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2017 DIGILAW 986 (GAU)

Rasida Khanam Barbhuiya v. Union of India

2017-07-26

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER (ORAL) : Heard Ms. B. Devi, learned counsel for the petitioner, Mr. P.J. Saikia, learned Counsel appearing for the respondent Bharat Petroleum Corporation Limited (BPCL) and also Mr. P.P Dutta, learned counsel appearing for the respondent No.4. 2. An advertisement was issued by the respondent No.2 being the BPCL dated 31.10.2010 inviting applications for appointment of dealers for retail outlet in the State of Assam. One such location mentioned in the advertisement was for a retail outlet at Lala Bazar in Hailakandi district. Accordingly, the petitioner submitted her application. Column-12 of the application requires the information to be provided as regards the details of the land. The petitioner had offered three plots of land and the owners of the respective plot were shown as Sifot Ali Barbhuiya, Imran Ali Barlaskar and Swhwakat Ali Barlaskar and one Hussain Ahmed Choudhury. In respect of all the three land owners, the petitioner indicates that the concerned lease deeds were enclosed. In course of its consideration, the respondent authorities ultimately considered the 3rd plot of land offered by the petitioner i.e. the land covered by Dag No.348, 350, 351, 352, 353 of Jalalpur Road. After such consideration, the respondent authorities found two persons to be qualified for being called for the interview i.e. the petitioner and the respondent No.4. Upon such interview being held, the respondent authorities prepared a comparative statement of the marks given to the two candidates. 3. From the comparative statement, it is seen that the petitioner Rasida Khanam Barbhuiya was allotted 20.5 marks in respect of land and infrastructure whereas the respondent No.4 was allotted 28 marks. In respect of the other criteria, different marks had been allotted, but the difference in the marks between the two candidates is so small that the same would not have an impact of its own and the entire selection is ostensively being made on the basis of the respective marks given for the category land and other infrastructures. 4. It is noticed that even if the marks given for other criteria are changed or to that extent it is considered to be equal, still if the marks given for the category land and infrastructures remains as it is, there would be no material effect in the end result. 4. It is noticed that even if the marks given for other criteria are changed or to that extent it is considered to be equal, still if the marks given for the category land and infrastructures remains as it is, there would be no material effect in the end result. Consequent thereof, this Court makes its endeavour to examine as to whether the marks given for land and infrastructures to the two respective candidates are justified in the facts and circumstances or not. 5. Ms. B Devi, learned counsel for the petitioner strenuously argued that the land of the petitioner is not operationally less suitable in any manner than the land offered by the respondent No.4 and in fact the land of the petitioner, according to the learned counsel, is better suitable for the purpose of retail outlet. 6. Mr. P.J. Saikia, learned counsel for the respondent BPCL on the other hand agrees to the said submission of the learned counsel for the petitioner and states that on an inter-se comparison of the suitability of the respective plots of land, the petitioner was given 82 marks out of 100, whereas the respondent No.4 was given 80 marks out of 100 and therefore, it is a recognition on the part of the respondent corporation that the land of the petitioner otherwise, would have been more suitable. But the learned counsel for the respondent BPCL submits that the procedure for allotting the final marks renders is such that the petitioner gets 20.5 marks whereas the respondent No.4 gets 28 marks. The basis of the calculation of the corporation is that the land offered by the petitioner is a firm land whereas the land offered by the respondent No.4 is an own land. In case of own land, the assessment is made on the basis of maximum 35 marks and whereas in case of firm land, the assessment is made on the basis of maximum 25 marks. 7. It is stated that admittedly the land offered by the respondent No.4 is an own land to the extent that the respondent No.4 had provided a registered sale deed of the concerned land and therefore, as per the application of the respondent No.4, it is the prima-facie indication that the respondent No.4 is the owner of the land. 7. It is stated that admittedly the land offered by the respondent No.4 is an own land to the extent that the respondent No.4 had provided a registered sale deed of the concerned land and therefore, as per the application of the respondent No.4, it is the prima-facie indication that the respondent No.4 is the owner of the land. On the other hand, the writ petitioner had offered a land which is stated to have been obtained by her on a lease. Although otherwise a lease land is also to be construed to be own land as per Clause-14 of the procedure for selection of petrol/diesel retail outlet dealers dated 15.09.2008, which is in short referred as the selection brochure, but upon scrutiny it was found that the lease deed submitted by the writ petitioner was not a registered lease deed and on the other hand, it was a notarized lease deed. 8. Accordingly, it is the submission of Mr. P.J. Saikia, learned counsel for the respondent BPCL that the land offered by the petitioner would be a firm land and not an own land. 9. In this respect, Ms. B. Devi, learned counsel for the petitioner refers to a decision of the Hon’ble Supreme Court rendered in Moumita Poddar –vs- Indian Oil Corporation Limited and another, reported in (2010) 9 SCC 291 , wherein in paragraph 37, it had been held that non registration of a lease deed as required u/s 107 of the Transfer of Property Act, 1882 may affect the legal rights of the parties inter-se. But in a matter, where a non-registered sale deed is submitted towards offer of land for allotment of a retail dealership outlet, the concerned person does not seek to enforce any such legal right and accordingly the Hon’ble Supreme Court was of the view that such land, the lease deed which is not registered, would also be acceptable for the purpose of the settling authority for its consideration. 