Yogendrasinh D Sisodiya vs Indian Oil Corporation on 10 July, 2018

[Cites 10, Cited by 0]

Gujarat High Court

Yogendrasinh D Sisodiya vs Indian Oil Corporation on 10 July, 2018

Equivalent citations: AIRONLINE 2018 GUJ 81

Bench: A.J. Shastri

       C/SCA/6021/2015                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6021 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE A.J. SHASTRI

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                         YOGENDRASINH D SISODIYA
                                   Versus
                          INDIAN OIL CORPORATION
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Appearance:
MR PRABHAV A MEHTA(2009) for the PETITIONER(s) No. 1
MR AKSHAY A VAKIL(5473) for the RESPONDENT(s) No. 1,2
MR KUNTAL A JOSHI(6269) for the RESPONDENT(s) No. 3
MR SP MAJMUDAR(3456) for the RESPONDENT(s) No. 3
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    CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                               Date : 10/07/2018

                                CAV JUDGMENT

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs :

Page 1 of 34 C/SCA/6021/2015 CAV JUDGMENT

"(A) Your Lordships may be pleased to issue writ of mandamus and/or writ in the nature of mandamus and/or appropriate writ, order or direction to quash and set aside order dated 28.11.2014 passed by the respondent -

corporation bearing No.SAO/GRT/06; and be further pleased to direct the respondent - Indian Oil Corporation Ltd. to grant LPG Distributorship at Gotri, District - Vadodara pursuant to advertisement dated 30.9.2013, in accordance with law.

B. Pending admission and final disposal of the present petition, Your Lordships may kindly be pleased to restrain the respondent - Indian Oil Corporation Ltd. and/or its agent and/or servants from issuing readvertisement and/or processing any other application for the purpose of LPG Distributorship at Gotri, District Vadodara pursuant to advertisement dated 30.9.2013, which is subject matter in issue of the present petition.

C. An exparte adinterim relief in terms of prayer (B) above may kindly be granted.

D. Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted."

2. The case of the petitioner is that an advertisement came to be issued by the respondent - Indian Oil Corporation Ltd. on 30.9.2013 for the purpose of awarding and allotting LPG distributorship at Gotri, Vadodara in the open category. The Page 2 of 34 C/SCA/6021/2015 CAV JUDGMENT petitioner, pursuant to this advertisement, has submitted his application with all requisite details and copies of the documents. In response thereto, correspondence took place between IOCL and the petitioner which indicates that the petitioner was also called upon to explain with regard to the concerned plot for the purpose of constructing godown facility and the said issue was resolved in view of the documentation which took place in the form of agreement of lease which was also produced before the authority. After series of stages, the petitioner was selected ultimately after verifying every details and vide letter dated 12.8.2014 written by respondent No.2, the petitioner was informed that petitioner has been selected and for the purpose of verification of credentials etc., appropriate security deposit was called upon to be produced. The same was also submitted by the petitioner and there is no dispute with regard to said position, as has been contended by the petitioner.

2.1 The petitioner further asserts that vide letter dated 21.7.2014, the petitioner was informed that draw for the purpose of distribution of LPG distributorship in which the petitioner was supposed to remain present. As a result of this, the petitioner did remain present which is indicated by communication dated 21.7.2014 as well as 12.8.2014. It is further the case of the petitioner that for the purpose of holding a plot, a lease in respect of plot for godown was also executed for a minimum period of Page 3 of 34 C/SCA/6021/2015 CAV JUDGMENT 15 years which was required and the said lease deed was executed on 17.10.2013 with one Mr.Kabhai Ranchhodbhai Chauhan, who happened to be the relative of the petitioner and the owner of the land bearing Block Survey No.262/2 mouje Karodiya sim, District - Vadodara. The petitioner further asserts in the petition that there is an approach road which is a private road passing through the land bearing Survey No.223 which is immediately adjacent to the leasehold plot of the petitioner and the same is a bitumen road. The petitioner as well as the original owner of land bearing Survey No.262 Paiki 2 is also having a right to ply on the said road for the purpose of approaching land bearing Block Survey No.262 Paiki 2. Even the Mamlatdar, after verification, has issued the certificate which is evidently makes it clear the aforesaid fact. Additionally, a statement before the MamlatdarcumMantri, Karodiya is also recorded which indicates a private approach road. So much so a panch kyas on 20.9.2014 drawn before the TalaticumMantri is also sufficient enough to indicate that there is an existence of approach road to the land which is a leasehold land of the petitioner.

