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Judgment
Invoking the jurisdiction under Article 226 of the Constitution of India and assailing the order dated 2.7.2012 of rejecting the candidature and the order dated 8.11.2012 rejecting the representation of petitioner, after the direction of this Court dated 7.8.2012 in WP No. 12692/2012, petitioner has filed WP No. 21326/2012. The another Writ Petition No. 15607/2013 is filed assailing the grant of LPG Distributorship of village Sarai, district Singrauli in favour of respondent No.2 vide order dated 13.5.2013 Annexure P/6.
The Facts unfolded to file the present two writ petitions are the respondent Indian Oil Corporation (hereinafter referred to in short as I.O.C.) issued an advertisement on 1.11.2011 for grant of outlet retail LPG dealership under the Rajiv Gandhi Gramin LPG Vitrak Scheme (in short ''RGGLV'') with respect to village Sarai, Tehsil Deosar, District Singrauli. The petitioner as well as respondent No.2 both applied for the said grant and found eligible, however, lots of the candidates were
drawn. The petitioner stood first, however, on 17.1.2012, intimation was sent by the I.O.C.. As per procedure field verification was made by the officers of the IOC on 17.3.2012. After field verification in the report it was mentioned that the land for godown offered by the petitioner is not connected with the approach road and the gift deed for the approach road was registered on 29.2.2012 after the date of submitting the application form. Thus, vide order dated 2.7.2012 Annexure P/3 the candidature of the petitioner was rejected. Challenging the said order Writ Petition No. 12692/2012 was filed, which was disposed on 7.8.2012 directing the IOC to consider the representation afresh in terms of the procedure prescribed for selection. While considering the representation, I.O.C. reiterating the same reason, maintained the order of rejection of the candidature and rejected the same. Being aggrieved, WP No. 21326/2012 has been filed. On rejection of the representation, the respondent IOC issued the letter of intent in favour of respondent No.2 on 13.5.2013, however, challenging the grant petitioner has preferred WP No. 15607/2013 seeking quashment of the letter of intent.
Learned counsel for petitioner contends that the land offered by respondent No.2 to I.O.C. is the disputed land, and do not confer clear title on him, which would reflect from the search and title report dated 2.2.2013 called by the IOC through their advocate. In the report exclusive possession of respondent No.2 was also not found. The I.O.C. prior to receiving the clarification regarding possession from the Patwari issued the letter of intent on 13.5.2013 arbitrarily with malafide intention. It is further contended that immediate after issuing the letter of intent the land belong to respondent No.2 offered to I.O.C. has been sold by him vide sale deed dated 22.7.2013. However, the order of rejection of the candidature of the petitioner and grant made in his favour is in complete defiance to the procedure prescribed, without application of mind and arbitrary. In support of such contention reliance is placed on the judgment of Apex Court in the case of K. Vinod Kumar vs. S. Palanisamy and others-(2003) 10 SCC 681 to contend that the
judicial review is open where the decision making process is affected by the bias of arbitrariness and contrary to the policy. Reliance has also been placed on the judgment of Apex Court in the case of Onkar Lal Bajaj and others vs. Union of India and another-(2003) 2 SCC 673 to contend that in such matters scope of judicial review is open when decision is not based on the touchstone of justice, equity and fair play. In the present case, the decision taken by the I.O.C. is without following the procedure and do not justify the said principles. Therefore, orders dated 2.7.2012 and 8.11.2012 are liable to be quashed and appropriate direction may be issued for grant of outlet retail LPG dealership in favour of the petitioner.
