Bombay High Court

Atul Tanaji Patil vs The Union Of India And Ors on 23 August, 2017

Bench: Naresh H. Patil

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 913 OF 2015


 Atul Tanaji Patil
 R/at: Navali, Tal: Panhala,
 Dist. Kolhapur.                                                                    ...   Petitioner

          V/s.

 1. The Union of India

 2. The Ministry of Petroleum & Natural Gas
    Shastri Bhavan, New Delhi.

 3. Indian Oil Corporation Ltd.
    (Marketing Division)
    Maharashtra State Office, Indian Oil
    Bhavan-BKC, Plot No.C-33, 'G' Block,
    Bandra Kurla Complex, Bandra East,
    Mumbai 400 051.

 4. The Customer Service Cell Center,
    Indian Oil Corporation Ltd.,
    Goa Divisional Office,
    C/o. Indian Oil Bulk Petroleum Terminal,
    Vasco-Da-Gama, Goa 403802.

 5.       Smt. Ashwini Uttam More
          R/at: Borivade, Tal. Panhala,
          Dist. Kolhapur.

 6.       Samhaji Mahadeo More
          r/at Borivade, Tal: Panhala
          Dist. Kolhapur                                                            ...   Respondents


 Mr. S.G. Deshmukh i/b. Mr. R.A. Shelke for the petitioner.




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 Mr. Anurag Gokhale a/w. Mr. D.R. Shah for respondents 1 and 2.
 Mr. Sunil Gangan i/b. RMG Law Associates for respondents 3 and 4.
 Mr. S.R. Ghanavat for respondent nos.5 and 6.


                           CORAM :          NARESH H. PATIL AND
                                            SMT. BHARATI H. DANGRE, JJ.


               RESERVED ON: 6th JULY, 2017.
             PRONOUNCED ON: 23rd August, 2017.



 JUDGMENT (PER NARESH H. PATIL, J)

Rule. Rule made returnable forthwith. Heard finally by consent of

parties.

2. The petitioner prays for following reliefs:-

(a) to issue a writ of Mandamus or any other appropriate

Writ, order or direction in the like nature and to direct the

Respondent No.2 and 3 to cancel the selection of the

proposed firm of the Respondent Nos. 5 and 6 for grant of

'Retail Dealership' made on the basis of the advertisement

dated 14/9/2011;

(b) to issue a Writ of Mandamus or any other Writ, order or

direction in the like nature and to direct the Respondent

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No.3 to follow new procedure of selection of the 'Retail

Dealers' by adopting the method of 'Draw of Lots'

mentioned in the Letter dated 23/6/2014 by which

guidelines were issued to the Respondent No.3.

( c) to issue a Writ of Mandamum or any other Writ, order

or direction in the like nature and to direct the Respondent

No.3 not to approve 'Letter of Intent' in favour of the

proposed partnership firm of the Respondent Nos. 5 and 6

and if already approved, to direct the Respondent No.3 to

cancel the same;

(d) to stop further proceedings on the basis of the selection

of the proposed partnership firm of the Respondent Nos. 5

and 6 during the pendency of this Petition;

3. The Marketing Division of Indian Oil Corporation Ltd. (IOC)

published advertisement on 14th September, 2011 in the newspaper for

appointment of retail outlet (petrol pump) Dealers within 3 km. from the

Borpadle Phata on the left hand side of the Kolhapur-Ratnagiri Road.

Pursuant to said advertisement petitioner submitted his application in the

prescribed form on 14th October, 2011. It is contended that three

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applicants including the petitioner applied for the said dealership. The

interview of the petitioner and other two applicants was scheduled on 27 th

December, 2012 at Vasco-Goa in the office of respondent no.4. One of

the applicants namely Shri Anantsagar Vilas Medshinge was declared as

disqualified. The petitioner secured 84 marks and respondents 5 and 6

(Partners) were awarded 85.75 marks in the interview. The petitioner

alleges that the marks allotted to the partnership firm formed by

respondents 5 and 6 was against the prescribed norms and the rules

mentioned in the Brochure of the respondents. It is alleged that

respondents awarded zero marks to the petitioner under the heading

'Ready availability of finance'. He submitted that while considering

proposal of respondent firm, the company considered it liberally, however,

while allotting marks to petitioner very rigid and mechanical approach was

adopted.

