Gauhati High Court
Bina Das vs Union Of India And Ors on 23 February, 2012
Author: Amitava Roy
Bench: Amitava Roy, P.K.Musahary
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM;NAGALAND;MEGHALAYA;MANIPUR;
TRIPURA; MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 340 OF 2011
Smti. Bina Das,
Wife of Sri Bokul Das,
Of Kalibari Road, P.O.& P.S. Hojai,
Dist- Nagaon, Assam
......APPELLANT
-Versus-
1. Union of India,
Represented by the Secretary to the
Government of India in the Ministry of
Petroleum and Natural Gas, New Delhi.
2. Bharat Petroleum Corporation Ltd.
(A Government of India Enterprise)
Having its registered office at Bharat Bhawan,
4 & 6 Currimbhoy Road.
3. The Territorial Manager,
Raiganj Territory (LPG)
Bharat Petroleum Corporation Ltd.,
Panisalahat, Raiganj
Uttar Dinajpur-733134
4. Area Manager,
Bharat Petroleum Corporation Ltd.,
Ananda Path, House No.1,
R.P. Road, Behind MLA Hostel,
Dispur, Guwahati-6, Assam
5. Selection Committee,
Represented by the Secretary,
C/O Territorial Manager,
Raiganj Territory (LPG)
Bharat Petroleum Corporation Ltd.,
Panisalahat, Raiganj
Uttar Dinajpur-733134
6. Smti Shilpa Khakholia,
Wife of Sri Naresh Agarwal,
Resident of JK Kedia Road, Hojai,
Near LIC Branch Building,
District- Nagaon, Assam
..... RESPONDENTS
WA 340/2011 Page 1 of 43
PRESENT HON'BLE MR. JUSTICE AMITAVA ROY HON'BLE MR. JUSTICE P.K.MUSAHARY For the appellant : Mr. PK Goswami, Mr. AC Borbora, Mr MK Choudhury, Sr. Advocates Mr M Dutta, Mr A Barkataki, Advocates For the respondents : Mr SS Dey, Mr M Nath, Mr DP Borah, Advocates Mr S Baruah, Central Govt.
Counsel
Mr PJ Saikia,
Advocates
Dates of hearing : 19.1.2012, 20.1.2012,
23.1.2012 & 24.1.2012
Date of judgment : 23.02.2012
JUDGMENT & ORDER
(CAV)
Amitava Roy, J
The award of LPG Distributorship at Hojai, District- Nagaon under Open (Women) category made by the respondent Corporation in her favour having been annulled by the judgment and order dated 23.9.2011 rendered in WP(C) No. 1425/2011 instituted by the respondent No.6 herein, the appellant being aggrieved, is in appeal.
WA 340/2011 Page 2 of 43
2. By order dated 23.11.2011, notice had been issued in the present appeal and after hearing the learned counsel for the parties, as an interim measure, it had been directed that the aforementioned settlement would not be interfered with.
3. We have heard Mr PK Goswami, Senior Advocate assisted by Mr AC Borbora and Mr MK Choudhury, Senior Advocates for the appellant; Mr S Baruah, learned Central Govt. counsel for the respondent No.1; Mr PJ Saikia, Advocate for the respondent Corporation and its office bearers and Mr SS Dey, Advocate for the respondent No.6 ( writ petitioner).
4. A skeletal recitation of the rival pleadings would assist better appreciation of the arguments made. In the narration to follow Smt. Bina Das who had been impleaded as respondent No.6 in the writ petition would be referred to as the appellant and Smt. Shilpa Khakolia, the writ petitioner as the respondent No.6. 4A. The respondent Corporation vide its advertisement dated 1.12.2009 published in the English daily "The Assam Tribune" solicited offers from eligible candidates, amongst others, for the settlement of LPG Distributorship at Hojai, District--Nagaon under OP(W) category. The respondent No.6 and the appellant along with others offered their candidature and claimed to have WA 340/2011 Page 3 of 43 submitted the essential documents in terms of the advertisement and other tender stipulations, whereafter, they were called for the interview on 15.12.2010 which they attended. They have asserted that all the originals of the essential documents were enclosed by them with their applications extending their offer. On the very same date i.e. 15.12.2010, at the end of the interview, a merit list was prepared by the Selection Committee before which the candidates had appeared and in the panel prepared in order of merit, the respondent No.6, the appellant and one Nurur Nehar Choudhury were placed inter-se as hereunder:
Sl. Name Total marks secured Position in
the merit
list.
_________________________________________________________________________
28. Smt. Bina Das (appellant) 93.33 1st
12. Shilpa Khakolia (respondent No.6) 92.37 2nd
26. Nurur Nehar Choudhury 91 3rd
5. Referring to Clause-4.4 of the Brochure on Selection as well as Clause-2(e) of the advertisement, the respondent No.6 asserted that as at the time of submitting her (appellant) candidature her husband being a member of a "family unit" as defined in Clause-4.4 had already entered into a Memorandum of Understanding with STATFED on 20.7.2004 for operating LPG WA 340/2011 Page 4 of 43 Distributorship at Hojai for a period of 10 years, she was disqualified from participating in the process and that her selection for the impugned settlement is thus obviously invalid. Further, the appellant having obtained the distributorship by furnishing wrong informations as well as by suppressing correct facts, her candidature in terms of Clause-4.5 of the said Brochure was liable to be cancelled. The respondent No.6 also averred that the appellant had offered the same plot of land, as required as per para 12 of the advertisement and para 9 of the Brochure, on which there was a godown already provided by her husband for storage of LPG cylinders of the IOC/ STATFED pursuant to the agreement dated 20.7.2004. Licence No. G/EC/AS/06/230 dated 9.3.2005 issued by the Deputy Chief Controller of Explosives, Guwahati Sub-Circle Office, Guwahati granted to the Branch Manager, STATFED, Hojai Branch for possession of cylinders filled with compressed gas in the said godown was also referred to by her to indicate the identicalness of the land covered by Dag No. 183, Patta No.9, Village/ Town- Hojai, P.S. Hojai, Nagaon on which the said godown stood. According to the respondent No.6, thereby the appellant suppressed the fact that the said land had already been allotted in favour of the STATFED by her husband, thus, rendering her candidature non-est. She also insisted that this land is covered by annual patta and recorded in the name of one Sri Prafulla Singh, son of Late Dayal Singh and Smt. Kotheloi Devi, wife of Late Dayal WA 340/2011 Page 5 of 43 Singh and that neither the appellant nor any member of her family was the owner thereof though it had been mentioned in her application that the said land would be utilized for the purpose of godown for storage of LPG cylinders at Hojai. The respondent No.6, thus, alleged suppression of material facts in this regard by the appellant inspite whereof she had been selected.
