1

A F R

Reserved

Court No.4

Case :- WRIT - C No. - 36047 of 2016

Petitioner :- Ram Autar

Respondent :- Union Of India Through Its Secretary

Petroleum And 2 Ors.

Counsel for Petitioner :- Birendra Singh,P.K. Singh

Counsel for Respondent :- A.S.G.I.,Ghan Shyam,Rajesh

Kumar Jaiswal,S.C.,Vikas Budhwar

Hon'ble Bala Krishna Narayana,J.

Hon'ble Prakash Padia,J.

Per Hon'ble Prakash Padia,J.

1.Heard learned counsel for the petitioner.

2.Sri R. K. Jaiswal learned counsel has accepted

notice on behalf of respondent no. 1 and Sri Vikas

Budhwar, learned counsel has put his appearance on

behalf of respondent nos. 2 and 3.

3.Sri Ghanshyam, Advocate, has filed an application

for impleadment on behalf of newly added respondent

Smt. Jyoti Yadav w/o Sri Prashant Kumar Yadav.

4.The petitioner has preferred the present writ

petition challenging the order dated 09.07.2016 passed

by the Chief Regional Manager, Hindustan Petroleum

Corporation Limited, 85/4, Ispat Bhawan 3

rd

Floor,

Sanjay Place, Agra/respondent no. 3 with further prayer

to issue a mandamus commanding the respondents,

specially respondent no. 3 to include the application of

the petitioner in the forthcoming lottery draw for

selection of retail outlet of Hindustan Petroleum

Corporation for the location in question namely

Faizabad Shamshabad Road KM. Stone between 2 and 4

District Farrukhabad under the OBC category.

5.Facts in brief as contained in the writ petition are

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that an advertisement was published by the respondent

corporation on 13.10.2014 inviting applications from

interested persons in respect of grant of retail outlet

distributorship for various locations including the

location in question.

6.It is contended in the writ petition that the

petitioner is OBC category candidate. He applied on a

prescribed form for the retail outlet in question. In this

regard the petitioner had taken land on lease for a

period of 30 years from one of the co-sharer of Khata

No.356, Khasra No.202 area 0.9590 hectare situated in

Village Khanpur, Pargana-shamshad, Tehsil Kayamganj,

District Farrukhabad.

7.The application form submitted by the petitioner

was duly examined by the respondent no.3/Chief

Regional Manager, Hindustan Petroleum Corporation

Ltd.85/4, Ispat Bhawan, 3

rd

Floor, Sanjay Place, Agra,

and he informed the petitioner that the candidatures of

the petitioner was not found eligible for retail outlet

dealership due to following reasons :-

a.The Khasra/khatauni/gata no. is not

mentioned in the lease deed of the offered land.

b.The lease agreement for the offered land

does not contain sublease clause, on the contrary sub-

lease is barred.

8.In the aforesaid letter it is further stated that if the

petitioner has any grievance he can make an

application/representation within 10 days from the date

of the letter. It is further contended that the petitioner

has submitted his representation on 4.6.2016. Along

with the said representation the petitioner submitted

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the extract of Khatauni no.18020901052 of Khata

No.356, Khasra No.202 area 0.9590 hectare situated in

Village Khanpur, Pargana-shamshad, Tehsil Kayamganj,

District Farrukhabad in the name of Smt. Munni Devi,

Revenue Map of the said khata and land drawing map

of proposed outlet. Apart from the same petitioner also

submitted a supplementary/corrigendum of lease deed

executed by Smt. Munni Devi in favour of petitioner,

which was registered on 4.6.2016 in the office of Sub

Registrar, Kayamganj.

9.In view of the aforesaid it is argued by learned

counsel for the petitioner that the petitioner has

already removed all the shortcoming, which were very

minor in nature and as such petitioner became entitled

for consideration of his application form for the grant of

retail outlet in question.

10.The representation submitted by the petitioner

was rejected by the respondent no.3 vide its order

dated 09.7.2016. By the aforesaid order, the petitioner

was informed that since he does not fulfill the norms for

providing land in accordance with the Point No.4(vi)

(kha) of the Dealer Selection Guidelines thus his

application cannot be accepted. The order dated

9.7.2016 passed by the respondent no.3 is under

challenge in the present writ petition.

11.It is argued by learned counsel for the petitioner

that in response to the letter dated 26.5.2016 by which

certain shortcomings were informed to the petitioner

were removed by him while submitting certain papers

and documents along-with his representation dated

4.6.2016. In view of the aforesaid it is argued that since

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the shortcomings pointed out by the respondent no.3

had already been removed, the order dated 9.7.2016

passed by him is absolutely arbitrary in nature and the

same is liable to be set aside. It is further argued that

by way of supplementary/corrigendum of lease dated

4.6.2016 all the shortcomings in land were removed by

the petitioner.

