Jaikishan Aggarwal v. Union of India & Ors

1. These two appeals have been filed by the appellant challenging the common order dated July 09,2018 passed in W.P.(C)No.8299/2009(LPA No.451/2018)and W.P.(C)NO.129/2011(LPANo.452/2018).

2. The W.P.(C) No. 8299/2009 was filed by the appellant inter-alia praying for implementation ofjudgmentdated December 10,2008 passed by the Chief Commissioner for Persons with Disabilities (for short 'Chief Commissioner') whereby the Municipal Corporation of Delhi (for short 'MCD')was directed to allot a suitable land for operating retail petrol pump outletin favour ofthe appellant.

3. In W.P.(C) No. 129/2011, the appellant had challenged the letter dated October 10,2007 issued by the HPCL cancelling the LCI dated April 05,2006 for failure on the part ofthe appellant to provide a suitable land. The brief facts as noted from the impugned order are, HPCL issued an advertisement on March 28, 2001 for allotment of a dealership for retail outlet inter-alia stating that it proposed to appoint dealers for retail outlet on sites owned / leased to the Company-HPCL. The outlet at Delhi-6 was reserved for persons falling under the category of physically handicapped. The appellant submitted an application under category of physically handicapped for allotment ofretail outlet. In his application, the appellant stated he would arrange a site as per the rules and regulations ofHPCL. The relevant extract is as under:- "16.

FOR RETAIL OUTLETS/2-3 WHEELER MS OUTLET DEALERSHIP ONLY

(i) Do you have a suitable site readily available or can you arrange one in the area advertised within six months, if selected?Ifyes,pleasegive details. Ans.I will arrange as per Rules & Regulations ofHindustan Petroleum."

4. Pursuantto the process ofinterview,the appellant was ranked third in the merit. The site offered by the candidate placed on the second position was not found suitable, and the LOI was cancelled. The appellant was issued the LOI on April 05, 2006 on the terms as set out therein, which included the condition that appellant would make available suitable plot of land within a period oftwo months. It was also stated thatthe appellant was also required to transfer the ownership ofland or transfer on long lease for a period of15 years with one renewal option for the nextT[5] years under such terms and conditions as may be agreed between the parties.

5. On May 11,2006,the appellant being aggrieved by the said condition, sent a letter to HPCL inter-alia objecting to the specific condition for providing land. It was the case of the appellant that he did not offer to provide land and therefore was also not awarded any marks for the same in the interview held,for selection ofa dealer. A letter dated June 20,2006 was sent by HPCL informing the appellant that candidates were required to provide land and certain other infrastructure for being appointed to manage the retail outlet. The appellant responded to the said letter on July 10,2006 by stating,he was not in agreement with the contents thereof. However,he also stated that he had come across a piece ofland in village Khanjhawala, Delhi, which appears to be suitable for setting up of a retail outlet and requested the HPCL to inspectthe same and iffound suitable,he would take the land on lease / purchase from the owner. Pursuantto the inspection,the said land was rejected by HPCL as being not commercially viable. It appears,the appellant had also offered two sites at Naniwala Bagh,Azadpur and Rajan Babu T.B. Hospital, Road No.45. Both the sites were rejected. The appellant continued to pursue with the MCD for allotment of site for setting up ofretail outlet pursuant to LOI issued to him but his efforts were in vain.

6. On April 02,2008, he filed a complaint against the MOD and Chief Town Planner before the Chief Commissioner. The said proceedings culminated in the order dated December 10,2008. Suffice to state that the Chief Commissioner directed MCD to allot a suitable land under its jurisdiction to the appellantfor setting up ofa petrol pump within 30 days of receipt ofthe order. He also directed framing ofa scheme under Section 43 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995 (for short'Act of 1995')in favour ofthe persons with disabilities within a period of 60 days and to publicize the same. In the meanwhile, HPCL cancelled the LOT of which a reference is made above.

7. The learned Single Judge on the aspect ofcancellation ofLOI in paras 28,29 and 30 held as under:- "28. In any view ofthe matter, this Court is unable to accept that the decision ofHPCL to callfor applicationsfrom only those candidates who were willing to provide land, is discriminatory orfallsfoul ofArticle 14 ofthe Constitution of India. Merely because HPCL in past had. called for applications without such condition does notpreclude HPCL from changing the eligibility criteria. HPCL's decision to allot dealership only on the condition that the candidates provide land for the same is, plainly, within their commercial discretion; and ifthe said condition is applied uniformly to all applicants in a particular category (submitting their application pursuant to the particular advertisement), the petitioner can have no grievance in this regard.

