High Court
Case Details
WP(C) 431/2013 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) The petitioner, who was one of the applicants for appointment as Retail Outlet Dealer in Ward No.4 of Lakhipur in Goalpara District, by the present peti tion has challenged the communication dated 21st January, 2013 (Annexure: G to t he writ petition) issued by the Senior Regional Manager, Hindustan Petroleum Cor poration Limited (in short, (cid:28)HPCL (cid:29)), the respondent No3, whereby and whereunder the petitioner has been informed that the Selection Committee has rightly awarde d the marks under the sub-head ’liquid cash and fixed and movable assets’ of the head ’ready availability of finance’, based on the information and documents fu rnished by the petitioner alongwith the application filed. [2] it petition may be noticed as under:- The facts relevant for the purpose of disposal of the present wr (i) The HPCL, the respondent No.2, had published an advertisement in a local English daily, on 14th September, 2011, inviting applications from the interested persons for appointment as Retail Outlet Dealers in 80(eighty) locati ons, including Lakhipur Ward No.4 in Goalpara district, which was an open catego ry location and was to be developed on company leased basis. It has been stipu lated in the said advertisement that the minimum plot size required is 625 Sq.Mt r. with frontage of 26 Mtrs. and depth of 20 Mtrs. The HPCL has also published a brochure containing the guidelines to be followed for selection of Retail Outl et Dealers. Clause-9 of the said guidelines provides for submission of the appl ication in the prescribed format with non refundable fee of Rs.1,000/- (Rupees O ne Thousand) for the General Category candidate alongwith the original of the af fidavits and attested copies of other supporting documents. It has also been st ipulated that no additional document whatsoever will be accepted or considered a fter the cut off date for submission of application. Clause-12 of the guideline s provides that availability of suitable land for setting up of retail outlet at the advertised location is the essence of the dealership. The said Clause also provides the documents applicants are required to furnish in support of the own ership of the land offered for retail outlet, namely, Khsara/ Khatauni or any eq uivalent revenue document or certificate from the revenue official confirming st atus of ownership of the land or registered sale deed or registered lease deed f or a minimum period of 15(fifteen) years with a renewal option of 15(fifteen) ye ars or any other type of ownership transfer deed/document or lease agreement or firm allotment letter issued by the Government/ Semi Government bodies. It has further been stipulated that in addition to the aforesaid document(s), the appli cants are also required to furnish the following documents, as applicable, for e valuation of the own land/Firm offer: Situation of ownership S. No. ed in addition to above Evaluation 1. 2. ers of family unit 3. Self with other owner(s) Self Self with members of family unit Owned Owned Full Nil Share of applicant in land Documents requir Part Consent letter from memb Part Consent letter on stamp paper or an Affidavit or Power of Attorney from other owner(s) Owned Self and members of family unit with other owner(s) 4. Consent letter from members of family unit and Consent letter on stamp paper or an Affid avit or Power of Attorney from other owner(s). 5. amily unit Consent letter f 6. rom members of family unit and Consent letter on stamp paper or an Affidavit or Power of Attorney from other owner(s) Owned Consent letter from members of f Members of family unit with other owner(s) Only members of family unit Owned Owned Part Nil Nil
Legal Reasoning
