Awadh Naresh Jaiswal vs Union Of India 3 Others
2013 Latest Caselaw 4854 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 

 
Case :- WRIT - C No. - 37491 of 2013
 

 
Petitioner :- Awadh Naresh Jaiswal
 
Respondent :- Union Of India 3 Others
 
Counsel for Petitioner :- Vimlendu Tripathi,Kuldeep Johri
 
Counsel for Respondent :- A.S.G.,Prakash Padia,S.C.,Suresh Kumar
 

 
Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

This is a writ petition challenging the order dated 30.4.2013 whereby the selection for the retail outlet dealership at Charkhola, Block Bilsanda, Tehsil Bisalpur, District Pilibhit in which the petitioner was found to be the highest in merit has been cancelled.

Briefly stated, the case of the petitioner is that for grant of Kisan Sewa Kendra retail outlet for location at Charkhola, Block Bilsanda, Tehsil Bisalpur, District Pilibhit, applications were invited from eligible candidates through advertisement published in the Dainik Jagran news paper on 20.12.2010. The petitioner was one of the candidates for the location Charkhola, Block Bilsanda, Tehsil Bisalpur, District Pilibhit. Beside the petitioner there were three other applicants for the same location. The candidates were interviewed on 14.10.2011 and after the interview and perusal of their testimonials the selection committee awarded marks under the various parameters prescribed for the purposes of selection of Petrol/Diesel retail outlet under the Kisan Sewa Kendra dealership Scheme/Brochure dated 1.7.2010. The petitioner was placed in the waiting list with a total marks of 88.9. The other three candidates were awarded 33.43, 47.50 and 52.00 marks respectively. However, in spite of the petitioner being at the top of the merit in the select panel, no Letter of Intent (LOI) was issued in his favour and on the contrary the impugned order dated 30.4.2013 was passed whereby the merit panel was itself cancelled and directions were given to the re-evaluate the marks of all the candidates who had attended the interview. The reasons given for cancellation of the merit panel was that there was an error in the evaluation of "Land Parameter" of the petitioner.

We have heard Shri Vimlendu Tripathi and Shri Prakash Padia for the respondents.

The submission of learned counsel for the petitioner is that the impugned order has been passed on an alleged complaint made by one Ms. Mrudu Jaiswal. We need not go into the allegations made in the complaint of Ms. Mrudu Jaiswal. On behalf of the petitioner it has been stated that subsequently Ms. Mrudu Jaiswal submitted an affidavit dated 25.4.2012 (wrongly mentioned as 19.4.2013) filed as Annexure-6 to the writ petition (at page 91) stating therein that she had not submitted any complaint against the selection of the petitioner and that any such alleged complaint is a forged document submitted in her name. In the face of this affidavit the complaint allegedly made by Ms. Mrudu Jaiswal is a pseudonymous complaint and could not have been acted upon by the respondents. In this regard learned counsel for the petitioner has referred to the Brochure dated 1.7.2010 which deals with the selection of Petrol/Diesel retail outlet (Kisan Sewa Kendra) Dealers. Paragraph 18 of the said Brochure provides that any person aggrieved may send his complaint to the Indian Oil Corporation within 30 days of the selection. Paragraph 18(a)(i) of the Brochure, however, provides that anonymous/pseudonymous complaint will not be investigated and will be filed without taking any action on them. The relevant extract of paragraph 18(A)(i) of the Brochure reads as under:

"18. GRIEVANCE/ COMPLAINT REDRESSAL SYSTEM:

(A) An aggrieved person may send his/her complaint to IOC at the address of the customer service cell displayed at the nearest retail outlet of IOC. Complaints can also be lodge on the website of IOC. Complaints against dealer selection received after 30 days from the date of declaration of the result of the interview will not be entertained under any circumstances.

(i) Anonymous/pseudonymous complaints will not be investigate and will be field without taking any action on the same.

(ii)............."

