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2004 DIGILAW 164 (MP)

BIRENDRA SINGH PARIHAR v. INDIAN OIL CORPORATION

2004-02-13

KUMAR RAJARATNAM, SHANTANU KEMKAR

body2004
Judgment ( 1. ) AGGRIEVED by order dated 17-9-2002 passed by learned Single Judge in w. P. No. 2753 of 2002 (Birendra Singh Parihar Vs. Indian Oil Corporation and 4 others), the appellant/petitioner has preferred this Letters Patent appeal under Clause 10 of the Letters Patent. ( 2. ) FACTS very briefly are the Indian Oil Corporation (for short the corporation) issued an advertisement, dated 14-1-1994 inviting applications for allotment of distributorship of L P G for Satna City. The appellant as well as the respondent No. 4 both applied. The appellant ranked at Serial No. 1 and the respondent found his place at Serial No. 2 of the select list. The appellant was selected by the Selection Board for grant of distributorship being the most qualified candidate. The Corporation issued Letter of Intent in favour of the appellant on 1-11-1995. ( 3. ) THE respondent No. 4 filed W. P. No. 75 of 1996. The respondent no. 4 contended in the said petition on the basis of Document No. 1 that the appellant was not in India on 3-3-1994 when the application for grant of distributorship was presented. Two other writ petitions- W. P. No. 404 of 1996 (Chhetriya Vipanan Sahakari Samiti Maryadit, Satna Vs. Indian Oil Corporation Limited and others) and W. P. No. 3749 of 1996 (Smt. Chinta Jaiswal Vs. Indian Oil Corporation Limited and others) were also filed. All the three petitions were taken up for decision by common order by the learned Single judge and by order dated 8-3-2001, all the three petitions were disposed of. The Single Judge directed CBI enquiry into the allegation whether the appellant was in India on 28-2-1994 or on 1-3-1994 when the affidavit was sworn in at Satna which was filed in support of the application to obtain the dealership and also with regard to the fact that whether the annual income of the appellant is above Rs. 50,000. 00. The learned Single Judge also directed the dealers Selection Board to reconsider the entire issue after receipt of the report of CBI. ( 4. ) A Public Interest Litigation W. P. No. 1190 of 2001 (Raj Kumar gupta and others Vs. Union of India and others) was filed before this Court challenging the selection made by the Dealers Selection Board, Jabalpur -1 making serious allegations of favouritism, nepotism and misuse of authority against the Chairman of the Board. ( 4. ) A Public Interest Litigation W. P. No. 1190 of 2001 (Raj Kumar gupta and others Vs. Union of India and others) was filed before this Court challenging the selection made by the Dealers Selection Board, Jabalpur -1 making serious allegations of favouritism, nepotism and misuse of authority against the Chairman of the Board. ( 5. ) AFTER receipt of the enquiry report of CBI, the Chairman, Dealers Selection Board advised the Corporation to cancel the selection of the appellant for grant of dealership of L P G to Satna City. Consequently, the selection of the appellant was cancelled by the Chairman by order dated 29-4-2002 but the dealership was ordered to be given to the respondent No. 4. ( 6. ) THE appellant filed Writ Petition No. 2753 of 2002 challenging the order dated 29-4-2002 whereby Letters of Intent issued in favour of the appellant earlier has been cancelled based on decision of the Chairman of the dealers Selection Board, Jabalpur-1. The learned Single Judge vide order dated 17-9-2002 under challenge in the instant L P A has quashed the order of cancellation of LOI of the petitioner and the communication of the Chairman based on which the LOI was cancelled and has directed the Dealers Selection board to reconsider the matter in accordance with the directions issued by the court. On being informed that the Dealers Selection Board is not functioning, the learned Single Judge has observed that if any modification in the directions made in the order dated 8-3-2001 is required, parties may have the recourse to the proper remedy. In the present appeal filed against order of the proper remedy. In the present appeal filed against order of the learned Single Judge, the appellant is seeking quashment of the CBI enquiry report and to hold the loi, dated 1-11-1995 to have been validly issued in his favour. ( 7. ) WHETHER the learned Single Judge was justified in ordering a CBI enquiry in the case of this type is not the subject-matter of this appeal. In matters which are visited with civil consequences, it is infinitely preferable that courts do not call in aid the CBI. It is common ground that the CBI is over-burdened with the work-load and the quality of work may be affected if courts resort to seeking the CBI to conduct investigation and to submit a report. ( 8. In matters which are visited with civil consequences, it is infinitely preferable that courts do not call