Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 125 (GAU)

Mukul Borah v. Union of India

2016-02-23

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER A.K. Goswami, J. - Heard Mr. D. Choudhury, learned counsel for the petitioners in both the cases along with Mr. P. Das; Mr. G.N. Sahewalla, learned Senior Counsel appearing for the impleaded Respondent No.6 in WP(C) No.3789/2014 as well as Respondent No.6 in the WP(C) No.4982/2015 assisted by Ms. R. Jain; Mr. P.J. Saikia along with Mr. A.K. Gupta, learned counsel appearing for Respondent Nos.2 to 5 in both the cases. None appears for the Union of India. It appears that Union of India is a formal party in both the cases. 2. Numaligarh Refinery Limited (NRL) issued a notice for appointment of Retail Outlet dealers in North East and the same was published on 29.12.2010 in the "Assam Tribune", an English daily from Guwahati, whereby applications were invited from intending persons for appointment of dealer for Retail Outlets in Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh at or in the vicinity of the locations indicated therein, which also included Rangia Town. 3. The petitioner, Respondent No.6 and many others submitted their applications. 4. WP(C) No.3789/2014 was filed on 25.07.2014 with the grievance that though the petitioner was asked to appear in interview by a letter dated 23.01.2014 (Annexure-10 to the writ petition) to be held on 19.02.2014, he was not allowed to appear in interview. The petitioner had submitted a letter to the Officer-in-Charge, O/O State Co-Ordinator of Bharat Petroleum Corporation Limited (BPCL) on 05.03.2014 in connection with the aforesaid denial of the petitioner to appear in interview (Annexure-11), to which, the State Co-Ordinator by a letter dated 19.03.2014 (Annexure-12) stated that the petitioner was disqualified from attending the interview as he could not produce original documents of certain financial documents. The letter dated 19.03.2014 is not under challenge and in the writ petition, prayer is made to allow him to appear in interview. An interim order was passed on 08.08.2014 providing that dealership at Rangia should not be allotted without the leave of the Court. 5. The letter dated 19.03.2014 is not under challenge and in the writ petition, prayer is made to allow him to appear in interview. An interim order was passed on 08.08.2014 providing that dealership at Rangia should not be allotted without the leave of the Court. 5. Having noticed the broad facts on which the writ petitioner had structured WP(C) No.3789/2014, it is the time to state, briefly, that in WP(C) No.4982/2015, which was filed on 18.08.2015, the petitioner had challenged the Letter of Intent (LOI) dated 26.07.2014 issued in favour of the Respondent No.6 on the ground that the land offered by the respondent No. 6 for setting up of the Retail Outlet is outside Rangia town, the advertised location. 6. Pleadings had been exchanged in both the writ petitions. 7. Mr. D. Choudhury, learned counsel appearing in both the writ petitions for the petitioner, in support of the contentions made in the WP(C) No.3789/2014, has submitted that merely because the petitioner had failed to produce, in original, 4 Nos. of Kisan Vikas Patra (KVP), each of Rs.10,000/-, he ought not to have been disqualified and he should have been allowed to face the interview. It is submitted by him that due to a financial crisis, the petitioner had, perforce of circumstances, encashed the same. Though the petitioner had not been able to produce original of 4 such certificates, he had carried along with him a fixed deposit receipt of Rs.80,000/-, which is more than the value of the 4 KVPs taken together, but the same was not considered. It is also submitted by Mr. Choudhury that there was a long delay from the date of advertisement and the date of interview and in such circumstances, failure on the part of the petitioner to produce the 4 KVPs ought not to have merited disqualification. 8. With regard to WP(C) No.4982/2015, Mr. It is also submitted by Mr. Choudhury that there was a long delay from the date of advertisement and the date of interview and in such circumstances, failure on the part of the petitioner to produce the 4 KVPs ought not to have merited disqualification. 8. With regard to WP(C) No.4982/2015, Mr. Choudhury has drawn the attention of the Court to Annexure-18 document, which is a reply furnished to the petitioner on an application made under the Right to Information Act, 2005, by the Circle Officer, Rangia Revenue Circle and, based on the same, he has contended that the land in which the Retail Outlet was proposed to be set up by the Respondent No.6, which is covered by Dag No.80 and Patta No.10 of village Tatarkuchi, is not included in Rangia Town and therefore, selection of Respondent No.6 and the grant of LOI to her, on the face of it, for the location at Rangia Town, is not sustainable in law. 9. Mr. P.J. Saikia, learned counsel appearing for Respondent Nos.2 to 5, by producing the records, has submitted, that the fact that the petitioner, on his own admission, had encashed KVPs, which he undertook to produce at the time of interview, without anything further, entails his disqualification. He has submitted that not only the aforesaid 4 KVPs, the originals of which the petitioner could not produce, quite a few originals of other fixed deposit receipts were also not produced. He has submitted that based on the documents submitted, out of maximum of 56 marks, marks were given and therefore, when part of the decision making process is based on the documents supplied, it is but natural that authority would insist upon production of original documents at the time of interview and therefore, in the Brochure as well as in the application, it is highlighted that the intending candidate is to produce the documents in original at the time of interview. The petitioner having failed to produce documents at the time of interview when the screening was undertaken, was rightly refused further interview and there is a note of the Interview Committee that the petitioner was not eligible. 