Hon'ble Ritu Raj Awasthi, J.
These are two writ petitions, which raise a common challenge to the award of Liquefied Petroleum Gas (LPG) distributorship at Puredalai Development Block, District Barabanki, which has been awarded to Manoj Kumar Singh, the private respondent. The writ petitions are, therefore, being decided by a common order.
Writ Petition No. 7839 (MB) of 2007 filed by Ashok Kumar Singh is the leading writ petition.
Hindustan Petroleum Corporation Limited (hereinafter referred to as the Corporation) published an advertisement dated 8.2.04, advertising various locations including the present location for appointment of LPG distributors.
The petitioner alongwith Manoj Kumar Singh and Ahsan Mohammad Ali, the petitioner of the other writ petition and certain other persons, applied for the distributorship of LPG. The last date for submission of forms and requisite documents was 9.3.04. The interview was held on 17.9.07 and the select list was published on 17.9.07 itself, wherein the petitioner Ashok Kumar Singh was shown to have been awarded 30.67 marks. Out of the four candidates, only two could secure more than minimum eligibility marks, namely, Manoj Kumar Singh and Ahsan Mohammad Ali and found their places respectively at serial no. 1 and 2 of the merit list.
The petitioner Ashok Kumar Singh, being aggrieved by the aforesaid award of marks, made representations to the Corporation on 25.9.07 and also on 28.9.07. In pursuance of the directions issued by this 2 Court vide its order dated 12.10.07, the Corporation was required to decide the representations aforesaid, which were decided on 4.1.08.
On reconsideration of the matter, as per the grievance raised by the petitioner, the Corporation found that the marks, which were awarded to Ashok Kumar Singh deserved an increase of 15 marks and thus, he has been awarded 45.67 marks in place of 30.67 marks originally allotted. But the Corporation did not find any illegality or irregularity in the award of marks to Manoj Kumar Singh, who had secured 53.24 marks and was empanelled as the first candidate. The result of such scrutiny thus, did not effect the selection of Manoj Kumar Singh, who was previously also at serial no. 1 of the merit list.
However, Ahsan Mohammad Ali, who was at serial no. 2, was pushed down to serial no. 3 as Ashok Kumar Singh secured his place at serial no. 2. Ahsan Mohammad Ali has filed the writ petition challenging the said change of marks and also asserting that since Manoj Kumar Singh was not possessed of the land, as required under the advertisement, therefore, his candidature deserves to be rejected and as a consequence of such rejection, he should be placed at serial no. 2 and the distributorship be offered to him and not to Ashok Kumar Singh, who again has not been awarded marks correctly.
The petitioner challenged the candidature of Manoj Kumar Singh, private respondent, mainly on the following two grounds: (i) on the last date of submission of application forms i.e. 9.3.04, Manoj Kumar Singh was less than 21 years of age and, therefore, his candidature could not have been considered; and (ii) under the caption 'capability to provide infrastructure', marks were wrongly awarded to him, namely, 10 marks, whereas he should have been awarded '0', since he was not having any land on the date of application, which could fall in the category of either leased land or the land which could have been arranged by the petitioner.
This plea is based on the fact that the land which was shown by the petitioner that he can arrange, was transferred in the meantime and, therefore, he was not entitled to any marks under the said head.
In regard to the plea that the private respondent Manoj Kumar Singh was under-age on the date of application, suffice would be to mention that the plea appears to have been raised on some misconceived notion, as the date of birth of the private respondent, as recorded in the High School 3 Certificate of U.P. Board of High School and Intermediate Education is 8.1.82. Alongwith the form, the aforesaid certificate was also filed and the same date of birth was mentioned in the application form. Since the last date of submission of application form was 9.3.04, therefore, it cannot be said that he was less than 21 years of age.
The plea, therefore, stands to be rejected.