in aid the CBI. It is common ground that the CBI is over-burdened with the work-load and the quality of work may be affected if courts resort to seeking the CBI to conduct investigation and to submit a report. ( 8. ) IN this particular case, the only question that arose for consideration was whether the appellant was in India on 28-2-1994 and 1-3-1994. We are told, by ordering a CBI enquiry, Interpol was also involved, for what reason we do not know. After all what was to be decided was whether the appellant had sworn the affidavit while he was in India and whether he was present in india on 28-2-1994 and 1-3-1994. ( 9. ) BURDEN of proof undoubtedly was on the contesting respondent since the affidavit was notarized by Notary Public. It is not known what was the clinching proof submitted by the contesting respondents to establish prima facie that the appellant was not in India on the relevant dates and what was the necessity to call in the CBI and Interpol. ( 10. ) AFTER so much of fuss, the CBI submitted a long report without, in any way, determining whether the appellant was in India at the relevant time. On this aspect of the matter, the CBI concluded as follows:- "by report dated 22-10-2001, the enquiry conducted did not conclusively establish that Shri Birendra Kumar Singh was in usa between October, 1993 to March, 1994 as alleged by Smt. Chinta Jaiswal. At the same time, it can not be definitely said that he was present in India as his passport only reflected his movements upto Heathrew Airport, London. He has in fact a multi Entry Visa for U. K. which was valid up to January, 1994. His Visa for America was valid up to the year 1998. The Immigration Authorities in India has stated that, no passenger coming from outside India is allowed to enter India without his passport being stamped for entry in India. He has in fact a multi Entry Visa for U. K. which was valid up to January, 1994. His Visa for America was valid up to the year 1998. The Immigration Authorities in India has stated that, no passenger coming from outside India is allowed to enter India without his passport being stamped for entry in India. Since, in this case, there is no seal in the passport of the Immigration Authorities at Indira gandhi International Airport, New Delhi about the arrival of shri Birendra Kumar Singh from abroad, it can not be conclusively said that he was present in India on the relevant dated, i. e. , 28-2-1994 and 1-3-1994. " The report of the CBI is neither here nor there. The report concluded that there was no material to hold that the appellant was not in India on 28-2-1994 and 1-3-1994. Curiously, the CBI stated that it can not be conclusively said that the appellant was present in India on 28-2-1994 and 1-3-1994. ( 11. ) WE have perused the report of the CBI. There is nothing in the report to indicate that the appellant was not in India at the relevant time. ( 12. ) THE report of the CBI has become final since the interim order passed by learned Single Judge ordering CBI enquiry, was allowed to take effect without filing any appeal. ( 13. ) HOWEVER, the finding in the report does not in any way advance the case of the contesting respondent. There is no conclusive proof that the appellant was not in India at the relevant time. On the contrary, the report appears to indicate that the appellant was not out of India on the relevant dates. ( 14. ) BE that as it may since the CBI report has become final, not being under challenge, it was for the competent authority of the IOC to consider all aspects of the matter and dispose of the application for distributorship in accordance with law. ( 15. ) BY consensus of all the parties, the following order is passed:- "the Competent Authority will peruse the applications of the appellant and the contesting respondent for allotment of L P G distributorship and determine for itself who is more qualified to be appointed as distributor on the basis of the terms and conditions fixed by the IOC. ( 15. ) BY consensus of all the parties, the following order is passed:- "the Competent Authority will peruse the applications of the appellant and the contesting respondent for allotment of L P G distributorship and determine for itself who is more qualified to be appointed as distributor on the basis of the terms and conditions fixed by the IOC. The appellant and the contesting respondent No. 4 shall appear before the Competent Authority, either by themselves or by their Counsel with a copy of this order and all other documents in support of their contentions on 5th Day of April, 2004. The Competent Authority shall dispose of the matter strictly in accordance with law within three months from the date of receipt of the order without being influenced by orders of this Court. ( 16. ) THE order of the learned Single Judge is modified accordingly and the L. P. A stands disposed of. There shall be no order as to costs.