Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6346 of 2011 ====================================================== 1. Aditya Kumar S/O Sri Jagannath Prasad, R/O Vill& P.O- Bazidpur, P.S- Vidyapatinagar, Distt- Samastipur. .... .... Petitioner/s Versus 1. Indian Oil Corporation Ltd Through Its Chairman-Cum-Managing Director, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai 400051. 2. General Manager, Indian Oil Corporation Ltd., 5th Floor, Lok Nayak Jai Prakash Bhawan, Dak Bunglow Chowk, Patna. 3. Regional Manager, Marketing Division (Eastern Region) Indane Area Office, Indian Oil Corporation Ltd, 1st Floor, Shahi Bhawan, Exhibition Road, Patna. 4. Area Manager, Indane area Office, Begusarai, Indian Oil Corporation Ltd, Marketing Division, P.O-Barauni Oil Refinery, Distt- Begusarai. 5. Sri Chandan Kumar S/O Ragho Lal Das, R/O Vill- Plashi, Pragana- Haweli, P.S- Narpatganj, Distt-Araria. 6. Sri Sanjay Kumar Agarwal, S/O Late Rameshwar Pd. Yadav, R/O R.N. Dutta Road, Forbishganj- 854318 .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3321 of 2011 ====================================================== Sushama Swaraj, aged about 35 years, wife of Dr. Om Prakash Kumar, resident of Ganga Sadan, Gautam Nagar, Ganjala, Dist. Saharsa. .... .... Petitioner/s Versus 1. The Union Of India through its Secretary, Ministry of Petroleum and Natural and Natural Gases, Government of India, New Delhi. 2. The State of Bihar through District Magistrate Araria. 3. The Deputy Collector, Land Acquisition, Farbisganj, Araria. 4. The Sub –Divisional Officer, Farbisganj, Araria. 5. The Circle Officer, Narpatganj, Araria. 6. Indian Oil Corporation Limited through Managing Director, Lok Nayak Bhawan, Dak Bungalow Road, Patna. 7. The Area Manager, Indian Oil Corporation Limited (Marketing Division) Indane Area Office, Sahi Bhawan, Ist Floor Exhibition Road, Patna-800001. 8. Sri Chandan Kumar son of shri Ragho Lal Das, resident of Village & Post-Palasi, P.S. Narpatganj, Dist. Araria. 9. Shri Sanjay Kumar Agarwal, son of late Rameshwar Pd. Yadav, resident of R.N.Dutta Road, Forbesganj-854318. 10. Shri Aditya Kumar, son of Shri Jagannath Prasad, resident of village & Post Bazidpur, P.S. Vidyapatinagar, Dist. Samastipur 11. Shri Vijay Kumar Das, son of Shri Hem Narayan Lal Das, resident of .... .... Respondent/s village & Post Narpatganj, Dist. Arraria. ---Performa Respondent. Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 24-09-2013 Both the writ petitions raise common issue with respect to selection of respondent nos. 5 and 6 of CWJC No. 6346 of 2011 by the respondent Indian Oil Corporation Limited ( for short „IOCL‟) for grant of Indane (LPG) Distributorship at Narpatganj, Araria. The petitioner of CWJC No. 6346 of 2011 was empanelled as the second candidate whereas petitioner of CWJC No. 3321 of 2011 was empanelled as the 3rd candidate. They have questioned the selection of the first empanelled candidate. Both the matters have, therefore, been heard together with the consent of the parties. The order present shall govern them. Relief(s): In CWJC No. 6346 of 2011 the petitioner has prayed for issuance of appropriate writ/order to cancel selection & empanelment of respondent nos. 5 and 6 for appointment of Indane (LPG) Distributorship at Narpatganj, Araria as they got selected on the basis of invalid and inoperative document(s) and suppressing materials facts with respect to the land offered for construction of godown/showroom. The petitioner has also prayed
Legal Reasoning
Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 3 for quashing of Letter of Intent (LOI) issued in favour of the selected candidate. The petitioner has prayed for some consequential relief(s). In CWJC No. 3321 of 2011 the petitioner has prayed for issuance of appropriate writ/order for quashing the LOI issued in favour of the selected candidates for Indane (LPG) Distributorship at Narpatganj in the District of Araria. A further prayer has been made for quashing the empanelment of petitioner of CWJC No. 6346 of 2011 at Serial no. 2 of the merit panel as the land offered by the 2nd empanelled candidate (petitioner of CWJC No. 6346 of 2011) was not accessible by all weather motorable road. After having held so the respondents be directed to appoint the petitioner as Distributor for the said location as she qualifies for the same. For the sake of convenience this Court would notice the relevant facts from CWJC No. 6346 of 2011. Additional facts relevant for disposal of CWJC No. 3321 of 2011 shall be noticed separately. A joint advertisement (Annexure-1) on behalf of the three Public Sector Oil Companies including IOCL was published on 19.1.2009 inviting application(s) for appointment of LPG Distributorship for several locations including Narpatganj in the Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 4 District of Araria ( figuring at Sl. No. 21 of the advertisement). The petitioner and others including the private respondents herein became applicants for the said location which was reserved for candidates belonging to open category. After making preliminary verifications the applicants were invited to