Anup Kumar Bala vs Union Of India & Ors
2021 Latest Caselaw 6393 Cal

Form No. J(2)

             IN THE HIGH COURT AT CALCUTTA
            CONSTITUTIONAL WRIT JURISDICTION
                     APPELLATE SIDE


Present:
The Hon'ble Justice Saugata Bhattacharyya

                      W.P.A. 7540 of 2010
             (IA NO: CAN 4/2017 (Old No: CAN 7060/2017),
                  CAN 5/2018(Old No: CAN 1701/2018)


                        Anup Kumar Bala
                                -vs-
                     Union of India & Ors.


For the Petitioner                  : Mr. Sankar Prasad Dalopati,
                                      Mr. Safik Dewan

For the Respondent Nos.2 to 3       : Mr. Manavendra Singh Yadav

For the Respondent No.4             : Mr. S. N. Biswas,
                                      Mr. Amit Muhuri


Heard on: 17.12.2021

Judgment on: 17.12.2021

Saugata Bhattacharyya, J.:

This is a writ petition at the instance of a candidate

who was desirous to have a dealership, namely, Kishan Seva

Kendra (for short "KSK") pursuant to an advertisement

published on a Bengali Vernacular on 18th March, 2008. The

writ petitioner having noticed such advertisement issued by

the Indian Oil Corporation Limited (for short "Oil Company")

submitted application in the prescribed pro forma indicating

the details of the land as per the said advertisement. The

application which was furnished in terms of the said

advertisement dated 18th March, 2008 was appraised by the

Oil Company and it has been submitted on behalf of the writ

petitioner that a panel of prospective candidates for offering

such KSK dealership was prepared where petitioner topped

the panel.

After preparation of the said panel the second

empanelled candidate being respondent no.4 lodged a

complaint before the concerned authority of the Oil Company

dated 3rd March, 2009 and 6th March, 2009 alleging that the

land offered by the writ petitioner for obtaining the subject

dealership was not in consonance with the requirement as

contained in the advertisement therefore questioned the

eligibility of the writ petitioner to get the said dealership

pursuant thereto a survey was conducted by a surveyor at

the instance of the concerned authority of the Oil Company

on 26th July, 2009. Writ petitioner and the respondent no.4

participated in the said survey proceedings conducted by the

surveyor appointed by the Oil Company.

It is the specific case of the writ petitioner that outcome

of the survey conducted on 26th July, 2009 was not made

known to him by the Oil Company till filing of the affidavit-in-

opposition to this writ petition pursuant to the order passed

by this Court.

From the affidavit-in-opposition affirmed on behalf of

the Oil Company, it appears that the survey report was

prepared and signed by the surveyor on 3rd August, 2009

wherefrom certain observations were made by the surveyor

against the piece of land offered by the writ petitioner for

getting the subject dealership. Pursuant thereto order dated

24th September, 2009 was issued by the Chief Divisional

Retail Sales Manager, Haldia Divisional Office of the said Oil

Company whereby based on such survey report dated 3rd

August, 2009 candidature of the writ petitioner was

cancelled.

Writ petitioner has taken specific point that after

participating in the survey proceedings which was held on

26th July, 2009 the survey report dated 3rd August, 2009 was

not supplied to him prior to taking the decision relating to

cancellation of the candidature of the writ petitioner as

contained in impugned Memo dated 24th September, 2009. It

is also submitted that the concerned authority of the said Oil

Company has issued the impugned order dated 24th

September, 2009 cancelling his candidature unilaterally

without granting of any opportunity of hearing to him as a

result whereof ex facie writ petitioner is prejudiced. In

addition thereto it has also been submitted that the conduct

of the Oil Company goes to show that there is clear violation

of natural justice prejudicing the right of the writ petitioner to

offer his case before the concerned authority of the Oil

Company prior to taking decision as contained in the

impugned letter dated 24th September, 2009.

In support of such contention Mr. Dalopati, learned

advocate representing the writ petitioner has relied upon the

judgment, report in 2020 SCC Online SC, page-847,

paragraphs-12, 13, 14, 23, 27, 39 & 40, in the case of

State of U.P. -vs- Sudhir Kumar Singh in order to

demonstrate before this Court that before taking any decision

by the authority against a person whereby the right of the

said person is prejudiced, observance of principle of natural

justice is sine qua non.

