Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15153 of 2012 ====================================================== 1. M/S Yashoda Bharat Gas, Ekma, Saran (Bihar) Through Its Sole Proprietor Shri Hridaya Narayan Singh S/O Late Ramadhar Singh R/O Manjhi Road, P.O. & P.S.- Ekma, District- Saran 2. Hridaya Narayan Singh S/O Late Ramadhar Singh Proprietor, M/S Yashoda Bharat Gas, Ekma, Saran (Bihar), R/O Manjhi Road, P.O. & P.S.- Ekma, District- Saran. .... .... Petitioner/s Versus 1. Bharat Petroleum Corporation Limited Government Of Bihar Enterprise, Patna Territory (L.P.G.) Through Its Territory Manager (LPG), Patna 2. The Territory Manager (LPG), Patna, Bharat Petroleum Corporation Limited 3. Sheo Kumar Singh S/O Jagranath Singh R/O Ekma, P.O.- Ekma, Village- Ekma, Distt.- Saran, Chhapra. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate For the Respondent/s : Mr. Maduresh Prasad Mr. Ashish Giri Mr. Ravi Verma Mr. Anil Kumar Sinha. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 8 16-07-2013 Present writ application filed under Article 226 of the Constitution of India is directed against the order dated 31.07.2012 (Annexure-8) passed by respondent Territory Manager, L.P.G, Bharat Petroleum Corporation Ltd. (for short “ the B.P.C.L.”). By the said communication, the agreement dated 4.8.2010 for Award of the Bharat Gas (Liquefied Petroleum Gas) Distributorship (Domestic and Commercial) granted to the petitioner has been terminated. Heard Mr. Y.V. Giri for the petitioner, Mr. Maduresh Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 2 Prasad for the respondent B.P.C.L. and Mr. Anil Kumar Sinha for the intervenor respondent. The parties have exchanged the pleadings. On 17.10.2007 (Annexure-1), the B.P.C.L. published an advertisement for grant of L.P.G. Distributorship at various places in different districts of Bihar. The petitioner became one of the applicants for location Ekma in the district of Saran and submitted his application relevant extract whereof is enclosed as Annexure-9. After making preliminary scrutiny of the application(s), the respondent B.P.C.L. by a communication dated 22.08.2009 (Annexure-2) informed the petitioner that interview shall be conducted on 11.9.2009. The petitioner presented himself for interview. The respondent B.P.C.L. declared the petitioner to
Legal Reasoning
be the first empanelled candidate having obtained highest marks (91.83). The intervenor respondent was placed at Sl. No. 3. In terms of brochure providing the guidelines for such selection of suitable candidates, a complaint could be lodged within specified time against such empanelment of the candidates. On 13.9.2009, the intervenor respondent filed a complaint. The same was considered and rejected. The respondent B.P.C.L. issued Letter of Intent dated 24.07.2010 (Annexure-4) in favour of the petitioner for the said L.P.G. distributorship at Ekma in the district of Saran. Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 3 The intervenor respondent who was placed at Sl. No. 3 in the select list again filed a complaint on 02.08.2010 alleging therein that the balance amount shown by the petitioner as one of the conditions which earned him full 18 marks therefor was not maintained by the petitioner for a period of three months from the date of application. The intervenor respondent also approached a Member of Parliament (Lok Sabha) in this regard. A request was also made by the said functionary to enquire into the complaint. In the meanwhile, the respondent B.P.C.L. and the petitioner entered into an agreement on 04.08.2010. The said complaint was taken notice of by the respondent and a show cause notice (Annexure-6) was issued to the petitioner stating therein that there has been breach/violation of Clause 14.2 which require maintenance of certain amount in the Savings Bank A/C by the applicant for a minimum period of 90 days from the date of application or till the interview date which ever is earlier. The petitioner had not maintained the aforesaid amount in the said account for 90 days. It was also indicated that the petitioner had given an undertaking in the application form that any wrong information, misrepresentation/suppression of fact would make the applicant ineligible for such distributorship. In the show cause various provisions/clauses were referred which render the petitioner Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 4 ineligible on the said count. The petitioner submitted the reply (Annexure-7). The respondents Territory Manager by impugned order dated 31.7.2012 (Annexure-8) terminated the distributorship on the ground of non-maintaining the specified amount in the Savings Bank A/C continuously within the moratorium period of 90 days. The writ petition was filed on 22.08.2012 wherein this Court by order dated 30.08.2012 restrained the respondents from giving effect to the impugned order (Annexure-8).
