# Smt. Samya Chaudhary v. The Union of India & Ors

- **Citation:** (2013) 3 ILRA 1264
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-05
- **Case number:** Civil Misc. Writ Petition No.35332 of 2013
- **Bench:** Ashok Bhushan, Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-samya-chaudhary-v-the-union-of-india-ors-42683
- **Pages:** 12

## Headnote

Constitution of India, Art.-226- Doctrine
of promissory Estoppel-explained-petitioner
applied for dealership L.P.G.-on draw of lots
found selected-on spot verification certain
short
comings
highlighted-instead
of
producing regd. lease deed-petitioner given
notary affidavit-if allowed to continueamount to continue illegalities for ever-in
absence of minimum eligibility criteria-no
question of applicability of promissory
estoppel.

Held: Para-31-
In view of above discussion, it transpires
that though ground no. 1 on which
candidature of the petitioner has been
rejected is not sustainable in law, the
second ground is valid and legal and the
candidature of the petitioner has rightly
been cancelled as she did not meet the
minimal eligibility criteria of having a
registered lease on the date of the
application. A fortiori, no exception can be
taken to the ultimate decision of the BPCL
cancelling the candidature of the petitioner.

Case Law discussed:
2008(3)AWC 2987; (2008) 9 SCC 31; (2000)7
SCC 529; (2011) 10 SCC 420; (2012) 11 SCC
1; (2003) 1 SCC 152.

## Text

_Characters 0–39,729 of 40,518. This is a partial read: ask again with offset=39729 for what follows._

1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Reference may be made to the some of the
decision of Supreme Court in K.L.Tripathi v.
State Bank of India reported AIR 1984 SC
273 ; State Bank of Patiala v. S.K. Sharma
reported AIR 1996 SC 1669 and Biecco
Lawrie Ltd. v. West Bengal reported
(2009) 10 SCC 32.

24. Adverting to the case in hand, it
is not in dispute that the services of
petitioner is governed by Regulations
1975. As the procedure laid down in
Regulation 85 thereof was not followed
inasmuch as no oral inquiry, as prescribed
under Regulation 85 was not held, the
impugned order cannot sustain and the
writ petition deserves to be allowed.

25. In the result, the writ petition is
allowed. The impugned orders dated
31.07.1996 (Annexure-10 to the writ
petition) is hereby quashed. Petitioner shall
get all consequential benefits. However, the
respondents shall be at liberty to pass fresh
order in accordance with law.

26. No order as to costs.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Misc. Writ Petition No.35332 of 2013

Smt. Samya Chaudhary
 ...Petitioner
Versus
The Union of India & Ors. ..Respondents

Counsel for the Petitioner:
Archana Singh
Counsel for the Respondents:
A.S.G.I., Sri Vikas Budhwar
Constitution of India, Art.-226- Doctrine
of promissory Estoppel-explained-petitioner
applied for dealership L.P.G.-on draw of lots
found selected-on spot verification certain
short
comings
highlighted-instead
of
producing regd. lease deed-petitioner given
notary affidavit-if allowed to continueamount to continue illegalities for ever-in
absence of minimum eligibility criteria-no
question of applicability of promissory
estoppel.

Held: Para-31-
In view of above discussion, it transpires
that though ground no. 1 on which
candidature of the petitioner has been
rejected is not sustainable in law, the
second ground is valid and legal and the
candidature of the petitioner has rightly
been cancelled as she did not meet the
minimal eligibility criteria of having a
registered lease on the date of the
application. A fortiori, no exception can be
taken to the ultimate decision of the BPCL
cancelling the candidature of the petitioner.

Case Law discussed:
2008(3)AWC 2987; (2008) 9 SCC 31; (2000)7
SCC 529; (2011) 10 SCC 420; (2012) 11 SCC
1; (2003) 1 SCC 152.

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. Aggrieved by order dated
30.5.2013, whereby the petitioner was
informed
by
the
Bharat
Petroleum
Corporation Limited (for short "BPCL")
that
upon
field
verification,
the
information furnished by her in the
application for LPG distributorship was
found to be at variance and, therefore, her
candidature is being rejected, has filed the
instant writ petition for quashing the
aforesaid order and for commanding
BPCL to offer the LPG distributorship in
question to the petitioner.

