Holding

The Supreme Court set aside the High Court’s order, holding that the writ petition was barred by delay and latches and that the cancellation of Respondent No.5’s empanelment was unjust.

Summary

The case concerned the grant of an LPG distributorship by Bharat Petroleum Corporation (BPC). An advertisement invited applications, disqualifying persons convicted of offences involving moral turpitude or those against whom charges had been framed. Respondent No.5 was selected but his empanelment was cancelled after a field investigation revealed two FIRs, one of which led to a charge‑sheet. A letter of intent was subsequently issued to the appellant, Virender Chaudhary, in May 2004. Respondent No.5 filed a writ petition challenging his cancellation but did not contest the appellant’s allotment; the petition was withdrawn and a second petition was filed after more than two years. The High Court allowed the second petition, ignoring the delay and the principle of latches. The Supreme Court held that the High Court erred by not considering the appellant’s delay, that writ jurisdiction under Art. 226 is discretionary and equity requires factoring in delay and latches, and that the cancellation of Respondent No.5’s empanelment was unjust. Consequently, the appeals were allowed and the High Court’s order set aside.

Issues considered

The High Court’s discretion to entertain a writ petition filed after a substantial delay (latches) under Article 226.
Whether the cancellation of Respondent No.5’s empanelment was justified given the eligibility criteria and the requirement to disclose FIRs or charges.
Whether the appellant is entitled to relief despite the delay in filing the writ petition.

Legislation cited

Companies Act, 1956
Constitution of Indias. Article 226
Indian Penal Code, 1860s. 147, s. 148, s. 186, s. 323, s. 34, s. 341, s. 353, s. 452, s. 506

Subjects

Writ jurisdictionArticle 226DelayLatchesEquityEstoppelWaiverAcquiescenceLPG distributorshipEligibility criteriaCriminal chargesCancellation of empanelment

Judgment

[2008] 15 S.C.R. 713

VIRENDER CHAUDHARY A
~
v.
BHARAT PETROLEUM CORPORATION &·ORS.
(Civil Appeal Nos. 6567-69 «if 2008)
. ·~ \.

NOVEMBER 7, 2008
B
[s'.s. SINHA AND CYRIAC JOSEPH, JJ.)
~ .< • • ~ '

Constitution of India, 1950; Article 226:
y
Grant of LPG distributorship - Eligibility - Cancellation c
of empanelment of 5th respondent on ground of his
involvement in a criminal case and allotment in favour of
appellant - Challenged by respondent No.5 without
challenging allotment in favour of appellant - Dismissed by
High Court - Second Writ Petition filed after lapse of about D
two years allowed by High Court - Correctness of - Held:
~ -,. High Court failed to take into consideration the effect of delay
and latches on the part of respondent No.~ in approaching
High Court - A writ remedy is discretionary remedy - Delay
and latches are relevant factors taken into consideration by
E
the Courts while exercising writ jurisdiction - Superior Courts
apply principle of equity while granting limited relief/no relief
in favour of applicant in a case of this nature - High Court
erred in not taking into consideration relevant facts in proper
perspective - Hence, impugned judgment cannot be
F
-· '"' sustained and set aside - Writ Jurisdiction - Exercise of -
Delay and latches - Effect of.

Principle of acquiescence and waiver in a case involving
equity and justice - Applicability of, in the context of doctrine
of estoppel. G
Respondent No.1, Bharat Petroleum Corporation
issued an advertisement inviting application for grant of
..... LPG distributorship. In terms of the advertisement, a
713 H
714 SUPREME COLJ.RT REPORTS [2008] 15 ~.. C.R.

