Madhya Pradesh High Court
Smt. Anita Jain vs Indian Oil Corporation Limited ... on 11 April, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1
W.A. No. 268/2017
(Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE ASHOK KUMAR JOSHI
Writ Appeal No. 268/2017
Smt. Anita Jain
Vs.
Indian Oil Corporation Ltd. and others
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Shri K.N. Gupta, learned Senior Counsel with Shri
Sanjay Bahirani, learned counsel for the appellant.
Shri A.K. Jain, learned counsel for the respondent no.1
Shri N.K. Gupta, learned Senior Advocate with Shri S.D.
Singh, learned counsel for the respondent no.5.
********************
JUDGMENT
(11/04/2018) Per Justice Sanjay Yadav:
With the consent of learned counsel for the parties, the matter is finally heard.
(2) This appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 8.5.2017 passed in Writ Petition No.2910/2016.2 W.A. No. 268/2017
(Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) (3) The writ petition was directed against the order dated 30.3.2016 by the Divisional General Manager (Retails Sales) Indian Oil Corporation; respondent no.4, passed in compliance to the order dated 8.12.2015 in W.P.No.668/2014.
(4) Relevant facts giving rise to the controversy briefly are that an advertisement was issued for opening of retail outlet at Kajari, District Ashoknagar under open category for women. The appellant as well as respondent no.5 submitted their applications in pursuance thereto. They were interviewed on 17.1.2013. The panel was prepared wherein the appellant was placed at S.No.1. After the declaration of result on 28.01.2013 the respondent No.5 submitted the complaint and sought review of the result. Appellant vide reply dated 20.05.2013 raised objection. However, vide order dated 10.01.2014 the competent authority cancelled the merit panel prepared on 17.01.2013. That on a challenge in W.P.No. 668/2014 the order dated 10.01.2014 was set aside on 8.12.2015 with the direction to afford an opportunity of hearing to the appellant and respondent no.5. It was in furtherance 3 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) to the order in writ petition the order was passed on 30.3.2016, whereby the competent authority dwelling on respective objections raised by the appellant and respondent no.5 on re-evaluation of all eligible candidates drew fresh panel whereon respondent no.5 was placed at S.No.1 and the appellant at S.No.2. The challenge to same being negatived in W.P. No. 2910/2016 has led the petitioner file present appeal.
(5) Controversy relates to evaluation of respective candidates. Be it noted that there were three contenders, viz, Smt. Anita Jain (present appellant), Smt. Mandeep Kaur and Smt. Madhuri Singhai Jain. Smt. Mandeep Kaur has not shown any interest. In an earlier merit list, the appellant was placed at Sr. No. 1, whereas, the respondent No. 5 was at Sr. No.
3. The objection raised on behalf of respondent No. 5 against appellant was : (i) that the valuation of land has been done on the basis of copies of Rin Pustika and not the sale deed; therefore, she was not entitled for marks under the head fixed and movable assets (ii) she submitted Income Tax Return of 2010- 11 showing her income as Rs. 27,227 and the copy 4 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) of balance sheet enclosed therewith reflected agricultural income of Rs. 2,12,178/-, therefore she was entitled for four marks. These contentions, however, could not be established.
(6) The contention raised by present appellant on an objection of respondent No. 5 was that the valuation by Shri Anil Kumar Jain be treated as by approved valuer specified in Corporation Policy dated 01/11/2013. This contention was accepted by the Corporation. It was further contended that the Experience Certificate submitted by respondent No. 5 was false and forged as it had been issued by Smt. Minal Singhai as the owner of Sheel Fuel Station, which was allotted by Essar Co. on 28/05/2012. The contentions were negatived by the Corporation stating that the allegations were investigated in the past wherein it was found that the Experience Certificate dated 24/08/2012 was issued by Smt. Minal Singhai not as an owner but as a Manager, and it was not a requirement that the Experience Certificate can only be issued by the owner. Another contention raised was that as per letter No. 851/Khadya/2012 dated 14/12/2012 of DSO 5 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) Ashoknagar, Shri Santosh Jain husband of respondent No. 5 was proprietor of Sheel Fuel Center w.e.f. 10/03/2005; therefore, she was not eligible to apply for dealership in view of multiple dealership norms (Clause 6(I) of the Brochure 01/03/2012) as her husband was already a proprietor of Essar dealership. The Corporation held that Essar Oil had appointed Smt. Minal Singhai as franchise of retail outlet w.e.f. 24/02/2012, superseding the appointment of Shri Santosh Singhai (Jain). The objection as to multiple dealership norm was thus turn down.
(7) The decision by the Corporation on 30/03/2016 was taken exception to in Writ Petition No. 2910/2016 on the same ground as were raised before the Corporation.
