Full Judgment Text
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CASE NO.:
Appeal (civil) 3936 of 2006
PETITIONER:
Hindustan Petroleum Corpn.& Anr.
RESPONDENT:
Chander Bhan & Anr.
DATE OF JUDGMENT: 05/09/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 4444 of 2006)
ARIJIT PASAYAT, J.
Leave granted.
Appellants call in question legality of the judgment
rendered by a Division Bench of the Punjab and Haryana High
Court allowing the writ petition of the respondent No.1 who
had filed the writ application before the High Court seeking a
declaration that the advertisement issued by the appellants on
13.7.2005 for allotment of retail outlet dealership of the
appellant No.1 (hereinafter referred to as the ’Corporation’) at
Sector 53, Gurgaon was illegal. Further prayer was for a
direction to the Corporation to allot the said retail outlet to the
respondent No.1 purportedly on the basis of a letter of intent
dated 24.6.2003. The High Court held that the writ application
deserved to be allowed and quashed the advertisement so far
as it related to appointment of dealer for retail outlet at the
site in question i.e. Sector 53, Gurgaon. Further direction was
given to allot the said outlet dealership to the respondent No.1.
Background facts as projected by the appellant in a
nutshell are as follows:
On 19.8.2000 an advertisement was issued by the
Corporation inviting application for appointment as dealer in
respect of allocations at several places including a site at
Gurgaon. The present dispute relates to the Sr. No.3 i.e.
allocation for Delhi Jaipur Road Town Area, Gurgaon Revenue
District, Gurgaon and it was for the open category. The nature
of dealership was company owned. The first paragraph of the
advertisement indicated that the appointment of dealers was
of the various categories for company owned retail outlets on
site owned by the Corporation/leased to the
Corporation/dealer owned outlet on site/super structure to be
leased to the Corporation by the dealers selected. In the
advertisement it was indicated at paragraph 2 that for
dealership advertised for locations other than those reserved
for scheduled castes category the applicant was required to
furnish, along with the application, details of land which
he/she would make available for the retail outlet. In the
process for assessment of the evaluation of suitability, 35
marks were allotted out of 100 for capability to provide
infrastructure and facilities (land, godown, showroom etc.).
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Undisputedly the respondent No.1 applied in the open
category. On 24.6.2003 a letter of intent was issued to the
respondent No.1 whereby approval was given to run a retail
outlet dealership at district, Gurgaon. In the application filed
by the respondent No.1, he had stated that the land was
readily available and attached rough sketch details. Because
he answered in affirmative to the question as to whether he
had suitable site readily available he was allotted 35 marks.
In respondent No.1’s letter dated 27.8.2003, he had given the
details of the description of the land as follows:
"Location \026 Gurgaon-Jhajjar Road-at Village
Chandu, Distt. Gurgaon \026 on State Highway.
Area \026 150 x 198 sq-ft."
The position was reiterated even in a writ petition which
was filed earlier before the High Court i.e. CWP No. 7960 of
2004 wherein specific reference was made to the situation of
the land at villages Siwana Moja, Gurgaon-Jhajjar Road (site
at Chandu Budeda). While the matter stood thus, Haryana
Urban Development Authority (in short ’HUDA’) issued an
advertisement offering land to Nationalized Oil Companies,
Government Departments and State Government
Undertakings. One of the Sectors which was allotted to the
Corporation was Sector 53, Gurgaon and the size of the site
was 30.30 mtrs. There was no letter of intent issued by the
Corporation in respect of said land to the respondent No.1, as
the letter of intent related to another site and not one at Sector
53. Taking advantage of mention about issuance of letter of
intent to respondent No.1, in one communication, he staked a
claim that he was entitled to be allotted the outlet in terms of
the letter of intent. The allotment letter was not in favour of
respondent No.1, but was in favour of the Corporation. It is,
therefore, submitted that the High Court clearly missed these
relevant factors and came to an abrupt conclusion that
respondent No.1 was entitled to allotment pursuant to the
letter of intent dated 24.6.2003. It is pointed out that the
outlet at Sector 53, Gurgaon was a Company Owned Company
Operated (in short the ’COCO’) outlet and it was reserved for
the scheduled castes/scheduled tribe category. A policy
decision was taken by the Government of India, Ministry of
Petroleum and Natural Gas in this regard. Though initially the
Corporation had advertised indicating the outlet to be of open
category, subsequently in view of the changed policy decision a
corrigendum was issued and the outlet is earmarked for the
Scheduled Castes/Scheduled Tribes category. It is pointed out
that the High Court proceeded on the basis as if the writ
petitioner-respondent No.1 had applied for allotment of the
land which was allotted to him. On the contrary HUDA’s
advertisement clearly indicated that the same was meant for
the Nationalized Oil Companies. The High Court erroneously
proceeded on the basis as if it was conceded by the
Corporation that the application was made by the respondent
No.1 and allotment was made to it. In essence it is submitted
that the High Court had lost sight of the relevant factors and,
therefore, the impugned judgment deserves to be set aside.