2.2 It is further the case of the petitioner that petitioner is a soninlaw of Kabhai Ranchhodbhai Chauhan, who is the original owner of the said land bearing Block Survey No.262 Paiki 2 and Ranchhodbhai Nathaji Chauhan (Patel), who is the father of Kabhai, had inherited the said land with brother of Ranchhodbhai, namely, Jethabhai Nagjibhai Patel. Now, Page 4 of 34 C/SCA/6021/2015 CAV JUDGMENT that adjacent land bearing Revenue Survey No.223 from which that common use road is very much reflecting.

2.3 It is further the case of the petitioner that despite the aforesaid fact, the respondent No.2, with a malafide intent and with a view to cause harm to the legitimate rights of the petitioner, wrote a letter on 1.11.2014, whereby it has been stated that plots bearing Survey No.262/2 is accessible through only private road which is connecting through public road and the ownership of private road is not of the petitioner and not belonging to any of the family members of the petitioner. As a result of this communication, the petitioner was constrained to lodge a criminal complaint in the month of March,2015.

2.4 With respect to the said complaint, a panch kyas was registered on 20.9.2014 along with the map and certificate that there is an approach road from main road to the plot bearing Survey No.262 Paiki and it was very much informed to the respondent - corporation which fact is accepted by respondent - corporation. Said relevant documents including declaration is submitted by the petitioner to the authority, namely, the respondent - corporation. It was also clearly conveyed to the authority that there is an approach road which is not only used by original owner of the land bearing Survey No.262 Paiki 2 but, also by other villagers including the petitioner from decades together and with respect to Page 5 of 34 C/SCA/6021/2015 CAV JUDGMENT that, even a certificate dated 9.7.2014 was also submitted in which it is reflecting that even primary school No.2 is also having a very same approach road and, therefore, this factum of approach road is amply clarified by the petitioner before the authority. In addition to this, a further lease has also been executed on 24.10.2013 as well as 20.12.2014 which indicates clearly that there is an approach road to the land belonging to the petitioner.

2.5 It is further the case of the petitioner that for the purpose of dealing with an issue of dealership of LPG, the corporation has framed the guidelines for selection of regular LPG distributors. This is also by way of Bharat Petrloelum as well as Hindustan Petroleum including the corporation. It is the case of the petitioner further that by virtue of subclause (4) of clause 11(a) it is provided that plot of the land or ready LPG cylinder godown should be freely accessible through all whether motorable approach road (public road or private road connecting to the public road) and in this regard, the petitioner has categorically informed the authority that the approach road connecting the public road is very much available in case of the petitioner. However, despite the aforesaid circumstance which is undisputedly on record, on 28.11.2014 an order came to be passed by respondent authority whereby final LPT distributorship / LOI and the execution of distributorship etc. is refused only on account of the fact that ownership of private road is not Page 6 of 34 C/SCA/6021/2015 CAV JUDGMENT belonging to the petitioner / member family unit and hence, since not in the line of policy guidelines, the case of the petitioner is not possible to be considered and this impugned communication dated 28.11.2014 is made the subject matter of present petition under Article 226 of the Constitution of India.

2.6 The petition was originally entertained by this Court on 8.4.2015 and thereafter, vide order dated 23.7.2015 the aggrieved party was allowed to be joined as party respondent No.3 to the petition. An interim relief was earlier granted vide order dated 30.4.2015 which is ordered to be continued and the matter has come up for consideration before this Court on 30.6.2018. This Court on 13.6.2018 upon request of learned advocates for the respective parties, dealt with the matter finally in whcih Mr.Prabhav Mehta, learned advocate, has appeared for the petitioner and Mr.Akshay A. Vakil, learned advocate, has appeared for respondent Nos.1 and 2 and Mr.S.P.Majmudar, learned advocate, has represented respondent No.3, who have been extensively heard by this Court and upon their request, the matter has been taken up for final disposal at the admission stage.

3. Mr.Prabhav Mehta, learned advocate appearing for the petitioner, has vehemently contended that the decision delivered by the authority in discarding the case of the petitioner is not on a germane ground, Page 7 of 34 C/SCA/6021/2015 CAV JUDGMENT not in consonance with the guidelines which have been framed and applicable to the respondent - corporation itself and the said reason reflects clear malafide intent on the part of the authority and, therefore, such arbitrary and malafide act of the respondent deserves to be deprecated by quashing and setting aside the same. Mr.Mehta, learned advocate, has further submitted that by virtue of the guidelines, particularly subclause (4) of clause 11(a), it is clearly provided that there must be a motorable approach road either it is private or public, should be connecting to the public road and here is a case in which undisputedly an explanation was given to respondent authority along with all necessary documents to indicate that there is a continuous long standing private road available to the land of the petitioner and that private road is very much connecting to the public road which fulfills the clarificatory criteria mentioned in the guidelines and, therefore, ignoring such circumstance is nothing but a classic example of arbitrary exercise of jurisdiction. Mr.Mehta, learned advocate, has further pointed out that there is no such guideline, whereby there must be a exclusive ownership of private road and that is not the criteria and here is a case in which all voluminous documents submitted to the authority have indicated that undisputedly, there is a private road approachable to the land of the petitioner and it is abutting to public road and, therefore, when petitioner fulfills the criteria and the said circumstance is brought to the notice of the Page 8 of 34 C/SCA/6021/2015 CAV JUDGMENT authority by submitting cogent material, there is no justifiable reason for the authority to discard the request of the petitioner.

