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2013 DIGILAW 612 (JK)

Dilar Singh v. Hindustan Petroleum Corpn.

2013-10-09

DHIRAJ SINGH THAKUR

body2013
JUDGMENT 1. This order shall govern the disposal of the aforementioned two writ petitions. 2. The facts in brief in both the petitions, be noticed as under- OWP No. 1481-J/10: Pursuant to an advertisement notice for appointment of retail outlet dealers published in the Daily Excelsior dt. 9th July, 2009, for the site No. 47 at Tral within 2 kms from the Bus stand on Tral Awantipora road, both the petitioner in the aforementioned writ petition (here-in-after called the first petitioner) as also respondents 7 and 8 applied. The respondents No. 7 and 8 were placed at SI. No. 1 of the merit list with 81.10 marks and the first petitioner with 43 marks was placed at SI. No. 2. 3. For purposes of awarding the marks, para 8 of the advertisement notice prescribed as under- "Evaluation of candidates. For individual candidates including partnerships: Each candidate will be assessed under the following parameters: a/Capability to provide land and infrastructure/facilities.35 marks b/Capability to provide finance25 marks c/Educational qualification15 marks d/Capability to generate business10 marks e/Age4 marks f/Experience4 marks g/Business ability/acumen5 marks h/Personality2 marks Total:100 marks Minimum qualifying marks: Open category: 60% of the total applicable marks. Reserved category Including Open(W): 50% of the total applicable marks. 4. It is pertinent to mention here that zero marks were allotted by the Site Selection Committee out of 100 marks reduced to the base of 35 marks to the first petitioner on the ground that a high tension wire of 11000 KV was passing over head the site offered by the petitioner. 5. A complaint appears to have been filed in terms of the Clause 19 of the guidelines governing allotment of retail outlet, framed by the HPCL. Clause 19 of the aforementioned Guidelines provided as under- "19. Grievancel Complaint redressal system: (a) An aggrieved person may send his/her complaint to the oil company at the address of the customer service cell displayed at the nearest retail outlet of the concerned oil company. Complaints can also be lodged on the website of the oil company. No complaints against dealer selection will be entertained after 30 days from the date of publication of the result of the interview under any circumstances. Pending disposal of complaints, issuance of LOI shall be kept in abeyance. Disposal of complaints shall be as per established complaint redressal system as specified herein below: (i)............. (ii)............. No complaints against dealer selection will be entertained after 30 days from the date of publication of the result of the interview under any circumstances. Pending disposal of complaints, issuance of LOI shall be kept in abeyance. Disposal of complaints shall be as per established complaint redressal system as specified herein below: (i)............. (ii)............. (b) When a decision is taken to investigate the complaint, the investigation will be done by one Senior Officer of HPCL and will pass a speaking order after giving due opportunity to the complainant etc...................." (ii) Established complaint: Action will be taken as under: (a) In case the selection process for a location was found to be not in accordance with the laid down guidelines resulting in wrong selection of first empanelled candidate, the merit panel will be cancelled and all the eligible candidates will be re-interviewed based on documents available on records. (b) In case the dealer selection was done as per laid down guidelines and complaint against first empanelled candidate is established, action will be taken to cancel the selection of the first empanelled candidate and issuance of LOI to the next candidate in merit panel. Similar action will be taken in case of established complaint against second empanelled candidate also. (c) If complaint is established against all the empanelled candidates, the location will be re-advertised if it is viable." 6. The complaint filed by the first petitioner was two fold-firstly that the site offered by the first petitioner ought not to have been rejected by the Technical Evaluation Committee on the ground that there was a high tension wire passing over-head the offered site and secondly that the plot of land offered by the first empanelled candidate was not suitable for setting up a retail outlet on account of the Prevention of Ribbon Development Act, 2007 (1950 A.D.), hereinafter called the Act of 2007, which prohibited construction within 40 ft from the centre of the road resulting in reducing the plot size than the required 30 mts x 30 mts. 7. With a view to deal with the complaint filed by the first petitioner, it appears that the Senior Regional Manager (SRM), Jalandhar, one Sh. A.K. Gupta, who was appointed as the Investigation Officer, investigated the sites offered by the com­plainant-first petitioner and the first empanelled candidate i.e. private respondents No. 7 and 8. 8. 7. With a view to deal with the complaint filed by the first petitioner, it appears that the Senior Regional Manager (SRM), Jalandhar, one Sh. A.K. Gupta, who was appointed as the Investigation Officer, investigated the sites offered by the com­plainant-first petitioner and the first empanelled candidate i.e. private respondents No. 7 and 8. 