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2008 DIGILAW 275 (MP)

INDIAN OIL CORPORATION LTD v. GURMEET SINGH

2008-02-20

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K.Kulshrestha, J. ( 1. ) Aggrieved by the order passed by the learned Single Judge in W.P. No.3483/2005 dt. 27.2.2006, the Indian Oil Corporation has filed this appeal under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. ( 2. ) The matter relates to the grant of Retail Outlet to eligible candidate. In this behalf an advertisement Annexure P/3 was issued on 26.2.2004 inviting applications from the eligible candidates from open category for a Retail Outlet/Dealership of Petrol at Kala Papal. The respondent Gurmeet Singh also competed in the process and was selected for the Dealership. However, on 27.5.2005, when the site was inspected it was found that there was a High Tension (11 kilovolt) line passing through the site. This fact was reported to the committee but despite having been apprised of the said defect in the site rendering the respondent disqualified, the Company selected the respondent No.1. However, upon further inspection on 13.8.2005, by Annexure R/4, upon a complaint having been made in this behalf, the Corporation was informed that in view of the findings of investigation, the complaint was substantiated as there was an over head High Tension Line passing through the land of the respondent. It was in these premises that the appellants issued Annexure P/1 dt. 8.9.2005 informing that the merit panel of the subject location had been cancelled. ( 3. ) The respondent assailed the said order as illegal and improper before the learned Single Judge. Learned Single Judge, on finding that the respondent had proposed to shift the said High Tension Line and make the site suitable, directed that the respondent shall get the High Tension Line removed through the MP.Electricity Board within three months and in case the line stands removed within the said period, the order of cancellation of merit panel of the subject location Annexure P/1 shall stand quashed and the dealer-ship shall be allotted to the petitioner as per Annexure R/1. It was further stated that in case the respondent fails in removing the High Tension Line within the time prescribed, the petition shall stand dismissed. It is this -direction which is assailed in the present appeal. ( 4. ) Learned Senior Counsel for the appellant has invited attention to Annexure R/3, the Policy Circular No.43, containing the conditions for allotment of the Retail Outlet. It is this -direction which is assailed in the present appeal. ( 4. ) Learned Senior Counsel for the appellant has invited attention to Annexure R/3, the Policy Circular No.43, containing the conditions for allotment of the Retail Outlet. Para 2.6 of the said conditions contains disqualification in case, inter- alia, over head line passes over the plot. In this context, learned Counsel has referred to the application Annexure P/4 dated 29.3.2004 in which in Column No. 18, the appellant has not stated that the High Tension Line was passing over the site and on that basis the learned Counsel has referred to the decision of the Supreme Court in Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others (2000) 5 Supreme Court Cases 287 to the effect that award of contract to a tenderer who at the time of submission of tender did not specify the said condition, should be set-aside. Reference has also been made to the decision in Shiv Kant Yadav Vs. Indian Oil Corporation and others (2007) 4 Supreme Court Cases 410 to the effect that where factual misstatement or declaration is made, the allotment can be cancelled. It is in these premises that the learned Senior Counsel contends that the direction of the learned Single Judge to allot Retail Outlet/Dealership to the respondent suffers from patent illegality inasmuch as the learned Single Judge has himself decided the eligibility of the respondent subject to the conditions contained in the direction passed by the Writ Court. ( 5. ) Learned Counsel Shri Saraf has submitted that insofar as the disqualification referred to by the appellant is concerned, the said document is a strictly confidential document and, therefore, not available to the general public. Even in the advertisement, no such condition was laid down nor any other document was referred to with regard to the disqualification on account of unsuitability of the site having High Tension Line over it. In this behalf the learned Counsel for the respondent has referred to the brochure of Indian Oil Corporation Limited for selection of Petrol/Diesel Retail Outlet Dealers and pointed out that the only disqualification prescribed therein is as contained in para 4.4. In this behalf the learned Counsel for the respondent has referred to the brochure of Indian Oil Corporation Limited for selection of Petrol/Diesel Retail Outlet Dealers and pointed out that the only disqualification prescribed therein is as contained in para 4.4. According to the said provision, persons convicted for any criminal offence involving moral turpitude / economic offences; mentally unsound and totally paraylised persons and signatory to agreement of a Dealership of any Oil Company terminated on the ground of adulteration/malpractice shall be disqualified from applying for the said Dealership. Learned Counsel, in the premises of the above conditions laying down disqualification, submits that since with regard to the suitability of the site it has not been stated in the brochure that over head High Tension Line of electricity would render him disqualified, there was no occasion for him to disclose the said fact. He further submits that since he had always shown his readiness and willingness to remove the Line to over come the said hurdle, the appellants ought not have to have cancelled the selection as has been done by them vide Annexure P/1. He has further submitted that pursuant to the direction contained in the order passed by the learned Single Judge, the High Tension Line has been shifted to a distance of 162 ft, and, therefore, there is no impediment now in allotting the Dealership to the respondent in accordance with the direction of the learned Single Judge. ( 6. ) We have heard the learned Counsel for the parties and perused the record. ( 7. ) It is true that insofar as reliance is being placed on the Policy Circular No. 43, the said document being a classified document and strictly confidential, knowledge of the contents therein cannot be imputed to the respondent. The respondent has placed reliance on the brochure of the site Which does not contain any condition with regard to the un-suitability of the site and consequently the person, if there is an over head line passing through the site. Under these circumstances, it cannot be said that the respondent had suppressed any material fact and that he would not have been selected had the said fact been disclosed. Under these circumstances, it cannot be said that the respondent had suppressed any material fact and that he would not have been selected had the said fact been disclosed. Insofar as the High Tension Line of 11 Kilovolts is concerned, the respondent No. 1 has already stated that he has removed the said hurdle and got the line shifted to a distance of 162 ft. It is, therefore, clear that the respondent has exonerated himself of the disqualification, even if it is assumed that the passage of line over the site constituted one. However, merely on account of the removal of the line to a distant place, the learned Single Judge ought not to have directed grant of Dealership as a natural consequence flowing therefrom. The present position about the policy of the Company has not been placed before the Court and, therefore, we are unable to subscribe to the view of the learned Single Judge that on removal of High Tension Line from the site in question, the respondent automatically becomes entitled to Dealership. Under the changed circumstances including the fact that the respondent has got the High Tension Line shifted to a distance of 162 ft., the Company should be granted the liberty to re-asssess the situation and to consider whether the respondent should be granted Dealership and was suitable to be appointed a Dealer as on the date the matter is considered. ( 8. ) Thus, this appeal is partly allowed. In supersession of the directions made by the learned Single Judge, it is directed that the Company shall forthwith and in any case within a month, in the changed circumstances, consider the suitability of the respondent for allotment of the Dealership in question and to take further steps as per their decision. We trust that the Company shall assess the suitability of the respondent fairly and on the objective criteria laid down for appointment of Dealers, without any prejudice or predilection. ( 9. ) With the above modification in the direction, this appeal is disposed of with no order as to costs. Appeal disposed of.