IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.31328 of 2010 and 11010 of 2011 WP.No.31328 of 2010: BETWEEN P. Prathima. ... PETITIONER AND Indian Oil Corporation Ltd., Hyderabad and three others. ...RESPONDENTS Counsel for the Petitioner: MR. M. RAJAMALLA REDDY Counsel for the Respondents: MR. C. TULASI KRISHNA MR. THOOM SRINIVAS WP.No.11010 of 2011: BETWEEN Smt. Samala Preethi. ... PETITIONER AND Indian Oil Corporation Ltd., Hyderabad and three others. ...RESPONDENTS Counsel for the Petitioner: MR. CHINTAPANTI ADITHYA Counsel for the Respondents: --NONE APPEARED-- The Court made the following order: COMMON ORDER: WP.No.31328 of 2010: By this writ petition, the petitioner questions the order dated 11.10.2010 passed by the respondents 1 to 3 rejecting petitioner’s complaint against the empanelment and selection of the fourth respondent for appointment as a dealer of the retail petroleum outlet at Bejjanki Cross Road to Thotapalli (SH- 1), Karimnagar, as illegal and contrary to the notification of the respondents 1 to 3. 2. The said impugned order of the respondents 1 to 3 came to be issued in the following circumstances: (a) Respondents 1 to 3 (hereinafter referred to as IOC) issued notification inviting applications for appointment as retail outlet dealers. The said notification dated 08.10.2009 to the extent relevant herein notified the location in question at Sl.No.70 and in columns 10 and 11 the minimum plot size with frontage and depth notified for the above location was 45 Mts X 45 Mts i.e. 45 Mts frontage and 45 Mts depth. Petitioner as well as the fourth respondent applied for consideration. While the petitioner had offered his Ac.0.30 guntas of land in Sy.No.483/A at Dacharam, Bejjanki Mandal on the basis of gift settlement deed in his favour showing the measurement of that land as 55 yards X 66 yards. The fourth respondent also applied on the basis of a lease deed executed in his favour in respect of Ac.0.23 guntas of land in Sy.No.269/A at Muthannapet revenue village, Bejjanki Mandal, Karimnagar District. (b) It is alleged that interviews were held on 06.08.2010 and the final list of marks obtained by the candidates, as displayed on the internet, produced by the petitioner as Ex.P4 shows that the fourth respondent was awarded total marks – 94.63 and was short listed at Sl.No.1 whereas the petitioner secured 89.93 marks and was short listed at Sl.No.2. Questioning the shortlisting of the fourth respondent, the petitioner filed a complaint dated 18.08.2010 on two principal grounds: (1) that the dimensions of the plot offered by the fourth respondent are not shown in the lease deed produced by him and as such, 32.8 marks awarded to the fourth respondent is without proper verification and (2) that the very same land offered by the fourth respondent was subject to acquisition by the Government for laying 3 m width underground pipeline for drinking purpose and as such, ought not to have been considered. 3. The said complaint was redressed and rejected under the impugned order dated 11.10.2010 by the DGM (Marketing) by informing the petitioner that as per the land documents of the fourth respondent and evaluation of the land by the land evaluation committee, the land offered by the fourth respondent meets the requirement of dimensions. It was further informed that the notification for acquisition issued by the Government of Andhra Pradesh on 27.05.2010 was seven months after the selection of the fourth respondent and thereby the fourth respondent cannot be disqualified. 4. Apart from questioning the manner of rejection of petitioner’s objection, as above, the petitioner also complains of violation of principles of natural justice as well as clause 18(B) of the brochure of IOC. The said clause 18(B) may be noticed at this stage: “18. GRIEVANCE/COMPLAINT REDRESSAL SYSTEM: (A) … (B) When a decision is taken to investigate the complaint, the investigation will be done by one Senior Officer of Oil Company and will pass speaking order after giving due opportunity to the complainant etc…” 5. Learned counsel for the petitioner states that no opportunity was given to the complainant before passing of the impugned order dated 11.10.2010. Learned counsel also submits that the copy of the lease deed produced by the fourth respondent does not show the dimensions of the plot whereas the plot shown by the petitioner does contain specific dimensions, which satisfy the notification. It is contended that in the absence of dimensions in the document, no presumption can be drawn in favour of the fourth respondent. With regard to the other objection, the learned counsel states that on the date of interviews i.e. 06.08.2010, the acquisition notification dated 27.05.2010 was already issued by the State Government and it was known to the fourth respondent as well as the IOC that the land offered cannot be utilised. He, therefore, submits that the selection of the fourth respondent, in any case, is not sustainable. 