6. Referring to Clause-14.2 of the Brochure pertaining to allocation of marks on various parameters based on informations/ statements to be furnished/ made, the respondent No.6 claimed to be the absolute owner of a plot of land measuring 8287.5 Sq. ft. covered by Dag No. 928 and 361 of Periodic Patta No. 175 of Hojai Town having valid title therein by virtue of a registered sale deed No. 4395 dated 29.12.2009 which was produced before the Selection Committee at the interview and for which she was awarded 25 marks as contemplated. She avowed that the appellant, however, did not furnish any registered sale/ lease/ gift deed or evidence of mutation of any suitable land owned by her with clear title therein before the Selection Committee at the interview and, thus, was not entitled to 25 marks in that regard. According to this respondent, the appellant, even if her candidature inspite of the suppressions and mis-informations was entertainable, she was entitled at the most to 18 marks on this count. The respondent No.6 alleged that the Selection Committee, WA 340/2011 Page 6 of 43 however, gave a complete go-bye to the mandate of the stipulations prescribed and illegally awarded 25 marks to the appellant and adjudged her to be the most preferred candidate for the settlement of LPG Distributorship at Hojai.
7. Adverting to Clause-14 and 14.2 of the Brochure furnishing the guidelines for allocation of marks in respect of the capacity to arrange finance, the respondent No.6 alleged that most of the Fixed Deposit Receipts (for short, „FDR‟) annexed by the appellant in her application were neither free nor unencumbered not only on the date of the advertisement and the application but thereafter also as those had been duly pledged with the Bank (s) against the financial assistance availed of by "Ganesh Industries"
owned by her husband Bakul Das. According to her, the documents including the FDRs in original were not produced by the appellant at the interview but despite that she was awarded/ allocated 35 marks.
8. The respondent No.6 claimed to have relied upon free and unencumbered FDRs and other documents to unassailably establish her financial solvency, but she was awarded only 34.2 marks. She, therefore, alleged that the Selection Committee had shown undue favour to the appellant. The respondent No.6 also asseverated lack of any training of the appellant to conduct the WA 340/2011 Page 7 of 43 distributorship as required and claimed herself to be sufficiently equipped in that regard, thus, projecting her to be a more suitable candidate in comparison. Reiterating that the appellant‟s candidature in terms of the stipulations contained in the advertisement and the Brochure on Selection of Bharat Gas (LPG) Distributors (also being referred to as „Brochure‟) was invalid in view of the apparent false statements and suppression of relevant facts in her application, the respondent No.6 contended that her (appellant) selection is illegal, arbitrary and discriminatory in violation of her (respondent No.6) legal and constitutional rights.
9. The respondent No.6/ writ petitioner in order to further consolidate her stand, by an additional affidavit brought on record a copy of the Licence No. G/EC/AS/06/230 (G) 16809 dated 9.3.2005 for permitting storage of gas in cylinders on a plot of land under Dag No. 183, Patta No. 9, Village/ Town and Police Station Hojai, District Nagaon. She provided as well the details of the Fixed Deposit Receipts and the NSCs offered by the appellant which in fact were encumbered having been pledged to the Bank as referred to therein.
10. In their counter, the respondent Corporation and its impleaded officers categorically denied that the appellant was not a deserving candidate for selection for the settlement eventually WA 340/2011 Page 8 of 43 awarded to her. They asserted that the candidature of the contending tenderers was correctly assessed and that the appellant was rightly allotted the marks in terms of the tender stipulations. The answering respondents denied the allegation of mis- representation and/or suppression of material facts by the appellant as well as the imputation of want of working experience levelled by the respondent No.6/ writ petitioner. Detailing their stand, they further averred that a Committee comprising of three senior officials headed by the Deputy General Manager (LPG- Strategy) Mumbai, Manager Marketing Services (Retail) Kolkata and Territory Manager (LPG) Raiganj, who are experts in their fields, had recommended candidates in order of preference on a consideration of all relevant materials in connection therewith as well as on their personal interview.
11. Apropos the allegation of ineligibility of the appellant on the ground of subsisting distributorship of her husband Bakul Das, the respondents asserted that on official enquiries made by them, M/s IOCL vide their letter NEISCO/LPG/02/GEN dated 17.1.2011 confirmed that it does not have any distributor named Bakul Das at Hojai. The answering respondents clarified that M/s Statfed Indane Gas Agency had been commissioned under M/s STATFED, an Assam Government enterprise which got dissolved after its liquidation. That M/s IOCL has confirmed as well that the Statfed WA 340/2011 Page 9 of 43 Indane Gas Agency at Hojai stood terminated after liquidation of STATFED was highlighted as well.
12. Referring to the application filed by the appellant seeking the distributorship, the respondent Corporation averred that therein she had disclosed that she owns under the „family unit‟ three lands. It was stated further that apart from the land alleged to be encumbered and belonging to her husband, she offered two other plots which were found to be suitable for setting up a LPG godown and resultantly, the Letter of Intent dated 21.2.2011 was issued to her with instructions to make available the LPG godown in the selected plot of land measuring 27 mtrs. X 26.12 mtrs. for storing LPG cylinders. Reiterating that the selection had been made in a fair and transparent manner, the respondents maintained that during field verification the land offered by the appellant at Dag No. 717 Patta No. 213, Mouza Lanka was found to be suitable and, accordingly, she was advised to get necessary statutory approvals following which she obtained a No Objection Certificate from the office of Bhalukmari Gaon Panchayat on 22.2.2011. That consequent upon scarcity of supply of LPG cylinders at Hojai and surrounding areas due to the then impending elections, the Sub Divisional Magistrate, Hojai, Sankardevnagar on behalf of the District Administration vide letter No. HJS 17/2011/20 dated 28.2.2011 had issued thereby a "NOC" for storage and sale of LPG WA 340/2011 Page 10 of 43 cylinders from the existing godown situated on the plot of land under Dag No. 183 Annual Patta No.9 of village Dakhin Golaghatiabasti, Hojai till the completion of construction of the new godown was underlined. The respondents stated that thereafter the Corporation issued a letter Ref. RT/LPG/LOI/HOJAI dated 1.3.2011 instructing her to get the explosives licence of the existing LPG godown revalidated/ changed in her name. The respondents further stated that in response to this communication, the appellant by her letter dated 2.3.2011 agreed to complete the construction of the new godown on the plot covered by Dag No. 713, Patta No. 213 as instructed.