3.1 Mr.Prabhav Mehta, learned advocate, has further pointed out that there is a clear certificate issued by the authority on 31.12.2014 from which it clearly spelt out that there is an existence of road. As a result of this, the action on the part of respondent authority is not just and proper. For strengthening the submission, learned advocate has drawn the attention of this Court to the lease deed which reflects the common road. Additionally, the map has also been produced on the petition compilation on Page29 and along with that, there is a certificate issued by TalaticumMantri justifying the existence of common road. So much so that Mamlatdar incharge of the area has also issued the certificate in which the fact of existence of road is certified. When this be so, according to Mr.Mehta, learned advocate, there is hardly any justifiable reason to reject the request of the petitioner. Learned advocate has further drawn the attention to a specific agreement which is reflecting on Page33 and there are other documents which indicated on Page36 onwards that this road has been in existence which fact is not possible to be disputed.

3.2 Mr.Prabhav Mehta, learned advocate, has further drawn the attention of this Court to various clauses of guidelines which are attached along with Page 9 of 34 C/SCA/6021/2015 CAV JUDGMENT affidavitinreply and particularly, clause(viii) on page.68, wherein meaning of 'own' means having ownership of title of the property or registered lease agreement for minimum 15 years in the name of applicant or family member and here is a case, according to Mr.Mehta, learned advocate, since years together, this private road is not used which is connecting the land of the petitioner with main public road. Yet another clause (vii) has been relied upon by learned advocate for the petitioner on Pg.67 and by referring to second last paragraph of the said page, has contended that there is no requirement of private road by way of ownership and,therefore, the action on the part of respondent authority is absolutely unjust and improper. Learned advocate has further contended that since the guidelines are not suggesting the private road by way of ownership, there is hardly any justifiable reason to improve upon the stand by the authority dehors the guidelines. Hence, the order passed by the authority is not just and proper. Learned advocate has contended that sole object is to see that there must be availability and approachability to the land in question where the distributorship is to be given and that fact is clearly emerging from the record which is in consonance with the guidelines and as a result of this, the view taken by the authority is too technical just with a view to favour somebody and that is reflecting clearly from the record. On the contrary, according to Mr.Mehta, a policy is framed by the corporation vide Circular dated 15.4.2015 not Page 10 of 34 C/SCA/6021/2015 CAV JUDGMENT to take too technical or rigid view to deprive eligible person from the benefit of dealership and if that be so, according to Mr.Mehta, a bare minimum opportunity of hearing could have been given. Having not done so, the entire exercise is vitiated and the order in question is not in consonance with law.

3.3 Mr.Prabhav Mehta, learned advocate, has further contended that if the authority has taken into consideration any irrelevant aspect, non consideration of any relevant fact, these circumstances if existing, there appears to be clearly a jurisdictional error and, therefore, by virtue of a decision reported in (2009) 5 SCC 162, this jurisdictional error committed by the authority is required to be corrected.

3.4 Mr.Prabhav Mehta, learned advocate, has, relying upon a decision reported in(1975) 1 SCC 55, contended that this decision on the present case on hand is clearly reflecting error of jurisdiction and, therefore, the Court can certainly dwell upon it and set aside the impugned action. For the purpose of canvassing the submission, few other decisions have also been relied upon by learned advocate; (i) (1990) 3 SCC 752 (ii) AIR 1993 SC 1601 and (1994) 6 SCC 651 and contended that State action or the action of authority under Article 12 was akin to it must have in consonance with and on the touchstone of Article 14 of the Constitution of India. Learned advocate has contended that very same principle is reiterated in Page 11 of 34 C/SCA/6021/2015 CAV JUDGMENT case of Dwarkadas reported in (1989) 3 SCC 293 that all actions including contractual dealings are open to judicial review. Hence, there is clearly a justifiable circumstance in favour of the petitioner and ultimately requested that the order in question is required to be quashed and set aside. No other submissions have been made.

