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Gauhati High Court · body

2009 DIGILAW 220 (GAU)

Manjurul Haque Choudhury v. Union of India

2009-03-27

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. The respondent No. 2 vide news paper advertisement published in the Assam Tribune dated 16.7.2005 invited walk-in-interview application for allotment of Retail Outlets Dealership Under Fleet Operator Category for 15 locations within the States of Assam, Nagaland and Arunachal Pradesh. A place named 'Gumrah' in the district of Cachar, Assam was one of the said 15 locations. The date of interview in respect of 'Gumrah' out let was fixed on 4.8.2005 at 9.00 am. The respondent No. 4, who was one of the candidates appeared in the said interview and the dealership of the 'Gumrah' out let was allotted in his favour. 2. The petitioners, who did not apply, in response to the advertisement, have challenged the said allotment of retail outlet dealership in favour of respondent No. 4 by filing this writ petition under Article 226 of the Constitution of India on the ground that in the advertisement itself there was no mention that even a person possessing some trucks would come under the category of fleet operators and would be entitled to apply for the allotment of the dealership. According to the petitioners, as per the guidelines/Brochure for selection of Petrol retail outlet under the 'fleet operator category', an intending applicant should have minimum 50 trucks under his possession and as the petitioners did not possess 50 trucks, they did not apply in response to the advertisement aforesaid, but the respondent No. 4, who also did not possess the required number of trucks was allotted the dealership in violation of the established norms. 3. Respondent Nos. 2, 3 and 4 have contested the petitioners' claim by filing their affidavit-in-opposition. The respondent No. 4 in his affidavit-in-opposition has stated that he applied in response to the advertisement dated 16.7.2005 and he could produce the record regarding ownership of trucks owned by him and that there was no requirement of any specific number of vehicles for getting selected for allotment of retail outlet dealership under 'fleet operator category'. His plea was that he was rightly selected for allotment of the said dealership and as such this writ petition was liable to be dismissed. 4. The respondent Nos. 2 and 3, the Bharat Petroleum Corporation Ltd. and the Territory Manager (Retail) of Bharat Petroleum Corporation Ltd. respectively contested the petitioners' claim by stating, in their affidavit-in-opposition, that the selection was made as per the guidelines. 4. The respondent Nos. 2 and 3, the Bharat Petroleum Corporation Ltd. and the Territory Manager (Retail) of Bharat Petroleum Corporation Ltd. respectively contested the petitioners' claim by stating, in their affidavit-in-opposition, that the selection was made as per the guidelines. It was further contended that as per the advertisement, there was no restriction to apply for the dealership by a person even if he owned fleet of vehicles either owned by himself or attached to him and that the petitioner, at his own volition, had chosen not to participate in the said selection process and as such he had no right to challenge the advertisement or the selection process. It is further stated, in the affidavit, that respondent No. 4 was the owner of three numbers of heavy commercial vehicles and in addition to that he had also five numbers of commercial vehicles attached to his farm and by the said affidavit, the petitioners contention, that only a person having 50 numbers of vehicles was entitled for apply in the dealership has also been denied. 5. In the circumstances, the petitioners, who did not apply in response to the advertisement have come with this writ petition challenging the allotment of retail outlet dealership under 'fleet operator category' seeking order for setting aside/or canceling the selection of respondent No. 4 in pursuant to advertisement of the said retail dealership outlet for the location at 'Gumrah' in the district of Cachar. 6. I have heard Mr. A.M. Mazumdar, learned senior advocate, assisted by Mr. F.K.R. Ahmed, Learned Counsel appearing for the writ petitioner and Mr. B. Das, learned Senior Advocate, assisted by I.H. Laskar, Learned Counsel appearing for respondent No. 4. Also heard Mr. C. Baruah, learned Central Government Counsel for the Union of India. 7. It is an admitted position that the petitioners did not apply for the dealership in response to the advertisement dated 16.7.2005. Taking me through the advertisement and the Brochure for selection of petrol/diesel retail outlet dealers issued on 1st November, 2004 by the Numaligarh Refinery Ltd. (NRL), the Learned Senior Counsel for the petitioners has submitted that as per Clause 2(c) of the Brochure aforesaid the term 'fleet operator' indicates that such operator must have minimum 50 (fifty) trucks and that as each of the petitioners were not the owners of fifty numbers of truck they did not apply for the said dealership. The Learned Senior Counsel further submitted that the respondent No. 4, who also did not possess fifty trucks, did not come under the category of 'fleet operators' as such his selection as dealership in response to the aforesaid advertisement was illegal and as such said selection was liable to be set aside. 