Avinash Kumar vs Bharat Petroleum Corporation ...
2011 Latest Caselaw 5257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 01.09.2011
 
Delivered on 19.10.2011
 

 

 
Civil Misc. Writ Petition No.62402 of 2010
 
======
 
Avinash Kumar
 
Vs.
 
Bharat Petroleum Corporation 
 
Ltd. and  another.
 
Hon'ble Ashok Bhushan, J.

Hon'ble Bharati Sapru, J.

(Delivered by Hon'ble Bharati Sapru, J)

Heard Sri Manish Goyal, learned Counsel for the petitioner and Sri Prakash Padia, learned Counsel for the respondent-Corporation.

Pleadings have been exchanged in this matter and, therefore, it is being disposed of at the stage of admission itself.

The present writ petition has been filed by the petitioner challenging the order dated 14.9.2010 (Annexure No.1 to the writ petition) and an order dated 25.8.2010 (Annexure No.2 to the writ petition) by which the selection of the petitioner as LPG distributor under the Rajiv Gandhi Gramin LPG Vitrak Scheme (hereinafter referred to as 'RGGLV') has been cancelled.

The facts of the case are that the respondent-Corporation had issued an advertisement for the appointment of LPG distributors under the 'RGGLV' Scheme (supra). The respondent-Corporation had notified the advertisement in the Newspapers. An advertisement was also made in the City of Meerut in 'Dainik Jagran' on 19.10.2009. Amongst the places included as the sites Muzaffarabad was also one. The petitioner, who belongs to the Scheduled Caste category was also an aspirant for the site advertised in Muzaffarabad. The petitioner applied along with all the necessary documents as specified in the brochure and ultimately the petitioner was informed by the respondents by a communication dated 10.4.2010 that he has been found eligible for consideration under the scheme. The draw of the lots was conducted on 30.5.2010 and the petitioner was declared successful in the said draw.

On 25.8.2010 the petitioner was informed by the respondent-Corporation that there was a difference in the information provided by the petitioner in his application upon making the spot or field verification. The petitioner was intimated that the land, which was shown by the petitioner to be owned by him did not have a clear passage, rather the passage connecting the plot side to the approach road was through the private passage belonging to another person and, therefore, the petitioner was informed that he did not fulfil Clause-3 of the conditions as contained in the advertisement published and, therefore, he was found unfit under the criteria specified for allotment under the 'RGGLV' Scheme (supra).

The petitioner, thereafter, submitted a representation before the respondent to recall the order dated 25.8.2010 stating that he fulfilled the criteria as specified in the advertisement as well as in the brochure of guidelines and, therefore, his case should be reconsidered. The respondents, however, rejected the representation of the petitioner by order dated 14.9.2010.

Learned Counsel for the petitioner has argued that both the orders dated 25.8.2010 and 14.9.2010 are bad for reasons that the land of the petitioner, which has been found unfit for not having free access to the motorable approach road is not correct because the petitioner had purchased the land for construction of LPG godown by way of a sale deed dated 13.11.2009 from one Giriraj Singh son of Sri Chandrapal Singh. The petitioner had also gained from him the easementary right to cross over the adjacent land, which belongs to Giriraj Singh. Therefore, the so called private passage was free to be used by the petitioner and it could not be said that the petitioner had no right to use the said private passage.

Learned Counsel for the petitioner also drew the attention of the Court to the affidavit of Giriraj Singh wherein Sri Giriraj Singh had granted permission to the petitioner to have free access over the private passage of Giriraj Singh for reaching the site of the LPG godown.

Learned Counsel for the petitioner has argued that the petitioner has given correct information with regard to the land in his application form as it was nowhere mentioned in the application form that the access to the plot should be through the passage belonging to the petitioner that is to say that the ownership of the passage was not in issue at all, especially as on all other counts the land was suitable and was situated on a plot, which was accessible through the contiguous adjacent land to a motorable and approachable road in all weathers.

In reply to the arguments made by learned Counsel for the petitioner and also to the averments made in the writ petition the respondent-Corporation has filed a counter affidavit.

