Niranjan Kisan vs Union Of India & Others

Mohammad Rafiq, CJ.

This writ petition has been filed by the petitioner-Niranjan Kisan challenging the order dated 28th December, 2017 (Annexure-7) passed by the

opposite party No.4-Territory Manager, Sambalpur LPG Territory, Bharat Petroleum Corporation Ltd., whereby the candidature of

the petitioner for allotment of GAS LPG Distributorship for the location at Teleibani, Bargadia in Deogarh district has been rejected on account of his

failure to provide a suitable land for LPG Godown.

The facts of the case are that in the month of July, 2016 the opposite party No.1 issued Unified Guidelines for selection of LPG Distributors. On

16.11.2016, an advertisement was published in daily Odia “The Sambad†for selection of Liquefied Petroleum Gas (LPG) Distributors in the State

of Odisha by fixing 16.12.2016 as the last date of submission of application. In the advertisement, applications were invited for LGP distributorship of

three different companies namely; Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd. and Hindustan Petroleum Corporation Ltd., giving

details of distributorship areas, as well as reservation of different categories. Subsequently, a corrigendum was published extending the last date of

submission of application to 03.02.2017. Pursuant to the above advertisement, the petitioner, being a Scheduled Tribe candidate, submitted his

application for Bharat Petroleum Corporation Ltd., Gramin LPG Distributorship of Tileibani, Baragadia, Bileighati under Deogarh District. On receipt

of the application, the opposite parties scrutinized the documents of the petitioner along with those or the other candidates. The opposite party No.3-

Head LPG DSB, Bhubaneswar by letter dated 02.06.2017 informed the petitioner that he was selected by draw of lottery for Gramin LPG

Distributorship in terms of Clauses 14 and 15 of the Guideline issued by the opposite party No.1 for selection of distributorship. The petitioner was

therefore asked to be personally present along with photo identity card issued by any department of Government at 11 am on 16.06.2017 at the office

of opposite party-Bharat Petroleum Corporation, LPG Filling Plant-33, Industrial Estate, Khurda. Accordingly, the petitioner attended.

Learned counsel for the petitioner contended that as per Clause 15.7 of the Guideline, the petitioner deposited 10% of the security money @

Rs.20,000/- by way of demand draft on 21.06.2017. The opposite party No.5 on 09.07.2017 by an e-mail message informed to the petitioner to

produce certain documents within the stipulated time for Field Verification of Credentials (FVC) as per Clause 16 of the guideline. The petitioner on

13.07.2017 submitted the following documents as per e-mail of the opposite party No.5:

“i) Notarized Affidavit by the applicant as per Appendix-I (attached, page 56, 57)

ii) Self Attested Copy of Proof of date of birth i.e. â€" School Leaving Certificate/Birth Certificate/Passport/PAN Card

iii) Self Attested Copy of Proof of educational qualification i.e. â€" Self Attested Copy of Certificate of passing X Std. or equivalent.

iv) Notarized Affidavit as per Appendix-2/Notarized Affidavit as per Appendix-4 if applicable. (attached, page 58, 59)

v) Self Attested Copy of Land documents : Documents pertaining to land/godown/showroom in the name of applicant or member of ‘family unit’. Registered

Sale Deed/Gift Deed/Lease Deed (15 yrs minimum/Mutation and Government record.

vi) Notarized Affidavit by the applicant as per Appendix-P1B (attached)

vii) Self Attested Copy of P1A (attached)â€​

 On 01.08.2017, the opposite party No.5 issued a letter to the petitioner asking him to provide details of the alternative land for Gramin LPG

Distributorship as the land shown by the petitioner in the application could not be accepted since the lease deed was not registered in his favour on the

last date of submission of the application. The petitioner however produced the lease deed dated 06.07.2017, which was subsequent to the last date of

submission of application i.e. 03.02.2017. In spite of the above fact and without giving any opportunity of hearing, the opposite party No.4 has by

another letter dated 28.12.2017 (Annexure-7) rejected the candidature of the petitioner. Hence, this writ petition.

Mr. Jashobanta Dash, learned counsel for the petitioner has argued that the petitioner was selected as per Clause 15 of the Guidelines by way of

drawal of lottery and accordingly, as per Clause 15.7 of the said Guideline, he deposited 10% of the security money by way of demand draft. The

petitioner had submitted agreement of lease dated 24.12.2016 along with the application form. After being selected, the petitioner produced the lease

deed dated 06.07.2017 of the same land, which was valid for a period of 15 years starting from 06.07.2017 to 05.07.2032. All these documents are

available on record for perusal. The opposite parties are now estopped from canceling the selection of the petitioner. Learned counsel submitted that

he fully satisfies the requirement of Clause 7.1(A)(12) of the Guidelines read with Clause 16.4 of the said guidelines.

Learned counsel for the petitioner in support of his argument has relied upon the judgment of Supreme Court in the case of K. Vinod Kumar Vs. S.

