Allahabad High Court
Smt. Sudha Devi vs Union Of India And Others on 20 April, 2023
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 39 Case :- WRIT - C No. - 23238 of 2011 Petitioner :- Smt. Sudha Devi Respondent :- Union Of India And Others Counsel for Petitioner :- Arvind Srivastava,Abhay Raj Yadav Counsel for Respondent :- A.S.G.I.,Devi Shanker Shukla,S.C.,Tarun Verma,Yogendra Kumar Yadav Hon'ble Salil Kumar Rai,J.
Hon'ble Arun Kumar Singh Deshwal,J.
(Delivered by Hon'ble Arun Kumar Singh Deshwal, J.)
1. Heard Sri Arvind Srivastava, learned counsel for the petitioner, Sri Anant Kumar Tiwari, learned counsel for respondent no.1-Union of India and Sri Devi Shanker Shukla, learned counsel for respondent nos.2, 3 and 4.
2. Present petition has been filed by the petitioner initially challenging the result dated 12.11.2010 regarding selection of Kisan Sewa Kendra Dealer (retail outlet) at Rampuriya Awwal in District-Chitrakoot. Subsequently, petition was amended and order dated 11.04.2011 passed by General Manager, Indian Oil Corporation Ltd., Lucknow, was also challenged, by which, representation of the petitioner was rejected regarding non-awarding of any marks for capability to provide infrastructure (land) as well as issuance of resident certificate to respondent no.5.
3. Factual matrix of the present case is that Indian Oil Corporation Ltd. (respondent no.2) has issued advertisement dated 18.08.2010, inviting application form for the selection of Kisan Sewa Kendra Dealer at Rampuriya Awwal in District-Chitrakoot. In pursuance of the above advertisement, the petitioner has also submitted, application form alongwith other documents. The petitioner has also offered land for the proposed site in Plot No.370/1 M. In support of proof of availability of land, the petitioner has submitted, Khatauni of Plot No.370/1 as well as copy of sale deed dated 26.12.2007 showing purchase of 1/3rd share in Plot No.370/1. The petitioner also submitted, consent of her husband who was also co-sharer in Plot No.370/1. The Khatauni submitted by the petitioner shows that Plot No.370/1 is also co-shared by other persons including husband of the petitioner.
4. Thereafter, a complaint was received against the petitioner regarding the potentiality of her land. Thereafter, investigation was conducted regarding the potentiality of land of the petitioner. In the investigation report, it was found that the plot submitted by the petitioner was also owned by several persons including husband of the petitioner and consent of other co-sharer was not submitted alongwith the application form but submitted only after completion of interview.
5. Interview for the aforesaid selection was held on 12.11.2010 and result was declared on 12.11.2010 in which following candidates were declared qualified :
(i) Smt. Kiran Tripathi (respondent no.5);
(ii) Deepshikha Mishra and;
(iii) Sudha Devi (petitioner).
6. Result dated 12.11.2010, shows that petitioner was awarded zero marks. Therefore, that result dated 12.11.2010 was challenged by the petitioner. Against that result, petitioner submitted a representation dated 22.11.2010. In that representation petitioner not only challenged the result dated 12.11.2010 but also challenged the resident certificate issued to respondent no.5 on the ground that respondent no.5 is not resident of District-Chitrakoot. The above representation was rejected during pendency of the present petition, by order dated 11.04.2011.
7. Learned counsel for the petitioner submits that plot no.370/1 was initially owned by three co-sharer namely, Sidh Gopal, Sri Jageshwar Prasad and Sri Kesan Prasad. Petitioner has purchased 1/3rd share of Sidh Gopal and constructed a boundary over it and husband of the petitioner Ashok Kumar had purchased area 9.5 biswa out of the share of Sri Jageshwar Prasad and remaining 6 biswa was purchased by Sri Bhupendra and share of Kesan Prasad was purchased by Maya Devi, Raj Shree and Meena. As the petitioner had purchased entire share of Sidh Pal which was clearly demarcated, therefore, there was no need to file consent of other co-sharers. Learned counsel for the petitioner further submits that the impugned order dated 11.04.2011 is erroneous and arbitrary because even otherwise he had filed consent of her husband who is co-sharer in Plot No.370/1 and, thereafter, consent of other co-sharers were filed immediately after conclusion of interview. It is further submitted that as per the relevant guidelines of Indian Oil Corporation where the share of the petitioner is more than required, then there is no need to submit any consent of other co-sharers.