On the other hand, respondent I.O.C. has filed their reply without disputing the fact that the land offered by petitioner for construction of godown is owned by him, but it is not freely accessible through all weather having motorable approach road. However, after issuance of intimation in his favour, on field verification it was found, the approach road was not owned by the petitioner on the date of submission of the application form and the gift deed was of subsequent date, thus, order rejecting the candidature of petitioner has rightly been passed. It is urged, para 3 Clause 4(f) of policy is the Common eligibility Criteria, which requires that land for construction of godown will be considered suitable, if it is freely accessible through all weather motorable approach road either private or public. The committee found that the approach road to the land offered by the petitioner is not accessible. Therefore, in exercise of powers contained under Clause 12.9 and 12.10 the order rejecting the candidature and the representation has rightly been passed. In the matter of issuance of letter of intent in favour of respondent No.2 it is not disputed that the search and title report towards the land offered by respondent No.2 was sought from the advocate of Corporation, but looking to the said report and the report of the Patwari Annexure P/9 the letter of intent has rightly been issued in favour of respondent No.2, which do not suffer from any bias of arbitrariness and in conformity to
the procedure prescribed. Therefore, interference in both these petitions is not warranted.
Learned counsel appearing on behalf of respondent No.2 has supported the arguments of the counsel representing the IOC to contend that respondent No.2 is the owner of the land bearing Khasra No. 619, 620, 623, 628, 629 and 630 as is apparent from the application form and title report. Therefore, order rejecting the candidature of the petitioner and grant in his favour has rightly been order, however, this petition may be dismissed.
After hearing learned counsel for both the parties and in the facts of the present case, it is not in dispute, petitioner and respondent No.2 both submitted their application forms for grant of outlet retail LPG dealership under the Rajiv Gandhi Gramin LPG Vitrak Scheme. The petitioner in application form described that she owned the land of Kh. No. 931, 932, 936 and 938, while respondent No.2 owned the land bearing Kh. No. 619, 620, 623, 628, 629 and 630, and both belong to SC category. However, following the criteria for evaluation of the application forms of the deserving applicants, marks were awarded as per Clause 11 of the brochure. It is also not in dispute that petitioner as well as respondent No.2 both secured more than 60% marks. However, both were found eligible for the field verification where the said retail outlet was to be commissioned. As per the information sent to petitioner, field verification was carried out on 17.3.2012. The committee reported that the land offered for godown by the petitioner is not connected to approach road and the registered gift deed dated 29.2.2012 offered for the approach road was after the date of submitting his application form, however, his candidature was cancelled.
Learned counsel for the respondents lay much emphasis in case motorable approach road to the godown owned by the petitioner is not available then it would attach to the eligibility of the candidate. However, on receiving the report by the committee the order impugned has been passed. In this respect Indian Oil Corporation Ltd. has issued a brochure
specifying the procedure for selection of Rajiv Gandhi Gramin LPG Vitran Scheme. Clause 4 deals with common eligibility criteria for all categories, which is reproduced as under:- 4. Common Eligibility Criteria for all Categories:
Applicant applying for RGGLV should
(a) be an Indian citizen
(b) be a resident of the town /village(s) of the advertised RGGLV location
(c) have passed minimum Xth Standard examination or equivalent from recognized Board
(d) be not less than 21 years and not more than 45 years in age as on the date of application
(e) fulfil Multiple dealership/distributorship norm
Multiple Dealership/Distributorship norms means that the applicant or any other member of ''family unit'' should not hold a dealership/distributorship/RGGLV or Letter of Intent (LOI) for a dealership/distributorship/RGGLV of a PSU Oil Company i.e only one Retail Outlet / SKO-LDO dealership / LPG distributorship/RGGLV of PSU Oil Company will be allowed to a ''Family Unit''.
''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).
(f) have minimum total amount of Rs 2 lakhs put together from Saving accounts in Bank (as on date of application), free and unencumbered fixed deposits in scheduled banks, Kisan Vikas Patra, NSC, bonds, any other investment, etc in the name of self or family members of the ''Family Unit'' as defined above. (In case of RGGLV locations reserved under ''SC/ST'' category, applicants with less than Rs 2 lakhs are also eligible also apply). For evaluation purpose, marks will be awarded to applicants of all categories based on the amount mentioned in the application.
(g) own a suitable land (plot) of minimum 20 metre X 24 metre in dimension at the advertised RGGLV location for construction of LPG cylinder Storage Godown .
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.
Land for construction of Godown will be considered suitable, if it is freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Pipelines / Canals / Drainage / Nallahs should not be passing through the plot.