2. During pendency of the writ
petition, the petitioner came to know that
3 All] Smt. Samya Chaudhary Vs. The Union of India & Ors.
1265
BPCL is proceeding to hold re-draw for
selection of LPG distributorship from
amongst the remaining eligible candidates
and the aforesaid action was also
subjected to challenge by filing an
amendment
application,
which
was
allowed. Yet another amendment was
sought challenging the order dated
21.6.2013 whereby the representations
made by the petitioner vide her letters
dated 7.6.2013 and 17.6.2013 were
rejected. The said amendment was also
duly allowed by order dated 24.7.2013.

3. The facts in brief giving rise to the
instant petition are that the petitioner had
applied for LPG distributorship at Naubasta,
Kanpur under SC Category pursuant to the
advertisement
dated
22.10.2011.
The
Territory Manager, LPG, BPCL, Lucknow
informed the petitioner that there are certain
shortcomings in the affidavits submitted by
her and she was required to remove the
defects by 8.2.2013. Pursuant thereto, the
petitioner claims to have submitted a fresh
affidavit, and thereafter by letter dated
28.2.2013 sent by Territory Manager, LPG,
Lucknow she was informed that she has
qualified for the draw of selection of LPG
distributorship to be held on 21.3.2013 and
she may remain personally present on that
date. According to the petitioner, she was
successful in the draw of lots and thereafter
field verification was carried out to ascertain
her credentials and to verify the information
submitted by her in the application. At the
time of field verification, it was noticed that in
the registered lease-deed of the land, which
was offered by her for construction of
godown, by inadvertence, in place of Plot No.
1040, Plot No. 1050 has been mentioned. On
coming to know of the said typographical
error, she immediately got the registered lease
rectified by getting a registered titimma
executed on 8.5.2013 in which it was
mentioned that in the original lease deed, in
place of plot no. 1050, the correct plot no. 1040
be read. The further case of the petitioner is that
she immediately intimated the BPCL vide her
letter dated 9.5.2013 that the mistake in the
registered lease deed has been corrected by
substituting plot No. 1040 in place of plot no.
1050. According to the petitioner, no further
discrepancy was found in the field verification.
However, she was taken aback on receipt of the
impugned order dated 30.5.2013 whereby her
candidature has been rejected. The relevant
portion of the aforesaid letter containing two
grounds is reproduced below:

"We regret to inform you that upon
field verification of the information
submitted by you in your application
mentioned above, the following variance
was observed.

(1) In your application, you have
offered a land at Khasra No. 1050 with
size of 27 m x 27 m. However, on
verification it has been found that the land
bearing Khasra No. 1050 is measuring
100 sq. m only (approx 6.5 m x 15.5 m)
and does not meet the requirement of
minimum dimensions for LPG Godown.
Further, an HT electricity line is also
passing through the above plot of land.
Hence, land has not been found suitable
for LPG Godown as per Clause 7.1(vi) of
the brochure for Selection of Distributors.

(2) You have submitted a Notarised
Rent Agreement for Showroom and not
the Registered Lease Deed as per terms &
conditions
of
the
advertisement.
Therefore, the shop for Showroom is not
suitable as per Clause 7.1 (vii) of the
brochure for Selection of Distributors."

4. According to the petitioner,
Ground No. 1 on which her candidature
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
has been rejected is manifestly erroneous in
law. She duly got the registered leasedeed(with respect to the plot of land meant for
construction of godown) corrected, by
execution of a rectification deed (titimma
dated 8.5.2013) and which relates back to the
date of execution of the original lease deed
dated 16.11.2011. The typographical error in
the original lease deed was duly brought to the
knowledge of the Officers carrying out the
field verification and they were requested to
submit their report with reference to the
boundaries of the land as mentioned in the
registered lease deed dated 16.11.2011, but
they wrongly took measurement of Khasra no.
1050 . They committed further illegality in
submitting their report with reference to
Khasra No. 1050. According to the petitioner,
if the officers would have verified the land
according to the boundaries shown in the
registered deed dated 16.11.2011, it would
have transpired that it meets the requirement
both in terms of dimensions and the location.
No high tension electricity line passes over
plot no. 1040 which was actually demised by
lease deed dated 16.11.2011 and thus, the first
ground on which her candidature has been
rejected is not sustainable in law.

