IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3708 of 2011 Vijay Kumar Mahto son of Sri Dhrub Narayan Mahto, resident of Mahila College Road, Argarah Chowk, P.S. Katihar, District Katihar, Bihar … Petitioner Versus 1. Bharat Petroleum Corporation Ltd. through its Chairman-cum- Managing Director, B.P.C.L., Bharat Bhawan, 4 & 6 Currimbhoy Road, Ballard Estate, P.B. No. 688 Mumbai 400001. 2. Regional Manager, Bharat Petroleum Corporation Ltd., Eastern Regional Office, Bharat Bhawan, Plot No. 31, Kit Scheme No. 118, Prince Gulam Mohammad Shah Road, Golf Green, P.B. No. 16201 & 16204, Kolkkata-700095 3. Area Marketing Manager, Bharat Petroleum Corporation Ltd., 3rd Floor, Ashiyana Chamber, Exhibition Road, Patna 4. Territory Manager, Raiganj LPG Territory, B.P.C.L., L.P.G Bottling Plant, P.O. Panisalahat, Raiganj, Dist. Uttar Dinajpur, West Bengal. 5. Regional Coordinator, B.P.C.L., Eastern Regional Office, Bharat Bhawan, Plot No.31, Kit Scheme No. 118, Prince Gulam Mohammad Shah Road, Golf Green, P. B. No. 16201 & 16204, Kolkata-700095. 6. Sri Kishore Kumar Lohia, son of late Amar Chand Lohia, resident of Amla Tola, Katihar, P.O. & P.S. Katihar, District Katihar. 7. Sri Kanhaiya Lal Tiwary, son of Sri Guru Govind Das Tiwary, resident of Guru Niketan, Tilka Manjhi, Hatiya Road, Bhagalpur, P.S. & District Bhagalpur … Respondents ---------- For the Petitioner : M/s Y. V. Giri, Sr. Advocate & Rabindra Nath Kanth, Advocate For Respondent-BPCL : Mr. Madhuresh Kumar, Advocate For Respondent no.6 : M/s Abhay Kumar Singh, Sr. Advocate, N. K. Agrrawal, Sr. Advocate, Anil Kumar Sinha & D. N. Tewary, Advocates For Respondent no. 7: M/s Ganpati Trivedi & Madan Mohan, Advocates ------------ P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN O R D E R 15/ 25.08.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2 2. This writ petition has been filed by the petitioner for the following reliefs :- (i) For a direction to bring on record the Field Verification of Credential (FVC) Report of 1st empanelled candidate in respect to selection for appointment of LPG Distributorship at Katihar (ii) To quash the FVC Report submitted in respect of 1st empanelled candidate (respondent no.6) who got selected by giving incorrect information & misrepresentation in respect to land offered for the Showroom and collusive FVC Report submitted by Respondent Corporation to favour Respondentno.6, in violation of the terms and conditions of the Advertisement and Brochure. (iii) For a direction to restrain the Respondents to proceed in furtherance of the FVC Report and issuance of LOI in favour of 1st empanelled candidate. (iv) For a direction to the Respondent Corporation to investigate the Complaint of Petitioner by a Senior Officer as per Para 22.4 of the Brochure and to pass a speaking order. (v) To cancel the selection & empanelment of Respondent No.6 for appointment of LPG Distributorship at Katihar and to publish a fresh Merit List/Panel after such cancellation for award of LPG Distributorship at the location Katihar. 3. There is no dispute that a joint advertisement on behalf of three Public Sector Oil Companies was published in the daily newspaper `Hindustan’ of 19.01.2009 (Annexure 1) inviting applications for appointment of retail dealers for liquefied petroleum gas distributorship for 41 locations including Katihar, which was at serial no. 37 and was allocated to Bharat Petroleum Corporation 3 Limited (hereinafter referred to as `the Corporation’ for the sake brevity ) (respondent no.1) under open category. 4. It is not in dispute that the applications were filed by several candidates including the petitioner and respondent no.6, whereafter interview letter dated 08.07.2010(Annexure 3) was issued by the authorities directing the petitioner to appear before the Selection Committee on 28.07.2010 at the B.P.C.L., L.P.G. Bottling Plant, Panisalaghat, Raiganj, West Bengal. Interview of the candidates were held from 26.07.2010 to 30.07.2010, in which the petitioner and respondent no.6 also appeared and after completion of the selection process, a merit list along with statements of marks obtained by the candidates was published on 30.07.2010 (Annexure 1), in which respondent no.6 was placed at serial no. 1 and Sri Kanhaiya Lal Tiwary with partner was placed at serial no. 2, whereas, the petitioner was placed at serial no.3. 5. Against the aforesaid result/merit list, the petitioner submitted his complaint on 20.08.2010 (Annexure 5) to the Corporation against the selection and empanelment of the first and second candidates on the ground that their selection and empanelment was against the terms and conditions prescribed for selection of L.P.G. distributorship and that the lease deed dated 21.02.2009 (Annexure 6), on the basis of which respondent no.6 was placed at the top, was not legal and proper. 