Per contra, Mr. Yadav, learned advocate appears on

behalf of the said Oil Company and opposes the prayer made

on behalf of the writ petitioner and has also strenuously

argued to defend the decision of the Oil Company as

contained in the impugned Memo dated 24th September,

2009 to the extent of cancellation of the candidature of the

writ petitioner. In support of such contention it has been

argued on behalf of the Oil Company that as per the

advertisement dated 18th March, 2008 the dealership was

earmarked for open category candidate and by placing

reliance on the relevant part of the said advertisement it has

been submitted before this Court that the piece of land which

is required to be offered by the candidate must have a

measurement of 25 metre x 25 metre notwithstanding the

composite measurement of the land i.e. 6724 Sq. ft. The bone

of contention of the Oil Company is this apart from

compliance of the composite measurement and/or total

measurement of the land the frontage as well as depth of the

land got to be 25 metre x 25 metre. It has been submitted

that after appraisal of the application submitted by the writ

petitioner though prima facie he was placed at the first

position in the panel for offering the subject dealership but

subsequently on conducting survey it appears that the land

offered by the writ petitioner does not conform to the

requirement as indicated in the relevant part of the said

advertisement.

It is also submitted that the respondent no.4 made

comprehensive complaints by two letters dated 3rd March,

2009 and 6th March, 2009 and on receipt of such complaints

in terms of Clause 21 of the Brochure the concerned

authority of the said Oil Company is empowered to conduct

enquiry including the survey which was conducted in the

present case on 26th July, 2009. Survey report went against

the writ petitioner which resulted in issuance of the

impugned letter dated 24th September, 2009 cancelling the

candidature of the writ petitioner.

It is also submitted on behalf of the Oil Company that

though the survey report subsequently prepared on 3rd

August, 2009 was not supplied to the writ petitioner but writ

petitioner participated at the time of survey conducted on

26th July, 2009 therefore there is no need to give further

opportunity to the writ petitioner to present his case before

passing the impugned order dated 24th September, 2009.

However, during course of hearing, it has been fairly

admitted by Mr. Yadav, learned advocate representing the

said Oil Company that the survey report dated 3rd August,

2009 was not supplied to the writ petitioner and in the same

breath it has also been submitted on behalf of the said Oil

Company that such failure on the part of the said Oil

Company to supply the said survey report does not vitiate the

steps taken against the writ petitioner and it remained open

to the writ petitioner to apply before the said Oil Company for

getting the copy of the survey report before making

representation. In the present case the writ petitioner did not

follow these steps therefore there is no flaw in the decision

making process as emanates from the letter dated 24th

September, 2009.

In addition thereto Mr. Yadav has relied upon a

decision in the case of Suresh Koshy George -vs- University

of Kerala & Ors., reported in AIR 1969 SC 198, paragraph

9 in order to demonstrate before this Court that if there is no

prejudice caused to a party supply of materials is not

required.

Mr. Biswas, learned advocate appears on behalf of the

respondent no.4, who is the second empanelled candidate for

grant of the subject dealership. It has been submitted by Mr.

Biswas that after being informed about the inadequacy of the

piece of land offered by the writ petitioner pursuant to the

advertisement dated 18th March, 2008 he lodged two

complaints dated 3rd March, 2009 and 6th March, 2009 upon

enclosing the relevant documents which satisfied the

respondent Oil Company that the application of the writ

petitioner so far the offering of land is concerned was not in

consonance with the requirement which led to conducting

survey by appointment of an independent surveyor and based

on the report of the surveyor dated 3rd August, 2009

ultimately the decision was taken against the writ petitioner

thereby cancelling his candidature and there is no flaw in

taking such decision by the said Oil Company. It is also

submitted on behalf of the respondent no.4 that the Letter of

Intent has already been issued in his favour pursuant to the

impugned decision of cancelling candidature of the writ

petitioner dated 24th September, 2009.

Another limb of submission advanced on behalf of the

respondent no.4 is that the last date for submitting the

application in terms of the advertisement dated 18th March,

2008 was 18th April, 2008 and the rectified deed was

submitted by the writ petitioner on 22nd October, 2009 which

is beyond the cut off date therefore the rectified deed ought

not to have been considered by the said Oil Company while

apprising the candidature of the writ petitioner.

This Court has considered the submissions of the

learned advocates representing the writ petitioner, Oil

Company and the respondent no. 4 and also examined the

relevant documents which are made part of the record. It

appears that pursuant to the advertisement dated 18th

March, 2008 an application was submitted by the writ

petitioner within the cut off date which was fixed on 18th

April, 2008 and thereafter the writ petitioner was found to be

eligible candidate for grant of subject dealership and he is

accordingly placed at first position as it emanates from the

impugned letter dated 24th September, 2009. The respondent

no. 4 being the second empanelled candidate in a quick

succession preferred two complaints before the said oil

company, one dated 3rd March, 2009 and another dated 6th

March, 2009. In receipt of such complaints straightway the

concerned authority of the oil company decided to have

further measurement of the piece of land offered by the writ

petitioner by appointment of surveyor but on perusal of

Clause 21 of the Brochure it appears that before taking steps

on the basis of the complaints received by the oil company

certain steps need to be taken as contemplated under sub-

paragraphs of Clause-21. For better understanding of the

entire issue this Court finds it apposite to quote Clause 21 of

the Brochure :-

"21. Grievance /Complaint redressal system:

a) An aggrieved person may send his/her complaint to the oil company at the address of the divisional Officer displayed at the nearest retail outlet of the concerned oil company. Complaints can also be lodged on the website of the oil company. 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 investigated and will be filed without taking any action on the same.