(8) As regard to evaluation, learned Single Judge found that the assets disclosed by respondent No. 5 were duly certified by Registrar, Department of Registration. It observed that once Government approved valuer, whether Central or State was included in the list of approved valuers, then the very Authority which registered the documents 6 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) which are used by Government approved valuer for ascertaining market value of property, cannot be disapproved. The said finding has been questioned on the contention that the learned Single Judge grossly erred in equating the certificate issued by Registrar or Sub-Registrar as the case may be in respect of the valuation of land with that of valuation given by the registered valuer which takes into consideration the various aspects wherein market value is one of the element.
(9) That paragraph 13.1.1 of the Brochure dated 01/03/2012 lays down norms evaluating the candidates stipulating therein that the land offered will be evaluated as per laid down parameters by the land evaluating Committee which will in turn decide the marks in respect of parameter 'capabilities to provide land and infrastructure/facilities' which carries a maximum marks of 35. That one of the parameters for evaluation has to be based on (i) verifying the documents submitted (ii) valuation report duly certified by Government Approved Valuers in support of assets.
(10) That clarification was issued by the Corporation 7 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) vide No.6069(DSG)-46/13 dated 01/11/2013 as to who could be termed as "Government Approved Valuer". It stated:
"Retail Sales Department, HO No: 6069(DSG)-46/13 1st November, 2013 State Retail Heads Sub: Clarification on 'Govt. Approved Valuer' In the selection process of RO Dealerships, for the parameter of 'Fixed & Moveable Assets' under financial capability, marks are awarded based on the value assessed by a Govt. Approved Valuer as stipulated in the Selection Brochure.
It has been observed that there is scope for clarity as to which Valuer qualifies as 'Govt. Approved Valuer'.
It is clarified that for the purpose of evaluation, valuation report submitted by a valuer will be considered provided the valuer is registered/ empanelled by any one of the following Government Agencies:
1. Central Govt. Departments and Bodies like Central Board of Direct Taxes (CBDT)/ Department of Income Tax, CPWD & other Govt. authorities
2. Public Sector Banks.8 W.A. No. 268/2017
(Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others)
3. Public Section Undertakings.
4. State Govt. Departments and Bodies like PWD, PHED, Irrigation Departments
5. Local Self Govt. bodies (like Development Authorities, Municipal Corporation etc.) Type of category under which valuer is covered should be recorded/ mentioned in valuation report. Evaluation will be done accordingly.
The above guidelines will be applicable for all pending cases of selection (if any). After approval, a circular as per attached draft will be issued.
(Vinay K. Misra) GM (RS)"
(Emphasis Supplied) (11) Thus it was an incumbent registered/ empanelled by any one of the Government agencies, viz. Central Government Departments and Bodies like Central Board of Direct Taxes (CBDT)/ Department of Income Tax, CPWD & other Govt. authorities; Public Sector Banks; Public Section Undertakings; State Govt. Departments and Bodies like PWD, PHED, Irrigation Departments; Local Self Govt. bodies (like Development Authorities, Municipal Corporation etc.) who being treated as Government approved valuer, 9 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) it was report by such a valuer were acceptable.
Pertinent it is to note that the Government agencies which empanelled the valuers themselves were not treated to be approved valuer. Though respondents No.1 to 4 in their reply to Writ Petition in paragraph 6.5 to 6.7 has stated "as per Circular dated 01/11/2013 Government Departments and local self Government bodies has been recognized for the purpose of valuation." This aspect is not borne out from the clarification dated 01/11/2013. (12) Trite it is that where the rule provides for doing an act in particular manner, such an act must be done in said manner or not at all.
(13) In Hukam Chand Shyam Lal Vs. Union of India and others [(1976) 2 SCC 128], it is held:-
"18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden...."
(14) In Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and others [(1993) 3 SCC 161], it is held:-
"34. .... attracts the principle, that if a 10 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor. (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915."
(15) In view whereof, since admittedly respondent No. 5 did not produce the valuation report by an approved valuer, a Certificate issued by a Registrar Stamp will not tentamount to be the valuation of property as sought. Therefore, the conclusion arrived at by the Corporation affirmed by the learned Single Judge that "the disclosure of asset by respondent No. 5 to the Registrar of Registration Department which takes care of valuation of market rate for the purpose of Indian Stamps Act and Indian Registration Act, therefore, if the documents have been given by the Registrar or on his behalf by Deputy Registrar then no illegality has been caused by respondent No. 5 while submitting it and no illegality has been 11 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) caused by respondent Corporation by accepting it as valid mode of information", cannot be accepted to be correct proposition, in view of above analysis. (16) It is also observed from record that in an earlier investigation report of Manager retail sales company Shri Nagendra Singh wherein by order dated 27/04/2013, it is observed that as per the KSK brochure marks in the fixed and movable assets can be given on the condition firstly that the valuation report duly certified by Government approved valuer which respondent No. 5 did not submit in support of her claim for grant of marks towards the same was declined by L-1 committee whereagainst these findings were never challenged by respondent No. 5 and thus attained finality.