6. The Regional Co-ordinator, B.P.C.L. , Eastern Regional Office, Kolkata sent a letter to the petitioner on 23.09.2010 (Annexure 9) informing him that the said facts can only be verified at 4 the time of field verification of credentials, which had not been completed till that date. The petitioner replied on 04.10.2010 (Annexure 10) pointing out that Columns 21 & 22 of the Brochure provided a complete and separate mechanism for redressal of such complaints in respect of selection and the same cannot be made dependent upon any field verification of credentials. In the said matter, a meeting was held on 20.10.2010 called by the Territory Manager, B.P.C.L., Raiganj (respondent no. 4) with respect to the complaint of the petitioner, whereafter minutes of the meeting dated 20.10.2010 (Annexure 11) was prepared and signed by the petitioner also. 7. However, vide letter dated 28.10.2010 (Annexure 14) the petitioner raised his objection with regard to the document produced by respondent no.6 and also filed C.W.J.C. No. 19123 of 2010 for quashing of the selection and empanelment of the first candidate (respondent no.6) and second candidate, but the said writ petition was dismissed as premature by a bench of this Court vide order dated 24.11.2010 (Annexure 15) as it appeared from the materials brought on record by the petitioner himself that upon his complaint as per Grievance/Complaint Redressal System of the Oil Company, the matter was already being enquired and the petitioner was also called and informed about the progress and in a transparent manner the objection of the petitioner was being dealt with and no final order was passed on the complaint as the field verification of credentials was then in abeyance. 8. Learned counsel for the petitioner submitted that 5 thereafter the petitioner learnt that the lease deed of respondent no.6 dated 21.02.2009 was declared invalid by the Deputy Collector, Revenue Department, Katihar in Misc. Case No. 01 of 2010-2011 vide order dated 06.07.2010, against which Mita Sinha had filed an application before the District Magistrate, Katihar on the ground that she had no objection with the said lease deed as she had received the consideration amount and her husband had executed the lease deed after taking her consent. Hence the petitioner claimed that admittedly Mita Sinha was the owner, but the lease deed in favour of respondent no. 6 was not executed by her and, thus, it cannot be relied. 9. These facts were communicated by the petitioner to respondent-Corporation on 14.12.2010, whereafter respondent- Corporation informed the petitioner vide letter dated 25.01.2011 (Annexure 17) that the field verification of credentials of the first empanelled candidate (respondent no.6) was completed, in which lease deed dated 21.02.2009 was found to be valid and this was also confirmed by the Additional Collector, Katihar. Finally respondent- Corporation issued Letter of Intent in favour of the first empanelled candidate (respondent no.6) on 28.01.2011. 10. Learned counsel for the petitioner raised his claim that respondent-Corporation merely informed the petitioner about the result of the field verification of credentials, but neither it disclosed the disposal of the complaint of the petitioner nor provided any copy of the FVC Report although the field verification of credentials is a separate procedure in course of appointment of distributorship, whereas, Grievance Redressal System provides a separate mechanism 6 for disposal of complaint in respect of irregularities committed in the selection process and hence Letter of Intent cannot be legally issued without disposal of the complaint of the petitioner as per paragraph no. 12.4 of the advertisement and paragraphs no. 16.01 & 21.3 of the Brochure and if any Letter of Intent is issued pending disposal of the complaint, it has to be kept in abeyance as per paragraph no. 12.4 of the advertisement and 21.3 of the Brochure. 11. The claim of learned counsel for the petitioner against the first empanelled candidate (respondent no.6) was that respondent no.6 in his application before respondent-Corporation had offered land on the basis of lease deed dated 21.02.2009 executed with respect to the said land by one Anil Kumar Sinha although, admittedly, he was not the owner of that land nor any authority was given to him by the original owner Mita Sinha to execute such lease deed, but the lessor wrongly described himself as the owner in the said lease deed. It was also alleged that the said lease deed dated 21.0.2009 showed only a passage having no suitable approach road and the map attached to the lease deed was with respect to another plot not belonging to respondent no.6 or his wife Mita Sinha. 