(ii) On receipt of a complaint, a letter will be sent by the oil company to the complainant through Registered Post advising the complainant to submit details of allegation with a view to prima facie substantiate the allegations along with supporting documents, if any, within 30 days. The complainant will be clearly advised that the oil company will examine the complaint and if it is established that the complaint does not have any substance, he/she may be liable for legal action. The oil company will examine response of the complainant and if it is found that the complaint does not have specific and verifiable allegations, the same will be filed.

(b) when a decision is taken to investigate the

complaint, the investigation will be done by the Senior

Official of Oil Company and will pass a speaking order

after giving due opportunity to the complainant etc. Copy

of the speaking order will be given to all concerned.

Thereafter, decision on the complaint will be taken as

under".

(emphasis supplied)

On reading of the said Clause 21, it appears that on

receipt of the complaint from the respondent no. 4, Oil

Company was required to send the letter to the complainant

advising the complainant to submit details of allegations with

a view to prima facie substantiate the allegations along with

the supporting documents, if any, within thirty days.

Thereafter, the Oil Company was required to examine the

complaint and if it is established that the complaint does

have any substance then the Oil Company may proceed on

the basis of the complaint received from the complainant

which includes grant of opportunity of hearing to the affected

party. On consideration of the chronological events in the

present case it does not appear the procedure as

contemplated under Clause-21 of the Brochure has been

complied with by the Oil Company before taking decision

against the writ petitioner by issuing the letter dated 24th

September, 2009.

In addition thereto though it is fact that the writ

petitioner participated in the survey conducted by the

surveyor appointed by the Oil Company on 26th July, 2009

but the survey report was required to be supplied to the writ

petitioner with an opportunity to respond to such survey

report before taking decision relating to cancellation of

candidature of the writ petitioner. On query, this Court does

not get any satisfactory answer from the respondent Oil

Company that the survey report dated 3rd August, 2009 was

at all supplied to the writ petitioner which clearly goes to

show that unilaterally the concerned authority of the Oil

Company took the impugned decision on 24th September,

2009 based on the survey report dated 3rd August, 2009

behind the back of the writ petitioner which amounts to

violation natural justice according to appreciation of this

Court.

This Court has also placed reliance upon State of U.P.

(Supra) specially paragraphs 39 & 40 whereby it has been

unequivocally decided by the Apex Court that if prejudice has

been caused to a citizen in that event observance of natural

justice is necessary. In the present case by issuing impugned

letter dated 24th September, 2009 the candidature of the writ

petitioner was cancelled without giving opportunity to place

his case before the respondent authority which amounts to

causing prejudice to the writ petitioner therefore the principle

as contained in the judgement of State of U.P. (Supra)

squarely applies in the present case.

On behalf of the Oil Company Suresh Koshy (Supra)

has been relied upon which does not appear to have any

relevance in the present case since the issue which was

examined by the Apex Court in the said matter relates to

malpractice of a student of an engineering course which led

to issuance of an order by the Vice Chancellor of the

University which debarred the said student from appearing in

the examination till April, 1966.

In above conspectus, the impugned order dated 24th

September, 2009 issued by the Chief Divisional Retail Sales

Manager, Haldia Divisional Office stands set aside and the

writ petitioner is granted opportunity to respond to the report

of the surveyor dated 3rd August, 2009 within four weeks

from date if necessary by submitting supporting documents.

On receipt of such response from the writ petitioner, the

concerned authority of the Oil Company shall proceed to

decide on the entitlement of the writ petitioner to get the

dealership in accordance with law.

It is made clear that while considering the piece of land

offered by the writ petitioner if the Oil Company finds it in

consonance with the requirement as contained in the

advertisement dated 18th March, 2008 then necessary order

shall be passed for grant of dealership in favour of the writ

petitioner within a period of four weeks thereafter from the

date of receipt of response from the writ petitioner. In the

event, it is found by the Oil Company that the writ petitioner

is not entitled to get the benefit of grant of dealership cogent

reasons shall be assigned in support of such decision to be

taken pursuant to this order.

Letter of Intent issued in favour of the respondent no.4

dated 10th March, 2010 also stands set aside.

The writ petition is allowed to the above extent,

applications, if pending, also stand disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of the order, if applied

for, be given to the parties, upon usual undertakings.

(Saugata Bhattacharyya, J.)

21/Ct.15 rkd