Janardan Prasad Pandey vs Union Of India And Others
2011 Latest Caselaw 1910 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 4452 of 2011.
 
Janardan Prasad Pandey.			  ........	    Petitioner.
 
					Versus
 
Union of India and others.			  ........	    Respondents.
 
				  Connected with:
 
	Civil Misc. Writ Petition No. 16008 of 2011. 
 
Janardan Prasad Pandey.			.........	     Petitioner. 
 
					Versus
 
Union of India and others.			.........	     Respondents. 
 
					----------

Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava)

Appearance:

For the Petitioner/s : Mr. M.D. Singh Shekhar, Sr. Advocate,

Mr. U.N. Sharma, Sr. Advocate,

Mr. Umesh Chandra Tripathi, &

Mr. Shrikrishna Shukla.

For the Respondents : Mr. Shashi Nandan, Sr. Advocate,

Mr. C.B. Yadav, Sr. Advocate,

Mr. Tarun Verma,

Mr. P. Padia, &

Mr. V.M. Sharma.

--------

Amitava Lala, J.-- Since both the aforesaid writ petitions involve common controversy between the same parties, the same have been heard analogously being connected with each other and are being decided by this common judgement, which will have binding effect in both the matters.

The facts of both the aforesaid writ petitions, according to the petitioner, in brief are that an advertisement dated 01st July, 2009 was issued by the Indian Oil Corporation Limited (hereinafter in short called as the ''Corporation') for selection of Kisan Seva Kendra (Retail Outlet) Dealers at various locations, pursuant to which the petitioner applied for such dealership with regard to the location situated at Pure Rudai (Vari), Block Pratappur, Tehsil Handia, District Allahabad and the respondent no. 6 also applied for such location. Out of several candidates who applied for such dealership, names of following three candidates were short-listed:

(i) Sri Abhishek Kumar Singh.

(ii) Sri Janardan Prasad Pandey (Petitioner)

(iii) Sri Ramesh Chandra Pandey (Respondent No. 6)

Ultimately, after the interview held on 16th March, 2010 the petitioner was empanelled as second empanelled candidate, whereas the respondent no. 6 was placed as first empanelled candidate when leaving aside all other candidates, the candidate at Serial No. 1, as aforesaid, became third. The dispute raised by the petitioner herein is with regard to awarding of marks in connection with capability to provide infrastructure and facility. The petitioner had been awarded 30.03 marks, whereas the respondent no. 6 had been awarded 31.92 marks. According to the petitioner, when the respondent no. 6 is co-owner of the land proposed by him for Kisan Seva Kendra, the description of the land, as has been given by the respondent no. 6, is incorrect in nature. The petitioner contended that one Mr. Madhusudan Pandey, who is member of the Consolidation Committee of the concerned Village Pure Rudai (Vari), through his letter dated 16th September, 2009 addressed to the General Manager, Indian Oil Corporation, U.P., Lucknow brought to his notice the fact that the land proposed by the respondent no. 6 was under consolidation proceedings and without any logical conclusion of the aforesaid proceedings, the respondent no. 6 could not offer his land for setting up of the aforesaid Kisan Seva Kendra. The petitioner further contended that even just after the advertisement on 16th July, 2009 i.e. within a period of fifteen days from the date of advertisement, the respondent no. 6, being an applicant for dealership, started construction of boundary wall for Kisan Seva Kendra. In such circumstances, feeling aggrieved by the aforesaid result the petitioner raised his objection before the General Manager of the respondent-Corporation. However, when the aforesaid objection of the petitioner was not being heard, the petitioner approached this Court by means of Civil Misc. Writ Petition No. 19030 of 2010 (Janardan Prasad Pandey Vs. Union of India and others), which was disposed of by a Division Bench of this Court by order dated 08th April, 2010 with a direction upon the authority to consider and dispose of the objection/complaint of the petitioner. Pursuant to such order a detailed objection was filed by the petitioner on 20th April, 2010. Thereafter, the petitioner also made a further objection on 09th August, 2010 with a specific plea that the respondent no. 6 does not have no objection certificate of the co-owners in respect of the proposed land and submitted a copy of the sale-deed to clearly demonstrate the presence of other co-owners, whose no objection certificate has not been supplied by the respondent no. 6. However, the General Manager of the Corporation by its order dated 28th December, 2010 rejected the objection of the petitioner. Against the aforesaid background, the petitioner filed Civil Misc. Writ Petition No. 4452 of 2011 challenging the impugned order dated 28th December, 2010 and also praying for a direction upon the respondents not to issue letter of intent in favour of the respondent no. 6. However, during pendency of such writ petition, the respondent-Corporation wrote a letter dated 19th January, 2011 to the District Magistrate, Allahabad requesting him to grant No Objection Certificate in respect of the land offered by the respondent no. 6. Challenging such letter dated 19th January, 2011 the petitioner filed Civil Misc. Writ Petition No. 16008 of 2011 and also prayed for commanding the respondents not to take any further steps towards the issuance of letter of intent or any other order in favour of the respondent no. 6.