(17) As to the contention regarding experience, Clause 13.1.1 (ii) makes provision for allotment of 4 marks. The marks for said parameter was to be allotted for individual retail trade of petroleum products as business experience based on furnishing of documentary evidence to establish relevant experience, i.e., full marks for the experience of 1 year and proportionately for experience of less than 12 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) 1 year. It further provided that in case of individual experience of retail trade petroleum products will include experience of having worked as Manager in a Retail outlet or coco contractor. The Certificate produced by respondent No. 5 towards experience was an undated certificate issued by Minal Singhai stating therein that :
"vuqHko izek.k&i= izekf.kr fd;k tkrk gS fd Jherh ek/kqjh fla?kbZ ¼tSu½ iRuh Jh larks"k dqekj fla?kbZ ¼tSu½ vk;q 39 o"kZ fuoklh eqaxkoyh ftyk v'kksduxj ¼e-iz½ }kjk gekjs isVªksyiEi 'khy ¶;wy lsUVj fiijbZ ij esustj dh inoh ij iwoZ esa 3 o"kksZa rd yxkrkj dk;Z fd;k gSA ftlesa isVªksy] Mhty] ,oa yqozhdsV~l dk Ø; foØ; ,oa lHkh dkfeZdksa ds i;Zos{k.k dk dk;Z laHkkyrh Fkh A bl nkSjku lHkh lg;ksfx;ksa ds lkFk budk O;ogkj mRre jgk gS A ;s n`< fu'p; o mRre uSfrd pfj= okyh efgyk gSA eSa buds mTtoy Hkfo"; dh dkeuk djrh gwaA Hkonh;
'khy ¶;wy lsUVj ,Llkj isVªksyiEi fiijbZ izks- Jherh ehuy tSu^^ (18) Minal Singhai; as evident from letter of appointment franchise for selling Ms/HSD/Lubes/ Regn.No. MP-0695/A, was appointed on 28/05/2012.
And till 24/05/2012 as evident from said letter, the dealership was with the husband of respondent no.5, 13 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) which is evident from paragraph 1 of the letter of appointment which recites thus :
"Pursuant to your request vide Expression of interest dated 25/10/2011, we are pleased to confirm your appointment as a Frenchisee of Essar Oil Limited (the Company) for the Retail Outlet (R.O.) at Survey No.823/2/K, Village -Piprai, Taluka - Mungawali, Dist.
- Ashoknagar, Madhya Pradesh, in the place of Mr. Santosh Singhai with effect from 24/05/2012. This Letter of Appointment (LOA) outlines the broad terms and conditions that will apply to your Franchise and supersedes the appointment of Mr. Santosh Singhai"
(19) That husband of respondent No.5 transfers the dealership in favour of his brother's wife and though there no document to show that respondent No.5 was ever engaged by her husband as a manager on undated 3 years experience certificate by the retailer appointed on 28/05/2012. This act on the part of respondent No.5 smacks mischief, to gain additional retail outlet. In view whereof, it could not be established that respondent No.5 had the business experience of 1 year or more. Learned 14 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) Single Judge observing in paragraph 15 has relied upon the clarification given by the Corporation in their return, that the M/s Sheel Fuel Station was transferred to Smt. Meena Singhai on 24/05/2012 wherein application for closure of contract given by her husband on 25/10/2011, whereas the advertisement published on 22/07/2015, therefore, it cannot be assumed that experience certificate has been given by improper authority, committed an error in accepting the certificate to be a valid certificate as could have fetched any marks.
(20) That Clause 6(I) of the Brochure 01/03/2012 provides for Multiple Dealership Norms stipulating therein :
"(I): Relationship Clause for individual including Partnerships in a given 'family unit', consisting of a father, mother and unmarried brother(s) / unmarried sister(s), if the applicant is unmarried OR in a given 'family unit', consisting of spouse, unmarried son(s)/unmarried daughter(s), if the applicant is married - as the case may be.
None of these individuals would be entitled to a new dealership / distributorship of any Oil Company if any other individual in this 'family 15 W.A. No. 268/2017 (Smt. Anita Jain Vs. Indian Oil Corporation Ltd. and others) unit' already holds a dealership / distributorship or Letter of Intent (LOI) for dealership / distributorship of any Oil Company. Each partner of the applicant partnership firm has to individually satisfy the criteria as applicable for individuals stated above." (21) The impugned orders viz, order dated 30.03.2016 passed by the Corporation and the order dated 08/05/2017 passed in W.P. No. 2910/2016 when tested on the anvil of above analysis, cannot be approved of and therefore set aside. (22) The matter is relegated to the Corporation for fresh reassessment/reevaluation keeping in mind the findings above.
(23) Let decision be taken within a period of 3 months from the date of communication of this order.
(24) The appeal is disposed of in above terms. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
(11/04/2018) (11/04/2018)
shubh*
Digitally signed by SHUBHANKAR
MISHRA
Date: 2018.04.11 18:25:51 +05'30'