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2021 DIGILAW 534 (BOM)

Mohan Shivaji Tonde v. Government Of India

2021-03-08

ABHAY AHUJA, SUNIL P.DESHMUKH

body2021
JUDGMENT Abhay Ahuja, J. - Rule. Rule made returnable forthwith. By consent of learned counsel for the parties, heard finally. 2. By this petition fled under Article 226 of Constitution of India, the petitioner is challenging communication dated 21- 01-2020, whereby the petitioner has been found ineligible for the RO dealership for the reason that, "Stamp paper of Appendix III A not purchased in the name of the deponent and caste certificate is NT". 3. It is the case of the petitioner that pursuant to the advertisement dated 25-11-2018 published by respondent no.2 Corporation inviting applications for retail outlet (petrol pump) dealership at various places in the State of Maharashtra including one such location being Sonimoha on Telgaon Dharur Road, in the Aurangabad Division, reserved for OBC category, the petitioner submitted online application on 22-12-2018 for the said location in OBC category. Pursuant to a draw held on 25-06-2019, petitioner was selected for RO dealership and by communication dated 26- 06-2019 the petitioner was requested to remit Rs.40,000/- online towards initial security deposit and was also requested to submit various documents including those in respect of the petitioner's specific eligibility criteria of belonging to OBC category. 4. Petitioner deposited an amount of Rs.40,000/- on 2nd July, 2019. He has submitted declaration dated 22-12-2018 in Appendix III-B of his brother Shri Bharat Shivaji Tonde with respect to land offered for the proposed petrol pump. He also submitted copy of caste certificate dated 09-06-2003 indicating the petitioner belonging to Nomadic Tribe (D) Vanjari category as well as declaration required as per Appendix VII-B also dated 22-12-2018 stating that he belongs to OBC community which is recognized as a backward class by the Government of India for the purpose of reservation in services as per the orders of the DoPT Memorandum dated 08-09-1993 modified on 14-10-2008 and also that he does not belong to the Creamy Layer. 5. On 21-01-2020, respondent no.2 communicated to the petitioner that the petitioner's candidature was not found to be eligible for RO dealership as the stamp paper of Appendix-III A was not purchased in the name of the deponent and caste certificate was of NT. 6. Thereafter, the petitioner approached the Grievance Redressal Committee of respondent no.2 seeking to quash the rejection communicated by respondent no.2. After which he has obtained OBC caste certificate dated 02-02- 2020, pursuant to an application made on 31-01-2020. 7. Mr. 6. Thereafter, the petitioner approached the Grievance Redressal Committee of respondent no.2 seeking to quash the rejection communicated by respondent no.2. After which he has obtained OBC caste certificate dated 02-02- 2020, pursuant to an application made on 31-01-2020. 7. Mr. Jadhavar, learned counsel for the Petitioner submits that the communication dated 21-01-2020 deserves to be quashed and set aside and respondent no.2 be directed to issue letter of intent in favour of the petitioner. As far as the ground of rejection with respect to Appendix III A is concerned, he submits that the stamp paper is in the name of the applicant petitioner and the declaration is by his brother who has been certified as being member of Family as per Appendix III -B dated 22-12-2018 given by Advocate. He would submit that the said land has been legitimately offered for the location of the retail outlet by applicant's brother and who has no objection if the said land is leased to the petitioner for the purpose of retail outlet, which is as per the category for which the petitioner has submitted the application under the advertisement. 8. With respect to the other reason for ineligibility that the Caste Certificate being NT, he would submit that the application was invited by respondent no.2 for retail outlet dealership at Sonimoha under the OBC category and as such the petitioner had applied for the same. He would submit that as was required by respondent no.2 by letter dated 26- 06-2019, petitioner had submitted declaration of being OBC in Appendix VII B and the said letter had not requested for the OBC Certificate. Referring to the terms of the brochure, learned counsel would submit that neither the online application nor the communication dated 26-06-2019 requested for submission of the OBC Certificate and that after the online application, the petitioner was, vide communication dated 26-06-2019 declared as selected candidate pursuant to draw of lots and the communication dated 21-01-2021 finding him ineligible on the basis of documents is nothing but frustrating a right created in favour of the petitioner. In any event, the learned counsel vehemently submits, that Nomadic Tribe (D) Vanjari falls under OBC category at serial no.146 in the central list of OBCs in Maharashtra and that he had submitted copy of the caste Certificate issued by the Sub-Divisional Officer, Beed on 09-06-2003 certifying that the petitioner belonging to NT(D) Vanjari Tribe. 