Amit Kumar Singh vs Union Of India And 2 Others
2013 Latest Caselaw 7231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 

 
Court No. - 10
 

 
Case :- WRIT - C No. - 65026 of 2013
 

 
Petitioner :- Amit Kumar Singh
 
Respondent :- Union Of India And 2 Others
 
Counsel for Petitioner :- S.P. Giri
 
Counsel for Respondent :- A.S.G.I.,Smt. Archana Singh
 

 
Hon'ble Arun Tandon, J.

Hon'ble Anjani Kumar Mishra, J.

Heard Shri S.P.Giri, Advocate on behalf of the petitioner and Smt. Archana Singh, Advocate on behalf of the Indian Oil Corporation.

Petitioner before this Court seeks quashing of the order of the Officiating General Manager, Indian Oil Corporation, Lucknow dated 01.10.2013. The order has been made in pursuance to the directions issued by writ Court dated 30.04.2012 passed in Civil Misc. Writ Petition No. 28703 of 2012.

Under the order impugned the selection of the petitioner as dealer for the retail outlet of the Indian Oil Corporation at Robertson Ganj Road, District Mirzapur stands rejected on the ground that one Phoolpatti Devi was admittedly one of the co-sharers of the land which was offered by the petitioner for the purposes of establishing the retail outlet under the dealership but no notarized affidavit of Phoolpatti Devi was enclosed along with the application form disclosing her no objection to the establishment of the retail outlet on the land in question, therefore, marks awarded to the petitioner during interview in respect of the availability of land for retail outlet had to be deleted and as a result whereof his name has to be deleted from the list of selected candidate.

The order of the General Manager is being challenged basically on the ground

(a) no doubt Phoolpatti Devi was one of the co-sharers of the land which was offered by the petitioner for establishing the retail outlet along with other persons as mentioned on page 169 of the paper book and that there was no notarized affidavit of Phoolpatti Devi expressing her no objection in the matter of establishing of retail outlet in favour of the petitioner but such notarized affidavit was not required, as Satya Pal s/o. Phoolpatti Devi who was holder of a registered power of attorney of Phoolpatti Devi, had given an affidavit that he had no objection to the establishment of the retail outlet on the land as disclosed in the affidavit.

Counsel for the petitioner with reference to the judgment of Apex Court in the case of Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana reported in AIR (SC) 2012, 206, especially paragraph 9, submitted that the power of attorney holder is authorized to manage the affairs on behalf of the Executor of the power of attorney and to execute a deed of conveyance, if so required. He, therefore, submits that once the power of attorney holder has given the affidavit qua no objection, no further affidavit was required from Phoolpatti Devi in the facts of the case.

(b) the land is actually to be offered only after a dealer is selected and for the purpose, two months time is permitted under the brochure. In this two months' period the petitioner could have removed all deficiencies in respect of the land as pointed out in the impugned letter.

It is also submitted that the Indian Oil Corporation had obtained a legal opinion in the matter from Shri Prem Sagar Singh and the counsel had referred to power of attorney executed by Phoolpatti Devi in favour of her son Satya Pal who in turn had given an affidavit recording his no objection in the matter of establishment of the retail outlet over the land. It is lastly explained that under private arrangement with other co-sharer, the mother and father of the petitioner have been allocated required area of land where the retail outlet was proposed to be established.

Counsel for the Indian Oil Corporation disputes the correctness of the allegations so made and submits that there has been complete non consideration of the real issue involved. Under the brochure published by the Indian Oil Corporation, notarized affidavit of each of the persons whose name as owner of the land is recorded, has to be submitted along with the application and it is on the basis of the said application that the marks are awarded under various heads including the head of 'availability of land'. In the facts of the case, marks were awarded to the petitioner treating him to be possessed of suitable area of land and all necessary requirement in that regard having been satisfied.

It is only on complaint being made that the Indian Oil Corporation could come to know that one of the co-sharer namely Phoolpatti Devi who had not submitted a notarized affidavit in respect of the construction of the retail outlet on the land. It is not disputed that Phoolpatti Devi was also recorded as co-sharer qua the land in question. On verification it was found that affidavit of one of the co-sharer was wanting, the Indian Oil Corporation rightly decided to deduct the marks which were awarded to the petitioner under the heading availability of suitable land as the petitioner did not satisfy the necessary requirements. Such decision of the Indian Oil Corporation cannot be faulted with. Because of such deduction of marks, the petitioner stands outside the zone of selection which is only a consequence of deduction of marks earlier awarded to the petitioner. It is also pointed out that internal arrangement between co-owners which is not reflected in the revenue records cannot be taken into consideration and notarized affidavit of all the co-sharers is a condition precedent for the marks being awarded under the heading availability of suitable land. It is also pointed out that report of the Advocate only notices the factual statement that the mother and father of the petitioner under an oral arrangement have been awarded requisite area of land over which the retail outlet can be constituted. Such legal opinion is neither binding upon the Indian Oil Corporation nor it can dilute the condition of the brochure.