5. On the other hand, Sri Vikas
Budhwar, learned counsel for BPCL
submitted that there is no infirmity in the
decision of the BPCL rejecting the
candidature of the petitioner. According
to
him,
the
petitioner
has
clearly
mentioned in her application that the plot
of land being offered for construction of
godown bears khasra plot no. 1050 and in
such circumstances the field verification
of khasra plot no. 1050 was rightly carried
out.
He
submits
that
subsequent
rectification of lease deed cannot have the
effect of removing the defects which was
in existence at the time of submission of
the application. He placed reliance on
Clause 7.1 of the brochure in emphasizing
that the ownership of the land offered for
construction of godown has to be seen as
on the date of application and any
subsequent exercise to remove the defects
or to change the location of the site cannot
be taken into consideration. He thus,
stoutly protected the action of the BPCL.

6. We have considered rival
submissions of the parties and perused the
records.

7. Admittedly, the petitioner in her
application has offered land measuring
27mx 27m which indisputably meets the
requirement for LPG godown. The
registered lease deed dated 16.11.2011
was admittedly produced at the time of
field verification. It is evident therefrom
that the boundaries of the land offered for
construction of LPG godown were as
follows:

East : Property of Lokendra Dwivedi

West: Remaining part of the land.

North: Remaining part of the land.

South: Road.

8. The case of the petitioner is that
on account of typographical error, plot no.
1050, was wrongly mentioned in place of
plot no. 1040 in the registered lease deed.
She claims to have informed about the
said mistake to the officers carrying out
field verification and requested them to
inspect the plot of land as per boundaries
mentioned in the registered lease deed;
however, they did not pay any heed to her
request.

9. In case of ambiguity or variance
in different clauses of the same document,
the real intention of the parties to the
contract is to be culled out. For such
3 All] Smt. Samya Chaudhary Vs. The Union of India & Ors.
1267
purpose, even aid of extrinsic evidence
can be taken. Thus, where discrepancy
was noticed in the area and boundaries
mentioned in a registered document, it
was held that the boundaries will prevail
over the area (vide 2008 (3) AWC 2987
:Govt and Public Sector Employees
Welfare Housing Organisation Vs.
State of UP and others). In the
Commentary by S.C. Sarkar on Law of
Evidence
14th
Edition
at
Page
1320(Vol.1) the renowned Author has laid
down as follows:-

Admissibility of Extrinsic Evidence
in Cases of Latent Ambiguity Covered by
the Section.― "Where lands are described
as lying within certain boundaries, and
there is a mis-statement as to the area
within such boundaries, the boundaries
must prevail and the error in the quantity
should be considered as a mere false
description [Pahalwan v. Maheswar, 16
WR 5 PC: 9 BLR 150; Zeenat Ali v. Ram
Dayal, 18 WR 25; Eshan Ch v. Pratap, 20
WR 224; Shib Ch v. Brojonath, 14 WR
301; Abdul Mannath v. Baroda, 15 WR
394; Mohiuddin v. Sandes, 12 WR 439;
Virjivandas v. Md Ali, 5 B 208, see also
Tribhoban v. Krishnaram, 18 B 283;
Karuppa v. Periathambi, 30 M 397; 2
MLT 336; Harimohan v. Rameshwar, 64
IC 737; Shk Bara v. Rajendra, 64 IC 751;
Nga Cho v Mi Se, 10 Bur LT 245; Johri v.
Jowahra, 58 IC 67; Ritlal v. Spilingford,
57 IC 2; Narain v. Jawahir, 50 PLR 1922;
Bholanath v. Mrityunjoy, 59 CLJ 532,
and other cases as to false description
noted under s 95]. Where there is seeming
inconsistency as between boundaries and
the area stated in an instrument, it is
permissible to have recourse to extrinsic
evidence and evidence of user by acts of
parties for the purpose of gathering the
real intention [Sattendra v. Girijabhusan,
58
C
686
:
A
1931
C
596;
Basavapunnareddi v. Krishnayaa, A 1966
AP 260]."

The same principle will apply in case
of misdescription of plot number in a
document. It is the boundaries which will
ordinarily prevail. In the instant case, the
correct intent of the parties to the leasedeed became manifest on execution of
registered
rectification
deed
dated
8.5.2013 whereby it was clarified that the
land which is subject of conveyance is in
fact plot no. 1040 and not 1050. Such
extrinsic evidence was required to be
considered to gather the real intention of
the parties to the document in question.
Admittedly, a copy of the rectificationdeed was duly forwarded to the BPCL on
9.5.2013 much before the impugned order
dated 30.5.2013 was passed. In such
circumstances, it was incumbent upon the
BPCL to have considered the rectification
deed submitted by the petitioner and to
get a re-inspection done of plot no. 1040.
However, BPCL acted in a mechanical
manner and without paying any heed to
the stand of the petitioner, it illegally
rejected her candidature on the basis of
their report based on plot no. 1050. In
such circumstances, ground no.1 on
which the candidature of the petitioner
has been rejected cannot be sustained in
law.

