Sunil Bishnoi vs Indian Oil Corporation Ltd. and Others

Arun Bhansali, J.—This writ petition has been filed by the petitioner aggrieved against the merit list dated 24.8.2013 (Annex.4) regarding grant of Indane Distributorship at Goluwala, District Hanumangarh in open category; order dated 3.7.2014 (Annex.23), whereby respondent No. 2 - Jora Singh has been found suitable for selection process for location Goluwala and letter dated 24.7.2014, whereby the petitioner has been informed that respondent No. 2 - Jora Singh has been found eligible and further relief has been sought for grant of LPG Distributorship to the petitioner.

The petitioner pursuant to the notification issued by the respondent-Indian Oil Corporation (''IOC''/''Corporation'') for grant of distributorship at various places including at Goluwala, district Hanumangarh applied for the same. After interviews were held, merit list Annex.-4 was published, wherein respondent No. 2 - Jora Singh and respondent No. 3 - Govind Karan Danga were placed at Sr. No. 1 & 2 and the petitioner was placed at Sr. No. 3.

Aggrieved against the award of marks to the petitioner as well as to the respondents No. 2 & 3, the petitioner submitted a representation and vide report dated 21.11.2013 (Annex.25), the Investigating Officer recommended cancellation of merit of 1st and 2nd empanelled candidates and taking further action for award of dealership as per Corporation policy. The investigating authority reached a conclusion that the Jora Singh provided information in wrong column of the application form and got maximum marks under the parameter capability to provide Land and Infrastructure facility though the land does not have clear title as on the date of application and therefore, the complaint was substantiated.

However, the petitioner was informed vide communication dated 3.7.2014 that respondent No. 2 - Jora Singh was selected and was being allotted LPG Distributorship. The respondent No. 2 was found eligible based on the investigation report (Annex.R/6), wherein on scrutiny of land documents, the claim of respondent No. 2 - Jora Singh having clear title deed of the land and registered agreement party i.e. Tiku Ram was established and therefore, the marks awarded with respect to godown, the land was found in line with the Corporation policy and it was held that the respondent No. 2 stands as 1st empanelled candidate in the merit.

It is inter-alia submitted by learned counsel for the petitioner that the petitioner made specific allegation regarding marks awarded qua the land offered by the respondent No. 2, which allegation was found established by the investigating officer by his report dated 21.11.2013 (Annex.25), wherein it was observed that Jora Singh had submitted a registered lease deed for 17 years i.e. 23.4.2010 for land situated at Stone No. 16/232, Killa No. 3, as measuring 0.253 Htrs.; the land had been taken on lease from one partner Tiku Ram and the revenue record shows that the land was owned by three owners namely Mani Ram, Sheo Lal and Tiku Ram and same was mortgaged with State Bank of Bikaner & Jaipur against loan of Mani Ram and as per the policy of the Corporation, the land should have clear title at the time of application for awarding 25 marks, however, though there were three co-owners, the consent was sought from only one owner of the land and there was no clear indication in the revenue records for land division or mutation at the time of submission of the application and therefore, the land does not have clear title as on the date of application and therefore, respondent No. 2 should have been allotted 18 marks instead of 25 and that there was no substantial proof and the division took place after the date of application on 9.6.2010, which cannot be taken into consideration. However, subsequently, vide Annex.R/6 on reinvestigation held by the respondent-Corporation, the same officer, who had held investigation and given report Annex.25 earlier has based on the documents produced by the respondent No. 2 subsequently, has came to the conclusion that the marks awarded were in line with the Corporation Policy, which is ex-facie incorrect.

It is submitted that under the policy of the Corporation, the term firm offer has a specific connotation, which does not stand fulfilled in the circumstances of the case and therefore, the Corporation was not justified in reversing its decision and in finding respondent No. 2 as 1st empanelled candidate. The recommendations made on 21.11.2013 by the Investigation Officer alone were justified. In the alternative, it was submitted that the land in question being agriculture in nature, could not have been leased out for a period of 15 years in view of the restrictions imposed as per Section 45 of the Rajasthan Tenancy Act, 1955 (''the Act'') and therefore, the lease deed is void ab initio and further in terms of Section 90A of the Rajasthan Land Revenue Act, 1956 (for short ''the Act of 1956''), no permission has been sought for putting the land to use for non-agriculture purposes and therefore, the same also puts the land offered by the respondent No. 1 under cloud and he was not entitled to award of 25 marks. It was further submitted that the respondents could not have taken into consideration any documents filed subsequent to the date of application and therefore, the action of the respondents cannot be sustained.

Learned counsel for the respondent-Corporation submitted that the advertisement was issued on 13.3.2010 and after the selections were held, the petitioner raised his grievance qua the selection made. Investigations were held and the Investigating Officer gave his report sustaining the objection qua the land of godown of respondent No. 2. Whereafter, the respondent No. 2 submitted clarificatory documents related with the documents already on record and based on the recommendation made by the same officer, report Annex.-R/6 dated 21.3.2014 was submitted wherein respondent No. 2 was found eligible.

