WP(C) 1425/2011 BEFORE HON’BLE MR. JUSTICE AK GOSWAMI By this application under Article 226 of the Constitution of India, the petition er has prayed for striking out of the name of the Respondent No.6, who has been placed as the First Preferred Candidate in the Merit List dated 15.12.2010 for a ward of LPG Distributorship at Hojai with a prayer for a further direction to th e respondent Corporation to place the petitioner as first preferred candidate fo r the said distributorship and to issue letter of intent as well as final order for awarding such LPG Distributorship in favour of the respondents. 2. The case of the petitioner is that she is an educated unemployed lady. A n advertisement was issued in an English daily newspaper, namely, The Assam Tri bune on its 1st December, 2009 issue by the Respondent No.2 and two other Compa nies for award of LPG Distributorship at 17 places in the State of Assam. 7 loca tions out of aforesaid 17 places including that of Hojai under Sl. No.12 of the said advertisement was relatable to Respondent No.2. The LPG. Distributorship at Hojai was meant for Open (Woman), for short OP(W). The writ petitioner respond ed to the said advertisement by submitting her application with all related docu ments for award of the said LPG Distributorship. She was called for interview to be held on 15.12.2010 and, accordingly, she and many other candidates had appea red before the Selection Committee and on that very date, a Merit List was prepa red by the Selection Committee in order of merit. The petitioner having secured 92.37 marks, was placed at 2nd position and the Respondent No.6 was placed in t he 1st position showing that she had obtained 93.33 marks. 3. It has been stated that the husband of the Respondent No.6, Sri Bokul Da s, Proprietor of M/S Ganesh Industries, had been operating a Gas Agency at Hoja i by entering into a Memorandum of Understanding with Assam Co-operative Marketi ng & Consumers Federation Limited, hereinafter referred to as the STATFED’ on 2 0.7.2004 for a period of 10 years and, therefore, she did not fulfil the criteri a as stipulated in clause 4.4 of the Brochure on Selection of Bharatgas (LPG) D istributors for short Brochure as well as clause 2 (e) of the advertisement i nasmuch as no individual would be entitled to a new dealership/distributorship, if any other individual in a family unit already holds LPG dealership/LPG dist ributorship etc. It has further been stated that the Respondent No.6 in her app lication had offered the same plot of land to be used as godown for storage of LPG Cylinders at Hojai, from where the husband of the Respondent No.6 was alre ady carrying on his business from the existing godown thereon and, therefore, t he said godown being not free from encumbrance, the Respondent No.6 had not fulf illed clause 9 of the Brochure as well as paragraph 11 of the advertisement date d 1.12.2009. Additionally, it is also stated that the Respondent No.6 suppressed the actual status of the said land comprised in Dag No.183 of Patta No.9, villa ge/town Hojai. Averments have been made that though the Respondent No.6 had ment ioned in her application that her husband is the owner of the aforesaid plot of land over which the godown is located, her husband is neither the owner of the s aid plot of land nor the same belongs to any member of her family and as a matte r of fact, the said plot of land is an Annual Patta land recorded in the name of one Sri Prafulla Singh and Smt. Kotheloi Devi and this amounts to gross suppres sion of material fact. It has also been stated that the marking pattern prescrib es 25 marks to be awarded to an applicant who owns a plot of land. The Responde nt No.6 was awarded 25 marks, to which she was not entitled to and at best, the Respondent No.6 would have been entitled to 18 marks instead of 25 marks. If 7 m arks are deducted it would result in Respondent No.6 securing 88.33 marks, releg ating her to 3rd position and in that scenario, the writ petitioner would have emerged as first preferred candidate. In respect of capacity to arrange finance, the Respondent No.6 had listed details of Fixed Deposit Certificates, National Savings Certificates, Kishan Vikash Patras, some of which were neither free nor unencumbered, but were pledged against the financial assistance availed of by t he husband of the Respondent No.6. It is stated that furnishing of wrong informa tion and suppression of information warrants cancellation of distributorship in terms of clause 4.5. (d) and clause 23 of the Brochure. Allegations are also mad e that the Selection Committee had shown undue favour to the Respondent No.6 b y awarding her maximum possible marks so as to place her in the first position in the Merit List. 4. The Respondent No.6 had filed an affidavit wherein she stated that pu rsuant to the cancellation of registration of the STATFED in the year 2006, the STATFED, by letter dated 16.6.2006, had withdrawn the lease deed with regard to the plot of land covered by Dag No.183 of Patta No.9. The distributorship of th e STATFED was also terminated by order dated 28.9.2010 issued by the Indian Oil Corporation Limited. Though the husband of the petitioner had challenged the sa id termination order by filing WP(C) No.6254/2010, the same was withdrawn on 23. 