4. To meet with the stand taken by learned advocate for the petitioner, Mr.Akshay A. Vakil, learned advocate appearing for the respondent No.2, has vehemently objected to the stand of the petitioner and has contended that during the field verification, it was noticed by the authority that there is no exclusive private road available with the petitioner and, therefore, when this fact has been noticed by the corporation, the authority has justifiably passed an order. It has been contended by learned advocate that godown is sought to be established and set up on Survey No.262, whereas other persons' lands are Survey No.223 and there is no lease deed or any remote right on record by way of document which can suggest that petitioner and owner of Survey No.223 are having any consensus with regard to the use of the private road on document. By referring to Page 32, Mr.Vakil, learned advocate, has pointed out that with respect to land bearing Survey No.223, there is a court case and, therefore, in the absence of any clear right, title or interest over the private road attaching the public road, there is hardly any reason that petitioner can take the dealership without Page 12 of 34 C/SCA/6021/2015 CAV JUDGMENT fulfilling this criteria as a matter of right. Simply because application is accepted and processed further, that would not give any vested right to the petitioner to contend that unreasonably the benefit is deprived of. Hence, no case is made out by the petitioner and accordingly, the petition may be dismissed in limine.

5. Now, by virtue of joining party the respondent No.3 has been allowed to be joined during the course of proceedings, who is represented by Mr.S.P.Majmudar, learned advocate. According to Mr.Majmudar, learned advocate, admittedly as on 31.10.2013, there was no availability of private road with the petitioner and, therefore, at the time when the petitioner made an application, same was not fulfilling the criteria laid down in the guidelines. It is submitted that these guidelines are framed by the Central authority and, therefore, must be strictly construed. Learned advocate has contended that what is material is whether the petitioner is fulfilling the eligibility criteria as on 31.10.2013 and later fulfilling criteria would not give a licence to the petitioner to agitate and claim as a matter of right. Admittedly, there is no lease deed with respect to right of way. So much so that lessor, who executed the lease, was also not the owner of the private road and, therefore, when eligibility criteria itself is not observed by the petitioner at a relevant point of time, there is no material justifiable enough to cancel the order which has been Page 13 of 34 C/SCA/6021/2015 CAV JUDGMENT passed. There is no error committed by the authority which requires kind intervention of this Court.

5.1 Mr.S.P.Majmudar, learned advocate, has further drawn the attention of this Court to the petitioner's own declaration which is reflecting on Page32A in which the petitioner himself has admitted that with respect to private road, there is a court case and as such, there is no clear right available with the petitioner about the private road since the said private road is subject matter of controversy in a case which has been referred to, it is not open for the petitioner to contend that he is fulfilling all eligible criteria and he is entitled to the dealership.

5.2 Mr.S.P.Majmudar, learned advocate, to strengthen his submission, has relied upon two decisions delivered by the Apex Court reported in (2012) 8 SCC 216 (para.35) and (2009) 11 SCC 9 (Para.27) and has contended that no case is made out by the petitioner. Learned advocate reiterates that the petitioner is neither having registered document nor having any absolute right clearly over the land in question and since the land of the petitioner is not with any legitimate approach road, the petitioner does not fulfill clarificatory criteria and, therefore, the petition being devoid of merit, deserves to be rejected.

5.3 Mr.S.P.Majmudar, learned advocate, has contended Page 14 of 34 C/SCA/6021/2015 CAV JUDGMENT that the authority in the present case has applied its mind while exercising its powers and has also considered each and every material placed on record by the petitioner and has also arrived at a particular subjective satisfaction and, therefore, according to Mr.Majmudar, learned advocate, even if another view is possible, subjective satisfaction arrived at by the authority may not be substituted in extraordinary equitable jurisdiction. Learned advocate has further contended that equity in the background of this peculiar set of circumstance is not lean in favour of the petitioner. Accordingly, the petition to be dismissed by imposing the costs. Learned advocate, in support of his case, has relied upon the decisions reported in (2012) 8 SCC 216, (2009) 11 SCC 9 and also on the plaint of Special Civil Suit No.562 of 2014.

6. In rejoinder to this, Mr.Prabhav Mehta, learned advocate, has practically reiterated the very same contention, except two aspects (i) by the circular, a proposition is propounded that not to take rigid or too technical approach and (ii) a bare minimum opportunity ought to have been given. Hence, the order in question being arbitrary tilted with malafides, deserves to be quashed and set aside, in the interest of justice.

7. In surrejoinder to this, Mr.Majmudar, learned advocate, has pointed out that arguments canvassed by the petitioner are selfcontradictory, dehors the Page 15 of 34 C/SCA/6021/2015 CAV JUDGMENT pleadings and apart from that, the petition has been moved after issuance of LOI and practically, after a period of more than 4 months and this being peculiar facts, no equitable jurisdiction be exercised, in the interest of justice.

8. As against this, Mr.Mehta, learned advocate, has reiterated that all the relevant documents and certificates were provided to the IOC authority and, therefore, the case of the petitioner be dealt with afresh as an alternate submission and by issuing necessary direction,the authority may be requested by the Court to reconsider the issue with respect to the impugned communication and request of the petitioner.