appear before the Distributor Selection Board. The petitioner was invited by letter dated 21.7.2009 (Annexure-3) to appear for interview on 6.8.09. In pursuance of the aforesaid letter the petitioner appeared for interview. Interview of the candidates was carried out by the selection committee of the respondent IOCL and on the same day a merit panel was prepared and published by the respondent IOCL, copy whereof, is at Annexure-4. Respondent nos. 5 and 6 (who are respondent nos. 8 and 9 in CWJC No. 3321 of 2011) figured as the first empanelled candidate(s). The petitioner was placed at Sl. No. 2 of the said list whereas petitioner of CWJC No. 3321 of 2011 was placed at Sl no. 3. Aggrieved by such empanelment of the private respondents the petitioner filed a complaint on 7.8.09 against the selection and empanelment of respondent nos. 5 and 6 as first empanelled candidates. The petitioner also filed an application seeking information from the respondent - IOCL with respect to the land document(s) submitted by the first empanelled candidate. The respondent- Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 5 IOCL by communication dated 12.09.2009 (Annexure-6) directed the petitioner to meet the Investigating Officer nominated by the competent authority of the IOCL to enquire into his complaint. The petitioner met the Investigating Officer of IOCL and submitted documents to show that the lease deed submitted by the first empanelled candidates of the land offered by them was not genuine document inasmuch as the executant of the said lease deed was not the owner of the land/plot. The petitioner thereafter submitted a detailed representation on 11.11.2009 along with copy of lease deed dated 4.2.2009 executed by one Tej Narayan Lal Das in favour of the first empanelled candidate and several revenue records/orders showing that the said land stood mutated in favour of one Vijay Kumar Das for the year 2008- 2009 and 2009-2010. It was also brought to the notice of the respondent that Vijay Kumar Das had filed an application on 4.11.2009 with respect to the subject land appertaining to Khata no. 653, Khesra nos. 6491, 6492, and 6512 stating therein that the aforesaid land belonged to him and that he had not executed any lease deed in favour of the selected (first empanelled) candidate(s). The respondent- IOCL did not dispose of the representation/complaint of the petitioner and in the meantime proceeded further in the matter to allot the distributorship of the Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 6 said location in favour of the first empanelled candidate(s). In such circumstance, the petitioner filed a writ petition being CWJC No. 16920 of 2010. This Court by an order dated 6.10.2010 (Annexure 12) disposed of the said writ petition directing the respondent -IOCL to consider and dispose of the complaint of the petitioner , if not already so done, in accordance with the Grievance Redressal scheme and communicate the same to the petitioner. The respondents were also directed not to issue LOI without first disposing of the complaint. The petitioner submitted his representation on 18.10.2010 (Annexure 13) along with copy of the aforesaid order dated 6.10.2010 before the respondent and requested for disposal of his complaint. As per the pleadings, the respondent- IOCL did not dispose of the complaint of the petitioner and in the meantime issued LOI in favour of the first empanelled candidate on 2.12.2010. The respondent- IOCL in the meanwhile also proceeded for commissioning the distributorship pursuant to LOI issued in favour of the first empanelled candidate. In the aforesaid background he filed the present writ petition seeking the relief(s) as noticed hereinabove. In CWJC No. 3321 of 2011 challenge is made to selection of the first empanelled candidate as well as selection of writ petitioner of CWJC no. 6346 of 2011 as 2nd empanelled Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 7 candidate. The petitioner has raised an objection with respect to selection of first empanelled candidate on the ground that the land acquired by the petitioner by lease deed and offered at the location
Legal Reasoning
in question did not belong to the lessor namely Sri Tej Narayan Lal Das. It belonged to his agnate namely Mr. Vijay Kumar Das (respondent no.11). It has also been stated that the first empanelled candidate ( respondent no.8) had claimed to have passed the Bachelor of Engineering course which was not born out from the materials placed on record. The respondent no.8 on the basis of certificate (s) produced by him, at best, could have been considered as having completed the course of B.E. but has not passed the examination. Challenging the selection of petitioner of CWJC No. 6346 of 2011 as 2nd empanelled candidate it has been stated that as per the stipulation of the advertisement (refer clause 13) the land offered for construction of godown is required to be all season motor-able road whereas the land offered by the 2nd empanelled candidate (respondent no.10) had no such all seasonable motor-able access. Such stand has been taken relying on a certificate issued by the Executive Engineer, Rural Works Department, Araria (Annexure-11). Heard Mr. Rabindra Nath Kanth in support of CWJC No. 6346 of 2011, Mr. Rajesh Kumar Singh in support of CWJC Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 8 No. 3321 of 2011, Mr. Gautam Kejriwal for the first empanelled candidates( respondents in both the writ petitions) and Mr. Anil Kumar Jha appearing on behalf of the IOCL. The parties have exchanged pleadings. Before proceeding further, it is noted that challenge to the selection and empanelment of the selected candidate(s) in