13. Elaborating further the respondents maintained that the Deputy Chief Controller of Explosives vide letter Ref G/EC/AS/06/230 (G 16809) dated 4.3.2011 thereafter transferred the old licence in favour of the appellant upto 30.9.2013, whereafter, the District Administration directed the Corporation to release LPG cylinders to M/s Baba Ganesh Bharat Gas Service, Hojai, a proprietorship firm of the appellant. The respondents affirmed that the appellant also did take steps in obtaining selling/ trade licence, VAT registration etc. in her name for commissioning of LPG distributorship at Hojai. That the respondent Corporation had issued Letter of Appointment Ref. RT:LPG:Hozai dated 12.3.2011, whereafter, the distributorship was commissioned on WA 340/2011 Page 11 of 43 14.3.23011 under the name and style M/s Baba Ganesh Bharat Gas Service, Hojai was asserted as well.
14. Vis-a-vis the standoff on the facet of financial capability, the respondent Corporation clarified that in her application, the appellant declared to be possessed of funds amounting to Rs. 31,72,371.00 with the following break-up:
Savings Bank Accounts - Rs. 14,16,581.00
FDs/ NSCs etc. - Rs. 17,55,790.00
TOTAL - Rs. 31,72,371.00
The respondents clarified that at the interview the appellant could not produce some of the original FDs, NSCs and KVPs for which those were rejected outright and on fresh computation on the basis of the remaining documents/ records, her financial capability was assessed to be of Rs. 22,91,533.00 as hereunder:
Savings Bank Accounts - Rs. 14,16,581.00
FDs/ NSCs etc. - Rs. 8,74,952.00
TOTAL - Rs. 22,91,533.00
According to the respondents, in terms of the relevant Clause of the Brochure, available funds at the disposal of the appellant being above Rs. 20 Lakhs, she was awarded 30 marks. WA 340/2011 Page 12 of 43
15. The answering respondents denied the imputation that all the FDs/ NSCs of the appellant were encumbered. While refuting the allegation of want of working experience of the appellant, the answering respondents also controverted the charge that the certificates produced by her to that effect were false, the same having been affirmed to be authentic by the issuing authority. While reiterating that the selection of the appellant had been made in a fair and transparent manner, the respondents asserted as well that she had obtained the necessary permission to store and supply LPG cylinders from the then existing temporary godown on the plot in Dag No. 183 Patta No. 9, Hojai and that her distributorship has been catering to approximately 800 customers of the locality.
16. The appellant in her affidavit averred as well that though her husband had at some point of time entered into a Memorandum of Understanding with STATFED and pursuant thereto had executed a lease deed with regard to a plot of land measuring 4200 Sq. ft. at Dakhin Golaghatia Basti Kisamat covered by Patta No. 9 and Dag No. 183 for being used by the STATFED for its LPG distributorship, pursuant to the cancellation of its (STATFED) registration in the year 2006, it (STATFED) vide letter dated 16.6.2006 had withdrawn the lease deed. Thereby the WA 340/2011 Page 13 of 43 STATFED had informed her husband as well that the land and the LPG storage godown thereon was no longer required by it. That her husband at no point of time had been holding any dealership/ distributorship or LOI therefor under the IOC or any other PSU Oil Company was also affirmed. She confirmed to have offered three plots of land including the one under Dag No.183 Patta No.9 under Hojai Mouza and insisted that the eventual selection of the plot covered by Dag No. 713 and included in Patta No. 213, Mouza Lanka did not suffer from any infirmity and that she was validly awarded marks on this segment of her candidature in terms of the tender norms.
17. While claiming that the Fixed Deposit Receipts furnished by her were free from encumbrance, the appellant asserted as well that she was possessed of the necessary experience required for administering the distributorship in question. She denied as well the allegation of falsity of the certificates to the effect of her experience in such an enterprise. She stoutly denied the allegation of misinformation, misrepresentation and suppression of facts and questioned the bonafide of the challenge and contended further that the respondent No.6/ writ petitioner having participated in the process, it was impermissible for her to turn around and question the validity thereof.
WA 340/2011 Page 14 of 43
18. Responding to the additional affidavit filed by the respondent No.6/ writ petitioner, she reiterated that Licence No. G/EC/AS/06/230 (G 16809) which stood initially in the name of the Branch Manager, STATFED, Hojai Branch was last renewed in favour of the said licencee on 21/22.9.2010 for a period of three years. As on the necessary instructions from the District Administration/ Corporation she had applied for the transfer thereof in her name, the Deputy Chief Controller of Explosives vide his communication dated 4.3.2011 acceded to the said request. She, therefore, maintained that the said licence had not been granted to her on 9.3.2005 as was sought to be projected by the respondent No.6/ writ petitioner.
19. She avowed as well that there was no requirement in the advertisement dated 1.12.2009 under the heading "Capability to provide Finance" to the effect that the Fixed Deposit/ NSC/ KVP etc. to be offered should not be pledged/charged with any one. That she was rightly awarded marks on this count was iterated as well. Vis-à-vis the selection of the land for setting up of the godown for the distributorship, apart from reaffirming her stand in her original pleadings, she asserted that all documents in connection with the said plot of land offered by her had been verified by the Corporation through the Circle Officer and Sub-Registrar, Hojai and Lanka. That she had submitted an application to the Joint Chief Controller WA 340/2011 Page 15 of 43 of Explosives on 3.4.2011 seeking approval for construction of LPG storage godown on the land selected by the Corporation was mentioned as well.
20. By an additional affidavit the appellant has also brought on record that on 19.8.2011 her godown has been shifted to the plot bearing Dag No. 713 Patta No. 73 (old)/213 (new) of Village Pamgaon (Sankar Basti), District- Nagaon which was preceded by grant of licence by the Controller of Explosives, Government of India on 9.8.2011. That prior thereto, with due approval of the concerned authorities, her distributorship had started functioning in the existing godown on the land bearing Dag No. 183 located at Dakhin Golaghatiabasti Village, Hojai was underlined.