8. So far as the site offered by the first petitioner is concerned, the report filed by the SRM, Jalandhar, deduced as under- i/ That on the date of inspection, no overhead HT line was observed. In the technical evaluation committee report dated 6.10.2009, it has been mentioned that HT line is passing through the plot. The matter was checked up with sales officer Shri Arif, who provided photographs, which confirms that the HT line was passing through the plot offered by the first petitioner. It, thus, appears that on the date of inspection, the first petitioner had got removed the overhead HT line passing over his offered site. ii/ That even if the HT line was passing over the plot, the site would be technically okay, if 40 ft. is left from center of the road, as the HT line would have come in no construction zone. 9. So far as the site offered by the private respondents No. 7 and 8 is concerned, it was reported as under- i/ The first empanelled candidate has offered site area of 2 kanals size 30 mtr frontage and 36 mtr depth. As per the Executive Engineer, sub Division Tral's letter dt. 3.10.2009, it was found that no construction of any type is allowed to be executed within 40 feets (12.2 meter) from center line of the road on both side of Awantipora Tral road, which is 3.65 mtrs wide. ii/ 10.38 meters has to be left vacant from the offered plot and in case this 10.38 meters is to be reduced, the available depth of the plot will become 25 meters against advertised requirement of 30 meters, iii/ That as in the advertisement notice, this aspect of leaving 40 feet from the centre of the road was not mentioned, the selected candidate be advised to arrange for suitable site within two months from the date of LOI. 10. 10. Based upon the aforementioned report/recommendations of the SRM, Jalandhar, a Committee comprising of the Chief Manager N/P (NZ), and General Manager (NZ), recommended the cancellation of the selection process and ordered fresh advertisement with clear direction size of plot, keeping in view that no construction can be done from 40 feet from the centre of the road. In this regard, a communication dt. 26.4.2010, was addressed by the Chief Manager Network Planning from the office of General Manager-North Zone, to the first petitioner that the selection process for the subject location had been decided to be cancelled and that the complaint was being closed. 11. Against the aforementioned communication issued to the first petitioner, a letter dt. 13.5.2010 was addressed by him to the General Manager, HPCL, Delhi, seeking re-consideration of the decision to cancel the selection process for the said location on the ground that his complaint having been found established against the first empanelled candidate, a decision should have been taken as per Clause 19(b)(ii)(b), which envisaged that on cancellation of selection of first empanelled candidate, issuance of LOI has to be done to the next candidate in the merit panel. 12. Yet another representation/complaint dt. 3.6.2010, was filed by the first petitioner with the General Manager, HPCL, New Delhi, for issuance of LOI in his favour highlighting the aforementioned fact. 13. Pursuant to the subsequent complaint/representation referred to above, it appears that yet another report was prepared by a Committee consisting of one Sh. Mandeep Tandon, Senior Manager-RE and Sandeep Roy, Chief Manager, NPDP, which Committee, after site inspection on 24.12.2010, submitted its report dt. 12.1.2011. A part of the said report is reproduced hereunder- " As per Prevention of Ribbon Development Act 2007 for Jammu & Kashmir the areas included within the limits of municipalities and town areas are excluded from its purview. As per registered sale deed the above land belonging to the empanelled candidates Sh. Abdul Rashid Dar and Sh. Khalid Bilal of 2 Kanal area under Khasra no. 376, Khewat no. 22 & Khata no. 211 falls within municipal area limits. Hence the 40 ft distance criteria should not be applicable to this site. As such, the act does not prohibit setting up the outlet but only does not allow permanent construction within 40 ft from center of the road. 376, Khewat no. 22 & Khata no. 211 falls within municipal area limits. Hence the 40 ft distance criteria should not be applicable to this site. As such, the act does not prohibit setting up the outlet but only does not allow permanent construction within 40 ft from center of the road. As the site of the empanelled candidate start from 3.0 mts (10 ft) from the centre of the road, only 30 ft (9.1 mts) is left where no building can be constructed as per above act. As per explosive rules we cannot construct the first Island at the outlet before 9.0 mts (3.0 mts "D" and 6.0 mts safety distance). Hence in any case no construction will be done within approx. 40 ft as required by above act and only approach road will be constructed for retail outlet operation. Hence it can be concluded basis the documents available on record that the site of the empanelled candidate meets the advertised criteria." 