The case of the respondent no. 6 is that Plot No. 36 area 1.053 hectare was owned by one Sri Dev Mani Tripathi. Sri Dev Mani Tripathi sold an area of 0.228 hectare of such Plot No. 36 to one Sri Sukhraj son of Bholai on 25th January, 2000, whereupon Sri Sukhraj has got constructed the room surrounded by boundary wall. The consolidation proceedings started in the village in the year 2007. Name of Sri Sukhraj was recorded in C.H. Form-23 over an area of 0.228 hectare land of Plot No. 36. On 01st August, 2006 the respondent no. 6 purchased an area of 0.2282 hectare of Plot No. 36 from Sri Dev Mani Tripathi and built the boundary wall from three sides. Name of the respondent no. 6 was mutated in the consolidation records and his plot is separately marked as Plot No. 36/3. The Investigating Officer, who conducted the investigation pursuant to the order of the General Manager of the Corporation, mentioned in his report dated 04th October, 2010 that Plot No. 36 is not co-owned by Sri Sukhraj and Sri Dev Mani Tripathi. The plots have been segregated and separate plot number has been allotted i.e. Plot Nos. 36/1, 36/2 and 36/4 owned by Sri Dev Mani Tripathi, Plot No. 36/3 owned by the respondent no. 6, and Plot No. 36/5 owned by Sri Sukhraj. It is further submitted on behalf of the respondent no. 6 that Letter of Intent dated 19th January, 2011 and No Objection Certificate dated 17th February, 2011 have already been issued in his favour by the authorities concerned.

We have gone through the counter affidavit dated 31st March, 2011 filed on behalf of the respondent no. 6 and found that sale-deed dated 01st August, 2006 executed in favour of the respondent no. 6 is annexed with it along with a document being certified copy of the Khatauni 1411-1416 Fasali issued by the concerned Lekhpal on 18th June, 2009, wherein on 04th June, 2009 it has been recorded that on the basis of the orders of the Naib Tehsildar dated 07th June, 2006 and the Consolidation Officer dated 29th May, 2009 name of the respondent no. 6 be recorded over an area of 0.228 hectare of Plot No. 36 in place of name of Sri Dev Mani Tripathi. In the supplementary affidavit filed by the petitioner a copy of the Khatauni 1411-1416 Fasali issued by the concerned Lekhpal dated 24th July, 2010 has been annexed, from which it appears that concerned land of Sri Dev Mani Tripathi, out of which an area of 0.228 hectare has been sold to the respondent no. 6, has been recorded as Minjumla land, meaning thereby it is recorded with others. In other words, by means of such document the petitioner wants to establish that seller of the land to the respondent no. 6 is not sole owner of the land.

In any event, again from the No Objection Certificate dated 17th February, 2011 issued by the Additional District Magistrate (Administration) Allahabad, which has been annexed as Annexure-7 to the counter affidavit dated 31st March, 2011, we find that the respondent no. 6 has been described therein as sole owner of the land in question and he is in possession thereof. In the shape of third supplementary affidavit the petitioner has brought certain facts to the notice of this Court by way of an order of the concerned Naib Tehsildar dated 07th September, 2006 passed in Suit No. 703 under Section 34 of the Land Revenue Act and a letter of the respondent no. 6 dated 01st November, 2008. From such order of the Naib Tehsildar it appears that the seller of the land to the respondent no. 6 is Sri Dev Mani Tripathi. However, from the letter addressed by the respondent no. 6 to the Consolidation Officer dated 01st November, 2008, being SA-2 to the third supplementary affidavit, it appears to this Court that own case of the respondent no. 6 is that the consolidation notification of the above village was published on 17th February, 2007 and much prior to this notification, as per the direction of the Surveyor of the Corporation, the respondent no. 6 had completed the construction of room and its boundary wall for setting up the petrol pump, prior to December, 2006. After the consolidation notification, Assistant Consolidation Officer and Lekhpal etc. made a survey of the plot and after survey in the presence of the parties they recorded in the record of consolidation that the land in question is abadi, petrol pump. According to us, this document appears to be very suspicious in nature. Admittedly, the advertisement was issued for the purpose of allotment of dealership of Kisan Seva Kendra on 01st July, 2009. If it is so, how prior to consolidation notification sometimes in or before 2006, the applicant (respondent no.6) can construct room and boundary wall for the purpose of setting up petrol pump with the help of surveyor, is unknown to this Court.

In the normal circumstances, when an advertisement is published, the applications are directed to be filed on a particular date and the availability of land and infrastructure, etc. of a candidate on that very day are required to be taken care of. Any development thereafter without the consent of the Corporation or as per the relaxation in the norms/guidelines, can not be permitted. Therefore, without the same, no candidate will be allowed to have the licence. Similarly, when the application is available with the supporting documents prior thereto, the same is to be verified with the proper perspective. No document will be ignored without any scrutiny. Moreover, when any indication of nexus or connection between an officer of the Corporation and the prospective candidate is available, it is required to be scrutinised with far more care because the goodwill of such corporation is involved.