(h) be physically and mentally sound to be able to run the business
(i) neither have been convicted nor charges been framed by any Court of Law for any criminal offence involving moral turpitude/ economic offences.
(j) not be a signatory to distributorship/dealerships agreement, terminated on account of proven cases of malpractice/adulteration of any Oil Company.
For the purpose of present case, Clause (g) is relevant. First para thereof makes it clear that applicant must own a suitable land (plot) of minimum 20 meters x 24 meters in dimension at the advertised RGGLV location for construction of LPG cylinder Storage Godown. The second para explains the meaning of word "own" thereby ownership title of the property ought to be in the name of applicant/family member of the ''Family Unit'' as defined in multiple dealership/distributionship norm. In case of ownership/co-ownership by family member, consent letter from the family member will be required. It is seen the word ''own'' has been used only for the purpose of suitable land/plot. However, para-3 of Clause 4(g) indicates how the land offered for construction of godown will be considered suitable to which it is said to be freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Pipelines/Canals/Drainage/Nallahs should not be passing through the plot. However, for the purpose of motorable approach road
either public or private ought to be of the applicant. In view of the spirit of the judgment of the Apex Court in the case of K. Vinod Kumar (suspra) and looking to the Clause 4(g) it is apparent that the land required for the purpose of godown is a mandatorily required to be owned for the purpose of arranging the commercial activity and the said requirement ought to be fulfilled by the applicant. In the present case, the petitioner owned a suitable land which was offered by him. However, he was found eligible for the purpose of field verification. So far as the requirement with respect to motorable approach road is concerned it is directory looking to the language of it, and the said condition does not disqualify a person from eligibility. The aforesaid fact finds support from Clause 12 itself, which deals with selection process. The clause 12 is also relevant, however, it is reproduced as under:-
Selection Process
12.1. A Committee consisting of two Officers of the concerned Oil Company will do scrutiny of the application and award marks to the applicants based on the information given in the application
12.2. Selection will be done by draw of lot out of all eligible applicants securing minimum qualifying marks. Minimum qualifying marks is 60% for locations reserved under SC/ST category and minimum 80% marks for all other category locations
12.3. The list of ineligible applicants, eligible but not qualified applicants and qualified applicants for draw of lot will be made available on the notice board of the concerned office of the Oil Company as well as on the website of the concerned Oil Company.
12.4. All the applicants will be individually informed about the status of their application. Ineligible and eligible but not qualified applicants can representations within 15 days from the date of the letter.
12.5. Efforts would be made by Oil Company to ensure that all the representations/complaints are disposed off within 3 months.
12.6. After disposal of representations/complaints if any, all the eligible candidates who have qualified will be asked to report at a specified place on specified date and time for draw of lot. The same will be notified in the local newspapers. Each qualified candidate will be issued a token number and this token number will be recorded on his/ her application.
12.7. All token numbers will be put in an empty box in the presence of the candidates, the officials of the Company and the invited guest from amongst the local MP, MLA, Zilla Parishad, Panchayat Samiti Chairman, Sarpanch, Revenue officials etc. However, a quorum comprising of at least 50% of the candidates (whose names are there in the draw) and the concerned company officials could be sufficient to proceed with the draw of lots. The proceeding of the draw will be video graphed
12.8. One token number will be drawn out and the candidate to whom the token number was allotted will be declared as selected candidate.
12.9. Field verification will be carried out for the selected candidate 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.
12.10. In case of rejection of selected candidate due to findings in the Field Investigation or if selected candidate is unable to develop facilities for Rajiv Gandhi Gramin LPG Vitrak within the specified time, then his candidature will be cancelled and draw will be held again from the remaining qualified eligible candidates to select the next candidate following the procedure as mentioned above in para 12.3 to 12.6.