Learned Counsel for the respondent has argued in reply that it is abundantly clear from a plain reading of Clause 4 (g) of the Brochure appended as 'Annexure-5' to the writ petition, that the requirement under the said Clause is that the land for construction of godown will be considered suitable, if it is accessible in all weathers to motorable approach road. Appendix (g) of Clause 4 of the Brochure is quoted here-in-below:-

(g) own a suitable land (plot) of minimum 20 metre X 24 metre in dimension at the advertised RGGLV location for construction of LPG cylinder Storage Godown.

Own means having clear ownership title of the property in the name of applicant/ family member of the 'Family Unit' as defined in multiple dealership/distributorship norm. In case of ownership/co-ownership by family member, consent letter from the family member will be required.

Land for construction of Godown will be considered suitable, if it is freely accessible through all whether motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot free from live overhead power transmission or telephone lines. Pipelines/Canals/Drainage/Nallahs should not be passing through the plot."

Learned Counsel while referring to the above Clause argued that admittedly the petitioner did not fulfil the above criteria as the approach road to the godown is neither a public road nor is it private road belonging to the petitioner and connecting to the public road but it belongs to some private person and, therefore, for this reason, the petitioner did not fulfil the eligibility criteria and this fact came to light during the course of the field verification of credentials and upon discovering this fact, the petitioner was informed clearly by order dated 25.8.2010. When the petitioner made a representation against the order dated 25.8.2010 the respondent-Corporation by the impugned order dated 14.9.2010 reiterated its stand.

Learned Counsel for the respondent has also argued that the eligibility criteria as mentioned in the advertisement was well known to the petitioner and yet when he filled up the form he did not specify clear details with regard to the approachability to the godown site either by a public road or by a private road belonging to him.

Furthermore, he argued that at the time when the advertisement was issued, the petitioner did not care to challenge the norms as laid down by the advertisement but at a later stage is complaining of arbitrariness, that too after the field verification has found him to be an unfit candidate.

Learned Counsel for the respondent-Corporation has argued that the details with regard to the exact situation and location of the plot and its boundaries came to light only upon making the field verification and not before that, but the criteria had been clearly spelled out in the advertisement itself as well as the brochure and it was open to the petitioner to disclose these facts at that time. However, the petitioner withheld these facts at the initial stage and at a later stage when upon close verification, it was found that he was not a suitable candidate he is raising pleas of arbitrariness.

Learned Counsel for the respondent-Corporation, therefore, argues that the rejection of the candidature of the petitioner does not suffer from any legal infirmity rather the petitioner had set up a false case.

In reply to the arguments made by learned Counsel for the respondent-Corporation, the petitioner has replied in rejoinder affidavit taking pleas that he had obtained easementary rights from the person from whom he has purchased the land.

We have heard learned Counsel for both sides at length and while considering the facts and circumstances of the case, as well as the pleadings, which are on record, it becomes abundantly clear that the conditions as laid down in Clause 4 (g) of the Brochure with regard to land site and it is being approachable by a public road or a private road very well laid down in the guidelines. The petitioner was very well aware that in order to fulfil the conditions imposed under Clause 4 (g) he could not have given the choice of land, which did not have free access to the approach road. The only way to link the godown site would have been either through a public road or through a private passage belonging to the petitioner. It was certainly not open to the petitioner to read easementary rights into the word private passage as mentioned in Clause 4 (g).

Few facts, which are also clear from the affidavits filed by both sides that the petitioner had made an application on 27.11.2009. The petitioner was very well aware of the criteria laid down in the Brochure and was also very well aware of the details that he had to give in his application. However, insofar as the condition imposed about the motorable and approach road was concerned, the petitioner did not give any specific details. The petitioner has placed on record as Annexure 12 to the writ petition affidavits of Giriraj Singh and Chandrapal Singh, which are dated 26.5.2010, both these affidavits are six months later to the date of the application. Therefore, at the time of making of the application the petitioner had not spelled out clearly in his application as to how the plot, which he had offered for the setting up of the LPG Godown would have free access to the roads whether by public road or by private road, perhaps if the petitioner had given this detail at the very beginning he would have been short listed in this place or perhaps other candidates, who offered similar approach roads may also have been considered.

