Karthika K. v. Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940 WA.No. 1005 of 2018 IN WPC. 11565/2018** **AGAINST THE JUDGMENT IN WP(C) 11565/2018 of HIGH COURT OF KERALA DATED 12-04-2018** **APPELLANT/ PETITIONER :** **------------------------** **KARTHIKA K., AGED 31 YEARS, W/O. ADARSH GOPALAKRISHNAN, RESIDING AT PRATHEEKSHA, KUMBALAPALLI, KARINDALAM VILLAGE, KASARAGOD DISTRICT, PIN-671 314, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, APPELLANT'S FATHER, SRI. K.K. NARAYANAN, AGED 62 YEARS, S/O. LATE PONNAPPAN, RESIDING AT PRATHEEKSHA, KUMBALAPALLI, KARINDALAM VILLAGE, KASARAGOD DISTRICT, PIN – 671 314.** **BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN** ## **RESPONDENTS/ RESPONDENTS :** **--------------------------** ## **1. THE UNION OF INDIA,** **REPRESENTED BY THE SECRETARY, MINISTRY OF PETROLEUM AND NATURAL GASES, NEW DELHI, PIN – 110 001.** **2. THE HINDUSTAN PETROLEUM CORPORATION LIMITED, JAMSHEDJI TATA ROAD, MUMBAI, PIN-400 020, REPRESENTED BY ITS MANAGING DIRECTOR.** **3. THE CHIEF REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LIMITED, 2ND FLOOR, DEO GRATIAS BUILDING, CHILIMBI URVA STORES, MANGALORE, PIN – 575 006.** ## **4. THE GENERAL MANGER,** **SOUTH ZONE, HINDUSTAN PETROLEUM CORPORATION LIMITED, 4TH FLOOR, THALAMUTHU-NATARAJAN BUILDINGS, GANDHI-IRWIN ROAD, EGMORE, CHENNAI, PIN – 600 008.** **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 TO R4 BY ADV. SRI.E.K.NANDAKUMAR, SC, HINDUSTAN PETROLEUM BY SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.A.No. 1005 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- **Dated this the 23[rd] day of May, 2018** ## **JUDGMENT** ## _**Surendra Mohan, J.**_ The appellant is before us challenging the judgment dated 12.04.2018 of the learned Single Judge dismissing W.P.(C).No.11565/2018, filed by her. 2. The 2[nd] respondent along with other Government petroleum companies had jointly issued Ext.P1 advertisement, inviting applications from among eligible persons, for appointment as L.P.G (Liquefied Petroleum Gas) distributors at different places/ locations in the State of Kerala. In response to the notification, the petitioner submitted applications with respect to two places. Ext.P1 in the writ petition is a copy of the notification and Ext.P2 is a copy of the application submitted by the petitioner. The petitioner was selected for the location at Kanhangad, by conducting the draw of lots. The selection was intimated to her by Ext.P3. However, later on by Ext.P5 dated 07.03.2018, the selection was cancelled. The selection was cancelled for the reason that the land offered by her for showroom was not found to meet the eligibility conditions as per the criteria for selection. It was challenging Ext.P5 that the appellant had filed the writ petition. 3. According to the appellant, though the land that was W.A.No. 1005 of 2018 2 offered by her for showroom had been leased to her only for a period of five years, the lease could be renewed either on the expiry of the initial term or a fresh lease deed for the requisite period could be furnished, as insisted upon. However, no such opportunity was granted to her, which was illegal. The appellant also contended that the stipulation that the lease of the land should be for a period of 15 years was not a mandatory condition in view of the fact that the guidelines contained even provisions for substituting the land with another parcel of land. 4. The contentions of the appellant were contested by the 2[nd] respondent pointing out that there were a number of other applicants, who had complied with all the conditions stipulated. There was no discretion available to the selection body to permit the appellant to rectify the shortcomings. Any such discretion would only supply room for favouritism. 5. The learned single Judge considered the respective contentions and took note of the dictum laid down by the Supreme Court, that the condition in the present case was mandatory and was required to be complied with at the stage of submission of application itself. Accordingly, the writ petition has been dismissed. The aggrieved appellant is before us. 6. According to Adv. Jawahar Jose, who appears for the appellant, going by the wordings of the Clause that stipulates W.A.No. 1005 of 2018 3 furnishing of land, it is clear that the same is not a mandatory one. It is contended that, a candidate is granted the liberty to substitute the land that has already been offered whether it is for a godown or showroom, even after being issued with a letter of indent. Therefore, according to the learned counsel, the condition is only directory. Rejection of the appellant's application for want of compliance with a condition that was only directory, is wrong and liable to be set aside. Reliance is placed on the decision of the Apex Court in _**K. Vinod Kumar v. S. Palanisamy [2003 (10) SCC 681]**_ , particularly paragraph 2 and 8 to point out that in similar circumstances, a condition of like nature was held to be directory by the Apex Court. The decision in _**Sunita Gupta v. Union of India [(2014) 15 SCC 601]**_ is also relied upon in support of the said contentions. The counsel, therefore, seeks interference with the judgment appealed against. The learned senior counsel Sri.E.K. Nandakumar, who represents the 2[nd] respondent refutes the contentions of the counsel for the appellant pointing out that the method of selection has been made transparent for the purpose of ensuring that complaints are avoided. It has been clearly stipulated in Ext.P6 guidelines that the candidate would have to provide the land held on lease for a period of fifteen years. In the present case, the appellant was holding the land only on a lease of five years. Therefore, she had not satisfied the basic criteria for being considered. The defect was noticed only W.A.No. 1005 of 2018 4 at the time of field verification. It was for the said reason that Ext.P5 had to be issued. There are other candidates, who have satisfied all the requirements as per the guidelines. Therefore, it is only appropriate that one of the other candidates is selected. To confer a discretion to the authorities to make good such defects would only give room for selection of ineligible persons. Therefore, it is contended that Ext.P5 was fully justified and that the learned single Judge had rightly dismissed the writ petition. 