Sher Singh vs Chief Regional Manager And 5 Others
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Allahabad High Court

Sher Singh vs Chief Regional Manager And 5 Others on 19 December, 2023

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Neutral Citation No. - 2023:AHC:240564-DB
 
Court No. - 40
 
Case :- WRIT - C No. - 7880 of 2023
 
Petitioner :- Sher Singh
 
Respondent :- Chief Regional Manager And 5 Others
 
Counsel for Petitioner :- Jahnavi Singh
 
Counsel for Respondent :- A.S.G.I.,Dushyant Kumar,Gaurav Kumar Chand,Komal Mehrotra
 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Prashant Kumar,J.

1. Heard Ms. Jahnavi Singh, learned counsel for the petitioner and Shri Komal Mehrotra, learned counsel for Hindustan Petroleum Corporation Ltd. (HPCL).

2. Present writ petition has been preferred for following reliefs:-

"(I) Issue a writ, order or direction in the nature of certiorari quashing the order dated 25.1.2023 passed by respondent no.1 by which the petitioner's selection for allotment of retail petrol pump dealership has been cancelled.

(II) Issue writ, order order direction in the nature of certiorari quashing the order passed by respondent no.1 by which the respondent no.4 has been declared as selected.

(III) Issue any order or direction taking suo moto cognizance for deliberate violation of the judgment and order dated 04.01.2023 passed by this Hon'ble Court in the previous writ petition no.38040 of 2022 in exercise of inherent jurisdiction conferred with the Hon'ble Court under Art.215 of the Constitution of India, in view of the fact that the respondent has reiterated the same reason while rejecting the claim of the petitioner.

3. The record in question reflects that the HPCL has published an advertisement for allotment of retail outlet dealership of petrol pump for Location No.1566 "Between Km Stone 45and 43 on Seohara to Moradabad Road" District Bijnor under Open Category on 25.11.2018. Against the said advertisement, the petitioner had offered a plot of size 35 Mtr x 35 Mtr in Khasra No.274, Village Bagwada Kanth, Distt. Bijnor. The petitioner was declared as successful in the bid opening conducted on 15.2.2019 for selection of RO dealership at the said location. Later on, by the order dated 2.11.2022, the candidature of the petitioner for retail outlet proposed to be established at the site was rejected by the HPCL invoking Clause 4 (v) (1) (iv) of Brochure for Selection of Dealers for Regular & Rural Retail Outlets, 2018 (in short "Brochure, 2018"). For ready reference, the Clause 4 (v) (1) (iv) is quoted as under:-

" It should be the responsibility of the applicant to ensure that as on date of application:-

i.

ii.

iii.

iv. There is no other land including Govt. land between ROW and offered plot."

4. The reasons recorded in the order dated 2.11.2022 for rejection of petitioner's candidature was as under:-

"However, in your case Govt. land of Khasra No. 287, whatever thin strip it may be; exists between the land offered by you in Khasra No. 274 and the road. The land is still recorded in Khatauni as "Banjar" and has not been transferred/mutated in favour of PWD."

5. The said order dated 2.11.2022 was challenged by the petitioner in Writ-C No.38040 of 2022 (Sher Singh v. Chief Regional Manager, Hindustan Petroleum Corporation Ltd. & Ors.). In the said writ petition, the Division Bench has considered a report dated 16.2.2021 submitted by the Tehsildar, Tehsil Dhampur through competent authority to respondent no.1 with regard to location of the offerred Khasra Plot No.274. The said report dated 16.2.2021 is quoted as under:-

" ?????,

?????? ????????? ???? ??? ???? ????? ????? ???? ??? ???????? ??????? ????? ???????? ??? ?????? ???? ?????? ?? ???? ?? ??? ?????? ??????????? ?????? ????? ??????? ????? ???????? ??? ???????? ?? ????????? ????? ??? ????? ?? ????? ???? ???? ???-274 ???? 1.125??? ?? ?? ????? ?? ???? ??? ???? ???-287 ?? ??????? ??? ????? ???? ?? ??? ?????? ??? ??????? (????????) ?? ???? ?? ????? ????? ?????? ?? ???

????? ??????? ????? ???????? ????? ?????? ?????? ??? ????? ???? ???-274 ???? 1.125??? ??? ???? ????? ???? ????? ???? ? ????? ???? ????? ???? ???????? ???? ??? ???????? ?? ??? ??????? ??? ?? ???? ????????? ?????? ????? ??? ?????? ???????? ???? ?? ????? ??? ?? ??????????? ?? ???? ???? ???-274 ?? ????? ???? ???-287 ???? 0.367??? ????? ?? ?? ?? 274 ?? ???? ???? ???? ???- 289 ?? ???? ?? ???? ?? ??? ??? ????? ??? ????? ?????? ?????? ?? ?? ?? ?? ??????? ??? ????? ????? ??? ???????? ?? ?? ????? ????? ???????? ?? ????????? ?? ????? ??? ? ??? ??? ??? ???? ???-274 ??????? ??? ????? ????? ?? ??? ??? ??? ????? ???? ???? ??????? ???