21. The affidavits-in-reply of the respondent No.6/ writ petitioner are/is substantial reiteration and reaffirmation of her earlier pleaded averments and, thus, for the sake of brevity do not warrant dilation thereof.
22. In the backdrop of the contentious pleadings outlined hereinabove, Mr Goswami has persuasively argued that the impugned judgment and order suffers from an apparent misappreciation of the underlying purport of the essential stipulations governing the tender process and this having vitiated the same to its core, it is liable to be interfered with in the interest WA 340/2011 Page 16 of 43 of justice. Maintaining that the plea of disqualification of the appellant in terms of Clause-4.5 of the Brochure on the ground that at the relevant point of time her husband held a distributorship under another PSU Oil Company vis-à-vis the godown on the land covered by Dag No. 183 Patta No.9, Village/Town-Hojai, P.S. Hojai, Nagaon had been rightly rejected by the learned Single Judge and that in absence of any appeal therefrom it is impermissible to reopen the same, the learned senior counsel has argued that Clause-13 (A1) of the Brochure was clearly comprised of two parts i.e. of godown and land, the two units being distinctly independent of each other leaving it to the willing tenderer to offer these together or in the alternative in compliance of the requirements engrafted therein.
23. Mr Goswami urged that it was accordingly that the appellant offered the godown situated on the land under Dag No. 183 Patta No.9, Village/Town-Hojai, P.S. Hojai, Nagaon as well as two other plots of land in the alternative for the consideration of the respondent Corporation in support of her candidature. Contending that the reference of a registered document vis-à-vis the land on which the godown existed was at best an inaccurate statement, the appellant being a lady uninformed of the legalese, the same by no means did amount to any deliberate misrepresentation and/or suppression of facts entailing invalidation of her offer as a whole. WA 340/2011 Page 17 of 43 Even otherwise, as following a scrutiny of the relevant documents/ records produced in original by the appellant at the interview and spot verification of the sites offered by her, the respondent Corporation being satisfied that her tender was in strict compliance of the criteria prescribed, awarded the distributorship to her, the plea of misrepresentation/ suppression of material facts to mislead it (respondent Corporation) is wholly misplaced, he urged. As the plot offered by the appellant covered by Dag No. 717 (ought to be Dag No. 717) Patta No. 213, Mouza Lanka was selected by the respondent Corporation as found to be suitable for the distributorship, reference of a registered deed vis-à-vis the land on which the godown existed is of no consequence, he argued. Vis-à- vis the aspect of financial capability of the candidates, the learned senior counsel pleaded that the respondent Corporation having rejected the Fixed Deposit Receipts etc. found by it to be encumbered and as on computation of the resources at her disposal sans the same was assessed to be adequate for her suitability judged by the relevant covenants of the Brochure, the learned Single Judge had erred in observing that on this count as well her offer ought to have been rejected being afflicted by the vice of misrepresentation/ suppression of facts. As verification of the original documents/ records in support of the disclosures made in the tender was an essential and integral segment of the selection process, the concerned authorities of the Corporation as experts in WA 340/2011 Page 18 of 43 the field of the business involved were satisfied on her adherence to the essential prescriptions of the Brochure and thus the challenge to her candidature as made is wholly untenable in law warranting interference with the impugned judgment and order, he pleaded. Mr Goswami maintained that as the appellant had disclosed all her documents in endorsement of the informations furnished in her tender and that those produced in original in the interview had been duly verified by the concerned authorities of the respondent Corporation for their satisfaction about the authenticity and sufficiency thereof, the plea that it (respondent Corporation) was misled to award the settlement is wholly misconceived. According to Mr Goswami, having regard to the disclosures made by the appellant in her tender as well as the documents/ records produced by her at the interview which stood reinforced, amongst others, by the findings on the spot verification by the officials of the respondent Corporation, she was rightly awarded the marks on all counts and, thus, the settlement in her favour as the most suitable candidate is unassailable in law and on facts. The learned senior counsel argued that the stipulations contained in the advertisement as well as the Brochure spelling rejection of the tender or cancellation of the award, as the case may be, have to be essentially construed as a whole and not in isolation and as in the instant case the respondent Corporation had consciously awarded the settlement to the appellant on a rigorous scrutiny of her tender, WA 340/2011 Page 19 of 43 the allegation of undue favour to her is unfounded. In the attendant facts and circumstances, it would also be wholly inexpedient and unwarranted for this Court to hazard a guess that the respondent Corporation had been deliberately misled by the appellant to procure the distributorship, he maintained.
24. Referring to the official communication made with the appellant inter alia by the Sub-Divisional Magistrate, Hojai permitting temporary storage and sale of the commodity involved at/ from the godown situated on the land under Dag No. 183 Patta No.9, Village/Town-Hojai, P.S. Hojai, Nagaon and the consequential steps taken by her from time to time including transfer of the explosives‟ licence in her favour duly granted by the concerned authorities, Mr Goswami has urged that the contextual facts do not disclose any gross failure of justice warranting interference of this Court in exercise of its power of judicial review. To endorse his pleas, he has placed reliance on the decision of the Apex Court in Tata Cellular -vs- Union of India & Ors., (1994) 6 SCC 651.
25. In reply, Mr Dey has urged that in a public participatory process of the type in hand unflinching observance of the stipulations prescribed therefor is an indispensable imperative and as admittedly the appellant‟s tender failed in many aspects to conform to this essentiality, the learned Single Judge did rightly WA 340/2011 Page 20 of 43 interfere with the settlement awarded in her favour. Profusely referring to the various clauses of the advertisement and the Brochure in support of his above proposition, the learned counsel insisted that the appellant‟s statement in her tender about the registered document vis-à-vis the godown and/or the land covered by Dag No. 183 Patta No.9, Village/Town-Hojai, P.S. Hojai, Nagaon per se rendered the same invalid. According to Mr Dey, an uncompromising compliance of the tender stipulations is decisively significant in view of the marks allotable to the candidates under the different heads so much so that any flexibility in approach would unduly tilt the balance in favour of one, though undeserving, to his/her advantage. Mr Dey urged that the respondent Corporation, amongst others, has not disclosed as to why inspite of the apparent contraventions of the tender norms by the appellant, it had purportedly selected the land covered by Dag No. 717 Patta No. 213 (admittedly mistaken) and had awarded maximum marks to her on that count.