7. uirement Firm offer 8. Self with members of family unit Part but area more than HPCL req Consent letter from members of family unit not available Self with other owner(s) Consent letter from other owner(s) not available Part but area more than HPCL requirement Firm offer Self and members of family unit with other owner(s) 9. re than HPCL requirement ther owner(s) not available 10. Other owner(s) r/Affidavit/Power of attorney Letter f 11. rom the Government/Semi-Government bodies that land will be allotted in case dea lership is awarded Part but area mo Consent letter from members of family unit and o Firm offer Agreement to purchase/Offer letter on stamp pape Firm offer Land owned by Government/Semi- Government bodies Firm offer Nil Nil The site map with dimensions indicating survey number, hissa num ber, name of the road (NH/HS/other road), nearest KM stone, total land area of o ffered land, as applicable, in respect of the plot being offered for Retail Outl et, are also required to be attached. (ii) Clause-13 of the said guidelines lay down the evaluation criteri a of the site offered by the applicants. Note-1 appended to Clause-13 stipulate s that the frontage of the plot required for dealership will be as indicated in the advertisement and the plot meeting frontage will be given 80% of the marks a nd plots with bigger frontage, higher marks upto a maximum of 15 for city outlet s and 12 in case of outlets located in highways and others would be given. Clau se-16 lays down the norms for evaluating the candidates. Sub-Clause (b) of the said Clause indicates the marks allocated in various parameters, i.e. the land a nd infrastructure and finance etc. For better appreciation, the relevant portio n of Clauses-(a) and (b) is quoted below:- The candidates will be assessed under the following parameters and in ca (cid:28)(a) se one or more of the evaluation parameter is not applicable for any section of applicant or category of dealerships as listed below, the evaluation will be don e excluding those marks and evaluating them only on the applicable marks. The m aximum marks on which various categories of applicants will be evaluated as unde r: 35 Corpus Fund Locations-Societies Individual/Partnership Corpus F Dealership Category Evaluation Parameters und Locations-Individuals Non-indi vidual entities i.e. Corporate House, Organised Bodies, Societies, Charitable Tr ust Land Finance Education Business Generation Age Experience Business Ability Personality Max. Marks 35 NA NA 10 4@ 4 5 NA 40 NA NA 15 10 4@ 4 5 2 40 4 7 NA 100 25 NA 25* NA 25 15 2 100 25* 4 4 7 4 Note: Detailed evaluation parameters for Business Generation, (marked as*), Age (marked as @) and Experience (marked as ) for Corpus Fund Locations-Societies & Non-individual entities i.e. Corporate House, Organised Bodies, Societies, Chari table Trust are further explained below at item c): b) Allocation of marks on various parameters: Parameter Sub-heads Description Max Marks Evaluation Land and infrastructure (Max. 35 marks) both for individual & non individual. Suitable land for retail outlet Having (cid:28)own land (cid:29) or having land on long lease ( registered) for a minimum period of 15 years with a renewal option of 15 years a nd willing to give to HPCL on long term lease at rentals acceptable to HPCL. 35 pplicant alongwith his application. Based on verification of the land titleship documents submitted by the a Having (cid:28)firm offer (cid:29) of land and willing to give to HPCL on long term lease at rentals acceptable to HPCL. 25 Ready availability of Finance (20 marks) Financially soun Finance (Max. 25 marks) both for individual & non individual d Based on the ver ification of the supporting documents submitted by the applicant along with his application. Valuation report duly certified by Govt. approved values in suppor t of assets is necessary. Liquid cash in the form of bank balance, Fixed deposits, shares of listed companies etc. 12 Fixed and movable assets includes own land, buildings, shops, ho use vehicles, etc. 4 rent, royalty, etc. duly supported by documentary evidence. 4 Income includes agricultural income, business income, interest,
Legal Reasoning
(iii) The Dealer Selection Committee of HPCL, in terms of the guidelin es issued, has interviewed the candidates including the petitioner and the respo ndent No.5 and another, namely, Shri Dinesh Prasad, who submitted their applicat ions for awarding the Retail Outlet Dealership at Ward No.4 of Lakhipur in the d istrict of Goalpara. The said Committee on the basis of the marks awarded place d the respondent No.1 at serial No.1, the writ petitioner at serial No.2 and Shr i Dinesh Prasad at serial No.3, in order of merit, based on the total marks secu red by them, i.e. 94.35; 93.08 and 79.50, respectively.