Decision
both the writ petitions have been made inter alia on the ground that the land acquired by the selected candidates on lease and offered for construction of godown/show room at the advertised location did not belong to the lessee namely Tej Narayan Lal Das. Said land was owned and possessed by the agnate of Tej Narayan Lal Das namely Vijay Kumar Das ( respondent no.11 in CWJC No.3321 of 2011). In spite of notice neither respondent no.11 has appeared nor any counter affidavit has been filed on his behalf. Mr. Kanth, learned counsel for the petitioner in CWJC No. 6346 of 2011 has emphasized that in selecting the respondent nos. 5 and 6 as the first empanelled candidates the respondent-IOCL acted in breach of several provisions/conditions spelt out in the advertisement inasmuch as revenue documents subsequent to filing of the application have been considered in order to hold that the lessor of the lease made Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 9 in favour of the selected candidates was the rightful owner of the land. It has next been submitted that in selecting and empanelling the selected candidates the respondent IOCL has disobeyed the order dated 6.10.2010 passed in CWJC No. 16920 of 2010. The respondent IOCL did not consider the document filed by the petitioner to show that the land offered by the first empanelled candidates did not stand in the name of the lessor on the date of filing application inasmuch as the revenue documents subsequently furnished by the first empanelled candidates was/were taken into consideration in order to hold that there was no defect in title of the lessor who leased out the land in favour of the first empanelled candidate. He drew attention of the Court to various documents in an effort to show that there was a bonafide dispute of title between Vijay Kumar Das and the lessor namely Tej Narayan Lal Das. It has been submitted that the mutation order passed in favour of the lessor of the land was subsequent to the date of filing application. Learned counsel further highlighted that the petitioner had earlier filed writ petition being CWJC No. 16920 of 2010 which was disposed of on 6.10.2010 (Annexure -12) whereby the respondent- IOCL was directed to consider and dispose of the complaint of the petitioner before issuing the LOI. The LOI in the present case was issued Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 10 on 2.12.2010 without disposing of the complaint of the petitioner. It has further been argued that as per the provisions contained in the brochure if any LOI is issued then the same shall be kept in abeyance until disposal of the complaint. Learned counsels for the IOCL as well as the first empanelled candidates ( respondent nos. 5 and 6), on the other hand, supported the selection. Mr. Jha, learned counsel for the respondent - IOCL submitted that from bare reading of entire writ petition it would appear that the petitioner sponsoring the cause of Vijay Kumar Das has filed the writ petition stating that the land offered by the first empanelled candidate(s) did not belong to the lessor namely Tej Narayan Lal Das but to his agnate Vijay Kumar Das. Vijay Kumar Das himself filed a writ petition in this Court being CWJC No. 15778 of 2010 challenging the selection of the first empanelled candidate inter alia on the ground that the land offered by the first empanelled candidate was owned and possessed by him and did not belong to the lessor of the lease deed made in favour of the first empanelled candidate. Aforesaid Vijay Kumar Das ( respondent no.11 in the connected writ petition) filed a writ petition in this Court vide (CWJC No. 15778 of 2010) seeking a direction upon the respondent- IOCL to consider his various objections filed before the respondent-IOCL Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 11 disputing the title of the land offered by the first empanelled candidates. It was contended by him that the land belonged to him whereas his uncle had executed lease deed in favour of the successful candidates ( empanelled candidates). The said writ petition was disposed of by order dated 21.9.2010 (Annexure A to the counter affidavit filed on behalf of the respondent nos. 6 and 7 in CWJC No. 3321 of 2011) in the following terms:- “In view of the limited prayer made, the writ application is disposed of with the direction to the authorities of the respondent- Indian Oil Corporation to consider the representation of the petitioner while finalizing the allotment of the LPG Distributorship with respect to the aforesaid land which the petitioner claims to have