10. As regards the second ground to
the effect that the petitioner was not
having registered lease deed of the
showroom on the date of application, the
petitioner submits that the aforesaid
discrepancy was never brought to her
knowledge. In case there was any such
requirement, the petitioner should have
been informed about the same, as was
done by the BPCL itself vide its letter
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
18.1.2013
whereby
she
was
required to remove certain defects in her
affidavits. Had such notice been given to
her, she would have removed the
shortcomings.
However,
since
the
impugned
decision
has
been
taken
without giving any notice or opportunity
of hearing to the petitioner, the impugned
order cannot be sustained.

11. Refuting the submissions made by
the petitioner, Sri Vikas Budhwar submitted
that under clause 7.1(vii) of the brochure, it
was clearly stipulated that the applicant
should own a suitable shop in the advertised
locality as on the date of the application. He
has referred to the definition of 'ownership'
given in the brochure, according to which the
applicant should be owner of the property or
should have registered lease agreement for
minimum period of 15 years in his own
name or in the name of family members. He
submits that admittedly, the petitioner does
not have the registered lease agreement for
minimum 15 years with regard to the shop
offered by her. The aforesaid fact came to the
knowledge of the BPCL on field verification
wherein the information given by an
applicant in his/her application is verified
with the original title documents. He further
submitted that the policy relating to
settlement
of
LPG
distributorship
contemplates two kinds of defects. One
which are curable and the other which are
not curable and relates to the eligibility of a
candidate on the date of the application. He
also produced the aforesaid guidelines for
perusal of this court at the time of hearing of
the writ petition. He placed reliance on
Clause 15 and 16 of the aforesaid policy
regulating the procedure for selection of LPG
distributors. According to it, after last date of
submission of applications, the applications
are subjected to scrutiny by a committee
called "Application Scrutiny Committee"
(for short ''the committee'). The said
committee prepares a list of applicants who
were found ineligible due to non-technical
reasons and their candidature is rejected
outrightly. Another list is prepared in
Appendix M-2, which relates to candidates
who were found ineligible due to technical
reasons. Such applicants are informed by
registered post about technical defects in
their applications and are given time to
rectify the deficiency. According to him, the
scrutiny of applications by the committee
relates only to the documents which are
required to be submitted alongwith the
applications, the details of which are given at
the foot of the application. These are (i) copy
of eligibility certificate for the category
applied (ii) demand draft being processing
fees (iii) Notarised affidavit in Appendix-1
and (iv) Notarised affidavit in Appendix-2.
All other informations are taken to be correct
on their face value in view of the declaration
made by the applicants to the effect that all
information furnished in the application are
true and correct. It is only on field verification
that the other information given in the
applications are verified with original title
documents. According to Sri Budhwar, at
item no. 10 of the application, the applicants
are required to mention the date of registration
of sale deed/gift deed/lease deed of the land
offered for showroom. Thereunder, the
petitioner has mentioned 21.11.2011, and
which conveys the impression that the
petitioner is owner of the land offered for
showroom by virtue of registered sale deed/
gift deed/ lease deed dt. 21.11.2011. The said
information was taken to be correct on its face
value as alongwith the application, the title
documents are not required to be appended
and even if appended they are not subjected to
scrutiny. The aforesaid exercise, according to
the brochure for selection of LPG distributors,
is carried out at the stage of field verification.
3 All] Smt. Samya Chaudhary Vs. The Union of India & Ors.
1269

12. Elaborating his argument, Sri
Budhwar further submitted that while
carrying out field verification of the
credentials, the petitioner was required to
produce the original title documents relating
to shop offered as showroom. It thereafter
transpired that the petitioner is only having
a notarised lease deed and not a registered
one and wherein the tenancy is from month
to month. He placed reliance on clause 2 of
the said lease deed, according to which, the
tenancy starts on first day of each month
and determines at the end of each month.
Such a lease deed even if registered in
future, will not amount to a lease for a
period of 15 years. He further submitted that
the subsequent registration even if made,
will not cure the defect as according to the
terms and conditions of the brochure, the
eligibility has to be seen with reference to
the date of application. Placing reliance on
clause-7 of the brochure, he submitted that
the petitioner should be having registered
lease on the date of application. The
petitioner has deliberately suppressed the
aforesaid facts in her application and which
was detected at the time of field
verification. He submitted that since the
information given by the petitioner was
found to be at variance with the original
documents and since it affects her
eligibility, she was rightly informed that her
candidature is being rejected.