Decision
(iv) The dispute in the present case relates to the marks awarded by the Selection Committee to the writ petitioner under the sub-head ’ready availab ility of finance’ of the head ’Finance’. Out of maximum 25 marks under the head ’Finance’, 20 marks is set apart for ’ready availability of finance’ and 5 mark s for ’credit worthiness’. While the petitioner has been awarded 16 marks under ’liquid cash’ and ’income’ of sub-head ’ready availability of finance’ and full 5 marks under the sub-head ’credit worthiness’, 20 marks and 5 marks have been awarded to the respondent No.5 under the said sub-heads. The petitioner, howev er, has not been awarded any marks under ’fixed and movable assets’ of sub-head ’ready availability of finance’, though 4(four) marks were allotted in that resp ect. (v) The petitioner being not satisfied with the marks awarded by the Selection Committee under the aforesaid sub-head, namely ’ready availability of finance’, filed an application requesting redressal of his grievance through re evaluation of the marks under Clause-19 of the aforesaid guidelines issued for s election of Retail Outlet Dealers, contending inter alia that though he has subm itted the valuation certificate in respect of the land offered by him at Lokhra, issued by the registered Government valuer, the same has not been taken into co nsideration by the Committee, thereby refusing to award 4 marks set apart for ’f ixed and movable assets’, while awarding the marks under sub-head ’ready availab ility of finance’, for which 20 marks were set apart under the parameter of ’fin ance’. It has been contended that had that 4 marks been awarded to the petition er, to which he is entitled to, he would have secured 97.08 marks as against 94. 35 marks secured by the respondent No.5 and in that case, the petitioner would h ave been placed at serial No.1 of the said merit list. The said contention of t he petitioner has been rejected by the Corporation, which has been communicated by the Corporation intimating the petitioner that in respect of the land covered by Dag No.41 of KP Patta No.11, value of which has been certified by 1.75 Lakhs by the Government approved valuer, neither the title deed nor the property pape r like the Zamabandi or any other papers have been furnished by the petitioner a longwith the application filed and as such, in the absence of such documents, li ke the title deed, no marks could be awarded as against 4 marks allotted for ’fi xed and movable assets’. [3] I have heard Mr. D. Baruah, learned counsel for the petitioner, Mr. M. Bhagabati, learned Central Government counsel appearing for the responden t No.1, Mr. H.R.A. Choudhury, learned senior counsel appearing for the responden t Nos.2 to 4 and Mr. K.N. Choudhury, learned senior counsel appearing for the re spondent No.5. [4] Mr. Baruah, learned counsel for the petitioner, referring to the guidelines, issued by the respondent Corporation for selection of Retail Outlet Dealer, more particularly Clause-16(b) thereof, has submitted that though for a llocation of marks in the parameter of ’land and infrastructure’, it has specifi cally been mentioned that the titleship document of the land have to be submitte d by the applicant for the purpose of evaluation and marking, for the purpose of evaluation in the parameter of ’finance’, for which maximum 25 marks are set ap art, what required to submit was the valuation report duly certified by the Gove rnment approved valuer in support of the assets and though the petitioner has su bmitted the report of the Government approved valuer in respect of 2 Kathas 10 L echase of land in Dag Nos.40/41 of Patta No.11 as well as 3 Kathas of land in Da g No.1262 of Patta No.630, he has not been awarded 4 marks to which he is entitl ed to under the sub-head (cid:28)fixed and movable assets (cid:29). The learned counsel submit s that there being no requirement for submission of the title deed or any other revenue document in respect of the said land, the Selection Committee was not ju stified in not awarding 4 marks set apart for ’fixed and movable assets’ to the petitioner, on the ground of non submission of the title deed or other revenue d ocuments. The learned counsel further submits that the grievance redressal foru m was also not justified in rejecting the application on the same ground. It ha s also been submitted by Mr. Baruah that since the petitioner has offered 1 Bigh a 2 Kathas of land (1876 Sq.Mtr.) for setting up of the Retail Outlet, as agains t the requirement of offering 625 Sq. Mtr., and in support of the ownership of t he said land, the petitioner has also submitted the title deeds, the authority o ught not to have refused to take into consideration the petitioner’s ownership o ver the said land while awarding marks for ’fixed and movable assets’, as the sa id land, which has been offered for setting up the retail outlet, can also be ta ken into consideration in the matter of awarding the marks for ’fixed and movabl e assets’ under Clause-16(b) of the said guideline. The learned counsel, theref ore, submits that the decision making process of the Committee has been vitiated in not following the guidelines issued for selection of Retail Outlet Dealers a nd in not awarding the marks to which the petitioner is entitled to under the su b-head ’fixed and movable