Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1441 (ALL)

Nahar Singh v. Indian Oil Corporation

2019-05-27

PRADEEP KUMAR SINGH BAGHEL, PRAKASH PADIA

body2019
JUDGMENT : PRAKASH PADIA, J. 1. Heard Sri Amrendra Nath Singh, learned counsel for the petitioner, Sri Tarun Verma, learned counsel for the respondent-Indian Oil Corporation and Sri Arvind Srivastava, learned counsel for the respondent no.5. 2. The present writ petition has been filed by the petitioner challenging the order dated 16.2.2011 passed by the respondent no.2/General Manager, Indian Oil Corporation Ltd. and for quashing of the result dated 4.6.2010 issued/published by respondent no.3/Dealership/Distributionship Selection Board, by which the respondent no. 5 has been declared successful for grant of retail outlet dealership. A further prayer was made to issue a letter of intent in favour of the petitioner for grant of retail outlet dealership. 3. The facts as stated in the writ petition are that the Indian Oil Corporation Ltd. issued an advertisement in various newspapers including "Dainik Jagran" in its edition dated 11.9.2009, inviting applications for grant of retail outlet dealership for various locations. One of the location was Village Moojdeeh/Khemaipur on State Highway-5A, District Mirzapur under open category. 4. The terms and conditions for applicants were mentioned in the advertisement. One of the conditions amongst other was that the candidates must have land measuring 35 meters x 35 meters in advertised location. 5. The petitioner has stated in the writ petition that he is exclusive owner and possession of plot nos. 31 & 33, area 10 Bigha in Village Khemaipur, situated at State Highway-5A. It is further stated that the said land is ancestor land and was being used for agricultural purposes. The petitioner in his application form had offered the aforesaid land of plot nos. 31 & 33, area 50 meter x 50 meter. 6. The candidature of the petitioner along with other candidates was considered and eligible candidates were called for interview, which was held on 4.6.2010 and the result was declared on the same day, i.e., on 4.6.2010. The petitioner was placed at Sl. No. 2, whereas, the respondent no. 5, namely Piyush Kumar Srivastava was placed at Sl. No. 1. 7. It is further mentioned in the writ petition that certain infirmities and illegalities were in the application form submitted by the respondent no. 5. The Dealership/Distributionship Selection Board has illegally considered the candidature of respondent no. 5 and has empanelled him at Sl. No.1. 5, namely Piyush Kumar Srivastava was placed at Sl. No. 1. 7. It is further mentioned in the writ petition that certain infirmities and illegalities were in the application form submitted by the respondent no. 5. The Dealership/Distributionship Selection Board has illegally considered the candidature of respondent no. 5 and has empanelled him at Sl. No.1. Being aggrieved with the aforesaid illegal action, the petitioner filed a complaint as contained in Clause 18 of the Brochure on 5.6.2010 but no action was taken by the respondent Authority, thus having no option, the petitioner filed a writ petition being Civil Misc. Writ Petition No. 36110 of 2010 (Nahar Singh v. Union of India and others) before this Court and this Court, vide its order dated 22.6.2010 disposed of the writ petition granting liberty to the petitioner to file a comprehensive representation raising all his grievances before the Authority concerned within two weeks from the date of order, i.e., 22.6.2010 and further direction was given to the Indian Oil Corporation Ltd. to pass appropriate order in the complaint/grievance filed by the petitioner, after giving the opportunity of hearing to the respondent no. 5. 8. It is further stated by the petitioner that in pursuance of the order dated 22.6.2010, the petitioner filed representations dated 14.7.2010 and on 12.10.2010. 9. The main grievance of the petitioner in his representation which has been annexed as Annexure-5 to the writ petition was that he has been discriminated in awarding marks under the head "Capability to Provide Infrastructure & Facility". 34.38 marks have been awarded to the respondent no. 5, whereas the petitioner has been awarded only 33.67 marks under the aforesaid head. The petitioner has also raised his grievance that he has obtained Ph.D. degree from Banaras Hindu University, as such he is entitled for full 15 marks but he had been awarded only 12 marks out of 15 marks under the head "Educational Qualification". 10. So far as the grievance against the respondent no. 5 is concerned, in the representation/grievance petition, (Annexure-5 to the writ petition) the only grievance raised was that there is a irrigation canal between the land offered by the respondent no. 5 and the road, as such, the land offered by the respondent no. 5 is not fit for establishment of retail outlet. 