The next argument that marks were wrongly awarded to private respondent under the head of 'capability to provide infrastructure', it is the Corporation's specific stand that he having filled in the column that he 'can arrange' the land, he has been awarded only ten marks, as per the criteria and the norms. Therefore, it cannot be said that any incorrect marking has been done to favour him. The minimum requirement of the land, according to the brochure issued by the Corporation was as under:
Clause 8.1 - Minimum land for Godown - 27 m x 26.15 m Clause 8.2 - Minimum land for Showroom - 3 m x 4.5 m Clause 14.1 of the brochure says that the allocation of marks and various parameters based on documents will be carried out, as per the information given in the application. Under the criteria 'capability to provide infrastructure and facilities (as on the date of application), 25 marks were to be allotted, if the applicant owns having clear title/registered sale deed of the suitable land/godown. Eighteen marks were to be awarded if there was a 'firm offer' for example, having agreement to purchase/lease of suitable land/godown and only ten marks were to be awarded, if the applicant describes it as 'can arrange' the land.
Likewise for the showroom also, if the applicant owns having clear title/registered sale deed of the suitable land/shop for showroom, then ten marks; seven marks for firm offer, for example, having agreement to purchase suitable land/shop for showroom and only five marks were to be awarded, if he 'can arrange' land/shop for showroom.
Since the rest of the eligibility criteria for award of marks are not in dispute, therefore, the same are not being reproduced.
The private respondent undisputedly and as is also evident from the record, has given his option under the aforesaid criteria under the sub head 'can arrange'. While doing so, he also filed an agreement on notary affidavit 4 dated 3.3.04 executed by one Chandra Pal Singh, Chhedi Singh and Tej Bahadur Singh, saying that the aforesaid persons have agreed to sell/lease the plot nos. 577/Ka and 588 situated in Puredalai, District Barabanki. He also filed an affidavit dated 5.3.04 alongwith application form, stating that his father is ready to provide land to him for godown and showroom. The dimensions of the land required for godown and the showroom have already been stated earlier.
It is the further case of the private respondent that after the death of Chhedi Singh and Tej Bahadur Singh, who had submitted the affidavit dated 3.3.04 for providing the land of plot no. 577/Ka, their successor Chandra Pal Singh executed a sale deed dated 25.9.07, by virtue of which they have transferred their share i.e. 7/9th part of plot no. 577/Ka in favour of private respondent. Again on 1.10.07, the successors of Chhedi Singh, namely, Amar Singh alias Gaddana Siongh and Sukhdeo Singh executed a sale deed, under which 2/9th share of plot no. 577/Ka was transferred in favour of private respondent and as such, the whole plot no. 577/Ka, area 0.110 hectare has been transferred in favour of the private respondent, by virtue of the aforesaid two sale deeds. The name of private respondent, Manoj Kumar Singh was also recorded in the revenue records on 6.12.07.
Dr. L.P. Misra appearing for the petitioner vehemently urged that since on the date of moving application and before the last date of submission of application forms, the private respondent was not having any land and the land aforesaid which was shown to be possessed by him or for which he had allegedly entered into an agreement to sell, already stood transferred, therefore, he could not have been awarded any marks under the caption 'can arrange'.
The argument is that even under the caption 'can arrange' the applicant has to show a specific land/plot or the land for godown and land for the shop/showroom and since the private respondent was not having any such land or shop, no marks could have been awarded to him under the said caption and, as a matter of fact, zero marks should have been given, whereas he has been awarded ten marks.
In support of his plea that even under the caption 'can arrange' there has to be specific and identified land/shop or the land, which the applicant can arrange on issuance of the letter of intent, he relies upon Clause 9 of the brochure, which has the heading 'construction of godown/showroom on the 5 site as mentioned in the application form' and reads as under:
"9. Construction of Godown/Showroom on the site as mentioned in application form:
The applicants who readily have suitable godown/land for construction of godown for storage of filled LPG cylinders and shop/land for construction of shop for LPG showroom for setting up of LPG distributorship or have a firm commitment from the land owner for purchase/lease or can arrange it are accordingly awarded marks. The details given in the application alone will be considered for this purpose and the applicant will not be given any opportunity to offer any other land subsequently (even at the time of interview). For this purpose, the land owned by the family members (as defined in multiple distributorship norm) would also be considered as belonging to the applicant subject to attaching the consent of the concerned family members.