2.2011. The allegation of petitioner that she stands disqualified in terms of clause 4.4 of the Brochure was denied. It is also stated that apart from the pl ot of land covered by Dag No.183 of Patta No.9, she had offered two other plots of land and, therefore, there was no illegality in respect of award of marks in respect of the land. The allegation of the petitioner that she had submitted en cumbered Fixed Deposit Certificates, National Savings Certificates and Kishan Vi kash Patras was also denied. 5. By filing a reply affidavit, the writ petitioner has stated that the h usband of the Respondent No.6 is operating an LPG dealership and she had been gr anted a Gas Licence under the Gas Cylinder Rules, 2004 on 9.3.2005 with its val idity upto 30.9.2013. By filing an additional affidavit, the writ petitioner ha s asserted that by taking recourse to Right to Information Act, 2005, the petiti oner had come to learn that 11 Nos. of National Savings Certificates and 4 Nos. of Fixed Deposit Certificates issued by the United Bank of India are encumbered and the respondent authorities, without verifying the documents furnished by the Respondent No.6, awarded her 35 marks, to which she was not entitled to. The Re spondent No.6 responded by filing an affidavit-in-opposition to the additional a ffidavit of the writ petitioner wherein, while denying the allegation levelled a gainst her regarding issuance of licence on 9.3.2005, stated that the said licen ce, in fact, was issued in the name of the Branch Manager, STATFED on 9.3.2005 a nd the said licence came to be transferred in her name by an order dated 4.3.201 1 of the Deputy Chief Controller of the Explosives. It has further been stated t hat in the advertisement dated 1.12.2009, it was not indicated that the Fixed D eposit Certificates, National Savings Certificates/Kishan Vikash Patras should not be pledged or charged with any one and in any view of the matter, the amount of the Fixed Deposit Certificate, the National Savings Certificates, Kishan Vik ash Patras which are encumbered is very insignificant. She had provided informat ion for arranging fund to the tune of Rs.32.78 Lakh and a candidate is entitled to get full marks i.e. 18 marks, if he/she is able to provide supporting documen ts of Rs.18 Lakhs. 6. An affidavit-in-opposition has been filed on behalf of the Respondent No s.2, 3, 4 and 5. In the said affidavit, it was asserted that the selection of th e Respondent No.6 has been done in a fair and transparent manner and she had bee n found to be the most suitable candidate. It has been stated that the distribut orship had been commissioned in Dag No.183 of Patta No.9 as per direction of the State Government till the new godown is constructed on the land in Dag No.713 o f Patta No.213 and the said distributorship was catering approximately to 800 cu stomers. It has further been stated that M/S Indian Oil Corporation Limited by l etter dated 17.1.2011 had confirmed that it did not have any distributor named B akul Das at Hojai, i.e. the husband of the Respondent No.6. The Respondent No.6 had offered 3 plots of land including the plot of land in Dag No.183 of Patta N o.9 and that the Company had issued letter of intent dated 21.2.2011 to make ava ilable the LPG Godown, not in the plot of land covered by Dag No.183 of Patta No .9, but in the plot of land measuring 27 mts x 26.5 mts for storing LPG cylinder s. The respondents also admitted the transfer of the Licence in favour of the Re spondent No.6 in the said affidavit and it has been stated that the letter of ap pointment was issued on 12.3.2011 and the distributorship was commissioned on 14.3.2011 under the name and style of M/S Baba Ganesh Bharat Gas Service, Hojai. In respect of the Fixed Deposit Certificates/National Savings Certificates/Kish an Vikash Patras, it has been stated that on Field Verification of Credentials, for short, (FVC), as the Respondent No.6 could not show some of the original Fix ed Deposit Certificates/National Savings Certificates/Kishan Vikash Patras, such certificates and deposits for which no original was produced, were not taken i nto consideration and the revised capability to provide finance was worked out t o be Rs.22,91,533/- from the earlier Rs.31,72,371/-, as furnished by the Respond ent No.6. Based on the aforesaid, marks were awarded to her as per Brochure. 