12.In the said affidavit it is stated that total four

applications were submitted for the aforesaid location,

out of which three were rejected including the

application form of the present petitioner at the time of

scrutiny itself. In view of the aforesaid the only

applicant was left to be considered for the grant of

retail outlet dealership is Smt. Jyoti Yadav, the proposed

applicant for impleadment.

13.It is argued by Sri Vikas Budhwar, learned counsel

for the respondent Hindustan Petroleum Corporation

that along-with the application form petitioner has

submitted a lease deed dated 31.10.2014. From perusal

of the same it is clear that there is neither any

reference to gata number sought to be leased out nor

any condition with respect to sub lease in favour of

respondent corporation. During the course of scrutiny

certain discrepancies were found in the application

form of the petitioner as such a letter dated 26.5.2016

was written by the respondent no.3 to the petitioner. In

response to the aforesaid letter petitioner submitted his

representation dated 4.6.2016. Along-with the aforesaid

representation the petitioner has appended a correction

deed dated 4.6.2016 making correction in the lease

deed dated 31.10.2014. It is further argued that vide

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correction deed dated 4.6.2016 petitioner has sought

correction in the lease deed dated 31.10.2014 to the

effect that gata no.202 was sought to be mentioned

and for the first time provision of sub lease in favour of

respondent corporation was made, copy of the

correction deed dated 4.6.2016 is appended as

annexure 3 to the counter affidavit. It is further argued

by Sri Vikas Budhwar that after considering the

representation of the petitioner, the corporation

authorities passed the order dated 09.7.2016 whereby

the claim set up by the petitioner was found

“unsuitable” on the ground that in view of express

condition of Clause 14-H (Viii) no

alteration/addition/deletion is permissible after

submission of the application form. It is further argued

that the procedure and manner according to which

selection ought to be conducted in respect of retail

outlet is set out in the brochure for the selection of

“Dealer for Regular and Rural Retail Outlet”. The

relevant clause being clause–4(vi) is reproduced

hereinbelow :-

'(VI). Land (Applicable to all categories)

The applications would be classified into two

groups as mentioned below based on the land

offered by them in the application form.

“ Group 1: Applicants having suitable piece of

land in the advertised location/area either by

way of ownership/long terms lease for a period

of minimum 30 years (as advertised by the Oil

Company).

Group 2: Applicants having Firm Offer for a

suitable piece of land for purchase of long term

lease for a period of minimum 30 years (as

advertised by the Oil Company).

The other conditions with respect to offering of

land are as under:

a) The land should be available with the

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applicant on the date of affidavit and should

have minimum lease of 30 years (as advertised

by the concerned Oil Company) from the date or

after the date of advertisement but not later

than the date of affidavit (Appendix- XA/XB)

b) If the offered land is on Long term lease then

the Lease agreement should have a provision to

sub-leased the land wherever the locations are

advertised under Gorpus Fund Scheme (CFS),

Other (Corporation owned Sites ('A”/'CC” sites)

and Company leased sites.

For Dealer owned sites ('B”/'DC” sites) the

applicant should ensure that the land arranged

by the applicant is either registered in the

applicant's name or leased in favour of the

applicant for a minimum period of 30 years as

advertised by the concerned Oil Company)

c) The applicant (s) under Group-1, should

furnish at least one of the following documents

in support of ownership of land offered for the

Dealership.

* Khasra/Khatauni or any equivalent revenue

document or Certified from revenue official

confirming status of the ownership of the land.

* Registered Sale deed/Registered Gift deed.

* Registered Lease deed for a minimum period

30 years as advertised by the concerned Oil

Company.

* Any other type of ownership/transfer deed

document

* Lease agreement or firm allotment letter

issued by Government/Semi Government

bodies.

d) The land owned by the family members (the

family will comprise of the :Family Unit” as

defined in Multiple dealership norms under

clause 10 “Disqualification' will also be

considered as belonging to the applicant/subject

to producing the consent letter in the form of

affidavit (Appendix -VA) from the concerned

member(s) of the 'family unit'

e) The eligibility of the Land will be decided by

Oil Company with reference to a confirmatory

letter from an advocate (Appendix VB) to be

arranged by the applicant.

f) In case the applicant or member (s) of 'family

unit' own the land jointly with third person, the

consent letter in the form of an affidavit

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(Appendix VA) or Power of Attorney clearly

authorizing the applicant for such use of land

from third person is also required.

