Anindita Mohanty vs Senior Regional Manager, Hindustan Petroleum Co. Ltd. Bhubaneswar And Ors.

S.K. Sahoo, J

In this writ appeal, the appellant Smt. Anindita Mohanty seeks to set aside the impugned order dated 19.06.2019 passed by the learned Single Judge in W.P.(C) No.569 of 2017 in rejecting the prayer made by the appellant (petitioner) in the writ petition to quash the fresh merit list dated 14.10.2016 vide Annexure-9 and to declare the decision of the respondent no.1 Senior Regional Manager, Hindustan Petroleum Corporation Ltd., Bhubaneswar Regional Office under Annexure- 13 as illegal and improper.

The case of the appellant is that on 14.07.2009 Hindustan Petroleum Corporation Ltd. (hereafter 'the HPCL') published an advertisement in the Odia Daily 'Sambad' for appointment of dealers for retail outlets, wherein at serial no.64, location for setting up Petrol/Diesel retail outlet was indicated to be within two kilometers of Harichandanpur on Naranapur- Brahmanipal Road in the district of Keonjhar. The appellant, the respondent no.3 Smt. Babita Prusty and three others participated by making appropriate applications. An interview was conducted on 19.09.2009 and the result was published. The respondent no.3 was declared selected in the selection process.

The appellant challenged the award of marks by the Selection Committee before this Court by filing W.P.(C) No.14367 of 2009 which was disposed of on 12.08.2010 with a direction to the Selection Committee to reconsider the claim of the appellant as well as the other claimants and award the marks in conformity with the guidelines and to take a decision within a period of three weeks. In compliance of the direction of this Court, on 24.05.2011 the marks were reassessed and published and again the respondent no.3 came out successful as she secured highest marks and accordingly, she was issued with a letter of intent of the proposed retail outlet dealership on 16.07.2011.

The appellant again filed another writ petition bearing W.P.(C) No.18768 of 2011 on 13.07.2011 challenging the revised marks awarded which was dismissed by the learned Single Judge by order dated 14.12.2015. The appellant preferred writ appeal bearing W.A. No.18 of 2016 challenging the order dated 14.12.2015 passed in W.P.(C) No.18768 of 2011. The writ appeal was allowed on 22.06.2016 and the order dated 14.12.2015 passed by the learned Single Judge was quashed and HPCL was directed to prepare a fresh merit list in accordance with the order dated 12.08.2010 passed in W.P.(C) No.14367 of 2009 as well as directions/observations made in the writ appeal preferably within a period of three months.

In compliance of the order dated 22.06.2016 passed in the aforesaid writ appeal, a fresh merit list was prepared on 14.10.2016 vide Annexure-9 wherein the respondent no.3 again came out successful securing highest marks. The appellant approached the Senior Regional Manager, HPCL on 23.10.2016 challenging the fresh merit list. The Senior Regional Manager, HPCL disposed of the representation of the appellant on 10.11.2016 justifying the merit list as valid. Thereafter, the appellant approached the Executive Engineer, Ghatagaon (R & B) Division on 15.11.2016 and sought clarification of the proposed site offered by the respondent no.3. On that day itself, the Executive Engineer (R & B) Division issued a letter declaring therein that the proposed site is more than two kilometers away from Harichandanpur and again he justified the stone installed nearby the proposed location indicating Harichandanpur at four kilometers is correct. On 13.01.2017 the appellant relying upon the letter of the Executive Engineer and challenging the distance factor so also challenging the fresh merit list approached this Court in W.P.(C) No.569 of 2017 which was disposed of by the impugned order dated 19.06.2019.

The case of the respondent no.3 Smt. Babita Prusty is that the HPCL published an advertisement on 14.07.2009 for opening of dealer owned retail outlet (open category) within location of two kilometers from Harichandanpur on Naranpur- Bramhanipal Road in the district of Keonjhar. An interview was conducted on 19.09.2009 where she herself, the appellant along with three others participated and she was declared successful as per the result published on the same day. She narrated in her counter affidavit as to how the appellant approached this Court on a number of occasions and how this Court as well as HPCL authorities dealt with such matter time to time.

