Sparsh Singh Yadav vs Union Of India , Ministry Of ...
2023 Latest Caselaw 5352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 
Case :- WRIT - C No. - 6522 of 2022
 
Petitioner :- Sparsh Singh Yadav
 
Respondent :- Union Of India , Ministry Of Petroleum And Natural Gas , New Delhi Thru. Secy. And Others
 
Counsel for Petitioner :- Ashish Kumar Mishra
 
Counsel for Respondent :- A.S.G.I.,Manish Jauhari
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Manish Kumar,J.

Heard Shri V.R. Singh, learned Senior Advocate assisted by Shri Ashish Kumar Mishra, learned counsel for the petitioner and Shri Manoj Jauhari who appears on behalf of respondents no.2 to 4.

This petition has been filed by the petitioner with the following main prayer :-

i. That the writ, order or direction may be issued in favour of the petitioner and against the opposite party no.2 to 4 in the nature of certiorari thereby quashing the cancellation order dated 22.4.2022 issued by the opposite parties cancelling the subject location.

ii. That the writ, order or direction may be issued in favour of the petitioner and against the opposite party no.2 to 4 in nature of Mandamus thereby commanding the opposite party no.2 to 4 to complete the necessary remaining formalities, if any, and thereafter grant the letter of intent (LOI) to the petitioner for establishment of retail outlet dealership (R.O.) of the Indian Oil Corporation under OBC category over the property offered by the petitioner being situated at village Faizullaganj, Tehsil Sadar, District Luckow, as per the advertisement dated 25.11.2018.?

It has been argued by the learned counsel for the petitioner that the opposite parties no.2 to 4 had invited an application for retail outlet dealership under OBC category at village Faizullaganj on 25.11.2018. The petitioner applied for the same on 23.12.2018. He was informed on 11.07.2019 that he was prima facie qualified for draw of lots for selection of retail outlet. The petitioner took part in draw of lots on 22.7.2019 and he was informed vide e-mail dated 23.7.2019 of opposite party no.3 that he was found successful for retail outlet dealership and accordingly the petitioner made necessary payment of Rs.30,000/- towards initial security deposit on 27.7.2019 and also submitted all other necessary documents including notarized affidavit and ?khasra?, khatauni and sketch map of offered land in office of opposite party no.3 on 02.8.2019.

Inspite of having received the aforesaid documents the opposite party no.3 again directed the petitioner to resubmit certain documents which were resubmitted by the petitioner in the office of opposite party no.3 on 30.9.2019. He was also informed through e-mail dated 02.11.2019 by opposite party no.3 that its Land Evaluation Committee will visit the site offered by the petitioner for its inspection on 13.11.2019 but later on the said LEC inspection was preponed to 06.11.2019 and ultimately the Land Evaluation Committee conducted its inspection on 06.11.2019 and being satisfied by the suitability of the land offered by the petitioner the Committee told the petitioner that they would submit the report in the office of opposite party no.3 so that further process may be initiated at the earliest. The opposite party no.3 also invited a report from the Tehsildar Sadar, Lucknow on 22.02.2020 inquiring as to whether village Faizullaganj comes under block and Tehsil Lucknow. Tehsildar gave the report on 04.3.2020 in favour of the petitioner. No order was passed thereafter for a long time, therefore, the petitioner gave legal notice to the opposite parties no.2 to 4 asking them to communicate with the petitioner and to issue letter of intent in respect of the retail outlet dealership in favour of the petitioner.

The respondents by their order dated 22.4.2022 informed the petitioner that the location in question, i.e., ward Faizullaganj stood cancelled as it was wrongly advertised as rural location whereas in reality it falls within the municipal limits of the city of Lucknow. The petitioner was also informed by a letter dated 19.5.2022 that he may take back his application fee by submitting certain documents.

The petitioner?s case as argued by the learned counsel for the petitioner is that after all formalities were completed and only letter of intent was remaining to be issued, the respondents could not have cancelled the location of the retail outlet.

The action of the opposite parties is unprofessional, unethical and arbitrary and against the principles of natural justice and the doctrine of promissory estoppels will apply. In such a case as now the respondents no.2 to 4 are estopped from cancelling the subject location after declaring the petitioner as a successful candidate.

The petitioner has spent almost two lacs of rupees in trying to develop the land with all necessary facilities for setting up the retail outlet and he has been kept hanging for a long time and now has been left in the lurch.

Shri Manish Jauhari, learned counsel who appears on behalf of the respondents no.2 to 4 has placed reliance upon his counter affidavit wherein it has been stated that no letter of intent was ever issued to the petitioner. The formalities regarding the identification of successful offer was done and the petitioner?s offer was found suitable.