14. It is the aforementioned decision dt. 26th of April, 2010, taken in pursuance to the recommendations dt.19.4.2010, by the Chief Manager, N/P (NZ) and approved on 21.4.2010, by the General Manager (NZ), and recommendations dt. 12th of Jan'2011, noticed above, which are impugned in the writ petition filed by first petitioner Dilar Singh, in regard to which he seeks a writ of certiorari. Further mandamus is sought commanding the official respondents to consider the claim of the first petitioner for allotment of retail outlet dealer of HPCL for the said location under Item No. 47. OWP No. 895/10: This is a petition filed by S/Sh Abdul Rashid Dar and Khalid Bilal, (herein-after called the second petitioners) who are the private respondents No. 7 and 8 in writ petition, OWP No. 1481-J/10 . In this petition, the second petitioners seek issuance of a writ of mandamus directing the official respondents to issue the letter of intent in their favour as according to them, they stood at SI. No. 1 of the panel prepared by the HPCL having obtained 81.1 points as against 43 points secured by the first petitioner. 15. In this petition, the second petitioners seek issuance of a writ of mandamus directing the official respondents to issue the letter of intent in their favour as according to them, they stood at SI. No. 1 of the panel prepared by the HPCL having obtained 81.1 points as against 43 points secured by the first petitioner. 15. The assertions of the second petitioners is that the complaint filed by the first petitioner who is private respondent No. 5, in the present petition has failed as can be seen from the recommendations made in favour of the second petitioners by the Investigating Team of HPCL, who was deputed to test the veracity of the claims made in the complaint. 16. It was urged that the second petitioners satisfied the requirement of the advertisement notice and that the provisions of the Act of 2007 did not apply to the road in question where the plot was offered as it fell within the Municipal area/town area limits and was, thus, exempt from the operation of the said Act in terms of Section 1(2). 17. Heard learned counsel for the parties. 18. The first issue that arises for consideration is whether the provisions of the Act of 2007, are applicable to the locations in question on Awantipora Tral road. Reference to Section 1(2) in this regard is necessary, which reads as under- "1(2) It shall extend to the whole of Jammu and Kashmir State excepting the areas (other than roads maintained by the (Central Government or the Public Works Department of the State)) included within the limits of municipalities and town areas." 19. From a perusal of the Section (supra), it becomes clear that not every road falling in a municipality or a town area is kept outside the purview of the Act, in fact, the roads which are maintained by the Central Government or the Public Works Department of the State are included within the purview of the Act. 20. From the record, it can be seen that the Assistant Executive Engineer (R&B) sub Division, Tral, in his certificate dt. 3.10.2009, has observed that no construction is permitted within 40 ft., from the centre on the Tral-Awantipora road. Even the official stand before the court has been that the provisions of the Act of 2007, apply to the road in question. 3.10.2009, has observed that no construction is permitted within 40 ft., from the centre on the Tral-Awantipora road. Even the official stand before the court has been that the provisions of the Act of 2007, apply to the road in question. In the absence of any material to show that the said road not only falls within the Municipal limits/town area limits and that the said road is not maintained by the Public Works Department, it will be safe to assume that the provisions of the Act of 2007 apply. The onus lay heavily on the second petitioners (respondents 7 and 8) on the principles of Section 102 of the Evidence Act, which reads as under: "102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." 21. The respondents 7 and 8 have failed to discharge that onus. The argument of the counsel for the respondents 7 and 8 that the Act of 2007 does not apply, on that ground, deserves to be rejected. 22. A perusal of the technical evaluation report shows that the site offered by the first petitioner was rejected on the ground that HT line was passing over the said site for which he was allotted zero marks. The HT line seems to have been got shifted by the first petitioner. The Investigating Officer has, however, observed that the even if the HT line is there, the same would be within no construction zone and on this ground, the site could not have been rejected. 23. However, it is pertinent to mention that even if 35 marks would have been allotted to the complainant on this count by the Site Inspection Committee, he would not have come in the merit panel as the total tally of marks would become 78 as against the 81.1 secured by the first empanelled candidate-second petitioners. 24. Although, no reasons are given in the letter dt. 19.4.2010, which is an approval letter for cancelling the selection process for item No. 47 and issuing fresh advertisement, the only basis for such cancellation appears to be the recommendation of SRM, Jalandhar, according to which, the site offered by the second petitioners was not found suitable and liable to be rejected on technical grounds. 