TMI Blog2010 (7) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... ip offered was Dealer owned . The advertisement further indicates that dealership at both the locations were for women. At Ranirbazar the dealership was only for Open Category (Women). The last date for submission of applications was 19.03.2004. The relevant clauses for advertisement were as under: NOTICE Appointment of Retail Outlet Dealer Indian Oil Corporation Limited (Marketing division) Invites applications for appointment of Dealers for Retail Outlet dealership in the State of Tripura at the following locations for dealer owned/ Company Owned Retail Outlets on site owned by Dealer/to be taken by the Company on outright sale or lease: Sl. No. Location Revenue Dist. Type of D'ship Co. Owned/ Dealer owned Category 1. Ranirbazar West Tripura Dealer owned OP (Women) 2. Agartala West Tripura Company owned ST (Women) Important Note (a) The candidate should furnish along with the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2, Smt Alpana Saha submitted her application. She indicated in the application form that she had suitable site readily available for the dealership. Giving details of the land, she stated that she was offering two lease deeds, being Deed No. 381/ dated 16/3/2004; and Deed No. 616/ dated 25/2/2004; in support of the land offered by her. Reference is also made to a non- encumbrance certificate relating to proposed site at Location No. 181 IFP 200 ft. . With regard to dimension of plot, it is mentioned Location No. II frontage 42 metres depth 52 . The lease deed dated 16.03.2004 was to remain in full force from 16.3.2004 for a period of 49 years, It specifically provides that respondent No. 2 shall carry on over the rented vacant landed property for the purpose of Oil Business under I.O.C. Limited in (Assam Oil Division) DIGBOI Assam . However Clause 4 of the lease deed provides as under: 4 That, in no circumstances the second party will not sub- let the leased out landed property to any person or party(s) authority. 6. Clause 5 of the lease deed gives the option to respondent No. 2 to take further period of lease by executing a fresh deed. The aforesaid lease deed is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial suitability of the land offered by the applicants would be ascertained by a team of IOC Officers before the Interview. 9. On 16.06.2004, the interviews were conducted by the respondent No. 1 for appointment of Retail Outlet Dealers for the abovementioned location of Ranir Bazar. Nine persons, including the appellant and the Respondent No. 2, appeared before the Interview Board. The interview board, upon evaluation of the inter se merits of all the nine applicants, in terms of the policy circular dated 4.9.2003, empanelled three candidates in order of merit. Respondent No. 2 is placed at Sl. No. 1 in order of merit. The appellant was not amongst the first three candidates and was consequently not empanelled. After the declaration of the result, the site offered by respondent No. 2 was verified by respondent No. 1 on 29.6.2004. By a communication dated 8.7.2004, respondent No. 2 was informed that Letter of Intent had been issued in her favour. 10. The action of respondent No. 1 in offering the letter of intent to respondent No. 2 was challenged by the appellant before the Guwahati High Court, Agartala Bench by way of writ petition being W.P.(C) No. 259/2004. Smt. Paye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his mysterious omission. In view of this, I am persuaded to believe that Annexure 10 (tenancy agreement dated 18/3/2004) was not in existence at the time of the interview but was subsequently, i.e. long after the filing of this Writ Petition, manufactured by them to defeat the case of the appellant and conversely, to strengthen the case of respondent No: 1. Consequently, reliance cannot be placed upon this document to hold that the respondent No: 2, at the time of her interview, had any land of her own or land for creating long lease to the IOCL(AOD). Therefore, the Selection Committee has acted arbitrarily and grossly erred in law in placing the respondent No. 2 as the No. 1 candidate in the merit panel. 16. In the instant case, I have recorded my findings that in the absence of site verification, which is the sine qua non for proper assessment on the suitability or otherwise of the lands offered by the respective candidates, the respondent No. 1 and the Selection Committee constituted by it have violated the guidelines contained in the Brochure issued by the IOC Ltd. and have not taken into account the relevant factors for selection of the dealership in question. I have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then every unsuccessful bidder in public tender will be held barred by the principles even if the tender process is vitiated by non application of mind, illegality, irrationality or procedural impropriety thereby sounding the death-knell for judicial review of administrative action. Therefore, the contention of the learned senior counsel in this behalf has no force and is, accordingly, rejected. With these observations the learned Single Judge granted the following reliefs: For the reasons stated in the forgoing, W.P.