From the record placed before this Court, it is also clear that the distributorship selection under the 'RGGLV' Scheme (supra) was a two stage process and initially the applications of the candidates were scrutinised and thus, found eligible and those who qualified as per Clause 4 and Clause 1 that is the common eligibility criteria for all categories and specific eligibility criteria for different categories were thereafter invited for the draw of lots.

The next stage was the field verification and credentials of the selected candidates. It is during the field verification that the suitability of the close godown land ascertained and it was during the second stage in the present case that it was discovered that the plot offered by the petitioner did not connect either to the public road directly nor did the petitioner have a private road, which was a motorable one.

On the other hand, the proposed road as mentioned by the petitioner was passing through plot no. 932 and 933, which was owned by third party and this was directly in contravention of Clause 3 (Ch) of the advertisement dated 17.10.2009 under the terms of Clause 14 of the advertisement it had also been clearly spelt out that if any information furnished by the applicant was found to be false at any point of time before or after the appointment, the allotment would be cancelled forthwith and in the facts of this case when it was found that the private road was not motorable and did not belong to the petitioner and also this detail had not been furnished by the petitioner initially in his application, the candidature of the petitioner was cancelled and he was duly informed.

Learned Counsel for the petitioner, Sri Manish Goyal has also submitted a written submission in which he has relied on definitions given under the U.P. Municipal Corporation Act, 1959 of private street and public street, which reads as hereunder:-

"2(58). "private street" means a street which is not a public street.

So far as term Public Street is concerned, it has been defined under the said Act as follows:

"2(62). "public street" means any street-

(a) heretofore leveled, paved, metalled, channeled, sewered or repaired out of Corporation or other public funds; or

(b) which under the provisions of Section 290 is declared to be, or under any other provision of this Act becomes, a public street.

He also relies on the definition given in Halsbury's Law, and on the Advanced Law Lexicon by P. Ramanatha Aiyar, which reads as hereunder:-

Halsbury's Law of England Vol.21, 4th Edition, Re-issue Paragraph-709 page 522 the meaning of the term Private Street is as follows:

"709. Meaning of 'private street'. "Private street' means a street that is not a highway maintainable at the public expense. It includes any land that is deemed to be a private street by virtue of a declaration made under the Highways Act,1980. For certain purposes in relation to any building, it includes any land shown as a proposed street on plans deposited with respect to that building either under building regulations or on an application for planning permission under the Town and Country Planning Act, 1990..

Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition Vol.3, the term 'private road' has been defined as follows:-

"Private Roads are neighbourhood ways not commonly used by others than the people of the neighbourhood where they are, though may be used by any one who may have occasion to do so.

Private Roads are those which are only open for the benefit of certain individuals to go from any to their homes for the service of their lands and for the use of some estates exclusively. Glen on Highways, Pratt on Highways."

The contention of the learned Counsel for the petitioner is that a perusal of the aforesaid definitions in the State of U.P. as well as internationally 'private road' does not mean that it must be constructed upon the land of the private person. Even if it is a road benefit of more than one person but it has not been constructed out from public expenses it will be treated as a private road. Therefore, the term cannot be given restricted meaning and it is evident from the application form that the term has not been given a restricted meaning. Private road of the applicant means not only a road that may be constructed upon own land of the applicant but it might also be a land which is constructed upon a land arranged for by the applicant. It is evident that the applicant has provided the complete details with respect to the arrangement of the said road and the road has been constructed by the vendor of the applicant. The applicant has, therefore, given the affidavit of his vendor which has been annexed at page 131 and 132 of the writ petition and which does not stands controverted in the counter affidavit. Hence the term private road of the applicant cannot be given a restricted meaning and the selection of the petitioner could not have been cancelled merely on a hyper technical ground that the road was not constructed upon the own land of the applicant.