10. By relying upon the views of the Hon’ble Supreme Court, as found in para-37 of the said judgment, Ms. B. Devi, learned counsel for the petitioner makes a submission that in such view of the matter, the offer of the land by the petitioner through a notarized lease deed was also a land to be considered as own land. 11. By relying upon the views of the Hon’ble Supreme Court, as found in para-37 of the said judgment, Ms. B. Devi, learned counsel for the petitioner makes a submission that in such view of the matter, the offer of the land by the petitioner through a notarized lease deed was also a land to be considered as own land. 11. In order to adjudicate upon the same, the provision of Clause-14 of the Selection Broacher is referred as hereunder:- “Evaluation of the side offered by the applicants: Availability of suitable site for setting up of retail outlets at the advertised location is the essence of the project. Accordingly, applicants who ‘owns’ or have registered long lease for a minimum period of 15 years for suitable land at the location will be given weightage over applicants who have only a firm offer from third parties for obtaining suitable land either on ownership or on lease basis. The technical/commercial suitability of the land will be decided by BPCL based on the parameters and this will be done only for the land offered/details submitted along with the application form. If an applicant, after selection is unable to provide the land indicated in the application within a period of two months from the date of Letter of Intent (LOI), BPCL will have the right to cancel the allotment of dealership made to the applicant.” 12. As noticed, Clause-14(i) of the selection broacher clearly states that an applicant who owns or have registered long lease for a minimum of 15 years for suitable land at the location will be given weightage over applicants who have only firm offer from third parties for obtaining suitable land either on ownership or on lease basis. In such view of the matter, it is noticed that the selection brochure makes a clear distinction between a land offered on lease through a registered long lease and land offered on the basis of a firm offer from third parties. In any view of the matter, both categories of land i.e. the land offered on the basis of a registered sale deed as well as a land on a firm offer from a third party are acceptable to the respondent authorities. In any view of the matter, both categories of land i.e. the land offered on the basis of a registered sale deed as well as a land on a firm offer from a third party are acceptable to the respondent authorities. In such view of the matter, the view of the Hon’ble Supreme Court in paragraph-37 of the aforesaid judgment, is clearly satisfied by the respondent authorities in this case, inasmuch as, the land offered by the petitioner through a notarized sale deed has also been taken into consideration. 13. But, at the same time, although the notarized sale deed has been taken into consideration, what remains to be decided by the respondent authorities is as to whether the said land offered through a notarized sale deed, would be a firm offer or it would be an offer of own land as distinguished in Clause-14(i) of the selection brochure. Clause-14(i) having clearly provided that own land means a land either owned by the concerned person or having a registered long lease for a minimum of 15 years through a lease deed, therefore, a lease deed offered through a notarized sale deed would not come within the purview of such classification. On the other hand, a notarized sale deed would indicate that the concerned person is having a firm offer from the purported leaser that in the event the land is required for the purpose of the retail outlet, such land would be made available. In such view of the matter, this Court is of the considered view that a land offered through a notarized sale deed would be classified to be a firm offer rather than that of an own land. 14. Having held as such, the question for determination now would be as to what procedure of marking is required to be followed by the respondent authorities. It is also noticed that Clause-14 clearly provides that applicants, who have own land will be given weightage over applicants, who have only firm offer. Pursuant thereto, the respondent authorities had arrived at a procedure whereby the maximum marks to be allotted to an applicant having firm offer would be 25 marks for the purpose of land and other infrastructure, whereas for an applicant having own land a maximum mark allotted would be 35 marks, which in fact is clearly provided in Clause 14 (ii) of the selection broacher itself. 15. 15. In view of the above, the 82% marks awarded to the petitioner in respect of land and infrastructure would have to be calculated on the basis of it being a maximum of 25 marks. Accordingly 82% of 25 marks comes to roughly about 20.5 marks. On the other hand, the respondent No.4 having offered an own land and the percentage of marks had been allotted to the respondent No.4 being 80%, the said 80% would have to be calculated on the basis of maximum marks being 35. Accordingly, 80% of 35 marks roughly comes to about 28%. 16. In view of the above, this Court is of the view that the 28 marks given to the respondent No.4 in respect of land and infrastructure and the 20.5 marks given to the petitioner in respect of the said criteria is not found to be incorrect in any manner and as such the same does not call for any interference of this Court. 17. As already noticed that even if the marks given for the other criteria are interfered to some extent, still such interference will not lead to a situation where the petitioner would be able to overcome the difference of 7.5 marks as had been allotted for the criteria of land and infrastructure. 18. In such view of the matter, this Court does not find any reason to interfere with the appointment of the respondent No.4 as the retail outlet dealer at Lala Bazar pursuant to the advertisement of 31.10.2010. It is stated that the advertisement provides that the appointment of retail outlet dealer for Lala Bazar would be on the basis of open category for woman. In the instant case, it is noticed that both the petitioner as well as the respondent No.4 belongs to the open category and both are women and therefore, both are otherwise qualified to be appointed subject to their result of the selection procedure. 19. As already held that the selection procedure is not vitiated in any manner, therefore, from the aforesaid point of view also, this Court does not find any reason to interfere with the appointment of the respondent No.4. In view of the above, this writ petition is devoid of any merit and accordingly the same stands dismissed. No cost.