g) The 'firm offer' of land will include land offer

from third party based on Agreement to

purchase/long term lease (as per terms and

conditions of the OMCs) offer/letter should be in

the form of an Affidavit (Appendix VA) or Power

of Attorney for the purpose along with one of

the documents mentioned in (c) above, in

support of ownership of land offered for the

Dealership.

h) Various situations of ownership for defining

owned/firm offer are as under:

S.N

o

Situation of ownershipShare of

applicant in

land

Additional

documents

required

Evaluation

as

GROUP 1

1Self Full Nil Owned

2Self with members of

family unit or owned

exclusively by family

members

Part/Nil Consent

letter in the

form of

affidavit

from

members of

family unit-

Appendix V

A

Owned

3.Self with other

owners

. Family members

with other owner(s)

. Self with family

members & other

owners

Part

Nil

Part

If the share

of the

applicant

and/or family

members is

more than or

equal to land

required by

the

company.

Consent

letter on

stamp paper

or an

affidavit or

Power of

Attorney

from all Co-

owner(s)

should be

provided-

Appendix-V

A.

Owned

4Land owned by

Government/Semi-

Full Allotment

Letter from

Owned

8

Government bodies the

Government/

Semi-

Government

bodies in the

name of Self

with specific

mention for

use of petrol

pump.

GROUP 2

5Land owned by third

party in part or full

Part/Nil Consent

letter in the

form of

affidavit/Pow

er of

Attorney

from other

owner(s)-

Appendix V

A

Firm Offer

I) Each applicant will have to declare in the form

the category under which offered land falls

Supporting the above, a conformity letter from

an advocate (Appendix V B) giving details of the

current ownership documents relied upon and

the category under which the land falls (Group 1

or 2) also is to be submitted. The eligibility and

the Group under which the applicants land falls,

would be determined based on the declaration

given in the application confirmatory letter from

the advocate and relevant Clause of the

affidavit (Appendix XA/XB as applicable)

regarding the same.

j) Verification of the supporting documents

submitted by the applicant will be carried out

for the selected candidates at the time of Field

Verification Credentials”

Note:

a) 'Own' means having ownership by way of

Registered Sale deed, Registered Gift deed etc.

or title of the property or registered long lease

(as per individual OMC norms) in the name of

applicant/'family unit' as defined in multiple

dealership norm under clause 10

(Disqualification)

b) Only one piece of suitable land to be offered

by the applicant.

c) In-spite of above, if an applicant offers more

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than one land then, a confirmation in writing is

to be obtained by Land Evaluation Committee

(LEC) from the applicant with regard to the plot

of land to be considered.

d) The same piece of land cannot be offered by

more than one applicant for a particular RO

location against an advertisement. In case more

than one application is received offering the

same piece of land all such applications would

be rejected.

e) The selected candidate has to make available

the offered land duly developed up to the road

level by cutting/filling (as applicable) with good

earth/murum layerwise compacted as per

standard engineering practice to the

satisfaction of the concerned OMC. The selected

candidate is also required to provide retaining

wall and compound wall of min. height: 1.5

meters designed as per site conditions as per

approval of OMC

f) There is no commitment by the Oil Company

for taking the offered land from the applicant, if

an applicant after selection is unable to provide

the land indicated in the application form within

a period of 2 months (for Group 1) and 4

months (for Group 2) from the date of Letter of

Intent (LOI) Oil Company will have the right to

cancel/withdraw the LOI issued in favour of the

selected candidate for allotment of dealership'.

14.It is further argued by Sri Vikas Budhwar that in

the present case admittedly at the time of submission

of application form dated 16.11.2014, though the

petitioner mentioned in Clause 9 of his application form

khasra and khatauni number 202 and appended the

lease deed executed by one Smt. Munni Devi wife of

Roshan Lal in favour of petiitoner on 31.10.2014 but in

the said lease deed neither the gata number was

mentioned nor there was any provision of sub lease as

provided under Clause 4 -(Vi-b) of the selection

guidelines. Apart from the same petitioner in the lease

deed dated 31.10.2014 depicted himself to be the sole

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and exclusive owner of the land which was sought to be

leased out. However, subsequently after rejection of his

candidature on 26.5.2016 petitioner submitted a

representation dated 4.6.2016 making correction in the

lease deed dated 31.7.2014 with respect to khasra

no.202 whereby besides lessor being Smt. Munni Devi

names of two persons namely Jaiveer and Havaldar was

also mentioned as co-owners. The aforesaid facts were

not disclosed by the petitioner at the time of

submission of his form that these persons were co-

owners of the land in question. Apart from the same no

consent letter from the co-owners was submitted along-

with the application form as required under Clause 4

(Vi) of the brochure as quoted above.