On perusal of Clause 12 it is apparent that as per Clause 12.1 the committee shall scrutinize the application and award marks to the applicants based on the information given in the application. As per Clause 12.2 if a candidate belongs to SC/ST category has secured 60% marks for the locations reserved then he/she would be selected for the purpose of field verification. As per Clause 12.3 the eligible candidate will be sorted out drawing the lots and the list would be affixed on the notice board. In furtherance thereto, the name of the petitioner has been notified being eligible for the purpose of field verification. In the present case the rejection of the candidature is based on the field verification report, however Clause 12.9 and 12.10 are relevant. According to those clauses, it is apparent that if at the time of field verification the information given in the application by the applicant is found correct, the letter of intent will be issued in favour of the selected candidate. However, the present case squarely covered by Clause 12.10, either due to findings of the filed investigation report or if selected candidate is
unable to develop facilities for Rajiv Gandhi Gramin LPG Vitarak within the specified time, then his candidature will be cancelled and draw will be held again from the remaining qualified eligible candidates to select the next candidate following the procedure as mentioned in Clause 12.3 and 12.6.
Learned counsel for the respondents lay emphasis that in case the finding has been recorded by the committee of the filed investigation, the option as available in Clause 12.10 asking undertaking to develop the facilities for the purpose of grant of distributorship under the Scheme is not required to be observed. In this regard first of all in the context of Clause 12.10 and Clause 4(g) para-3 it is to examine that para-3 of Clause 4(g) is mandatory or directory and would it affect the eligibility of the petitioner to submit the application form. Looking to the language engrafted under Clause 4(g) para-1 and 2 it is apparent that owning of land or a plot or an area as specified therein is a condition mandatory while para-3 relates to the construction in godown and its suitability for the purpose of free accessibility of the all weather motorable approach road is an essential requirement. But, the aforesaid condition is directory because it is based upon the field verification after selection of the candidate and if the selected candidate failed to make it suitable as is apparent from the spirit of the brochure and the discussion made hereinabove by not making it motorable in all weather giving undertaking. After selection of the petitioner, field verification was carried out and on report the place offered was not found connected to approach road and the private land shown by the petitioner as per gifted to him was of the subsequent date of the application though relevant date may be the date of verification. Thus looking to the said procedure the condition para-3 of Clause 4(g) is directory and it cannot be termed to be mandatory effecting the eligibility of the petitioner.
It is to be noted here that the committee has not found the land owned by the petitioner is not suitable. The committee reported that the said piece of land is not connected to approach road private or public,
and the private land offered by the petitioner to make the approach road was gifted subsequent to the date of application form. In this context Clause 12.10 attracts whereby it is clear that due to finding of the field investigation committee the candidature of the selected candidate may be rejected, or in case the selected candidate is unable to develop the facilities under the scheme of RGGL within the time specified. It is not a case wherein the field investigation committee has asked to submit undertaking to develop the land, which was not made suitable by the candidate, it is said, the land offered for approach road was gifted to petitioner after the date of application form. It is to observe, if condition of para-3 of Clause 4(g) is not found mandatory and is directory then on the date of field verification i.e. 17.3.2012 if the private land offered by petitioner for approach road is owned by him as per registered gift deed to show free accessible approach road, then it ought to be accepted, asking undertaking from him to make it motorable within time specified as per Clause 12.10, however, without giving such option passing an order of rejection of the candidature is contrary to the procedure prescribed under Clause 4(g), 12.9 and 12.10.
In view of the foregoing discussion and in the light of the judgment of the Apex Court in the case of Onkar Lal Bajaj (supra) the cardinal principle of governance in a civilized society must be based on rule of law, showing transparency if it is not made applicable then looking to the discussion made hereinabove, it can safely be held that the action of the IOC is non-judicious and unfair, partial, arbitrary and capricious, however, the decision as taken by the authority is contrary to procedure prescribed. Therefore, the decision taken by the authority is not based on applying the principle of justice, equity and fair play.