(C) No. 259 of 2004 is allowed. The letter of intent No. SM 2/8-482 dated the 8th July, 2004 issued by the respondent No. 1 and the selection process in connection therewith are hereby quashed. The respondent No. 1 shall now start the selection process afresh by constituting a Selection Committee, which shall consider the case of the petitioner and other eligible candidates for allotment of the dealership in question on the basis of the land documents etc. submitted by them as on 16.06.2004 and in accordance with the Brochure dated 01.11.2004 (or the Brochure/ guidelines applicable) issued by the IOC Ltd. and thereafter makes the selection. It is made clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brochure dated 1.11.2004. It was held that A reading of policy circular dated 4.9.2003 would show that the said circular comprehensively lays down the norms for dealer selection under three different categories as already noted. Not only the eligibility of the candidates and the selection procedure has been set out, even three parameters on the basis of which the selection is to be conducted by award of marks under different heads have been spelt out in the Policy Circular dated 4.9.2003. The affidavit filed by respondent No. 1 was accepted wherein it was clearly stated that the selection has been held in accordance with policy circular dated 4.9.2003. It was, therefore, held that since the policy circular dated 4.9.2003 held the field on the date of the interview/selection on 16.6.2004, the circular dated 1.11.2004 would have no application. It is further observed by the Division Bench that under the policy circular dated 4.9.2003 site verification prior to the interview is not contemplated. It was introduced by the norms published in the brochure dated 1.11.2004. Therefore, the learned Single Judge erred in holding that the selection process is vitiated as the land of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1. Such a candidate will have to be given preference. The candidates were required to furnish details of the land which they may make available. An outer period of two months has been prescribed to provide the land indicated in the application form from the date of allotment. According to Mr. Ghosh, since respondent No. 2 was not in a position to offer land even on a leasehold basis her candidature could not have been considered. Mr. Ghosh has placed strong reliance on the negative covenant contained in Clause 4 of the lease deed dated 16.3.2004 which was sought to be rectified by execution of the supplementary lease deed dated 18.3.2004. Even otherwise it could not have been relied upon as the same was not registered. According to learned senior counsel, mere notarization would not make it a valid lease, as it was for a term of 49 years. Therefore, on the date of the application respondent No. 2 was not having a valid lease in her favour. Therefore, even if the lease deed had been furnished, the same could not be taken into consideration. This would render the decision of the selection committee arbitrary as no reliance could have been placed on a non-existent document. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontemplated under Clause 14(1) of the brochure dated 1.11.2004 would not be applicable in this case. Mr. Goswami then submitted that the learned Single Judge wrongly held that the supplemental lease dated 18.3.2004 was not produced by respondent No. 2 at the interview. He has made a reference to the pleadings of the respondent No. 2 and submitted that the lease deed dated 18.3.2004 was one of the original documents produced before the interview board. All the applicants had been directed to bring the original documents of all the enclosures as stipulated in the application form. Even if the document was not registered, it could still be relied upon by the selection board as it had been duly notarized. He submitted that there was no material before the learned Single Judge to conclude that the document dated 18.3.2004 is a manufactured document. According to the learned Counsel, the genuineness of the document has rightly not been put in issue by the Division Bench, as it has been duly notarized. Mr. Goswami then submitted that the respondent No. 2 had been correctly given 25 marks under the category capability to provide land and infrastructure/facilities . The criteria contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant did not come within the three empanelled candidates in the order of merit and, therefore, no relief can be granted to her. In support of his submission, the learned Counsel relies on a number of judgments of this Court, viz.: Kedarnath Agrawal and Anr. v. Dhanraji Devi and Anr. (2004) 8 SCC 76 paragraphs 16-31 , Rashpal Malhotra v. Satya Rajput (1987) 4 SCC 391, Municipal Board of Pratabgarh v. Mahendra Singh Chawla (1982) 3 SCC 331, Taherakhatoon v. Salambin Mohammad (1999) 2 SCC 635 and A.M. Allison v. B.L. Sen (1957) SCR 359. 21. Mr. Parag P. Tripathi, learned senior counsel, appearing for respondent No. 1 has submitted that the aforesaid selection was conducted at the time when respondent No. 1 was trying to restructure the selection procedure. The policy with regard to allotment of dealership was in a transient period after the selection board had been disbanded. The effort of the respondent No. 1 was to make the criteria transparent. The policy was undergoing refinements with issue of the successive circulars. He has made a reference to a number of successive policy circulars which have been issued making a reference to the provisions of the circular dated 4.9.2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Committee: The selection will be done by a Committee consisting of 3 `E' Grade officers of IOC from outside the State as nominated by the Head of the State Office providing such officers. The candidates will be evaluated by the Selection Committee through Interviews based on the marking system as given in Annexure A. The Selection Committee will prepare a panel of 3 candidates and the approval for award of dealership will be given by the State Head. 5.3 Preparation of Panel: The Selection Committee will prepare a panel of 3 candidates in order of merit. The panel will be finalized immediately on completion of interview for a particular dealership. The State Head will approve issuance of Letter of Intent to the No. 1 candidate in the merit panel. 