15.Sri Vikash Budhwar, learned counsel for the

respondent-corporation relied the following judgements

:-

I. Civil Appeal Nos.6928-6929 of 2015

(Bharat Petroleum Corporation Ltd. and others

Vs. Swapnil Singh) decided on September 8, 2015.

II.Smt. Sunita Gupta Vs. Union of India

and others reported in 2009 (7) ADJ 534 (DB).

16.During the course of arguments certain papers

and documents were provided by Sri Vikash Budhwar,

learned counsel for the respondent corporation, the

same are taken on record. It reveals from perusal of the

aforesaid papers that the respondent no.4 was issued a

letter of intent by the respondent corporation on

29.6.2018, thereafter no objection certificate was also

issued on 15.2.2019. It is contended by Sri Vikash

Budhwar that after the aforesaid proceedings, a letter

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of appointment was also issued in favour of the

respondent no.4 and the respondent no.4 is at present

running the retail outlet.

17.A short counter affidavit was also filed by Sri. R. K.

Jaiswal, learned counsel on behalf of respondent

no.1/Union of India. In the aforesaid short counter

affidavit it is stated that after dismantling of the

Administered Pricing Mechanism (APM) in the petroleum

section with effect from 1.4.2002, the selection process

of dealers/distributors for retail outlets (petrol

pumps)/LPG distributorships (cooking gas agencies) is

done by the oil marketing companies themselves

subject to broad policy guidelines issued by Ministry

from time to time relating to matters, like reservation

for weaker section, reconstitution, revival of defunct

outlets, resitement, and transparency in selection. The

public section oil companies enjoy commercial freedom

in the matter of marketing/distribution of petroleum

products, through their respective networks of retail

outlet dealership, LPG distributorships and SKO-LDO

dealerships. The oil companies choose their own

locations for setting up such dealerships/distributorship,

if found viable after feasibility study thereof by the oil

companies themselves. The Government has no role in

the selection of sites. It may be noted that the

answering respondent vide its letter dated 19

th

August,

2003 has advised certain broad parameters to the oil

marketing companies and, thereafter, the companies

frame their own guidelines for selection of

dealers/distributorships.

18.It is further stated in paragraph 5 of the short

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counter affidavit that the Ministry of Petroleum &

Natural Gas, Government of India has issued letter

dated 02

nd

September, 2005 for pleading before the

Hon'ble Courts all over the country to delete the Union

of India from the array of respondents, at the time of

admission stage itself. The copy of letter dated 2

nd

September, 2005 is annexed as annexure no.S.C.A.-2 to

the short counter affidavit.

19.Heard learned counsel for the parties.

20.With the consent of learned counsel for the parties

present writ petition is being disposed of finally at the

admission stage.

21.From perusal of the facts as narrated above, it is

clear that in terms of the advertisement dated

11.10.2014, an application form was submitted by the

petitioner for grant of retail outlet dealership. Since

certain discrepancies were found in the application

form submitted by the petitioner a letter dated

26.5.2016 was written by the respondent no.3 to the

petitioner. A reply dated 4.6.2016 was submitted by the

petitioner stating therein that the discrepancies were

duly removed. After the aforesaid letter was received in

the office of the respondent corporation, the

corporation rejected the same vide its order dated

9.7.2016 on the ground that Clause 4 (Vi) (kha) of the

guidelines were not fulfilled by the petitioner. It reveals

from perusal of the records that while submitting the

application form the petitioner has submitted certain

papers and documents. Two short comings were

pointed out in the application form of the petitioner

namely khasra/khatauni number is not mentioned in

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the lease deed and lease agreement does not contain

any sub lease clause. After the aforesaid letter was

received by the petitioner he submitted a

representation. Along-with representation petitioner

appended the correction dated 4.6.2016 making

corrections in the lease deed dated 31.10.2014. By the

aforesaid corrections the petitioner had sought

correction in the lease deed dated 31.10.2014 to the

effect that gata no.202 was sought to be mentioned

and for the first time provision of sub lease in favour of

the respondent corporation was also mentioned. The

petitioner tried to remove the discrepancies as pointed

out by the corporation vide letter dated 26.5.2016.

Apart from the original lessor of the land two other

persons namely Jaiveer and Havaldar were also co-

sharers in the land. The aforesaid fact was not disclosed

at any point of time by the petitioner or by Smt. Munni

Devi before respondent corporation. No consent

letters of the aforesaid co-sharers were submitted by

the petitioner along-with his application form. Apart

from the same corrections, which were made by the

petitioner in the correction deed were also not liable to

be taken into consideration by the respondent

corporation due to the fact that these corrections are

not permissible after submission of the application

form.