12. Learned counsel for the petitioner also averred that in the interview respondent no.6 showed another land of the same plot no. 474 (part), which was at the back, but it did not fulfill the criteria of measurement. He also averred that respondent no.6 also produced a Power of Attorney dated 05.05.2008 (Annexure `A’ of the counter- affidavit of respondent no.6 ) of Mita Sinha in favour of respondent no.6, but the same was self serving document prepared by respondent 7 no.6, who is a stamp vendor also. Similarly learned counsel for the petitioner claimed that the application (Annexure 4 of the counter- affidavit of respondent no.6), said to have been written by Smt. Mita Sinha to the District Magistrate showing her consent for the lease is undated, which cannot be relied upon. He submitted that the affidavit dated 30.10.2010 (Annexure B to the counter affidavit of B.P.C.L. ) sworn by Mita Sinha before the Notary Public, Katihar also cannot be relied. 13. The claim of learned counsel for the petitioner against the second empanelled candidate (respondent no.7) was that the land offered by him for Godown through lease deed dated 14.02.2009 did not disclose the dimension of the land i.e. length and width as required in paragraph 13.01 of the advertisement and paragraph 8.1 of the Brochure as well as paragraph 13.K of the application form and the said land is also not freely accessible through all weather motorable approach road as required in paragraph 13.1 of the advertisement. Learned counsel for the petitioner also claimed that the land offered by the second empanelled candidate (respondent no.7) for Show Room through the same lease deed dated 14.02.2009 measures 20ft. x 10ft., whereas, the required length and width is 3 meters x 4.5 meters, respectively, as per paragraph 13.2 of the advertisement and paragraph 8.2 of the Brochure as well as paragraph 13 Kh of the application form and furthermore the said land is standing in the name of Bibi Farhana Nashib and Rajo Sahni. It was further claimed by learned counsel for the petitioner that his complaint against the second empanelled candidate (respondent no. 7) 8 has not been investigated by respondent-Corporation nor any order has been passed in that regard. 14. On the other hand, learned counsel for respondent- Corporation and its authorities (respondents no. 1 to 5) submitted that as per the prescribed rules, the lands offered by the candidates in their respective application forms were alone to be considered and no applicant can be given opportunity to offer any other land subsequent to the application or even at the time of interview. Even according to the claim of the petitioner, the lands of the first and second empanelled candidates (respondents no.6 and 7) remained the same and the land offered by the first empanelled candidate (respondent no.6) in his application is still there and on its basis he has been finally selected and on the said land he is carrying on the dealership since March, 2011. 15. Learned counsel for respondent-Corporation also stated that the allocation of marks in favour of a candidate is done on the basis of various parameters prescribed in the advertisement, the Brochure etc. and the deed including deed of lease or deed of transfer and the same have to be verified at the time of field verification of credentials, but the petitioner had been unnecessarily raising frivolous claims much prior to the verification and had earlier filed a writ petition in this Court bearing C.W.J.C. No. 19123 of 2010, which was dismissed by this Court vide order dated 24.11.2010 on the ground of it being premature. 16. Learned counsel for respondent-Corporation further argued that there was a family settlement dated 05.05.2008 9 (Annexure `A’ to the counter affidavit of B.P.C.L.), according to which Power of Attorney was given by the actual owner Smt. Mita Sinha to her husband Anil Kumar Sinha and on its basis the said Anil Kumar Sinha had executed the lease deed in favour of respondent no.6 on 21.02.2009 (Annexure 6), but due to inadvertence he did not make any mention of the Power of Attorney in the lease deed. However, in support of the said lease deed Mita Sinha had herself filed an affidavit on 30.10.2010 (Annexure `B’ to the counter affidavit of B.P.C.L. ) supporting the said lease deed. Learned counsel for respondent- Corporation also averred that in the lease deed dated 21.02.2009 (Annexure 6), correct plot no. 474 was mentioned, but in the map wrong plot no. 441 was shown. This fact was supported by affidavit dated 08.12.2010 (Annexure 16) and the affidavit of Mita Sinha dated 30.10.2010 (Annexure `B’ to the counter affidavit of B.P.C.L.). 