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Judgment
The petitioners have preferred this writ petition
assailing the action of the Hindustan Petroleum Corporation
Limited (hereinafter referred to as ''the HPCL'') issuing a Letter of
Intent (in short, ''the LOI'') to respondent No.4, a candidate from
SC category, for setting up a retail outlet of petrol/diesel on the
land bearing Khasra No.114/2/1 at Village Pahadi, Tehsil Newai
which belongs to them and had been leased out to the HPCL. It is
claimed by the petitioners that if at all the respondents had to
allot the retail outlet to some other person, it should have been
allotted to petitioner No.3, who is the co-owner of the land falling
in physically handicapped woman category belonging to OBC.
The brief facts of the case are that the respondent-
HPCL in the first stage had issued an advertisement on
01.06.2001 inviting applications from the land owners for offering
the land on lease or one time purchase for the purpose of
establishment of retail outlet at various districts in Rajasthan. The
petitioners had offered their land and a lease agreement had been
entered into between the HPCL and the petitioners which provided
that the land shall be used for the purpose of establishment of
petrol pump/retail outlet and there was a condition also in the said
lease agreement that the lessee shall be at liberty to license, or
sublet or underlet or part with possession of the demised premises
or any part thereof for use for all or any of the purposes aforesaid,
without the consent or concurrence of the lessor. The agreement
was entered into on 27.05.2002. In pursuance of the said
agreement, the land was handed over to the HPCL which started
their own retail outlet and petrol pump on Company-Owned-
Company-Operated (COCO) basis.
The dispute started only when the advertisement was
issued again by the HPCL on 02.12.2005 mentioning retail outlets
at various places to be allotted category-wise in Udaipur region
and Jaipur region. In the area which falls under Udaipur region, as
many as 158 retail outlets were advertised. Although the specific
retail outlet at Village Pahadi in Newai, District Tonk was not
mentioned but it was mentioned at Item No.44 about a retail
outlet at Newai in District Tonk, which was reserved for SC
category and also mentioned that it shall be developed by the
company under the company ownership. From the perusal of the
advertisement, it is also seen that there were other places which
had been categorised for physically handicapped woman, for SC
woman and other categories too.
The contentions of the learned Senior Counsel
appearing for the petitioners in the aforesaid facts are twofold.
Firstly, it is contended that the advertisement was wholly vague
and did not specify the area where the petitioners had leased out
their land for the purpose of petrol pump in Village Pahadi, Teshil
Newai, District Tonk. It is submitted that in the earlier
advertisement by which they had earmarked the area in District
Tonk, it was specifically mentioned that they wanted a land in
Newai on NH-12 within 5 kms. range. He has also taken this Court
to the advertisement of 2005, wherein in other different places the
proposed retail outlet has been specified to the extent of even
range of 1 km. or at least the village has been specifically
mentioned where the proposed retail outlet shall be established,
however for Newai this aspect was completely absent. More so the
locations reserved for SC/ST persons in the advertisement
released by the HPCL on 02.12.2005 would show that out of total
166 retail outlets, 46 had been reserved for SC/ST category, which
was far too excessive. It is stated that as per the respondents''
own policy of allotment to reserved category persons, only 25% of
the total number of retail outlets proposed, could be for reserved
category and the same could not have been for 28%, which is far
too excessive.
It is submitted further that there is no such provision of
quota for SC/ST candidates which can be continued from one year
to another on roster basis. It is submitted that although they may
not challenge the reservation for SC category with regard to retail
outlets, but it is submitted that such a provision is not available
under the Constitution and at best can be said to be a policy
decision of the HPCL which does not have any statutory force.
Thus, when there was a physically handicapped person belonging
to woman category available for the site and had claimed taking
into consideration that there is already a policy of land owner
being allotted the petrol pump, petitioner No.3 ought to have been
granted the LOI for the land belonging to her to start the retail
outlet.
Learned Senior Counsel further submits that a
preferential right is available to the petitioner with regard to doing
of business of self employment once she is ready to perform the
said work and no other person could have been considered
depriving her right. However the respondents'' action has resulted
in deprivation of self employment to a physically handicapped
woman.