9. With this background of submissions made by learned advocates appearing for the respective parties and having gone through the material on record in the context of submission, this Court is of the opinion that following circumstances which are prevailing on record are prevailing on record are not possible to be unnoticed while taking a particular decision in the present case. Hence, following issues which are reflecting on the record have got some bearing upon the ultimate outcome, hence, analyzed the same in following terms :

(1) First of all, it is reflecting from the application which has been submitted in format which bears the date '29.10.2013' with a specific Page 16 of 34 C/SCA/6021/2015 CAV JUDGMENT undertaking in the following manner :

"I, Sisodiya Yogendra D., son of Shri Sisodiya Dhanesinh R., hereby confirm that the information given above is true and correct. Any wrong information / misrepresentation / suppression of facts will make me ineligible for this LPG distributorship.

Place :Vadodara Signature of applicant Sd/ Date : 29/10/2013 Name of applicantSisodiya Yogendrasingh D. List of Enclosures:

1. Copy of Eligibility Certificate for the category applied.

2. Demand Draft No.59514 dated 23.10.2013.

3. Notarized Affidavit in originals per the format in Appendix1.

4. Notarized Affidavit in originals per the format in Appendix2.

5. Total number of pages of the application including attachments."

(2) It is also noticed from clauseiv of the declaration by the applicant mentioned in Para.14 just before the undertaking format which reads as under:

"14. DECLARATION BY THE APPLICANT a. I am aware that eligibility for LPG distributorship will be decided based on the information given in the application above. On verification by the Oil Company if it is found that the information given by me is incorrect/false/misrepresented then my candidature will stand cancelled and I will be declared ineligible for LPG Distributorship.

b. I also confirm that I am in possession of the supporting documents in original in respect of the information given by me in this application and if selected, failure to present Page 17 of 34 C/SCA/6021/2015 CAV JUDGMENT these documents in original will result in cancellation of selection due to submission of false/unsupported information in this application.

c. I am fully aware that if I am unable to provide duly approved LPG Godown by the office of Chief Controller of Explosives (PESO) and or Showroom as per the Oil Company's standard layout, then the allotment of distributorship made to me will be cancelled.

d. I am fully aware that I will not be appointed as LPG distributor if I am employed. I shall have to resign from the service and produce proof of acceptance of my resignation from my employer before issuance of Letter of Appointment.

e. I am fully aware that I will have to personally manage the operation of the LPG Distributorship.

f. I am aware that if married, my spouse will be coowner i.e 50% partner of LPG Distributorship with me and I am not permitted to enter into partnership with anyone other than my spouse.

g. That, if selected, I undertake that I will be depositing an interest free security deposit as per the policy of the corporation.

h. I confirm that I fulfill the eligibility criteria for the LPG distributorship I have applied for in this application."

So, a specific representation has been made by the petitioner while applying that he is fulfilling the eligibility criteria.

(3) It is further reflecting from the lease agreement dated 17.10.2013 just before few days from the date of application in which also a categorical Page 18 of 34 C/SCA/6021/2015 CAV JUDGMENT mention is made on internal page2 of the lease deed in Para.3 which indicates that it is an admitted position prior to submission of application that executants of the deeds have no road or coming and going from agricultural land bearing Survey No.262 Paiki 2. But merely an adhoc arrangement is reflecting. Said paragraph contained in the lease deed reads as under :

"Since we do not have the road from coming and going from the agricultural land bearing Survey No.262 Paiki 2, the father of the lessee late Shri Ranchhodbhai Nagjibhai Patel during his life time on 17.1.1984 had taken in writing from Jethabhai Nagjibhai Patel for common use of 20 ft. wide road in the western direction of the Survey No.223, admeasuring 13456 sq. Mtr. And hence in this way he has got for use of the said road. And after that due to the death of my father, the said common road, we have got right to use the said road. All the said rights, we transfer to the Lessee by this agreement of leave and licence for which there will not be any objection to our heirs, successors etc. as per the following terms and conditions."

(4) Yet another circumstance which is not possible to be unnoticed by this Court is that a simple agreement on a stamp paper of Rs.10/ appears to have been executed on 17.11.1984 reflecting on page33 which also indicates that it was merely an arrangement of passing and repassing. Now, this agreement has no reference in the original application at the time when submission was made.

(5) Even a material document which is reflecting on Page 19 of 34 C/SCA/6021/2015 CAV JUDGMENT page35A, a typed copy, a communication dated 1.11.2014 in which this very petitioner has declared before IOC that ownership of private roads not of him or not belonging to any of his family members. These lines which are undisputedly reflecting that the petitioner has no ownership right of private roads nor belonging to any of the family members.

