IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 2749 of 2008. Reserved on: 13.07.2011. Decided on: 12.08.2011. _____________________________________________________ Virender Verma. …Petitioner. -Versus- Hindustan Petroleum Corporation Limited and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Ankush Dass Sood, Advocate. For respondents No. 1 to 5. : Mr. Rahul Mahajan, Advocate. For respondent No. 6 : Mr. Vinay Kuthiala, Advocate. None for respondents No. 7 to 9. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Respondent No.1 has issued an advertisement, whereby applications were invited for setting up petrol/diesel dealership outlets on the State Highway of Sunni-Basantpur Road in 2005. The last date of receipt of application was 16th August, 2005. Petitioner submitted an application on 12th August, 2005 for considering his candidature. Petitioner alongwith private respondents were called for interview on 4th October, 2005. The Corporation prepared the merit list vide Annexure P-4. Petitioner has secured 60.24% marks, respondent No. 6 has secured 64.7% marks and respondent No. 7 has secured 60.75% marks. Petitioner has availed the remedy provided under the Brochure, i.e., Annexure P-2 on 22nd 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - October, 2005. Petitioner was requested to supply the additional documents on 24.11.2005. Petitioner supplied the same on 07.12.2005. Petitioner did not hear about the out come of his complaint. He approached this Court by way of C.W.P. No. 226 of 2006. The Court passed the order dated 18.04.2007, seeking reply from respondents No. 1 to 5 about their policy. In sequel thereto, an affidavit was filed, i.e., Annexure P-10. The petition was disposed of on 23.05.2008. The judgment dated 23.05.2008 reads thus: “Mr. Rahul Mahajan, Advocate on the basis of the instructions imparted to him by Sh. Rajiv Bansal, Executive Sales Officer, Shimla submits that the Company is ready and willing to have a re-look on the selection process on the following issues: (a) Capability of the applicant to arrange the finances. (b) Land/infrastructure facilities. However, it is clarified that while undertaking this exercise the cases of the petitioner and alike who had submitted their applications alone will be gone into. The decision will be taken by the company within a period of two months. The effect of re-looking into the matter would be that a fresh panel would be drawn on the basis of the marks allotted to each candidates as per the documents supplied by them on the cut off date i.e. 16th August, 2005. However, before parting with the judgment, it is clarified that none of the parties will claim any equities on the basis of earlier panel drawn in view of the matter being looked afresh, as indicated above. In view of the above observations, the writ petition is disposed of.” 2. Respondents No. 1 to 5 have also moved an application for extension of time. A Letters Patent Appeal was - 3 - also preferred against the order of this Court, whereby only one week’s time was granted to do the needful. The L.P.A. was also disposed of by a Division Bench of this Court on 25.09.2008. However, the fact of the matter is that respondents No. 1 to 5 in compliance of the judgment dated 23.05.2008 awarded 59.91 marks to the petitioner, 60.00% marks to respondent No. 6 and 56.75% marks to respondent No. 7. Copy of the merit list is Annexure P-19. 3. Mr. Ankush Dass Sood, learned counsel for the petitioner has vehemently argued that respondent No. 6 was not entitled to 60:00% marks. According to him, the land given in the lease deed was in co-ownership and the same could not be leased out in violation of paragraph No. 8.37 of the Himachal Pradesh Land Records Manual. He has also referred to letter dated 29.01.2007, issued by the Deputy Commissioner, Shimla (Annexure P-21). He further argued that no specific portion of the land was offered by respondent No. 6. He further contended that no partition has taken place and in view of this, the lease deed was not valid. He finally contended that the awarding of marks by the Selection Committee is in violation of paragraphs No. 14.1 and 16 of Annexure P-2 (Brochure). 4. Mr. Rahul Mahajan, learned counsel for respondents No. 1 to 5 has strenuously argued that the technical committee has again visited the spot and he has referred to the report. According to him, even after visiting the spot, there was no change in the marks. He has laid strong reliance on Annexure P-10. According to him, the marks have been allotted strictly as per brochure (Annexure P-2) and the - 4 - same are in conformity with paragraphs No. 14.1 and 16. He then contended that the area provided for by respondent No. 6 was more vis-à-vis petitioner. He finally contended that the suitability of the land was to be seen by taking into consideration all the technical aspects of the matter and before issuing the L.O.I., all the remaining formalities shall be undertaken by the respondent-Company. 5. Mr. Vinay Kuthiala, learned counsel for respondent No. 6 has vehemently argued that since the petitioner has not secured 60% marks, he has no locus standi to file the petition. He then contended that the lease deed, its registration and mutations are inconformity with law. He has specifically referred to Tatima (Annexure R-6/C) and copy of Jamabandi (Annexure R-6/D). According to him, the letter dated 29.01.2007, issued by the Deputy Commissioner, Shimla will have prospective effect. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. It is not in dispute that earlier the petitioner was granted 60.24% marks, respondent No. 6 was granted 64.7% marks and respondent No. 7 was granted 60.75% marks. The respondent-Company was directed to re-look into the matter as per order dated 18.04.2007, but the Committee on the basis of material placed on record as on cut off date, i.e., 16th August, 2005, again re-looked into the marks of petitioner and respondents No. 6 and 7. Petitioner has secured 59.91% marks, respondent No. 6 has secured 60.00% marks and respondent No. 7 has secured 56.75% marks. It is provided in paragraph No. 17 that the minimum qualifying marks for any candidate to - 5 - be eligible for consideration for award of dealership would be 60% in case of open category. In the instant case, the petitioner has been given only 59.91% marks. Thus, he is not eligible. The Court is of the considered view that since the petitioner has not obtained 60% marks, he has no locus standi to assail the marks allotted to respondent No. 6. However, Mr. Ankush Dass Sood submits that though his client could not secure 60% marks, but the marks given to respondent No. 6 are also not in conformity with paragraphs No. 14 and 16 of Annexure P-2. Respondent No. 6 has also moved an application bearing C.M.P. No. 8316 of 2009, seeking direction of the Court to place on record Annexure A-1. 8. The Court has issued directions on 13.09.2010 whether paragraph No. 14.1 of Brochure (Annexure P-2) has been complied in letter and spirit or not. In sequel thereto, an affidavit was filed by respondents No. 1 to 5 at page 427 of the paper book. A specific stand has been taken by respondents No. 1 to 5 in its affidavit that the Committee did not re-evaluate the land afresh in terms of paragraph No. 14.1 of Brochure (Annexure P-2). The sum and substance of the affidavit is that since the Court has not directed to revisit the site, no fresh site inspection was carried out. Thereafter, the Court has passed a detailed order on 05.10.2010, whereby the Committee was directed to re-visit the site. The committee re-visited the site and found no changes in the earlier assessment. 9. Mr. Rahul Mahajan, learned counsel for respondents No. 1 to 5 has drawn the attention of the Court to affidavit at page 449 of the paper book. However, fact of the - 6 - matter is that on re-evaluation of the site, no change of marks was recommended. It is, thus, apparent that pursuant to orders dated 18.04.2007 and 05.10.2010, the respondents No. 1 to 5 have twice undertaken the exercise to see whether the marks allotted by the Selection Committee are proper or not. 10. Mr. Ankush Dass Sood, learned counsel for the petitioner has referred to paragraph No. 8.37 of the Himachal Pradesh Land Records Manual. 11. Mr. Vinay Kuthiala, learned counsel for respondent No. 6 has referred to paragraph No. 8.82 of the Himachal Pradesh Land Records Manual. According to him, transfer of portion of field is permissible. 12. Mr. Ankush Dass Sood, learned counsel for the petitioner has also drawn the attention of the Court to letter dated 29.01.2007 (Annexure P-21). The letter dated 29.01.2007 is prospective in its applicability. In the instant case, the lease deed dated 21.07.2005 is valid. It was registered on the same date, i.e., 21.07.2005. The mutation was attested on 26.07.2005 and Tatima was prepared vide Annexure (Annexure R-6/C) and copy of Jamabandi is Annexure R-6/D. Respondent No. 6 has also placed affidavits on record, whereby the owners have consented that they have no objection in case the land is given to respondent No. 6 by way of lease, one of these affidavits is Annexure P-6/B. Respondent No. 6 has to see the suitability of the land for the purpose of retail outlet. The Committee gives the marks under paragraph No. 16 of Annexure P-2 after visiting the site. In the instant case, as noticed above, the Committee has visited the site twice. The committee members have the - 7 - technical expertise to see the suitability of the land for the purpose of setting up the retail outlet. This Court will not sit in appeal over the wisdom of the members of the technical committee to re-evaluate the marks allowed under paragraph No. 16 of Annexure P-2. 13. In order to allay the affairs of the petitioner, the Court has directed respondents No. 1 to 5 to file a supplementary affidavit on 20.05.2011 clarifying therein whether the instructions issued in the Himachal Pradesh Land Records Mannual have been taken into consideration or not. In sequel thereto, an affidavit has been filed by respondents No. 1 to 5 on 15th June, 2011. What has been stated in the affidavit is that this has not been taken into consideration at the initial stage, but the same will be taken into consideration before the issuance of L.O.I. in favour of respondent No. 6 and at the time of signing of dealership agreement. 14. Mr. Rahul Mahajan, learned counsel for respondents No. 1 to 5 has also drawn the attention of the Court to Annexure P-10. It is specifically averred that the policy is the same, as narrated in paragraphs No. 2 and 3 of the supplementary affidavit and even in case where the property is jointly owned by number of persons and thus shown in the revenue record and one of such person leases out the specific portion of the land of the person who has applied for grant of Retail Outlet. In the instant case, the petitioner has not alleged any malafides against the members of the selection committee, rather, the selection committee has visited the spot twice in the presence of parties to re-evaluate whether the marks have been - 8 - rightly allotted under paragraph No. 16.1 of Brochure (Annexure P-2). 15. Mr. Rahul Mahajan, learned counsel for respondents No. 1 to 5 has drawn the attention of the Court to paragraph No. 19.2, whereby if any information furnished by the applicant is found to be false at any point of time before or after appointment as a dealer, the allotment will be cancelled forthwith and dealership is terminated in case commissioned. This clause is in the nature of caveat to ensure that the declaration made at the time of submission of application and the final decision are in conformity with law. 16. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge August 12, 2011. (bhupender) - 9 -