9. It is further submitted that neither in the advertisement nor in the brochure, it is specified that the caste Certificate should be of a specific date in order to claim benefit of reservation / or the location reserved for a particular category. He submits that in the absence of such specific requirement, the impugned order is illegal, arbitrary and unjust. 10. Learned counsel for the petitioner further submits that reservation is provided to the backward class people so as to uplift them and to bring them in main stream. Reservation is provided to the backward class people and not to the Certificate. In order to claim benefits of reservation, person must be belong to that particular reserved category. Caste Certificate issued by the competent authority is necessary just to ascertain his / her social status i.e. caste and date of such Certificate is absolutely irrelevant. Certificate issued by the competent authority is just declaration of caste / social status of a person and it does not confer caste or social status of said person. He submits that the approach of respondent no.2 is arbitrary, unreasonable and unjust and therefore the communication dated 21-01-2020 deserves to be quashed and set aside. 11. On the other hand, Mr. Bhandari, learned counsel for respondent no.2 would submit that the terms of brochure are very clear. He draws our attention to the specific eligibility criteria contained in Clause 4 (vi)(b) of the brochure pertaining to the Other Backward Classes to submit that eligible candidates belonging to other backward classes should be recognized by the concerned State as OBC in which the location has been advertised. He also draws our attention to a Note on page 12 of the Brochure with regard to submission of documents by selected candidates that all Certificates / documents required for meeting eligibility / specific eligibility criteria should be in possession of the applicant and valid as on the date of application. He also draws our attention to a Note on page 12 of the Brochure with regard to submission of documents by selected candidates that all Certificates / documents required for meeting eligibility / specific eligibility criteria should be in possession of the applicant and valid as on the date of application. For the sake of ready reference the said note is reproduced as under : "Note : with regard to submission of documents by selected candidates : 1. All Certificates / documents required for meeting Eligibility / Specific eligibility criteria should be in possession of the applicant and valid as on date of application ......." 12. Learned counsel for respondent no.2 would, therefore, submit that respondent Corporation is justified in rejecting the candidature of the petitioner. He relies upon a decision of this court in the case of Navnath Shankar Badage Vs. Indian Oil Corporation Limited and another in Writ Petition No. 5812 of 2019 passed on 18th June, 2019 to submit that in an almost identical situation this court has dismissed the petition holding that all Certificates / documents required for meeting eligibility criteria should be in possession of the applicant and valid as on the date of application and that the attempt of the petitioner to show that he is belonging to the OBC category is of no consequence as the same is futile attempt or an afterthought theory of the petitioner. 13. We have heard learned counsel for the parties and with their assistance also perused the papers and proceedings in the matter. 14. The facts being undisputed, the issue at hand is whether the communication dated 21-01-2020 rejecting the eligibility of the petitioner for retail outlet dealership on the grounds that i) stamp paper of Appendix III-A not purchased in name of the deponent and ii) caste Certificate is of NT is tenable or not. 15. 14. The facts being undisputed, the issue at hand is whether the communication dated 21-01-2020 rejecting the eligibility of the petitioner for retail outlet dealership on the grounds that i) stamp paper of Appendix III-A not purchased in name of the deponent and ii) caste Certificate is of NT is tenable or not. 15. Coming to the first issue with respect to the stamp paper being in the name of the petitioner, whereas the declaration being made by his brother Shri Bharat Shivaji Tonde, it is observed from page 36 of the Writ Petition that the said objection appears to be valid in view of Clause-11 of the brochure, Bullet-2 to the Note in paragraph 11 of the brochure with respect to AFFIDAVIT (page 20 of the brochure) (version 1/24-11-2018) which requires that "All Stamp Papers should be purchased in the name of the deponent". 