High Court
Case Details
WP(C) 2047/2007 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI This writ petition under Article 226 of the Constitution of India is filed by th e petitioner questioning the selection of respondent No. 4 for grant of Retail O utlet (RO) in the category of (cid:28)outstanding sports person (cid:29), for short, OSP, in re spect of location at Amguri in the district of Sivasagar. Direction is also soug ht for to declare the petitioner as the most suitable candidate under the catego ry of OSP or in the category of 33% reserved for women category. Conspicuously, date of the letter purporting to indicate selection of the respondent No. 4 has been kept blank. 2. The facts, in a nutshell, as emerging from the writ petition is that the petitioner is an educated unemployed youth and a national level sports woman. S he had earned many laurels and prizes in various national level competitions in the discipline of (cid:28)weight lifting (cid:29). She had secured first place in 56kg weight c lass at the national bench press power lifting championship held at Mount Abu on and from 16th to 18th July, 2004. The said competition is recognised by the Dep artment of Youth Affairs & Sports, Ministry of Human Resources Development, Gove rnment of India and International Power Lifting Federation and The Indian Olympi c Association. Numaligarh Refinery Limited, for short, NRL, had published an advertisem 3. ent in various news papers including (cid:28)Dainik Janambhumi (cid:29), Jorhat, in its 10th Fe bruary issue of 2006, inviting applications for appointment as dealers for RO in various states as indicated in the said advertisement at or in the vicinity of locations given in the advertisement. The location of Amguri in the district of Sivasagar was reserved for OSP. 4. A brochure is also published by the NRL laying down procedure for select ion and details of reservation in various categories etc. and para 3.2 thereof p rovides that 33% of the dealerships in each category will be reserved for woman belonging to that category. Petitioner, being an OSP as per the norms, submitted an application for the location Amguri under the category of OSP. 5. The respondent No. 4, who is a body builder had also offered his candida ture for the RO at Amguri. The respondent No. 4 is not eligible because body bui lding is not a sport and the same is also not recognised by International Olympi c Association or in the national context also. It is pleaded in the writ petitio n that respondent No. 4 claimed that he was declared as champion in a national b ody building competition held at Mumbai but subsequently, the first prize was gi ven to a Mumbaikar on the ground that he was an outsider. The respondent No. 4 h ad emerged as Champion of the Champions at Mr. India 2006 Federation Cup held in Mangalore on 20.03.2006, much later than the last date of submission of applica tion, which was 15.03.2006. The title of Mr. India bestowed on respondent No. 4 is shrouded with controversies. 6. The respondent No. 4 is an employee of Assam Board of Sports and apart f rom that, he is also engaged as a Coach/Instructor and therefore, he will not be in a position to personally monitor the affairs of the dealership, which is a r equirement under the terms and conditions of the application. Further more, land offered by the respondent No. 4 is located barely 10 mtrs. away from a (cid:28)Tiniali (cid:29) (Tri-junction), thus not meeting the statutory norms including National Highwa ys norms for highway ROs and therefore, no marks could be allotted to the respon dent No. 4 and his application merits rejection for not fulfilling the basic req uisite essentials of a suitable piece of land. The letter of intent in favour of the respondent No. 4 was not produced but it is stated that the letter dated 09 .08.2006 clearly demonstrates appointment of respondent No. 4 as the dealer for the RO in question. It is further pleaded that the petitioner was selected at Sl . No. 2. Though 76 ROs had been advertised under the advertisement in question, NRL had not given reservation of 33% to the women candidates in each category. 7. NRL had filed a preliminary affidavit and an additional affidavit. In t he preliminary affidavit, the respondent Nos. 2 and 3 state that the respondent No. 4 is a body builder par excellence and he had produced many certificates iss ued by Indian Body Building Federation, which is recognised by the Ministry of Y
Decision
