Madhya Pradesh High Court
Mithlesh Bais vs Indian Oil Corporation on 11 January, 2012
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.9021/2010
Mithlesh Bais
Vs
Indian Oil Corporation and others
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri R.K. Samaiya, learned counsel for the petitioner.
Shri Aditya Adhikari, learned counsel for respondents.
ORDER
(11.1.2012) By way of this petition under Article 226 of the Constitution of India, the petitioner has sought relief to the effect that by issuance of a writ of certiorari, the impugned final mark sheet/tabulation sheet (Annx.P/7) be quashed and a writ of mandamus be issued to the respondents to grant the marks to the petitioner in the category of capacity to provide land and infrastructure facilities and to select the petitioner for retail outlet dealership at Navgarh. A writ of prohibition is also claimed restraining the respondents not to grant the retail outlet dealership as per location 184, Navgarh, Waidhan Road in open category to any other person. It is contended by the petitioner that by publication of the advertisement in the newspaper, applications were invited from the eligible candidates for grant of such retail outlet dealership. Various requirements were shown in the advertisement and it was said that the marks will be assigned to all candidates according to the marks indicated in each category for each item, in the advertisement. It is the contention of the petitioner that as per the guidelines, 2 the petitioner filled in the form, submitted it before the respondents, but despite production of the documents that the petitioner has the land to provide for the purposes of establishment of retail outlet at the location for which the application was submitted and according to the criteria of the respondents themselves, for the said purposes 35 marks were required to be assigned, yet while issuing the detailed information contained in Annx.P/7, zero mark was given to the petitioner in this particular category of providing land infrastructure and facilities. According to the petitioner, a representation was made, but since nothing was done, he was required to approach this Court. Initially in the writ petition, the respondent No.4 was made a party and it was said that since she has been assigned the marks, there was every likelihood that retail outlet dealership would be granted to her.
2: On issuance of notice of this writ petition, the respondents have filed their return. The respondents have categorically pointed out that there was specific condition stipulated in the advertisement as also the guidelines placed for the purposes of selection of petrol/diesel retail outlet dealership that assessment will be done with respect to the each and every category separately and after verifying the documents submitted and evaluation of committee obtained, marks will be given for each and every item. It is contended by the respondents that though the petitioner in his application (Annx.P/3), Column No.12, has mentioned 4 Khasra numbers of the land which was offered to be used for the purposes of establishing the retail outlet dealership, yet there was no affidavit to this effect submitted by the petitioner by the owners of the land that said land would be provided to the petitioner for establishing the retail outlet. It is contended that the 3 petitioner has submitted the affidavit of his father, but the affidavit with respect to all Khasra numbers was not filed. The sale deed of the land so purchased was submitted by the petitioner, but again, it was found that concerning document of authorisation of use of land by the petitioner for the purposes of establishing the retail outlet was not submitted. The Committee thereafter measured the land which was owned by the petitioner and it was found that the same was not sufficient within the norms prescribed for establishing the retail outlet and, therefore, holding that the land is not sufficient for establishing the retail outlet, no marks were given to the petitioner. However, it is further contended by the respondents in their return that the entire selection process was cancelled as none of the applicants pursuance to the advertisement referred to above was found eligible to be selected. This being so, the process was abandoned and now the fresh process would be done.
3: The petitioner has filed a rejoinder refuting the allegations made in the return stating that he has filed the affidavit of his younger brother who also stated that he will put his entire movable and immovable properties, FDRs, bank balances and investment owned by him at the disposal of the petitioner for the purposes of carrying out the business of retail outlet of Indian Oil Corporation on its allotment. It is further contended that the younger brother of the petitioner has the land in the very same area where the land of the petitioner is situated and if the total area of the land offered by the petitioner including the land of his younger brother, his father and the petitioner himself is taken into consideration, the same would be more than the required land for the purposes of establishment of the retail outlet. Thus, it is contended that the Committee of the 4 respondents has not properly assessed or measured the land offered by the petitioner and has given a wrong report on the basis of which the respondents have malafidely not granted marks to the petitioner. It is further contended that this being an arbitrary action of the respondents authorities, the petitioner is discriminated as those applicants who were not fulfilling other norms were given the marks for providing land and that would have ousted the petitioner, from selection.
4: The petitioner has also moved an I.A.No.2629/2011, for restraining the respondents from giving effect to the proceedings which they have initiated by issuing a fresh advertisement for grant of retail outlet dealership. It is contended that the respondents, instead of considering the claim of the petitioner, have initiated the proceedings for giving retail outlet dealership to the reserved category candidates by fresh advertisement during pendency of this petition and that would prejudice the claim of the petitioner. Reply of this I.A., has been filed by the respondents and they have contended that the second advertisement has nothing to do with the claim of the petitioner as in one place the respondent-Corporation can have retail outlet of open category as also a retail outlet of reserved category. Thus, it is submitted that there is no requirement of granting any interim relief to the petitioner.