Legal Reasoning
Mr. Giri argued that from the materials on record, it would manifest that the present case is not a case where any false information was furnished by the applicant/petitioner. It is also not a case of misrepresentation of fact. The petitioner, therefore, cannot be held to have acted in breach of the undertaking filed alongwith the application for such distributorship. The private respondent no. 6 who was third empanelled candidate made a complaint against the petitioner within the time prescribed under the relevant clause of the Brochure/guideline. The same pertained to defect in the title/ownership of land offered by the petitioner. Upon due enquiry made in this regard, the same was found not sustainable and rejected. Much after expiry of the said period, again a complaint was filed relating to certain withdrawals made Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 5 from the Savings Bank Account furnished by the petitioner to demonstrate his financial credibility. Obviously, the same was beyond time and as such the respondent B.P.C.L. did not act thereon and the distributorship was commissioned. Similar application was filed before a Member of Parliament which was endorsed to the B.P.C.L. for needful. Acting thereon, the respondents B.P.C.L. made an enquiry with regard to the amount shown by the petitioner in the application form dated 20.11.2007. On such enquiry, it was found that between the period 22.11.2007 to 24.11.2007, the petitioner had withdrawn a total sum of Rs. 7 lakhs from the said account. However, within few days of withdrawal(s) a sum of Rs. 5.5 lakhs was deposited in the said account. Clause 14.1 of the Brochure provides the manner in which marks are allocated. Certain marks is allocated to the applicant on furnishment of documents/evidence regarding deposit of a certain amount in the Bank. In the case at hand, the requirement was maintenance of a sum of Rs. 18.45,000/-. As per Clause 14.2 of the application form, the said amount was required to be maintained in the Bank account for minimum period of three months from the date of application or the interview date which ever is earlier. The petitioner required immediate fund for treatment of his daughter who had fallen seriously ill and out of Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 6 panic, the petitioner had withdrawn the money which was, however, later on deposited. It, therefore, cannot be said that the petitioner had violated Clause 14.2 of the application. In any view of the matter, it cannot be said that the petitioner submitted a false and/or incorrect information by filing the application. There was thus no material suppression/misrepresentation of information. The respondent B.P.C.L. should not have acted on the complaint filed by the third empanelled candidate (respondent no. 6) beyond the period prescribed therefor in the Brochure/guideline. The respondent B.P.C.L. could have taken action against the petitioner if the declaration given by the petitioner was subsequently found to be incorrect or false. This is not the case here as on the date of filing of application, the petitioner had the required amount in the Bank showing his financial credibility. Counsel for the petitioner vehemently objected to the second objection filed by respondent no. 6 who was not going to be benefited in any manner in case of cancellation of agreement/offer made by respondent B.P.C.L. to the petitioner. Referring to Clause 17 of the Brochure, it has been submitted that the merit panel prepared by the respondent would remain valid for a period of one year from the date of commissioning of the distributorship. The said commissioning had taken place on 6.8.2010. The panel, therefore, lost its life and in no Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 7 case, the offer can be made to the second or third empanelled candidate. Arguing further, it has been submitted that this Court being the Court of equity would not permit the impugned action as the distributorship made in favour of the petitioner has functioned without any complaint from any quarter for more than two years coupled with the fact that there is no allegation that the petitioner was allowed the distributorship of the L.P.G. Gas Cylinder on any extraneous consideration and/or manipulating the selection. Mr. Prasad, learned counsel for the respondent B.P.C.L., per contra, submitted that as per Clause 14.2 of the application form, the petitioner was required to maintain the required amount in the Bank as shown in the said application form for at least 90 days from the date of application. On a verification, it was found that the petitioner had withdrawn certain amount therefrom. The petitioner has, therefore, committed a breach of the aforesaid condition and he was liable to be proceeded against. The petitioner signed a declaration in the application form that any incorrect/false information would render him ineligible and the offer was liable to be terminated. It is a clear breach of the said undertaking/declaration. The bogey of filing second complaint beyond time by the private respondent which ignited the impugned action, in the facts and circumstances of the case would Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 8 take rear seat as the respondents as per the relevant provision of the Brochure/guideline as also the undertaking/declaration given in the application form was required to act if any false/untruthful/incorrect statement was made in the application. Who brought to the notice of the respondent these facts for taking action shall be immaterial. Mr. Prasad in course of argument admitted that in case of cancellation of distributorship allotted in favour of the petitioner, the respondent B.P.C.L. will be required to initiate the process of selection afresh as no one from the said panel below the petitioner can be offered distributorship owing to the expiry of the panel prepared in 2010. On a consideration of rival submissions made by the parties, it appears the petitioner while making application in the year 2007 in response to the advertisement (Annexure-1) disclosed to have a sum of Rs. 14 lakhs and odd deposited in his name with the two Banks including the State Bank of India, Ekma. He signed an undertaking that the details provided