Rajendra Kumar Jangu vs Bharat Petroleum Corp. Ltd And Ors

Appellant, Rajendra Kumar Jangu, has preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') to assail impugned judgment & decree dated 2nd of June, 2018, passed by Addl. District Judge, Ratangarh, District Churu (for short, 'learned trial Court'), dismissing his suit for mandatory and permanent injunction against authorities of respondent-Corporation for allotting dealership of retail outlet in question to him and to reject the application of respondent No.3.

The relevant facts, culled out from the record, are that respondent Bharat Petroleum Corporation issued an advertisement on 17.09.2011 inviting applications for establishment of retail petroleum outlet on Lachharsar-Momasar Road. The appellant-plaintiff applied pursuant to the said advertisement and after interviews one Hajari Lal Bhakar was selected at merit position No.1 securing 98.85 marks, while respondent-defendant No.3 Om Prakash stood at position No.2 with 96.37 marks and the present appellant at No.3 with 93.67 marks. It is averred that the application of the candidate who stood in merit at No.1 was rejected on account on irregularities on his part and the respondent Corporation invited the candidate who stood at position No.2. The appellant-plaintiff sought to set up a case in his favour in the suit by stating that he came to know that the land offered by respondent-defendant No.2 situated on Lachharsar-Jorawarpura Road and not at the advertised location.

It is also averred by the appellant that he invited attention of the Corporation authorities towards ineligibility of respondent-defendant No.3 by submitting representations on 10.12.2012 & 13.11.2012 but the authorities of respondent Corporation discarded his submissions and documents such as Jamabandi, report of Patwari etc in a cursory manner. Appellant also pleaded that respondent Corporation has erroneously construed the location advertised in utter disregard to the Brochure for Selection of Petrol/Diesel Retail Outlet Dealers governing selection and appointment of dealers for petroleum products. It is further averred that raising his grievance, the appellant-plaintiff sent a legal notice to the respondent Corporation through counsel on 10.06.2013 and again invited attention towards the fact of land offered by respondent No.3 not being in accordance with the norms prescribed for selection.

Appellant-plaintiff in the plaint made a positive assertion that the land offered by him is situated on the advertised location which meets the prescribed criteria but the respondent Corporation wrongly found the land offered by respondent No.3 appropriate as per location mentioned in the advertisement. A significant disclosure about filing of writ petition bearing No.11793/2013 by the appellant-plaintiff against impugned action of the respondent Corporation also find mention in the plaint besides its dismissal with the observations that the matter involves disputed questions of fact and therefore appellant may pursue civil suit for the relief prayed. It is further stated that the plaintiff also filed special appeal but later on same was withdrawn to pursue remedy of civil suit in the matter. With all these requisite facts and grounds appellant prayed for grant of reliefs aforementioned.

After service of summons, defendants No.1 & 2 Corporation and its officer filed written statement. The Corporation, while admitting issuance of advertisement for allotment of retail outlet dealership, averred in the return that panel of merit was prepared on the basis of interview and as the candidate who secured first rank in the panel was not found suitable consequently allotment order was issued in favour of the person who stood at place second in the merit viz., Om Prakash, respondent No.3. The Corporation pleaded in the written statement that the land offered by Om Prakash found more congenial besides his merit on other counts vis-a-vis appellant as per criteria prescribed in the advertisement and therefore the plaintiff/appellant do not have subsisting cause of action to file the suit. It was further plea of the Corporation that the suit deserve dismissal on the count of misjoinder of necessary parties.

Respondent/defendant No.3 Om Prakash also filed written statement and while echoing the contentions made by the Corporation reiterated that person who stood at place one in the panel of merit was not found suitable for allotment of retail outlet dealership and he being on second position was rightly allotted the dealership. He asserted that the land offered by him is more suitable as it is situated on National Highway No.11 on Lachharsar-Momasar Road in village Lachharsar. With all these submissions, the third respondent prayed to reject the suit.