8. In support of his contention, learned counsel for the petitioner has relied upon the judgment passed in Writ C No.54357 of 2013 (Saurav Mittal vs Indian Oil Corporation Ltd. and 2 Others). Learned counsel for the petitioner also submitted that the order dated 04.02.2011 of ADM Mau who restored the resident certificate of respondent no.5 which was previously cancelled by order dated 15.12.2010 is also incorrect because respondent no.5 is not the resident of District-Chitrakoot because after the marriage she shifted Lucknow alongwith her husband.
9. Learned counsel for the petitioner lastly submits that Indian Oil Corporation who has awarded the zero marks to the petitioner for the potentiality of land though he had offered specific portion of the land which was more than required and halka Lekhpal also stated in his report that the land of the petitioner was surrounded by a boundary wall.
10. On the other hand, learned counsel for the respondents submit that impugned orders are absolutely correct and the petitioner did not submit consent of other co-sharers, therefore, she is not entitled to award any marks for the potentiality of land and also domicile certificate issued by the SDM is valid as the same was issued on the basis of proper enquiry report.
11. Guidelines of the Indian Oil Corporation Ltd. annexed at page no.11 of the rejoinder affidavit of the petitioner prescribes that if the petitioner is joint owner of any land with other persons then petitioner has to submit registered agreement of other co-sharer alongwith demarcation of her land. Relevant extract of guidelines of Indian Oil Corporation is being quoted below :
"(ख) भूमि का "पक्का प्रस्ताव (Firm offer of land):
यदि आवेदक के पास स्व-स्वामित्व अथवा "पारिवारिक" सदस्यों के सह-स्वामित्व वाली भूमि उपलब्ध न हो, तो उसके पास अन्य व्यक्तियों के स्वामित्व वाली भूमि प्रस्तावित करने का विकल्प भी है। ऐसी परिस्थिति में आवेदक को भू-स्वामी/स्वामियों का पंजीकृत अनुबन्ध प्रस्तुत करना होगा।
नोटः- यदि उपरोक्त आधार पर आवेदक का चयन कर लिया जाता है तथा वह आवेदन में उल्लिखित भूमि लेटर ऑफ इन्टेन्ट की तिथि से दो माह के अन्दर उपलब्ध नहीं करा पाता है तो आईओसी के पास आवेदक को प्रदान किये गये डीलरशिप का आवंटन निरस्त करने का अधिकार होगा। भूमि की उपयुक्तता का निर्णय आईओसी द्वारा लिया जायेगा। ऐसी स्थिति में आवेदक से क्रय की गई/लम्बी लीज पर अर्जित भूमि हेतु ढाँचागत सुविधायें आईओसी द्वारा अपने व्यय पर उपलब्ध कराई जायेंगी। तथापि आवेदक द्वारा प्रस्तावित भूमि को स्वीकार करने को आईओसी किसी प्रकार प्रतिबद्ध नहीं होगा।
प्रस्तावित भूमि हेतु अभिलेखः (ग) आवेदक को (भू-स्वामित्व सम्बन्धी) निम्न में से कोई एक अभिलेख जो विज्ञापन की तिथि के पश्चात निर्गत/नवीनीकृत किया गया हो, प्रस्तुत करना अनिवार्य हैः (i) खसरा/खतौनी अथवा कोई अन्य समकक्ष राजस्व अभिलेख अथवा भूमि का स्वामित्व प्रमाणित करने हेतु राजस्व अधिकारी द्वारा निर्गत प्रमाण-पत्र। (ii) आवेदक के पक्ष में पंजीकृत सेल डीड/पंजीकृत लीज डीड (आवेदन की तिथि पर न्यूनतम अवधि 19 वर्ष 11माह ) अथवा स्वामित्व हस्तान्तरित करने हेतु कोई अन्य स्थानान्तरण डीड/अभिलेख।
(घ) प्रस्तावित भूमि के स्वामित्व हेतु सरकारी/अर्ध-सरकारी, स्वायत्त संस्थायें जैसेः LDA, KDA, DDA, आदि द्वारा निर्गत लीज एग्रीमेन्ट/आवंटन पत्र स्वीकार्य होगें।
(ङ) उपरोक्त बिन्दु (ग) से (ङ) में उल्लिखित अभिलेखों के अतिरिक्त, निम्न अभिलेख, जो लागू होते हों, संलग्न करेंः क्रम सं.