4. The petitioner states that on 17 th January, 2013 he filed a complaint

before the Grievance/Complaint Redressal system of the respondent

no.3. The petitioner raises several issues in the said application. It is the

petitioner's case that respondent no.3 company completely lost sight of

the requirement of the frontage of the plot which was earmarked by

respondents 5 and 6. It is alleged that the total land area was mentioned

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as 4425 sq. meters in the application of respondents 5 and 6. Said piece

of plot was owned by respondents 5-Sou. Ashwini Uttam More

admeasuring 4100 sq. meters which was purchased from the respondent

no.6-Shri Sambhaji Mahadev More under registered sale deed dated 10th

October, 2011. The required frontage was 45X65 meters. The plot

selected by respondents 5 and 6 did not have the said frontage. The

petitioner further alleges that respondents 5 and 6 submitted unregistered

partnership deed on a Stamp paper of Rs.100/- which was said to be

executed on 11th October, 2011 but on the last page the date of party

signing the deed was mentioned as 19th August, 2005 at Kolhapur.

5. The complaint filed by the petitioner was decided by the Grievance

Redressal Committee of respondent no.3 on 20th November, 2014. The

petitioner states in Paragraph 13 and 14 of the petition as under:-

"13. The Petitioner states that the Petitioner is also

challenging the selection of the proposed firm of the

Respondent Nos. 5 and 6 on the ground that the same is

not in consonance with the Guidelines issued by the

Respondent No.2 to the Respondent No.3 time to time.

The Petitioner states that in view of the Guidelines issued

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by Respondent No.2 to the Respondent No.3 dated

17/2/2014 and 23/6/2014 the whole procedure should have

been cancelled and fresh advertisement should have been

issued for the selection of the Retail Dealers.

14. The Petitioner states that the Respondent No.2 by

its letter dated 17/2/2014 has issued guidelines for the

selection of the Retail Outlet dealership for setting up of

new ROs. The Petitioner states that in the said guidelines

it is mentioned that the selections of the new Retail Outlets

should be done though the Draw of Lots. The Petitioner

states that the selection of the Retail Outlets in the present

case has been made through the interview process and

not through the process of Draw of Lots. The Petitioner

states that the selection of the Retail dealers should have

been through the draw of lots however it was made

through old process without following the guidelines issued

by the Respondent No.2 Ministry tot he Respondent No.3

Company. The Petitioner states that the whole process of

selection of Retail Dealers in the present case is bad being

contrary to the above guidelines. Hereto annexed and

marked Exhibit-I is a copy of Letter dated 17/2/2014

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issued to the Respondent No.2 to the Respondent No.3."

6. The petitioner further contends that respondent no.3 issued a

communication to respondents 5 and 6 on 26th October, 2013 calling for

explanation in respect of the dates appearing on the partnership deed.

Respondents 5 and 6 submitted that there was typographical error in the

said document and same would be corrected by enclosing the original

copy of the partnership deed. But instead they submitted a new

partnership deed which was executed on 26th December, 2012.

7. The petitioner placed reliance on revenue record in respect of the

allegations made regarding dimension of the said plot which was selected

by respondents 5 and 6 for starting retail outlet.

8. The Respondents 5 and 6 submitted their affidavit-in-reply. They

denied the allegations made by the petitioners. It is submitted that they

were selected in accordance with the procedure. Respondents 3 and 4

filed affidavit-in-reply. They contended in Paragraphs 11 and 12 as

under:-

"11. With reference to paragraphs 9 and 10, in so far as

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frontage of the land offered by Respondent Nos. 5 and 6 is

concerned, the same has been duly approved by these

Respondents in their Investigation Report and it has been

confirmed that land admeasuring 5474 sq. meters bearing

Sy. No.33 is owned by both the partners of Respondent

No.6. Out of 5470 sq. meters, 4100 sq. meters of land is

in the name of Smt. Uttam More and the balance is in the

name of Shri Sambhaji More. It is held that Smt. Uttam

More has offered all her land admeasuring 4100 sq.

meters for this Retail Outlet against the requirement of

2925 sq. meters. It is also held that the registered Sale-

deed of the land offered by Smt. More mentions the area

of the land and that measured plot map has been duly

certified by governmental authorities which shows that for

an offered land, frontage is 47 meters. Therefore, the said

land offered by Respondent Nos. 5 and 6 meets the

criteria of frontage. It is denied that the land mentioned in

the applications filed by Respondent Nos. 5 and 6 does not

fulfill the criteria mentioned in the brochure of the

Respondents. It is denied that the Evaluation Committee

conveniently rejected this issue as mentioned in the

complaint. It is denied that on this ground, Respondent

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No.6-firm ought to have been disqualified.