At the same time the respondents discovered that although the advertisement was issued for retail outlet in a rural area and the Faijullaganj was a Mohalla/ ward of city of Lucknow and it has been wrongly advertised. For a retail outlet situated in a village, the requirement of land is less whereas for a retail outlet in a city the requirement of land is much more. Moreover, there are several other formalities that need to be looked into insofar as setting up of a retail outlet in an urban area is concerned.

The learned counsel for the respondents no.2 to 4 has also placed reliance upon judgments of this Court delivered by various co-ordinate benches as quoted in para 3, 4 and 5 of the counter affidavit. Para 3, 4 and 5 of counter affidavit being relevant are being quoted hereinbelow :-

?3. That at very outset before giving paragraph wise reply the respondent corporation questions the locus Standi of the petitioner to challenge order dated 22.4.2022 by means of which the entire location has been cancelled due to incorrect advertisement. It is necessary to point out here that this Hon?ble Court vide order dated 28.09.2021 passed in Writ Petition C No.13940 of 2021 entitled as Shishir Patel vs. Union of India and Others has held mere offer of land to the corporation by the applicant may be in group -1, 2 and 3 does not give rise to any legitimate expectations to get the dealership of the retail outlet. The relevant extracts of the order dated 28.9.2021 is reproduced hereunder

?The only ground on which the petitioner claims legitimate expectation is that he entered into a lease agreement for 20 years on rent/ premium with a private person pursuant to the Corporation?s letter dated 04.9.2019 asking him to offer suitable land, and if such a letter had not been given, he would not have entered into the lease agreement.?

21. So far as the offering of land by the applicant for Retail Outlet dealership is concerned, the Brochure provided that all the applicants meeting the eligibility criteria will qualify for further selection process. Clause 4 of the Brochure provided for the eligibility criteria for individual applicants proprietorship/ partnership. Sub-Clause (v) of Clause 4 deals with the land (applicable to all categories). It provides that the applicants would be classified into three groups based on the land offered or land not offered by them in the application form. The applicants having suitable piece of land in the advertised location/ area either by way of ownership/ long term lease for a period of minimum 19 years 11 months or as advertised by the Corporation were classified in Group 1. The applicants having Firm Offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by the Corporation were classified in Group 2 and the applicants who had not offered the land were classified in Group 2 and the applicants who had not offered the land were classified in Group 3. The applicants in Group 3would be processed / advised to offer land, only in case no eligible applicant is found or no applicant gets selected under Group 1 and 2. The applicants under Group 3 who did not offer land along with application, would be advised by the Corporation to provide suitable land in the advertised location/ stretch within a period of three months from the date of issuance of intimation letter to them and in case, such applicant fails to provide suitable land within the prescribed period or the land provided is found not meeting the satisfied criteria, the application would be rejected.

22. These provisions of the Brochure make it clear that mere offer of land to the Corporation by the applicant may be in Group 1, Group 2 or Group 3 does not give rise to any legitimate expectation to get the dealership of the Retail Outlet as the offered land must be a suitable land confirming to the laid down/ specified criteria and also satisfying other conditions with respect to offering of land a smentioned in the Brochure, under which the company reserved the right to cancel/ withdraw the advertisement, as it is sole discretion. So it cannot be said that any such promise was made as alleged for grant of the dealership of Retail Outlet, if the petitioner provided any land. The expectation of the petitioner, in view of the letter of intimation issued to him for offering the land, that if he offers the land after entering into lease agreement, he would get the dealership, cannot be a reasonable or a logical expectation flowing from any promise made or established practice that the applicant offering the land would necessarily be granted the dealership.

23. As aforesaid the law is settled that a legitimate expectation, even when made out, does not always entitle the expectant to a relief. Besides, public interest, change in policy, conduct of the expectant any other valid or bona fide reason given by the decision maker, may be sufficient to negative the legitimate expectation. As a ground for relief the efficancy of this doctrine of legitimate expectation is weak one. The decision maker has to justify the public interest or any other valid or bona fide reason.

24. We find that the Corporation has given valid and bona fide reasons for cancelling the subject location I.e, wrong description and publication of the name of district in the advertisement. The error in the advertisement with respect to the subject location, contravenes the principles of fairness and transparency in the matter of grant of dealership of the Retail Outlet.

25. In view of the aforesaid, we are not convinced with the submission of Mr. Sharad Pathak that the error in publication of the district name could not be corrected after two and half years of the publication. It could not be shown to us that in the mean time the petitioner acquired any indefeasible right by lapsee of time and particularly when the petitioner had yet not been selected and the Indian Oil Corporation under the Brochure reserved the right to cancel/ withdraw/ amend the advertisement at its sole discretion, which right of the Corporation has neither been disputed nor challenged.

26. We are of the further considered view that the Corporation cannot be directed to proceed for the subject location in pursuance of the advertisement, it being erroneous, which gives incorrect infromation about the subject location.

27. We do not find any illegality in the orders under challenge. The writ petition is devoid of merits and is hereby dismissed.?