10. With regard to WP(C) No.4982/2015, Mr. The petitioner having failed to produce documents at the time of interview when the screening was undertaken, was rightly refused further interview and there is a note of the Interview Committee that the petitioner was not eligible. 10. With regard to WP(C) No.4982/2015, Mr. Saikia submits that location of the Retail Outlet has to be understood in the common sense point of view and the Evaluation Committee had found the land of the Respondent No.6 to be within the notified location. He has also submitted that it is not understood as to what is meant by the Circle Officer in his reply dated 08.07.2015, when he says that land of the Respondent No.6 in question is not within Rangia Town. It is submitted by him that the location has to be understood as at or in the vicinity of Rangia Town. Drawing the attention of the Court to the application submitted by the Respondent No.6, Mr. Saikia submits that the Post Office and Police Station in connection with the plot of land shown by Respondent No.6 is Rangia and therefore, there is no infirmity in awarding LOI to the Respondent No.6. 11. Mr. G.N. Sahewalla, learned Senior Counsel appearing for Respondent No.6 has submitted that WP(C) No.4982/2015 was filed, as it turned out, one day before the LOI was issued in favour of the Respondent No.6. The result of the interview was published in the website long back on 19.02.2014 and the petitioner did not challenge such result for an inordinately long period of time. The Respondent No.6 was also not made a party respondent in the WP(C) No.3789/2014 and unaware of any interim order passed by this Court, based on the LOI the Respondent No.6 had proceeded with undertaking works like earth filing, raising constructions incurring a substantial amount of money to the tune of Rs.35 lakhs by taking loans for the purpose of setting up of the Retail Outlet. He has submitted that almost 75% of the earth filling work and 50% of the civil construction were already completed when the Respondent No.6 came to learn about the existence of an interim order on 02.05.2015 when she visited the office of BPCL. It is at that point of time, the Respondent No.6 impleaded herself in the WP(C) No.3789/2014 and filed the application for vacating the interim order. 12. It is at that point of time, the Respondent No.6 impleaded herself in the WP(C) No.3789/2014 and filed the application for vacating the interim order. 12. He has submitted that on the strength of LOI, the selected candidate has to set up the Retail Outlet and only after it is fully ready, a letter is issued by the BPCL commissioning the Retail Outlet and no other order such as allotment order is issued and from that point of view, the interim order passed by this Court on 08.08.2014 was infructuous. He has also pointed out that in WP(C) No.4982/2015, no interim order was passed. 13. The Court permitted Mr. Choudhury and Mr. Das to see the records produced by Mr. Saikia with regard to his submission that various other documents in original were also not produced by the petitioner. 14. Mr. Das has perused the records and has submitted that there are some other financial documents also, originals of which were not produced by the petitioner. 15. I have considered the submissions of the learned counsel for the parties and have perused the materials on record as well as the records produced by Mr. Saikia. 16. Brochure for selection of petrol/diesel Retail Outlet dealers at Clause 13 lays down the manner of evaluation of the applicants. It visualizes that eligible applicants will be evaluated out of a total of 100 marks through a three-tier process comprising of the steps as indicated therein, which are as follows: The offered land will be evaluated as per laid down parameters by the "evaluation committee" which will in turn decide the marks in respect of parameter "capability to provide land and infrastructure/facilities", which carries a maximum mark of 35. "Scrutinizing committee" will scrutinise the documents and allocate marks with regard to document based parameters out of a maximum of 56 marks. "Interview committee" will carry out personal interview and award marks out of the remaining maximum 9 marks based on specified parameters and complete the selection process." 