11. 5 is concerned, in the representation/grievance petition, (Annexure-5 to the writ petition) the only grievance raised was that there is a irrigation canal between the land offered by the respondent no. 5 and the road, as such, the land offered by the respondent no. 5 is not fit for establishment of retail outlet. 11. In another representation which has been filed as Annexure-6 to the writ petition dated 12.10.2010 in substance the grievance raised by the petitioner was that the land offered by the respondent no. 5 being Gata Nos. 488, 489 & 490 did not fulfill the requirement of 35 meter x 35 meter and moreover there exists a canal between the road and the land offered by the respondent no. 5. 12. It is further alleged in the writ petition that there are 10 co-owners of plot nos. 488 & 489 and out of 10 co-owners, the respondent no. 5 has purchased the land from 8 co-owners and there is no consent of other co-owner, thus the land did not meet the requirement of 35 meter x 35 meter. It is further alleged in the writ petition that the respondent-Corporation, while deciding the grievance of the petitioner, has not at all considered the objection raised by the petitioner with regard to the non-availability of 35 meter x 35 meter land with the respondent no. 5 over the plots offered by him. 13. It is further submitted by the petitioner that the order dated 16.2.2011 passed by the respondent no. 2 suffers from manifest error of law and did not consider the real controversy raised by the petitioner in his grievance, as such the order dated 16.2.2011 is liable to be quashed and consequential selection panel published on 4.6.2010 is also liable to be quashed and the petitioner is entitled to be declared as first empanelled candidate. 14. On behalf of the respondent nos. 1, 2 & 3, a counter affidavit has been filed by Sri Prabhat Kumar, Manager, Indian Oil Corporation Ltd. As preliminary submission, it is submitted by the respondent nos. 1, 2 & 3 that the Investigation Officer has submitted its report and on the basis of the report submitted by the Investigation Officer of the Corporation and after considering the reports submitted by the revenue authority, a finding had been recorded and the plot offered by the respondent no. 1, 2 & 3 that the Investigation Officer has submitted its report and on the basis of the report submitted by the Investigation Officer of the Corporation and after considering the reports submitted by the revenue authority, a finding had been recorded and the plot offered by the respondent no. 5 fulfills the norms of the Brochure and there is only a drain and not canal passing in front of plot and not through the plot. It is further stated that the drain was passing on plot no. 471 and not through the plot offered by the respondent no. 5. It is further stated that the Investigation Officer has visited the site and no such canal was found there. It is further stated in the counter affidavit that the marks awarded to the petitioner under the head "educational qualification" are correct marks and did not call for any interference. The order dated 16.2.2011 is concluded by finding of fact and did not call for any interference. 15. In reply to the counter affidavit filed by the respondent nos. 1, 2 & 3, the petitioner has filed his rejoinder affidavit, annexing therein various revenue maps, khatauni and memo of revision filed by the respondent no. 5 before the Board of Revenue against the order dated 29.8.2011 passed by the Additional Collector (Land Revenue), Mirzapur in Case No. 148/2009-2010 under section 28 of the Land Revenue Act. In the rejoinder affidavit, the averment has been made that there was a canal in between the land offered by the respondent no. 5 and the road but in the revenue record, the said canal has not been mentioned, as such the petitioner has initiated proceedings for correction of revenue record. The Additional Collector, vide aforesaid order has ordered for correction of revenue record and being aggrieved with the said order, the respondent no. 5 has filed revision before the Board of Revenue. On the basis of the aforesaid document, it is alleged that there exists a canal between the land offered by the respondent no. 5 and the road. 16. A counter affidavit had been filed by the respondent no. 5, stating therein that the petitioner has not raised any dispute with regard to the measurement and entitlement of the respondent no. 5 in his complaint dated 5.6.2010, and as such he is not entitled to raise such grievance straight away before this Court. 