7. By filing an affidavit-in-reply to the affidavit-in-opposition f iled by the respondent Nos. 2, 3, 4 and 5 , while reiterating the statements mad e in the writ petition, the petitioner has stated that the letter dated 12-01-20 11 addressed to the Deputy General Manager (NESO) and the letter dated 17-01-20 11 issued by the Indian Oil Corporation should not be taken into consideration as these letters have been issued after the preparation of merit list on 15-12- 2010 and on that date, the Memorandum of Understanding dated 20-07-2004, being very much in force, the selection of the respondent No. 6 is illegal. It is als o stated that the guidelines do not provide for award of LPG distributorship at a particular plot temporarily and thereafter, to shift to a different plot of land. During FVC, the officers of the corporation had shown undue favour to th e respondent No.6, in order to cover up the lapses of the respondent No.6 as wel l as illegal selection made by the selection committee by allowing the responden t no. 6 to obtain statutory approval to construct another godown in Dag No. 713, Patta No. 213 under Lonka mouza. 8. I have heard Mr. S.S. Dey, learned counsel for the petitioner. I have also heard Mr. M.K. Choudhury, learned senior counsel appearing for the R espondent No.1 as well as Mr. P.J. Saikia, learned counsel appearing for the Res pondent Nos. 2 to 5. 9. Mr. S.S. Dey, learned counsel for the petitioner submits that th e respondent No. 6 is debarred even from applying for LPG Distributorship, let a lone being offered a distributorship in view of her husband having a subsisting and ongoing LPG Distributorship, clause 4. 4 of the Brochure will come into play . He has also submitted that the Jamabandi of the plot of land covered by Dag No . 183, Patta No.9, which plot of land the Respondent No.6 offered at serial No.1 in her application, showing it to be belonging to her husband, would falsify he r such claim and would conclusively prove that the said plot of land stands in t he name of one Prafulla Singh and Smti. Kotheloi Devi and to that extent there i s suppression of material facts. It is also his contention that the Respondent N o.6 has taken recourse to falsehood in respect of her disclosure in connection with her capacity to provide finance. 10. Though the applicants were required to provide information of un encumbered Fixed Deposit Certificates, National Savings Certificates, Kishan Vik ash Patras, etc., the Respondent No.6, in the list supplied by her, had includ ed number of National Savings Certificates and Fixed Deposit Certificates, which were encumbered. It has also been submitted by him that the Respondent No. 6 wa s allotted marks to which she was not entitled to in terms of the parameters lai d down. Even after such undeserving allotment of mark, the difference of mark in between the petitioner and the Respondent No.6 was only 0.96. He submits that t he Respondent No.6 was entitled to, at the most, 18 marks in respect of land tho ugh she was awarded 25 marks. But for such illegal and undeserving award of mark in favour of Respondent No. 6, the petitioner would have been the First Preferr ed Candidate. Mr. S.S. Dey had forcefully argued that furnishing of false inform ation and suppression of material fact resorted to by the Respondent No.6, havi ng regard to the provisions contained in clause 4.5 (d) read with clause 23 of the Brochure, the candidature of the Respondent No.6 ought to have been rejected . Even in this proceeding, the Respondent No.6 has not been able to provide any explanation with regard to the suppression of material facts and on the contrary , has tacitly admitted such mis-representation and suppression. The respondent a uthorities, instead of canceling the allotment of distributorship, had condoned the same to show undue favour. 