Case: Neelam Chaturvedi (Smt.) Vs Union of India (UOI) and Ors.. Rajasthan High Court
| Judges | Mohammad Rafiq, J. |
| Issue | Constitution Of India - Article 226; Control Of National Highways (Land And Traffic) Act, 2002 - Sections 28, 29 |
| Judgement Date | March 13, 2007 |
| Court | Rajasthan High Court |
Judgment:
Mohammad Rafiq, J.
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Dispute in this matter pertains to allotment of a retail outlet of Hindustan Petroleum Corporation Ltd. at Halena in District Bharatpur located on National Highway No. 11. The petitioner has prayed for a mandamus to the respondents directing them to cancel the candidature of respondent No. 3 Smt. Sadhana Dagur and not to issue Letter of Intent to her and instead issue such Letter of Intent to the petitioner Smt. Neelam Chaturvedi who was placed at serial number 2 in the select panel. An additional prayer has been made that if in the meantime, the Letter of Intent is issued to the non petitioner No. 3 the same be quashed and set aside.
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Factual matrix of the case is that the Hindustan Petroleum Corporation Ltd, (hereinafter referred to as 'the Corporation') a Government of India undertaking, published an advertisement in Rajasthan Patrika on 2nd January, 2004 inviting applications for allotment of 243 Retail Outlets in the State of Rajasthan. Applications were also invited for allotment of a retail outlet at main Halena crossing at National Highway No. 11 in open category though reserved for women candidates. The petitioner as also the respondent No. 3 applied in response to the said advertisement. According to the petitioner, the land offered by her was suitable being in conformity with the norms laid down by Circular dated 17.10.03 issued by Ministry of Road Transport and Highways (for short 'the MORTH norms') for access of fuel station. But the respondent Corporation has illegally awarded maximum marks for the land offered by the respondent No. 3 even though the land offered by her in the application form did not fulfill the requirement of Clause 6.1.1.1(i) of said Circular. Retail outlet was illegally allotted to her. Later when this was discovered, the respondent Corporation served the notice dated 22.06.03 upon the respondent No. 3 for cancellation of such allotment. Instead of, however, cancelling the allotment, the respondent Corporation has given an opportunity to the respondent No. 3 for providing another piece of land, as per condition No. 3 of the advertisement. If the land offered by the respondent No. 3 was not found suitable, then as per para 17 of internal guidelines of the respondent Corporation the retail outlet ought to have been offered to the petitioner. Action of the respondents in giving another chance to the respondent No. 3 and not allotting the retail outlet to the petitioner is liable to be annulled being arbitrary, unreasonable and illegal.
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1 have heard Shri N.K. Maloo, the learned Counsel for the petitioner, Shri J.K. Singhi, the learned Counsel for the respondent Corporation and Shri R.N. Mathur, the learned Counsel for the respondent No. 3.
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Shri N.K. Maloo, the learned Counsel for the petitioner argued that the condition No. 2 and 3 of the advertisement dated 1.1.04 published on 2.1.2004 have to be construed strictly. Condition No. 2 categorically provides that only such candidate can apply for allotment of retail outlet who have a suitable land to offer for setting up the proposed retail outlet or have entered into agreement for purchase and sale of such land and who is its owner. While referring to condition No. 3, he argued that the candidate should give details of the land along with the application form which he she would make available for setting up the retail outlet in the event of his her selection. Condition No. 3 further provides that preference shall be given to such candidates who give the land to the company for a longer period of lease keeping in view the suitability of such land. Reference has been made to the later part of condition No. 3 which further provides that if a selected candidate fails to provide the land indicated in the application form within two months of the issuance of Letter of Intent, the company would have a right to cancel the allotment of such dealership distributor ship. Lastly, this condition further provides that the company shall be the sole judge in deciding the suitability of the land. Shri N.K. Maloo made reference to the internal guidelines issued by the company for selection of retail outlet especially Clause 14.1 which provides that site offered by the candidate should meet the requirement of National Highway Authority of India, in case located on National Highways. Beside this, site should also meet the norms of statutory bodies like forest explosive etc. and should be converted for commercial purposes. The technical commercial suitability of the landsite offered by the candidates against the advertisement for any location should be ascertained by a team of the Corporation before the interview for that location based on various parameters indicated therein. Shri N.K. Maloo then referred to Clause No. 17.1 which provides that if the first candidate is not found suitable or fails to fulfill the terms and conditions of the award of dealership or the award is to be cancelled for any reason, the dealership should be offered to second candidate in merit after necessary field verification. He therefore argued that it is the applicant who has to ensure the suitability of the land which he is proposing for setting up the retail outlet and in terms of condition No. 3 of the advertisement, it has to be same land which was indicated in the application on which the retail outlet could be set up. It has been further argued that the assessment has been made by the selection committee as per the evaluation criteria laid down by the company, copy of which has been placed on record at Annexure 6. According to Clause (a) of such criteria, out of total 100 marks, 35 marks are allotted for capacity of providing land and infrastructure facilities. Shri N.K. Maloo argued that the selection committee awarded 35 marks to the respondent No. 3 even though eventually the land offered by her was not found suitable. It was argued that when already notice was given to the petitioner on 22.6.2004 that points out the reference to non fulfillment of the MORTH norms and maintaining that the candidature of the respondent No. 3 was void, there was no reason thereafter to accept her request for providing alternate site. Shri N.K. Maioo emphasized on condition No. 3 of the advertisement and argued that the respondent No. 3 was required to provide the same land which was indicated in the application form within two months of the issuance of Letter of Intent and upon her failure to do so, the allotment was liable to be cancelled and the allotment of the retail outlet ought to have been made in favour of the petitioner in terms of Clause 17.1 of the guidelines.
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Shri N.K. Maioo further argued that the guidelines framed by MORTH are statutory guidelines issued in terms of the provisions of Section 28 of of the Control of National Highways (Land & Traffic) Act, 2002 which speaks of two types of permission, one general and another special. The general permission is granted by official gazette as per Section 29 and specific permission is granted in the manner...
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