16. 16. Moreover the same is also a requirement as per Section 30 of the Maharashtra Stamp Act, 1958, which is quoted as under : "Section 30 : Duties by whom payable : In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne :- (a) in the case of any instrument described in any of the following articles of Schedule I, namely :- No.2 (Administration Bond), No.6 (Agreement relating to Deposit of Titledeeds, Pawn or Pledge), No.13 (Bond), No.14 (Bottomry Bond), No.28 (Customs Bond), No.33 (Further Charge), No.35 (Indemnity Bond), No.40 (Mortgage Deed), No.52 (Release), No.53 (Security Bond or Mortgage Deed), No.55 (Settlement), No. [59(b)) (Transfer of debentures, being marketable securities whether the debenture is liable to duty or not, except debentures provided for by section 8 of the Indian Stamp Act, 1899), No. 59(b) (Transfer of any interest secured by a bond or mortgage deed or policy of insurance), by the person drawing or making such instrument; (b) in the case of a conveyance (including a conveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee; (c) in the case of a counter part of a lease by the lessor; (d) in the case of an instrument of exchange by the parties in equal shares; (e) in the case of a Certificate of sale by the purchaser of the property to which such Certificate relates ; (f) in the case of an instrument of partition by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue Authority or Civil Court or Arbitrator, in such proportion, as such Authority, Court or (arbitrator directs;) (f-a) in case of instruments of works contract as provided in Article 63 of SCHEDULE I, by the person receiving the contract) (g) in any other case, by the person executing the instrument]". Therefore the rejection on this ground is upheld, unless the 2nd respondent has waived it, which does not appear to be the case. 17. Coming to the issue with respect to the caste Certificate being NT, the arguments taken by the respondent no.2 appear to be tenable. Therefore the rejection on this ground is upheld, unless the 2nd respondent has waived it, which does not appear to be the case. 17. Coming to the issue with respect to the caste Certificate being NT, the arguments taken by the respondent no.2 appear to be tenable. The specific eligibility criteria contained in Clause-4 (vi)(b) of the brochure requires that candidates belonging to OBC should be recognized as such by the concerned State only location has been advertised. Not only that the note on page 12 of the brochure referred to above, clearly requires the petitioner to be in possession of a valid Certificate on the date of application. Admittedly, the petitioner was not in possession of the required OBC Certificate as on the date of the application. The application for the retail outlet was made on 22-12-2018, whereas the OBC Certificate was obtained on 02-02-2020 pursuant to application made on 31-01-2020 clearly indicating that the required Certificate was not even issued to the petitioner let alone it being in possession of the applicant and valid as on the date of the application. We also observe from page 62 of the brochure that the required declaration in Appendix VII-A, which is a standard format required for OBC category Certificate as required under the specific eligibility criteria pursuant to the 2nd respondent's letter dated 26-06-2019 does not appear to have been submitted. But only the caste Certificate dated 09-06-2003 indicating the petitioner belonging to NT(D) Vanjari category appears to have been submitted along with VII-B declaration described earlier. We are therefore, unable to accept the submissions made on behalf of the petitioner. 18. Coming to the argument of the learned counsel for the petitioner that the petitioner was declared selected candidate pursuant to communication dated 26-06-2019 and that the defendant's communication dated 21-01-2021 is a frustration of right created in his favour. We note from the communication dated 26-06-2019 which intimated that the petitioner had been declared selected based on a draw of lots, that the same is clearly a preliminary intimation and is subject to the compliance of terms and conditions. For the sake of convenience, the said paragraph in the communication dated 26-06-2019 is quoted as under : "This is only a preliminary intimation towards your selection for Retail Outlet dealership. For the sake of convenience, the said paragraph in the communication dated 26-06-2019 is quoted as under : "This is only a preliminary intimation towards your selection for Retail Outlet dealership. However, the award of the dealership is subject to compliance of terms and conditions of the Corporation in this regard". 19. Thus, the communication specifically informs the petitioner that his selection is only a preliminary intimation subject to the terms and conditions. We are therefore unable to accept the submission of the counsel that a right has been created in favour of the petitioner. 