Applicant approaching court belatedly not to be granted extraordinary relief: Top Court restores order dismissing rival applicant's petition challenging approval granted for starting LPG distributorship in light of 4-year delay
Justices Pamidighantam Sri Narasimha & Aravind Kumar [18-04-2024]

Read Order: MRINMOY MAITY v. CHHANDA KOLEY AND OTHERS [SC- CIVIL APPEAL NOs. 5027 of 2024]

Tulip Kanth

New Delhi, April 19, 2024: In a case where the appellant was granted approval for starting LPG distributorship, the Supreme Court has upheld the order of a Single-Judge Bench dismissing a rival applicant's petition which was filed after a lapse of four years.

The issue before the Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was whether the writ court was justified in entertaining the writ petition filed by the respondent No.1 challenging the approval dated 03.06.2014 granted in favour of the appellant for starting LPG distributorship at Jamalpur, District Burdwan.

The facts of the case which led to the filing of the appeal were that an advertisement came to be issued calling for application for distributors to grant LPG distributorship under GP Category at Jamalpur, District Burdwan. Since both the appellant and the respondent No.1 were held to be eligible from amongst the six (6) candidates, draw of lots was held and the appellant was found to be successful and was selected for verification of the documents. A letter of intent was issued to the appellant and the approval was granted by the BPCL in favour of the appellant for starting LPG distributorship at the notified place.

After a lapse of 4 years, the respondent No.1 filed a complaint with the BPCL alleging that land offered by the appellant was a Barga land and the same cannot be considered. Subsequently an application having been filed by the appellant offering an alternate land, the Corporation allowed the prayer of the appellant to construct the godown and showroom on the alternate land offered by the appellant.

 The respondent No.1 being a rival applicant for grant of distributorship, having participated in submitting the application and being unsuccessful in the draw of lots held way back in the year 2013 filed a writ petition in the year 2017 which came to be dismissed by the Single Judge on the ground that the writ petitioner (respondent No.1) had no locus standi since she had participated in the selection process.

Being aggrieved by the same the intra-court appeal came to be filed and the same was allowed. The allotment made in favour of the appellant was set aside by the impugned order and as a consequence of it, the letter of intent, the letter of approval accepting the alternate land offered by the (appellant herein) and all subsequent permissions, licences and no objections issued in his favour were held to be of no effect. Hence, the instant appeal was filed before the Top Court.

On a perusal of the facts, the Bench opined that the writ petitioner ought to have been non-suited on the ground of delay and latches itself. “An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India”, the Bench observed.

Noting that the discretion to be exercised would be with care and caution, the Bench opined that if the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. 

Referring to its judgment in Tridip Kumar Dingal and others v. State of W.B and others., the Top Court also held that when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death.

“It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court”, it added.

On the facts of the case, the Bench observed that the writ petitioner was aware of all the developments including that of the allotment of distributorship having been made in favour of the appellant herein way back in 2014, yet did not challenge and only on acceptance of the alternate land offered by the appellant in March, 2017 and permitting him to construct the godown and the showroom. Same was challenged in the year 2017 and thereby the writ petitioner had allowed his right if at all if any to be drifted away or in other words acquiesced in the acts of the Corporation and as such on this short ground itself the appellant had to succeed. 

Another fact which swayed the Bench to accept the plea of the appellant was that the appropriate government had felt the need of permitting the Oil Marketing Companies to be more flexible and as such modification to the guidelines had been brought in 2015 whereby the applicants were permitted to offer alternate land where the land initially offered by them was found deficient or not suitable or change of the land, subject to specifications as laid down in the advertisement being met. 

“There being no stiff opposition or strong resistance to the alternate land offered by the appellant herein not being as per the specifications indicated in the advertisement, we see no reason to substitute the court’s view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL”, the Bench added.

Thus, allowing the appeal, the Bench set aside the Order of the Division Bench while restoring the order of the Single Judge.