Rajasthan High Court - Jodhpur

Tana Ram vs Hindustan Petroleum Corp. Ltd on 29 June, 2022

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 18605/2019

Tana Ram S/o Beeja Ram, Aged About 24 Years, Resident Of Manasar, Phalsund, District Jaisalmer (Raj.).

----Petitioner Versus

1. Hindustan Petroleum Corp. Ltd., (HPCL) 17 Jamshed Ji Tata Road, Mumbai, 400020, Through Its Terriotory Manager (Retail)

2. Senior Regional Manager Hindustan Petroleum Corporation Limited, Bhagat Ki Kothhi, Jodhpur (Raj.).

                                                                 ----Respondents


For Petitioner(s)         :     Mr. B.S. Sandhu
For Respondent(s)         :     Mr. Vinay Kothari with
                                Mr. Pradeep Singh Khichi



                     JUSTICE DINESH MEHTA

                                 Judgment

29/06/2022

1. By way of present writ petition, the petitioner has raised the

grievance that the respondent-Corporation has rejected his

candidature per-viam communication dated 06.09.2019

(Annexure-10), without providing an opportunity to the petitioner

to offer an alternate land.

2. The petitioner has pleaded that at the time of filing the

application pursuant to combined advertisement dated 24.11.2018

for location "3 kms from the Kanod Village on main road,

Jaisalmer", he had offered two lands owned by him in khasra Nos.

302 and 305 of village Kanod. According to the petitioner, if out

of two lands offered by him the respondent - Corporation did not

find his land in khasra No. 302 to be meeting the requisite

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dimensions, then it ought to have considered his other land

situated in khasra No.305.

3. Having regard to such contention and finding that two lands

(Khasra No.302 & 305) have been mentioned in column No.13 of

the application form, on 19.12.2019 this Court passed the

following interim order:

"Learned counsel for the petitioner submits that the petitioner had offered two lands i.e. in Khasra No.302 and 305 in his application for grant of retail outlet and petitioner's name was selected in the draw of lot. Whereafter respondents rejected petitioner's candidature in Group-2 category vide communication dated 06.09.2019, interalia observing that the land offered by the petitioner did not have the minimum prescribed dimensions. It is asserted that may be land in Khasra No.302 is is not having desired dimensions, but his land in Khasra No.305 is having requisite dimensions, which ought to have been considered by the respondents.

Matter requires consideration.

Issue notice. Issue notice of stay application also. Meanwhile, respondents shall not initiate fresh draw of lots for subject location i.e. "within 3 kms. From Kanod village on main road, Jaisalmer"."

4. Mr. Kothari, learned counsel appearing for the respondent -

Corporation at the outset contended that the petitioner has misled

this Court by portraying that he had offered two lands, being land

falling in khasra Nos. 302 and 305 whereas, factually, he had

offered one land (khasra No.302) only and has wrongly inidicated

two lands in one column itself. He added that the petitioner had

furnished documents of land in khasra No.302 only and even at

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the time of field verification, the documents that were offered by

the petitioner were that of land in khasra No.302.

5. It was argued that it was only when the petitioner realised

that his land in khasra No.302 was not meeting the requisite

norms, he became wiser and tried to produce the documents of

land in khasra No.305. Inviting Court's attention towards various

communications including the notice given by the petitioner's

counsel, learned counsel for the respondents prayed that the

instant writ petition be dismissed for misleading the Court.

6. Having heard learned counsel for the parties on the

preliminary objections, this Court is of the view that the petitioner

cannot be accused of an attempt to mislead this Court, particularly

when he had indicated land of khasra Nos.302 and 305 in his

application form. Maybe, it is a case of misinterpretation of the

applicable provisions or misunderstanding the conditions of the

advertisement, but in any event the petitioner cannot be said to

have misled the Court.

7. Be that as it may. As the matter was substantially heard,

instead of deciding application under Article 226(3) of the

Constitution of India, the matter was finally heard and decided

with the consent of the parties.

8. Mr. Sandhu argued that it may be that the petitioner had not

filled-in the application properly and he omitted to separately

indicate the lands as plot No.1 and plot No.2, which he ideally

should have, but then, it is undisputed that the particulars of both

the lands were given and since the guidelines/dealership brochure

speaks of the 'alternate land', it was required of the respondent -

corporation to have provided an opportunity to the petitioner to

offer alternate land.