Though the argument has been put forth by the learned Counsel appearing for the Corporation with regard to scope and ambit of judicial review based upon the judgements reported in 1986 (1) All ER 199 (Nottinghamshire County Council Vs. Secretary of State for the Environment and another appeal), 1994 (6) SCC 651 (Tata Cellular Vs. Union of India), JT 1997 (5) SC 298 (High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & ors.), 2006 (10) ADJ 123 (DB) (State of U.P. Vs. Prem Shankar Sharma and others) and 2011 AIR SCW 1332 (State of Orissa & anr. Vs. Mamata Mohanty), however, it is well known that judicial review depends upon facts and circumstances of each case. There is no compulsion upon the writ Court to make judicial review in all cases. It is wisdom of the writ Court to withdraw itself from interfering with many of the cases. In the cases of grant of respective licences by the respective oil corporations, we find several anomalies. Transparency in selection for grant of licences is doubtful in many case. A Division Bench of this Court, presided over by one of us (Amitava Lala, J.), has also considered the scope of further transparency in respect of the selection process to be made by various oil companies in its judgement dated 11th April, 2011 delivered in Civil Misc. Writ Petition No. 20631 of 2011 (Sushil Kumar Vs. Bharat Petroleum Corporation Ltd. and others). Relevant portion of such judgement is as under:

"The selection process is required to be made by the selectors. It is well settled by now that the Court will not unnecessarily enter into the selection process conducted by the expert selectors. It is also well settled that if any candidate participates in the selection process, after being failed he can not turn around challenging the same following the principle of approbate and reprobate unless, of course, arbitrary or malafide exercise of power is so apparent that the Court can not shut its eyes. But in connection with the selection of distributorship, godown and many other licences alike, which are required to be given either by Indian Oil Corporation or by Bharat Petroleum Corporation or by Hindustan Petroleum, as the case may be, or under RGGLV scheme of any of such Corporations, in the cases of auction, tender or draw, a peculiar process has been adopted by them. Such process is to declare the name of the drawer or to allot the marks to the respective candidates without judging suitability/eligibility inclusive of availability of land, infrastructure, finance, etc. finally. In the cases of auction and tender, a list of names inclusive of first, second and third empanelled candidates are being published in advance and thereafter scrutiny, enquiry, assessment and examination are started to eliminate such candidates from the empanellement. Even the first empanelled candidate is not the exception. As a result whereof, such aggrieved candidates are invoking the writ jurisdiction of the Court for the purpose of redressal of their grievances. The grievances may not be legal but element of legitimate expectation can not be ruled out. Hence, it can not be thrown out immediately like the frivolous petitions but mind has to be applied on the individual merit of the cases, which consumes considerable time of the Court. Therefore, the practice of the Corporation/s is thoroughly discourageable in nature.

Hence, we propose that either no selection or publication of select list will be made in advance without finalisation of scrutiny, enquiry, assessment and examination etc. with regard to candidature of the candidates or in case any prima facie decision is required to be taken for any practical purpose, secrecy about the names of the candidates will be maintained by the Corporation/s before reaching to the finality. If the panel of the selected candidates is disclosed following such process finally, not only the transparency of the selection will be maintained but also number of complaints before the Grievance Cell of the Corporation/s and the litigations before the Court will be reduced substantially."

Against this background, we are of the view that the statement of the respondent no. 6 that with the help of surveyor of the Corporation he constructed the room and boundary wall in the year 2006 for the purpose of setting up of petrol pump, when the advertisement for that was not born and born after three years, is meaningful. Therefore, without further consideration of the cause in presence of both the parties and on the basis of the documents, issuance of letter of intent in favour of the respondent no. 6 can not be given effect to. However, the appropriate authority i.e. General Manager of the Corporation, upon being called by the petitioner within a period of seven days from the date of obtaining certified copy of this order, will consider and dispose of the matter upon giving fullest opportunity of hearing to all concerned parties and by passing a reasoned order thereon with a period of one month thereafter. Both the candidates will be called upon at a time and all the documents will be produced by the parties and their respective submissions will be recorded in presence of both the parties to maintain the transparency. As a result whereof, both the writ petitions succeed. The order impugned in the Writ Petition No. 4452 of 2011 being order of the General Manager of the Corporation dated 28th December, 2010 stands quashed. The letter of intent, which has been issued by the Corporation in favour of the respondent no. 6, will not be given effect till one week after the communication of the order to be passed by the General Manager of the Corporation and the order to be passed by the General Manager will be treated to be final and binding upon the parties.

Accordingly, both the writ petitions are disposed of, however, without imposing any cost.

(Justice Amitava Lala)

I agree.

(Justice Ashok Srivastava)

Dated: 24th May, 2011.

SKT/-

Hon'ble Amitava Lala, J.

Hon'ble Ashok Srivastava, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.

The writ petition is disposed of, however, without imposing any cost.

Dt./- 24.05.2011.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (nine pages).

Dt./-24.05.2011.

SKT/-