The submission of learned counsel, therefore, is that once Ms. Mrudu Jaiswal has submitted an affidavit denying that she had never made any complaint in her name with regard to selection of the petitioner and in her affidavit dated 25.4.2012 it has been specifically stated that the affidavit made in her name was under a forged signature and that she had not submitted any such complaint, in such circumstances the said complaint allegedly made in the name of Ms. Mrudu Jaiswal becomes a pseudonymous complaint and on such a complaint no action can be taken against the petitioner. The second submission of learned counsel for the petitioner is that the other ground on which the selection of the petitioner has been cancelled is that the land in question had four co-owners of Gata No. 568, area measuring 0.385 hectare and all the co-owners had neither signed the lease deed submitted by the petitioner nor had put their signature in registered sale deed. It was also observed in the impugned order that the first empanelled candidate (the petitioner) had enclosed only notarized affidavits from the co-owners but not the registered consent of the co-owners.

It is submitted by the learned counsel for the petitioner that in the Brochure dated 1.7.2010 there was no requirment that consent from co-owners in the form of registered agreement had to be obtained. It was further submitted that the land disclosed by the petitioner for his candidature was originally owned by four persons, namely, Kamlesh Lata, mother of the petitioner, Amit alias Awadh Naresh Jaiswal (the petitioner himself), Vikram Jaiswal, brother of the petitioner and Ashish Jaiswal, another brother of the petitioner. Smt. Kamlesh Lata, mother of the petitioner and Vikram Jaiswal, brother of the petitioner sold their share to one Smt. Rajni Jaiswal through a registered sale deed dated 21.7.2009. The petitioner thereafter for the purpose of applying under the Kisan Sewa Kendra Dealership obtained the said portion sold in favour of Smt. Rajni Jaiswal on a long term lease from Smt. Rajni Jaiswal through a lease deed dated 15.2.2011 and submitted all the aforesaid documents of sale deed dated 21.7.2009 as well as the lease deed dated 15.2.2011 alongwith his application. The petitioner also submitted notary affidavits of consent of co-owners alongwith his application.

It is further submitted on behalf of the petitioner that the Dealer Selection Brochure does not require a partition amongst the co-sharers and the only requirement is that the land should be one with a clear title of the applicant or in the case of lease deed through a registered lease deed and both these eligibility conditions had been fulfilled by the petitioner. It is submitted that not only the petitioner possessed the land in his own name but even in respect of the land sold by his mother and brother Vikram Jaiswal to Smt. Rajni Jaiswal, he had obtained a registered lease deed in respect of that portion of the land from Smt. Rajni Jaiswal and so far as the remaining portion of the land was concerned he had filed notarized affidavits of the co-sharers. It is on a consideration of these documents being found sufficient and fulfilling the eligibility criteria that the petitioner was selected and awarded the highest marks of 88.9 viz-a-viz the other three applicants. The learned counsel for the petitioner has referred to paragraph 13.1, norms for evaluating the candidates under the heading 'Allocation of marks on various parameters'. Under the sub head of 'suitable land for retail outlet' under the heading 'Description' in the third column, at page 63 of the writ petition, under the condition 'A' site - it is provided that the candidate must have a clear title to land "Owned Land"/registered sale deed as on date of application. Under the condition 'B' site - it is provided as 'Having clear title to land "own land"/Registered sale deed/having land on long lease (regd.) for a minimum period of 19 years 11 months as on date of application.'

Learned counsel has also referred to paragraph 14 of the Brochure where 'owned land' has been described. Paragraph 14 (a) reads as under:

"14. APPLICANTS OFFERING SUITABLE LAND

Evaluation of the site offered by the applicants:

(a) Owned Land

Since availability of suitable land for setting up of KSK retail outlets at the advertised location is the essence of the project, the Land offered by the applicant either owned or having a firm offer, will be evaluated for marks under the Head "Land and Infrastructure", subject to technical and commercial suitability of land as decided by IOCL. The land and details offered alongwith the application alone will be considered for this purpose and the applicant will not be given the opportunity to offer any other land subsequently. For this purpose, the land owned by the 'family unit' will also be considered as belonging to the applicant subject to producing the consent on notorized affidavit signed by all concerned member/s of the 'family unit'. The definition of 'family unit' will be as per para 6 above. "