After selection of the applicant, physical verification of the godown land/godown as well as the showroom will be undertaken. In the event it is found that there is variance in the details given in the application form and or the plot is not found suitable for construction of godown or the godown is not approved by CCOE the allotment of the distributorship will stand automatically cancelled.
Or if an applicant, after selection on the above basis, is unable to make Godown duly approved by the Chief Controller of Explosives on the land/godown indicated in the application and or Showroom as per the oil company's standard layout on the land/shop indicated in the application then the allotment of LPG distributorship made to the applicant will automatically stand cancelled."
Emphasis has been supplied by the learned counsel for the petitioner on the aforesaid clause, which prohibits any change in the location of the land, as against the land shown in the application form, on the basis of which marks have been awarded, while constructing the godown/showroom on the site and requires the construction of the godown/showroom strictly in accordance with the norms prescribed, with no variance in the details given in the application form, which also says that if the plot is not found suitable for construction of godown then the allotment shall stand automatically cancelled.
The moot question, therefore, involved is, when, by means of his application, the applicant informs that he 'can arrange' the land for the godown or for the showroom or for both of them, whether requires, the description of the land with full details, which could be clearly identifiable 6 on the site or it would be sufficient only to mention that he 'can arrange' with no particulars of any land being given in the application form.
The petitioner's counsel urged that in the absence of any such land being shown in the application form, which could be arranged by the applicant later on, such an applicant would be free to have any land and the Corporation would not even know as to where the land for the purpose is to be allotted. This will also lead to open discrimination and may result in favouring the applicant, who otherwise does not have any land, where he can construct the godown or the showroom but even then he would be an applicant for taking a chance so that if the letter of intent is issued, he may be able to arrange some land. The argument, therefore, is that if such fluid and uncertain condition is allowed to stand, it would be prejudicial to the interest of such candidates, who otherwise have the specific land and who have offered the same for the purpose of construction of godown and showroom and that the requirement of 'capability to provide infrastructure' would stand frustrated and defeated.
Sri Sunil Sharma appearing for the Corporation has drawn the attention of the Court to the application form submitted by the private respondent and has clearly stated that despite the private respondent furnishing the notary affidavit with respect to plot nos. 577/Ka and 580, and the affidavit of his father, the same has not been taken into account, as the private respondent had not applied or had claimed that he was having any land under the agreement to sell or lease but has applied under the caption 'can arrange', namely, the land. Since the private respondent did not mention in his application form that he was having any agreement to sell or lease of land, therefore, the notary affidavit given by him was neither required nor was admissible nor was considered. In view of the specific case of the private respondent and information given by him in the application form that he 'can arrange' the land, he was given ten marks under the said caption.
Learned counsel further contended that the petitioner's plea that the private respondent was not having any land on the last date of submission of forms, as the plots aforesaid were transferred, is of no relevance, as the Corporation never awarded any marks to the private respondent on the basis of the said notary affidavit.
It has also been urged by the learned counsel for the Corporation that under the caption 'can arrange' there is no requirement that the applicant 7 must possess some land on the date of submission of application form or that he/she must indicate in the application form, a particular specified piece of land, fully identifiable, which he/she would necessarily arrange/acquire in case the distributorship is awarded to him/her. The requirement of the aforesaid condition would be fulfilled if the applicant only mentions that he 'can arrange' the land.
In response to the argument that such an interpretation of the aforesaid clause would lead to favouritism and nepotism and also give a chance to such persons, who do not have any land to make arrangement by taking a chance after the award of distributorship/issuance of letter of intent, it has been submitted that the Corporation specifies the location where the godown and the showroom are to be constructed on the award of distributorship, therefore, whatever land is shown to the Corporation by the applicant, namely, whatever land he/she arranges for the purpose, has necessarily to be within the locality advertised and must be suitable for the purpose. In case the land so arranged, does not fulfil the criteria/norms of location or suitability or both or any of them, the distributorship shall not be given to such an applicant and if given, would stand cancelled automatically.