It is further submitted that the SC category petrol
pumps were otherwise available without there being any claim
from the landowners and petitioner No.3 has been denied her
claim wrongfully. It is contended that there is no equitable
distribution and when she submitted her representation and no
action was taken, she approached this Court by filing a writ
petition before this Court. This Court by way of order dated
02.02.2006, directed the respondent-HPCL to consider the
representation of the petitioner but when she was not
communicated about the decision and the LOI was being issued to
respondent No.4, she has preferred this writ petition.
The second submission of the petitioners is with regard
to choosing the discretion exercised by the respondents in
earmarking the sites for the SC/ST persons. It is submitted that
while in Jaipur region there was not even a single site earmarked
for SC category, it is only in Udaipur region that sites had been
earmarked for different reserved category persons. However it is
submitted that no valid and cogent criteria for earmarking the
sites for the petrol pumps has come forward. No reasons have
also come forward to show as to why the site at Newai has been
earmarked for SC category alone and not for physically disabled
woman category. Thus it is submitted that the action of the
respondents is arbitrary and any allotment which may have been
done on the said basis deserves to be set aside.
Learned Senior Counsel for the petitioners has also
relied upon a judgment of the Delhi High Court in Writ
Petition(C) No.358/2007, dated 16.01.2007, wherein it was
held as under:-
"The only question to be considered is as to whether the petrol pump located on the land of petitioner no.1 and being run by petitioner no.2 can be assigned or transferred to any third party by the Oil Company on the land of petitioner no.1 without the consent of petitioner no.1. Indisputably the answer to this question would be in the negative. The Oil companies are free to deal with their contract in accordance with law but cannot assign the running of the petrol pump to a third party on the land of petitioner no.1 without the consent of petitioner no.1. This is so as the land of a citizen cannot be taken away except in accordance with law."
Learned Senior Counsel has also relied upon the
brochure issued by the HPCL dated 01.11.2004, which provides for
reservation only upto 25% for SC/ST candidates. However the
ratio of SC/St has not been provided therein and thus the
discretion vested with the HPCL has been exercised wrongfully.
The respondents-HPCL have submitted their reply and
it is contended that the terms and conditions of the lease
agreement clearly provided that the petitioners would not, in any
manner, assail with regard to subletting of the land to third party.
Relying upon the condition noted above, it is further submitted
that such condition incorporated in the agreement was clearly
stipulated in the advertisement dated 01.06.2001 itself. Hence,
now the petitioners do not have a locus standi to challenge the
selection of respondent No.4 and at their instance the writ petition
would not be maintainable. It is further submitted that preferential
right is not a right and there has been no contravention of legal or
fundamental right. Thus the writ petition under Article 226 of the
Constitution of India would not be maintainable and the same may
be dismissed.
It is further submitted that the site at Newai in District
Tonk was reserved for SC category. The decision to reserve a
particular location for a particular category vests with the HPCL
and they are the persons who have the expertise to decide which
retail outlet should be allotted to a particular category. It is further
contended that allotment of retail outlet under the reserved
category is the policy of the Government and the respondents
being a Government of India enterprise are bound to follow the
said policy. There is roster laid down in the various locations for
which no particular person has any say. The candidates of SC/ST
category are not assessed on the parameters of providing land
and infrastructure as well as the finance. The HPCL ensures
handing over of retail outlet to the candidates of SC/ST category
for locations which are complete with all facilities and
superstructure including the land. For this purpose, a Corpus Fund
Scheme is applicable. Learned counsel also relies upon a circular
dated 30.11.2005 issued in line with the direction of MOP & NG
directing that all the existing retail outlets being run as COCO or
on ad hoc basis to be allotted to the candidates of SC/ST category.