The learned Trial Court on the basis of pleadings of rival parties settled five issues for determination. To substantiate his case, appellant plaintiff himself appeared in the witness-box and besides him one other witness P.W.2 Vinod Kumar Bhargav testified on oath. In all thirteen documents were exhibited on behalf of plaintiff. On the other hand, defendant No.3 Om Prakash himself appeared in the witness box and testified on oath. However, neither any witness was examined, nor any document was exhibited by defendants No.1 & 2 to support their case. After conclusion of the evidence, the learned trial Court dismissed the suit vide judgment dated 02.06.2018, which prompted the appellant-plaintiff to lay the present appeal.

Learned counsel for the appellant vehemently argued that the land offered by respondent No.3 is admittedly situated on road leading from NH-11 to Lachharsar near village Joravarpura in Khasra No.2013/1147 and cannot be considered to be Lachharsar-Momasar road, as such, on the location notified in the advertisement. Learned counsel contended that while assessing candidature of the appellant, the Selection Committee under the head "location" awarded 92 points to the appellant while respondent No.3 was awarded only 88 points, and under the head "Capability to Generate Business" appellant was awarded 5 points whereas respondent No.3 was awarded zero and further under the head "Business Ability" appellant was awarded 2.57 points whereas respondent No.3 was awarded 2.17 points, and as the land offered by respondent No.3 is not on the advertised location, it rendered him ineligible for appointment as dealer of retail outlet. Learned counsel urged that respondent Corporation cannot change the location of the retail outlet advertised because in case of not finding suitable candidate for one or other reason changing location requires fresh selection process. He, therefore, urged that finding recorded by the learned trial Court on issue Nos.1 & 2 are perverse and based on complete misconstruction of evidence.

Per contra, learned counsel for the respondent Corporation argued that the learned trial Court has thrashed out the matter in its entirety, and upon proper appreciation of evidence rightly arrived at the conclusion to dismiss the suit of the appellant. It is submitted by learned counsel that respondent Corporation faithfully adopted transparency in the procedure for selection and the Selection Committee awarded the marks to candidates purely on the basis of their performance and the yardsticks under different heads. Learned counsel would urge that Corporation has adjudged third respondent more suitable in its best interest fairly. It is further contended that respondent No.3 was selected by the authorities as per the selection procedure and the candidature of appellant was rightly assigned merit below him on the basis of materials available before the Selection Committee. The learned counsel has, thus, supported the impugned judgment passed by learned trial Court with full vehemence.

Learned counsel for the third respondent has also stoutly defended the impugned judgment while reiterating submissions made by Mr. Vinay Kothari. Learned counsel further urged that location of the land offered by the third respondent never remained contentious inasmuch as during his deposition appellant too has admitted the same. It is further submitted by learned counsel for the third respondent that finding on issues No.1 & 2 recorded by the learned trial Court is based on sound appreciation of evidence and therefore no interference with the impugned judgment is warranted.

I have heard the learned counsel for the parties, perused the impugned judgment and scanned the record of the case.

A glance at the impugned judgment makes it crystal clear that the learned trial Court has evaluated the evidence and other materials on record in right perspective and only thereafter has dismissed the suit. For arriving at its finding the learned trial Court has examined the matter in all fairness and recorded a definite finding that the land location of respondent No.3 is as per requirements prescribed in the advertisement but further same has close proximity with the National Highway vis-a-vis land location of the appellant. That apart, learned trial Court on overall analysis of evidence and other available material recorded a definite finding that land offered by the third respondent is towards Lachharsar-Momasar village, therefore, fulfills the location requirements insisted in advertisement. Taking note of serious loopholes and evidence of appellant/plaintiff, the learned trial Court has also recorded a concrete finding that his challenge to selection of third respondent remained unsubstantiated.

The learned trial Court further recorded its finding that there is no error/infirmity in the selection process and consequently decided Issues No.1 & 2 against the appellant. As regards marks awarded by the Committee, suffice it to state that the Committee had awarded marks to the candidates purely on the basis of their performance and since there was difference between the marks obtained by the appellant and the respondent No.3 and respondent No.3 got higher marks, it cannot be questioned by the appellant. Therefore, considering the overall material factors, the respondent Corporation has taken a decision of giving precedence to respondent No.3 over and above the appellant.

