REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6567-69 OF 2008
(Arising out of SLP (C) Nos.3456-3458 of 2008)
Virender Chaudhary ... Appellant
Versus
Bharat Petroleum Corporation & Ors. ... Respondents
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Respondent No.1 is a company incorporated under the Indian
Companies Act, 1956. It is a State within the meaning of Article 12 of the
Constitution of India. Its function, inter alia, is allotment of grant of LPG
distributorship.
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3. An advertisement was issued by the first respondent inviting
applications for grant of LPG distributorship for different areas including
the one for Ballabhgarh district, in terms whereof a person convicted for
commission of any offence involving moral turpitude/economic offence and
those against whom charges had been framed by the court were ineligible
therefor. In the said advertisement dated 18.7.1998 published in a daily
newspaper `The Tribune’ and `Dainik Tribune’ it was stated :
“2. Eligibility : The applicant should be :
XXX XXX XXX
5. Candidates convicted for any criminal
offence involving moral turpitude/economic
offences and those against whom charge has been
framed by the Court (other than Freedom Struggle)
are not eligible to apply.”
However, no distributorship was granted pursuant to the above
advertisement. Later, advertisements were published in the year 002 for the
purpose of grant of LPG dealership in Ballabhgarh district. The
advertisement dated 23.3.2002, published in `Navbharat Times’ reads thus :
“6. Candidates convicted for any criminal
offence involving moral turpitude/economic
offences and those against whom charge has been
framed by the Court (other than Freedom Struggle)
are not eligible to apply.”
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Clauses 6 and 9 of the advertisement published in `The Tribune’ and
`Dainik Tribune’ on 23.3.2002 read as under :
“6. Candidates convicted for any criminal offence
involving moral turpitude/economic offences
(other than Freedom Struggle), are not eligible to
apply.
XXX XXX XXX
9. The candidate selected for dealership shall
be a full time working dealer.
Further details of the eligibility criteria and
conditions as mentioned in the application form
shall apply.”
4. Several criteria were laid down in the application form, paragraph 20
whereof reads as under :
“Have you ever been convicted for any criminal
offence involving moral turpitude and/or
economic offence (other than freedom struggle)?
If so, please give details thereof, if not please
attach affidavit as per appendix `A’.”
5. In the manual issued by the respondent No.1, it was stated :
“12.Conviction: (i)Candidates convicted for any
criminal offence involving
moral turpitude and/or
4economic offence (other than
freedom struggle) would not be
eligible for dealership/
distributorship and if such a
person is allotted the
dealership/distributorship by
suppression of information, it
will be cancelled.”
6. Indisputably, Respondent No.5 was proceeded against in a criminal
case for alleged commission of offences under Sections 452, 323, 506 and
34 IPC in the year 1999. Another First Information Report was lodged
against him on or about 9.7.2001 under Sections 147, 148, 353, 186, 341
and 506 of the Indian Penal Code.
7. Both the appellants as also the respondent No.1 applied in response to
the advertisement.
In his application the 5th respondent did not mention that he had been
proceeded against in a criminal case and charges were framed against him.
Interviews were held for the candidates on or about 25/26.11.2003.
Respondent No.5 was found to be the most suitable candidate by the
Selection Committee. The name of appellant also figured in the select list.
Empanelment of the 5th respondent was, however, cancelled in view of his
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involvement in the criminal case. A field investigation was furthermore
carried out in respect of the appellant.
8. Fifth respondent filed a writ petition questioning the decision of the
first respondent herein in not awarding the dealership in his favour. A letter
of intent was issued in favour of the appellant in May 2004 whereafter he
started his business. In his writ petition, however, the 5th respondent did not
make any prayer for setting aside the allotment made in favour of the
appellant. On that ground, the writ petition was adjourned sine die by an
order dated 23.11.2004. Only on 16.3.2006, an application for amending
the writ petition was filed. However, the said writ petition was dismissed as
withdrawn with liberty to file a fresh writ petition on the same cause of
action.
9. Thereafter, the second writ petition was filed in October 2006 which
has been allowed by the High Court by reason of the impugned judgment
dated 15.11.2007.
10. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
appellant, submitted that although in the advertisement issued for grant of
allotment of the LPG dealership, lodging of a first information report or
framing of charge were not stated to be the relevant factors for the purpose
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of disqualifying a candidate, in all fairness, the 5th respondent should have
mentioned thereabout in his application for grant of LPG dealership. In any
event, as the writ petition suffered from delay and latches, the impugned
order should be set aside.
11. Mr. Mahabir Singh, learned counsel appearing on behalf of the 5th
respondent, on the other hand, would contend that as the case of the 5th
respondent had not been considered at all, there is no infirmity in the
impugned judgment.
12. It is not in dispute that whereas in the advertisement issued in the year
1998 and the advertisement issued on 23.3.2002 in `Navbharat Times’,
framing of charges in any criminal case was considered to be a
disqualification. But in the advertisement issued on 23.3.2002 in `The
Tribune and the `Daink Tribune, framing of charges in a criminal case was
not considered to be a disqualification. Only conviction in a criminal case
was considered to be a disqualification.