7. Heard. Ext.P6 is a copy of the unified guidelines for selection of LPG distributors. It is not in dispute that the provisions of Ext.P6 guidelines are applicable to the selection process. In Clause (I), sub clause (w) defines the 'ownership' which reads as under :- w. 'Ownership' or “Own” for godown/ showroom for Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak Type of Distributorship means having : ## a. Ownership title of the property ## Or b. Registered lease deed having minimum 15 yrs of valid lease period commencing on any day from the date of advertisement up to the last date of submission of application as specified either in the advertisement or corrigendum (if any). Additionally, applicants having registered lease deed commencing on any date prior to the date of advertisement will also be considered provided the lease is valid for a minimum period of 15 W.A.No. 1005 of 2018 5 years from the date of advertisement. The applicant should have ownership as defined under the term 'Own' above in the name of applicant/ member of “Family Unit” (as defined in multiple dealership/ distributorship norm of eligibility criteria)/ parents (includes Step Father/ Step Mother), grandparents (both maternal and paternal), Brother/ Sister (including Step Brother & Step Sister), Son/ Daughter (including Step Son/ Step Daughter), Sonin-law/ Daughter in-law; of the applicant or the spouse (in case of married applicant) as on last date for submission of application as specified either in the advertisement or corrigendum (if any). In case of ownership/ co-ownership by family member(s) as given above, consent in the form of a declaration from the family member(s) will be required. In case the share of land in the jointly owned property by the applicant/ member of 'Family Unit' as defined in multiple dealership/ distributorship norm)/ parents & grandparents (both maternal and paternal) of the applicant or the spouse with any other person(s) meets the requirement of land including the dimensions required, then that land for godown/ showroom should qualify for eligibility as 'own' land subject to submission of 'No Objection Certificate' in the form of declaration from other owner(s). 8. Clause (ii) of Ext.P6 requires a selected candidate to construct or provide a readily constructed LPG godown to store LPG of stipulated capacity and to obtain necessary approvals from statutory bodies. The necessity of offering a suitable parcel of land for the purpose of meeting all the specifications as laid down in the advertisement is a stipulation in the guideline. W.A.No. 1005 of 2018 6 9. Clause 8 stipulates the conditions necessary to be satisfied by an applicant. It also stipulates the specifications of the land required for a godown. Sub clause (m) stipulates that 'an applicant should own a suitable shop or shop room of the dimensions stipulated therein'. 10. It is clear from the above provisions that an applicant should own land for the purpose of a showroom as well as godown of the specifications stipulated by Ext.P6. Definition of 'own', extracted above takes in both a property actually owned by an applicant as well as a property over which he has a lease hold right. The only stipulation is that the lease hold right should be for a minimum period of 15 years and that the lease deed should be registered. Therefore, the guidelines have defined the word “ownership” or “own” to encompass not only properties actually owned by an applicant but also properties held on lease by him provided the lease deed was registered and the period of lease was for a minimum period of 15 years. It follows therefore that an applicant, who does not satisfy the above criteria would not or cannot be said to be a person who owns a piece of land. Therefore, in the present case, admittedly the appellant is a person, who does not answer the definition of “ownership” or “own” as stipulated by the guidelines, in respect of the land offered by him. Admittedly the appellant's lease hold right was only for a period of five years. That falls short of the W.A.No. 1005 of 2018 7 requirement necessary to satisfy the condition of 'ownership' or 'own' going by Ext.P6. Therefore, he was ineligible to apply for the dealership. Ext.P5 was issued when the above defect was noticed. Though it was at a later point of time, upon field verification, it cannot be said that issue of Ext.P5 was wrong. 11. In the above view of the matter, the question as to whether the condition in mandatory or directory is not important. We have perused the judgment of the learned single Judge. We find that the issue has been considered properly with reference to the decisions on which reliance was placed by the counsel for the petitioner. We find no infirmity therein warranting an interference in appeal. In view of that, it is not necessary for us to consider the decisions on which reliance has been placed by the appellant. The appeals fails and is accordingly dismissed. Sd/- ## **K. SURENDRA MOHAN JUDGE** Sd/- ## **ANNIE JOHN JUDGE** True Copy PA to Judge RKM