26. The learned counsel argued that the respondent Corporation being a public authority, it was obliged to reveal the factors that had weighed with it to adopt that course and it having failed to do so, the selection process is marred by lack of transparency. To demonstrate the instance of the predetermined mind of the Corporation in favour of the appellant, the learned WA 340/2011 Page 21 of 43 counsel referred to the Letter of Intent dated 21.2.2011 to contend that though she (appellant) had not offered any plot of land measuring 27 mtrs. x 26.15 mtrs., reference thereof has been made in that document urging upon her (appellant) to make it available for the LPG godown and, that too, before conducting any field verification to ascertain the availability thereof. As the informations furnished by the appellant had the potential of misleading the respondent Corporation, her tender ought to have been cancelled at the threshold. The approach of the respondent Corporation in deviation of the professed norms had rendered the process void, he urged. Adverting to the aspect of financial capability, Mr Dey maintained that though required, the appellant could not produce the originals of all the documents mentioned by her in her tender. Further, both on the date of submission of her tender as well as the interview most of the documents in support of her claim of financial soundness had been pledged and/or encumbered, thus, entailing automatic rejection thereof. That the materials on record do not reveal the considerations that had weighed with the Selection Committee to handpick the appellant by overlooking all these violations reducing the process to a farce was underlined by him as well.
27. Mr Goswami in his response contended that in absence of any factual assertion of bias, it would be impermissible in the WA 340/2011 Page 22 of 43 face of the recorded facts to impute the same vis-à-vis the Corporation in favour of the appellant. Referring to the communication whereby the respondent No.6 had been called for the interview, the learned senior counsel urged that it would be apparent therefrom that she as well had not produced certain documents though strictly required by the Brochure and that, therefore, the remonstrance qua the appellant on this count is wholly untenable. Mr Goswami insisted that the rejection of the tender or cancellation of the award on a correct interpretation of the tender stipulations would ensue only if after verification/ scrutiny of all essential facts/ documents the necessary informations are found to be false and deliberately made to secure undue advantage therefrom.
28. Mr Saikia appearing for the respondent Corporation while generally endorsing its decision to settle the distributorship with the appellant has produced the relevant records in support thereof.
29. We have carefully analyzed the matrix of the pleadings traversed as above and have duly extended our thoughtful consideration to the competing arguments. The primary facts pertaining to the participation of the parties in the fray in response to the advertisement dated 1.12.2009 for earning the WA 340/2011 Page 23 of 43 distributorship involved are matters of record. The relevant stipulations in the advertisement initiating the process detail, amongst others, the eligibility criteria of the candidates, the norms of evaluation of their suitability and the informations inter alia vis- à-vis their capability to provide infrastructure as well as finance under the heads as specified therein. The advertisement disclosed that the distributor was to be selected on the basis of evaluation of the parameters prescribed including the capability to provide infrastructure facilities and finance.
30. Clause-16 of the said document clarified that only those documents as are sought in the application format should be submitted along therewith. Sub-clause (g) thereof was to the effect that any statement made in the application or in the documents enclosed therewith or subsequently submitted if found to be incorrect or false, the same (application) would be liable to be rejected without assigning any reason and in case the applicant had been appointed as a distributor, the distributorship also would be liable to be terminated. Sub-clause (h) required that the application should provide only that information against various items of the application for which the tenderers were in possession of the supporting documents in original as on the date of submission of the application and that the failure to present those WA 340/2011 Page 24 of 43 in original at the time of verification would result in cancellation of the selection.
31. The essential inputs vis-à-vis the capability to provide infrastructure were enumerated in Clause-13. Clause 13 A dealt with the Godown for Storage of LPG Cylinders with three sub- clauses relatable thereto. Under Clause 13 (A1) an intending tenderer was required to respond to the query as to whether she had a suitable plot of land at or within 15 kms. from the advertised location for LPG godown or LPG godown readily available Owned/ Leased (15 yrs. Minimum) in her own name or in the name of any member of her „Family Unit‟. The candidate concerned was also required to provide the details as enumerated under Clause 13 (A1) in a notorised affidavit in the format as in Annexure-C. The dimensions of the area under Clause-13 (A1) was prescribed to be 27 mtrs. x 26.15 mtrs. in the minimum with the caution that no mark would be awarded in case the same was either less or not mentioned. Similarly, while responding to Clause-13(A1) the dimensions of the plot of land offered for the proposed godown were also to be essentially disclosed.
32. The details of the informations vis-à-vis the capability to arrange finance were set out under Clause-14 with five sub-heads, namely, 14.1, 14.2, 14.3, 14.4 and 14.5. Whereas Clause-14.1 WA 340/2011 Page 25 of 43 pertained to the Gross Annual Income of Last Financial Year, Clause-14.2 and 14.3 referred to the credit balance in the tenderers‟ savings bank account and Fixed Deposits/ NSCs/ Shares/ MF etc. respectively. The tenderer was required as well to attach an affidavit in the format as in Annexure-C so far the documents of financial soundness were concerned. The note under Clause-14 specified that marks would be awarded to the applicant on the capability to arrange finance based on the information given as sought for and if on verification the information was found to be incorrect/ false/ misrepresented, then her candidature would stand cancelled and she would be rendered ineligible for the LPG distributorship.
33. An applicant under Clause-16 was also required to furnish a declaration to the effect that if any information furnished by her was on verification found to be incorrect/ false/ misrepresented, then her candidature would stand cancelled and she would be liable to be adjudged ineligible for the distributorship. Thereby, the candidate was also required to confirm that she was in possession of the supporting documents in original in support of the information furnished by her and that on selection, her failure to present those in original would entail cancellation thereof (selection) for submission of false/ unsupported information. In all the formats of the notirized affidavit, a clause was incorporated WA 340/2011 Page 26 of 43 leaving the respondent Corporation at liberty and within its rights to withdraw the Letter of Intent/ terminate the distributorship if already appointed, in case any information/ declaration given by the candidate in her application or in any document submitted by her in support thereof or in the affidavit was found to be untrue, incorrect or false.
34. The general instructions integrated in the advertisement and meant for the candidates in substance reiterated the above. The note appearing under Clause-15 under this head required in particular that the applicant should provide only that information in the application against various items for which she was in possession of the supporting documents in original as on the date of submission thereof and clarified that failure to present these in original at the time of verification could result in cancellation of the selection.