In response, learned counsel for the respondent No.1
submitted that at all stages Corporation accepted that a letter
of intent was issued for a retail outlet at Gurgaon. Though the
respondent No.1 offered the land as is accepted by the
Corporation, No Objection Certificate (in short the ’NOC’) was
applied in the name of the Corporation as ultimately the land
was to be leased out by the respondent No.1 to the
Corporation. While Corporation’s request for NOC was
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pending, HUDA came out with the advertisement. Corporation
led the respondent No.1 to believe that the Corporation was
making the application on behalf of the respondent No.1. It is
clearly indicated in the letter of allotment by HUDA that if the
letter of intent is not converted to regular dealership, the
allotment will be cancelled. It is submitted that the reference
to letter of intent was in respect of respondent No.1 as no
other letter of intent had been issued. The intention was all
along to allot the outlet to the respondent No.1. After allotment
of land by HUDA, in between some powerful persons started
manipulating and the retail outlet is now presently being run
allegedly on contract basis by one Smt. Krishna Singh who is
none other than wife of the principal Secretary of the State.
She is not the holder of any letter of intent. If the contractual
arrangement was to be entered into, obviously respondent
no.1 should have been the first choice.
The factual position as detailed above goes to show that
the application of the respondent No.1 for retail outlet was in
respect of a different site and not the one allotted by HUDA.
So far as the plot at Sector 53 in Gurgaon is concerned,
respondent No.1 was not in picture. The outlet was to be run
on COCO basis. As borne out from the document brought on
record clearly, respondent No.1 was not eligible for allotment
of the outlet at the site in question. Though initially it was for
the open category, later on it was earmarked for the Scheduled
Castes and Scheduled Tribes reserved category. Even though
reference has been made to the letter of intent issued in favour
of respondent No.1, that cannot in any way assist the
respondent No.1 because of the nature of allotment made by
HUDA and the directives of Ministry of Petroleum and Gas.
There was no agreement between the Corporation and
respondent No.1 for allotment of the site at Sector 53,
Gurgaon to the respondent No.1.
Much emphasis has been laid by learned counsel for
respondent No.1 on the letter of allotment of HUDA, which
refers to the letter of intent. Obviously the letter of intent
cannot mean the letter of intent issued in respect of another
plot of land. No reference is made to respondent No.1 even by
implication in HUDA’s letter of allotment. Obviously it refers to
a letter of intent meant to be issued after due allotment. The
High Court proceeded on erroneous premises to hold as if
there was existing agreement between Corporation and
respondent No.1, in respect of the plot in question. The High
Court’s conclusion that Corporation was acting on behalf of
the respondent No.1 and/or that the allotment was in favour
of respondent No.1 is clearly contrary to materials on record.
The High Court’s impugned judgment is clearly indefensible
and is set aside. However, it would be appropriate for the
Corporation to take immediate steps to give effect to the
advertisement dated 13.7.2005 and complete the process as
early as possible. If so felt necessary, fresh advertisement can
be issued at the earliest taking note of changed factors if any
taking place, after issuance of the notification. It would be in
public interest to complete the process of selection at the
earliest to avoid unnecessary criticism as is leveled in the
present case. We make it clear that we have not expressed
any opinion about the acceptability of the criticism.
The appeal is allowed but in the circumstances without
any orders as to costs.