(6) Yet another circumstance which is visible is a lease agreement separately written and executed on 24.10.2013 in which also no clear reference of the existence of private road with the petitioner.

(7) On the contrary, an attempt appears to have been made to come out from the aspect of ineligibility, a document appears to have been executed and registered on 20.12.2014 at 11.50 a.m. pointing out by making reference in schedule about 20 ft. road in the western side of Survey No.223 and thereby, made an attempt to incorporate in the original lease deed and existence of road. This corrected lease deed reflects that as on date of the application, the petitioner was not fulfilling the relevant criteria which was demanded from the petitioner.

(8) On the basis of aforesaid material when it is clearly reflecting and admitted that there was no ownership right over the private road, few relevant clauses contained from and guidelines for selection of regular LPG distributors framed and prescribed by the corporation to be kept in mind. Said relevant Page 20 of 34 C/SCA/6021/2015 CAV JUDGMENT clause (vii) reflecting on page67 is reproduced hereinafter :

"... The plot of land or ready LPG cylinder storage should be freely accessible through all whether motorable approach road (public road or private road connectingroad connecting to the public road). In case of private road connecting to the public road, the same should belong to the applicant/member of family unit (as per the multiple dealership/distributorship norm criteria) as per the ownership criteria defined below. In case of ownership/coownership by family member(s) in respect of such private road, consent letter from respective family member(s) will be required.

(9) On the basis of aforesaid clause, even explanatory note has also been mentioned on page68 as to what is the meaning of 'own'. This is since relevant is reproduced hereinafter :

"'own' means having ownership of title of the property or registered lease agreement for minimum 15 years in the name of applicant or family member (as defined in multiple distributorship norm of eligibility criteria) as on the last date for submission of application as specified in the advertisement or corrigendum (if any). In case of ownership/coownership by family member(s) as given above, consent in the form of a Notarized Affidavit from the family member(s) will be required.

In case the land is jointly owned by the applicant / member of 'Family Unit' (as defined in multiple dealership / distributorship norm) with any other person(s) and the share of the land in the name of applicant / member of the 'Family Unit' meets the requirement of land including the dimensions required, then that land for godown / showroom will also qualify for Page 21 of 34 C/SCA/6021/2015 CAV JUDGMENT eligibility as own land subject to submission of 'No Objection Certificate' in the form of an Notarized Affidavit from other owner(s)."

10. On the basis of aforesaid criteria which are prescribed, there appears to be a clear circumstance that as on the last date of application, the petitioner was not fulfilling the eligibility criteria and as such, on the basis of these documents which are produced by the petitioner and the respondent on record, there appears to be improvisation by the petitioner to come out from his ineligibility as on the date of the application.

11. The Court found that what has been required is that candidate must fulfill the eligibility criteria as on last date of submission of application and, therefore, any subsequent development would not cure the defect of the candidate concerned and here is a case in which it is found that the petitioner was not fulfilling the main criteria which is reflecting in aforesaid clause. It is further evident that even this road was also a subject matter of Panch Kyas of Special Civil Suit No.562 of 2014 which is very much pending before the competent court and there is also a statement recorded in clear terms by Talati of village Karodiya that the suit decision will be binding and that involves the controversial road, as well and as such, on the basis of aforesaid set of circumstance when the authority has come out with a case and rejected the request vide communication dated 28.11.2014, there appears to be no germane Page 22 of 34 C/SCA/6021/2015 CAV JUDGMENT reason to hold the same as bad or erroneous. The position would not be altered even if opportunity is given to explain, since on the basis of the record of the petitioner himself, there was no ownership belonging to the petitioner or of any family members with respect to the private road and as such, keeping in conformity with the guidelines which are prescribed which are not in challenge since the decision is taken, the same appears to be in consonance with it.

12. Additionally, the Court is also mindful of the circumstance that the criteria which are to be fixed for the purpose of dealing with their own issues interse, this Court has no jurisdiction to alter or add anything to the terms which are specifically prescribed. Only the decisionmaking process whether just or proper is to be evaluated and no terms of the contract are to be tinkered with in exercise of extraordinary jurisdiction and as such, keeping in mind this peripheral jurisdiction of this Court, this Court is unable to accept the submissions made by the learned advocate for the petitioner.