35. Clause-4.5 of the Brochure dealt with the aspect of disqualification of a candidate. This clause enumerated the different forms of ineligibility as extracted hereinbelow:
"4.5 DISQUALIFICATION : The following are not eligible.
(a) Persons convicted or against whom charges have been framed by a court of law for any criminal offence involving moral turpitude/ economic offences (other than freedom struggle) WA 340/2011 Page 27 of 43
(b) Totally paralysed, mentally unsound and Totally Blind persons.
(c) Signatory to agreement of a distributorship/ dealership of any oil company terminated on the grounds of adulteration/ malpractice in the past.
(d) If any person is allotted the distributorship by giving wrong information or by suppression of information, it shall be cancelled.".
36. Whereas Clause-13 of the Brochure contemplated an interview only of the eligible candidates with the original documents by the Selection Committee comprised of three officials of the Corporation, Clause-14.2 detailed the manner of distribution of marks against the different parameters of evaluation. Field verification under Clause-16 was envisaged vis-à-vis the first candidate in the merit panel. Cancellation of the allotment and termination of the distributorship, if commissioned, on the event of detection of falsity of any information furnished by the applicant before or after her appointment as dealer was reiterated under Clause -23. The respondent Corporation, however, reserved its residuary power under Clause-25 for according any clarification or interpretation to the contents provided in the Brochure.
37. The application submitted by the appellant disclosed that in response to Clause-13 (A1) she offered three options in the alternative as hereunder:
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i) Land of an area 38 mtrs. X 33 mtrs. covered by Dag No. 183, Patta No.9 Kisab Golaghatia, Mouza-Hojai with a godown of 8000 kg capacity LPG storage. This plot was mentioned to be located 2 Kms. away from the Hojai P.S. and was declared to be owned by Sri Bokul Das, her husband vide registered sale deed dated 10.4.94.
ii) A plot of land measuring 40 mtrs. x 160 mtrs.
contained in Dag No. 20 and included in Patta No. 11 Kisab Udaipur, Mouza- Hojai which was stated to be located at a distance of 5 kms. from Hojai P.S. and owned as well by Sri Bakul Das, her husband vide registered sale deed dated 16.11.2005.
iii) A plot of land measuring 91 mtrs. x 35 mtrs.
situated 5.5. kms. away from Hojai Town covered by Dag No. 717 and included in Patta No. 213 Mouza-
Lanka owned by her vide registered sale deed dated 5.4.2007.
38. Vis-à-vis Clause-14 on the capacity to arrange finance, the appellant provided the particulars of her savings bank account at Hojai in her name as well as held by her husband, Bakul Das disclosing a total deposit of Rs. 14,16,581/- only. The particulars of 56 documents of investment in the nature of FDs/NSCs/Shares/ MF etc. were also furnished to claim a wherewithal of Rs. 18,18,051/-. Other informations with regard to immovable assets/ family property were also furnished. She duly signed, amongst others, the declaration in the form alluded hereinabove certifying WA 340/2011 Page 29 of 43 that the inputs provided by her are true and correct and that any wrong information/ misrepresentation/ suppression of facts would make her ineligible for the distributorship.
39. Noticeably, though the plea of disqualification of the appellant on the ground that her husband at the relevant time held a distributorship under the Indian Oil Corporation Ltd. in terms of Clause-2(e) of the advertisement had been insisted upon to nix the settlement in her favour, the learned Single Judge on a due consideration of the relevant materials had rejected the same. Neither any appeal has been preferred by the present respondent No.6 against the said finding, nor any argument on this count has been advanced in the instant appeal. In this view of the matter, we consider it inessential to dilate on this aspect of the debate. Suffice it to mention that on a plain perusal of the documents available on record, the conclusion of the learned Single Judge against the grant of any dealership/ distributorship to the appellant‟s husband invalidating her candidature does not require either a review thereof or interference therewith.
40. The impugned judgment and order reveals that on the imputation of misrepresentation/ suppression of material facts, the following failings/ omissions were noticed by the learned Single Judge:-
WA 340/2011 Page 30 of 43
a) The appellant had produced certain unregistered documents permitting occupation of her husband of the land covered by Dag No. 183, Patta No.9 and that apparently there was no registered sale/ lease deed. No land measuring 27 mtrs. x 26.15 mtrs. had been offered by her for making available the LPG godown thereon.
b) The writ petition filed by her husband challenging the order of the Indian Oil Corporation terminating the LPH distributorship with STATFED had been withdrawn by him only on 22.3.2011 i.e. two days after the Letter of Intent dated 21.2.22011 had been issued in her favour.
c) From the list of FDs/ NSCs/ Shares/ MF etc., eleven NSCs and five FD certificates were detected to be encumbered and that she had failed to produce the originals of such certificates at the time of verification.
This was notwithstanding her emphatic assertion that the FDs listed by her were free from encumbrances.
41. While observing that whether the appellant inspite of these anomalies could be awarded the highest mark was not a relevant consideration, the learned Single Judge ruled that correct disclosure of fact was a pre-requisite signifying that the informations and disclosures made must be informed with due sanctity. That in the facts and circumstances it appeared that the respondent Corporation had glossed over the wrong informations provided by the appellant was recorded. The process was, thus, held to be vitiated for want of fairness and transparency. WA 340/2011 Page 31 of 43
42. That neither the advertisement nor the application in the format prescribed debarred the intending candidates from offering land/ land with or without godown in the alternative under Clause-13A(1) is an accepted proposition. As adverted to hereinabove, the appellant had conveyed three options in the alternative. It has not been seriously disputed on her behalf that though the name of the owner of the land/ lease-holder against the plot covered by Datg No. 183, Patta No.9 with a standing godown thereon was disclosed in the application to be Sri Bakul Das, her husband through a registered sale/gift/ lease deed dated 10.4.94, the said document was an unregistered one. A copy of the certified copy of the Jamabandi of the annual patta land for the year 1968- 69 for the surveyed villages under Mouza Hojai available on record revealed as per the entry dated 13.5.97 that Sri Prafulla Singh, son of Late Dayal Singh and Smt. Kathaeli Devi, wife of Late Dayal Singh had been mutated as the pattadar of Annual Patta No.9, Dag No. 183 by inheritance. Having regard to the different remarks vis- à-vis the entries made in this document, nothing much turns thereon as on date. The fact that no registered sale/ gift/ lease deed dated 10.4.94 could be furnished by the appellant vis-à-vis this plot of land is, however, undeniable.