?????? ???? ????????

??????-?????? ?????-??????"

6. In the said proceeding, the Division Bench has also considered identical report submitted by the Tehsildar dated 13.10.2021 to respondent no.1. In this backdrop, the said writ petition was disposed of on 4.1.2023, the operative portion of which is also quoted as under:-

"...............7. Learned counsel for respondent no. 1 and 2 has not disputed the aforesaid two reports. Thus, it is evident on record that Khasra Plot No. 289 adjoining the offered plot No. 274 is part of the State Highway, Seohara-Moradabad. Thus, the plot offered by the petitioner for establishing retail outlet satisfies the aforequoted clause 4(v)(1)(iv) of Brochure for Selection of Dealers for Regular & Rural Retail Outlets, 2018.

8. Under the circumstances, we remit back the matter to the respondent no.1 to pass an order afresh in accordance with law after affording reasonable opportunity of hearing to the petitioner and all other concerned person, expeditiously preferably within three weeks from the date of submission of a certified copy of this order.

9. The impugned order and any previous order rejecting candidature of the petitioner shall abide by the order to be passed by respondent no.1 as aforesaid.

10. With the aforesaid directions, the writ petition is disposed of."

7. In response to the aforesaid order, again the claim of the petitioner was considered and rejected by the order impugned dated 25.1.2023, hence this writ petition.

8. Ms. Jahnavi Singh, learned counsel for the petitioner, in this backdrop, has submitted that the ground, which was disapproved by the Division Bench in earlier round of litigation, has again been taken while passing the order impugned herein this writ petition. She submits that while passing the order dated 4.1.2023 the Division Bench has considered the reports dated 16.2.2021 and 13.10.2021 submitted by the Tehsildar and the said reports were also not disputed by learned counsel for the HPCL in the said proceeding. Therefore, the Division Bench had already approved the offerred plot of the petitioner for establishing the retail outlet by specifically holding that Khasra Plot No.289 adjoining the offered plot no.274 is part of the State Highway, Seohara-Moradabad and, thus, the plot offerred by the petitioner satisfies the Clause 4 (v) (1) (iv) of Brochure, 2018. She submits that small strip of the land, which falls between the petitioner's offerred land and the State Highway, even though reports were in categorical terms 'small strip', the said land is covered/ used in the State Highway. As such she submits that the ground taken by the respondents while passing the impugned order (herein this writ petition) is contemptuous in nature and against the dictum of the Division Bench in the earlier round of litigation. She also submits that the doctrine of equitable/ promissory estoppel is also attracted in the present matter. Once the petitioner was selected, letter of intent (LOI) was already issued, agreement between the parties have also entered into, even on the spot the petitioner had also invested huge amount and the Division Bench had already expressed satisfaction regarding the location of the offerred land, therefore, the action/ ground taken by the respondents is not sustainable. She submits that impugned order has been passed by the respondents on the basis of fresh report obtained by the Lekhpal and that so without the approval of the competent authority i.e. Sub Division Magistrate, is not sustainable as the said controversy had already been put at rest by the Division Bench in the earlier round of litigation. It is also alleged that the order impugned has been passed at the behest and dictate of the fifth respondent's father, who is stated to be the District President of the Ruling Party. It is submitted that once the HPCL had accorded LOI on the basis of report of Land Evaluation Committee and also considered the earlier two reports submitted by the Tehsildar, the entire action of the respondents is not sustainable and is liable to be set aside.

9. Learned counsel for the petitioner has also contended that in similar circumstances this Court had accorded indulgence vide order dated 17.1.2023 passed in Writ-C No.12780 of 2020 (Shubham Gupta v. Hindustran Petroleum Corporation Ltd. through its Regional Manager & Anr.). Heavily relying on para 7 of the said judgment, she submits that the petitioner being on similar footing is also entitled for similar indulgence as provided in the said judgment.

10. Per contra, learned counsel for HPCL has vehemently opposed the writ petition and submitted that the order impugned does not suffer from any illegality. He has tried to justify the passing of the impugned order and submitted that once the matter was relegated, the authority had every right to pass an order, which is sustainable.

