Anju Prajapat vs The Hindustan Petroleum Corporation Ltd. and Others

Arun Bhansali, J—This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the order dated 07.08.2014 (Annex.-11) issued by the respondent No. 1 - The Hindustan Petroleum Corporation Ltd. (''Corporation''), whereby the candidature of the petitioner has been rejected and the security amount of Rs. 50,000/- deposited with the Corporation has been forfeited.

The respondent-Corporation, published an advertisement in daily newspaper dated 21.09.2013 inviting applications for various locations, from eligible candidates for grant of LPG Distributorship including Bikaner-11, which was reserved for Other Backward Class (''OBC''). The petitioner applied pursuant to the advertisement; the Senior Regional Manager of the respondent-Corporation sent a communication dated 20.12.2013 pointing out certain defects in the application; it is claimed that the defect pointed out were cured and the petitioner was found eligible for allotment of LPG Distributorship and was included for draw of lots and a communication dated 21.01.2014 was sent to the petitioner for remaining present during the draw of lots scheduled for 12.02.2014, which was postponed to 28.02.2014. On 28.02.2014, the petitioner''s name was drawn and she was declared as selected candidate and a communication was issued to the petitioner requiring to deposit a sum of Rs. 50,000/- being 10% of the security amount by way of Demand Draft. Whereafter, at the instance of the respondent-Corporation, an Inspection Report was prepared by Patwari regarding the land offered for godown; the officers of the respondent-Corporation visited the site for carrying out Field Verification of Credentials (''FVC'').

It is claimed that the petitioner''s father-in-law and uncle-in-law are having 1 Bigha land each and both of them left 17''.5'''' land each from their respective plots for optimum use of the land and their family members have established their Industries along the said 35 feet wide road, which is being used for the purpose of access to the last point of both the lands, the petitioner took on lease land admeasuring 77''.6'''' x 110'' from Sohanlal Prajapat and land admeasuring 15'' x 110'' from Om Prakash Prajapat, the lessors. It is further submitted that the lessors have given consent to the effect that if the petitioner establishes a Gas godown and uses the existing 35 feet wide road constructed on their land, they would have no objection. It is claimed that after the FVC was conducted, the petitioner did not hear anything, however by order dated 07.08.2014 (Annex.-11), the petitioner''s candidature has been rejected, inter alia, on the ground that though (i) the petitioner belong to OBC Category, she did not fulfill the non-creamy layer status and (ii) the land offered for establishment for godown is not connected with all Motorable Approach Road (public road or private road of the applicant connecting to the public road).

It is, inter alia, submitted by learned counsel for the petitioner that the respondents scrutinized the application form submitted by the petitioner alongwith the documents and pointed out only one defect regarding the appropriate OBC Certificate and did not raise any objection regarding the ownership of the road leading to the godown; based on such verification, the petitioner was found eligible and was included in the draw of lots and once selected, now it is not open for the respondent-Corporation to reject the candidature of the petitioner on any ground. It is submitted that the FVC is meant for documents only and it is not the case of the respondents that the documents produced by the petitioner were not in order and, therefore, now the respondents cannot reject the candidature of the petitioner. It is further submitted that the requirement of the applicable guidelines (Annex.-R/3) submitted by the respondents, provide that in case of private road connecting to the public road, the same should belong to the applicant/member of the family unit as per the ownership criteria defined below; admittedly the land of the private road belongs to the petitioner''s father-in-law and he is a member of the family.

With reference to the definition of ''Own'' as contained in the Brochure, it is submitted that a distinction has to be made between family member and member of family unit, the definition of ''Own'' clearly provides for co-ownership by ''family member'' and not by ''member of family unit'' and, therefore, the plea raised by the respondents for negating the claim of the petitioner has no substance.

Learned counsel further submitted that the petitioner has now vide registered lease agreement dated 03.11.2014 obtained the lease of the said road also and, therefore, in any case the objection, if any, of the respondents is taken care of. Regarding the claim that the petitioner does not belong to non-creamy layer, though OBC, it is submitted that the respondents have merely assumed the status of the petitioner, irrespective of the material available on record, inasmuch as, the requirement for non-creamy layer is gross income not more than Rs. 6,00,000/- per annum and, there is no material on record for assuming the income of the petitioner at more than Rs. 6,00,000/- per annum. It is submitted that the order impugned passed by the respondents cannot be sustained and the same deserves to be quashed and set aside.