13. An attention is tried to be drawn of the Court by citing one of the decisions of the Apex Court in case of Podar Steel Corporation v. M/s. Ganesh Engineering Works & Ors., reported in (1991) 3 SCC 273 and by referring to Para.6, a contention is tried to be raised that it must be open to the authority to deviate from and not to insist strict literal Page 23 of 34 C/SCA/6021/2015 CAV JUDGMENT compliance of the condition in appropriate cases. The authority should be flexible, as has been suggested by learned advocate, while arriving at a decision. But while going through the entire facts of the said case, this Court is of the opinion that the judgment is of no avail to the petitioner inasmuch as here is a case in which there is a specific clause contained in the guidelines and upon compliance, said norms prescribed for the purpose of issuing dealership, the corporation has to observe the same and as such, the decision which has been taken in case of the petitioner cannot be said to be outside the scope of terms of the guidelines. In fact, the Court found that it is an admitted position that as on the last date of submission of application, there was no ownership rights either with the petitioner or with any of the family members with respect to the private road which is the requirement of norms and it has also been found that after submission of application, an attempt is made to cover up the said ineligibility by entering into lease agreement for correction or insertion of clause with respect to the private common road and this attempt is nothing but a clear example of making an attempt to over come the ineligibility which the petitioner is possessed.

14. In view of aforesaid peculiar set of circumstance, the judgments which have been relied upon by the learned advocate appearing for the private respondent are having some force which cannot be overlooked by this Court. The first judgment which Page 24 of 34 C/SCA/6021/2015 CAV JUDGMENT has been relied upon is a decision of the Apex Court in case of Sorath Builders v. Shreejikrupa Buildcon Limited & Anr., reported in (2009) 11 SCC 9, in which the concerned candidate did not submit the required documents within the stipulated date as a part of prequalification documents and in that case, the Apex Court has observed like this in Para.26 and 27 which are, since relevant, quoted hereinafter :

"26. In W.B.State Electricity Board v. Patel Engineering Co. Ltd. And Others,, reported in (2001) 2 SCC 451, this Court while considering the issue with regard to the process of tender held:

"where bidders who fulfill prequalification alone are invited to bid, adherence to the instructions cannot be given a goby by Page 10 of 12 branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favoritism which are totally opposed to the rule of law and constitutional values".

It was also held:

"the very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty".

It was further held:

"the contract is awarded, normally, to the lowest tenderer which is in public interest and that it is equally in public interest to adhere to the rules and conditions subject to which bids are invited".

27. Following the aforesaid legal principles laid down by this Court, we are of the considered Page 25 of 34 C/SCA/6021/2015 CAV JUDGMENT opinion that the respondent no. 1 was negligent and was not sincere in submitting his pre qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Prequalification documents were received by the respondent no. 2 University only after time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required to be adhered to strictly, and therefore, the respondent no. 2 University was justified in not opening the tender submitted by respondent no. 1 on 01.12.2008, which was late by three days. According to us no grievance could also be made by the respondent no. 1 as lapse was due to his own fault."

15. Now, keeping this principle in mind, here also it is reflecting that on the last date of submission of application, there was no mention with regard to the private road and admittedly, even at a subsequent date when an attempt is made to cover up the issue, there also ownership of private road is completely missing which was the valid requirement of the respondent - oil corporation and after a specific declaration of the petitioner himself that private road is not belonging to the petitioner by way of ownership nor of any of the family members. When that be the situation prevailing on record, it cannot be said that action on the part of respondent - oil corporation is erroneous, arbitrary or interfered with in any manner.

16. Yet another decision which has been cited by Page 26 of 34 C/SCA/6021/2015 CAV JUDGMENT learned advocate appearing on behalf of the private respondent is in case of Michigan Rubber (India) Ltd. v. State of Karnataka & Ors., reported in (2012) 8 SCC 216. Relevant paragraphs contained in the said decision has also some persuasive value to arrive at a just decision and, therefore, Para.35 is quoted hereinafter :

"35. As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable. We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. The Courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the case on hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, the CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding prequalification criteria and the evaluation criteria. On perusal of all Page 27 of 34 C/SCA/6021/2015 CAV JUDGMENT the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide."

17. Another limb of argument which has been canvassed by the learned advocate for the petitioner is that there is a noncompliance of principle of natural justice and no detailed discussion has taken place in an impugned communication. It is a trite law that if one reason cogent enough is sufficient then, no other elaboration is required and apart from this, it has been laid down by several decisions that principles of natural justice is not to be stretched to that level that it can be treated unruly horse. As a result of this, this Court is of the considered opinion that even after granting an opportunity of personal hearing also, the position with respect to nonavailability of private road by way of ownership would not be altered. This decision cannot be quashed on the ground of any violation of natural justice. On the contrary, valid reason sufficient enough is given which is in consonance with the guidelines governing an issue of grant of dealership and further, enough opportunity of representation appears to have been give and after submission of the documents which have been tried to be pulled on by the petitioner, ultimate decision is taken and, therefore, it cannot be said in any manner that there is any violation of principles of natural justice.