11. Heard rival submissions and perused. the record. The petitioner after fulfilling all the requisite conditions as mentioned in the brochure of HPCL had applied for opening RO Dealership at the aforementioned location. In the present matter, the bone of contention is the status of small strip of land, which comes between the offerred land and State Highway. We find that the condition that there there should be no other land between ROW and offerred plot, has been put with an object that there may not be any any problem in egress and ingress between offerred land and the main road. Once the Division Bench in earlier round of litigation relying on the reports of the Tehsildar addressed to HPCL has categorically held that the said strip is part of State Highway and is also being used for the said purpose, and the plot offerred by the petitioner satisfies the Clause 4 (v) (1) (iv) of Brochure, 2018, then again the rejection of the claim of the petitioner on the same ground is not sustainable.

12. On the matter being taken up on 18.12.2023, the Court has proceeded to pass the following detailed order:-

"1. Heard Ms. Jahnavi Singh, learned counsel for the petitioner and Shri Komal Mehrotra, learned counsel for Hindustan Petroleum Corporation Ltd. (HPCL).

2. Present writ petition has been preferred for quashing the order dated 25.1.2023 passed by respondent no.1 by which the petitioner's selection for allotment of retail petrol pump dealership has been rejected; and also for quashing the order by which the respondent no.4 was declared as selected for the said dealership.

3. Learned counsel for the petitioner has submitted that the petitioner has earlier preferred Writ-C No.38040 of 2022 (Sher Singh v. Chief Regional Manager, Hindustan Petroleum Corporation Ltd. & Ors.) for quashing the order dated 2.11.2022 passed by respondent no.1 by which the petitioner's selection for allotment of retail petrol pump dealership on Plot No.274 situated in between KM Stone 45 and 43 on Seohara to Moradabad Road has been cancelled under Group 1 category and he has been wrongly placed under Group 3. By order dated 2.11.2022, the candidature of the petitioner has been rejected by invoking Clause 4 (v) (1) (iv) of Brochure for Selection of Dealers for Regular & Rural Retail Outlets, 2018. The Division Bench while considering the claim of the petitioner has considered the said clause and also considered the report dated 16.2.2021 submitted by the Tehsildar, Tehsil Dhampur through competent authority to respondent no.1 with regard to location of the offered Khasra Plot No.274. The Division Bench has also considered the another identical report of Tehsildar dated 13.10.2021 sent to respondent no.1. Learned counsel for the petitioner has submitted that in the said proceeding, the contesting respondents had not disputed both the reports. Accordingly, the Division Bench had observed that it is evident on record that Khasra Plot No.289 adjoining the offerred plot no.274 is part of the State Highway, Seohara-Moradabad and thus the plot offered by the petitioner for establishing retail outlet satisfies the aforequoted clause 4 (v) (1) (iv) of Brochure for Selection of Dealers for Regular & Rural Retail Outlets, 2018. Accordingly, vide order dated 4.1.2023 the matter was remitted to respondent no.1 to pass fresh order in accordance with law. Pursuant to the aforesaid direction, again the case of the petitioner was considered and rejected by the order impugned, which is challenged herein this writ petition.

4. Learned counsel for the petitioner, in this backdrop, has submitted that in the aforesaid writ proceeding, the contesting respondents had not disputed both the reports of Tehsildar. Present writ petition was entertained on 21.3.2023 and the respondents while filing the counter affidavit dated 10.8.2023 had placed reliance on the purported report dated 6.4.2023 of concerned Lekhpal, just to circumvent the observations made by the Court in earlier writ petition, and that so without approval of the competent authority i.e. Sub Divisional Magistrate/ Tehsildar. Objection in this regard has been taken in detail in para 18 of the rejoinder affidavit. She has also placed reliance on the information obtained from the official website of the Corporation, which shows that during the pendency of the present proceeding the respondents have also proceeded to accord LOI in favour of one Sukhvir Singh, even though, who is also similarly situated. In this backdrop, she submits that entire action has been taken by the respondents just to favour other incumbent and as such the same being unsustainable is liable to be set aside.

5. On the request of learned counsel for the HPCL, put up this matter tomorrow at 2.00 p.m. for enabling him to get instructions in the matter."

13. In response to the aforesaid order, Shri Komal Mehrotra, learned counsel for HPCL fairly states that till date no third party interest has been created in the matter.

14. In the aforesaid facts and circumstances, we are of the considered opinion that the authority concerned has not factually evaluated the record and the ground reality. In most arbitrary manner without considering the observations made by the Division Bench in the earlier round of litigation and ignoring the previous two revenue reports, though there was no reason to discard the said report, the order impugned has been passed, which in the opinion of the Court is not sustainable. Accordingly, the order impugned is set aside and the writ petition stands allowed accordingly.

Order Date :- 19.12.2023

S.P.