Reliance was placed on Smt. Shailaja Purushottam Choukhande v. Hindustan Petroleum Corporation Ltd. & Anr.: Writ Petition No. 2812/2014, decided by Bombay High Court on 09.10.2014 and Anil Kumar Sharma v. Hindustan Petroleum Corporation Ltd.: 2014 (3) RLW 2389 (Raj.).

Learned counsel for the respondent-Corporation vehemently opposed the submissions made by learned counsel for the petitioner. It was, inter alia, submitted that the petition involves disputed questions of fact and the writ jurisdiction cannot be invoked for the said purpose and, therefore, the writ petition deserves to be dismissed. It was submitted that in terms of the advertisement, the petitioner was required to fill the application form and attach only those documents, which were indicated in the application form as annexure and the respondents were required to scrutinize only those documents, which were necessary to be annexed with the application form and, therefore, it cannot be said that once on scrutiny, the petitioner was not pointed out the deficiency regarding the Motorable Road, the said deficiency could not be pointed out later on/form the basis for rejection of the candidature. It is further submitted that the argument that FVC was confined to examine the genuineness of the document is baseless as the officers of the respondent-Corporation are required to verify the location as offered by the successful candidate and ensure that the same fulfills all the requisite criteria and in absence whereof the respondent-Corporation is well within its right to reject the candidature. It was submitted that looking to the large number of applications, the respondent-Corporation as a matter of policy, conducts the field verification only of the successful candidates and not of all the applicants.

With reference to the requirement in the Brochure regarding the private land owned by the applicant/family unit, it was submitted that the stipulation in the Brochure is clear and unambiguous and the petitioner was seeking to distort the provisions seeking to distinguish between the land owned by family member, land owned by member of family unit, which distinction is non-existent, the applicant is required to fulfill the norms of family unit as per the Multiple Dealership or the Distributorship norms of eligibility criteria, which the petitioner has utterly failed. It is submitted that the eligibility has to be examined on the date of application and the subsequent registration of the lease in November, 2014 qua the land in question is of no consequence. It was submitted that the petitioner does not fulfill the requirement of Creamy Layer and, therefore, on that count also, the petitioner is not eligible. It was submitted that the writ petition being devote of any substance deserves to be dismissed.

Reliance was placed on Udaysingh v. Hindustan Petroleum Corporation Limited: Writ Petition No. 282/2014, decided by Bombay High Court, Nagpur Bench on 10.10.2014 and Smt. Samya Chaudhary v. Union of India & Ors.: C.M.W.P. No. 35332/2013, decided on 05.08.2013 by Allahabad High Court.

I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.

A bare look at the application form submitted by the petitioner filed as Annex.-R/2, indicates that the petitioner claimed her status as OBC and offered land for godown under Clause 9 based on registered lease deed dated 18.10.2013 and that of the show room also based on the lease deed dated 18.10.2013. As a part of the application, the petitioner is required to sign a confirmation, inter alia, indicating that the applicant was having own or leased land for godown in her name, member of family unit and the same meets the eligibility conditions including the ownership criteria as per the Clause 3(a) of the Advertisement and Clause 6.1(vii) and 6.1(viii) of the Brochure.

The relevant Clauses 6.1(vii) and (viii) alongwith the definition of ''Own'' reads as under:-

"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 M x 30 M (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 M x 30 M 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 and 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 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.

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 meters by 4.5 meter in dimension or a plot of land for construction of showroom of minimum size 3 meters by 4.5 meter as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality mentioned in the advertisement. 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 meter by 4.5 meter in dimension or a plot of land for construction of showroom of minimum size 3 meter by 4.5 meter 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 in the advertisement, the details of the same can also be provided in the application.

Reference vii & viii above:

''Own'' means having ownership title of the property or registered lease agreement for minimum 15 yrs in the name of applicant/family member (as defined in multiple distributorship norm of eligibility criteria) as on the 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)."