With regard to the plea that Satya Pal, the power of attorney holder of Phoolpatti Devi had given a notarized affidavit, therefore, no further affidavit of Phoolpatti was required, counsel for the Indian Oil Corporation points out that Satya Pal was himself a co-sharer of the land. He had only expressed his no objection in respect of the retail outlet to be constructed on the land so far as his share in the property is concerned. His affidavit does not refer to any act by Satya Pal in his capacity as power of attorney holder for Phoolpatti Devi. The petitioner wants to read something which is not recorded in the affidavit of Satya Pal. It is, therefore, submitted that affidavit from Phoolpatti Devi was required in addition to one of Satya Pal.

We have heard learned counsel for the parties and have gone through the records of the present writ petition.

In order to appreciate the controversy raised by the counsel for the parties, at the very outset it is stated that it is not in dispute between the parties that under the procedure prescribed for dealership, marks are to be awarded under various heads including the head of 'availability of suitable land' and that under the brochure , if the applicant is not recorded owner of the land for the purposes of establishing the retail outlet, then it is required that he must enclose a notarized affidavit of co-sharers of all the the property. In the facts of the case, the mother and father of the petitioner were recorded as joint owners over the land in question along with Gyan Devi, Phoolpatti Devi, Narendra Singh, Savita ingh, Suresh Kumar, Rajesh Kumar, Satya Pal, Radhey Shyam and Triveni Chaurasia. Petitioner filed notarized affidavits of all the joint owners including that of Phoolpatti Devi along with his application form but the same was neither notarized nor signed. The order impugned records that the petitioner cannot be awarded marks for the land in question inasmuch as notarized affidavit of one of the co-owner namely Phoolpatti Devi was wanting.

The petitioner initially stated that no such affidavit of Phoolpatti Devi was filed along with the application.

On being asked to refer the particular paragraph of the writ petition wherein such statement has been made, counsel for the petitioner hopelessly failed to refer to any such averment in the writ petition.

We, therefore, record that the finding recorded in the order impugned to the effect that affidavit of Phoolpatti Devi was filed by the petitioner but it was neither notarized nor signed has to be accepted as correct as the said finding has gone un-challenged.

So far as the plea that Satya Pal, one of the co-owners was the power of attorney holder of Phoolpatti Devi and, therefore, if he has given his notarized affidavit expressing no objection to the construction of the retail outlet on the land in question, then no further affidavit from Phoolpatti Devi was required is completely misconceived. The affidavit of Satya Pal has been examined by us in ex tensio. In the said affidavit Satya Pal has expressed no objection on behalf of himself qua construction of retail outlet over the land in question and there is no averment of any no objection being given on behalf of Phoolpatti. A power of attorney holder is authorized to act on behalf of person who has executed the power of attorney by such act must be disclosed specifically. Merely because the power of attorney holder expressed no objection on his behalf, it will not mean that he has also expressed no objection on behalf of a person qua whom he is the is power of attorney holder.

We also record that the case which is being pleaded by the petitioner before us is clearly an after thought. No such case was pleaded in the application filed before the Indian Oil Corporation. The judgment relied upon by the counsel for the petitioner in the case of Suraj Lamp and Industries (Supra) only permits the power of attorney holder to act as the Executor and nothing further. In the facts of the case there has been no action by the power of attorney on behalf of the Executor of the power of attorney. Therefore, the judgment is clearly distinguishable.

The plea that the availability of land is to be seen for the purposes of establishing the retail outlet after the person is selected and for which two months time is provided after selection also has no substance inasmuch as marks were awarded to the petitioner with reference to the availability of land for which verification had to be cancelled for want of affidavit of one of the co-owners.

In the totality of the circumstances, we find no good ground to interfere with the order of the Indian Oil Corporation.

Writ petition is dismissed.

Dated :02.12.2013

VR/65026/13