13. He further submitted that in the
circumstances aforesaid, there was neither
any requirement for giving show cause
notice nor it had in any manner prejudiced
the case of the petitioner, consequently,
the writ petition should be dismissed.

14.

For
appreciating
rival
contentions in this regard, it is necessary
to refer to certain clauses of the brochure.
Clause 7 lays down the eligibility criteria
for the individual applicants. Under clause
7.1 (vii) one of the requirements for
eligibility is as follows:

"Own a suitable shop of minimum
size 3 metres by 4.5 metre in dimension
or a plot of land for construction of shop
of minimum size 3 metres by 4.5 at the
advertised location or locality as specified
in the advertisement as on the date of
application. It should be easily accessible
to general public through a suitable
approach road.

''Own' means having ownership title
of the property or registered lease
agreement for minimum 15 years in the
name of applicant / family member as
defined in multiple distributorship norms
of eligibility criteria."

15. Thus, one of the requirements
for an applicant to be eligible for
dealership is that he/she should be owner
of or should be having registered lease
agreement for 15 years with regard to the
land / shop offered for showroom.

16. It has not been disputed before us
that requirement of having a registered lease
of 15 years was sine qua non for eligibility of
a candidate. What has been emphasized is that
in case the petitioner would have been
intimated about such discrepancy or would
have been given show cause notice, she could
have got the defect cured by getting the deed
registered. Thus, the main emphasis is on the
breach of the rule of audi alteram partem.

17. It is true that in the instant case,
before cancelling the candidature of the
petitioner on the ground that she is not
having registered lease deed on the date
of application, she was not given
opportunity of hearing. However, breach
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
of principles of natural justice is no more
a straight jacket formula rendering the
action ipso facto invalid unless it could be
shown that non-observance thereof has
prejudicially affected the person.

18. In cases where despite non-
observance of the principles of natural justice,
the ultimate result is bound to remain the
same; where there is no other view possible
even if opportunity of hearing is afforded to
the aggrieved parties, then such are the cases
where impugned action cannot be struck
down on ground of violation of principles of
natural justice nor are such cases required to
be remitted back to the authorities for a fresh
decision after giving show cause notice or
opportunity of hearing, as it will be an empty
formality, a mere ritual.

19. The Apex Court in its judgment in
the
case
of
Haryana
Financial
Corporation and another Vs. Kailash
Chandra Ahuja reported in (2008) 9 SCC
31 has considered in great detail the
consequence of non-observance of principles
of natural justice. The Apex Court has held
that the recent trend of judgment is that
unless prejudice is shown, the impugned
order or action cannot be struck down. It has
been observed as under:

"The recent trend, however, is of
"prejudice". Even in those cases where
procedural requirements have not been
complied with, the action has not been
held ipso facto illegal, unlawful or void
unless it is shown that non-observance
had prejudicially affected the applicant.

In Malloch Vs. Abendeen Corpn.,
Lord Reid said : (All ER p. 1283a-b)

"....it was argued to have afforded a
hearing to the applicant before dismissing
him would have been a useless formality
because whatever he might have said
could have made no difference. If that
could be clearly demonstrated it might be
a good answer".

(emphasis supplied)

Lord Guest agreed with the above
statement, went further and stated: (All
ER p.1291b-c)

"...A great many arguments might
have been put forward but if none of them
had any chance of success then I can see
no good reason why the respondents
should have given the appellant a hearing,
nor can I see that he was prejudiced in
any way".

20. In Aligarh Muslim University
Vs. Mansoor Ali Khan, (2000) 7 SCC
529, the Court held that though the rules
of natural justice have been violated but
the order impugned cannot be set aside as
no prejudice has been caused. Referring
to several cases, and after considering the
theory of "useless" or "empty formality"
and noting "admitted or undisputed" facts,
the Court held that the only conclusion
which could be drawn was that " had the
petitioner been given notice", it "would
not have made any difference" and, hence,
no prejudice has been caused.

