IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11201 of 2010 Pramod Singh S/O Late Sudama Singh R/O Vill & P.O.Babura, P.S.Barhara, Distt-Bhojpur … Petitioner Versus 1. The Bharat Petroleum Corporation Ltd Having Its Registered Office At Bharat Bhawan, Karim Bhai Road, Beelard Estate, Mumbai-400001 2. The Area Marketing Manager , Area Marketing Manager'S Officer Ashiana Chamber (3rd Floor), Exhibition Road, Patna- 800001 3. Sri Samerndra Bahadur Singh S/O Sri Rameshwar Singh R/O Vill &P.O.Babura, P.S.Barhara, Distt-Bhojpur 4. Dr.Baleshwar Pandey, son of Ajgain Pandey @ Bangla Pandey @ Ajaya Pandey 5. Nidhi Pandey, wife of late Uday Shankar Pandey Both residents of village Sabalpur, P.O. Fuha, P.S. Barhara, District Bhojpur. 6. Rajesh Kumar Pandey 7. Kaushal Kishore Pandey Both sons of late Bhagawati Pandey, resident of villageSabalpur, P.O. Fuha, P.S. Barahara, District Bhojpur. … Respondents ----------------- with Civil Writ Jurisdiction Case No.9650 of 2011 1. Dr.Baleshwar Pandey, son of Ajgain Pandey @ Bangla Pandey @ Ajaya Pandey 2. Nidhi Pandey, wife of late Uday Shankar Pandey Both residents of village Sabalpur, P.O. Fuha, P.S. Barhara, District Bhojpur. … Petitioners Versus 1. The Bharat Bharat Petroleum Corporation Ltd through its Chairman, having Its Registered Office At Bharat Bhawan, Karim Bhai Road, Bellard Estate, Mumbai-400001 2. The Area Marketing Manager , Area Marketing Manager's Office, Ashiana Chamber (3rd Floor), Exhibition Road, Patna- 800001 3. Samerndra Bahadur Singh S/O Sri Rameshwar Singh R/O Vill &P.O.Babura, P.S.Barhara, Distt-Bhojpur 4. Damodar Pandey, son of late Sabha Pandey, resident of village Naya Sabalpur, Post Fuha, P.S. Barhara, District Bhojpur. …. Respondents ------------ For the Petitioner in C.W.J.C.: M/s. S.S. Dwivedi, Sr. Advocate No. 11201/2010 R.K.Dubey & Rakesh Chandra, Advocates. For the Petitioners in C.W.J.C.: M/s Surendra Kr. Singh, Senior No. 9650/2011 Advocate & Praveen Prakash, Advocate. 2 For Respondent-Bharat : Mr. Sanjay Singh, Advocate Petroleum Corporation For Respondent no.4 : Mr. Mazharul Hassan,Advocate in C.W.J.C. No. 9650/2011 For Respondent no. 3 in : Mr. Uday Kumar, Advocate both writ petitions For Respondents no.6&7 in: Mr. N. K. Agrawal, Sr. Advocate C.W.J.C. No. 11201/2010 & Md. Ataul Haque,Advocate --------- P R E S E N T THE HON’BLE MR. JUSTICE S. N. HUSSAIN --------- O R D E R 10/ 01.12.2011 Both the writ petitions have been heard together and are being decided by this common order as the subject matters in dispute in both the cases are the same. 2. An interlocutory application bearing I.A. No. 3513 of 2011 was filed in the first writ petition bearing C.W.J.C. No. 11201 of 2010 on behalf of two intervenors, namely, Baleshwar Pandey and Nidhi Pandey (petitioners of C.W.J.C. No. 9650 of 2011) for being impleaded as party- respondents and by order dated 28.06.2011 their application was allowed and they were added as respondents no.4 and 5 to the writ petition. 3. Similarly another interlocutory application bearing I.A. No. 5233 of 2011 was filed in the first writ petition by two intervenors, namely, Rajesh Kumar Pandey and Kaushal Kishore Pandey claiming to be co-sharers of Damodar Pandey (lessor of respondent no.3) as per Khatiyan and geneology given by them. The said interlocutory application was allowed vide order dated 19.09.2011 and the said applicants were added 3 as respondents no. 6 and 7 to the writ petition. 4. Both the sets of writ petitioners have challenged the selection of respondent no.3 Samrendra Bahadur Singh for retail outlet dealership of Bharat Petroleum Corporation Ltd. (hereinafter referred to as `the Corporation’ for the sake of brevity) at Babura Bazar (Bhojpur) and also for restraining respondent-authorities (respondents no.1 and 2) from issuing any Letter of Intent in favour of respondent no.3 for the same. 5. It is not in dispute that an advertisement on behalf of the Corporation was published in the local daily Hindi newspaper, namely, `Hindustan’ dated 11/12.07.2009 inviting applications for allotment of dealerships at various places in the State of Bihar, including the location in question, namely, Babura Bazar (Bhojpur) at serial no. 69. Columns 12 and 13 of the said advertisement provided that the required land should be 30 meters x 30 meters in area and should be situated at Koilwar and Babura Road within 1K.M. from Babura Bazar. 