22.In the case of Bharat Petroleum Corporation

Ltd. (supra) it was held by the Supreme Court that :-

“We have gone through the records of the case

along with the assistance of learned counsel for

the parties and we find that the brochure read

with the application form is absolutely clear in

the sense that the applicant must be the owner

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of specified area of land or must have a

registered lease deed of the specified area of

land on the date of application. The admitted

position (which is also clear from the counter

affidavit filed by the respondent in this Court) is

that on 13

th

September, 2011 when the

application for allotment was made, the

respondent was neither the owner of any land

nor had any registered sale deed/lease deed in

her name. In fact, the lease deed came into

existence only on 20

th

December, 2012, and

that was registered on 21

st

December, 2012.

Clearly, on the date of the application, the

respondent was not eligible in terms of the

brochure and the application form.

The Culcutta High court has proceeded on

the basis of a notarized lease agreement which

appears to have been produced by the

respondent before the High court, photocopy of

the notarized lease agreement has been shown

to us and that document is dated 13

th

September, 2011. Learned counsel for the

respondent has relied upon this document to

contend that the respondent was eligible as on

13

th

September, 2011 in terms of the notarized

lease agreement.

We are unable to accept this contention of

learned counsel for the respondent. The

brochure and the application form clearly

require the applicant to have a registered lease

deed in her name. What is shown to us is a

notarized document and admittedly this

document, even though it may have been in

existence, was formalised into a lease

agreement only on 20

th

December, 2012 and

that was registered on 21

st

December, 2012.

The notarized document, therefore, does not

advance the case of the respondent any further.

Therefore, it is quite clear that the respondent

was not eligible on the date of application, i.e.,

13

th

September, 2011.

Under the circumstances, we allow these

appeals and set aside the order passed by the

Division Bench of the Culcutta High Court. No

costs.”

23.In the case of Smt. Sunita Gupta (supra) it was

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held by the Division Bench of this Court that :-

“23. Para 12.1 of guidelines for selection of retail

outlet dealers, provides that an application form

alongwith relevant documents should be

submitted within the time prescribed,no

addition/deletion/alteration will be permitted in

the application once it is submitted. No additional

documents whatsoever will be accepted or

considered after the cut-off date of the

application. In the present writ petition we have

found that the petitioner could not file all required

documents alongwith application form. The land

proposed for the purpose was found joint

ownership of several persons including her

husband and no valid and legal partition of the

land took place between them. The petitioner's

husband was not found the sole owner of the land

offered by her for retail outlet dealership. Under

these circumstances the respondents were

justified in reviewing the decision taken by the

selection committee and cancelling the interview

and selection of the petitioner.

24. On the basis of above submissions made by

learned counsel for parties and their pleadings as

well as the documents filed on record. We have

found that the respondents have not committed

any mistake in not taking into consideration the

documents which have been submitted

subsequent to last date of submission of the

application form, because those documents could

not be considered in view of Para 12.1 of

guidelines. We have also observed that the

respondents have afforded full opportunity to the

petitioner of being heard and there is no violation

of natural justice. No opportunity appears to have

been afforded to the petitioner before cancellation

of selection, but in pursuance of the order passed

by this Court in writ petition, the respondents

have afforded full opportunity to the petitioner of

being heard on her representation. The

respondents have rightly rejected the

representation of the petitioner through detailed

and speaking order, which does not suffer from

any infirmity, mistake or error, because the

husband of the petitioner has not been found

exclusive owner and in possession of the land

proposed for retail outlet and no legal partition

has taken place among all co-sharers as

memorandum of alleged partition dated 3.7.1984

is a waste paper having no evidentiary value,

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which cannot be relied on and referred to in any

proceeding.

25. Under these circumstances no principles of

natural justice has been violated by the

respondents. The petitioner herself concealed the

important facts at the time of presenting her

application form and interview about the

ownership of land and infrastructure facility. Thus

the decision has been validly reviewed and

selection of the petitioner has been rightly

cancelled, which cannot be said to be vitiated in

view of any fact and circumstance. The selection

of the petitioner does not confer any right to a

prospective candidate because no letter of intent

has been issued by the respondents in pursuance

of the selection and no agreement has been

executed by the parties in response to above

selection.”

24.In view of the facts as stated above, we are of the

opinion that the order passed by the respondent no.3

dated 9.7.2016, which is impugned in the present writ

petition is absolutely perfect and valid order and does

not call for any interference by this Court specially

under Article 226 of the Constitution of India.

25.The writ petition being devoid of merit is

dismissed.

Order Date :- 31.10.2019

Pramod Tripathi