12. With reference to paragraph 11, the issue regarding

difference in the Partnership Deed is also dealt with by the

Investigating Officer and it has been held that the

Partnership Deed was executed on 17 th October, 2011;

whereas on the last page, it has been mentioned that both

the parties have signed the Agreement on 19 th August,

2005. This difference in date on the first page and on the

last page of the Partnership Deep was questioned to

Respondent Nos. 5 and 6, which explains that the reason

for difference of date was a mistake because the first page

clearly states the date as "17th October, 2011". The Stamp

Paper is dated 27th September, 2011 and, therefore, the

date mentioned as "19th August, 2005" on the last page is

obviously an inadvertent error. On this ground, the

explanation given by Respondent Nos. 5 and 6 was

accepted by the Evaluation Committee of these

Respondents. It is denied that the Partnership Deed was

not genuine and Respondent Nos. 5 and 6 are not partners

for selecting them as retails dealers. It is denied that the

Evaluation Committee ought to have disqualified

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Respondent Nos. 5 and 6."

9. The Learned Counsel appearing for the petitioner submitted that

the entire selection process gets vitiated due to violation of the procedure

and conduct of the respondents 5 and 6. It was submitted that

respondents did not follow selection process in the strict terms and were

liberal while considering the case of respondents 5 and 6. The Counsel

submitted that in fact the company had taken decision to select dealers

by way of draw of lots.

10. The Counsel appearing for respondent nos.3 and 4 submitted that

in accordance with the Brochure and terms and conditions stipulated in

the advertisement, selection process was conducted; documents were

verified; parties were interviewed and respondents 5 and 6 were selected.

11. The Counsel appearing for respondents 5 and 6 placed reliance on

the affidavit-in-reply filed before this Court. Learned Counsel submitted

that petitioner secured less marks than respondents 5 and 6. There was

nothing wrong in respondents forming a partnership for applying allotment

of petrol retail outlet. The plot which was offered to the company was

fulfilling the required conditions. The Counsel further submitted that there

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was typographical error in the partnership deed, therefore, a corrected

deed was submitted to the company which was accepted. It was a

bonafide mistake and, therefore, the company permitted them to correct

mistake and accordingly a corrected deed was submitted. On merits

respondents 5 and 6 secured more marks than the petitioner and just to

create certain hurdles petition has been filed due to which further steps

could not be taken due to which retail outlet could not start.

12. We have perused the brochure and terms and conditions of

advertisement. Subject clauses (c ) and (d) of clause 21.0 of brochure

issued by the Indian Oil Corporation Ltd. regarding selection of petrol

pump reads as under:

"(c) No addition/deletion/alteration will be permitted in

the application once it is submitted.

(d) No additional documents whatsoever will be

accepted or considered after the cut-off date of the

application."

13. The petitioner has prayed for cancellation of the selection process

and for initiating a fresh selection process by canceling the Letter of Intent

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issued in favour of respondents 5 and 6. This petition was filed in the

year 2015. Further steps consequent to issuance of Letter of Intent were

stayed by this Court by an ad-interim order dated 28 th January, 2015. It is

informed that said ad-interim order continuous even now. It is necessary

to remember that advertisement was issued for the retail outlet in the year

2011.

14. The petitioners have raised issues relating to the method of

allotment of marks, dimension of the plots, grant of marks in favour of

respondents 5 and 6 and violation of essential conditions of the Brochure.

