IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6125 of 2011 Rajesh Kumar son of Yogendra Pandey, resident of village Lauriya, P.O. Lauriya (Via-Areraj), P.S. Govindganj, District East Champaran (Bihar)……………………………………………Petitioner. Versus 1. M/S Bharat Petroleum Corporation Ltd., having its registered office at Bharat Bhawan, 4 & 6, Currimbhoy Road, Ballard Estate, Post Box No.588, Mumbai-400001 through the General Manager. 2. Senior Regional Manager, M/s Bharat Petroleum Corporation Ltd., having its office at Ashiana Chamber (3rd Floor), Exhibition Road, P.B. No.20, P.S. Gandhi Maidan, District Patna. 3. Area Marketing Manager (Bihar), M/s Bharat Petroleum Corporation Ltd., having its office at Ashiana Chamber (3rd Floor), Exhibition Road, P.B. No.20, P.S. Gandhi Maidan, District Patna. 4. Dealer Selection Board, Bharat Petroleum Corporation Ltd., C/o Area Marketing Manager, Ashiana Chamber (3rd Floor), Exhibition Road, P.B. No.20, P.S. Gandhi Maidan, District Patna. 5. Sanjay Kumar Shukla son of Rajnandan Shukla, resident of Lauriya P.S. Govindganj, District East Champaran. 6. State of Bihar through the Collector, East Champaran at Motihari. 7. The Collector, East Champaran at Motihari………Respondents. For the petitioner :Mr. Y.V. Giri, Sr. Advocate with Mr. Raju Giri, Advocate. For respondent nos.1-4 : Mr. Sanjay Singh, Advocate. For respondent no.5 : Mr. Chittaranjan Sinha, Sr. Advocate with Mr. Vijay Shanker Srivastava, Advocate. For respondent no.6-7 : Mr. M.H. Khan, SC -18 with Ms. Babita Kumari, SC to SC-18. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 12/ 29.09.2011 This writ petition has been filed by the petitioner for quashing letter dated 28.01.2011 issued by the Area Marketing Manager (Bihar)of the Bihar Petroleum Corporation Limited (hereinafter referred to as the Corporation for the sake of brevity) by which petitioner‟s representation dated 25.01.2011 was rejected and also for directing the respondents to re-evaluate the marks given to the petitioner under the head “Fixed and Moveable Assets” and to award the Retail Outlet Dealership for the location Areraj within the - 2 - district of East Champaran to the petitioner and in any view of the matter the first empanelled candidate, namely Sanjay Kumar Shukla (the private respondent) having been disqualified the petitioner being the second empanelled candidate in the selection merit list would become the first empanelled candidate entitling him for the said dealership. 2. It is not in dispute that the Corporation issued notice in the Hindi daily newspaper “Hindustan” dated 30.05.2010 inviting tender for appointment of Retail Outlet Dealer for different places in the State of Bihar in which the location in question, namely Areraj within the district of East Champaran was at Serial No.127 under general category. Pursuant to the said advertisement six persons, namely Abha Verma, Sanjay Kumar Shukla, Shiv Kumar Mishra, Mamta Roy, Nayeem Alam and the petitioner filed their applications. Thereafter interview was held on 30.12.2010 in which Mamta Roy (petitioner of C.W.J.C. No.2186 of 2011) along with another candidate, namely Nayeem Alam were disqualified and out of the remaining four Sanjay Kumar Shukla (private respondent) got the highest 78.04 marks and the writ petitioner got the second highest 77.75 marks, whereas the remaining two Abha Verma and Shiv Kumar Mishra got very low marks i.e. 32.79 and 25.03 marks respectively. 3. It is also not in dispute that a letter dated 24.01.2011 was sent by the Corporation to the District Magistrate, East Champaran for grant of No Objection Certificate in favour of the first empanelled candidate on the land offered by him, but the District Magistrate passed his order dated 04.07.2011 that due to pendency of suit regarding the land in question No Objection Certificate cannot be granted in favour of the first empanelled candidate and the said order was communicated by the Additional District Magistrate to the - 3 - Corporation vide letter dated 11.07.2011. In the said circumstances, No Objection Certificate has not been given till date. 4. Learned counsel for the petitioner submitted that marks were given under several heads and the difference in the total obtained by private respondent and the petitioner was only 0.29 marks in favour of the said respondent only because the petitioner was wrongly given “0” marks under the head “Fixed and Moveable Assets”, although there was no complaint against the land offered by the petitioner for the said dealership and hence he should have been given full “4” marks under the said head. It is also claimed that the said position was clear from the valuation report of his Fixed Assets submitted by the petitioner which was issued by Sheetal Consultants who were Government Approved Valuers which showed that the petitioner alone had a share of Rs.50 lacs (approximately). 