The learned Single Judge in the impugned order first discussed the question whether a plea which was not taken in the earlier writ petition or in other words, the relief was not claimed, on the basis of certain factual aspects, can be taken in the subsequent writ petition. Referring to Rule 2 of Order II of the Code of Civil Procedure, 1908, the learned Single Judge has been pleased to hold that since the petitioner (appellant herein) has not raised the question of distance to be more than two kilometers of the site offered by the opposite party no.3 (respondent no.3 herein), she cannot agitate this new factual aspect in the subsequent litigation. The learned Single Judge then held that the matter is between two private individuals and there is no substantial amount of public interest involved in the litigation between the appellant and the respondent no.3 and accordingly held that there is no justification for the writ Court to enter into factual aspects of the litigation and accordingly dismissed the writ petition.

The respondents nos.1 and 2 filed their counter affidavit in the writ appeal wherein it is stated that the appellant filed W.P.(C) No.14367 of 2009 which was disposed of on 12.08.2010 with a direction to reconsider the claim of the appellant as well as the other claimants and award the marks in conformity with the guidelines and to take a decision within a period of three weeks which was complied with. The appellant again filed W.P.(C) No.18768 of 2011 challenging the revised marks awarded which was dismissed on 14.12.2015 by the learned Single Judge, against which the appellant preferred a writ appeal vide W.A. No.18 of 2016 which was allowed on 22.06.2016 and the order passed by the learned Single Judge was quashed and the respondent Corporation was directed to prepare merit list afresh in accordance with the directions issued in the order dated 12.08.2010 passed in W.P.(C) No.14367 of 2006, as well as directions/observations made in the writ appeal. Pursuant to the order passed in the aforesaid writ appeal, after the site inspection was carried out in respect of the applicants who have agreed/responded to the site inspection, marks were awarded afresh by the site inspection committee and after re- verification of records of all the candidates, a fresh merit list dated 08.09.2016 was prepared wherein the respondent no.3 was the first empanelled candidate and appellant was at serial no.4 which was communicated to the appellant vide letter dated 14.10.2016 (Annexure-9). The appellant vide letter dated 23.10.2016 raised a grievance against the fresh merit list prepared by the Evaluation Committee and a Senior officer in the rank of Deputy General Manager was appointed to investigate the points raised by the appellant and basing on the investigation report, the General Manager passed a speaking order dated 08.12.2016 stating that the complaint has not been substantiated. In the counter affidavit, it is further stated in detail as to how the marks have been awarded to different candidates under different headings. Justifying the impugned order of the learned Single Judge, it is stated that the respondent no.3 has been issued with the letter of intent and the retail outlet at advertised location Harichandanpur is being operated by her since 24.10.2019.

The respondent no.3 filed her counter affidavit to the writ appeal wherein it is stated that the appellant for the first time has challenged the candidature of the respondent no.3 on the ground of distance factor relying on a document issued by the Executive Engineer (R & B), Ghatogoan and also to quash the merit list which has been dealt with properly in the impugned order passed by the learned Single Judge. Several other new factual aspects have been highlighted which are not necessary to be considered in view of the limited scope of the writ appeal. The document issued by the Executive Engineer (R & B), Ghatagaon is stated to have been issued with a malafide intention for the purpose of creating a fresh cause of action in favour of the appellant and it is highlighted as to how the contents of the document relating to the distance factor of the proposed location of the retail outlet from Harichandanpur as mentioned therein is defective.