Now reverting to the point of grant of letter of intent on 13.5.2013 in favour of respondent No.2, after rejection of the candidature of the petitioner vide Annexure P/3 and P/1, it is to be noted here that the respondent No.2 has offered the piece of land in his application form of Kh. No. 619, 620, 623, 628, 629 and 630. The I.O.C. asked for search
and title report vide letter dated 16.11.2011 from their panel advocate. The search report furnished by the advocate of the Corporation is the part of record of this petition and filed as Annexure R-8. On perusal thereof, it reveals that Khasra No. 619, 620 and 623 were the part of litigation in a civil suit, first appeal and second appeal. The second appeal has been dismissed for want of prosecution to which restoration petition is pending, however, order was not passed on the restoration, therefore, it may be taken note of. Simultaneously it is pointed out that the land of Khasra No. 619, total area 0.045 Hects., out of which an area of 0.020 Hect. is in possession of one Deendayal Rajak and area 0.015 Hect. is road. Meaning thereby, the vacant land is only 0.010 hectare in Kh. No. 619. Similarly in Kh. No. 623 the possession is of one Prabhu Rajak and nothing is mentioned about Kh. No. 620, however, pointed out that as per the judgment of the trial court as well as of the first appellate court it is not clear that the respondent No.2 and the other plaintiffs were in possession of the land. In the said context it was proposed that the report may be taken regarding exclusinve possession of resondent no.2 from the revenue authority. The Corporation has not considered the same, and prior to receiving the verification report from the Patwari the letter of intent has been issued by the Corporation on 13.5.2013 although as per the report of search and title of the land, the title and possession of the respondent No.2 was not clear. However, there was no occasion to the I.O.C. to issue the letter of intent hurriedly in favour of the respondent No.2 ignoring the title and search report of their advocate. It is to be noted here that owning the land having possession is a mandatory condition for the purpose of para1 and 2 of Clause 4(g). The Patwari intimated the Corporation in the month of December regarding possession, but nothing is on record, now the title of respondent no.2 was found with him during pendency of the litigation before this Court, however, issuance of letter of intent is not proper. It is most relevant to note that out of the land, selected for the purpose of grant of outlet retail dealership of Khasra No. 619, 620 and 623 the part
thereof has been sold, subsequent to the letter of intent vide registered sale deed dated 22.7.2013 Annexure P/5 in favour of one Smt. Phoolmati wife of Sadhulal Singh. Thus in the said sequel of facts, this Court is unable to understand that looking to the search report if the litigation is pending in the court up to the stage of second appeal to which restoration is pending and the possession has also not been reported by the advocate of the Corporation then under what circumstances violating the mandatory condition of paras 1 and 2 of Clause 4(g) the letter of intent has been issued in favour of respondent No.2. More so, after issuance of letter of intent out of the said piece of land part there of has been sold by a registered sale deed dated 22.7.2013 Annexure P/5. However, in such circumstances, it can safely be ruled out that while rejecting the candidature of the petitioner, procedure as prescribed in Clause 12.9 and 12.10 has not been followed. Simultaneously while issuing letter of intent in favour of respondent No.2 the mandatory condition of para 1 and 2 of Clause 4(g) has not been observed and ignoring the same the letter of intent has been issued in favour of respondent No.5. Therefore, it is a case where process of selection in the matter of issuing letter of intent in favour of respondent No.2 is suffered from the bias of arbitrariness and in violation of the procedure prescribed and similar is in the case of rejection of the candidature of the petitioner. In that view of the matter, in my considered opinion the order impugned dated 8.11.2012 (Annexure P/1) and 2.7.2012 (Annexure P/3) under challenge in WP No. 21326/2012 are hereby quashed and letter of intent dated 13.5.2013 (Annexure P/6) under challenge in WP No. 15607/2013 is also quashed. It is to be observed here that the Corporation who is a public body is supposed to act with the touchstone of justice, equity and fair play to maintain rule of law which is not observed by them as apparent from the discussion made herein above.
Accordingly both the writ petitions succeed and are hereby allowed. The order impugned dated 8.11.2012 (Annexure P/1) and 2.7.2012 (Annexure P/3) under challenge in WP No. 21326/2012 are
hereby quashed and letter of intent dated 13.5.2013 (Annexure P/6) under challenge in WP No. 15607/2013 is also quashed. It is directed that the Corporation shall take appropriate steps for grant to petitioner in accordance with the guidelines within a period of two months from the date of communication of this order. However, in the facts and circumstances of the case, parties shall bear their own costs.