15. We find that in terms of the Brochure no addition, deletion,

alteration was permitted in the application once it was submitted. Neither

additional documents of whatsoever nature were to be accepted or

considered after the cut off date of the application. There is no dispute

that there was error in the partnership deed submitted by respondents 5

and 6 while they applied for retail dealership. The earlier partnership deed

was shown to be executed on 17 th October, 2011, however, on the last

page of the deed different date i.e. 19 th August, 2005 was mentioned. In

response to the company's communication respondents 5 and 6 clarified

by a communication dated 1st November, 2013 which reads as under:

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"We received your letter dated 26 th October 2013 with

above subject in reference to the dealership of a retail

outlet at "within 3 km from Borpadalephata on LHS of

Kolhapur-Ratnagiri Road".

We agree with your observation that partnership deed was

executed on 17th October, 2011, however, on last page of

deed shows different date i.e. 19 th day of August 2005 and

we regret to inform that it was a "typing error". So, we

herewith confirm you that 17 th October 2011 was the

correct date of execution of deed which is the same on first

page of deed.

We shall be very thankful for considering above

clarification on difference in dates in deed and seek you

support to nullify this observation.

We have corrected this error in deed and enclosing

original copy for your reference.

We lookforward to hearing from you and anticipating IOC

would issue us Letter of Intent for RO at earliest."

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16. By submitting a original copy of the partnership deed they

submitted a new partnership deed executed on 26th December, 2012. In

our considered view this was not permissible under the terms and

conditions. This was the basic document to be filed at the time of initial

application filed by respondents 5 and 6. They were given composite

marks as a partnership concern. Therefore, the explanation tendered by

respondents 5 and 6 that it is merely a correction deed cannot be

accepted in view of the fact that proposed partnership deed was

executed on 17th October, 2011.

17. As regards the dimension of the plot, we find some substance in

the submissions of the petitioner. Based on the record placed before this

Court, the petitioner submitted that it is true that Ministry of Petroleum

had taken a decision to cancel all cases of distributorship allotment. The

Company was to adopt a system of draw of lots. The said decision was

communicated by the Government of India to the Director (Marketing) of

the Oil Companies by communication dated 23 rd June, 2014 which is at

Exhibit J. The said communication reads as under:

"I am directed to say that the matter regarding the

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process of allotment of Retails Outlet (RO)

dealership/LPG distributorship has been examined in the

Ministry. OMCs are directed to cancel all cases of

ROs/LPG distributorship allotments in the cases where

interviews including original or re-scheduled or arising

out of established complaints are pending as on date of

issue of this letter. OMCs are advised that all such

locations may be taken up afresh as per extant policy

under new system of "draw of lots" by undertaking fresh

process of selection.

This issue with the approval of MOS (I/C) P & NG."

18. We find that the said communication may not help the petitioner as

by that time interview in this case was held, marks were allotted and

Letter of Intent was also issued. In view of the record placed before this

Court, reply filed and submissions advanced, we find that essential

conditions in respect of the submission of application by the respondents

5 and 6 were not complied with. Respondent company was not entitled

to accept fresh partnership deed executed later on i.e. on 26 th December,

2012 while the earlier proposed partnership deed executed on 17 th

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October, 2011 was on record. The petitioner's application was processed

based on the proposed partnership deed executed on 17 th October, 2011

and not on the basis of 26th December, 2012. This issue goes to the root

of the matter. The petitioner had brought to the notice above stated

issues for the consideration of the company which were substantial in

nature. The company ought to have minutely looked into the grievance of

the petitioner and verified the record placed before issuing a Letter of

Intent, more so, in the light of the fact that margin of marks secured by

petitioner and respondents 5 and 6 was very thin. Petitioner secured 84

marks whereas respondents 5 and 6 jointly as proposed partners secured

85.75 marks. It is a matter of record that though the advertisement was

issued for retail outlet in the year 2011, since last 5 to 6 years, retail outlet

could not start. Taking into consideration the facts and circumstances,

the record placed before us, we are of the view that the entire selection

process is required to be quashed and set aside. We pass following

order:

ORDER

(i) The Petition is allowed.

(ii) The selection process undertaken by respondent no.3 for appointment of retail outlet (petrol pump) Dealers,at location; within 3 kms from the Borpadle Phata on the left

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hand side of the Kolhapur-Ratnagiri Road, issued under the advertisement dated 14th September, 2011 is quashed and set aside.