It is further submitted that respondents-HPCL were not
obliged to provide land and infrastructure to candidates of
physically handicapped category, thus fully developed petrol
pumps can only be earmarked for SC/ST category and not for
physically handicapped category. No impression was given to the
petitioners while taking their land on lease that they would be
later on allotted the LOI for setting up the petrol pump. It is
further stated that HPCL has not granted dealership to the
landlord just because he had offered his land either on lease or
outright to sale to Corporations. The decision was already taken
on the representation and it was informed that the company policy
dated 01.11.2004 which was relevant for landlord link for retail
outlets was withdrawn vide letter dated 27.12.2004 and therefore
it could not materialised. As regards respondent No.4 who was
allotted the said retail outlet is concerned, it is submitted that he
was placed at No.1 in the merit. In the circumstances, it has been
prayed that the writ petition may be dismissed.
Learned counsel appearing for respondent No.4 has
adopted the same arguments and has further stated that no right
was available much less preferential right of the petitioners to get
the retail outlet at Newai as the advertisement did not relate to
the said category.
After taking into consideration the submissions of
learned counsel for both the sides, it is seen that the
advertisement dated 02.12.2005 lays down category-wise sites for
different places and districts in Rajasthan. However the
respondents have not been able to explain as to how and in what
manner the roster had been applied for reservation to SC/ST,
physically handicapped and other categories of reserved persons
with regard to different sites.
A look at the various sites in one district would show
that in Ajmer district while two sites have been reserved for SC
category, other sites are for open and for woman. In Udaipur
district, two different villages have been shown to be allotted retail
outlet for different categories, however criteria for such an
allotment has not been clarified. Though in reply, it has been
stated that the HPCL shall be developing a fully developed site for
SC/ST candidates, whether all the sites which have been
earmarked were already full developed before being earmarked
under the advertisement dated 02.12.2005 is not asserted.
Apparently, there is much room for discretion with the authorities
in allotting the retail outlet, which leaves a room for arbitrariness
and nepotism which breeds corruption at large.
Coming to the facts of the case, the advertisement also
does not show the specific site at Newai while at other places a
specific cite was given. No reasons have come forward to counter
this submission raised by the petitioners except to the extent that
the petitioners were having knowledge that the site at Newai is
the one which had been taken on lease from the petitioners. The
petitioners were claiming that the site which was shown to be on
their land should be allotted to them for the purpose of starting
the retail outlet. They were also ready to abide by the conditions
of the Corporation but as has been submitted by the respondents,
they reserved it for SC category as it was fully developed site of
the HPCL which could be given over to a SC candidate as per their
own policy.
So far as the submission of the learned counsel for the
petitioners regarding excessive reservation for SC/ST category in
regard to allotment is concerned, the same also does not have
force. The brochure dated 01.11.2004 which provides for
reservation only upto 25% for SC/ST candidates, can only be said
to be guidelines, however a departure therefrom, would not create
any right as the guidelines do not have any statutory force. A
preferential right for claiming a site to a physically handicapped
person, is also not made out, more so when the criteria for
allotment of retail outlet to SC/ST candidate is after completing all
facilities and superstructure including the land. Clause headed in
the lease deed appears to be for such purposes only.
This Court does not find that there is anything wrong in
the decision of the respondents in allotting a particular site which
was fully developed to a SC/ST category person. The policy
decision which has been placed on record and the Circular dated
30.11.2005 are not subject matter of challenge by the petitioners.
All the more the conditions in the lease deed clearly
gave the HPCL an exclusive power to allot, assign or sublet the
site to any other person and merely because the petitioners
claimed preference it being their own land, does not create any
right in favour of the petitioners. If the petitioners were interested
to have a retail outlet, they could have very well incorporate such
a condition at the time of giving out their land on lease to the
HPCL as it is at that time only i.e. 2001, that the petitioners knew
that their land would be used for the purpose establishment of a
retail outlet. It does not concern whether the retail outlet is given
to ''A'', ''B'' or them. Had the site been in open category site,
perhaps the petitioners may have had a preferential claim,
however as it was a reserved site and has already been allotted
ultimately to a reserved category candidate, no right can be said
to have been infringed.
Consequently, the writ petition being devoid of merit is
dismissed.