21. In the instant case as well, no
purpose will be served in remitting the
matter back to the authority for decision
afresh after providing opportunity of
hearing to the petitioner, in as much as the
defect is incurable; no amount of
explanation can change the ultimate
result, being a fait accompli. For
petitioner can by no means negate the
admitted fact that on the date of
application she was not having registered
3 All] Smt. Samya Chaudhary Vs. The Union of India & Ors.
1271
lease of the shop offered for show room
for a period of 15 years and therefore did
not fulfill the eligibility criteria under
clause 7 of the brochure. The clock cannot
be put back. Subsequent registration will
not cure the defect. Consequently, even if
no opportunity of hearing was given to
the petitioner, she has not been put to any
prejudice and therefore impugned order
cannot be set aside on the ground of non
observance of principle of natural justice.

22. The second limb of the argument
of the petitioner is that as per the
guidelines
for
selection
of
LPG
distributor, the established procedure is to
scrutinize the applications and thereafter
inform applicants about the defects, if
any, and provide opportunity to them, to
remove the same.

23. To buttress her aforesaid
argument, the counsel for the petitioner
has placed reliance on the letter of the
Territory Manager, LPG, Lucknow dated
18.1.2013 whereby she was called upon to
remove the defects in the affidavit
submitted by her as per proforma in
Appendix-1 and Appendix-2. She submits
that in case at the time of scrutiny, such
defect would have been pointed out, she
could have got the lease deed registered.
She pressed the doctrine of promissoryestoppel against BPCL.

24. Perusal of the scheme for selection
of LPG distributorship, copy whereof was
passed on to the Court at the time of hearing
of the writ petition, it transpires that the
defects noticed by the scrutiny committee are
to be categorised in 2 classes; the first being
of those applicants who were found
ineligible due to non-technical reasons and
list thereof is to be prepared in Appendix-M1. The other list in Appendix- M-2 is of
applicants found ineligible due to technical
reasons. Clause 16 requires that in case of
applicants
under
Appendix-M-2,
an
opportunity is to be given to them to remove
the deficiency. In the case of the petitioner as
well, the affidavit submitted by her did not
bear her signatures and there were certain
other technical defects therein and she was
given opportunity to rectify such defects.
However, the defect relating to non
registration of the lease as on date of
application cannot be said to be a technical
defect for which any notice is required to be
given to the petitioner or defect wherein
could be cured, in as much as, the
requirement was to have a registered lease
deed on the date of the application. The
defect was fatal in nature. In such cases , no
notice was required to be given as per clause
16 of the guidelines for selection of LPG
distributors.

25. Other limb of the argument is
the plea of promissory estoppel. Before
examining
the
plea
of
promissory
estoppel, it is useful to refer to certain
decisions of the Apex court. In one of the
recent judgements, in the case of
Cauvery Coffee Traders, Mangalore vs.
Hornor
Resources
(International)
Company Ltd. (2011) 10 SCC 420, it
was held that :

34. "A party cannot be permitted to
"blow hot and cold", "fast and loose" or
"approbate and reprobate". Where one
knowingly accepts the benefits of a
contract or conveyance or an order, is
estopped to deny the validity or binding
effect on him of such contract or
conveyance or order. This rule is applied
to do equity, however, it must not be
applied in a manner as to violate the
principles of right and good conscience.
(Vide Nagubai Ammal v. B. Shama Rao,
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
CIT v. V.M.R.P. Firm Muar, Maharashtra
SRTC v. Balwant Regular Motor Service,
P.R. Deshpande Vs. Maruti Balaram
Haibatti, Babu Ram v. Indra Pal Singh,
NTPC Ltd. V. Reshmi Constructions,
Builders & Contractors, Ramesh Chandra
Sankla Vs, Vikram Cement and Pradeep
Oil Corpn vs. MCD. )

35. Thus, it is evident that the
doctrine of election is based on the rule of
estoppel - the principle that one cannot
approbate and reprobate inheres in it. The
doctrine of estoppel by election is one of
the species of estoppels in pais (or
equitable estoppel), which is a rule in
equity. By that law, a person may be
precluded by his actions or conduct or
silence when it is his duty to speak, from
asserting a right which he otherwise
would have had.

26. In Monnet Ispat & Energy
Ltd. vs. Union of India (2012)11 SCC 1,
the Apex Court, after considering catena
of decisions, spelled out the broad
principles which are to guide a court
when issue of applicability of promissory
estoppel arises. They are :-

182.1. Where one party has by his
words or conduct made to the other clear
and
unequivocal
promise
which
is
intended to create legal relations or affect
a legal relationship to arise in the future,
knowing or intending that it would be
acted upon by the other party to whom the
promise is made and it is, in fact, so acted
upon by the other party, the promise
would be binding on the party making it
and he would not be entitled to go back
upon it, if it would be inequitable to allow
him to do so having regard to the dealings
which have taken place between the
parties, and this would be so irrespective
of whether there is any pre-existing
relationship between the parties or not.