owned in accordance with law.” In compliance of the aforesaid order of this Court, the respondent- IOCL considered the representation of Sri Vijay Kumar Das and rejected the same by order dated 2.12.2010 (Annexure D to the counter affidavit of respondent -IOCL filed in CWJC No. 3321 of 2011). By a well reasoned order the said claim of the Vijay Kumar Das was considered and rejected. The said order is not under challenge in any of the writ petition(s). The order was passed on the grievance application filed by the claimant of the land namely Vijay Kumar Das who has not challenged the said order. Vijay Kumar Das is respondent in the Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 12 connected writ petition but no counter affidavit has been filed on his behalf resisting the selection of the first empanelled candidates for grant of distributorship. If that be so, then this Court in exercise of its writ jurisdiction would not delve into and decide the inter se dispute, if any, between the lessor of the land in favour of the first empanelled candidates and his agnate namely Vijay Kumar Das. No issue in this regard should be allowed to be raised by the petitioner since Vijay Kumar Das had already approached this Court raising the same/similar issue which was directed to be examined /considered by the respondent - IOCL. The respondent-IOCL considered the said objection of Vijay Kumar Das and found the same not substantiated by a well reasoned order dated 2.12.2010 which is not under challenge. This Court should also keep in focus the fact that Vijay Kumar Das has been impleaded as one of the respondents in the connected writ petitions but he has maintained a studied silence and has not filed any counter affidavit in spite of notice. Learned counsel further contended that having disposed of the claim of Vijay Kumar Das in the light of the order passed by this Court the respondents proceeded further in the matter. However, in the light of order passed by this Court on the writ petition earlier filed by the petitioner vide CWJC No. 16920 of 2010 the respondents Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 13 have already considered the objection/complaint of the writ petitioner after affording him an opportunity of hearing and an order has been passed on 20th of August, 2013 but the same has not been communicated presumably under the impression that relating to the said allegation made by the claimant of the subject land himself a speaking order was already passed on 2.12.2010 and communicated to Vijay Kumar Das. Mr. Kejriwal, learned counsel for the first empanelled candidate supported the submissions made by Mr. Jha. He, however, also highlighted that from the materials on record it is more than apparent that the petitioners herein is/are sponsoring the cause of Vijay Kumar Das who has himself maintained a studied silence after rejection of his complaint by speaking order dated 2.12.2010 and did not challenge the same. The said order is not under challenge in anyone of the present applications. I have considered the submissions of the parties. It appears the selection of first empanelled candidate is challenged mainly on the ground that the land offered by the first empanelled candidate ( respondent no.5) did not belong to the lessor of the lease made in favour of the first empanelled candidate. It is the case of the petitioner that the land belonged to Vijay Kumar Das and not to Tej Narayan Lal Das ( the lessor). In my view, such Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 14 challenge, in the facts of the case, does not hold much water. The lease deed obtained by the first empanelled candidate was produced in support of the claim. The respondents in course of field verification referring to diverse documents produced in support thereof did not find any legal infirmity therewith. Which document was considered for recording the said satisfaction and/or coming to the said conclusion would not be of much relevance. This Court could have gone into the said aspect of the matter with reference to the relevant provision of the brochure if any such dispute was raised by the person who claimed the title and possession of the land. As noticed, such claim was raised by the claimant himself namely Vijay Kumar Das in a writ petition which was considered by this Court and the respondent- IOCL was directed to consider the said grievance of the petitioner. The respondent- IOCL considered the claim with regard to title and possession of the lease land of Vijay Kumar Das and rejected the same which was duly communicated to Vijay Kumar Das on 2.12.2010. Vijay Kumar Das has not challenged the legality /sustainability of the said order. The said order dated 2.12.2010 has remained unchallenged. A division bench of this Court in the case of Brajesh Chandra Mishra vs. The Union of India & Ors. 2011(2) PLJR 660 held that while exercising power of Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 15 judicial review under Article 226 of the Constitution of India this court is not supposed to sit in appeal over the decision of the Corporation and substitute its view after re-examining