Palanisamy and others, reported in AIR 2003 SC 3171. Referring to paragraph-8 thereof, he submitted that the Supreme Court in that case has clearly

held that the guidelines appear to be in the nature of general instruction and are only directory in nature. In the present case also; therefore, the above

condition cannot be held to be mandatory, particularly when the petitioner has already been selected.

Per contra, Mr. Srinivas Patnaik, learned counsel for the opposite party Nos. 2 to 5 submitted that there were in total 16 candidates for selection of

Gramin LPG Distributorship at the location of Tileibani, Baragardia, Bileighati under Deogarh district of Odisha. This location was reserved for ST

category. It is contended that out of 16 candidates, 14 were found to be eligible and the selection was therefore made by draw of lots. The petitioner

was the applicant under ST category for award of distributorship. In the application form submitted by the petitioner-applicant at column No.5, the

information was required to be given in respect of the details of plot of land for construction of LPG godown or constructed LPG godown (in and

within 15 Kms from municipal/town/village limits of the advertised location owned or registered lease for minimum 15 years in the name of the

applicant/member of “family unit†as on or before the last date of submission of the application form in view of the conditions stipulated either in

the advertisement or in the corrigendum (if any) and the same is required to be verified during field verification. As per clause 16 of the guidelines,

there were various discrepancies as included in the letter dated 01.08.2017. The petitioner produced the record in respect of Khata No.87/100, Plot

No.4751177, Mouza-Kailash, Dist-Deogarh for construction of godown/showroom for the distributorship. This was submitted along with the

application form only by way of Notarized Leased Agreement dated 24.12.2016 but the lease deed was not registered in favour of the petitioner as on

the last date of submission of the application, as specified in the advertisement or corrigendum as required under the guidelines. The registration of the

lease deed in favour of the petitioner was done on 06.07.2017. Despite the aforesaid fact, the Field Verification Committee (FVC) keeping in view of

the selection guidelines 2016 and the principles of natural justice, gave another opportunity to the petitioner to provide alternative land for

godown/show room as per guidelines in the name of the applicant/member of the “family unitâ€, as on last date of submission of application as

specified in the advertisement or corrigendum i.e. 03.02.2017 within 15 days by way of letter dated 01.08.2017. In response to the aforesaid letter

dated 01.08.2017, the petitioner submitted his reply vide letter dated 16.08.2017 stating that he does not have the alternative land as per selection

guidelines for LPG Distributorship. It was, therefore, the opposite parties have issued the impugned order dated 28.12.2017 (Annexure-7).

In support of his argument, learned counsel for the opposite parties relied upon the judgment of the Allahabad High Court in the case of Smt. Samya

Chaudhary vs. Union of India decided on 05.08.2013 in Writ C. No.35332 of 2013. He also cited the judgment of the Supreme Court in Special Leave

Petition (C) No.37479 of 2016.

We have given our anxious consideration to the rival submissions and perused the materials on record.

Clause-7.1(A)(12) and Clause 16.4 of the Guidelines, relevant for the purpose of deciding the present case, are for the facility of reference

reproduced hereunder:

“7. Eligibility Criteria for Applicants.

xx                                                     Â

              xx                                      Â

                             xx

7.1(A) 12. ‘Own’ a plot of land of minimum dimensions specified below for construction of LPG godown or ‘Own’ a ready LPG cylinder storage

godown as on the last date for submission of application as specified either in the advertisement or corrigendum (if any).â€​

xx                                                     Â

              xx                                      Â

                             xx

16.4. During the FVC process, in case land mentioned by the applicant for godown/showroom in his application is found not meeting the eligibility

conditions/requirements as stipulated in the advertisement/brochure/application form and if the applicant is having any alternate land in his name/member (s) of

the family unit as per the definition of family unit for land of the applicant with date of registration on or before the last date for submission of application as

specified either in the advertisement or corrigendum (if any), the same can be considered. However, the same if considered has to be duly verified for its suitability

during the FVC. In case at the time of FVC, it is found that the all weather motorable road providing access to the Godown land is not available or if the

candidate expresses his/her inability to ever provide the same, the candidate can offer an alternate land meeting the eligibility criteria. Such alternate land if

considered has to be duly verified during the FVC for its suitability for providing LPG godown and showroom facility as mentioned hereinabove.â€​

As would be evident from the above, the eligibility criteria have also been enumerated in Clause 7 of the Guidelines, which speaks about

“Specific Eligibility Criteria for Showroomâ€. According to Clause 7.1(A)(12), the applicant should ‘Own’ a plot of land of minimum

dimensions specified therein for construction of LPG godown or ‘Own’ a ready LPG Cylinder storage godown, as on the last date for

submission of application as specified either in the advertisement or corrigendum (if any). In the advertisement dated 16.11.2016, the last for

submission of application form was on 16.12.2016 but it was subsequently extended to 03.02.2017 by way of corrigendum issued by the opposite

parties.