(Emphasis Supplied)

It appears that based on the information given in the application form, the petitioner was called upon to submit OBC Certificate in a proper format, which was submitted by the petitioner and, whereafter, she was included for draw of lots.

So far as the submissions made by learned counsel for the petitioner that once the petitioner was found eligible, on scrutiny of application forms, based on FVC, the petitioner''s candidature could not be rejected appears to be without any substance.

A bare look at the procedure prescribed in the Brochure clearly indicates that the scrutiny of the application is carried out based on information given in the application and the selection is done by draw of lots out of all eligible applicants in terms of above clauses.

Further the provisions pertaining to FVC, specifically provide for such verification of the ''selected candidate'' and indicates that the information given in the application is required to be verified with the original documents and with the issuing authorities wherever required and as per laid down procedure. There is substance in the submissions made by learned counsel for the respondent that at the stage of scrutiny of applications, the locations offered by the applicants are not examined and the declaration/confirmation given by them in the application is relied on for the said purpose and it is only on selection of the candidate that the location is verified by the respondent with regard to the requirements indicated in the advertisement and the brochure. Therefore, the submission made that once the petitioner''s name was included for draw of lots, the candidature of the petitioner cannot be rejected is without any substance and is, consequently, rejected.

Coming to the substance of the argument raised by learned counsel for the petitioner that in terms of Clause 6.1(vii) and 6.1(viii) and the definition of ''Own'', there is a distinction between the terms ''family member'' and ''member of the family unit''. A bare look at the Clauses quoted hereinbefore would reveal that the requirement specifically provides that 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) and specific stipulation further indicates that 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 norms of eligibility criteria) as per the ownership criteria defined below and further provides that in case of ownership/co-ownership by family member in respect of such private road, consent letter from the respective family member will be required. Further the word ''Own'' has been defined to mean having ownership, title of the property in the name of applicant/family member (as defined in multiple distributorship norms of eligibility criteria) and again provides that in case of ownership/co-ownership by family member as given above, consent in a form of a notarized affidavit from family member would be required.

The submission made by learned counsel for the petitioner is that under Clause 6.1(vii), there is a distinction in case of private road connecting to the public road, wherein even in case of ownership by family member in respect of such private road, consent letter from the family member is sufficient, as distinguish from the land for godown, where the same must belong to the member of family unit, and as the land of the private road belongs to the petitioner''s father-in-law, who is a family member, the rejection of candidature cannot be sustained.

The submission made by learned counsel for the petitioner, though appears to be prima facie plausible, a deeper scrutiny is without any basis. The family unit has been defined under the brochure 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)."

A look at the overall scheme pertaining to the godown and show room as contained in Clause 6.1(vii) and 6.1(viii) alongwith the definition of ''Own'' reveals that the requirement of the godown and that of the motorable approach road for such godown so far as the private road is concerned, are similar. In case the godown is connected with the public road, the situation would be different but in case the private road connects the godown to the public road, the requirement is very clear that the same should belong to the applicant or member of the family unit as defined in multiple dealership/distributorship norm of eligibility criteria, which in the present case, where the petitioner is a married person includes the applicant, her spouse and their unmarried son/daughter only and it is only by way of requirement in relation to definition of ''Own'' that it is indicated that in case of ownership/co-ownership by family member in respect of such private road, consent letter from respective family member is required. The said phrase used in Clause 6.1(vii) has to be read with the definition of ''Own'', which clearly provides that in case of ownership/co-ownership by family members ''as given above'', which clearly refers to the multiple dealership norm of eligibility criteria and, therefore, the submissions made by learned counsel for the petitioner in this regard is wholly without any substance and the same, therefore is also rejected.

So far as the plea raised by learned counsel for the petitioner that now in the month of November, 2014, the petitioner has taken the land in question on lease, the said post facto lease of the land of the private road is apparently of no consequence as in terms of Clause 6.1 (vii), the requirement is as on the last date for submission of application as specified in the advertisement, which date was long over.