6. It is not in dispute that there were five candidates including respondent no.3 Samrendra Bahadur Singh and the petitioner of the first writ petition Pramod Singh and the Selection Committee of the Corporation took their interview on 17.11.2009, whereafter a panel of successful candidates was prepared, in which respondent no.3 was placed at serial no.1 and the aforesaid petitioner was placed at serial no.2. It is also not in dispute that both respondent no.3 as well as the aforesaid petitioner were awarded 31.85 marks under the category 4 `suitability of land for outlet facility’. This entry in the said column is the crux of the matter and the bone of contention of the parties in both the writ petitions. 7. The first writ petition bearing C.W.J.C. No. 11201 of 2010 has been filed by Pramod Singh, who was at serial no.2 in the panel for selection. He has categorically claimed that the land measuring 10,000 sq. ft. (100 ft. x 100 ft.) of plot no. 6305 appertaining to khata no. 3789 situated in Mauza Babura, P.S. Barhara in the district of Ara was offered by respondent no.3 in his application for the dealership on the basis of a deed of lease dated 08.08.2009 executed by one Damodar Pandey (respondent no.4 of C.W.J.C. No. 9650 of 2011) in favour of respondent no.3, but the said property was joint property of the family, in which the said lessor was only a small co-sharer having a share of merely 2.5 decimals in the plot in question, namely, plot no. 6305. Hence the said petitioner claimed that the lessor had executed the aforesaid lease deed much in excess of his share without any knowledge and consent of other co-sharers, including the petitioners of the second writ petition and respondents no. 4 to 7 of the first writ petition, which is proved by the khatiyan. 8. The second writ petition bearing C.W.J.C. No. 9650 of 2011 has been filed by two petitioners raising similar objections and claiming that they were co-sharers of the plot in question as petitioner no.1 has been duly recorded in the khatiyan, whereas, petitioner no.2 is the widowed daughter-in- 5 law of late Shobha Pandey, who was also recorded in the khatiyan as a co-sharer in the plot in question i.e. P. No. 6305, including a number of other co-sharers recorded in the khatiyan. Hence learned counsel for the petitioners argued that Damodar Pandey being only a small co-sharer and having a meagre share of 2.5 decimals in plot no.6305, was not entitled and justified to execute the deed of lease in question with respect to 10,000 sq. ft. (about 25 decimals ) of the said plot in favour of respondent no.3 and, hence the deed of lease was a void document, on the basis of which highest marks had been wrongly given to respondent no.3 Samrendra Bahadur Singh and selected for allotment of dealership of the outlet in question. 9. Learned counsel for the petitioners in both the writ petitions further claimed that the sheet anchor of the respondents’ claim is a Panchnama, which is an unregistered document, hit by section 1(b) of the Indian Registration Act and hence it is not admissible in evidence. In this connection, he relied upon a decision of the Apex Court in case of Siromani vs. Hem Kumar and another, reported in AIR 1968 S.C. 1299 (Para 4). He further argued that on the basis of the said Panchnama and the affidavit, order of mutation was passed in favour of respondent no.3, but the said mutation cannot decide the issue of title or question of partition. He further submitted that the matter of mutation is still pending before the Collector in revision filed by the petitioner of the first writ petition. 10. Learned counsel for the petitioners of both the 6 writ petitions also averred that immediately after interview dated 17.11.2009, the petitioner of the first writ petition filed his complaint on 23.11.2009, but no enquiry was made although the complaint was made within time as per Clause 19 of the Brochure of the Corporation. It was also claimed that neither any procedure provided for complaint was followed by the authority nor any order, much less any speaking order, was passed by the authorities on the said complaint although it was required as per Clause 19(6) of the Brochure. Hence learned counsel for the petitioners in both the cases submitted that the grievances of the petitioners are legal and justified. 