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9.    In   support   of    his    argument          that     the   respondent   -

Corporation is supposed to give opportunity to applicant to offer

alternate land, learned counsel relied upon the sub-clause (v) of

para No.4 of the guidelines and Note Nos. 2 and 4 appended with

Clause 'm' of para no.4 of the brochure dated 24.11.2018,

applicable to the subject advertisement. The said provisions are

reproduced hereunder:-

"(v) Land (Applicable to all categories):

The applicants would be classified into three groups as mentioned below based on the land offered or land not 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 term lease for a period of minimum 19 years 11 months or as advertised by the OMC.

Group 2: 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 OMC.

Group 3: Applicants who have not offered land in the application.

Applications under Group 3 would be processed/advised to offer land only in case no eligible applicant is found or no applicant get selected under Group 1 & 2.

In case land offered by all the applicants under Group 1 & 2 is found not suitable/not meeting requirements, then these applicant/s under Group 1 & 2 along with applicants under Group 3 (who did not offer land along with application) would be advised by the OMCs to provide suitable land in the advertised location/stretch, within a period of 3 months from the date of issuance of intimation letter to them through SMS/e-mail. In case the applicant fails to provide suitable land within the prescribed period or the land provided is found not meeting the laid down criteria, the application would be rejected.

(l) It should be the responsibility of the applicant to ensure that as on date of application:

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i. Offered land is of required dimension and abutting the Road boundary, after leaving Right of Way (ROW) line of the road.

ii. The offered land is also not notified for acquisition.

iii. Land owner is in Possession of the land from the beginning/edge of ROW line.

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

Note: In case it is found at later stage that the offered plot is not meeting any of the above conditions then in such case the offered land would be rejected and candidate will be given opportunity along with applicants under Group 3 by intimation through SMS/e-mail.

m) Verification of the supporting documents submitted by the selected candidate, post selection, will be carried out at the time of Scrutiny/Field Verification of Credentials (FVC).

Note 2

In case of locations where the applicant has not offered the land in the application (Group3) or if the offered land of all applicants under Group 1 & Group 2 got rejected due to not meeting the laid down criteria, then all such applicants shall be given an opportunity to offer land or alternate land (as the case may be) in the advertised location/stretch provided the applicant meet all other eligibility criteria.

A communication through SMS/e-mail would be sent to these applicants to offer land/alternate land within a period of 3 months from the date of offer letter.

On receipt of advice to offer land from OMCs the applicant should submit land offer online and indicate the category under which the land falls (Group 1 or Group 2) on the basis of the confirmatory letter from an advocate (Appendix III B). Upon selection, the selected candidate would be required to submit all the relevant documents pertaining to the land offered along with consent letter in the form of affidavit (Appendix III A) and/or power of Attorney (Registered), if applicable, along with confirmatory letter from an advocate (Appendix III B).

The applicants would be classified into two groups i.e. Group 1 & Group 2 based on the land offered by them.

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In case the applicant(s) fail to offer alternate land within the specified period, the offer would be withdrawn and application rejected under intimation to the applicant(s) through SMS/e- mail.

only one opportunity would be given to the applicant, either for offering land (if applicant has not offered any land along with application form) or for offering alternate land (if the land offered by the applicant is found to be not meeting the laid down criteria during Scrutiny/land evaluation/ rejection of land after selection, for applicants who have offered land along with the application).

Note 4:

i. In case the selected candidate (after clearing FVC) avails the opportunity to offer alternate land before issuance of LOI, the opportunity will not be available to the candidate post issuance of LOI. ii. One time opportunity to offer alternate land also will be available in case of failure of rental negotiation. However, in this case, LOI holder can offer alternate land within 90 days of failed negotiation. Further, this opportunity will not be available to the LOI holder in case he/she has availed the opportunity before issuance of LOI/post issuance of LOI.

iii. Opportunity for offering alternate land after selection (post FVC)/issuance of LOI would also be given to the those applicants who may have availed such opportunity earlier (Prior to FVC). iv. In case after selection, if it is observed that the offered land is co-owned by multiple persons and the selected candidate did not provide consent of all the co-owners, the selected candidate would be given 21 days' time to get consent of all the co- owners for the offered land failing which the selection of the candidate will get rejected and the candidate will get opportunity along with Group 3 applicants.

v. In case after selection, if it is observed that the offered land does nto contain sub-lease as required by OMC (for DFS/CC sites) the selected candidate would be given 21 days' time to make suitable amendment/addendum to the lease agreement failing which the selection of the candidate will get rejected and the candidate will get opportunity along with Group 3 applicants."