13. After the interviews were held and before the letter of intent could be
issued, field investigation was carried out. It is during the field
investigation, the officials of respondent No.1 came to learn about the fact
that two first information reports had been lodged against respondent No.5
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and in one of them he had also been charge-sheeted. It is on that basis, a
decision was taken to cancel the empanelment of the 5th respondent on or
about 10th March, 2004. Field investigation in respect of the appellant,
however, proceeded. Letter of intent had been issued in his favour on
6.5.2004. It is difficult to comprehend that the 5th respondent was not aware
of the issuance of the letter of intent to the appellant herein.
14. He, however, filed a writ application only on or about 23rd November,
2004. The High Court may be correct in its view that the purported
cancellation of empanelment of the 5th respondent was made on a wrong
premise. Though the advertisement published in `Navbharat Times’
mentioned `framing of charge in a criminal case’ as a disqualification, the
advertisement published in `The Tribune’ and the `Dainik Tribune’ framing
of charge in a criminal case was not mentioned as a disqualification. In the
application form also, the applicant was not required to furnish any
information regarding any framing of charge in a criminal case. It was
neither necessary nor possible for the 5th respondent to disclose the fact that
two first information reports had been lodged against him and in one of
them he had been charged sheeted. The purported disqualification
attributed to him, therefore, led to an unjust decision. The High Court,
however, in our opinion failed to take into consideration the effect of delay
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and latches on the part of the appellant in approaching the High Court. A
writ remedy is a discretionary remedy. The court exercises its jurisdiction
only upon satisfying itself that it would be equitable to do so. Delay and/or
latches, indisputably, are the relevant factors.
15. The Superior Courts, times without number, applied the equitable
principles for not granting a relief and/or a limited relief in favour of the
applicant in a case of this nature. While doing so, the court although not
oblivious of the fact that no period of limitation is provided for filing a writ
petition but emphasize is laid that it should be filed within a reasonable
time. A discretionary jurisdiction under Article 226 of the Constitution of
India need not be exercised if the writ petitioner is guilty of delay and
latches.
16. In Uttaranchal Forest Development Corporation & Anr. v. Jabar
Singh & Ors. [(2007) 2 SCC 112], this Court held :
“It is not in dispute that the effective alternative
remedy was not availed of by many of the
workmen as detailed in paragraphs supra. The
termination order was made in the year 1995 and
the writ petitions were admittedly field in the year
2005 after a delay of 10 years. The High Court, in
our opinion, was not justified in entertaining the
writ petition on the ground that the petition has
been filed after a delay of 10 years and that the
9writ petitions should have been dismissed by the
High Court on the ground of latches.”
In New Delhi Minicipal Council v. Pan Singh & Ors. [(2007) 9 SCC
278], this Court held :
“16. There is another aspect of the matter which
cannot be lost sight of. The respondents herein
filed a writ petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were
recruited after the cut-off date have been granted
the said scale of pay. After such a long time,
therefore, the writ petitions could not have been
entertained even if they are similarly situated. It is
trite that the discretionary jurisdiction may not be
exercised in favour of those who approach the
court after a long time. Delay and laches are
relevant factors for exercise of equitable
jurisdiction. (See Govt. of W.B. v. Tarun K. Roy,
U.P. Jal Nigam v. Jaswant Singh and Karnataka
Power Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation
provided for filing a writ petition under Article
226 of the Constitution of India, ordinarily, writ
petition should be filed within a reasonable time.
(See Lipton India Ltd. v. Union of India and M.R.
Gupta v. Union of India.)
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In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel &
Ors. [(2006 (8) SCC 726], it was held :
“Acquiescence is sitting by, when another is
invading the rights and spending money on it. It is
a course of conduct inconsistent with the claim for
exclusive rights for trade mark, trade name, etc.”
Recently in Khoday Distilleries Limited (Now known as Khoday
India Ltd.) v. The Scotch Whisky Association & Ors. [2008 (9) SCALE 40],
this Court applied the principle of waiver and acquiescence being a case
involving equity and justice. Conduct of the parties has also been
considered to be a ground for attracting the doctrine of estoppel by
acquiescence or waiver.
17. The 5th respondent did not acquire an indefeasible right. He was
selected by the Oil Selection Board. The said selection was subsequently
cancelled and a letter of intent was issued in favour of the appellant in May
2004. It was not questioned immediately after issuance of the letter of
intent in favour of appellant in May 2004. In his writ application, the 5th
respondent did not question the grant of dealership in favour of the
appellant. He was afforded an opportunity to amend the writ petition. He
filed such an application only after 16 months. However, the writ petition
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itself was withdrawn and only in October 2006, the present writ application
was filed. From the facts as noticed hereinbefore, there can, therefore, be no
doubt that from May 2004 to October 2006, the respondent did not take any
step to challenge insurance of the letter of intent granting dealership in
favour of appellant.
18. Considering the fact that starting of a business in LPG dealership
requires a huge investment and infrastructure therefor is required to be
provided and a large number of employees are to be appointed therefor, we
are of the opinion that the High Court committed a serious error in not
taking these factors into consideration in proper perspective. The impugned
judgment, therefore, cannot be sustained and is set aside accordingly.
19. The appeals are allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
……………………………….J.
[Cyriac Joseph]
New Delhi;
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November 7, 2008