On a close scrutiny of the criteria under the head 'capability to provide infrastructure', it is evident that there are three criterion for award of marks, namely, (i) where the applicant either owns or has a registered sale deed having clear title of the suitable land/godown for construction of godown in his favour, in which case 25 marks are to be awarded for the construction of godown; (ii) where there is firm offer for example, having agreement to sell/lease of suitable land/godown, then he has to be awarded lesser marks, namely, 18; and (iii) in case he can arrange the land for the purpose, he is to be awarded only 10 marks. The first criteria does not have any ambiguity as the suitable land/godown is owned by the candidate/applicant, who is either having a clear title or a registered sale deed in his favour. In such a case, the land belongs to the applicant and he is the owner thereof and, therefore, he would specify the land, namely, particular land, where the godown is to be constructed or where the showroom exists.
Likewise, if there is an agreement to purchase or lease of the suitable land for godown, then it would mean a 'firm offer' with respect to a 8 land detailed in such agreement or lease. This will also give the details of the particular specified land, where the godown would be constructed but where the applicant does not own or does not have a clear title or registered sale deed nor gives a 'firm offer' like agreement to purchase or lease of the suitable land, then the third criteria can be availed of, namely, such an applicant 'can arrange' the land, as required. In case the requirement under the caption 'can arrange' would have been, to specify and detail the particular land, which the applicant can arrange, there would have been some indication to that effect in the said column. It is only for such an applicant who is readily not having any land, has only to mention that he 'can arrange' the land, for having an opportunity to participate in the selection, subject to other conditions being fulfilled by him and, of course, such a land has to be arranged by him as per the description and norms prescribed by the Corporation and within the time, as may be provided after the issuance of the letter of intent or at the appropriate stage, as the Corporation specifies but before the final award of distributorship.
If this clause is to be interpreted in any other manner, it would defeat the very object and purpose of providing an opportunity to such applicants, who are neither title holders of the land nor they are owners of the same nor they are lessees and nor have entered into any agreement to purchase of any land.
Needless to mention that an applicant, who is having a clear title or registered sale deed of the land, is having a specific land, which cannot be allowed to be changed after the award of distributorship as the marks are awarded to him on being satisfied about the location in the area, in respect of which advertisement has been issued, in terms of Clause 9 of the brochure.
Similarly, if there is a firm offer with respect to a particular land, as shown in the agreement to purchase or in the lease of the land, such a land also cannot be changed after the award of distributorship, as the marks are awarded under the said caption, keeping in mind the location of the land. The 'Firm Offer, a term which has been used in a matter where agreement to purchase/lease of the land is produced, has been deliberately and consciously put, to indicate that in the absence of any firm offer in that category, marks would not be allotted. In other words, if there is an agreement to purchase or lease of suitable land, then it is undoubtedly a firm 9 offer of having a land on the award of distributorship, where the godown and showroom would be constructed, which again cannot be changed.
In regard to the third caption/criteria 'can arrange', the advertisement or the brochure does not say that there should be a 'firm offer' of such a land nor such a condition could have been placed for making the said option workable. If an applicant gives a firm offer then it means that he is possessed of some agreement of purchase or lease of a particular land and, therefore, in such a situation, the applicant cannot or will not make claim under the caption 'can arrange' and he is to be awarded marks under the caption 'firm offer'. But in a case, where there is no land available with the applicant, which he could specify at the time of filing the application, he is permitted to claim or apply for distributorship under the caption 'can arrange', the land or godown or the showroom, as the case may be.