20. Also to keep harping that the petitioner had a Certificate of Nomadic Tribe, which under the central list of OBCs in Maharashtra is at serial no.146 and therefore, he already had the social status of OBC and it would not be material as to when the said Certificate is obtained, is also fallacious. This is because despite the terms of the brochure requiring the petitioner to be in possession of a valid OBC Certificate in form VII-A from the concerned State in which the location has been advertised as on the date of application, the petitioner has obtained the same only on 02- 02-2020, pursuant to an application dated 31-01-2020, which is after date of rejection viz.21-01-2020. The petitioner has after he obtained the Nomadic Tribe Certificate in 2003, had obtained the OBC Certificate only on 02-02-2020 to make out a case against the rejection of his claim. Nothing had prevented the petitioner to approach the authority to obtain the OBC Certificate earlier. Being therefore in respectful agreement with the views expressed by this court in the case of Navnath Shankar Badage (supra), we are unable to accept the contention of the learned counsel for the petitioner that once the social status has been declared, then it is immaterial as to when the Certificate is issued. This is more so because we are dealing with the case of a tender where several candidates would apply and only the ones who comply with the specific terms of the said tender would be eligible to be issued the letter of intent. If the petitioner is allowed on the basis of the arguments of the learned counsel to proceed further in the process, it would place similarly rejected candidates who are unable to approach this court on an unequal footing, which cannot be permitted. 21. If the petitioner is allowed on the basis of the arguments of the learned counsel to proceed further in the process, it would place similarly rejected candidates who are unable to approach this court on an unequal footing, which cannot be permitted. 21. Further when the terms of a tender / advertisement are so specific as have been described above, there is no room for giving a go by to the same especially in matters of public tenders as this one. The words used in the advertisement or the brochure could not be ignored and they must be given meaning and their necessary significance. 22. In this context paragraphs 15 and 16 of a recent decision of the Supreme Court in the case of Vidarbha Irrigation Development Corporation Vs. Anoj Kumar Agarwal, (2019) 2 Scale 134 are apt and can be quoted as under : "15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfuous- they must be given meaning and their necessary significance. Given the fact that in the present case, as essential tender condition which had to be strictly complied with was not so complied with, the Appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court. 16. A subsidiary contention has been raised that even the bank guarantee subsequently furnished was for a period of 39 months and not for 40 months. This need not be gone into in view of our finding on the first point". 23. It may not be out of place to mention here that the advertisement by the public corporation is for award of dealership of a petrol pump and as such is a contractual matter. We are therefore, reminded of the principles laid down by the Supreme Court to the extent judicial review can be invoked in such matters. Paragraph 19 of the decision of the Supreme Court in the case of Bakshi Security and Personnel Services Private Limited Vs. Devkishan Computed Private Limited and others, (2016) 8 SCC 446 summarises these principles and the same is quoted as under : "19. Paragraph 19 of the decision of the Supreme Court in the case of Bakshi Security and Personnel Services Private Limited Vs. Devkishan Computed Private Limited and others, (2016) 8 SCC 446 summarises these principles and the same is quoted as under : "19. It is also well to remember the admonition given by this Court in Michigan Rubber (India) Limited v. State of Karnataka and Others, in cases like the present, as under:- (SCC p.228, para 21) 21. "In Jagdish Mandal vs. State of Orissa, the following conclusion is relevant : (SCC p. 531, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached'; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." 24. Relying on the aforesaid principles and answering the questions posed therein in the negative, we do not think that this is a case for interference under Article 226, this being a commercial and contractual matter, we refrain from exercising our writ jurisdiction in the matter. 25. In the circumstances, on all counts, the petition must fail. We therefore, dismiss the petition. Rule stands discharged. No costs.