5. The second point raised by learned counsel for the petitioner was that the private respondent had offered 05 Kathas 03 Dhurs of land of Plot No.1695, Khata No.58, Mauza Lauriya within the district of East Champaran out of which 03 Khatas 03 Dhurs of land was subject matter of Partition Suit No.07 of 2006 filed by his co-sharer Sri Kumar Mishra @ Binay Kumar Mishra son of Madan Mishra which was pending in the court of Subordinate Judge-I, East Champaran. He also averred that dimension of the land offered by private respondent was also not as per the requirement in the advertisement, namely 35 metres x 35 metres, hence his offer should have been rejected by the authorities for furnishing false information and/or concealing information as provided under Clause-21 of the Brochure of the Corporation prescribing procedure for selection of petrol/diesel of Retail Outlet Dealership (hereinafter referred to as „the Brochure‟ for the sake of - 4 - brevity). He further claimed that after cancellation of the offer made by the private respondent the petitioner would have become the first empanelled candidate in whose favour the dealership should have been awarded. 6. On the aforesaid two grounds, the petitioner filed a complaint dated 25.01.2011 before the Senior Regional Manager of the Corporation under the provision of Clause-19 of the Brochure, which was updated on 10.08.2010. However, the said complaint was rejected by the authority of the Corporation vide order dated 28.01.2011. Learned counsel for the petitioner submitted that complaint/representation of the petitioner has been rejected on nonest grounds without properly considering the facts and circumstances of the case and without appreciating that the valuation report of his Fixed Assets was certified by a Government Approved Valuer and also ignoring that the land offered by the private respondent being under dispute in a suit, No Objection Certificate was refused by the District Magistrate and hence there was no occasion for waiting for any such No Objection Certificate. 7. On the other hand, learned counsel for the respondent Corporation claimed that the petitioner was not entitled to any marks on Fixed and Moveable Assets and “0” mark was rightly given to him as such evaluation was based on Clause-14 (ii) of the Brochure, which provided verification of documents submitted and valuation report duly certified by Government Approved Valuers and both have to be fulfilled along with the application and the same is required in the application form as provided in Clause-12 as well as in the undertaking as required in Clause-16 of the Brochure, but the said papers having not been submitted by the petitioner either with the application or at the time of interview or even with his complaint, the petitioner was not entitled to any marks under the said heading. - 5 - 8. Learned counsel for the respondent Corporation further averred that although by letter dated 11.07.2011 issued by the Additional District Magistrate it was mentioned that the District Magistrate had refused to grant No Objection Certificate in favour of private respondent but subsequently vide letter dated 16.07.2011 a correction was made holding that the word “For the Present” could not be mentioned therein due to typographical error hence he submitted that “For the Present” No Objection Certificate cannot be granted till the decision of the Civil Court in the suit and hence the Corporation will wait till the final order of the District Magistrate. 9. Learned counsel for the private respondent argued the same points as raised by learned counsel for the Corporation. However, he added that the valuation report submitted by the petitioner stated about the type of land, the name of the owner as well as number and date of the sale deeds showing mother of the petitioner as owner in most of the lands but those lands did not belong to the mother of the petitioner as owners are different which is apparent from deeds and documents filed along with the supplementary counter affidavit. He further submitted that for concealing the said facts and for misleading the authorities no document of title was produced and hence the petitioner not having come with clean hands, the writ petition is fit to be dismissed at the threshold. 10. Learned counsel for the private respondent argued that the plaint of Title Suit No.236 of 1987 showed that Plot No. 1695 measuring 03 Kathas 03 Dhurs was involved in that case and the said suit was dismissed on 27.06.1990. However subsequently Partition Suit No.07 of 2006 was filed by the same plaintiff with respect to the same land. He also averred that earlier private respondent of this writ petition was neither a party in Title Suit No.236 - 6 - of 1987 nor in Partition Suit No.07 of 2006, but subsequently he was impleaded as a defendant in the partition suit in the year 2010 by way of amendment. He thus claimed that partition suit was frivolous suit only for the purposes of harassing the private respondent. 