We also find force in the argument of the learned counsel for the Corporation that this offer of land under the caption 'can arrange' is in no way detrimental to the interest of the applicants, who claim land either under their own title or under registered sale deed or under firm offer, as such applicants would be awarded marks on the criteria aforesaid, which are much higher than the marks, which are to be allotted to the applicants, who claim for distributorship or apply for the same under the caption 'can arrange'.
Further the location of the land and its suitability still has to be adjudged by the Corporation and only when the Corporation feels satisfied that the land so arranged within the given time/prescribed time, meets the requirement and is situated within the locality advertised, only then distributorship can be awarded or continued, otherwise the same shall stand cancelled automatically.
Interpretation of Clause 9, which says that location of a site, which has been given in the application form cannot allowed to be changed at the time of construction of godown or showroom and that if there is any variance, the distributorship shall stand cancelled automatically, would not mean that in a case, where the applicant has stated that he can arrange the land, he has necessarily to show such a land in the application form but, as a matter of fact, when he arranges the land, which is found appropriate and suitable and which conforms to the requirement of advertisement, the same cannot be allowed to be changed later on and the condition of no change of 10 such land, as has been made applicable in the case of land owned by the applicant or where the applicant is having firm offer, would equally apply on such an 'arranged land'.
Thus, the said clause does not in any way supports the plea of the petitioner that the applicant who says that he can arrange the land, has to specify a particular piece of land in the application form itself.
The words 'can arrange' themselves speak and mean in their ordinary grammatical meaning that the land is to be arranged later on or it can be arranged later on. What this later point of time would be, has to be prescribed by the Corporation but it necessarily means that it cannot be at the time of filing of the application form. 'Can arrange' means that the land can be arranged in future, at some point of time, which may be prescribed by the Corporation.
If an applicant, who is already having a land and the requirement also being that only a person who has a specific land, though may not be possessed of the title, would only be entitled to apply, the caption would have been 'a person who has already arranged the land' or so to say 'has an arranged land' not 'can arrange' the land.
In case the Corporation ever intended that such an applicant should also mention or declare the land which he could arrange later on, it would have specified this requirement in the brochure itself, but having not done so, the policy as framed by the Corporation in the matter of award of distributorship cannot be questioned nor can be declared as invalid.
We are also informed that all the oil companies have prescribed same terms and conditions and the same criteria of 'can arrange', is being followed uniformly in the matters of award of distributorship and dealership throughout.
We are thus, of the considered opinion that the Corporation having not considered the notary affidavit or so called agreement with respect to the plots mentioned therein at any point of time, since the private respondent had applied only under the caption of 'can arrange' the land and the minimum marks have been awarded to him under the caption 'can arrange' the land, no illegality or irregularity can be said to have been committed by the Corporation in awarding ten marms.
The argument that the applicant was neither having any land nor indicated any land on the date of application, thus, is devoid of merit and 11 does not affect the selection of the private respondent in any manner.
The petitioner's marks, on representations being considered by the Corporation, though have been increased but in view of the fact that still the private respondent Manoj Kumar Singh has the highest marks, the selection so made cannot be interfered with.
We thus, do not find any merit in the challenge to the selection of private respondent by the petitioner, Ashok Kumar Singh, in Writ Petition No. 7839 (MB) of 2007.
Sri Manish Kumar learned counsel for the petitioner Ahsan Mohammad Ali, very fairly stated that the petitioner was aggrieved by the reallocation of higher marks to Ashok Kumar Singh, because of which his position has gone down to number 3, as against the original positiion at serial no. 2 and, therefore, his petition would survive if selection of the private respondent is cancelled by the Court.
In so far Ahsan Mohammad Ali, namely, Writ Petition No. 8875 (MB) of 2008, is concerned, he already stands at serial no. 3 of the select list and the selection of respondent, Manoj Kumar Singh having been upheld, he does not have any chance for being selected. Since no relief can be granted to him, the petition filed by him thus, is of no consequence, which is hereby dismissed.
For the reasons stated above, both the writ petitions are dismissed. Interim order, if any, stands discharged. Costs easy.
Dated: January 25, 2010 MFA