8. In reply to the said contention, Mr. B.C. Das, Learned Senior Counsel appearing for the respondent No. 4 submitted that the selection was done within the terms of advertisement and that in the advertisement there was no mention that persons having 50 (fifty) numbers of vehicle under his control would be eligible for candidature. It is submitted that the advertisement being issued for walk-in-interview was an offer made open to all. Drawing my attention to Clause 6 and Clause 13(2) of the advertisement, it is contented that the applicant committing a minimum volume of 30 kilo letre per month was eligible and the applicant was required to bring to the interview copies of R.C. Books of all vehicles owned by him. Clause (6) and 13(2) which reads as follows: (6) Applicants committing minimum volume of 30 kl. per month will only be eligible. 13(2) The proof of vehicles owned: The applicant should bring to the interview copies of R.C. Books of all vehicles owned by him duly attested by a Gazetted Officer. 9. The Learned Senior Counsel for the respondent No. 4 has drawn the notice of this Court to Annexure-A to the affidavit-in-opposition filed by respondent No. 4. Annexure-A is a guideline for selection of dealer and distributor, which was issued on 9.3.2005. As per Clause (2) of the said guidelines the term 'fleet operators' have been redefined indicating persons owning/having under their attachment a group of vehicles with a minimum commitment of 30 kl. per month. In the advertisement also it was clearly mentioned that the applicant committing minimum volume of 30 kl. per month would be eligible. Therefore, all persons/farms having capability of committing 30 kl. per month were eligible to apply for the allotment of dealership. As there was no mention regarding any specific numbers of vehicles in the advertisement, there was no reason to believe that only the owners of 50 (fifty) numbers of vehicles were eligible to apply for the said dealership. Therefore, the petitioners had no reason to abstain from participating in the said Walk-in-Interview. As there was no mention regarding any specific numbers of vehicles in the advertisement, there was no reason to believe that only the owners of 50 (fifty) numbers of vehicles were eligible to apply for the said dealership. Therefore, the petitioners had no reason to abstain from participating in the said Walk-in-Interview. The petitioners, who did not participate in the said interview, they lost their right to challenge the selection itself. The advertisement was made on 16th July, 2005 and the selection was made on 4.8.2005. If according to the petitioners the advertisement was not as per the guidelines or criteria prescribed for allotment of dealership, they should have challenged the advertisement immediately thereafter, but instead of challenging the advertisement at the initial stage, the petitioners allowed to complete the selection and they challenged the selection of the respondent No. 4 by filing the writ petition under Article 226of the Constitution of India on 23rd August, 2006 i.e., after about more than one year from the date of advertisement and selection. 10. The Learned Senior Counsel appearing for the respondent No. 4, relying on the decision of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and Ors. (1976) 1 SCC 671 and Adi Pherozshah Gandhi v. H.M Seervai, Advocate General of Maharashtra, Bombay 1970 (2) SCC 484 , submitted that the petitioners, who did not apply in response to the advertisement dated 16.7.2005, and thus abstained from participating in the selection process have no locus-standi to invoke the extra ordinary jurisdiction under Article 226 of the Constitution of India. In his application (Annexure- B), respondent No. 4 mentioned that he possessed three numbers of vehicles and in addition to that he had another five vehicles attached to him, thus he had eight vehicles under his control. The hon'ble Apex Court has held that the locus-standi of the person aggrieved must be found from his position in the first proceeding and his grievance must arise from that standing taken with the effect of the order on him. The respondent No. 4, who applied for the dealership and participated in the Walk-in-Interview was selected. 11. In view of the above, the petitioners having failed to challenge the advertisement itself at the proper time lost their locus standi to challenge the selection of respondent No. 4. The respondent No. 4, who applied for the dealership and participated in the Walk-in-Interview was selected. 11. In view of the above, the petitioners having failed to challenge the advertisement itself at the proper time lost their locus standi to challenge the selection of respondent No. 4. In the said case, the Honourable Apex Court observed that as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to have a locus standi in the matter. 12. By selecting the respondent No. 4 in terms of the said advertisement, no legal right of the petitioners appears to have been infringed. According to the petitioners, the term 'fleet operator' includes a person or farm possessing 50 (fifty) numbers of trucks, if that was so, the petitioners should have challenged the advertisement itself because in the advertisement, there was no mention regarding ownership of fifty vehicles. Therefore, the petitioners lost their locus standi to challenge the selection of respondent No. 4. 13. In the facts and circumstances as stated, there is no sufficient ground to hold that any prejudice was caused to the petitioners and that there legal rights were violated warranting exercise of extra ordinary jurisdiction invoking the powers conferred by Article 226 of the Constitution of India. 14. In view of the above, I find no merit in this writ petition. Accordingly, the writ petition stands dismissed. 15. No costs. Petition dismissed.