Sanjay Kumar Shukla vs M/S Bharat Petroleum Corp.Ltd.& Ors

3. A summary of the essential facts is delineated hereinbelow:-

4. Aggrieved by the selection, the respondent No.7 filed a complaint dated 25.01.2011 before the Corporation raising a two-fold grievance. The first was with regard to award of ‘zero’ marks to the Respondent, against a maximum of ‘four’ awardable under the head “Fixed and Moveable Assets”. The second grievance raised was that the land offered by the appellant was under litigation and was not immediately available for use of the retail outlet. The complaint filed by the respondent No.7 was promptly answered by an order of rejection dated 28.01.2011 on the ground that the Technical Evaluation Committee in its report had found the land offered by the appellant suitable for development of the retail outlet and that the issue raised by the respondent in the objection/complaint would be dealt with in the process of grant of No Objection Certificate (NOC) by the District Magistrate to whom a reference of the matter is required to be made. In so far as the claim of the respondent No.7 with regard to award of marks is concerned, the same was rejected on the ground that the respondent had not furnished any document in support of his title to the assets mentioned by him in his application.

5. Aggrieved by the rejection of his complaint, the respondent No.7 moved the High Court by means of a writ petition registered and numbered as C.W.J.C. No.6125 of 2011. No Letter of Intent had been granted to the appellant at that stage. A learned Single Judge of the High Court by order dated 29.09.2011 took the view that in so far as award of marks to the respondent No.7 is concerned no fault can be found in the decision of the Corporation inasmuch as the respondent No.7 did not produce any document of title in respect of assets mentioned by him in his application for the dealership. In fact, the learned Single Judge came to the further conclusion that such failure on the part of the respondent No.7 amounted to suppression/concealment of relevant facts. In so far as the present appellant is concerned, the learned Single Judge came to the conclusion that the requisite NOC from the District Magistrate in respect of the land offered by the appellant not having been granted, the Corporation cannot be expected to wait indefinitely. Consequently, the learned Single Judge directed that the selection process be redone.

6. Aggrieved by the order dated 29.09.2011 passed by the learned Single Judge both the appellant and the respondent No.7 filed their respective Letters Patent Appeals. The Division Bench of the High Court by the impugned order dated 16.05.2012 substantially agreed with the findings recorded by the learned Single Judge in so far as both the parties are concerned. However, taking note of Clause 16 of the Norms i.e. “Procedure For Selection Of Petrol/Diesel Retail Outlet Dealers”, the Bench took the view that once the appellant was found to be disentitled, the dealership should have been awarded to respondent No.7, he being, at serial No.2 of the merit list. Consequential directions were issued by the Division Bench of the High Court. Aggrieved, the present appeals have been filed.

7. Contending that the findings of the learned Single Judge with regard to suppression/concealment had not been set aside by the Division Bench of the High Court in its order dated 16.05.2012, the respondent No.7 had moved SLP (C) No.28324 of 2012 against the aforesaid part of the order dated 16.05.2012. The SLP filed by the respondent No.7 was dismissed by this Court by order dated 05.10.2012.

8. An effective resolution of the contentious issues that have emerged from the arguments made on behalf of the rival parties would require specific notice of the relevant documents brought on record by the parties at different stages of the proceedings before the High Court as well as this Court. As none of the said documents are disputed and the authenticity/genuineness thereof is not questioned, considering the relevance of the same to the subject matter, we are of the view that the facts unfolded by the said documents can be ignored only at the cost of a fair adjudication of the lis between the parties. We, therefore, proceed to take note of the said facts in proper sequential order.

9. After the selection for the dealership was finalized by the Corporation on 30.12.2010, a reference was made to the District Authority on 24.01.2011 for grant of NOC to enable the Corporation to apply for the necessary licence under the Petroleum Rules, 2002. By communications dated 11.07.2011 and 16.07.2011 the District Authority informed the Corporation that NOC cannot be granted on account of the fact that the land, on which outlet was proposed, was involved in Partition Suit No.7 of 2006. It would be of some significance that the appellant was impleaded as defendant in the said suit on 04.02.2011 i.e. after 5 years of its institution and that too after the finalization of the select list/merit panel by the Corporation. An order of injunction to restrain the District Authority from issuing NOC was sought by the plaintiff in Partition Suit No.7 of 2006 which was refused by the learned Trial Court on 19.07.2011. Taking note of the aforesaid fact i.e. refusal of injunction, the District Authority, once again, sought for a report from the Sub-Divisional Officer whether NOC can be granted. This was on 04.08.2011. The Sub-Divisional Officer sought the opinion of the Government Advocate and submitted a report dated 18.08.2011 recommending grant of NOC. These documents, though vital, were not before the High Court but have been placed before us. After the learned Single Judge had decided the writ petition by ordering a fresh selection, an amendment application dated 17.10.2011 was filed in Partition Suit No.7 of 2006 for deletion of the land offered for the dealership from the purview of the suit. The said amendment was allowed by the learned Trial Court on 19.10.2011. In the L.P.A. filed by the appellant, i.e. L.P.A. No.1845 of 2011 the amendment application for deletion of the land in question as well as the order dated 19.10.2011 of the learned Trial Court allowing the said amendment application were enclosed. The High Court overlooked the same and did not consider the effect thereof on the rights and entitlements of the respective parties. It also appears that on 26.12.2011, on behalf of the Corporation, a reminder was issued to the District Authority for grant of the NOC applied for by the Corporation on 24.01.2011. There is another letter on record dated 30.12.2011 from the District Magistrate to the Territory Manager (Retail) Bharat Petroleum Corporation Limited in the matter of grant of NOC. In the said letter reference has been made to the order of the learned Single Judge in the C.W.J.C. No.6125 of 2011 dated 29.09.2011. In the ultimate paragraph of the said letter it is stated that:-

16. Consequently, these appeals are allowed and the impugned order dated 16.05.2012 passed by the Division Bench of the High Court in L.P.A. Nos.1845 and 1916 of 2011 as well as the order dated 29.09.2011 passed by learned Single Judge in C.W.J.C. No.6125 of 2011 are set aside.

...…………………………CJI.