaint made by the petitioner was on 22.08.2011 which is almost 7 months after the issuance of the declaration of result through the Letter of Intent on 22.01.2011. 12. Learned counsel for the respondent no. 4 submitted that with regard to the contention that the respondent no. 4 was not a resident of India at the relevant time of making the application, is a baseless allegation as a detailed inquiry and investigation was conducted by the respondent-Corporation and it was found that there was absolutely no violation of the provisions of the Act of 1999. 4 submitted that with regard to the contention that the respondent no. 4 was not a resident of India at the relevant time of making the application, is a baseless allegation as a detailed inquiry and investigation was conducted by the respondent-Corporation and it was found that there was absolutely no violation of the provisions of the Act of 1999. And that, the respondent-Corporation relied on the judgment rendered by the Hon’ble Apex Court in BhagwanDass Vs. Kamal Abrol (2005) 11 SCC 66 , wherein the Hon’ble Court observed that merely because a person was outside India for the purpose of employment cannot be said to not be a resident of India for dealership selection. Learned counsel further submitted that the judgments of the Hon’ble Division Bench of the Hon’ble Allahabad High Court and the Hon’ble Single Bench of the Hon’ble Kerala High Court have in the judgements of Rashmi Pandey Vs. HPCL (2007) (1) AIILJ-799 and K. Sajeer and Anr. Vs. HPCL. Learned counsel further relied upon the judgement rendered by the HO’ble Apex Court in Jeewanti Pandey Vs. Kishan Chandra Pandey AIR 1982 SC 3 wherein it was observed that a ‘Residence’ would be place where in the person in question would have a fixed home or abode, and that the legal residence of such person would be the same, and place of residence cannot be a place where the person in question has gone for a temporary or casual visit. 13. Learned counsel for the respondent no. 4 submitted that the petitioner filed a writ petition, being SB CWP 3474/2011, before this Court, but withdrew the same with the liberty to file afresh, and that without any fresh cause of action has preferred this writ petition. And that, the petitioner not only filed a time barred complaint but also filed several complaints, with the same contentions time and again, first on 22.08.2011, then 17.09.2011 and then on 04.03.2012, all of which have been placed on record by the petitioner. And that the present writ petition is an abuse of the process of law and as such it is barred by the provision of Order 23 Rule 1 (4) of the CPC, 1908. 14. Learned counsel for the respondent no. 4 further submitted that the respondent no. 4 has been running the LPG Distributorship for over a period of 9 years. 14. Learned counsel for the respondent no. 4 further submitted that the respondent no. 4 has been running the LPG Distributorship for over a period of 9 years. And that the Hon’ble Apex Court in Moumita Poddar Vs. IOCL 2010 (6) AWC 5789 (SC) settled the position of law, which was subsequently upheld in the Sanjay Kumar Shukla case, that unless justified by public interest, such writs cannot be entertained. Learned counsel therefore submitted that the scope of judicial review is limited to the decision making process alone and does not extend to the merits of the decisions taken. 15. Learned counsel for the respondent no. 4 further submitted that the contention of the petitioner that the respondent no. 4 is in violation of the Act of 1999, because the property of his father devolved upon him through a gift deed when he was supposedly a non resident of India, and that the same was furnished in the application by him before the respondent-Corporation, is wrong. Learned counsel further submitted that a compounding order was passed in the year 2012 itself by the Reserve Bank of India and the respondent no. 4 was penalized with a fine, accordingly. Learned counsel also placed reliance on the judgment rendered by the Hon’ble Division Bench of the Hon’ble Punjab and Haryana High Court in Piara Singh Vs. Jagtar Singh and Anr. (1997) 117 PLR 258 . 16. Learned counsel for the respondent no. 4 thus submitted that the contentions and allegations raised by the petitioner against the respondent no. 4 are frivolous and baseless, and have already been duly heard and decided by the respondent-Corporation. 17. Learned counsel for the respondent-Corporation, supplementing the submissions made by the respondent no. 4 with regard only to the averments made by the petitioner regarding validity of his eligibility and the application made by him for the LPG Distributorship in question, submitted that the respondent no. 4 was an Indian citizen with a valid passport who was outside the country on a temporary basis and for a fixed period of time. And that, upon receipt of complaint by the petitioner, inquiry was conducted to the satisfaction of the respondent-Corporation, and that the provisions of law laid down under the Act of 1999 are not applicable to the facts and circumstances of the present case. And that, upon receipt of complaint by the petitioner, inquiry was conducted to the satisfaction of the respondent-Corporation, and that the provisions of law laid down under the Act of 1999 are not applicable to the facts and circumstances of the present case. And that, all of the petitioner’s complaints were addressed and she was given a fair opportunity of hearing. And that, repeated complaints were made and letters were filed by the petitioner in this regard, all on the same issue, each of which have been duly addressed by the respondent Corporation, time and again. 