So far as the judgments cited by learned counsel for the petitioner are concerned, in the case of Anil Kumar Sharma (supra), the Division Bench of this Court laid down that after the cut off date, submission of additional document though was prohibited, the clarification of documents co-related with the documents already on record was not prohibited has apparently no application to the facts and circumstances of the present case.

The judgment of Bombay High Court in the case of Smt. Shailaja Purushottam Choukhande (supra), turns on its own facts, wherein in the peculiar facts and circumstances of the case and in view of the fact that the guidelines had changed in the year 2013 as the lease deed were sought of 15 years, and the respondent-Corporation therein itself was under confusion the relief was granted, also has no application to the circumstances of the present case.

The judgment cited by learned counsel for the respondent in the case of Udaysingh (supra), it was held that the applicant being married could not furnish the documents of title of his parents as his parents did not fall in family unit as defined. In the case of Smt. Samya Chaudhary, the Allahabad High Court, after noticing the submissions similar to what have been made by counsel for the petitioner that the fact that the petitioner therein was not having registered lease deed of the show room on the date of application, the aforesaid discrepancy was never brought to her knowledge, after considering the various submissions made in this regard, held as under:-

"27. In the instant case as well, during the field verification, it was found that though the petitioner in her original application under item No. 10 had conveyed an impression of being in possession of a registered lease deed dated 21.11.2011 but on verification from the original title documents, it transpired that declaration made in this regard is incorrect as the petitioner was not having registered lease deed but only a notarized one. Thus, there was clear misrepresentation as regards facts mentioned under Item No. 10 of the application form. Promissory estoppel is a doctrine of equity, and in the instant case, there is no equity in favour of petitioner being herself responsible for conveying a false impression of having a registered lease-deed. Further, the verification of title is at the stage of field verification of credentials and not at the time of scrutiny of the application and, therefore, there is no question of estoppel coming in the way. Moreover, having registered lease deed on date of application, was a mandatory eligibility criteria and can in no case be relaxed as it renders ineligible the petitioner''s candidature and, therefore, estoppel cannot be pressed. The petitioner cannot be awarded dealership though she does not meet the minimal eligibility criteria. In case, the contention of the petitioner is accepted, it will cause injustice to other eligible candidates and will result in perpetrating a wrong. Therefore, the contention of the petitioner based on doctrine of estoppel is not sustainable in law."

Recently, Hon''ble Supreme Court in Bharat Petroleum Corporation Ltd. & Anr. v. Meet Kalhar SLP (C) No. 2611/2015, decided on 28.08.2015, on the issue of family unit and guidelines and parameters prescribed in this regard by the Oil Companies, held as under:-

"6. The appellants in the counter affidavit filed before the High Court had stated that the respondent-writ petitioner is a married person and as such the joint account in the Oriental Bank of Commerce standing in his name and in the name of his brother Ankur Kalhar cannot be considered for the purpose of award of L.P.G. Distributorship inasmuch as under clause 7.1(iv) ''Family Unit'', as defined, in case of a married person shall consist of the individual concerned, his/her spouse(s) and their unmarried sons(s)/daughter(s). It is only in case where the applicant is an unmarried person that the ''Family Unit'' can include an unmarried brother or an unmarried sister.

The High Court in the impugned order took the view that as the issue of joint account and acceptance thereof had not been mentioned in the order dated 23rd March, 2013 rejecting the application of the respondent-writ petitioner, the validity of the order impugned in the writ petition has to be necessarily judged on the basis of the reasons given and such reason cannot be enlarged or supplemented. The High Court also took the view that in any event the joint account in the name of the respondent-writ petitioner and his brother did not run contrary to the provisions of clauses 7.1(iv) and 7.1 (v) and that the Guidelines have to be understood by application of the principles of purposive interpretation having regard to the underlying objective thereof.