182.2. The doctrine of promissory
estoppel may be applied against the
Government where the interest of justice,
morality and common fairness dictate
such a course. The doctrine is applicable
against the State even in its governmental,
public or sovereign capacity where it is
necessary to prevent fraud or manifest
injustice. However, the Government or
even a private party under the doctrine of
promissory estoppel cannot be asked to do
an act prohibited in law. The nature and
function
which
the
Government
discharges is not very relevant. The
Government is subject to the rule of
promissory estoppel and if the essential
ingredients of this doctrine are satisfied,
the Government can be compelled to
carry out the promise made by it.

182.3. The doctrine of promissory
estoppel is not limited in its application
only to defence but it can also furnish a
cause of action. In other words, the
doctrine of promissory estoppel can by
itself be the basis of action.

182.4. For invocation of the doctrine
of promissory estoppel, it is necessary for
the promisee to show that by acting on
promise made by the other party, he
altered his position. The alteration of
position by the promisee is a sine qua non
for the applicability of the doctrine.
However, it is not necessary for him to
prove any damage, detriment or prejudice
because of alteration of such promise.

182.5. In no case, the doctrine of
promissory estoppel can be pressed into
aid to compel the Government or a public
authority to carry out a representation or
3 All] Smt. Samya Chaudhary Vs. The Union of India & Ors.
1273
promise which is contrary to law or which
was outside the authority or power of the
officer of the Government or of the public
authority to make. No promise can be
enforced which is statutorily prohibited or
is against public policy.

182.6. It is necessary for invocation of
the doctrine of promissory estoppel that a
clear, sound and positive foundation is laid in
the petition. Bald assertions, averments or
allegations without any supporting material
are not sufficient to press into aid the
doctrine of promissory estoppel.

182.7. The doctrine of promissory
estoppel cannot be invoked in abstract.
When it is sought to be invoked, the Court
must consider all aspects including the
result sought to be achieved and the
public good at large. The fundamental
principle of equity must forever be
present to the mind of the court. Absence
of it must not hold the Government or the
public authority to its promise, assurance
or representation.

Now, we proceed to examine the
plea of promissory estoppel on the basis
of above principles.

27. Perusal of the application form
and the selection procedure would show
that alongwith the application, title
documents relating to land are not
required to be submitted. The committee
only scrutinizes the shortcomings which
are apparent on the face of the application
or the documents which are required to be
mandatorily appended to the application.
The committee relies on the selfdeclaration made by the applicant with
regard
to
his/her
title.
Stage
for
verification of the title documents arrives
much later when field verification is
carried out. In this regard, it will be
fruitful to reproduce Clause 11 of the
brochure which is to the following effect :

"11. FIELD VERIFIDATION OF
CREDENTIALS (FVC)

11.1 Verification of the information
given in the application by the applicant
with the original documents and with the
issuing authorities wherever required is
called Field Verification of Credentials.

11.2 Field verification will be carried
out for the selected candidate as per laid
down procedure. If in the FVC, the
information given in the application by
the applicant is found to be correct, letter
of intent (LOI) will be issued with the
approval of competent authority.

If in the FVC it is found that
information given in the application is at
variance with the original documents and
that information effects the eligibility of
the candidate, then a letter would be sent
by Registered Post AD / Speed Post
pointing out the discrepancy."

28. In the instant case as well,
during the field verification, it was found
that though the petitioner in her original
application
under
item
no.10
had
conveyed an impression of being in
possession of a registered lease deed
dated 21.11.2011 but on verification from
the original title documents, it transpired
that declaration made in this regard is
incorrect as the petitioner was not having
registered lease deed but only a notarised
one.
Thus,
there
was
clear
misrepresentation
as
regards
facts
mentioned under Item No.10 of the
application form. Promissory estoppel is a
doctrine of equity, and in the instant case,
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no equity in favour of petitioner
being herself responsible for conveying a
false impression of having a registered
lease-deed. Further, the verification of
title is at the stage of field verification of
credentials and not at the time of scrutiny
of the application and therefore there is no
question of estoppel coming in the way.
Moreover, having registered lease deed on
date of application, was a mandatory
eligibility criteria and can in no case be
relaxed as it renders ineligible the
petitioner's candidature and therefore
estoppel cannot be pressed. The petitioner
cannot be awarded dealership though she
does not meet the minimal eligibility
criteria. In case, the contention of the
petitioner is accepted, it will cause
injustice to other eligible candidates and
will result in perpetrating a wrong.
Therefore, the contention of the petitioner
based on doctrine of estoppel is not
sustainable in law.