11. Mr. M.K. Choudhury, learned senior counsel for the respo ndent No.6, submits that the argument of Mr. Dey, learned counsel for the peti tioner is ill founded and misconceived. The result was announced by publishing m erit list dated 15-12-2010 and such result was known to the writ petitioner. The respondent No.6 was given the letter of intent on 21-02-2011 and the writ petit ion came to be filed on 07-03-2011. On the date of motion on 09-03-2011, an aff idavit was filed by the respondent No.6 bringing on record the fact the letter o f intent was already issued. Notwithstanding that the writ petitioner had not ch allenged the same and therefore, he submits the writ petitioner is not entitled to any relief. It is his contention that the husband of the respondent No.6 was never a distributor or a dealer but was only an agent of the STATFED. Placing re liance on the affidavit-in-opposition dated 25-04-2011 filed against the additio nal affidavit, he submits that all along the licence stood in the name of the Br anch Manager, Hojai, STATEFED and the same only stood transferred in her name on 04-03-2011. It is also submitted that the licence was issued to such Branch Ma nager on 09-03-2005 and it cannot be said that the respondent No.6 was a licence e from that date. When the respondent No.6 or her husband was never a dealer or a distributor, the embargo imposed by clause 4.5 is not attracted. With regard to the plot of land, Mr. Choudhury submits that the respondent No. 6 had made av ailable three plots of land. He justifies that there is nothing wrong in indicat ing that the plot of land at serial No.1 of her application was owned by Shri Ba kul Das inasmuch as there was an unregistered document permitting occupation ov er the said plot of land coupled with a possession certificate, over which he ha d constructed a godown to be used by him as an agent of the STATFED. In this con nection, he contends that in respect of two other plots of land there is no cont roversy and therefore, the selection committee had rightly awarded 25 marks. He submits that there is no suppression and that the respondent No.6 did not deri ved any undue benefit and therefore, the authorities, on consideration of relati ve merits of the parties concerned, rightly empanelled her as the first preferre d candidate and accordingly, issued the letter of intent and subsequently, the order of appointment in her favour. With regard to the aspect relating to her c apacity to provide finance, his contention is that respondent No.6 had listed 56 numbers of securities and the respondent No.6 was having more than 32 lakhs a nd even if the encumbered securities are taken out of consideration, she still h as more than Rs. 20 lakhs and as such is entitled to full marks. By drawing ref erence to the additional affidavit filed on 15-09-2011, Mr.Chodhury submits that the respondent No.6 was instructed by letter dated 28-02-2011 of the Sub-Divisi onal Magistrate, Hojai to commence the distributorship in the existing godown in the plot No.1. In the meantime, by spending about Rs. 5 lakhs, she had construc ted a godown in the 3rd plot of land which stood in her name and the distributor ship is operating from the godown from 19-08-2011. Mr. Chodhury also submits th at the Brochure being not a statutory guideline, even if there is some deviation , no mandamus would lie to enforce such guidelines. 12. Mr. P.J. Saikia learned counsel appearing for the respondent nos . 2, 3 ,4 and 5, while endorsing the submission advanced by the learned senior c ounsel for the respondent no. 6 , by producing the record submits that the respo ndent had conducted the selection in a most fair and transparent manner. He has also submitted that the allegation of the writ petitioner that the respondent have shown undue favour to the respondent No.6 is wholly unfounded and such alle gation are made only for the purpose of this case. He has also submitted that t he award of marks in respect of the candidates have been done strictly in accord ance with the provision contained in the Brochure and the selection committee, t aking all relevant aspects of the matter into consideration and following the gu ideline, empanelled the respondent No. 6 as first preferred candidate. He also vehemently denied the allegation that the respondent No.6 resorted to misreprese ntation and suppression of material facts. 13. The submission advanced by the learned counsel for the parties h ave received due consideration of this Court. I have perused the pleadings of th is case and have also gone through the records containing two files made availab le to this Court by Mr. Saikia. 