स्वामित्व की स्थिति भूमि में आवेदक का अंश वांछित आवश्यक अभिलेख (भू-स्वामित्व/ राजस्व अभिलेख के अतिरिक्त) आंकलन स्तर
1.
स्वयं सम्पूर्ण कोई नहीं स्वामित्व की भूमि
2. केवल "पारिवारिक" सदस्यों द्वारा कुछ नहीं आवेदक के पक्ष में समस्त स्वामियों का नोटरीकृत शपथ-पत्र स्वामित्व की भूमि
3. स्वयं एवं केवल "पारिवारिक" सदस्यों के साथ संयुक्त अांशिक आवेदक के पक्ष में समस्त सह-स्वामियों का नोटरीकृत शपथ-पत्र स्वामित्व की भूमि
4. स्वयं एवं अन्य के साथ संयुक्त आवेदक का अंश आईओसी द्वारा वांछित अंश से अधिक भूमि का भाग (demarcation) दर्शाते हुए पंजीकृत अनुबन्ध (भूमि का वह भाग जो आवेदक द्वारा डीलरशिप हेतु प्रस्तावित है।
स्वामित्व की भूमि
5. स्वयं एवं अन्य के साथ संयुक्त आवेदक का अंश आईओसी द्वारा वांछित भूमि से अधिक भूमि का भाग दर्शाये बिना पंजीकृत अनुबन्ध (भूमि का वह भाग जो आवेदक द्वारा डीलरशिप हेतु प्रस्तावित है) पक्का प्रस्ताव
12. Secondly, for getting resident certificate, petitioner should be permanent resident or ordinary resident, this has not been mentioned in the guidelines or advertisement.
13. From perusal of record, it appears that in Plot No.370/1 there were three co-sharers namely, Sidh Gopal, Sri Jageshwar Prasad and Sri Kesan Prasad and each was having 1/3rd share and there were no partition in Plot No.370/1 and all the three persons were joint owner of the above land. Petitioner purchased 1/3rd share of Sidh Gopal and her husband also purchased part of the share of another co-sharer Sri Jageshwar Prasad, therefore, petitioner has become co-sharer in Plot No.370/1 with other co-sharer including her husband. But at the time of submitting the application form for retail outlet, petitioner has submitted the consent of her husband and consent of other co-sharer was not submitted at the time of submitting the application form. As per the guidelines of Indian Oil Corporation regarding the allotment of retail outlet which was annexed by the petitioner herself at page 11 of her rejoinder affidavit specifically shows that if any land is owned by the petitioner along with other persons and share of the petitioner was more than required by Indian Oil Corporation then petitioner was required to submit registered agreement with other co-sharer showing their consent alongwith demarcated part of his share but in the present case petitioner has not complied the above direction by not filing consent of other co-sharers through registered agreement along with the application form, and even not at the time of interview which was held on 12.11.2010. The Division Bench of this Court in the case of Smt. Sangeeta Gupta Vs. Union of India & Others 2009 (7) ADJ 534 (DB) observed that required document should be filed on the last date of submission of application form. Any document filed subsequently cannot be taken into consideration. Paragraph no.21 of the above judgement is being quoted as below :
"21. From perusal of the facts as narrated above, it is clear that in terms of the advertisement dated 11.10.2014, an application form was submitted by the petitioner for grant of retail outlet dealership. Since certain discrepancies were found in the application form submitted by the petitioner a letter dated 26.5.2016 was written by the respondent No. 3 to the petitioner. A reply dated 4.6.2016 was submitted by the petitioner stating therein that the discrepancies were duly removed. After the aforesaid letter was received in the office of the respondent corporation, the corporation rejected the same vide its order dated 9.7.2016 on the ground that Clause 4 (Vi) (kha) of the guidelines were not fulfilled by the petitioner. It reveals from perusal of the records that while submitting the application form the petitioner has submitted certain papers and documents. Two short comings were pointed out in the application form of the petitioner namely khasra/khatauni number is not mentioned in the lease deed and lease agreement does not contain any sub lease clause. After the aforesaid letter was received by the petitioner he submitted a representation. Along-with representation petitioner appended the correction dated 4.6.2016 making corrections in the lease deed dated 31.10.2014. By the aforesaid corrections the petitioner had sought correction in the lease deed dated 31.10.2014 to the effect that Plot No. 202 was sought to be mentioned