It is submitted that the submissions raised by the petitioner has no substance, in fact, the petitioner himself is not eligible, inasmuch as, the certificate of experience produced by the petitioner was found to be false during the FVC conducted by the respondent-Corporation.

Regarding the submissions pertaining to provisions of Section 45 of the Act of 1955, it was submitted that no plea was raised in the writ petition, the requirement of 15 years'' lease deed is based on All India Policy of the respondent-Corporation irrespective of the legal provisions involved in different states, the lease deed is utilised only for the purpose of ensuring permanency qua the tenancy, as soon as the allotment takes place the land in question is converted for non-agriculture purposes and then the provisions are not applicable. It is submitted that the writ petition filed by the petitioner has no substance and the same, therefore, deserves to be dismissed.

On behalf of respondent No. 2, it was submitted that the petitioner was held ineligible vide Annex.-R/2/10 on FVC conducted by the respondents, which has not been challenged by the petitioner and therefore, once, the petitioner is found ineligible, there is no question of maintaining the present writ petition. It is further submitted that false averments regarding withdrawal of the previous writ petition were made in the present writ petition, inasmuch as, on the date of filing of the writ petition, the earlier writ petition filed by the petitioner was still pending.

On merits, it was submitted that there was a mistake in fiscal entries and not in the title of the petitioner, which fact was clarified by the respondent No. 2 by way of detailed representation and clarificatory documents produced by the respondent No. 2, which was found as justified by the Investigating Officer resulting in reversal of the earlier finding based on incomplete documents. It was further submitted that the petitioner cannot be permitted to set up a new case in rejoinder. Further before setting up the godown/showroom, the land is required to be converted and therefore, the submissions made in this regard qua Section 45 of the Act have no substance.

It is further submitted that in any case even if a lease qua agriculture land is executed for a period of 15 years, the same is valid for first five years and therefore, the submissions made in this regard have no substance. It was reiterated that the said aspect is within the domain of the policy of the Corporation and the petitioner cannot be permitted to make any submission in this regard and therefore, the writ petition filed by the petitioner be dismissed.

Reliance was placed on Amit Kumar Sharma Vs. Hindustan Petroleum Corporation Ltd., ; Bhaskar Laxman Jadhav and Others Vs. Karamveer Kakasaheb Wagh Education Society and Others, ; Mahaveer Suwalka v. IOCL & Ors.: S.B. Civil Writ Petition No. 1967/2013 decided on 25.9.2013; Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation Ltd. and Others, and Mahaveer Suwalka v. Indian Oil Corporation & Ors.: D.B. Civil Special Appeal (W) No. 951/2013 decided on 27.9.2013.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record.

At the outset, the parameters laid down by this Court regarding consideration of documents after cut-off date may be taken into consideration. The Division Bench in the case of Amit Kumar Sharma (supra) after exhaustive consideration of the various provisions of the brochure/scheme of allotment, held as under:--

"36. So far the aspects relating to the consideration of documents after the alleged cut-off date and the operation of clause () of the advertisement are concerned, we are at one with the learned Single Judge that the clarificatory documents by the respective candidates ought to be taken into consideration for the purpose of arriving at just and proper conclusion in the matter.

The illustration given by the learned Single Judge has not been altogether inapt. The point has been that the clarificatory documents related with the material aspects of the existing facts cannot be ignored. We are clearly of the view that a document, which only clarifies and explains the substantive documents already on record, cannot be ignored from consideration during the pendency of the process by the concerned authority in the name of so-called cut off date. In our view, on its true intent and purport, what the referred clause of the advertisement prohibits, is the submission of an additional document ; and not the clarificatory document co-related with the document/s already on record. This clause cannot be read in a perfunctory manner that the Oil Company might disable itself from consideration of such document/s which are only clarificatory in nature in relation to the facts which are already on record; and thereby avoid consideration of true, complete and correct facts, even if relevant. As observed, even in the process of awarding a contract, the Oil Company HPCL, as an agency and instrumentality of the Government, is bound by the basic principles of fair play and reasonableness and for that matter, cannot shun off the material and relevant facts presented to it by way of clarificatory documents.

We may observe that the process of interviews had been for the purpose of awarding marks to the candidates on different parameters including the parameter of their ''capacity to provide infrastructure and facility''. For an enquiry directed towards this parameter, in case of any doubt or dispute, HPCL as an agency of the Government would only be acting fair and just by removing such doubt, and resolving the dispute with reference to the true, correct and existing facts. The suggestion on the part of HPCL as if it would avoid consideration of existing facts in the name of cutoff date cannot be countenanced.