Page 28 of 34 C/SCA/6021/2015 CAV JUDGMENT

18. So far as the contention with respect to the civil suit is concerned, of course, it has no direct bearing in any form over this case, however, the petitioner himself has produced two documents by virtue of which it can be culled out that this subject matter of a private road is an issue entangled in SCA No.562 of 2014 which is very much pending and the documents at page nos.31 and 32 are sufficient enough to indicate that it has got some nexus with the civil suit and as such, when this be so, there is hardly any circumstance which can permit this Court to believe that private road has no consequences while deciding an issue of dealership to the petitioner. On the basis of available record since this be the position, the Court cannot introduce any suggestion in the direction of reading the guidelines in a convenient mode in which the petitioner wants to read and as such, no case is made out by the petitioner. Law on the issue of principle of natural justice is quite vogue bynow and reference can be made of some of the observations. One of such decisions is case of the Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. v. Ramjee, reported in (1977) 2 SCC 256. Relevant observations of the said decision are in Para.13 which are reproduced hereinafter :

"13. Shri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of Art.311 of the Constitution this Court has Page 29 of 34 C/SCA/6021/2015 CAV JUDGMENT interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with 'the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity. Shri Gambhir cited before us the decisions in Teredesai(1); Management of DTU(2) and Tandon(3); and one or two other rulings. The ratio therein hardly militates against the realism which must inform reasonable opportunity' or the rule against bias. If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision making body, after fair and independent consideration, reaches a conclusion which tallies with the recommen dations of the subordinate authority which held the preliminary enquiry, there is no error in law. Recommendations are not binding but are merely raw material for consideration. Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons" of natural justice. We agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly why it takes the decision it does unless the circumstances are so clear that the concluding or decretal part of the order speaks for itself even regarding the reasons which have led to it. It is desirable also to communicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the representation of the delinquent may be pointed and meaningful."

18.1 Yet another decision on the issue of principle of natural justice, the Apex Court in case of Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati & Ors., reported in (2015) 8 Page 30 of 34 C/SCA/6021/2015 CAV JUDGMENT SCC 519. Relevant observations are in Para.40 which is reproduced hereinafter :

"40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where nongrant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing."

18.2 In view of aforesaid position, it is quite clear that the action cannot be said to be unjust or arbitrary and as such, not assailable.

19. Yet another circumstance which has to be kept in mind is that pursuant to the impugned communication dated 28.11.2014, redraw was conducted for this very location and successful candidate of that redraw has already been given a Letter of Intent on 16.3.2015 prior to the filing of the present petition. As is evident from the petition compilation that the petition has been affirmed on 2.4.2015, presented in the office for order on 6.4.2015 and the notice has been issued on 8.4.2015 and, therefore, prior to the Page 31 of 34 C/SCA/6021/2015 CAV JUDGMENT filing of the petition, Letter of Intent has already been issued.

20. Keeping all these circumstances in mind and in view of this pecularity, in which, undisputedly the petitioner is, at a relevant point of time, not holding any clarificatory criteria, the authority cannot be said to have acted in any illegal manner. On the contrary, the authority has acted in consonance with the guidelines which are uniformly applicable in respect of the allotment of dealership and, therefore, conjoint reading of these circumstances lead to only one conclusion that this is not a fit case in which any extraordinary jurisdiction equitable in nature to be exercised.

21. Basically, this issue is incidentally arising out of a contractual matter and related to it and, therefore, in view of the settled position of law, unless and until there is any stinking arbitrariness or any malafide exfacie visible, normal trend is not to encourage such kind of attempt to invoke extraordinary jurisdiction of this Court. On perusal of the entire record has amply made it clear that this is not a fit case in which any extraordinary jurisdiction is possible to be exercised. The aforesaid proposition of law is culled out from the decision of the Apex Court in case of Satya Pal Anand v. State of Madhya Pradesh & Ors., reported in (2016) 10 SCC 767, relevant observations of which are in Para.25 which are reproduced hereinafter:

Page 32 of 34 C/SCA/6021/2015 CAV JUDGMENT

"25. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extraordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Justice Dipak Misra. We respectfully agree with that view."

22. In view of this position which is prevailing on record on the issue of exercise of jurisdiction, this Court is of the considered opinion that no case is made out by the petitioner. As a result of this, the petition being devoid of merit, deserves to be dismissed and accordingly, the same is dismissed. Notice is discharged with no order as to costs. Interim relief granted earlier shall stand vacated.

(A.J. SHASTRI, J) FURTHER ORDER After the pronouncement of the judgment, learned advocate appearing for the petitioner has requested Page 33 of 34 C/SCA/6021/2015 CAV JUDGMENT the Court to grant some time so as to enable the petitoner to approach higher forum, to which other side has raised the objection but, not much resistance.

Since the interim relief has been operative since long, the Court deems it proper to grant 4 weeks' time, with no further extension, so as to enable the petitioner to approach higher forum.

(A.J. SHASTRI, J) V.J. SATWARA Page 34 of 34

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