outh Affairs and Sports. Notwithstanding that, in view of the question raised by the petitioner, NRL authorities had sought for a clarification from the Ministr y of Youth Affairs and Sports on the issue as to whether body building is recogn ised as sports by the department, more particularly in the year 2006 and a reply was awaited and that future course would be decided after clarification was rec eived. It is also stated that the writ petitioner had been disqualified and she would not be eligible for selection in the event of disqualification of responde nt No. 4. 8. In the additional affidavit, the NRL had placed on record a letter dated 27.07.2009 issued by the Ministry of Youth Affairs and Sports clarifying that I ndian Body Building Federation was recognised before 2004. A letter dated 01.12. 2010 issued by the Government of India in the Ministry of Road Transport and Hig hways is also annexed showing grant of NOC for access to proposed RO. 9. The respondent No. 4 also filed an affidavit stating that body building has been recognised as a sport by the Ministry of Youth Affairs and Sports and e nclosed the letter dated 27.07.2009 which was also enclosed by NRL in its additi onal affidavit. He was selected at rank No. 1 and there were no other candidates empanelled at rank No. 2 and 3. 10. In the affidavit-in-reply filed by the petitioner against the affidavit , stand taken in the writ petition was reiterated. The petitioner had also filed an affidavit-in-reply to the additional affidavit filed by the respondent Nos. 2 and 3. It is stated therein that certificate dated 27.07.2009 annexed by NRL m erely says that the Indian Body Building Federation is recognised by the Ministr y of Youth Affairs and Sports but the said certificate does not say that body bu ilding is recognised as a sport. The petitioner highlighted that the site is not in conformity with the norms laid down by the National Highways authorities, mo re particularly Clause 4 thereof, for allotment of ROs along the national highwa ys. It is stated that just opposite to the site, there is an intersection, and t he site is less than 300mtrs. distance from the road and therefore, there is dou bt regarding sanctity of the letter dated 01.12.2010, issued during the pendency of the writ petition. 11. Mr. TJ Mahanta, learned counsel for the petitioner submits that though i n the writ petition a plea is taken that body building is not a sport, he is not pressing the point. However, it is contended by him that even though body build ing is a sport, the respondent No. 4 does not qualify as an OSP in terms of the advertisement. The respondent No. 4 had not qualified in the category of OSP as a national champion under recognised national championship. He submits that resp ondent No. 4 was selected on the basis of he being declared champion in Mr. Indi a 2006 Federation Cup Championship on 20.03.2006, which was beyond the date of s ubmission of application. The respondent authorities could not have taken cogniz ance of title which the respondent No. 4 won in a national body building champio nship, held in Mumbai, as, because of some disputes, the organizers had held bac k the Champion of Champions award. It was decided that the same would be offered as a special prize in the Federation Cup Body Building Championship, to be held in the month of March, 2006. Relying on the norms for location, lay-out and access to fuel stations a 12. long National Highways at page 59 of the writ petition, the learned counsel draw s the attention of Clause 4 thereof and more particularly, Clause 4.3.2. (1) (a) (i) that the proposed site of the respondent No. 4 is less than 300mtrs. from t he intersection which is the minimum distance required. Mr. Mahanta further subm its that it is worth noting that respondent No. 4 did not deny the allegations t hat his plot of land does not conform to the requirements. He places reliance on Black’s Law Dictionary, 9th Edition, for the meaning of the word (cid:28)intersection (cid:29) . 13. Mr. SN Sarma, learned Senior counsel for the respondent Nos. 2 and 3 sub mits that in the preliminary affidavit, it was clearly stated by the respondents that the writ petitioner was disqualified and that she will not be eligible to be considered in the event of setting aside of selection of the respondent No. 4 . As the writ petitioner has not amended the writ application challenging her di squalification, this Court ought not to go into the question as to whether the s election of the respondent No. 4 is vitiated. It is submitted by him that in Cla use 17 at page 43, which is part of Annexure-G, it is clearly laid down that the minimum qualifying marks for any candidate to be eligible for consideration for award of dealership would be 60% of the applicable marks in respect of open cat egory and 50% in respect of reserved category for that specific category/locatio n. With reference to the records produced, the learned Sr. Counsel submits that the writ petitioner secured 47.5% marks, clearly disentitling her from considera tion for grant of dealership. It is also submitted by him that there is no 2nd a nd 3rd rank as is sought to be canvassed by the writ petitioner. He also submits that sites offered by the respective candidates were inspected and verified and the site of the respondent No. 4 was found to be in conformity with the guideli nes. By placing reliance on Black’s