10. Taking the Court through above referred Clauses, Mr.

Sandhu argued that the brochure in unambiguous terms uses two

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expressions - 'suitable' and 'alternate land' and above referred

Note No.4 appended with conditions of para No.4 clearly stipulates

that the Corporation would require an applicant falling in Group 1

to offer alternate land, if the land offered by him does not meet

the requisite standard.

11. He argued that the brochure has created clear distinction

between the 'suitable land' and 'alternate land' and if a person is

selected by way of draw of lots in Group 1, then, the respondents

are required to give an opportunity to such applicant to offer

alternate land, if the first land offered by him does not meet the

norms.

12. Emphasising on Clause(iii) of Note 4, learned counsel argued

that the use of expression "those applicants who may have availed

such opportunity (alternate land) earlier (prior to FVC)" clearly

shows that an opportunity is required to be given to ask for

alternate land because of the use of words 'prior to FVC'. He

added that in both the eventualities post selection and prior to

selection, opportunity for offering alternate land has to be given.

13. Mr. Vinay Kothari, learned counsel for the respondent -

Corporation on the other hand submitted that the issue in hand is

squarely covered by the Co-ordinate Bench judgment dated

11.09.2020 rendered in the case of Gaurav Jain Vs. State of

Rajasthan & Anr. (S.B. Civil Writ Petition No.3143/2020). He

argued that maybe, condition No.4 and other clauses which Mr.

Sandhu has now referred to were not argued and hence not dealt

with by the Co-ordinate Bench while deciding the case of Gaurav

Jain (supra) but these arguments also would hardly lend any

support to the petitioner inasmuch as Note No.4 (iii) (at page

no.34) cannot be read in isolation.

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14. He argued further that when the basic provisions of the

brochure do not provide alternate land to be given by an applicant

whose offered land does not meet the requisite norms, the

petitioner cannot take advantage of so called confusion arising out

of reading of Note No.4 (iii) at page no.34. He emphasised that a

reading of land criteria given in para No.4 (v) leaves no manner of

doubt that in case the land offered by an applicant in Group '1' is

not found suitable then he can be considered only along with

Group 3 applicants. And that is the stage, when the petitioner can

offer an alternate land or other suitable land. He argued that the

expression used in proviso to Clause (v) is 'suitable land', which

expression has been used in order to ensure that an applicant of

Group 1 or 2 whose land has been rejected in field verification, he

can offer another suitable land while being considered along with

group 3 applicants.

15. Heard and perused material available on record.

16. Before addressing the arguments raised by the Petitioner, it

would be appropriate to outline the scheme of the subject

guideline, which is as follows. As per Para (V), of the

advertisement, those applicants offering a 'suitable land', i.e., land

which meets the criteria laid down in the guideline, would be

categorised in Group 1; those having a "firm offer on a suitable

land" would be categorised in Group-2 and those applicants who

have "not offered a suitable land" at the time of application would

be categorised in Group-3. If, for reasons mentioned in the

subject guidelines, the Respondent-Corporation finds the 'offered

lands' by applicants under Groups-1 and 2 to be unsuitable then

their application would be rejected. Thereafter, as per Note-2 in

round 2 of the application, the rejected applicants from Groups-1

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and 2 along with applicants from Group-3 would be provided an

opportunity to offer suitable land.

17. At this juncture it is important to delve into the semantics,

as petitioner's argument revolves around the distinction between

'suitable land' and 'alternate land' in the guidelines.

18. As mentioned earlier, 'suitable land' is simply that land which

meets the criteria laid down in the guideline. 'Alternate land'

would mean land offered as an alternative to offered land - in

such cases such 'alternate land' would be the land other than the

land initially offered by the Group-1 and 2 applicants which was

found unsuitable by the Respondent-Corporation. Having dealt

with the scheme of the guidelines and the import of words

'suitable' and 'alternate' under the subject guidelines, the

arguments of petitioner can be addressed.

19. Entire case of the petitioner rests upon two arguments;

firstly, the petitioner had offered two lands in relation to the

subject advertisement out of which even if one land was found

unsuitable as per the subject guidelines, then, the respondents

should have considered the second land. Secondly, there exists a

distinction between 'suitable land' and 'alternate land' and the

respondent corporation was bound to provide the petitioner an

opportunity to offer an 'alternate land' in the round-1 itself, in

case the Respondent-Corporation found the petitioner's offered

land to be unsuitable under the subject guidelines.