29. In somewhat identical situation,
the Apex court in Central Airmen
Selection Board and Anr. v. Surender
Kumar Das, (2003)1SCC152 refused to
give benefit of the doctrine of promisory
estoppel. In that case, the upper age limit
for appointment to the post of Airmen
was relaxable by 2 years in case of those
applicants who have passed intermediate
examination. The petitioner in that case,
under the column "name of examination
passed"
mentioned
"HSC"
and
"CHSE+2". Although marksheet attached
with the Application form reveals that he
had failed in 10+2. He was invited to
appear in the written test and was
thereafter medically examined and was
found suitable for appointment. However,
when he reported for joining the duties, he
was informed that his selection has been
cancelled. It was observed as under:

"7. The question, therefore, is
whether in case of this nature the
principle of promisory estoppel should be
invoked. It is well known that the
principle of promissory estoppel is based
on equitable principles. A person who has
himself misled the authority by making a
fake
statement,
cannot
invoke
this
principle, if his misrepresentation misled
the authority into taking a decision which
on discovery of the misrepresentation is
sought to be cancelled. The High Court
has proceeded on the basis that the
petitioner
had
not
made
any
misrepresentation in his application to the
effect that he had passed the intermediate
examination. As we have found above,
this finding of the High Court is
erroneous,
contrary
to
record
and
therefore must be set aside. In his
application, the respondent had claimed
that he had passed the secondary
examination as well as the higher
secondary +2 examination, and it is clear
from the counter-affidavit filed on behalf
of the appellants that his candidaure was
considered on the basis that he had passed
the higher secondary +2 examination, as
in that case he was entitled to caim
relaxation in the matter of age. However,
the mark-sheet annexed to the application
disclosed that the respondent had failed in
the subject Chemistry and therefore, his
claim in the application, that he had
passed
the
higher
secondary
+2
examination, was factually incorrect and a
clear
misrepresentation.
In
these
circumstances we are satisfied that the
respondent could not be permitted to
invoke
the
principle
of
promisory
estoppel, and the High Court has clearly
erred in law in invoking the said principle
in the facts of this case. The judgement
and order of the High Court therefore
cannot
be
sustained."
3 All] Pankaj Singh Vs. State of U.P. and Ors.
1275

30. There is another aspect of the
matter. The requirement to have a
registered lease deed for a fixed period of
at least 15 years has been inserted to
ensure certainity and continuity. The work
of distribution of LPG affects the
common public at large. It is the duty of
Oil Companies, appointing distributors to
ensure that they continue undisturbed for
long duration, so that the customer
attached to them do not suffer. If the
tenancy of the showroom is from month
to month, as in the instant case, and not
for fixed duration of 15 years (which can
only
be
created
by
a
registered
document),
there
will
always
be
apprehension
of
eviction
of
lessee
(Dealer/Distributor). It will thus not be in
public interest to press doctrine of
estoppel to compel BPCL to award
dealership
to
the
petitioner,
who
admittedly is not having registered lease
of fixed duration of 15 years.

31. In view of above discussion, it
transpires that though ground no. 1 on
which candidature of the petitioner has
been rejected is not sustainable in law, the
second ground is valid and legal and the
candidature of the petitioner has rightly
been cancelled as she did not meet the
minimal eligibility criteria of having a
registered lease on the date of the
application. A fortiori, no exception can
be taken to the ultimate decision of the
BPCL cancelling the candidature of the
petitioner.

32. In the circumstances aforesaid,
the writ petition fails and is hereby
dismissed. No order as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MANOJ MISRA. J.

Civil Misc. Writ Petition No.36163 of 2013

Pankaj Singh
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
Ashok
Khare,
Sri
Sunil
Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Sri V.P. Varshney
Sri V.P. Mathur

Constitution
of
India,
Art.-226-
Cancellation of candidature-selection of
lecturer(Mechanical
Engineering)in
government
polytechnic-canceled
on
ground petitioner applied as OBC-but
could not provide certificate at the time
of interview-admittedly petitioner got
more marks than last candidate of
general category-held-illegal altogether
cancellation-not proper-direction to treat
general category-given.