5: In the aforesaid circumstances, this petition was finally heard. After hearing the learned counsel for the petitioner and learned counsel for the respondents, this Court is of the opinion that the assessment of the petitioner with respect to his suitability for grant of retail outlet dealership was not properly done. True it is that in the application the petitioner has mentioned four Khasras of 5 the land which he offered for the purposes of establishing the retail outlet. However, he has filed a document along with the writ petition indicating that out of land of these Khasra numbers one was owned by him I.e. Khasra No.3067. The other Khasra number mentioned is 3066, which is owned by his younger brother. The fact that an affidavit of his younger brother was produced by the petitioner as categorically been mentioned in the rejoinder and this fact is not controverted by the respondents. If the younger brother of the petitioner was ready to put all his movable and immovable properties at the disposal of the petitioner, in case the retail outlet dealership is granted to him, it could not have been said that such a document was not to be taken into account. In case any other supporting document was required, the respondents could have asked for production of such a document, but the measurement of this land was not done only because the respondents say that such a declaratory document was not available. Such a stand of the respondents is not acceptable. Out of the offered land, Khasra No.3068 belongs to the father of the petitioner and he too has submitted an affidavit to the effect that he will provide such land to the petitioner in case the retail outlet dealership is granted to the petitioner for the purposes of establishing the said retail outlet. Production of this affidavit is also not disputed by the respondents. Lastly, the land of Khasra No.3069 is also owned by the father of the petitioner. Thus, sufficient land was available with the petitioner for the purposes of establishing the retail outlet. Why such land was not taken into consideration, has not been effectively answered by the respondents. Merely, this much has been said that there were certain lacunas found as have been mentioned in paragraph 9 of the return of the respondents.
66: Three lacunas have been mentioned in the aforesaid paragraph. First lacuna pointed out is that the concerned affidavit from petitioner's brother Ashish Kumar Bais for allowing Mithlesh Kumar Bais to set up retail outlet on Khasra No.3066, is not available. It is however admitted that Jagbali Prasad has given an affidavit and said Jagbali Prasad is not the owner of the said Khasra number according to revenue records. The second lacuna pointed out by the Committee of the respondents is that Jagbali Prasad has not consented for the land of Khasra No.3069. The affidavit of said Jagbali Prasad specifically said that he put in disposal of the petitioner all the movable and immovable properties, FDRs, bank balances, income and investment owned by him for the purposes of carrying on the business of retail outlet of respondent-Corporation. It is not understood what more was needed if such an affidavit was given. The third lacuna pointed out by the Committee of the respondents is that the petitioner has not offered in his application the land of Khasra No.3065, which is owned by the petitioner himself for the purposes of establishing the retail outlet. How would it matter in the course of determining the availability of the land or the land offered by the petitioner and in its measurement and testing of suitability only for the purposes of establishing the retail outlet. It was wrongly said by the Committee of the respondents that the land offered by the petitioner was not measuring 45 meters (frontage) x 45 meters (deapth) and as such, the petitioner was not fulfilling the norms. This being so, it is clear that the Committee of the respondents has not measured the land offered by the petitioner in appropriate manner and has given a wrong report on the basis of which the petitioner was assigned no marks for the purposes of providing the land. In case rightful marking would have been done, at least the petitioner alone would 7 have been selected for grant of retail outlet dealership, as in all other respect his application was not rejected.
7: Now coming to the other aspect whether the petitioner would be entitled to grant of retail outlet dealership on the basis of the application submitted by him in case in all consideration, the respondent-Corporation had decided not to grant dealership pursuance to the advertisement issued ? It is the settled law that the offering authority has every right to accept the offer or to reject the same on valid reasons. It is also the settled law that even after selection, it is not necessary that the selected candidate be given the dealership. However, the reason assigned for closure of the entire process of allotment of dealership in terms of the aforesaid advertisement shows that no candidate was found suitable and, therefore, the proceedings were dropped. It is contended that fresh proceedings would be done, fresh advertisement would be issued, all applications received would be considered and then the allotment of retail outlet dealership would be done afresh. As has been found, the assessment of petitioner for grant of dealership was not rightly done. In such circumstances, it is not correct to say on the part of respondents that no applicant was found eligible for selection to grant dealership and, therefore, the proceedings have been abandoned. If the assessment of land offered by the petitioner would have been done in proper manner at least the petitioner would have been selected for grant of dealership as it is not the case of respondents that the petitioner would not have been selected even if the marks for providing land and such facilities are granted to him. Therefore, for such reasons, the action of respondents of closing selection proceedings cannot be approved. The respondent-Corporation is a 8 statutory Corporation and is required to act in appropriate manner and not in such arbitrary manner.
8: Even if, it is accepted that the initiation of process of granting of a retail outlet dealership to a reserved category candidate would not prejudice the petitioner as still the respondent-Corporation can grant retail outlet dealership to an open category candidate as there is no bar under the law, it is clear that once the dealership is granted to the reserved category, there would be existence of a competition and creation of a competitor of a reserved category having the retail outlet in the very same area. In such smaller places, the running of a business of retail outlet depends on the availability of the customers. If no proper assessment of availability of business is done and number of retail outlets are opened, the same would not be in the interest of the respondent- Corporation itself. Therefore, such a stand that still the authority is available to the respondents to establish a retail outlet of open category even when the retail outlet of a reserved category candidate is started, cannot be accepted. However, it is not intended by this order that a bar is created in this respect against the respondents. It will be better if the respondents assess the availability of the business in a particular place and then establish the retail outlet.
9: Under the aforesaid circumstances and holding that the application of the petitioner, more particularly, the assessment of availability of the land for the purposes of establishing the retail outlet, was not properly done by the respondents, this writ petition is allowed. The respondents are directed to reassess the availability of the land offered by the petitioner for the purposes of establishing the retail outlet at Navgarh, Bargawan, Waidhan, District Singrauli, 9 under the open category and to assign him marks for providing the land for the purposes of establishing the aforesaid retail outlet in terms of the guidelines prepared by the respondents and reassess the merit of the petitioner. In case, the petitioner is found eligible and meritorious, the respondents will grant him the retail outlet dealership, within a period of two months from today.
10 : The petition is allowed to the extent indicated hereinabove, but with no order as to costs.
(K.K. TRIVEDI) Judge /1/2012 A.Praj.
10HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.9021/2010
Mithlesh Bais
Vs
Indian Oil Corporation and others
ORDER
Post it for /1/2012
(K. K. Trivedi)
Judge
/1/2012