20. Both of petitioner's arguments are unsustainable - first

argument being factually incorrect and second being

misconceived. In so far as first argument is concerned, the

petitioner had not offered two lands along with his application. A

perusal of his application shows that in column No.13 he has given

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particulars of 'plot no.1' only. Maybe he has mentioned two

Khasra Numbers (302 & 305), however, not only has he produced

the documents of Khasra No.302 but even the field verification

was conducted for Khasra No.302 only. In case, applicant wanted

to offer two lands, he/she ought to have indicated the same by

giving all the requisite particulars as has been done in Exhibit-R/2

by another applicant (a copy of whose application form has been

placed by the respondent as Annexure-R/2). A perusal of the

petitioner's application shows that he had only made a reference

of two lands in khasra Nos. 302 and 305 without giving indication

or other particulars of the lands separately.

21. Adverting to the second argument of petitioner, in the

opinion of this Court, the reason for the usage of the word

'alternate' is the fact that there exist three categories of applicants

as explained in foregoing paragraphs, which also includes those

applicants who did not offer a land in the first place, i.e., Group-3

applicants. Therefore, while framing the provisions that provide a

second opportunity to offer land to a pool of applicants which

includes both - those who have offered a land initially whose land

was not found suitable and those who did not offer a land; the

drafters have rightly used the term 'alternate land' to include

within the fold of the provision applicants from Groups 1 & 2, i.e.,

those applicants who have to offer an alternate land to the one

already offered by them in round-1 of the application.

22. If the word arrangement of Clause of Note-2 is read

carefully, it carefully uses the expression 'offer land' in relation to

Group-3 applicants and 'alternate land' in relation to Groups-1 and

2 applicants. Resultantly, the argument that relies upon the

supposed distinction between the terms 'suitable land' and

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'alternate land' to assert a right for an opportunity to provide an

alternate land in the first round of application itself is

misconceived and thus, untenable.

23. The aforesaid interpretation of the subject guidelines further

finds support from the judgment of Coordinate Bench of this Court

in the case of Gaurav Jain Vs. Indian Oil Cor. Ltd. & Anr. (S.B.

Civil Writ Petition No.3143/2020) decided on 11.09.2020. The

relevant portion thereof reads thus:-

"From bare reading of the above Note of the guidelines, it is clear that where no land is offered by Group 3 candidates and lands offered by the applicants under Group 1 and Group 2 categories got rejected due to non-meeting of laid down criteria, then all such applicants (including Group 1, 2 and 3) are required to give opportunity to offer land or alternate land in the advertised location. The contention of the petitioner that even in case the land offered by him, as Group 1 category candidate, could not meet the criteria, the respondent-IOCL is required to give another opportunity to him to offer alternate land, is contrary to the spirit of Note 2 appended to clause 4 (v) of the guidelines.

In view of the above discussion no case for interference is made out and this writ petition is dismissed."

24. Much emphasis has been laid by Mr. Sandhu on Clause (iii)

of note No.4 (at page 34) to argue that if an opportunity to offer

alternate land after selection and post verification is provided,

then how can such a right be denied to the petitioner? This

argument appears to be attractive but then, it is to be noted that

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petitioner has directly jumped to note No.4 without taking the

Court through note No.3, which reads thus:-

"There may be a situation where the land offered by the candidate in the application (including land/alternate land offered by Group 3/Group 1 and Group 2 applicants) meets all the specifications as laid down in the advertisement and on the basis of which LOI has been issued or proposed to be issued and the LOI holder or the selected candidate to whom LOI is proposed to be issued would like to offer an alternate land, due to whatsoever reason, such land may be considered by ONC subject to the alternate meeting all specifications and is within the advertised location/stretch."

25. A careful reading of Note 3 reveals that in case an applicant's

offered land meets all the norms and specifications given in the

advertisement and he has been selected, he can still offer another

land being 'alternate land' which should meet the norms. This is

because, on acceptance of 1st land of the applicant, he stands

selected. Once selected he can offer another land subject of

course to requirement of suitability. Hence, Clause (iii) of note

No.4 does not help the petitioner at all.

26. In any event, following paragraph of Note 2 further clarified

that only one opportunity will be given to the applicant. This para

also uses expression 'offer land' for Group-3 applicants and

alternate land for Group 1 and 2 applicants whose land has not

conformed to the laid down criteria. The relevant portion thereof is

extracted hereunder:

"Only one opportunity would be given to the applicant, either for offering land (if applicant has not offered any land along with application form) or

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for offering alternate land (if the land offered by the applicant is found to be not meeting the laid down criteria during scrutiny/land evaluation/rejection of land after selection, for applicants who have offered land along with the application)."