A person convic~ed, for any offence involving moral \-
~urpitud,e/ecoi:w,o.mic offence a_nd a person against whom
charges had been. framed by the Coui:t, was ineligible for
grant' of ~ist~ibutorship. Interviews were held for the :..-
cand,idates ·on or abou~ 25/2~.1.1.2003. Respondent No.5
B was found to be the most suitable candidate by\the
Selection Committe,e. The name of appellant ~lso figured
in the select list. Empanelment of the 5th respondent was,
however, cancelled. as he was found involved in a criminal
case. Respondent No.5 filed a writ petition questioning
C the cancellatior.i of his empanelment. But he did not
challenge the allotment made in favour of the appellant.
The.writ petition was dismissed as withdrawn by the High
Court. Respondent No.5 filed second writ petition after a
lapse of two years in October 2006, which was allowed
by the. High Court. Hence the present appeals.
C?. . .~
Appellant contended that although in the ..____
advertisement issued for grant of allotment of the LPG y ...
dealership, lodging of a first info~mation report or framing l
of charge were not stated to be the relevant factors for
E the purpose 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.
F
Allowing the appeals, the Court
HELD: 1.1. 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
G respondent No.5 and in one of them he had also been
charge-sheeted. It is on that basis, a decision was taken 1:
,.
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 .
I-
H been. issued in his favour on 6.5,2004. It is difficult to.
~··
VIRENDER CHAUDHARY v. BHARAT PETROLEUM 715
CORPORATION & ORS.

comprehend that the 5th respondent was not awe-re of A
the issuance of the letter of intent to the appellant. [Para.
13] [720-F, G, H; 721-A]
1.2. Though the· advertisement published in
'Navbharat Times' mentioned 'framing of charge-in a
criminal case' as a disqualification, the advertisement B
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 C
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
chargedsheeted. The purported disqualification
attributed to him, therefore, led to an unjust decision. The D
High Court, however, failed to take into consideration the
effect of delay and latches on the part of the appellant in
approaching the High Court. [Para 14] [721-8, C, DJ
1.3. The Superior Courts applied the equitable
principles for not granting a relief and/or a limited relief E
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 emphasis is laid that it should be filed within a
reasonable time. A discretionary jurisdiction under Article F
226 of the Constitution of India need not be exercised if
the writ petitioner is guilty of delay and latches. [Para 15]
[721-F, G]
Uttaranchal Forest Development Corporation & Anr. v. G
Jabar Singh & Ors. (2007) 2 SCC 112 and Delhi Municipal
Council v. Pan Singh & Ors. (2007) 9 SCC 278, referred to.
1.4. This Court in a number of cases applied the
principle of waiver and acquiescence being a case
involving equity and justice. Conduct of the parties has H
\ '.
716 SUPREME COURT REPORTS [2008] 15 S.C.R.

! "-~ ' '

A aJ~o been c"onsidered to be a gr.ound for attrC1ctlng the
doctrhi~ of estoppel acquiesce·n~e.or waiver. [Para 16]by
[723-C, D] . ·.
• •1 . t ••

..
,Ra.IJ1d~v Food Rr,oducts (p): Ltd.. y. Arvindbhai Rambhai
· · f;atel. ~:Ors .. (2~0~ (8). S.CC.t7.26 a,".'d Khoday Distilleries
B Urrited. (Nqw. known as Khoday India Ltd.) v. The Scptch
Whisky.. Assoq·ation & Ors. (2908) 9 SCALE 40·, referred to.
"i 1:s. From the facts, there·can be no doubt that from
.May 2004 to October 2006, the respondent did not take "tlffl:
c any step to challenge issuance of the letter of intent
granting dealership in favour of appellant. [Para 17] [723-
F, G]. . .

.. 1.6. Considering the fact that starting of a business
in LP<? dealership requires a huge investment and
· D ir)frastructure. therefor is required to be provided and a
large number of employe~s are to be appointed, the High
Court· com.mitted a serious .error in not taking these
factors i.nto consideration in proper perspective. The
impugned judgment, therefore, cannot be sustained and
E is set aside accordingly. [Para 18] [723-H; 724-A, B]
Case Law Reference:
(2007) 2 sec 112 Referred to Para 16
"

(2001) s ·sec 218 Referr:ed to Para 16
F
. (2006 (8) -sec 126 Referred to Para 16
(2008) 9 SCALE 40 Referred to Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
6567-69 of 2008.
G
,From the .final.. Judgment and Order dated 15.11.2007,
18.1.2008 & 24.1.2008 of the High Court of Punjab and
Haryana·at Chandigarh in CVVP No. 14143 of 2006, RA No.
14-.of200B .in CWP No. 14143 of 2006 & CWP No. 1124 of
H 2008 respectively.':. · · - ,,
VIRENDER CHAUDHARY v. BHARAT PETROLEUM 717
CORPORATION & ORS.