5.4 Letter of Intent: Letter of Intent will be issued to the No. 1 candidate in the merit panel after conducting necessary Field Investigation. If the LOI to No. 1 candidate has to be cancelled for any reason like, he refuses to accept the dealership, is unwilling to give the land to IOC on acceptable terms within a specified period etc., the LOI will be given to the next candidate in the merit panel wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Marks Details/allocation of marks Land and Infra structure Suitable land for retail outlets Owns land/has firm offer from landowner /can arrange land 35 Marks to be allotted, owns land and willing to give to company: 35, has firm offer and willing to give to company: 25, owns land and not willing to give to company but is willing to use for development of Retail Outlet: 20, firm offer but not willing to give to company but is willing to use for development of Retail Outlet : 15 Sub total 35 25. Both the appellant as well as respondent No. 2 were assessed on the basis of the aforesaid criteria and secured 25 marks each out of a total of 35 marks. From the record, it appears that on the date of the application, respondent No. 2 would not fall under the category of land owner. She was, however, a lease holder, but was unable to create a sub lease, in view of the negative covenant contained in Clause 4 of the lease deed dated 18.3.2004. Furthermore in the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give the land to respondent No. 1 by sale/lease; ii) individuals who have firm offers from land owner who are willing to give the land to respondent No. 1; and iii) candidates who can arrange land. Both on the date of the application and the date of the interview, in our opinion, the respondent No. 2 did not fall within any of the aforesaid categories. Therefore, her selection was vitiated, as the Selection Committee has deviated from the criteria laid down in the Circular dated 4.9.2003. In the absence of the lease deed dated 18.3.2004, the Interview Committee had no material before it, to award any marks to respondent No. 2, against the column capability to provide land . 28. There is hardly any difference in the provisions contained in the circular dated 4.9.2003 and the brochure dated 1.11.2004 with regard to the candidate's capability to provide land. Clause 16(1) of the brochure dated 1.11.2004 contained the same provision as the provisions contained in Annexure A of the circular dated 4.9.2003. The brochure dated 1.11.2004 clarified the parameters which were applicable to individuals in the allocation of marks. Under the parameter land and infrastructure ; sub hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically provides that if the letter of intent is cancelled for any reason, it will be given to the next candidate in the merit list. In this case, even such an eventuality would not have arisen, as the candidates at Nos. 2 and 3 were not the writ petitioners before the High court. Therefore, in our opinion, the learned Single Judge needlessly set aside the entire selection. At the same time the Division Bench also committed an error of law, in upholding the selection of respondent No. 2. 31. In view of our findings recorded above, the normal order would be to set aside the impugned judgment of the Division Bench. Further direction would have been to offer the dealership to the next candidate on the panel of three. But these candidates have shown no interest in these proceedings. In these circumstances, the learned Counsel for respondent No. 2 has made strenuous efforts to persuade the Court, not to interfere in the grant of the dealership to respondent No. 2. The same prayer was also made before the learned Single Judge. It was, however, rejected with the observations reproduced in the earlier part of the judgment. The learned Single Judge rejected the submission by placing rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quitable considerations would be impermissible. The peculiar facts of this case are such that it would be appropriate for the Court to take into consideration the subsequent events, in order to do complete justice between the parties. In the case of Kedarnath (supra) this Court delineated the circumstances in which the subsequent events could be taken into consideration in the peculiar facts and circumstances of a particular case. It was emphatically observed as follows: 16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere with the judgment of the High Court, because the view taken by it is not in conformity with the law. It is at this stage that Mr Sanghi, learned Counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court under Article 136 of the Constitution is discretionary and, therefore, this Court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, `rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal Court of appeal which it is not. These observations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties. 35. The aforesaid observations were reiterated in the case of Taherakhatoon (supra): 19. We may in this connection also refer to Municipal Board, Pratabgarh v. Mahendra Singh Chawla wherein it was observed that in such cases, after declaring the correct legal position, this Court might still say that it would not exercise discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and mould the final order. 36. In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