17. Thus, the evaluation of the applicants are to be made by 3 different committees, namely, Evaluation Committee, Scrutinizing Committee and the Interview Committee. For the interview segment, maximum of 9 marks are allotted. It is also noticed that maximum of 56 marks are allotted in respect of document based parameters. Thus, the evaluation of the applicants are to be made by 3 different committees, namely, Evaluation Committee, Scrutinizing Committee and the Interview Committee. For the interview segment, maximum of 9 marks are allotted. It is also noticed that maximum of 56 marks are allotted in respect of document based parameters. In Clause 14 of the Brochure, it is indicated that the candidates are to produce original of the documents submitted by them with the applications, at the time of interview, failing which, the applicants will be rendered ineligible. The candidates are also required to submit a fresh affidavit as per Appendix-A or Appendix-A1 as applicable prior to the interview, signed and notarized not earlier than 3 working days prior to the date of interview, failing which, the candidates will be considered as ineligible for dealership. The notice for appointment of Retail Outlet dealers at Clause 10(h) under the broad heading general terms and conditions provides that copies of all other documents/certificates other than specified in Clause 10(g) are to be attached along with the application and that originals of all such documents/certificates are to be produced at the time of interview. It is also indicated therein that non-production of originals at the time of interview will render the applicants ineligible. The application for Dealership is in a specified format. It visualizes attachment of certificates whenever specified such as land, site map with dimension in case of land details, copies of title document etc. Documents are also required to be attached as proof under Sl. No.13, which is a column for details of source of funds. It is specified therein that the type of fund should cover free and unencumbered Bank accounts/Government securities/fixed deposits, bankers/financial institution certificate for credit worthiness (in the enclosed Appendix A2), shares of listed public limited companies (with valuation report) etc., details of other assets (with valuation report) like immovable property (land, building etc.)/movable assets like vehicle etc., any other sources of income from interest, agricultural income, rent, business etc. The note appended to Clause 15 provides that all affidavits are to be enclosed in original and in respect of all other certificates/documents, photo copy/true copy only need to be attached along with the application. However, originals of all these will have to be produced at the time of interview. The note appended to Clause 15 provides that all affidavits are to be enclosed in original and in respect of all other certificates/documents, photo copy/true copy only need to be attached along with the application. However, originals of all these will have to be produced at the time of interview. Non-production of original documents at the time of interview, it is stated, will render the applicant ineligible for dealership. Giving of an undertaking is specified in Clause 17, which reads as follows:- "I undertake to produce Originals of all the attachments enclosed with this application at the time of interview, if called for and is aware that in the event I fail to produce the Originals, my application for dealership will be disqualified." 18. In WP(C) No.3789/2014, at Annexure-B to the affidavit-in-opposition of the BPCL, there is an endorsement of the Interview Committee against the name of the petitioner as "not eligible". The aforesaid endorsement has to be understood in the context that the petitioner did not produce the originals in respect of many financial documents, which he had enclosed along with his application. That some original KVPs were not produced by the petitioner is an admitted position as disclosed in WP(C) No.3789/2014 itself. There are some other financial documents of which originals were not produced is also more or less an accepted position now in view of the submission of Mr. Das after perusal of the records. I have also perused the records and have found that original of some other fixed deposits, for instance, fixed deposit receipts for Rs.91,000/- and Rs.74,000/-, were also not produced. When the evaluation process comprising of 56 marks is based on the documents submitted by the candidates, it stands to reason that originals of documents are to be produced for the purpose of verification as enjoined by the Brochure and the application, which have already been noted herein above. No illegalities were committed by the respondent-Corporation in holding the petitioner to be not eligible for his admitted failure to produce the original documents and therefore, there is no merit in WP(C) No.3789/2014 and accordingly, the same is dismissed. 19. Coming to WP(C) No.4982/2015, the only point urged against the LOI is that the land is not situated in Rangia Town, which is the location for the Retail Outlet. 19. Coming to WP(C) No.4982/2015, the only point urged against the LOI is that the land is not situated in Rangia Town, which is the location for the Retail Outlet. The writ petitioner himself in WP(C) No.3789/2014 at paragraph 5 had stated that he had applied for the location "at or in the vicinity of Rangia Town". The notice of appointment of Retail Outlet dealers in North East at Sl. No.1 indicated as follows:- "Numaligarh Refinery Limited (NRL) proposes to appoint dealers for Retail Outlets in Assam, Meghalaya, Manipur, Nagaland, Tripura and Arunachal Pradesh at or in the vicinity of the following Locations:" (emphasis supplied) 20. The notice, thus, makes it explicitly clear that the location of the Retail Outlet will be "at or in the vicinity of Rangia Town". There is no averment in the writ petition that the land offered by the petitioner is not within the vicinity of Rangia Town. The application of the Respondent No.6 also goes to show that land of the Respondent No.6 falls within Rangia Police Station and the Post Office is also Rangia Town. 21. In view of above, I find no merit in this writ petition and accordingly, WP(C) No.4982/2015 is also dismissed. 22. No costs. 23. Interim order, needless to say, shall stand vacated.