by him were true and correct. Any wrong information/misrepresentation/suppression of fact in the application could render him ineligible for the distributorship. It further appears that few days thereafter, he withdrew a sum of Rs. 7 lakhs. However, within few weeks thereafter, the amount was again deposited in the said Bank. The Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 9 petitioner has set out reasons in detail for such withdrawal which was owing to the treatment of his daughter who had fallen seriously ill. This Court, in view of the aforesaid, does not find substance in the submission of the respondent that the petitioner furnished incorrect/false facts and/or misrepresented any fact. The next ground taken by the respondent is that the petitioner as per the relevant Clause of the application as also the Brochure/Manual was required to maintain the said amount for at least a period of 90 days. Apparently, the same was not found correct in the case of the petitioner since after filing application, certain amount was withdrawn therefrom. On enquiry, it was ascertained that the petitioner had withdrawn certain amount from the said account but subsequently deposited the same. The offer document (L.O.I.) (Annexure-4) issued to the petitioner by the respondent B.P.C.L. clearly states that the petitioner was now required to make all financial and other arrangements for operating the distributorship within two months from the date of offer/letter. There is no dispute that the petitioner arranged all financial resources forthwith and on being satisfied, the respondent B.P.C.L. allowed the said distributorship and agreement was entered inasmuch as the unit was commissioned. Learned counsel for the petitioner has relied on Moumita Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 10 Poddar versus Indian Oil Corporation Ltd. 2010 (9) S.C.C. 291 in order to buttress his contention that this Court should take into account the principles of equity while exercising its extraordinary and discretionary writ jurisdiction. The facts of the case should persuade this Court to grant the relief particularly when there was no misrepresentation of facts made by the petitioner and that the petitioner has continued with the distributorship for more than two years without there being any complaint against it either by the consumers or the authorities of the B.P.C.L. in running the said business. Reliance has also been placed on an order passed by this Court in C.W.J.C. No. 2613 of 2013 (Veena Singh versus B.P.C.L. and Ors). Mr. Prasad , Counsel for the B.P.C.L. has relied on an order passed by this Court in C.W.J.C. No. 13113 of 2010 (Neelam Devi versus Union of India and Ors). In Neelam Devi (supra), this Court noticed that applicant had shown/declared in the application itself that she had a sum of Rs. 21,03,580.67/- deposited in the savings banks account standing in the Punjab National Bank and Central Bank of India. On verification, it was found that on the date of application, the total amount in those savings account was to the tune of Rs. 14,53,580/- and during the period of three months from the date of application, only a sum of Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 11 Rs. 5,45,018.67 was maintained in the said account. This was found to be in violation of Clause 14.2 of the application. The declaration/undertaking was found false/untruthful. Accordingly,
Decision
the writ petition was dismissed. In the case at hand, the facts are at material variance. The petitioner did hold the said amount in the account on the date of application. However, subsequent thereto, he withdrew certain amount therefrom but thereafter deposited the deficient amount. The reasons for such withdrawal have been disclosed in the application. Deposit of certain amount in bank and another financial institution is made a condition in order to lend assurance to the respondent Corporation that the petitioner is financially sound besides grant of certain marks. The respondent while issuing the offer (L.O.I.) clearly instructed that within two months of the issuance of the L.O.I., the petitioner was required to arrange the financial resources. There is no dispute that no further time therefor was prayed and the petitioner arranged the required financial resources and after being satisfied therefrom, the Corporation permitted and the distributorship was commissioned. The petitioner has relied on the case of Veena Singh (supra) wherein this Court took notice of the fact that deficiency in the required measurement of land offered by the petitioner was Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 12 fulfilled subsequently by the applicant and, therefore, refrained from interfering with the grant of distributorship and the challenge thereto was rejected. In Moumita Poddar (supra), the Apex Court took note of the subsequent events and refused to interfere with the selection and grant of Distributorship/Dealership of the L.P.G. in favour of the respondent on comparable fact/situation. This Court would be failing in its duty in not considering the fact that the candidate who was placed second in the panel did not challenge the selection and grant of Dealership to the petitioner. The respondent no. 6 and for that matter any one below the petitioner in the panel cannot be granted the said Dealership. There is no allegation that the petitioner in course of cumbersome selection process manipulated the same or any undue favour was bestowed on him. The petitioner without seeking any extension of time for providing required resources including financial resources set up the infrastructure to the satisfaction of the respondent Corporation and the Dealership was commissioned in the year 2010 which is being run without any complaint from any quarter. Closure of Dealership at this juncture would result in disastrous consequences to the petitioner. Regard being had to the aforesaid, this Court is Patna High Court CWJC No.15153 of 2012 (8) dt.16-07-2013 13 persuaded to invoke its discretionary writ jurisdiction to quash and set aside the order dated 31.07.2012 (Annexure-8) passed by the respondent Territory Manager, L.P.G., B.P.C.L. In the result, the application is allowed. There shall be no order as to costs. Pankaj/- (Kishore Kumar Mandal, J)