It is submitted on behalf of the petitioner that that portion of definition "owned land" which states that the land owned by the 'family unit' will also be considered as belonging to the applicant subject to producing the consent on notorized affidavit signed by all concerned member/s of the 'family unit', categorically provides for submitting the notorized affidavit signed by all family members and the petitioner not only submitted the registered sale deed dated 21.7.2009 and the lease deed dated 15.2.2011 but had also submitted the notorized affidavit of the other co-sharers and therefore he fulfilled the entire eligibility criteria for being selected for grant of letter of intent for a retail outlet under the Kisan Sewa Kendra Dealership.

Shri Prakash Padia, learned counsel for the respondent-Corporation referring to his counter affidavit however submitted that paragraph 14(b) of the Brochure clearly provides that the applicant should submit registered agreement of the land owner/s. It has also been stated that under paragraph 18(A)(i) anonymous would mean 'without a name' or pseudonymous would mean 'fictitious name or identity' and therefore the only prohibition against investigating a complaint under paragraph 18(A) (i) is that the complaint should either be anonymous and pseudonymous. However, considering the provisions of paragraph 18(A)(i) first, it will be noticed that the bar to an investigation of a complaint is that the complaint is anonymous or pseudonymous. However, when the complainant Ms. Mrudu Jaiswal filed an affidavit dated 25.4.2012 categorically stating that she had never submitted any complaint earlier against the selection of the petitioner and that any such complaint in her name was a forged complaint, such a complaint would have to be treated to be pseudonymous if not anonymous. Merely, because the complaint contains the name of Ms. Mrudu Jaiswal and there is a living person called Ms. Mrudu Jaiswal who filed the affidavit dated 25.4.2012 denying the complaint allegedly using her name would not mean that the complaint is not pseudonymous. It would still be pseudonymous. Moreover, there is nothing on record or in the counter affidavit to show that the Indian Oil Corporation took any action against Ms. Mrudu Jaiswal for verification of the complaint made by her or any legal action for filing a false affidavit in case such complaint turned out actually to having been sworn by Ms. Mrudu Jaiswal. In the face of these facts it has to be held that the complaint allegedly made in the name of Ms. Mrudu Jaiswal was a pseudonymous complaint and no investigation on such a complaint could have been made in view of the specific provisions of paragraph 18(A)(i) of the Brochure.

So far as the second submission of learned counsel for the respondent-Corporation is concerned that the land in question has many co-owners including Ms. Mrudu Jaiswal reference has been made to paragraph 14(b) of the Brochure, which reads as under:

 
	"14 (b) "Firm Offer" of Land
 
		Applicants also have the option to offer land other than that 		belonging to self (or by "Family" member or in joint 			ownership with such "Family" members i.e. co-owner/s).   		In such case the applicant should submit registered 			agreement with the landowner/s."
 
 
 
	
 
	There is nothing on record to show that there was any partition of the land in question.  The Brochure dated 1.7.2010 defines 'family unit'.   Paragraph 6(1) of the Brochure which defines family unit, reads as under:
 

 
"6. APPLICABILITY OF MULTIPLE DEALERSHIP NORM (RELATIONSHIP CLAUSE)
 

 
(I)  Relationship Clause for individual including Partnerships
 
		
 
		In a given 'family unit', consisting of a father, mother and 		unmarried brother (s)/unmarried sister(s), if the applicant is 		unmarried
 
				OR
 

 
In a given 'family unit', consisting of spouse, unmarried son(s)/unmarried daughter(s), if the applicant is married-as the case may be.
 

 
None of these individuals would be entitled to a new dealership/distributorship of any Oil Company if any other individual in this 'family unit' already holds a dealership/distributorship or Letter of Intent (LOI) for dealership/distributorship of any Oil Company.
 

 
Each partner of the applicant partnership firm has to individually satisfy the criteria as applicable for individuals stated above."
 