assets’ and as such, the selection of the respondent N o.5 for appointment as Retail Outlet Dealer in respect of the location Lakhipur, Ward No.4, needs to be interfered with. [5] Mr. HRA Choudhury, learned senior counsel appearing for the resp ondent Nos.2 and 4 as well as Mr. KN Choudhury, learned senior counsel appearing for the respondent No.5, on the other hand, supporting the decision of the Sele ction Committee in not awarding any marks to the petitioner under the sub-head ’ fixed and movable assets’, in the absence of submission of the relevant title de eds, have submitted that it is apparent from Clause-16(b) of the aforesaid guide lines that for the purpose of evaluation as to whether a candidate is entitled t o any marks set apart for ’liquid cash, fixed and movable assets’ and ’income’, he has to submit all the supporting documents alongwith the application. Mere s ubmission of the valuation report duly certified by the Government approved valu er in support of the asset is not enough for awarding any marks under the sub-he ad ’fixed and movable assets’, for which 4 marks is set apart, as no mark can be awarded unless the petitioner by producing the title deed could demonstrate tha t such fixed and movable assets, which includes the own land, building, shops, h ouse vehicle etc, belongs to him, submit the learned counsel. In the instant ca se, according to the learned counsel, though the petitioner claims 4 marks again st sub-head ’fixed and movable assets’, based on the valuation report certified by the Government approved valuer, the petitioner did not submit the title deed to demonstrate that he is the owner in respect of 2 Kathas 10 Lechas and 3 Katha s of land covered by Dag Nos.40/41 of Patta No.11 and Dag No.1262 of Patta No.63 0, respectively. It has also been submitted that the land which has been offere d by the petitioner for setting up of the Retail Outlet Dealer cannot be taken i nto consideration for awarding the marks under the sub-head ’fixed and movable a ssets’, as there are 2(two) parameters set by the respondents Corporation in the guideline for allocation of marks, i.e. land and infrastructures and suitable l and for the Retail Outlet, for which maximum 35 marks are set apart and for the sub-head ’financial soundness’, 25 marks has been set apart. It has also been s ubmitted that it is apparent from the Note-1 to Clause-13 of the aforesaid guide line that in case of offering larger plot for setting up of the retail outlet wi th bigger frontage, higher marks are to be awarded and the petitioner accordingl y has been awarded higher marks in the parameter ’land and infrastructure’, unde r Clause-16(b). Mr. Bhagabati, learned Central Government counsel appearing for [6] the respondent No.1 submits that since the advertisement was issued by the respo ndent Corporation for appointment of Retail Outlet Dealers and the dispute is re lating to the selection conducted by the respondent Corporation, the Union of In dia in the present case, has no comment to make. [7] The question, which requires determination by the Court in the p resent case is - whether the Selection Committee has acted in violation of the g uidelines issued by the respondents Corporation for selection of Retail Outlet D ealers, in so far as it relates to awarding of marks in the parameter of ’financ e’, as stipulated in Sub-Clause (b) of Clause-16 of the said guidelines, thereby vitiating the decision making process. [8] The petitioner admittedly has offered 1 Bigha 2 Katha (1876 Sq.M tr) of land covered by Dag No.1156 of Patta No.607 of revenue village Lakhipur t own for setting up of retail outlet, as against the requirement of 625 Sq.Mtr. w ith the frontage and depth of 26 and 20 Mtrs., respectively. The petitioner has also submitted the documents of title in support of the ownership of the said l and measuring 1 Bigha 2 Kathas. The petitioner in addition to that has also sub mitted the valuation report, duly certified by the Government approved valuer, i n respect of 2(two) plots of lands, one measuring 2 Kathas 10 Lechas covered by Dag Nos.40/41 of Patta No.11 of revenue village Dhalbama under Mouza Beltola and the other 3 Kathas covered by Dag No.1262 of Patta No.630 at Chatribarisahar, M ouza Guwahati. The petitioner though has submitted the valuation certificate is sued by the Government approved valuer in respect of the said land did not, howe ver, furnish the document of title or any other revenue documents to demonstrate the ownership of the said 2(two) plots of land. [9] The guidelines issued by the respondents Corporation for selecti on of Retail Outlet Dealers, as noticed above, has laid down the norms of evalua tion in Clause-16. Sub-Clause (a) of Clause-16 provides that the candidates sho uld be assessed, apart from other parameters, on the parameters of ’land’ and ’f inance’ for which maximum 35 and 25 marks, respectively, are allocated. Sub-Cla use (b) gives the breakup of the marks allocated under different parameters. Th e present case concerns with 2(two) parameters, namely, ’land and infrastructure ’ and ’finance’, which have already been quoted above. A candidate is entitled to maximum of 35 marks under the Sub-hea [10] d ’suitable land for Retail Outlet Dealers’ in the parameter of ’land and infras tructures’. The guidelines stipulate that the evaluation