5 and the road. 16. A counter affidavit had been filed by the respondent no. 5, stating therein that the petitioner has not raised any dispute with regard to the measurement and entitlement of the respondent no. 5 in his complaint dated 5.6.2010, and as such he is not entitled to raise such grievance straight away before this Court. It is further stated in the counter affidavit that the land offered by the petitioner being plot Nos. 31 & 33 consists various green trees and the land was not plain surface but not even on surface and on account of the aforesaid reason, the petitioner was awarded less marks under the head "Land & Infrastructure". 17. In support of submission, the respondent no. 5 has brought on record the application dated 21.8.2010 moved by the petitioner before the District Forest Officer, praying for permission for cutting the trees and consequential order passed by the District Forest Officer. The respondent no. 5 has also brought on record the newspaper publication which contains the fact that the petitioner is cutting the green trees standing over plot nos. 31 & 33 in gross violation of provisions of Forest Act. 18. So far as the land offered by the respondent no. 5 is concerned, it is stated in the counter affidavit that there did not exist any canal and for making the assertion the petitioner has relied upon the report submitted by the Executive Engineer, Irrigation Division, Chunar, District Mirzapur dated 24.7.2010 and the report dated 18.6.2010 submitted by the Revenue Authorities. The respondent no. 5 has further stated that the land offered by him fulfill the requirement of 35 meter x 35 meter and along-with the application form, he has submitted no objection certificate of two remaining co-owners. 19. A supplementary counter affidavit has been filed by the respondent no. 5, stating therein that the order passed by the Additional Collector, Mirzapur dated 29.8.2010 has been stayed by the Board of Revenue. It is further stated that no objection certificate of all the co-owner was filed along with the application form. 20. The petitioner has filed supplementary rejoinder affidavit, annexing therein that the order passed by the Board of Revenue dated 7.1.2013 has been stayed by this Court in Writ- C No. 343 of 2013. It is further stated that no objection certificate of all the co-owner was filed along with the application form. 20. The petitioner has filed supplementary rejoinder affidavit, annexing therein that the order passed by the Board of Revenue dated 7.1.2013 has been stayed by this Court in Writ- C No. 343 of 2013. It is stated in the supplementary rejoinder affidavit that there is no provision for filing 'No Objection Certificate' from the persons whose land have not been purchased, as such the 'No Objection Certificate' filed by the respondent no. 5 is fake document. It is further stated in the supplementary rejoinder affidavit that the petitioner has obtained application form of the respondent no. 5 under Right to Information Act and there are certain illegality in the offered land. The gist of objection raised by the petitioner is that the land offered by the respondent no. 5 did not meet the requirement of 35 meter x 35 meter and there exists a canal between the land offered by the respondent no. 5 and the road. 21. In the supplementary rejoinder affidavit, the petitioner has brought on record the order dated 22.9.2017 passed by the District Magistrate, Mirzapur, cancelling the 'No Objection Certificate' on 5.6.2015. It is stated that the said order dated 22.9.2017 had been passed after obtaining the report from the Revenue Department. It is further stated that in view of the order dated 22.9.2017 and the finding record therein, it is established that the land offered by the respondent no. 5 did not meet the requirement as advertised by the respondent-Corporation and in view thereof, the candidature of respondent no. 5 be cancelled. 22. We have heard the learned counsel for the parties. 23. So far as the ground raised by the petitioner for awarding less marks to him under the head "Land & Infrastructure" is concerned, no details whatsoever had been mentioned by the petitioner in his representation. For the first time, he has come up with a case before this Court that there did not exist any culvert within 25 meter of offered land, as such he is entitled for higher marks under the said head. This being the factual position without there being any documentary evidence in support of averment, we are not inclined to accept the contention of the petitioner. 24. This being the factual position without there being any documentary evidence in support of averment, we are not inclined to accept the contention of the petitioner. 