Law Dictionary, 6th Edition, the learned Sr. Counsel submits that intersection primarily means two roads crossing each other though it may also sometimes mean a tri-junction. Mr. Sarma also points out tha t in response to a communication made by the NRL, by a letter dated 10.08.2010 i ssued by the Executive Engineer for Regional Office of Government of India, Mini stry of Road Transport and Highways addressed to Director General (RD) and Speci al Secretary, Ministry of Road Transport and Highways, it was informed that the proposal in respect of the RO in question was in order and based on the aforesai d, letter dated 01.12.2010 was issued granting NOC for access to the proposed RO . It is also submitted by him that the allegation that the respondent No. 4 does not fulfill the requirement of OSP is absolutely without any basis and the reco rds produced by him will demonstrate that relevant certificates were considered by the authorities. 14. Mr. R Sinha, learned counsel for the respondent No. 4 submits that it is not material whether the respondent No. 4 denies the allegations of his plot of land not conforming to the norms, because it is for the NRL authorities and the Ministry of Road Transport and Highways to ascertain as to whether land offered by the respondent No. 4 is conforming to the norms. He also submits that there can be no dispute that the respondent No. 4 is a body building champion and that he had won the 1st prize in Mumbai in a national level championship. Though not pleaded in the affidavit-in-opposition, the learned counsel submits that writ p etitioner did not implead the Ministry of Road Transport and Highways, who, in v iew of the grievances raised by the writ petitioner, appears to be a necessary p arty. 15. ls on record as well as the record produced by Mr. Sarma. 16. It appears that in the writ petition there is duplication of annexures a s Annexure-C at page 27 is again annexed as Annexure-G at page 37. Page 46 of th e writ petition, which is a format for evaluation, does not refer to any of the candidates and some unintelligible allotment of marks are found scribbled there. I have heard the learned counsel for the parties and perused the materia 17. Even though almost 4 years have gone by from the date of filing of the p reliminary affidavit by the respondent Nos. 2 and 3, wherein discloser was made that the petitioner failed to qualify in the selection process and she had been disqualified, the petitioner has not put to challenge the decision to disqualify her. Marks had been allotted on specified parameters and the petitioner obtaine d 47.5% marks which had fallen below the minimum 50% of marks required for being eligible for consideration for award of instant dealership of the RO. In view of the above, there is merit in the submission of Mr. Sarma that on this count a lone the writ petition is liable to be dismissed, as in absence of a challenge, the petitioner will have no locus standi to maintain the writ application. Howev er, as Mr. Sarma had also argued on the merits of the case, this Court considers it appropriate to take note of the grievances made by Mr. Mahanta. Clause 5 (d) of the brochure annexed as Annexure-C indicates the person 18. s who will be eligible to be considered as OSP. They are: (i) Arjuna Awardees (ii) Winners of Medals at Olympics/Asiad/Commonwealth Games and Recognised World Champions. (iii) National Champions under the Recognised National Championships and (iv) National Adventure Awardees. 19. Body Building was also included as a sport event in the Asian Games held in the year 2002 at Busan, South Korea. That the respondent No. 4 had a nationa l body building championship title is not in dispute. However, Annexure-D and An nexure-F, on which much reliance has been placed by Mr. Mahanta, show that after the results were declared, pandemonium broke out because of a section of specta tors demanding that he should not be given the prize as he was an outsider thoug h the respondent No. 4 was the undisputed winner. It is in these circumstances, to diffuse the situation when the respondent No. 4 was sought to be man-handled, the car meant to be given as the Champion of Champions award was not presented. It was also decided by the Federation that the same would be given as a special prize at the forth coming Federation Cup Body Building Championship. 20. The events dictated by a section of the crowd cannot nullify the result of the championship. The respondent No. 4 was granted a certificate as the holde r of first place in 90 kg category. It was the Senior National Body Building Cha mpionship conducted under the auspices of Indian Body Building Federation. It is not that championship was aborted or abandoned and winner was also not declared . 