WA 340/2011 Page 32 of 43
43. Though in course of the arguments the incongruency qua the Dag number of the 3rd plot also surfaced, it transpired on a perusal of the contemporaneous documents later in point of time that it was plainly a typographical mistake as the figure „717‟ quoted in the appellant‟s application ought to have been „713‟. No mistake in the identity of this plot subsisted at any point of time to misguide the respondent Corporation and/or its functionaries involved in the process of selection.
44. As the original records pertaining to the selection would reveal, after the interview of the candidates was held on 25.11.2010, in course of which the relevant documents in original as produced by them were scrutinized by the Selection Committee comprised of high ranking authorities of the Corporation, field verification was conducted by its (Corporation) authorized officials who vide their reports, amongst others, on the aspect of infrastructure and financial capability endorsed the authenticity of the documents of the appellant and the informations contained therein following which, acting on the recommendation dated 17.2.2011 on the basis thereof, the Letter of Intent was issued in her favour.
45. The field verification of the credentials concerning the appellant disclosed that the land measuring 91 mtrs. x 35 mtrs. WA 340/2011 Page 33 of 43 covered by Dag No. 713 and included in Patta No. 213 was recommended to be suitable for construction of LPG godown. Not only did the verification team clarified that Dag No. 717 mentioned in the appellant‟s application ought to be 713 and that the authenticity of the essential particulars of the plot had also been verified from the Circle Officer, Lanka Revenue Circle, it (verification team) recorded its finding on her ownership thereof as well. In the note put up before the concerned authority of the Corporation on a due analysis of the verification report, it was indicated further that the land covered by Dag No. 183 and included in Patta No. 9 was under the possession of her husband. To this effect, is significant as well, the certificate of the President, Bhalukmari Gaon Panchayat dated 22.2.2011 certifying that the appellant is the owner of the periodic patta land at Pamgaon village bearing Dag No. 713 and Patta No. 73 (old)/ 213 (new) under Revenue Circle-Lanka.
46. The Letter of Intent was accordingly issued to the appellant. It was thereafter that the Sub-Divisional Magistrate, Hojai, Sankardevnagar by his letter dated 28.2.2011, in response to the request made by the appellant for issuance of „No Objection Certificate‟ for construction of new godown on the selected plot covered by Dag No. 713 and Patta No. 213, informed the Territory Manager of the Corporation that in the wake of LPG scarcity in WA 340/2011 Page 34 of 43 Hojai in view of the impending elections she had been allowed to store and sell LPG cylinders from the existing godown of her husband situated on the land covered by Dag No. 183, Patta No. 9 of Village Dakhin Golaghatiabasti till completion of the construction of the new godown. The Corporation on its turn, by the letter dated 1.3.2011 required the appellant to get the explosives‟ licence of the existing LPG godown revalidated/ changed in her name and to submit the same to it. She was thereby also required to complete the construction of the new LPG godown as per the specified standards in conformity with the Letter of Intent issued to her.
47. In compliance of the above advisories, the appellant applied for the transfer of the explosives‟ licence vis-à-vis the godown on the land covered by Dag No. 183, Patta No. 9 hitherto in the name of the Branch Manager, STATFED, Hojai Branch, Hojai to her name which eventually was granted to her on 4.3.2011. Subsequent thereto, by her application dated 3.4.2011 addressed to the Joint Chief Controller of Explosives, East Circle Office, Govt. of India, Kolkata, the appellant sought for the necessary approval of the drawings for construction of the new LPG godown on the plot covered by Dag No. 713, Patta No. 213. The records reveal that the approval having been accorded, the appellant completed the construction of the LPG godown as per the specifications on that WA 340/2011 Page 35 of 43 plot and on 9.8.2011 had been awarded the explosives‟ licence for storage shed for possession of gas filled cylinders as detailed therein at the said site. In view of these intervening developments from time to time culminating in the construction of the new LPG godown on the plot covered by Dag No. 713 and Patta No. 213 under the close surveillance of the authorities of the various Government organizations, we do not feel persuaded to lend our concurrence to the plea of invalidity of the appellant‟s candidature for the aforenoted incongruencies in the informations furnished by her in response to the queries contained in Clause-13(A1). In fact there had never been any doubt or speculation about the physical identity of the land covered by Dag No. 713 and Patta No. 213 offered by the appellant. Its area as specified in her application was in excess of the dimensions specified in the Brochure.
48. The cavil against the appellant‟s candidature qua the informations/ documents furnished by her to display her financial capability is, as noticed hereinbefore, that some of the Fixed Deposit Receipts etc. were encumbered and the originals thereof being not in her possession, could not be produced by her at the time of the interview. Neither the Corporation nor the appellant has disputed this fact. According to the former, though the resources shored-up by her disclosed under various headings totalled Rs. 31,72,371/-, Fixed Deposit Receipts covering an amount of Rs. WA 340/2011 Page 36 of 43 8,80,838/- could not be produced both at the interview and during the field verification of the credentials. It, therefore, straightaway rejected those documents and excluded the corresponding amount from the total tally and worked out a figure of Rs. 22,91,533/- backed by other valid instruments and the deposits in the relevant savings bank accounts as the index of her financial soundness for the distributorship. Marks were duly awarded on this figure to her having regard to the prescribed stipulations. The field verification team on a cross-check of the documents and the figures observed that the revised funds of Rs. 22,91,533/- did not have any negative impact on the marks awarded by the Selection Committee as the appellant at all relevant times had at her disposal resources in excess of Rs. 20 Lakhs.
49. Significantly, the advertisement did not specify any requirement that the Fixed Deposit Receipts to be furnished by the applicants would essentially have to be unencumbered. This has been unequivocally observed by the learned Single Judge as well and not questioned before us by the respondent No.6 herein. It is also not the plea of this respondent that the assessment of the appellant‟s financial capability on the basis of the documents/ deposits construed to be valid by the Selection Committee is either incorrect or unacceptable on any other count. A perusal of the facts and figures furnished by the appellant pertaining to the land/ WA 340/2011 Page 37 of 43 godown discloses that she had duly furnished the dimensions thereof in compliance of the requirement to that effect as engrafted therein. The plea to the contrary with reference to the Letter of Intent in the face of the selection of the third plot, therefore, does not appeal to us. The table/ format under Clause-13 (A1) on a simple visual estimation, in our view, permits alternative offers. On a cumulative consideration of all above, the impeachment of the validity of the appellant‟s candidature on this count as well fails.