Reply affidavit has been filed by the appellant to the counter affidavits of the respondents wherein it is stated that the appellant has been wrongly placed at 4th position in the merit list vide Annexure-9 and that the marks awarded to her is totally a wrong evaluation. In detail, it is mentioned as to how marks awarded by the Selection Committee were wrong. It is stated that valid and material points were raised by the appellant in her grievance petition (Annexure-10) while challenging the fresh merit list under Annexure-9 and also the marks awarded therein to the respective parties. However, none of those points were considered either by HPCL Company or by the learned Single Judge even though raised and pressed at every point of time. The learned Single Judge in the impugned judgment has not at all taken into account the valid grounds raised by the appellant challenging the fresh merit list and the marks awarded in Annexure-9. It is stated that the marks awarded to the respective parties by the Evaluation Committee have no consistency and the same are being changed every time to show undue favoritism to the respondent no.3 which would be evident on the face of the record. The marks awarded by the Selection Committee are not in consonance with the guidelines under Annexure-1. The Evaluation Committee has taken into account lis pendens developments and increased the marks awarded to the respondent no.3 substantially whereas the respondents are challenging the points raised by the appellant regarding distance factor on the ground that it was not earlier raised and is a lis pendens development. It is stated that the evidence on record establish that the offered site of the respondent no.3 is beyond 2 kms. and not in accordance with the advertisement which is proved by the letter of the Executive Engineer vide Anneuxre-13. It is stated that some extraneous things have been raised by the respondent no.3 at this stage in her counter affidavit to create confusion in the matter although it has got no relevance with the case. It is stated that the distance factor raised by the appellant in the writ petition is very important and ought to have been adjudicated which has not been done by the learned Single Judge and therefore, the impugned order is not sustainable in the eye of law.

Mr. Ramakant Mohanty, learned Senior Advocate appearing for the appellant emphatically contended that the proposed site offered by respondent no.3 for opening of the retail outlet was not within the specified distance as per the advertisement vide Annexure-1. Earlier the Division Bench in the writ appeal by entering into the factual disputes and after due consideration of the case of the respective parties was pleased to set aside the merit list prepared by the HPCL company and consequently directed to prepare a fresh merit list as per the guidelines. In that view of the matter when the appellant raised the distance factor plea, it should not have been discarded on the ground that she cannot agitate a new factual aspect in the subsequent litigation and that such a plea is forbidden in view of Order II Rule 2 of the Code of Civil Procedure. Mr. Mohanty placed reliance on Annexure-12 which is the letter of the Executive Engineer to substantiate that the offered site of the respondent no.3 was not within 2 kms. distance from the zero based point of Harichandanpur and therefore, her application should not have been entertained at all by HPCL. He emphasised that it was the duty and responsibility of the HPCL Company to examine the eligibility of respondent no.3 and also the distance of her offered site from Harichandanpur which was a mandatory requirement as per the advertisement. The HPCL Company cannot just give these criteria a go-bye to show undue favour to the respondent no.3 by going against its own terms and conditions fixed in the advertisement.

Mr. Goutam Mukherjee, learned Senior Advocate appearing for the respondents nos.1 and 2 on the other hand contended that the selection of dealership was done as per the information brochure of HPCL guidelines relating to appointment of dealers for retail outlets and the candidates were evaluated on various parameters i.e. land, finance, education, capability for business generation, age, experience, business acumen and personality. The appellant was placed at 4th position whereas the respondent no.3 was placed at 1st position on evaluation of the aforementioned parameters and accordingly the respondent no.3 was issued with the Letter of Intent and the retail outlet at advertised location of Harichandanpur is being operated by her since dated 24.10.2019.

Mr. Sukanta Kumar Dalai, learned counsel appearing for the respondent no.3 also contended that though since 2009 the appellant is approaching this Court but for the first time in W.P.(C) No.569 of 2017, she raised the distance factor relying on a document stated to have been issued by the Executive Engineer (R & B), Ghatagaon in the district of Keonjhar. The zero based point of Harichandanpur at Gandhi Chhak has been arbitrarily fixed by the Executive Engineer and therefore, the document is nothing but a manufactured one for the present case only. According to Mr. Dalei, at the belated stage in the third round journey to this Court, the appellant cannot raise such a point which is an attempt to mislead this Court by giving such a fabricated document and rightly the learned Single Judge did not entertain such a point. While concluding, it is submitted that in the meantime, the petrol pump of the respondent no.3 has already become operational and serving the public cause and therefore, the writ appeal should be dismissed.

We have carefully considered the submissions advanced by the learned Counsel for the parties and perused the documents available on record.

Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 Supreme Court Cases 52, Baddula Lakshmaiah -Vrs.- Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.

In the case of B. Venkatamuni -Vrs.- C.J. Ayodhya Ram Singh reported in (2006) 13 Supreme Court Cases 449, it is held that in an intra-court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai -Vrs.- Nilkanth Dhondiba Chavan reported in (2005) 6 Supreme Court Cases 243. In the case of Commissioner of Income Tax -Vrs.- Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 Supreme Court Cases 538, it is held that the jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act concerned (Income Tax Act) and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed.

Thus a writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.

It is not in dispute that the learned Single Judge did not entertain the plea of distance factor raised by the appellant on the basis of letter dated 15.11.2016 by the Executive Engineer, Ghatagaon (R & B) Division on the ground that she cannot agitate a new factual aspect in the subsequent litigation. The Court relied upon the provision of Rule 2 of Order II of C.P.C. which states that the suit filed by the plaintiff shall include the whole of the claim and also the effect of relinquishment of part of claim and omission to sue for one of the several reliefs. This Rule which deals with claim or relief is not the issue in the case rather the issue is, if one of the grounds which is based on factual aspects though was available to the appellant was not taken for the claim or relief sought for in the earlier writ petition, can be taken in the subsequent writ petition relating to the same cause of action between the same parties? Moreover, in the case of Gulabchand Chhotalal Parikh -Vrs.- State of Bombay reported in A.I.R. 1965 S.C. 1153, it is held that the provisions of Order II Rule 2 C.P.C. apply only to suits. Sub-rule (1) requires that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub- rule (2) then provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portions so omitted or relinquished. By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of subsequent suit.

In the case of Devilal Modi -Vrs.- Sales Tax officer, Ratlam reported in A.I.R. 1965 S.C. 1150, it has been observed that the rule of constructive res judicata postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action and basically, this view is founded on the same considerations of public policy because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceedings after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy. The High Court exercising extraordinary jurisdiction under Article 226 of the Constitution aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code of Civil Procedure are to be applied to the writ proceedings, the very object and purpose is likely to be defeated. In view of the conflicting opinions expressed by different Courts, Parliament by the Code of Civil Procedure (Amendment) Act, 1976 inserted an Explanation to section 141 of C.P.C. which deals with Miscellaneous Proceedings and it is mentioned therein that the expression "proceedings" in the said section does not include "any proceeding under Article 226 of the Constitution."

At the outset, Mr. Ramakant Mohanty, learned Senior Advocate fairly submitted that if the appellant is to succeed then it is only basing on the distance factor point. Let us now examine at what stage in which writ petition, the appellant raised the distance factor relating to the offered site of the respondent no.3 for the dealership for the proposed retail outlet for the first time. The first writ filed by the appellant was W.P.(C) No. 14367 of 2009 in which the respondent no.3 was not made a party and no averment was taken that the offered site of the respondent no.3 was beyond 2 kms. from Harichandanpur on Naranpur- Brahmanipal Road and the same was not in accordance with the advertisement rather grounds were taken that under other headings, the appellant was entitled to get more marks and thus her position should have been above the respondent no.3. The respondent no.3 filed an intervention application which was allowed and the writ petition was disposed of on 12.08.2010. No such submission was also raised relating to distance factor of offered site of the respondent no.3. However, a Division Bench of this Court quashed the result sheet dated 19.09.2009 and directed the Selection Committee to reconsider the claim of the appellant as well as the other claimants and award the marks in conformity with the guidelines prescribed and to take a decision in the matter.

The second writ filed by the appellant was W.P.(C) No. 18768 of 2011 in which the respondent no.3 was made a party and challenge was made to the letter dated 24.05.2011 of HPCL in which after reconsidering the claim of the appellant as well as the other claimants as per the direction of this Court in W.P.(C) No. 14367 of 2009, the position of the respondent no.3 remained unchanged, however, the appellant became the third empanelled candidate. No averment was taken that the offered site of the respondent no.3 was beyond 2 kms. and the same was not in accordance with the advertisement. No such submission was also raised relating to distance factor of offered site of the respondent no.3 during argument. The writ petition was dismissed by the learned Single Judge vide order dated 14.12.2015.