of a candidate relatin g to the entitlement of the marks under the said parameter is to be based on ver ification of the land titleship documents submitted by the applicant alongwith h is application. Note-1 of Clause-13 of the said guidelines, which provides for evaluation of the site offered by the applicants for setting up of the Retail Ou tlet, stipulates that the plot meeting maximum frontage, pursuant to the adverti sement, will be given 80% of the marks and the plots with bigger frontage, highe r marks, upto a maximum of 15 for the city outlets and 12 in case of outlets loc ated on highways/others, would be awarded. The petitioner has been awarded 95 ma rks, out of 100 by the Site Inspection Committee under the head ’capacity to pro vide infrastructures and facility’, as the petitioner has offered a bigger plot of land with larger frontage, as against 91 marks awarded to the respondent No.5 . This land is, therefore, cannot be considered for awarding marks under the su b-head ’fixed and movable assets’ under the parameter ’finance’. The petitioner has also been awarded full 35 marks under the sub-head ’suitable land for retai l outlet’ as the land offered by him for setting up of the retail outlet is his own land and in proof whereof he has also submitted the document of title. For better appreciation, the marks awarded to each of the candidates under differen t heads and sub-heads are quoted below:- Hindustan Petroleum Corporation Ltd. Provisional Dealer selection office: Guwahati Regional Office Statement of Performance of Candidates interviewed on 31-08-2012 at Guwahati for retail outlet dealership o f hpcl at Lakhipur Ward No.4, Dist.-Goalpara, State-Assam, Category: Openm, Cat egory: Open S. No. Capacity to arrange finance (Maximum Marks 25) Capacity to Generate Business (Maximum Marks 10) Business Acumen Personality Capacity to Provide infrastructure & Facility Total Marks % Marks Merit Panel Educational Qualification Name of the candidate Experience Age Marks awarded by site Inspection Committee (Marks 100) Marks awarded by L1 Committee ailability of Finance volume Project report Weighted Marks-(III) X (iv)/100 Letter ensuring loan/credit worthiness Capability to Generate Business Future Plans Ready av Tied up (i) (xi) 5 1. 5.00 2. 5.00 3. 1.00 (iii) (xiii) (ii) (xii) Max. Marks Individual/partnership 3 15 (iv) (xiv) (v) (xv) 4 2 5 (vi) (xvi) Arun Kumar Bhagat 1.50 1.83 4.00 Anand Kumar Pandey 2.50 2.00 4.00 Dinesh Prasad 1.67 4.00 90.00 4.00 91.00 4.00 95.00 4.00 35.00 3.83 35.00 4.17 35.00 4.50 31.50 1.50 (vii) (viii) (ix) 100 4 31.85 2.00 33.25 1.83 12.00 79.50 35 5 20.00 94.35 16.00 93.08 5.00 79.50 35 2 5.00 94.35 5.00 93.08 10.00 III (x) 20 100 15.00 I 15.00 II 5.00 [11] As discussed above, under Clause-16(b) of the guidelines, maximu m 25 marks is set apart for allocation under the parameter ’finance’ with the su b-head ’financial soundness’. Out of the 25 marks, 20 marks is allocated for ’r eady availability of the finance’, which has been sub divided to - ’liquid cash’ -12 marks; ’fixed and movable assets’, which includes own land, building, shops, house, vehicles etc.-4 marks and ’income’, which includes agricultural income e tc.-4 marks. [12] It is stipulated in Sub-Clause (b) of Clause-16 of the guideline that the evaluation under the parameter finance would be based on the verificat ion of the supporting documents submitted by the applicant alongwith his applica tion. It has further been stipulated that valuation report duly certified by th e Government approved valuer in support of assets is necessary. As discussed ab ove, in the present case, the petitioner has been awarded full marks, i.e. 12, u nder the sub-head ’liquid cash’ and 4 marks under the sub-head ’income’, totalin g 16 marks. The petitioner, however, has not been awarded any marks for the sub -head ’fixed and movable assets’, though maximum 4 marks is set apart for that p urpose. An applicant can claim the marks under the sub-head ’fixed and m [13] ovable assets’, which includes own land, building, shops, house etc., provided t he necessary proof relating to the ownership, i.e. either the title deed or the revenue records is produced. Unless such documents are produced to claim any ma rk under the sub-head ’fixed and movable assets’, the Selection Committee cannot award any mark, as the mark is set apart for the applicants own land, building, shop, house etc. Mere filing of the valuation report, duly certified by the Go vernment approved valuer, without furnishing the aforesaid documents, would not be enough to claim any marks under the said sub-head, i.e. ’fixed and movable as sets’, as the valuation certificate is not a document of title. Hence, the Sele ction Committee did not commit any illegality in not awarding any marks to the p etitioner under the sub-head ’fixed and movable assets’. Clause-9 of the afores aid guideline issued for selection of Retail Outlet Dealers also provides that n o additional documents whatsoever shall be accepted or considered after the cut off date of submission of application. [14] In view of the aforesaid submission, I am of the view that no il legality has been committed by the Selection Committee in placing the petitioner at serial No.2 of the merit list. [15] No costs. Hence, the writ petition is dismissed being devoid of any merit.