19.4.2010, which is an approval letter for cancelling the selection process for item No. 47 and issuing fresh advertisement, the only basis for such cancellation appears to be the recommendation of SRM, Jalandhar, according to which, the site offered by the second petitioners was not found suitable and liable to be rejected on technical grounds. The report of SRM, Jalandhar, also reflects that HT Line was passing over the plot offered by the first petitioner-complainant who was figuring at SI. No. 2 of the panel. In terms of Clause 13 of the Guidelines prescribed for selection of retail outlet dealers, there was a specific prohibition that if a high tension overhead line passes over the plot, the same would be disqualified. 25. Admittedly, both the reports of the Investigation suggest that there was a HT line passing over the plot offered by the first petitioner complainant-Dilar Singh, on the date of first inspection by the concerned team, which later on seems to have been shifted. The plot, thus, offered by the first petitioner would not qualify for selection. However, assuming that it did qualify on account of shifting of HT line, even then, as indicated above, the first petitioner (complainant) would get only 78 points in aggregate as against 81.1 obtained by the first empanelled candidate-second petitioners. Even on this count, the claim of the first petitioner cannot be accepted. 26. The second issue that comes for consideration is whether the plot offered by the respondents 7 and 8 was not suitable in terms of the requirements of the advertisement notice in view of the operation of The Prevention of Ribbon Development Act, 2007 (1950 A.D). What was required by the advertisement notice was a plot of 30x30 meters. The advertisement notice did not prescribe anywhere that the entire 30x30 meters was required for purposes of construction. All that the provisions of the aforementioned Act aim at is to prohibit construction up to 40 ft. from the centre of the road on either side. This by itself does not imply that the second petitioners did not satisfy the requirement of making available to the official respondents, the plot as was required as per advertisement notice. 27. The second petitioners had offered a plot of 30x30 meters, which is available on the site as can be seen from the second recommendation dt. 12.1.2011. This by itself does not imply that the second petitioners did not satisfy the requirement of making available to the official respondents, the plot as was required as per advertisement notice. 27. The second petitioners had offered a plot of 30x30 meters, which is available on the site as can be seen from the second recommendation dt. 12.1.2011. No construction is envisaged, in any case, within 40 ft. distance from the centre of the road as per the requirement of the aforementioned Act of 2007. As per the subsequent recommendation aforementioned dt. 12.1.2011, the plot of the first empanelled candidate-second petitioners starts from 3.0 mts (10 ft) away from the centre of the road leaving only 30 ft. (9.1 mts) where no construction is permissible as per the above Act. The recommendations further suggest that as per rules, construction of first Island, in any case, is not permissible before 9.0 mts and therefore, as per the said recommendations, no construction will be done within approx. 40 ft. as required by the provisions of the aforementioned Act. 28. Be that as it may, it cannot be said that the site offered by the second petitioners was not suitable only because of operation of the aforementioned Act and in the absence of any material on record that construction was also envisaged on the portion which fell in the prohibited zone, the earlier decision dt. 19.4.2010, taken by the Chief Manager N/P (NZ)and approved by the General Manager (NZ), ordering cancellation of the selection process and issuance of fresh advertisement, supposedly on the recommendations of SRM, Jalandhar, cannot be said to be based on any rational hypothesis in as much as, even when the said order was a non speaking order. It appears that the same was based on the presumption that the plot offered by the second petitioners did not comply with the requirement of the advertisement notice on account of operation of the provisions of the Act of 2007 aforementioned. The said decision is not supported by any reason or logic and is a non speaking order. 29. For the reasons aforestated, these petitions along with connected IAs, are disposed of with the following directions- 1/ That the decision dt. The said decision is not supported by any reason or logic and is a non speaking order. 29. For the reasons aforestated, these petitions along with connected IAs, are disposed of with the following directions- 1/ That the decision dt. 26.4.2010 taken in view of the first recommendations regarding cancellation of the selection process and issuance of a fresh advertisement notice in respect of the location 47, is quashed; 2/ The official respondents shall be at liberty to take a decision and pass a speaking order based upon the entire matter including the subsequent recommendations dt. 12.1.2011, within a period one month from the date, a copy of this order is served upon the said respondents.