This controversy was considered by the Allahabad High Court in Smt. Samya Chaudhary (supra). In para-28 of the judgment, the Court held that 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 the facts mentioned under Item No.10 of the

application form. Argument of promissory estoppel on the basis of selection raised by the petitioner in this case was repelled by the Court. It was held

that promissory estoppel is a doctrine of equity, and in the instant case, there is no equity in favour of the petitioner being herself responsible for

conveying a false impression of having a registered lease-deed. It was further held that the condition of registered lease deed on the date of

application cannot be relaxed as it renders ineligible the candidature of the petitioner, therefore, estoppel cannot be pressed.

Another judgment rendered by Allahabad High Court was challenged before the Supreme Court in Special Leave Petition (C) No.37479 of 2016,

wherein also this very question was considered in the context of allotment of dealership. The following observations made by the Supreme Court

contained in order dated 04.10.2019, are self explanatory:

“Clause 6H (iii) explains ‘own’ to mean having clear ownership title of the property in the name of the applicant, or in the name of family members of

the ‘Family Unit’ of the applicant as defined in multiple dealership/distributorship norms, or land belonging to parents and grandparents (both maternal

and paternal) of the applicant, as on the last date for submission of applications as specified in the advertisement or corrigendum (if any) in case of

ownership/co-ownership) by family members.

Admittedly, as on the last date for submission of applications in terms of the advertisement referred to above, the petitioner did not own land as required. The

petitioner only had an agreement for sale in her favour. It is well-settled that execution of a sale agreement does not transfer ownership/title. Ownership can only

be acquired by a registered deed of conveyance. The petitioner was not eligible as on the last date for submission of applications.

Counsel appearing on behalf of the petitioner strenuously contended that a deed of conveyance has since been executed and the petitioner is now the owner of

the land. However, it is not disputed that as on the relevant date, that is the last date for submission of applications, the petitioner was not the owner of the land.

The High Court cannot, and rightly did not, in exercise of power under Article 226 of the Constitution of India, relax the terms and conditions of a tender notice.

Such relaxation would be patently discriminatory, for it would then be open for other applicants ineligible on the last date for submission of applications to

contend that, they could have acquired eligibility subsequently.

Perusal of the afore-quoted observation of the Supreme Court would clearly show that as per the relevant provisions provided in the Guidelines, a

candidate/applicant should ‘Own’ a plot of adequate size. The petitioner did not own land as required. It is well settled that execution of a sale

agreement or agreement for lease does not convey title/leasehold rights which can only be acquired on the basis of duly registered deed of

conveyance/lease deed. The petitioner was not thus eligible on the last date of submission of application. The High Court cannot exercise power under

Articles 226 of the Constitution to relax the terms and conditions of a tender notice. Such relaxation would be patently discriminatory, for it would then

be open for other applicants ineligible on the last date for submission of applications to contend that they could have also acquired eligibility

subsequently.

The Calcutta High Court in the case of Chhanda Koley vs. Bharat Petroleum Corporation Limited & Others, decided on 13.09.2018 in C.A.N.

No.809 of 2018 in MATA No.127 of 2018, has also considered Clause 7.1 of the guideline issued in 2011 which similarly provided that the applicant

should own a plot of land of adequate size (within 15 km from municipal/town/village limits of the located offered in the name of same State) for

construction of godown for storage of 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application as was done

in the present case. According to the industry note dated November 14, 2011, it was contended that if the land mentioned in the applications was

subsequently notified for acquisition or if any statutory restrictions were imposed, the candidate could be allowed to arrange for an alternate plot of

land. As per the circular dated 15.04.2015 issued by the Government of India, Ministry of Petroleum and Natural Gas, candidates were given an

opportunity to offer alternate land and the guidelines were made somewhat flexible. According to the said circular, the land originally offered in the

application should meet all the specifications laid down by the advertisement, on the basis of which the LOI had been issued. It was held that if the

land offered in the application did not meet the specifications laid down in the advertisement, then the request of the candidate to offer alternate land

could also not be entertained.

In course of argument, learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of K. Vinod kumar (supra).

In para-2 of the said judgment relevant clause (g) of the conditions in that case was reproduced. It has been stated therein that the applicants should

furnish, along with the application, details of land for godown facilities which he/she may make available for the Distributorship. It was further

provided that if an applicant, after selection is unable to provide the land indicated by him/her earlier, within a period of 2 months, the allotment of the

BHARAT GAS Distributorship made to him/her would be cancelled. The Supreme Court in para-8 of the said judgment in view of the wordings of the

above clause held that the requirement for submitting relevant documents is not mandatory but satisfying the requirement at the stage of making the

application is only directory. The particulars of such land can be made available even subsequent to the filling of the application and even may be

subsequent to the selection. Such is not the wording the relevant Guidelines in the present case.

In view of the above decision, we do not find any merit in the writ petition, which is liable to be dismissed. Accordingly, the writ petition stands

dismissed with no order as to costs.

As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High

Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated

25.03.2020.