11. On the other hand, learned counsel for the Corporation and its authorities (respondents no.1 and 2) in both the cases submitted that the instant dispute has arisen after 17.11.2009, but respondent no.3 was selected on the basis of registered deed of lease dated 10.08.2009 executed by lessor Damodar Pandey in favour of respondent no.3, with respect to the land in question measuring 10,000 sq. ft. of plot no. 6305, which fulfilled the requirement as per the advertisement as it was accepted by Damodar Pandey and hence there is no suppression of any fact by respondent no.3 regarding the land offered by him. 12. Learned counsel for respondent-Corporation also claimed that the presentation of a registered deed of lease suffices the requirement of the Corporation as regards the 7 suitability of land and the Corporation has no reasons to go into the right, title, interest and possession of the lessor. However, an application was received by the Corporation on 08.12.2009, in which the petitioner had made complaint as regards the title of the lessor, whereafter the authorities asked the lessee(respondent no.3) to produce such documents, which would reflect right, title and possession of the lessor and in response thereto respondent no.3 produced an order of mutation, in which the lease hold land was shown to have been mutated in the name of the lessor and the authorities of the Corporation also found the lessor and the lessee in actual active possession of the said land at the time of field verification. Furthermore report dated 03.04.2010 was also received by the Corporation from the Anchal Adhikari showing that 49 decimals of land were recorded in the name of lessor Damodar Pandey on the basis of partition. Hence he claimed that there was no reason for the Corporation to disqualify respondent no.3, who was the first empanelled candidate. 13. Learned counsel for the Corporation further stated that the Panchnama was executed on 08.11.1998 by all the co-sharers including the intervenors and the petitioners of the second writ petition, which showed understanding and partition between all the co-sharers, on the basis of which lessor Damodar Pandey was found in possession in the enquiry held in 2010. He further relied upon affidavit dated 30.12.2009 (Annexure 3 to the counter affidavit of respondent no. 3 in the 8 first writ petition), which was executed by none else than Nidhi Pandey (petitioner no.2 of the second writ petition), in which it was specifically stated that she had orally given her land in plot no. 6305 to lessor Damodar Pandey in exchange of the lessor’s land in plot no. 2656, which was given to her. He also relied upon another affidavit dated 24.12.2009 (Annexure 4 to the counter affidavit of respondent no. 3 in the first writ petition) executed by other co-sharers, namely, Rajesh Kumar Pandey and Kaushal Kishore Pandey regarding similar exchanges with the lessor. Against the said affidavits and the statements, no objection had been raised by any one. 14. He further averred that the claim raised and affidavit dated 23.11.2010 of Baleshwar Pandey (petitioner no.1 of the second writ petition) (Annexure 3 series of the first writ petition) are absolutely frivolous as he could have no justifiable grievance because his land had not been taken nor it had been included in the deed of lease in question. He also averred that the mutation of the land in question was made in the name of Damodar Pandey by the Anchal Adhikari on 08.01.2010 and the said order of mutation was also affirmed by the Deputy Collector, Land Reforms, Sadar Ara vide order dated 16.07.2010 passed in Mutation Appeal No. 172 of 2009- 10 (Annexure 5 to the counter affidavit of respondent no. 3 in the first writ petition). He further argued that the Corporation took into account all the documents presented before the authorities at the relevant time and there is no infirmity in the 9 decision taking process and hence no interference is legally required in the said matter. 15. Learned counsel for respondent no.3 in both cases adopted the arguments raised by learned counsel for the Corporation stating that even where the land is owned by the tenants in common, conveyance is not illegal. In this connection, he relied upon a decision of the Division Bench of this Court in case of Nathaniel Oraon vs. Mahadeo Oraon & Ors., reported in AIR 1957 Patna 511. He further stated that the case of petitioners of both writ petitioners is of no partition, whereas, the claim of respondent no.3 is of partition, which is supported by the Panchnama executed by the objectors themselves as well as the order of mutation on the basis of partition, which was also affirmed in appeal and on that basis the authorities had also found respondent no.3 in exclusive possession of the leasehold. Hence he averred that the entire claim of the petitioners of both cases is absolutely frivolous and misconceived. 