 

The definition of 'Family' has to be read conjointly as defined in paragraph 14(b) and paragraph 6(1) of the Brochure and cannot be read in isolation. Paragraph 14(b) permits the applicant to offer land other than that belonging to self held in joint ownership with Family members as co-owners. In the present case, in the absence of a family partition the land offered by the petitioner would be joint ownership land with such 'Family member/s. Paragraph 14(b) does not mention 'Family Unit' therefore, the term 'Family' here must necessarily mean Family members outside the 'Family Unit' but owning the land in joint ownership. Such family members would be 'co-owners' and that would include the brother or brothers in the petitioner's family. Even otherwise if the petitioner is married, as he is as per his application, and his son/s or daughter/s are minor, such minors cannot be called upon to give a notorized affidavit in favour of the petitioner. Law militates against such a procedure. Therefore, a reading down of the definition of Family/Family Unit is necessary to make a sensible reading of 'Family' in the light of the term as used in paragraph 14(b) and paragraph 6(1) of the Brochure.

The fact that the petitioner was selected and given the highest marks on the basis of testimonials produced by him leads to the inference that all these factors must have been considered by the selection committee at the time when the selection was made and therefore this question cannot be raised now. Besides, as already noted above, paragraph 14(A) of the Brochure in no uncertain terms provides that the applicant has to submit the consent of all the concerned member(s) of the family unit on a notorized affidavit. This has been done by the petitioner and, therefore, it is not correct on the part of the respondents to insist that he should have submitted registered agreement with the co-sharers. Even the khatauni filed by the respondent as Annexure-5 to the writ petition shows Smt. Kamlesh Lata, Vikram, Amit (Awadhesh Naresh Jaiswal, the petitioner) and Ashish as co-owners of plot no. 568, plot in question. The entries in this Khatauni are of date 25.3.2011 whereas Smt. Kamlesh Lata and Vikram, mother and brother are stated to have executed the sale deed in favour of Smt. Rajni Jaiswal on 21.7.2009, therefore, it cannot be inferred that Smt. Kamlesh Lata and Vikram had sold their entire share to Smt. Rajni Jaiswal.

It is also noteworthy that in the subsequent Brochure dated 2.11.2011 the respondents, probably realizing the fluidity and vagueness in the definition of 'Family members' in paragraph 14(a) and paragraph 14(b) of the earlier Brochure of 1.7.2010 have extended the description of 'Owned Land' to include land owned by Family members exclusively, as well as land owned by the applicant exclusively with 'Family' members. Paragraph 14(a) Owned Land under the Existing Brochure dated 2.11.2011 at page 109 of the writ petition, reads as under:

"4(a) Owned land:

The following will be considered as owned land:

(i) Land owned by the applicant exclusively

(ii) Land owned by the "family" members exclusively

(iii) Land owned by the applicant exclusively with "family" members

(iv) Land owned by the applicant along with others provided share of applicant in the land meets IOC's requirement.

The land falling in category (ii), (iii) and (iv) will be considered as belonging to the applicant subject to applicant producing the consent on notarized affidavit signed by all other co-owners. The definition of "Family unit" will be as per para 6 of the Brochure."

In this view of the matter the judgements, relied upon by the respondents, of this court passed in Writ Petition no. 44583 of 2012 Jitendra Singh Vs. Union of India and others decided on 4.9.2012 and Writ Petition No. 37831 of 2012 Neeti Verma Vs. Union of India and others decided on 29.8.2012 would have no application to the facts of the present case.

Thus in the totality of circumstances and on a consideration of the facts of the present case and in view of the specific terms and conditions of the Selection Brochure dated 1.7.2010, the impugned order dated 30.4.2013 is not sustainable in law and is accordingly quashed.

The writ petition stands allowed. The respondents are directed to proceed with the merit panel and the marks awarded therein and issue a Letter of Intent in favour of the petitioner, if there is no other impediment. This exercise shall be completed by the respondents within a period of one month from the date a certified copy of this order is received by them.

Dated: 2.8.2013.

o.k.

(B. Amit Sthalekar, J.)    (Vineet Saran, J.)