21. A perusal of the record produced by Mr. Sarma goes to show that contrary to the submissions of Mr. Mahanta, the certificate of Champion of Champions hel d after the last date of application was not considered. Subsequent to the winni ng of the Title also, the same was not submitted by the respondent No. 4. Apart from many other certificates, there is a certificate issued to the respondent No . 4 certifying that he had secured first place in the 45th Senior National Body Building Championship in 90kg body weight category, held in Mumbai. The competit ion was organised by Indian Body Building Federation and the letter dated 27.07. 2009 of the Government of India in the Ministry of Youth Affairs and Sports goes to show that the Federation was recognised in the year 2004. In the aforesaid background of factual matrix, I find no merit in the su 22. bmission of Mr. Mahanta that his so-called winning the National Body Building Ch ampionship in Mumbai does not qualify him as an OSP in the context of award of a n RO. The brochure indicates that the technical/commercial suitability of the 23. land/site offered by the applicants in response to the advertisement for any loc ation will be ascertained by a team of Oil Company Officers before the interview for that location based on the parameters given at Clause 14(a). The advertisem ent also indicates that land offered must meet all statutory norms including Nat ional Highways norms for Highway ROs and that no marks shall be awarded in respe ct of lands not meeting the statutory norms. 24. At this stage, it will be appropriate to extract the norms for location, layout and access to fuel stations along National Highways, to the extent relev ant: (cid:28)NORMS FOR LOCATION, LAYOUT AND ACCESS TO FUEL STATIONS ALONG NATIONAL HIGHWAYS ............................. 4. General Conditions of Siting .............................. 4.3 In order to provide safe length for weaving of traffic, fuel station alo ng National Highways shall be located at the minimum distance from an intersecti on (gap in the central median be treated as intersection), as given below. For s ingle carriageway section, these minimum distances would be applicable for both sides. 4.3.2 Urban Stretches. 1. (a) Plain and Rolling terrain Urban Area with population of more than 20,000 and less than one lakh (i) Intersection with any category of roads of carriageway (ii) Intersection with roads of carriageway width of less than 3.5m (b) (i) Urban Area with population of one lakh and above Intersection with any category of road (irrespective 100m of carriageway width) 2. (i) Hilly and Mountainous terrain. Intersection with any category of road (irrespective of carriageway width). 300m 100m 100m (cid:29) 25. It is to be noted that the Ministry of Road Transport and Highways had c onsidered the proposal of RO at Amguri and found the same to be in order. No Obj ection Certificate for access to propose RO has also been granted by the compete nt authorities of Ministry of Road Transport and Highways. 26. Interim order of this Court was to the effect that the respondent author ities will not finalise the contract. The interim order did not impose any embar go upon the respondents towards taking intermediate steps. As such, the submissi on advanced by Mr. Mahanta that no sanctity is to be attached to the letters dat ed 10.08.2010 and 01.12.2010, the same having been issued during the subsistence of an interim order passed by this Court, does not commend for acceptance. Black’s Law Dictionary, 6th Edition, defines intersection as follows: 27. (cid:28)Intersection- As applied to a street or highway means the space occupied by two streets at the point where they cross each other. Space common to both streets or highways, formed by continuing the curb lines. Western Union Tel. Co. v. Dick son, 27 Tenn. App. 752, 173 S.W.2d 714,718. Point of intersection of two roads is the point where their middle lines interse ct. But the term may also mean the point which each of two approaching vehicles will reach at the same moment. (cid:28)Intersection (cid:29) may also apply where street or hig hway runs into but without crossing another; e.g. a (cid:29)T (cid:29) intersection. (cid:29) According to Black’s Law Dictionary, 9th Edition, intersection means a place whe re two raods meet or form a junction. 28. From the above, it is seen that intersection means the space occupied by two streets at the point where they cross each other. True, it can also mean (cid:28)T (cid:29) intersection. Thus, intersection primarily connotes crossing of two roads, tho ugh it can also mean tri-junction on certain occasions. Clause 4.3 of the norms referred to above provides that gap in the central median be treated as interse ction. This Court will not embark upon an analysis of what intersection means in the context of RO when competent authority has found the location of the propos ed RO to be in order. 29. In view of the discussions above, I find no merit in this application a nd accordingly, the same is dismissed. The interim order dated 04.05.2007 shall stand vacated. No costs.