24. So far as award of 12 marks out of 15 under the head "educational qualification" is concerned, Clause 13.1.1 of the Brochure is relevant, which is as under: Marks Educational Qualification (Max. 15 marks-in case of individual and 0 for non-individual) 1 1 Based on the educational qualification proof provided by the applicant, the following marks will be awarded to, (i) Individual. Based on documentary evidence by furnishing certificate/marks-sheet from Board/University Examination as applicable (a) Post Graduation in Management (b) Diploma in management from Indian Institute of Management (c) Graduation in Engineering (d) Graduation in Law (e) Chartered Accountant 15 2 (a) Post Graduation in any other field not covered in Para (1) above (b) Graduation in any other field not covered in para (1) above (c) Cost Accountant (d) Company Secretary (e) Diploma in Engineering 12 --do-- 3 Matriculation 10 --do-- (ii) Non-individual candidates will not be evaluated for education parameter 0 25. A perusal of the aforesaid parameter provided in the brochure, which has been annexed as Annexure-7 to the writ petition it is clear that maximum 15 marks are provided only to candidates, who are having post graduation in Management, Diploma in Management for Indian Institute of Management, graduate in engineering, graduate in Law or Chartered Accountant. A person having post graduation in any field not covered in para 1, is entitled for 12 marks. Admittedly, the petitioner did not possess any degree as mentioned in para 1 of the educational qualification, as such award of 12 marks to the petitioner under the head "Educational Qualification" is justified. 26. The grievance of the petitioner in his representation dated 14.7.2010 that there exists a canal between the land offered by the respondent no. 5 and the road. In the said representation it was nowhere stated that the land offered by the respondent no. 5 did not meet the requisite measurement, i.e., 35 meter x 35 meter. The said grievance was made by the respondent no. 5 in his representation dated 12.10.2010. 27. A perusal of impugned order dated 16.2.2011 make it clear that the hearing, after filing the representation by the petitioner was conducted by the respondent Corporation on 13.9.2010. 5 did not meet the requisite measurement, i.e., 35 meter x 35 meter. The said grievance was made by the respondent no. 5 in his representation dated 12.10.2010. 27. A perusal of impugned order dated 16.2.2011 make it clear that the hearing, after filing the representation by the petitioner was conducted by the respondent Corporation on 13.9.2010. The relevant para 4 of the said order is reproduced below: "4. In compliance of the order of the Hon'ble High Court, Sri Nahar Singh and Sri Piyush Kumar Srivastava were personally heard by him on 13.9.2010". 28. There is no averment in the writ petition that the recital made in para 4 of the impugned order is incorrect. Annexure-6 to the writ petition is representation dated 12.10.2010, i.e., much after the date of personal hearing by the respondent Corporation. There is no averment in the aforesaid representation dated 12.10.2010 that after the personal hearing, this fact, as stated in the alleged representation dated 12.10.2010 came to the knowledge of the petitioner, as such there was no occasion with the respondent Corporation to consider and pass any order on the allegation/averment made in the representation dated 12.10.2010. 29. From the various documents annexed along with the supplementary rejoinder affidavit it is clear that the proceedings for correction of map have been carried on by the petitioner only after declaration of result of the selection, i.e., 4.6.2010. The documents obtained after the date of selection are not relevant for awarding marks for selection. 30. In the order dated 22.9.2017 passed by the District Magistrate, Mirzapur, findings have been recorded that on the last date of submission of application form, the respondent no. 5 was not having land measuring 35 meter x 35 meter. It appears that the aforesaid order and all the enquiry referred in the aforesaid order dated 22.9.2017 are an ex-parte enquiry. From the perusal of the order dated 22.9.2017 it is established that before passing the aforesaid order, no opportunity was given to the respondent no. 5. 31. Though these orders are subsequent to the selection of respondent no. 5, but the fact remains that in the order dated 22.9.2017 the finding has been recorded that the respondent no. 5 was not having requisite land on the last date of submission of application form. 32. 5. 31. Though these orders are subsequent to the selection of respondent no. 5, but the fact remains that in the order dated 22.9.2017 the finding has been recorded that the respondent no. 5 was not having requisite land on the last date of submission of application form. 32. In the present case, after filing of the writ petition certain subsequent developments were taken place and the matter should be decided taking into the consideration the subsequent developments. 