29. It is also relevantto state thatSmt Versha Malhotra-the candidate who was placed in the second position — was also unable to provide the suitable site within the specifiedperiod oftwo months and, therefore, the LOIissued to her was also cancelled. Aggrieved by the same, Smt Versha Malhotra preferred a writ petition W.P.(C) 12578/2006 before this Court challenging the decision of HPCL in cancelling her LOI. Thesaidpetition was dismissed by a CoordinateBench of this Court on 27.04.2009. This Court held that Smt Versha Malhotra wasfully aware ofthe conditions to make available to the suitableplot ofland within aperiod oftwo monthsfrom the date ofthe LOIand had been unable to satisfy the same. Therefore, the decision ofHPCL to cancel the LOIcould not befaulted.

30. The presentpetitions must also share the samefate as the case of Smt Versha Malhotra [W.P.(C) 12578/2006]. The petitioner was fully aware of his obligations to provide a suitable land and had appliedfor the dealership confirming that he wouldprovide the landasper the rules and regulations ofHPCL.Admittedly, thepetitioner did nothave a suitable site at the time of making his application and he was unable to arrange suitableplot ofland within aperiod oftwo months as required. Thus, this Courtfound no infirmity with the decision ofthe HPCL in cancelling the LOI."

8. Insofar as writ petition, wherein he sought implementation of the judgment dated December 10, 2008 passed by the Chief Commissioner is concerned,the learned Single Judge has,in para 31 held as under:- "31. In view of the above, the very foundation of the petitioner's claimfor an allotment oflandfrom MCD stands eroded and it is not necessary to examine whether, infact, any sitefor apetroleum retail outlet is available with MCD(or its successors including North MCD).In any view ofthe matter, thepetitioner cannotclaim apreferentialrightfor allotmentof any particular site. At best, the petitioner can claim that a scheme for preferential allotment of land at concessionaire rates beframedforpersons with disabilities. Thepetitioner, of course, would have full right to participate in preferential allotment ofland along with other similarly placed persons. However, the petitioner cannot claim that he is entitled to allotment on account ofhis disability. Surely, ifthis was so, other persons with similar disabilities would be equally entitledfor allotmentofland." The learned Single Judge dismissed the writ petition No. 8992/2009 as well.

9. Mr.Keshav Dayal,learned Senior Counsel appearing forthe appellant contends that there was no obligation on the part of appellant to offer the land while seeking allotment ofa retail outlet. We are unable to agree with the said submission ofMr.Dayalfor the following reasons:

(i) the appellant himself in his application clearly stated ( as reproduced above) that he would arrange the site as per rules and regulations ofthe HPCL;

(ii) the advertisement issued by the HPCL was for appointment of dealers for Company owned retail outlets on site owned by the Company / leased to the Conipany.. The note in the advertisement clearly stipulated as under:- "(3. The candidate should furnish alongwith application, detail ofland, which he/she may make availablefor the Retail Outlet. b. Considering the location of the landfrom the point of view ofsuitabilityfrom commercialangle and rates acceptable to the company, applicants willing to transfer the land on ownership /long lease to Hindustan Petroleum Corporation Ltd. would begivenpreference. c. Ifan applicant, after selection, is unable to provide the land indicated by him/her in the application form within-a period oftwo months,from the date ofLetter ofIndent(LOI), then the allotment of dealership made to him/her will be cancelled." iii. the LOI issued to the appellant clearly stipulated that the appellant shall make available a suitable plot of land within two months from the date ofthe letter i.e April 05,2006. iv. the appellant himself offered initially site at Khanjhawala, which was rejected being not commercially viable. He had further offered two sites at Naniwala Bagh, Azadpur and Rajan Babu T.B. Hospital,Road No.45. Those were also rejected. v.. the very fact that the appellant had filed a petition before the Chief Commissioner for allotment of a suitable land for operating retail petrol pump outlet in his favour would demonstrate that it is his own case thathe was required to offer the land for the operation ofthe petrol pump outlet.