materials on record. The said principle becomes all the more applicable when no malafide has been alleged much less substantiated against the respondent -IOCL or its officials /functionaries. A division bench of this Court in LPA No. 771 of 2012 raising somewhat identical issues held as under:- question whether “We are unable to agree with Mr. Lalit Kishore. The the respondent no. 5 has a valid right, title and possession over the land in question is a matter between the respondent no. 5 and the Corporation. As has been brought on record, the Corporation did make enquiry about the genuineness of the lease hold right claimed by the respondent no. 5 on the land in question. After due enquiry, having been satisfied that the respondent no. 5 did have a genuine lease hold right and possession of land in question, the respondent no. 5 has been awarded dealership of the retail outlet of petroleum. The Corporation having satisfied itself of the genuineness of the claim made by the respondent no. 5, in absence of any material on the record, the Court has no reason not to believe the the subjective satisfaction recorded by Corporation. This Court exercising the power of judicial review under Article 226 of the Constitution shall not interfere with the same.” This Court , in exercise of writ jurisdiction would not appraise the materials placed by the parties and record a Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 16 finding that the land offered by the first empanelled/selected candidate did not belong to the lessor of the first empanelled candidate and/or belonged to his agnate namely Vijay Kumar Das. For the said reason this Court finds no substance in the challenge to the selection /empanelment of the selected candidate by the respondent- IOCL. Another submission of the petitioner is that the respondent- IOCL in issuing LOI in favour of the first empanelled /selected candidate has disregarded/disobeyed the order passed on his writ petition being CWJC No. 16920 of 2010. In this regard the respondent IOCL have stated that before issuing the LOI in favour of the first empanelled/selected candidate the grievance application was heard inasmuch as the petitioner was given an opportunity of personal hearing. In the meantime, CWJC No. 15778 of 2010 raising the similar issue by none else but the claimant of the subject land namely Vijay Kumar Das was filed which was disposed of on 6.10.2010 whereby respondent IOCL was directed to consider the said claim of the petitioner/claimant of the subject land. The respondent-IOCL considered the objection/grievance raised by Vijay Kumar Das (the claimant of the land) which was held unsubstantiated and rejected by order dated 2.12.2010. Having rejected the said Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 17 application the respondents although completed consideration of the representation/application of the present petitioner, which was held unsubstantiated but did not communicate the same since the selection of the first empanelled candidate was already held to be in accordance with the law after rejection of the grievance application filed by Mr. Vijay Kumar Das raising the similar grievance. The copy of the said order has been enclosed along with the supplementary counter affidavit. On perusal whereof it appears that the consideration of the matter was made by the respondent and order was passed thereon which, however, was not communicated under the impression that the similar issue raised by Sri Vijay Kumar Das who claimed himself to be the owner of the land, according to the pleadings of the present writ petition also was considered and rejected by the IOCL under the orders of this Court. The contention of the petitioner is, therefore, rejected. The challenge to selection of first empanelled candidate therefore fails. In CWJC No. 3321 of 2011, the petitioner is the 3rd empanelled candidate. There is no dispute that her case can only be considered if the selection and empanelment of the first empanelled and 2nd empanelled candidate(s) are held invalid. The petitioner has challenged 2nd empanelment of petitioner of CWJC Patna High Court CWJC No.6346 of 2011 (5) dt.24-09-2013 18 No. 6346 of 2011 on the ground that the road/access to the plot/land offered by the petitioner was not all season motor-able. The respondents including the private respondents have brought on record certificate from the concerned revenue authority certifying therein that the road was all season motor-able. Such dispute about factual existence of all season motor-able road cannot be considered in the writ petition particularly when both the parties have produced document in support of their claim(s) and the respondent IOCL in course of field verification found the access to the plot/land conforming to the requirement for grant of dealership. The challenge of the 2nd empanelled of petitioner of CWJC No. 6346 of 2011 therefore, is not substantiated. For the aforesaid reasons, this Court does not find any merit in the application. In the result, both the writ petitions are dismissed. There shall be no order as to cost(s). (Kishore Kumar Mandal, J) Shyam/-