4. That in similar sets of circumstances the Hon?ble Court in Writ C No.9991 of 2022 entitled as Hardev Singh vs. Indian Oil Corporation Limited & Another vide order dated 30.5.2022 has pleased to dismissed the writ petition with observation that in case the respondent corporation would have proceeded with incorrect advertisement then it had possibility of prejudicing the other applicants as such the respondent corporation was fully justified in cancelling and in deciding to go for fresh advertisement. The relevant extracts of the order dated 30.5.2022 is reproduced hereunder :-

?Since the location was incorrectly advertised inasmuch as the Block name was incorrectly mentioned in the advertisement, the competent authority has decided to cancel the advertisement for the subject locations.?

Counsel for the petitioner submitted that since the village was correctly mentioned and, therefore, even if the description of block in the advertisement was wrong, it had not resulted in prejudice to anyone. It is not in disputed that apart from Block Modawara, there is another Block Mehrauni falling in Tehsil Mehrauni. It is also not disputed that Village Gona (Madawara Road), which was identified for opening of retail outlet would fall in Block Mehrauni and not Block Madawara, as mentioned in the advertisement . A person having suitable land for the retail outlet in Block Mehrauni may have not applied finding that the advertisement requires the land to be situated in Block Madawara. Consequently, in case the respondent- Corporation would have proceeded with the selection process, it had the possibility of prejudicing such applicants. In such a situation, the respondent-Corporation was fully justified in cancelling the subject location and in deciding to go for fresh advertisement. The impugned order recites that the application fees and initial security deposit would be refunded as per the existing procedure. Counsel for the respondent states that the amount has been refunded. Thus, no case is made out to interfere with the impugned decision.

The petition lacks merit and is, accordingly, dismissed. In case fresh advertisement is published, it shall be open to the petitioner to apply for the same.?

5. That in another case of similar nature in Writ C No.4386 of 2022 entitled as Raji Ullai vs. Union of India and Others vide order dated 18.7.2022 the Hon?ble court disposed of the petition with direction that petitiner is free to apply for fresh advertisement and he will be considered in accordance with law. The relevant extracts of order are reproduced hereunder :-

?The advertisement for grant of petrol/diesel retail outlet by the oil company on account of a doubtful identity of the location was cancelled and a fresh advertisement is proposed to be issued.

The security amount of all the applicants in consequence of the cancellation of the advertisement was to be returned.

The petitioner is also at liberty to seek refund of the money which was deposited towards the security along with his application.

The petitioner is free to apply once fresh/ revised advertisement is issued and in case any such application is made, the same shall be considered in accordance with law.

The application for refund which shall be made within a week shall be considered and the money refunded to the petitioner without any delay.

The writ petition is disposed of accordingly.?

Learned counsel for the petitioner in rejoinder affidavit has placed reliance upon the judgment rendered by the Hon?ble Apex Court in M/S Jit Ram Shiv Kumar and Others vs. State of Haryana and Others [1981 (1) SCC page 11] and para 40 thereof is being quoted hereinbelow :-

?40. The scope of the plea of doctrine of promissory estoppel against the Government may be summed up as follows :-

(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.

(2) The doctrine cannot be invoked for preventing the government from discharging its functions under the law.

(3) When the officer of the government acts outside the scope of his authority, the plea of promissory estoppel is not available. The doctrine of ultravires will come into operation and the government cannot be held bound by the unauthorised acts of its officers.

4. When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the court is entitled to require the ofifcer to act according to the scheme and the agreement or representation. The officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvantageous position.

5. The officer would be jusitified in changing the terms of the agreement to the prejudice of the other party on special considerations such as dificult foreign exchange position or other matters which have a bearing on general interest of the State.?

This Court has carefully perused the judgment rendered by the Hon?ble Supreme Court and found that the same is inapplicable in case of the petitioner as in the said case the decision taken by the officer concerned was unreasoned and for undefined and undisclosed ground. In the case of the petitioner this Court has gone through the impugned order which assigns a reason which is specific in nature for cancellation of the advertisement on the ground that out of some misapprehension the retail outlet was advertised as a rural outlet but it was found on inquiry that such outlet in Faizullaganj is actually within the Municipal limits of the city of Lucknow and different specifications are applicable for a retail outlet in rural area and a retail outlet in urban area.

This Court is fairly of the opinion that no letter of intent was ever issued to the petitioner. Mere filing of an application and being declared successful bidder on the basis of draw of lots would not create any right in favour of the petitioner for being allotted retail outlet dealership. The petitioner had submitted his offer in pursuance to the advertisement but now the oil company has decided that the site in question has been wrongly advertised and, hence, there is no arbitrariness in the order passed by the respondents in cancelling the advertisement in respect of the site in question.

In view of the aforesaid, writ petition stands dismissed.

Order Date :- 17.2.2023

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