The appellant preferred writ appeal bearing W.A. No.18 of 2016 challenging the order dated 14.12.2015 passed in W.P.(C) No.18768 of 2011. In the writ appeal, no averment was taken that the offered site of the respondent no.3 was beyond 2 kms. and the same was not in accordance with the advertisement. No such submission was also raised relating to distance factor of offered site of the respondent no.3 during argument. However, the writ appeal was allowed vide judgment and order dated 22.06.2016 on other grounds and the letter dated 24.05.2011 of HPCL as well as the earlier selection/merit list for award of dealership was quashed.

Even though in the earlier two writ petitions filed by the appellant, averment relating to the offered site of the respondent no.3 was beyond 2 kms. and that the same was not in accordance with the advertisement, was not taken but for the first time in the third writ petition filed by the appellant i.e. W.P.(C) No. 569 of 2017 basing on the letter dated 15.11.2016 (Annexure-12) issued by the Executive Engineer, Ghatagaon (R & B) Division, the said plea was taken. It seems one Girija Nandan Mohanty wrote a letter on 15.11.2016 to the Executive Engineer to get clarification of distance of proposed site offered by the respondent no.3 for retail outlet to HPCL at Mangalpur and on the same day, the Executive Engineer promptly answered that considering Gandhi Chhak to be the zero based point of Harichandanpur, the distance to the offered site of respondent no.3 at Mangalpur was more than 2.00 kms. from Gandhi Chhak. The Kilometer stone installed nearby the proposed location also indicate Harichandanpur was at 4.00 kms. distance is correct. In the counter affidavit filed by the respondents nos.1 and 2, it is mentioned that the ground of distance has been abandoned by the appellant earlier. In Annexure-13 issued by Senior Regional Manager, HPCL, it is clearly mentioned that the land offered by the 1st empanelled candidate (respondent no.3) was verified and found to be within the stretch of advertised location. In the counter affidavit filed by the respondent no.3, it is mentioned that 4 km. milestone has been installed by the appellant and the Executive Engineer (R & B) for the purpose of issuance of Annexure-12. It is further stated in the counter affidavit that revenue authorities have reported that the distance of the proposed place of the respondent no.3 from the boundary of Harichandanpur is 83.33 chain i.e. 1652 meters and to that effect, the report of Revenue Inspector, Harichandanpur has been annexed as Annexure-B/3 to the counter affidavit.

It is the settled law that the High Court in exercise of its power under Article 226 of the Constitution of India normally should not enter into the serious disputed questions of facts and render a finding on those facts. In the case of Popatrao Vyankatrao Patil -Vrs.- The State of Maharashtra reported in 2020 SCC OnLine SC 291, it is held that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition Under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India.

Thus the plea of distance factor relating to the offered site of the respondent no.3 to be beyond 2 kms. was taken by the appellant for the first time in the third writ petition which could have been taken by her in the earlier two writ petitions. Moreover, on that aspect, the documents issued by two Government officials i.e. Executive Engineer and Revenue Inspector are also contradictory. The Senior Regional Manager, HPCL in Annexure-13 clearly mentioned that the land offered by the respondent no.3 was verified and found to be within the stretch of advertised location. Since the selection of dealership for retail outlets was done as per the guidelines mentioned in the information brochure of HPCL and the candidates were evaluated on various parameters i.e. land, finance, education, capability for business generation, age, experience, business acumen and personality and each time the respondent no.3 was found to be scoring more marks than the appellant, therefore, we find no flaw in the merit list prepared by the HPCL authorities as well as the letter dated 13.12.2016 vide Annexure-13 issued by Senior Regional Manager, HPCL.

In view of the foregoing discussions, we are of the humble view that the view taken by the learned Single Judge is reasonable and logical and there is no patent error on the face of the impugned order or any perversity therein and therefore, we are not inclined to interfere with the same.

Accordingly, the writ appeal being devoid of merits, stands dismissed.