There can be no manner of doubt that the appellant as the grantor can lay down guidelines and parameters on the basis of which application(s) for grant of distributorship is to be considered. So long such guidelines and parameters are not found to be unreasonable or ex facie irrelevant the appellant would have the right to insist on compliance thereof. In the present case, clauses 7.1(iv) and 7.1(v) of the Guidelines were not under challenge in the writ petition filed. The said guidelines lay down the requirements as to availability of finance in the hands of the applicant making an application for grant of distributorship. The finance shown to be available could also be held jointly with the members of the family as defined in the guidelines. In this regard, it will be required to notice that the definition of ''Family'' has been spelt out by the guidelines depending on the marital status of the applicant. If the applicant is a married person the definition of family unit in clause 7.1(iv) of the Guidelines does not take within its fold an unmarried brother or sister. Not only the legality and legitimacy of the said conditions have not been put to challenge in the writ petition, even otherwise, we do not find the same to be either unreasonable or irrational. We, therefore, have to be hold that it was within the domain of the appellants, as the grantor, to lay down such conditions. Admittedly, the respondent-writ petitioner did not satisfy the laid down conditions inasmuch though he is a married person he had indicated the availability of the required funds in a joint account in the Oriental Bank of Commerce which he held with his brother. The reasons recorded in the order of rejection dated 23rd March, 2013 have to be necessarily understood in the above context in which even it must be held that the same was in conformity with the laid down parameters. The High Court, therefore, was wrong in setting aside the said decision of the appellant and in allowing the writ petition filed by the respondent. Consequently, we allowed this appeal; set aside the order of the High Court of Allahabad and uphold the order dated 23rd March, 2013 passed by the appellant herein."

In view of the above, while the judgments cited by the petitioner are not applicable to the present controversy, the judgments cited by the counsel for the respondents and the law laid down by Hon''ble Supreme Courts covers the issues involved.

So far as the second ground given by the respondents regarding the petitioner not fulfilling the non-creamy layer status is concerned, the petitioner based on the requirements raised by the respondent-Corporation had produced the required affidavit, indicating her status as belonging to the OBC and that she does not belong to the persons/sections (creamy layer).

From the submissions made by the respondents, it appears that without any specific material either sought or obtained by the respondents, the above conclusion has been arrived at by indicating in the reply that the joint income of both the petitioner and her husband taken together exceeds Rs. 6,00,000/- per annum meaning thereby financially the petitioner and her family were strong and stable in any manner and would enough to fall within the definition of creamy layer. The submissions made in this regard are apparently without any foundation and there is substance in the submissions made by counsel for the petitioner that such the reason has been indicated without any basis.

In that view of the matter so far as the ground given by the respondents for holding the petitioner as not fulfilling the non-creamy layer criteria is concerned, cannot be sustained and the same is, therefore, set aside.

So far as the forfeiture of a sum of Rs. 50,000/- deposited by the petitioner with the respondent-Corporation is concerned, Clause 10(c) of the Brochure (Annex.-R/3) submitted by the respondent-Corporation reads as under:-

"10. FIELD VERIFICATION OF CREDENTIALS (FVC)

c. If in the FVC it is found that information given in the application is at variance with the original documents and that information affects the eligibility of the candidate, then a letter would be sent by Registered Post AD/Speed Post pointing out the discrepancy. Candidature of selected candidate in such a case will be canceled and 10% of applicable security deposit remitted by the selected candidate before FVC will be forfeited if false/incorrect/misrepresented information has been given in the application."

A look at the above provision reveals that it is only 10% of the applicable security, which is liable to be forfeited and not the entire sum and, therefore, the action of the respondents in forfeiting the entire security money of Rs. 50,000/- also cannot be sustained.

In view of the above discussion, though the action of the respondents in holding the petitioner ineligible on account of not fulfilling non-creamy layer criteria cannot be sustained and further the forfeiture of the security amount to the extent of Rs. 50,000/- also cannot be sustained, however, in view of the fact that the petitioner was not meeting the requirement regarding all weather motorable approach road on account of the same being privately owned, but not belonging to her family unit, the rejection of petitioner''s candidature is upheld.

Consequently, the writ petition filed by the petitioner is partly allowed. While the rejection of the petitioner''s candidature vide Annex.-11 only on account of godown land not meeting the requirements is upheld, the respondents are directed to refund a sum of Rs. 45,000/- out of the security deposit to the petitioner within a period of three weeks from the date of the order.

No order as to costs.