33. One of the argument was made by the petitioner that the subsequent development should not be looked into by the Court, which were taken place after filing of the writ petition. The law in this connection is otherwise. 34. In the case of Senior Divisional Retail Sales Manager, Indian Oil Corporation Ltd. Through Poa Holder and others v. Ashok Shankar Lal Gwalani reported in 2012 (13) SCC 260 , the aforesaid aspect of the matter has been dealt with in great details in paragraph 17 of the aforesaid judgement, which is quoted hereinbelow:- "In the present case, the High Court has not noticed and discussed the aforesaid facts and without discussing the further developments as taken place after 24.12.2008, directed the appellants to issue the letter of intent in favour of the respondent. Though the High Court noticed the stand taken by the appellants that the "relationship affidavit" submitted by the respondent was not as per format, it failed to discuss the effect of such an incomplete affidavit in the matter of selection." 35. Similar view was again taken by the Supreme Court in the case of Sanjay Kumar Jha v. Prakash Chandra Chaudhary reported in 2018 SCC Online SC 2686 in paragraphs 19, 20 and 21, which are quoted hereinbelow:- "19. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error. 20. In the instant case, at the cost of repetition, it is reiterated that even assuming that the land of the petitioner was situated within Giriyama, there was no reason to presume that the marks awarded to the petitioner would in the aggregate be the highest when the land of the appellant Sanjay Kumar Jha was located nearer the Giriyama chowk and his area of land was bigger. 21. It is not for the High Court, exercising jurisdiction under Article 226 of the Constitution of India to embark upon a comparative assessment of the suitability of different candidates for appointment of a dealer of a retail outlet. The High Court, in our view, should not have decided the factual 10 question of whether the land of respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding." 36. It is settled law that while exercising discretionary power of judicial review under Article 226 of the Constitution of India High Court should rare interfere with administrative matters. The interferes should be made only if it was found that there is violation of fundamental rights or basic principles of justice and fair play or the decision taken by the authority suffers from any patent or flagrant error. The interferes should be made only if it was found that there is violation of fundamental rights or basic principles of justice and fair play or the decision taken by the authority suffers from any patent or flagrant error. If the error as communicated above breaches fundamental or basic principles of justice or fair play or if the error is apparent in that situation the Court should interfere in the findings recorded by the authorities. It was also held by the Supreme Court that the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. 37. In the case of Kedar Nath Agrawal v. Dhanraji Devi reported in 2004 (8) SCC 76 the Supreme Court delineated the circumstances in which the subsequent events could be taken into consideration in the peculiar facts and circumstances of a particular case. The relevant paragraph in this regard namely paragraph 16 is quoted hereinbelow:- "16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances: (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties. 38. In view of the aforesaid, the respondent no. 2 is directed to obtain fresh report from the Revenue Authorities with regard to the fact that the respondent no. 5 was having requisite land on the last date of submission of application form. 38. In view of the aforesaid, the respondent no. 2 is directed to obtain fresh report from the Revenue Authorities with regard to the fact that the respondent no. 5 was having requisite land on the last date of submission of application form. So far as the allegation of existence of canal is concerned, the respondent no. 2 is directed to conduct a spot inspection in presence of petitioner, respondent no. 5, Revenue Authorities and the officials of respondent-corporation to verify the fact that there did exist or there did not exist any canal in between the offered land by the respondent no. 5 and the road. The aforesaid exercise be completed within a period of 4 months from the date of receipt of certified copy of this order. It is made clear that the respondent corporation will take a decision only after providing opportunity of hearing to the petitioner as well as respondent no. 5. 39. The impugned order, in so far as it relates to the existence of canal is concerned, is set aside and only for the grounds mentioned above, the matter is remitted back. Another part of the impugned order with regard to the award of marks to the petitioner is affirmed. 40. The writ petition is partly allowed.