17. Learned counsel for respondent-Corporation further argued that the allegation raised by the petitioner was fully considered by the Corporation and his complaint was decided on 20.10.2010 (Annexure 11) much before disposal of C.W.J.C. No. 19123 of 2010 vide order dated 24.11.2010 (Annexure 15), by which a Bench of this Court had observed that everything has to be seen at the time of the field verification of credentials. He also argued that the field verification of respondent no.6 was completed, in which validity of lease deed in question, suitability of land purchased and hindrances etc. were all considered and the land offered was found to be fit. 18. Learned counsel for respondent-Corporation also 10 submitted that the petitioner did not raise any serious challenge against the second empanelled candidate (respondent no. 7) and allegation that the measurement of land offered was not adequate was absolutely frivolous as the measurement of the land required was 3 meters x 4.5 meters, whereas, the land offered was 10’ x 20’, which clearly shows that the measurement of the land offered was not less than the land required, rather it was a bit larger. Hence he claimed that the said claim of the petitioner is frivolous and illegal. 19. Learned counsel for respondent no.6 relied upon Clause 14 of the notice inviting tender (Annexure 1) with respect to the land required and its verification. He submitted that the substantial compliance of the said provision has been made by the authorities concerned and there is no mandatory violation with respect thereto and in this connection he relied upon a decision of the Apex Court in case of Commissioner of Central Excise, New Delhi vs. Hari Chand Shri Gopal and Ors., reported in (2011) 1 S.C.C. 236. 20. Learned counsel for respondent no. 6 also claimed that the possession has already been given to him without any objection and he is running his retail dealership since several months and no valid ground for interference having been made out, the claim of the petitioner is fit to be rejected, specially when the document produced has been shown to be valid and respondent-Corporation is also satisfied with it. In this connection, he relied upon a decision of this Court in case of Dhananjay Singh vs. Union of India, reported in 2010 (1) P.L.J.R. 59. 21. On the other hand, learned counsel for respondent 11 no. 7(second empanelled candidate) claimed that if the allotment of respondent no. 6 is cancelled, respondent no. 7 being the second in the list of the empanelled candidates is entitled for allotment. He further submitted that the land offered by respondent no.7 for Show Room is 10ft. x 20ft., which is equivalent to 3.2 meters x 6.3 meters, which is much more than the area required in the advertisement i.e. 3 meters x 4.5 meters. He also claimed that similarly the land offered by respondent no. 7 for Godown is 39.04 meters x 34 meters, which is much more than the area required in the advertisement i.e. 27 meters x 26.15 meters and hence the lands offered by respondent no. 7 for both the purposes are larger in area than the lands required. 22. Learned counsel for respondent no. 7 further averred that the lease deeds were executed by Kaushar Ali and Kamaldeo Singh, who had respectively purchased the lands from the original owners Bibi Asma Khatun and Laxmi Yadav by registered deeds, whereafter the purchasers were duly recorded in the revenue records and hence lease deeds executed by the said purchasers in favour of respondent no. 7 with respect to the aforesaid lands were legal and proper and there was no objection to it by the original owners. Hence he submits that the claim of the petitioner is absolutely frivolous and is fit to be rejected. 23. Considering the detailed arguments raised by learned counsel for the parties and the materials on record, it transpires that the grievance of the petitioner against respondent no. 6 (the first empanelled candidate) is that he was selected relying upon deed of lease dated 21.02.2009 executed in his favour by one Anil Kumar 12 Sinha, who was neither the owner of the lease hold nor was even authorized by the owner for executing the said lease deed as is apparent from the said document itself. Hence the claim of the petitioner is that the selection of respondent no. 6 and issuance of Letter of Intent in his favour were absolutely illegal and bad. 24. It is not in dispute that the admitted owner of the land offered by respondent no. 6 was Smt. Mita Sinha, whereas, the lease deed dated 21.02.2009 in favour of respondent no. 6 was executed by Anil Kumar Sinha, who was none else than the husband of the said owner Smt. Mita Sinha. In addition to the aforesaid fact, the respondents have produced a deed of family settlement dated 05.05.2008, in which both the aforesaid Smt. Mita Sinha and her husband Anil Kumar Sinha were the signatories and in that document Power of Attorney had been given by the admitted owner Smt. Mita Sinha to her husband Anil Kumar Sinha to execute such documents also. In addition to that the said admitted owner Smt. Mita Sinha had herself sworn an affidavit dated 30.10.2010 stating that lease deed dated 21.02.2009 had been executed by her husband on her behalf in favour of respondent no. 6, for which he was fully authorized and she sent the said affidavit to respondent-Corporation. These facts clearly rectify the inadvertence of Anil Kumar Sinha in the deed of lease in not mentioning about the Power of Attorney or authorization granted to him by the original owner for executing the lease deed in favour of respondent no. 6. Hence due to such small error on the part of the lessor, the lessee cannot be legally allowed to suffer specially when the lease deed and the Power of Attorney were fully supported by the 13 admitted owner herself. 