While examining the findings and conclusions recorded by the learned trial Court, I have also made endeavour to critically analyze the evidence and available material de novo. The whole thrust of the appellant in his pleadings is precisely location of land proposed by the third respondent for setting retail outlet. As per appellant, land in question is not situated within the precincts area notified in the advertisement. Therefore, it is necessary for the Court to peruse the advertisement dated 17.09.2011 wherein Serial No.23 refers to setting up of outlet at village Lachharsar (at Lachharsar-Momasar road). In this regard, evidence of PW1 Rajendra Kumar - appellant is significant. Moreover, being appellant/plaintiff, his testimony deserves due credence. The witness during cross-examination has made following disclosures:

"यह कहना सही है कि प्रतिवादी संख्या 3 का खेत लाछडसर की रोही में ही है" "यह कहना सही है कि ओमप्रकाश का खेत लाछडसर राजस्व क्षैत्र में आता हो"

In substance, the positive assertion of the witness that village Lachharsar mentioned in the advertisement, issued by respondent Corporation, has not referred to Lachharsar revenue village, is thus founded on mere assumptions and conjectures. Therefore, the learned trial Court has rightly discarded that part of appellant's testimony while relying on his admission.

Admission of a party in the proceedings, either in pleadings or oral, is the best evidence which needs no further corroboration. My this view is fortified by a judgment of Supreme Court in the matter of Ahmed (Dead) by LRs. & Ors. Vs. Sayed Ismail [(2012) 8 SCC 516], wherein Court held:

"It is needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case viz. the admission of the Respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor while deciding the Second Appeal which led to the dismissal of the appeals. Even while eschewing Exhibit-69 from consideration, the High Court should have noted that the relationship of landlord and tenant as between the Plaintiffs and the Defendants was an established factor and the rate of rent was admitted as Rs. 800/-per year."

Likewise, the evidence of PW2 Vinod Kumar Bhargava - Patwari, if construed cumulatively then too it clearly emerge out that land proposed by the third respondent is an approach road of Momasar via Lachharsar. Further, this witness in his deposition proves location of land within Lachharsar Rohi. The related excerpt reads as under:

"यह सही है कि प्रतिवादी संख्या 3 ओमप्रकाश के खेत के आगे जो सडक है वो लाछडसर होते हुए मोमासर तक जाती है। यह सही है कि ओमप्रकाष का खेत लाछडसर की रोही में स्थित हैे"

In later part of the statement of PW2 during cross-examination, he further reiterates the same version clearly and unequivocally which reads as under:

"यह सही है कि प्रतिवादी ओमप्रकाश के खेत के आगे जो सडक है वो लाछडसर मोमासर सडक है जो लाछडसर होते हुए मोमासर जाती है"

Therefore, in my considered opinion, findings of the learned trial Court pertaining to issues No.1 & 2 are based on sound reasoning and are logical. By any stretch of imagination, the said findings cannot be categorized as perverse and based on misconstruction of evidence. It is also noteworthy that Selection Committee while awarding marks for location of the land offered by rival parties has given more marks to the appellant under this head. In totality, candidature of the third respondent found Selection Committee's favour in precedence to the appellant on account of his overall performance by applying relevant criteria for adjudging relative merit of the eligible applicants. Thus, broadly, on objective appreciation of evidence, I am unable to find any infirmity much less factual or legal infirmity in the impugned judgment.

Law is trite that the appellate Court while affirming finding of the Court below need not restate evidence or its effect. In affirming the finding, appellate Court is simply required to weigh evidence and therefore need not encumber judgment with unnecessary details. Reliance in this behalf can be placed on a judgment of Supreme Court in Girja Nandini Devi and Ors. Vs. Bijendra Narain Choudhury (AIR 1967 SC 1124), wherein Court held:

"It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to (11 of 11) [CFA-374/2018] restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."

Upon overall analysis of the impugned judgment, in the backdrop of facts and circumstances of the case, I fully concur with the findings and conclusions of the learned trial Court and while recording my satisfaction that appeal is bereft of any merit, dismiss the same at the admission stage.

No order as to costs.