K.K. Venugopal, Gopal Prasad, Deepak Sibal and S.K. A
Singh for the Appellant.

Mahabir Singh, Daya Krishan Sharma, K.K.L. Gautam,
Shailendra Bhardwaj, Parijat Sinha, Reshmi Rea Sinha, S.C.
Ghosh Snehasish Mukherjee and Debapriya Samantra for the B
Respondents.

The Judgment of the Court was delivered by

.... S.B. SINHA, J. 1. Leave granted .
c
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 D
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 E
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 : F
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 G
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
H
718 SUPREME COURT REPORTS [2008] 15 S.C.R.

'A 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
B
Freedom Struggle) are not eligible to apply."

Clauses 6 and 9 of the advertisement published in 'The
Tribune' and 'Dainik Tribune' on 23.3.2002 read as under : '""
)'.:::
~ ..
c "6. Candidates convicted for any criminal offence involving
moral turpitude/economic offences (other than Freedom
Struggle), are not eligible to apply. I-

~
xxx xxx xxx
D 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."
E 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
F than freedom struggle)? If so, please give details thereof,
'I ,.
if not please attach affidavit as per appendix 'A'."

5. In the manual issued by the respondent No.1, it was
stated :
G "12.Conviction: (i) Candidates convicted for any
criminal offence involving moral
turpitude and/or economic offence
(other than freedom struggle) would
)_
not be eligible for dealership/
H distributorship and if such a person
VIRENDER CHAUDHARY v. BHARAT PETROLEUM 719
CORPORATION & ORS. [S.B. SINHA, J.]

is allotted the dealership/ A
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
8
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 C
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 0
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 involvement in the criminal case. A field E
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 F
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 G
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 H
720 SUPREME COURT REPORTS [2008] 15 S.C. R.

A 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
8
dealership, lodging of a first information report or framing of
charge were not stated to be the relevant factors for the
purpose of disqualifying a candidate, in all fairness, the 5th
respondent should have mentioned thereabout in his
C 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. ,.
I

11. Mr. Mahabir Singh, learned counsel appearing on
behalf of the 5th respondent, on the other hand, would contend ·~
D 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 ~

E 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 disqualificati6n. Only conviction in a criminal
F 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·
G had been lodged against respondent No.5 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
H
,.
VIRENDER CHAUDHARY v. BHARAT PETROLEUM 721
CORPORATION & ORS. [S.B. SINHA, J.]

issued in his favour on 6.5.2004. It is difficult to comprehend A
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
8
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 C
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 D
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 and latches on the part of
the appellant in approaching the High Court. A writ remedy is E
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 F
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 emphasis is
laid that it should be filed within a reasonable time. A G
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 &
H
722 SUPREME COURT REPORT$ [2008] 15 s.cJt

A 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
8
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 writ petitions should have
been dismissed by the High Court on the ground of
c latches."

In New Delhi Municipal Council v. Pan Singh & Ors.
((2007) 9 sec 278], this Court held :

D "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
E
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
F
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 !aches are relevant factors for exercise of equitable
jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal
G 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
H of India, ordinarily, writ petition should be filed within a
VIRENDER CHAUDHARY v. BHARAT PETROLEUM 723
CORPORATION & ORS. [S.B. SINHA, J.]

reasonable time. (See Lipton India Ltd. v. Union of India A
and M.R. Gupta v. Union of India.)

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 B
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."
,y
Recently in Khoday Distilleries Limited (Now known as c
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 D
or waiver.
T
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 E
questioned immediately-after issuance of the letter of intent ih
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
l( writ petition. He filed such an application only after 16 month~. F
However, the writ petition 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 dout>t
that from May 2004 to October 2006, the respondent did not
take any step to challenge issuance of the letter of intent G
granting dealership in favour of appellant.
~

18. Considering the fact that starting of a business in LPG
.A. dealership requires a huge investment and infrastructure
H
'
---1
I.
724 SUPREME COURT REPORTS [2008] 15 S.C.R.

A . therefor is required to be provided a.nd 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
s accordingly.

19. The appeals are allowed. However, in the facts and
circumstances of the case, there shall be no order as to costs.

S.K.S. Appeals allowed.

)r.