18. Learned counsel for the respondent-Corporation further submitted that it satisfied itself as to the viability of the land which was proposed by the respondent no. 4 in his aforementioned application for the LPG Distributorship, and that the all weather motorable road and other requirements were in compliance with the criteria laid down by the respondent-Corporation, after making the due site inspection and verification by its competent authority. 19. Learned counsel for the respondent-Corporation further reiterates that the first complaint preferred by the petitioner was prima facie a time – barred complaint, which instead of being filed within the 1 month deadline as laid down in the guidelines of the respondent-Corporation, was preferred after an inordinate delay of about 7 months. 20. Learned counsel for the respondent further submitted that with regard to the petitioner’s averments as to the documents presented before the concerned District Collector, the petitioner ought to have impleaded such District Collector to verify/negate the same and that the same cannot be done by the respondent Corporation for want of knowledge. 21. Heard learned counsel for both the parties and, perused the record of the case and the judgments cited at the Bar. 22. Prima facie, this Court is of the considered opinion that the first complaint preferred by the petitioner was time–barred as it was clearly laid down that a complaint by any aggrieved person as to the declaration of result for the allotment of LPG Distributorship, in pursuance to the advertisement issued through notice dated 13.03.2010, as the first complaint was preferred by the petitioner on 22.08.2011 which was made a belated stage of about 7 months, after the issuance of the declaration of result through the Letter of Intent on 22.01.2011. 23. 23. This Court observes that the averments made by the petitioner have already been raised before the concerned authority of the respondent-Corporation and have been duly considered by them in passing the speaking and reasoned order dated 21.09.2012. 24. This Court further observes that it not the case of the petitioner that she was not afforded an opportunity of hearing nor is it a case wherein the order of the concerned authority was not a speaking or reasoned order. Each of the issues raised by the petitioner have been raised before the concerned authorities and on each occasion an opportunity of hearing was provided, and each complaint was individually dealt with. 25. This Court observes the ratio decidendi laid down in Moumita Poddar (supra) and Sanjay Kumar Shukla (supra) wherein the Hon’ble Apex Court clearly laid down the law of the land, that only on the sole ground if the interest of the public at large is affected, may such writs, challenging the allotment of LPG Distributorships, be entertained. The issue in the present case is squarely covered by the two said cases, wherein respondent no. 4 has been in the business of the LPG Dealership for over a period of 9 years, and the Hon’ble Apex Court declined to invoke its extra ordinary jurisdiction since it would not be in the public interest to do so. 25.1 This Court also observes that it not the case of the petitioner that the respondent-Corporation has unduly favoured respondent no. 1 or with mala fide intent tampered with the selection process of applications for the LPG Distributorship. 25.2 This Court also observes that the LPG Distributorship has been functioning ably and to the satisfaction of the respondent-Corporation, to the effect that the respondent no. 4 has been conferred with awards and recognition for his good work. And, any interference by this Court, at this belated stage would not only adversely impact the respondent-Corporation and the respondent no. 4 but also the employees of the respondent no. 4’s dealership and the general public in that area that are its customers. 25.3 As was observed by the Hon’ble Apex Court in Moumita Poddar (supra) if this Court disregards the financial losses that would be incurred by the respondent-Corporation and respondent no. 4 but also the employees of the respondent no. 4’s dealership and the general public in that area that are its customers. 25.3 As was observed by the Hon’ble Apex Court in Moumita Poddar (supra) if this Court disregards the financial losses that would be incurred by the respondent-Corporation and respondent no. 4 if the LPG Distributorship outlet is directed to be shut down, it would be unjust and improper to ignore the far reaching consequences of the same on the public residing in Baytoo, a remote rural area in Barmer District since it is the only outlet of the respondent-Corporation, out of the three corporations which issued the aforementioned common notice seeking applicants to establish LPG Distributorships, functioning in the said area. 26. This Court, in light of the above, does not deem it appropriate to delve into a question of fact, especially since the same has been clearly dealt with by the concerned authorities of the respondent corporation in the impugned orders. 27. This Court further observes that the precedent laws cited by the petitioner do not apply to the facts and circumstances of the present case. 28. This Court, in light of the above mentioned observations, dismisses the present petition. All pending applications are also disposed of accordingly.