He further contends that an illustration can be given of the fact that where the land is leased land, the applicant always has a right to use the land as pathway and such road will always be treated to be a private road of the applicant. Any different interpretation will not serve the purpose of the Distributorship as in many cases where several plots are carved out with one common private road; the grant of Distributorship will become redundant if each plot holder will be required to establish that the road was constructed on his own land. Hence the interpretation given by the respondent frustrates the objective of grant of Distributorship and does not advance the distribution of public largess.

In the last, learned Counsel for the petitioner has tried to rely upon a decision of the Hon'ble Apex Court in the case of Monika Gupta Vs. Union of India reported in 2010 (6) SCC, but the facts of that do not help the petitioner at all, infact reference may be had to paragraph 21 of the said judgment in which the Hon'ble Apex Court has taken note of the form that the respondent no.4 in that case had not indicated in his application from facts and details about the availability of the land for godown, which were not in accordance with paragraph no.8 of the Brochure in that case and, therefore, the Hon'ble Apex Court took a view that in view of the fact that the criteria laid down by the Brochure had not been complied with at the initial stage in the application filed by the respondent no.4, the selection committee had rightly come to the conclusion to ignore the same. These observations made by the Apex Court in fact support the case of the respondent-Corporation, which has also taken a view in the present case that the petitioner had in his application not properly disclosed the details with regard to the approachability of the plot by a motorable approach road at the initial stage, therefore, this decision does not help the petitioner at all.

The petitioner has sought to interpret the rules with regard to the ownership of the land and the provision of approach road by saying that the Clause 4 (g) did not stipulate that the approach road should belong to the candidate or it should be owned by the candidate.

The petitioner is, in fact, seeking to bend the rules by way of interpretation in his favour which if allowed by this court, would no doubt result in inequality qua other candidates and will offend the mandate of Article 14 of the Constitution of India.

The distribution of the largesse by the State cannot be done in any other manner except in a free and fair manner. The rules are to be applied in every case in the same manner and the rules cannot be allowed to bend to suit the candidature of one person or another. If the interpretation sought to be given by the petitioner to the rules as is given effect to, it shall no doubt result in inequality against those candidates who have not sought bending of the rules in their favour in such a manner. This cannot be permitted by the court. The interpretation sought to be given by the petitioner to the Clause 4 (g) with regard to the ownership of the land and the approach road, therefore is not accepted by this Court and the pleas of the petitioner in this regard are rejected.

The criteria being laid down clearly in Clause 4(g) even at the time of filling up the application form, the petitioner was very well aware that the private passage, which he proposed to use to link the godown to the approach road was (a) not belonging to him and (b) was not motorable and it could create difficulties for the general public for having free access to the godown.

In fact, from the totality of circumstances, it appears that the petitioner, who had knowledge of the fact that the private road did not belong to him and was not motorable had given a wrong impression in the application that he could use the private road freely, due to which he was considered as a suitable candidate in the first place for consideration.

On a consideration of all the facts of this case, we are of view that the petitioner did not fulfil the eligibility criteria as imposed under Clause 4 (g) and, therefore, the order passed by the Corporation rejecting the candidature and selection of the petitioner did not contain any infirmity. The Corporation has not only given the petitioner an opportunity of hearing before passing of the impugned order dated 14.9.2010, but has supplied a clear reason for doing so that he did not fulfil the eligibility criteria under Clause 4 (g) of the Brochure and because the petitioner had at no point of time, challenged the norms as laid down by the Corporation on any ground, it cannot be said that the order passed by the Corporation is either arbitrary, bad or illegal.

We, therefore, come to the conclusion that the petition filed by the petitioner is devoid of merit and is liable to be dismissed. Dismissed.

Dt/-19.10.2011

S.P.

Hon'ble Ashok Bhushan, J.

Hon'ble Bharati Sapru, J.

Dismissed.

For detailed reasons, see our order of date passed on the separate sheets.

Dt/-19.10.2011

S.P.