25. It is also apparent that the said lease deed in favour of respondent no. 6 was challenged by the petitioner before the Deputy Collector, Revenue Department, Katihar, in Misc. Case No. 01 of 2010-2011 and the said authority declared the said lease deed invalid by order dated 06.07.2010. Against the said order the admitted owner Smt. Mita Sinha herself filed an application before the District Magistrate, Katihar stating that she had no objection with respect to the aforesaid lease deed, which was executed by a person authorized by her and she had received the consideration money, whereafter, the Additional Collector, Katihar vide order dated 09.12.2010 declared that the lease deed in question was legal and correct. Hence the petitioner cannot legally take any advantage nor can the deed of lease executed in favour of respondent no. 6 be legally assumed to be invalid. 26. So far the objection raised by learned counsel for the petitioner with respect to the plot involved in the deed of lease is concerned, it was correctly mentioned as plot no. 474 in the deed of lease, but in the map wrongly plot no. 441 was mentioned. This fact had been clarified by the lessor Anil Kumar Sinha vide affidavit dated 08.12.2010 and also by the owner Smt. Mita Sinha vide her affidavit dated 30.10.2010, which were sent to respondent- Corporation. It is not in dispute that the aforesaid plot no. 474 was clearly mentioned by respondent no. 6 in his application form and according to the prescribed rules, the land offered by a candidate in his application form alone can be considered and no applicant can be 14 given opportunity to offer any other land subsequent to the application or even at the time of interview. It is also not in dispute that the aforesaid land offered by respondent no. 6, which was also the subject of the lease deed, throughout remained the same and on its basis respondent no. 6 had been finally selected and on the said land he is carrying on his retail outlet dealership since March, 2011 on the basis of Letter of Intent issued in his favour by the Corporation. 27. So far the question of complaint filed by the petitioner before the Corporation is concerned, it was fully considered and only thereafter C.W.J.C. 19123 of 2010 filed by the petitioner was dismissed as premature on 24.11.2010 specially observing that the contentions of the petitioner could be seen at the time of field verification of credentials. Thereafter respondent-Corporation as a precautionary measure took legal opinion about the legality of the lease deed and competence of Anil Kumar Sinha for executing the same and only when the Counsel opined that Anil Kumar Sinha was competent to execute the said lease deed , which was valid, the authorities of the Corporation completed the field verification credentials of respondent no. 6, in which the validity of lease deed in question, suitability of land purchased and hindrances etc. were all considered and the land offered by him was found fit, whereafter Letter of Intent was issued by the Corporation in favour of respondent no. 6 on 28.01.2011 and letter of appointment was issued by the Corporation in favour of respondent no. 6 on 05.03.2011. All the aforesaid documents have been annexed by the Corporation to its counter affidavit. 15 28. No doubt the field verification of credentials is a procedure in course of appointment of retail outlet dealership and according to the advertisement and the Brochure, a separate mechanism for disposal of complaint regarding irregularities committed in the selection process as per the Grievance Redressal System has been provided, but in the instant case all the required procedures had been adopted by the authorities concerned, who had not only rejected the complaint of the petitioner, but had also disposed of the matter vide separate order. It may be noted that the complaint of the petitioner against respondent no. 6 was with respect to the validity of the lease deed and once the said credential had been found to be legally valid after adopting due process prescribed in the advertisement and Brochure, the mountain of complaint/allegation