50. A conjoint reading of the covenants contained in the advertisement, the Brochure and the application format, though insist on correctness of the informations sought from the candidates on all essential aspects as enumerated therein indicating cancellation of the candidature and termination of the distributorship (if allotted) as well as a consequence if any statement is found to be wrong, incorrect or misleading, in our estimate, the same does not logically ordain an unrealistic, rigid and dogmatic approach. Though indubitably a public authority while administering a participatory process of the kind in hand has to be scrupulously adherent to the professed standards relatable thereto to ensure fairness and transparency of the pursuit, no literal predominance of the stipulated norms ought to be ascribed so as to wield an overwhelming primacy over the otherwise substantially valid tenders conforming to the WA 340/2011 Page 38 of 43 contemplated standards tailored for efficient and effective execution of the contract advertised. The clauses of the advertisement, the Brochure and the application format entail both cancellation of the candidature and termination of the distributorship on furnishing of wrong, incorrect and misrepresented informations. The affidavits in the prescribed format leave it to the respondent Corporation to take a decision to that effect. It under Clause-25 of the Brochure has kept to itself as the final authority, the prerogative of providing any clarification or interpretation on the contents thereof. Though the same does not either signify or permit an authoritarian disposition vis-à-vis the prescriptions professed by it, some freeplay in the joint without, however, compromising with the exigencies of the project sought to be executed would be available to it lest the entire exercise is rendered impractical and unworkable. The Corporation being the author of its terms though normally should adhere to its professed standards in such matters, a wholly literal construction thereof may in a given fact situation have the potential of defeating the very purpose of initiating the process. The Corporation being engaged in a public utility enterprise, out of the two options available to it i.e. outright rejection of tenders on a pedantic construction of its stipulations or a realistic orientation sans compromise with the quintessentials, in our view, the latter needs to be preferred. To reiterate, while routine divagation from the proclaimed stipulations cannot receive judicial primatur, the WA 340/2011 Page 39 of 43 underlying purpose of the process in a given fact situation depending on the degree and extent of non-compliance by the competing tenderers would admit marginal flexibility if the ultimate objective of the enterprise is neither jeopardized nor undermined. The entire gamut of the covenants bearing on the cancellation of the candidature and/or termination of the distributorship, in our view, unambiguously conveys this proposition. The interview followed by field verification having been enjoined to be the essential and integral segments of the selection process, the outright rejection of the candidature on the ground of mistakes of the kind noticed in the contextual facts would render the same wholly inconsequential.
51. Having regard to the overall scheme of evaluation of suitability of the competing candidates, such a course, in our view, is incomprehensible. None of the candidates when judged by the criteria of ineligibility set out in Clause-4.5 of the Brochure were disqualified to attend the interview, whereafter, on due selection, field verification followed. With utmost respect we observe that the learned Single Judge had kept out of consideration the bearing of the sequence of interview and verification on the process of final selection. The obvious purpose of the interview and the field verification being to be unmistakably assured of the correctness or otherwise of the indispensable facts and the supporting documents in original, we are left unconvinced by the plea of automatic WA 340/2011 Page 40 of 43 cancellation of a candidature on the mere detection of any error or mistake howsoever minimal it may be in the facts narrated in the application.
52. Apart from the fact, as pointed out on behalf of the appellant from the call letter issued to the respondent No.6, that she as well had not submitted all the documents as required, it is significant to observe also that the former had scored over the latter, as the marksheet would disclose, on account of financial capability, experience, business ability/ acumen as well as personality. This is significant in view of the limited challenge on the aspects of infrastructure and financial capability only.
53. The sequence of events pervading the process clearly suggests that the Corporation had not been misled by the informations furnished by the appellant as well as the documents in support thereof. The Corporation being the author of the norms for compliance by the intending tenderers, it is otherwise the best judge to decide on the non-observance or digression therefrom. The Selection Committee, admittedly, was a body comprised of high ranking and experienced officials of the Corporation best suited to perceive, visualize and appreciate the suitability of a candidate for the project in hand. Not only did the Selection Committee not reject the candidature of the appellant, on an overall consideration/ WA 340/2011 Page 41 of 43 analysis of the informations furnished by her as well as the documents laid in course of the interview, the field verification team on due inspection did ratify its decision to identify her as the most preferred candidate. There is nothing on record to otherwise doubt the correctness of the appreciation of the suitability of the appellant. Though a fleeting flavour of undue favour by the Corporation is perceptible to the respondent No.6, no condign factual foundation has been laid by her to act thereon for nullifying the settlement. In other words, we are unable to return a finding that either the Corporation was deluded to award the distributorship to the appellant being wholly misled by wrong facts/ misrepresentation/ suppression of facts or did favour her on collateral considerations thereby unjustifiably discounting the sanctity of the prescribed norms or compromising with the quality and efficiency of the distributorship to the detriment of the public at large. The updated facts reveal that meanwhile the appellant, pursuant to her settlement, has already shifted to the new godown on 19.8.2011 and has been catering to the needs of a sizeable section of the inhabitants in the locality
54. Having regard to the constricted parameters of the power of judicial review of this Court in mattes of the like before us, as has been propounded by the Hon‟ble Apex Court in Tata Cellular
-vs- Union of India, (1994) 6 SCC 651, we are unable to conclude WA 340/2011 Page 42 of 43 in the contextual facts that there has been any failure of justice far less a gross abuse thereof warranting an intervention to invalidate the settlement awarded to the appellant. The approach adopted by the Corporation and the course charted by it for deciding to select the appellant, when viewed in the overall perspective of the norms prescribed to guide the selection process, in our opinion, was a plausible one and can by no means be impeached as arbitrary, illogical or absurd.
55. In view of the determination made hereinabove on the aspects bearing on the assailment in the instant appeal, we are in respectful disagreement with the conclusions reached by the learned Single Judge. The impugned judgment and order is interfered with.
56. The appeal is allowed. The parties, however, are left to bear their own costs.
JUDGE JUDGE
WA 340/2011 Page 43 of 43