We agree with the learned Single Judge that clause of the advertisement or any provision in the guidelines were never intended to avoid consideration of the material and relevant facts. Of course, a matter might be different where the basic and relevant document has not been filed with the application and such a document is sought to be added to the record later. However, such has not been the case here so far the candidates Shri Amit Kumar Sharma and Shri Vijendra Singh are concerned. They only prayed for consideration of the clarificatory facts and documents. Such a prayer has rightly been allowed by the learned Single Judge in the interest of justice and fair play."

From the above, it is apparent that the clarificatory documents of respective candidates can be taken into consideration for the purpose of arriving at a just and proper conclusion in the matter by the Corporation and therefore, the principal submission made by learned counsel for the petitioner that the Corporation could not have taken into consideration the subsequent documents filed by the respondents has apparently no substance.

Initially, vide report dated 23.11.2013 (Annex.25), the Investigating Officer came to the conclusion that the marks awarded to respondent No. 2 - Jora Singh regarding the land of godown was not justified as the same was not owned by him, however, based on the clarificatory document vide Annex.-R/6, the same Investigating Officer came to the conclusion that Tiku Ram, the lessor had purchased the land on 19.5.1992 and mutation of the land was effected on 30.7.1992, the lease deed was executed by Tiku Ram in favour of Jora Singh on 23.4.2010, however, the Jamabandi for samwat 2054-2069 indicated that Tiku Ram as joint khatedar with Mani Ram and Sheo Lal, which was mistaken entry and the sub-tehsildar passed an order for amendment in the record regarding division of land from 19.5.1992 in the name of Tiku Ram and based on the opinion of the counsel of the Corporation, the respondents came to the conclusion that Tiku Ram had clear title and the mistake was of the concerned revenue officials resulting in coming to the conclusion by way of reinvestigation that the respondent No. 2 was entitled to the marks awarded. There is substance in the arguments made by counsel for the respondent No. 2 that mistake, if any, was in the fiscal entry and not in title of Mani Ram, who has purchased the land in question way-back in the year 1992 and merely because in the revenue entry the same was wrongly indicated as joint alongwith Mani Ram and Sheo Lal, the respondent No. 2 cannot be made to suffer on said count.

In view of the finding recorded during reinvestigation, which is apparent from the material produced by the respondents on record, it cannot be said that the respondents were not justified in coming to the conclusion vide reinvestigation report dated 23.3.2014 so as to require interference by this Court under Article 226 of the Constitution of India.

Hon''ble Supreme Court in the case of Sanjay Kumar Shukla (supra) had observed in the matters pertaining to challenge of award of a contract by a public authority that unless the Court is satisfied that there is substantial amount of public interest or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.

So far as the submissions made by learned counsel for the petitioner regarding the validity of the lease deed executed qua the agriculture land and the same being void under the provisions of Section 45 of the Act is concerned, the issue raised on face of it may appear to be substantial, in the circumstances of the case, the same has no relevance/substance and the same, therefore, deserves to be rejected.

There is substance in the submissions made by learned counsel for the respondent-Corporation that the provisions incorporated in the brochure/advertisement are based on All India Policy and different States have different provisions regarding the grant of lease qua agriculture land/land for godown & showroom. The basis for which the lease for a period of 15 years is insisted is to ensure that there is stability/permanency qua the location of dealership. For the purpose of setting up/constructing the godown and showroom, the land in question is required to be converted for such purpose and that takes care of the provisions of Section 45 of the Act and Section 90A of the Act of 1956.

Further submissions made by learned counsel for the respondent also has substance that in case, the Corporation was to insist for converted land in setting up of godown, number of applicants would be reduced to a great extent resulting in total failure of the object of the Corporation in making the dealership of the Corporation as wide spread as possible, which policy is also reflected in multiple distributorship norms which inter-alia disqualifies the members of the family unit from applying for distributorship. In the present case, there were as many as 36 candidates seeking grant of dealership and in case, the norms were restricted, the same would have led to undesirable results.

There appears to be substance in the submissions made by learned counsel for the respondent No. 2 that in any case the lease even if is for 15 years, for the first five years it cannot be said to be void and if at all the same may be rendered void after end of five years and by then the land in question stands converted and therefore, the arguments raised in this regard cannot be countenanced.

From the above discussion, it is apparent that the plea sought to be raised by the petitioner by way of rejoinder seeking to question the validity of the lease has apparently no substance qua the eligibility of the respondent No. 2 based on the land offered by him.

So far as the submissions made by learned counsel for the respondent No. 2 regarding ineligibility of the petitioner himself based on Annex.-R/2/10 is concerned, from the material available on record, it appears that though a finding was arrived at by the respondents regarding petitioner''s ineligibility, the same was not communicated to the petitioner and therefore, such uncommunicated finding cannot be used against the petitioner.

In view of the above discussion, the writ petition filed by the petitioner has no substance, the same is, therefore, dismissed.

No order as to costs.