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

J U D G M E N T

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.

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

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economic  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

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writ  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

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