11. From the arguments of learned counsel for the parties as well as from the materials on record, it is quite apparent that as per the merit selection list private respondent was at serial no.1, whereas the petitioner was at serial no.2 and the difference between total marks obtained by them was only 0.29 marks and the petitioner had challenged the same on two grounds, namely (i) that the petitioner was entitled to full “4” marks on “Fixed and Moveable Assets” but were given “0” marks although he had produced the valuation report duly certified by the Government Approved Valuers in support of the assets offered by him for the said dealership and (ii) that private-respondent no.5 was not entitled to any marks as the property offered by him was subject matter of litigation in a pending suit and even the District Magistrate had reused to grant No Objection Certificate in his favour. 12. So far the first point of the petitioner is concerned, it cannot be disputed that the valuation report produced by the petitioner was certified by a valuer who was approved by the government. However, it also cannot be disputed that the petitioner did not produce the document of title with respect to the properties offered by him for the dealership either with his original application form or at the time of interview or even later on along with his complaint. Hence, the petitioner did not fulfill the requirement as per the various clauses of the Brochure and of the advertisement and hence the authorities concerned were quite justified in giving “0” marks to him under the heading “Fixed and Moveable Assets”. Furthermore since the statements made - 7 - by the petitioner in his application with regard to his title over the land offered has not been supported by him by producing his documents of title which was necessarily required, it is a clear case of concealment and hence as per the clauses provided in the Brochure his application was liable to be rejected and had rightly been rejected by the authorities. 13. So far the land offered by the private respondent is concerned, the same was inspected by the technical valuation team which after inspection found that the land offered was 35 metres x 35 metres as required in the advertisement and hence the team in its report found the same suitable for the said purpose. There was nothing to show any illegality or infirmity in the findings of the said technical valuation team of the Corporation. Hence, the marks given to private-respondent no.5 in the merit selection list in question is not erroneous on that score. 14. So far the question raised with respect to No Objection Certificate of the District Magistrate is concerned it is not in dispute that the Corporation had written letter dated 24.01.2011 to the District Magistrate for No Objection Certificate with respect to the land of the private respondent, whereafter letter dated 11.07.2011 was sent by the Additional District Magistrate informing the Corporation that the District Magistrate had refused to grant No Objection Certificate as the land was in dispute. Subsequently another letter dated 16.07.2011 was issued by the Additional District Magistrate stating that the words “For the Present” were left out in letter dated 11.07.2011 due to typographical error and hence it was added. Because of this correction the Corporation assumed that since the order of the District Magistrate refusing to grant No Objection Certificate was only for the time being it would wait till the final order of the District Magistrate in that respect. - 8 - 15. This attitude of the Corporation has got no valid justification because if the District Magistrate did not, at the relevant time, find sufficient material to grant No Objection Certificate in favour of private respondent no.5 it has to be deemed as his refusal to grant No Objection Certificate, whereafter the required procedure should have been adopted by the Corporation. So far the partition suit is concerned, it is already five years old and the authorities cannot be sure as to how much more years it would continue, as even after the decision in the suit there may be appeal and second appeal etc. and hence there is no occasion for waiting for conclusion of the aforesaid litigation which may take decades together. The No Objection Certificate for the private respondent having been refused by the District Magistrate, the Corporation must consider it as the end of the matter and may start the selection process afresh by issuing NIT for the Retail Outlet Dealership of the Corporation for the location in question and proceed in accordance with law. 16. In view of the aforesaid findings and observations, this writ petition is dismissed with the aforesaid liberty to the Corporation. Harish (S.N. Hussain, J.)