14. In order to appreciate the contention of the learned counsel for the parties, it will be appropriate to reproduce clause 4.4, clause 4.5, clause 9 and clause 23 of the Brochure : 4.4 MULTIPLE DISTRIBUTORSHIP NORM (RELATIONSHIP CLAUSE) Multiple Dealer/Distributorship norms means that none of the individuals would b e entitled to a new dealership/distributorship if any other individual in a ’fam ily unit’ already holds a dealership/distributorship or LOI for a dealership/dis tributorship of a PSU oil company i.e. Only one Retail Outlet/SKO dealership/LP G distributorship of PSU oil company will be allowed to a ’family’ unit. Family unit in case of married person/applicant, shall consist of indivi dual concerned, his/her Spouse and their unmarried son(s)/daughter(s). In case o f unmarried person/applicant, ’Family Unit’ shall consist of individual concern ed, his/her parents and his/her unmarried brother(s) and unmarried sister(s). 4.5 : DISQUALIFICATION : The following are not eligible. (a) Persons convicted or against whom charges have been framed by a court of law for any criminal offence involving moral turpitude/economic offences (other than freedom struggle). (b) Totally paralysed, mentally unsound and Totally Blind persons. (c) Signatory to agreement of a distributorship/dealership of any oil compan y terminated on the grounds of adulteration/malpractice in the past. (d) If any person is allotted the distributorship by giving wrong informatio n or by suppression of information, it shall be cancelled. 9. CONSTRUCTION OF GODOWN/SHOWROOM ON THE SITE AS MENTIONED IN APPLICATION FORM. The applicants who readily have suitable godown/land for constructio n for storage of filled LPG cylinders and shop/land for construction of shop for showroom for setting up of LPG distributorship or have a firm commitment from t he land owner for purchase/lease or can arrange it are awarded marks. The detail s given in the application alone will be considered for this purpose and the app licant will not be given any opportunity to offer any other land subsequently ( Even at the time of interview). For this purpose, the land owned by the family m embers as defined in eligibility criteria would also be considered as belonging to the applicant. In case the land is owned by the family members, an affidavit for giving consent has to be given by the family member (s) as per the format gi ven in the Application Form. After selection of the applicant, physical verification of the godown land/godow n as well as the showroom will be undertaken. In the event it is found that t here is a variation in the details submitted in the application and or the plot is not found suitable for construction of godown/showroom allotment of the distr ibutorship can be cancelled. Or after selection, if applicant for any reason is unable to construct Godown du ly approved by the Chief Controller of Explosives on the land/godown indicated i n the application and or Showroom as per the Oil Company’s standard layout on t he land/shop indicated in the application, then allotment of LPG distributorship made to the applicant will automatically stand cancelled. If the candidate has expressed that he can arrange for the land for godown/showr oom, then if selected, the same has to be arranged within two months from date o f issue of LOI failing which the LOI may be cancelled. 23. FURNISHING OF FALSE INFORMATION If any information furnished by the applicant is found to be false at an y point of time before or after appointment as a dealer, the allotment shall be cancelled forthwith and distributorship terminated in case commissioned. 15. Clause 14 of the Brochure provides for norms for evaluating cand idates. There are seven parameters provided. One of the parameters for evaluatin g the candidates is capability to provide infrastructure and facilities and 35 marks is the maximum marks that can be awarded to an applicant. In respect of ca pability to provide finance, which is also another parameter, 35 marks is the ma ximum marks that can be awarded. The 35 marks in respect of both the aforesaid parameters are again divided into sub- headings indicating allocation of marks. In respect of land for LPG storage godown/godown, an applicant who owns plot of land having clear title with registered sales/lease/gift deed, mutation etc. i s entitled to 25 marks and an applicant having agreement to purchase/lease suit able land/godown is entitled to 18 marks. These marks are to be allotted based o n the information/statement given in the application form. In respect of capacit y to provide finance, for the sub-head financially sound-Funds , maximum 18 m arks is allowed and a candidate having an amount of Rs. 18 lakhs in Saving Acco unts in bank as on the date of application or having free and unencumbered fixed deposits in scheduled banks or any other documents which can be readily convert ed to liquid cash to cover working capital/infrastructure requirements as on dat e of advertisement is entitled to 18 marks. 16. It will be only proper to indicate that paragraph 2 (e) and paragraph 1 1 of