6. Learned counsel has also placed further reliance upon the counter affidavit filed by IOC wherein they accept that the land was shown under acquisition but the fourth respondent was given an opportunity to show an alternate land for developing the retail outlet and accordingly, the fourth respondent has, in fact, offered alternate land other then the one shown in the application and considered by IOC for selection. The said action of IOC to select alternate land and justify the selection of the fourth respondent is objected to by the learned counsel for the petitioner on the ground that it amounts to overlooking the requirement in the terms of the notification of IOC itself. Reliance is, therefore, placed upon clause 14(A) of the conditions appended to the notification, which specifically states the land and the details offered along with the application alone will be considered for this purpose and the applicant will not be given the opportunity to offer any other land subsequently. Reliance is also placed upon condition 17.1 dealing with field verification wherein it is provided that if the No.1 candidate is not found suitable/fails to fulfill the terms and conditions of the award of dealership or the award is to be cancelled for any reason whatsoever, the dealership will be offered to the 2nd candidate in the merit panel after necessary field verification. Learned counsel placed reliance upon the following decisions of the Supreme Court: CHIEF OF MARKETING (MARKETING DIVISION), COAL INDIA LTD. v. MEWAT CHEMICALS & TINY SSI COAL PULVERISING UNIT[1]; CENTRE FOR PUBLIC INTEREST LITIGATION v. UNION OF INDIA[2]; SANGEETA SINGH v. UNION OF INDIA[3] and MOHINDER SINGH v. CHIEF ELECTION COMMISSIONER[4]. 7. Learned standing counsel for IOC, on the contrary, submits that after the complaint was made by the petitioner, the said complaint was investigated by the Retail Sales Department, who have verified the land offered by the fourth respondent and based on the survey sketch have found that the dimensions on all sides of the land offered measure 49 Mts each. The findings of the Investigation Officer as per the report dated 30.10.2010 are produced before this Court, which reads as follows: “As per the land documents seen and witnessed by the Land Evaluation Committee, the subject offered land meets the required dimensions as per advertisement. A copy of sketch duly singed by Dy. Mgr (Engg)/Sr. Manager (RS) is enclosed.” The location survey map is also produced before this Court, which, undoubtedly, shows that the land offered by the fourth respondent is exact square admeasuring 49 Mts on all sides. 8. To the extent of the second objection of the petitioner regarding Government acquiring the land is concerned, it is stated that the investigation report states that a notification given by the Special Deputy Collector (LA), SRSP indicating Sy.No.169 to be acquired under land acquisition for proposed pipeline project as per GO dated 03.06.2010. The investigation report, therefore, states that in view of subsequent notification though the land offered is currently not suitable, the fourth respondent be given an opportunity to verify and show an alternate land. It is stated that based on the said report, the fourth respondent has shown alternate land, which is accepted by IOC. Learned standing counsel has also placed reliance upon a judgment of this Court in WP.No.1848 of 2010 dated 19.02.2010 wherein the fact situation is similar to the case on hand. 9. The fourth respondent has also filed a counter affidavit stating that the land originally offered by him bears Sy.No.169/A and the acquisition notification, which has been issued thereafter, is with regard to Sy.No.169. The fourth respondent also submits that the said subsequent event of acquisition was beyond his control and his selection already made cannot be nullified on that ground. 10. It is, however, crucial to notice that the acquisition notification was issued seven months after the submission of the application by the fourth respondent and at the time of his selection, it cannot be said that the fourth respondent has misrepresented any fact, as there was no notification in existence. 11. In the light of these contentions, it has to be examined as to whether the decision of IOC in rejecting the grievance of the petitioner on two grounds, referred to above, and their further action in permitting the fourth respondent to show alternate land is justified. 12. So far as the aspect of dimensions of the land offered by the fourth respondent is concerned, the lease deed of the plot, did not mentions the dimensions but the Land Evaluation Committee of IOC has examined the documents of the location and considering the suitability from the point of location has selected the fourth respondent’s land as in conformity with the required dimensions notified. After the complaint by the petitioner, the investigating authority of IOC also has verified that aspect by taking into consideration the survey map as well, which, undoubtedly, shows that the fourth respondent’s land has dimension of 49 Mts on all sides, which satisfies the notified dimensions. It cannot, therefore, be said that there is any perversity or error of appreciation committed by IOC in rejecting that objection of the petitioner. 