and for the first time provision of sub lease in favour of the respondent corporation was also mentioned. The petitioner tried to remove the discrepancies as pointed out by the corporation vide letter dated 26.5.2016. Apart from the original lessor of the land two other persons namely Jaiveer and Havaldar were also co-sharers in the land. The aforesaid fact was not disclosed at any point of time by the petitioner or by Smt. Munni Devi before respondent corporation. No consent letters of the aforesaid co-sharers were submitted by the petitioner along-with his application form. Apart from the same corrections, which were made by the petitioner in the correction deed were also not liable to be taken into consideration by the respondent corporation due to the fact that these corrections are not permissible after submission of the application form."
14. Similarly, Division Bench of this Court in the case of Madhu Singh Vs. Union of India & Others 2013 ADJ Online 0398 clearly observed that affidavit of co-owners regarding consent filed after the submission of application cannot be taken into consideration. Therefore, awarding of zero marks under category of capability to provide infrastructure and facility is correct. Relevant part of the said judgment is being quoted as below :
"As the land mentioned in the application of the petitioner belongs to the father of the petitioner with certain other third persons and the petitioner has no share in the said land, the case of the petitioner would not fall under any of the Item nos. 1 to 6 mentioned in the Table below sub-clause (e) of Clause 14 of the Brochure. Consequently, the case of the petitioner would fall under Item no. 7 of the said Table. The petitioner was, therefore, required to submit registered agreement with the co-owners of the said land mentioned in her application. No such registered agreement was filed by the petitioner along with her application. Therefore, the award of ''zero'' marks to the petitioner in the category ''capability to provide infrastructure and facility'' cannot be said to suffer from any illegality or infirmity.
There is one more aspect of the matter. As is evident from the narration of the facts above, the petitioner did not file any affidavit of the co-owners of the land mentioned in her application along with her application. It is only after the result of the selection was declared on 18th April, 2012 that the petitioner along with her representation filed certain Affidavits.
As noted above, sub-clause (e) of Clause 10 of the Brochure requires that the Originals of the Affidavits should be submitted along with the application. Sub-clause (h) of Clause 10 imposes clear prohibition on acceptance or consideration of any additional documents after the cut-off date of the application."
15. Judgement of Saurav Mittal vs Indian Oil Corporation Ltd. (supra) relied upon by the petitioner is not applicable in the present case because from the fact of the relied judgement, it is clear that the land was purchased from exclusive owner of the land, which he himself demarcated and specified the portion sold to the person concerned but in the present case petitioner had purchased 1/3rd share of Sidh Gopal who was not owner of exclusive part in Plot No.370/1 but he was co-sharer with other two persons namely, Sri Jageshwar Prasad and Sri Kesan Prasad.
16. In view of the above, it is clear that the petitioner filed the consent affidavits of co-sharers in plot no.370/1 after the submission of application form. Therefore, the same were rightly not considered. Therefore, not awarding marks for potentiality of land (capacity to provide infrastructure and facility) to petitioner cannot be said to be erroneous.
17. So far as the issue regarding domicile certificate of respondent no.5 is concerned, by order dated 04.02.2011, the same cannot also be faulted because the same was passed on the basis of available evidence before him regarding ordinary residence of respondent no.5 at her parental house in District-Chitrakoot.
18. In view of the above facts, there is no illegality in the impugned orders dated 12.11.2010, 11.04.2011 and 04.02.2011, therefore, the petition is dismissed.
19. No order as to costs.
Order Date :- 20.4.2023 S.Chaurasia