16. Learned counsel for respondent no.4 of second writ petition, who was lessor of respondent no.3, adopted the arguments raised on behalf of respondents no. 1 to 3. 17. Learned counsel for respondents no. 6 and 7 of the first writ petition supported the claims of respondents no. 1 to 3 and adopted the arguments raised by their learned counsel. 18. Respondents no.4 and 5 of the first writ petition are the petitioners of the second writ petition and hence their 10 claims are similar to the claim of the writ petitioners, which has already been discussed above. 19. Considering the arguments of learned counsel for the parties and the materials on record, it is quite apparent that the objections raised by the petitioners of both writ petitions against the selection of respondent no.3 as retail outlet dealer of the Corporation for the location in question is based solely on the question of right and title of Damodar Pandey, who is the lessor of the selected candidate Samrendra Bahadur Singh (respondent no.3). But the question of right, title and interest cannot be gone into and decided by the authorities of the Corporation nor there is any decision of any court deciding right, title and interest or otherwise of Damodar Pandey or his other co-sharers. 20. The authorities of the Corporation while deciding such settlement has to see the prima facie right and possession of the lessor and the lessee on the basis of documents presented by the persons concerned. In the instant case, the name of the lessor Damodar Pandey was, admittedly, recorded in the khatiyan along with other co-sharers, whereafter there was a Panchnama dated 08.11.1998 with respect to understanding and partition executed by all the co-sharers including the petitioner of both writ petitions. In addition to that there were affidavits by several co-sharers including petitioner no.2 of the second writ petition admitting that they had given their share in the land in question, namely, plot no. 6305 to 11 Damodar Pandey in lieu of other lands. On the basis of the aforesaid circumstances and the possession of Damodar Pandey, his name was mutated with respect to the land in question vide order dated 08.01.2010 passed by the Anchal Adhikari, against which an appeal was filed by the objectors, but the said appeal was dismissed by the Deputy Collector, Land Reforms vide order dated 16.07.2010 and the mutation of the name of the lessor Damodar Pandey was affirmed. 21. Not only this, the authorities of the Corporation at the time of verification as well as spot enquiry of the land in question themselves found Samrendra Bahadur Singh (lessee) and his lessor (Damodar Pandey) in possession of the land in question. Hence the authorities of the Corporation were quite justified in selecting Samrendra Bahadur Singh as the successful candidate and nothing wrong is found in the decision taking process adopted by the authorities, which included considering the pleadings, appreciating the materials and making investigation before arriving at the conclusion and most importantly confining themselves to the powers given to them under the provisions. 22. The authorities of the Corporation were neither required nor they were entitled to go into the question of title or share of the parties and if the alleged co-sharers of the land in question are aggrieved, they are free to file a suit for title or a suit for partition before a Civil Court, which can decide the intricacies and the issues raised by the petitioners with respect 12 to the questions of tenants in common and conveyances etc., but the authorities of the Corporation were not the forum, where the petitioners could legally raise such questions. 23. In the said circumstances, this Court does not find any merit in the claims of the petitioners of both the writ petitions nor does it find any reason to interfere into the matter. Accordingly both the writ petitions are dismissed. MPS/ ( S. N. Hussain, J.)