13. So far as the second objection is concerned, undoubtedly, the acquisition notification is seven month after the fourth respondent applied for and the plot offered by the fourth respondent was situated in Sy.No.169/A whereas the notification was with regard to Sy.No.169. It could not have been under the comprehension of either the fourth respondent or the IOC that the plot offered and selected would be subject to acquisition proceedings. It is only after the selection of the fourth respondent that the acquisition affecting the selected land came to be noticed and at that stage, the fourth respondent having offered alternate land to the satisfaction of IOC, the same was selected. The dimensions of the said plot offered by the fourth respondent as per the survey, as noticed above, therefore, cannot be disputed by the petitioner or IOC. The selection of the land having been preceded by the Land Evaluation Committee’s physical verification and satisfaction, it cannot be said that the decision of IOC in selecting the fourth respondent is vitiated in any manner. Strong reliance is placed by the learned counsel for the petitioner upon clause 18(B) of the notification to complain of violation of opportunity to the petitioner as complainant. I am, however, unable to see as to what purpose would be served even if the petitioner was given an opportunity, as the dimension of the land, which exist on ground as per the survey report, could not have been denied by the petitioner. The principles of natural justice have always been understood as not putting the matter in a straight jacket and in my view, it cannot be said that any principles of natural justices are violated, as no purpose would have been served even if the petitioner was given a notice prior to passing the order of rejection as neither the dimensions of the fourth respondent’s land can be altered nor the fact that the acquisition notification issued subsequently could have affected the selection process. The acquisition notification in the present case was firstly not relating to Sy.No.169/A, which was offered by the fourth respondent and secondly, it was subsequent to the consideration of fourth respondent’s application. 14. Reliance placed by the learned counsel for the petitioner on the decision in CHIEF OF MARKETING (MARKETING DIVISION), COAL INDIA LTD.’s case (1 supra) is clearly misplaced. Para 16 of the said decision provides that position prevailing not only on the date of application but on the date of allotment is to apply. However, that was a case where the subsequent event of circular issued by the competent authority intervened the date of selection and the date of allotment. 15. The decision in CENTRE FOR PUBLIC INTEREST LITIGATION’s case (2 supra) held that the norms and guidelines published for the LPG dealership have to be followed. The Supreme Court was dealing with a public interest writ petition dealing with the discretion in making appointments without any existing guidelines to regulate the said exercise on discretion. The guidelines, which would govern such allotment, were placed before the Court, which were taken note of by the Court and the oil companies were directed to follow the guidelines uniformly. The said case does not assist the petitioner in any manner. 16. The decision in SANGEETA SINGH’s case (3 supra) is pressed into services to substantiate that casus omissus, which is applicable to reading of statutes as a whole, is required to be applied in a given fact situation. On the facts before the Supreme Court, the applicants, whose relatives held a retail petroleum outlet, were notified as not eligible and the word ‘relatives’ was explained by listing out different categories, which are to be treated as relatives. The challenge to the selection of successful candidate was questioned on the ground that the father-in-law of the selectee was holding a dealership and though the father-in-law was not in the list of relatives, the same was read into by the High Court, which was not approved by the Supreme Court. I am unable to appreciate as to how the said decision applies to the facts of the present case. 17. The last of the decisions in MOHINDER SINGH’s case (4 supra) is a classic decision, which holds that an authority, which passed an impugned order, must give reasons, which should be reflected in the order itself but not to be supplemented by the counter affidavit. The situation as envisaged by the aforesaid decision also does not arise in the present case, in view of the discussion, as above. 18. On the contrary, the unreported decision of this Court in WP.No.1848 of 2010 dated 19.02.2010 cited by the learned standing counsel for IOC appears closer to the facts as in the said case, the land of the successful tenderer as selected for construction of a godown but later under a G.O. the Government prohibited construction of godown in the said land. That subsequent event was considered by IOC by accepting the change of site shown by the successful tenderer and the said action was upheld on the ground that the subsequent event occurred beyond the control of the successful tenderer. In the present case also, the notification for acquisition is issued much later, which was not within the control of the fourth respondent and it is only the fortuitous circumstance of the selected land being affected by acquisition proposal that the fourth respondent was forced to show alternate land, which was accepted by IOC. The selection as such, therefore, cannot be said to be vitiated on the basis of subsequent event on which neither of the parties had any control. I am, therefore, not inclined to issue the writ as prayed for. The writ petition is accordingly dismissed. WP.No.11010 of 2011: 19. This writ petition is filed by the petitioner, successful candidate, who is arrayed as fourth respondent in WP.No.31328 of 2010, as above, seeking a Mandamus against the action of the respondents – IOC in not issuing the letter of intent in view of her selection. 20. The facts, discussed as above, clearly entitle the petitioner herein for Mandamus as prayed for. For the reasons mentioned above, while dismissing WP.No.31328 of 2010, as above, this writ petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J November 25, 2011 DSK [1] (2004) 4 SCC 146 [2] 1995 Supp (3) SCC 382 [3] (2005) 2 SCC 484 [4] AIR 1978 SC 851