SUNITA GUPTA Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) THIS writ petition has been moved by Smt. Sunita Gupta for issuing a writ of certiorari with a prayer to quash the orders dated 27.7.2006 and 26.12.2006, Annexures 4 and 17 to the writ petition. The relief of writ of mandamus has also been sought to direct the respondents for issuing a letter of intent to the petitioner in pursuance of her selection dated 3.3.2006 for retail outlet dealership at Islam Nagar, Bisauli Marg, Dist. Badaun in between 0.1 Km. Mile stone and further to direct the respondents for issuing necessary supply of HSD and MSD for her retail outlet dealership.

(2.) THE brief facts as stated in this writ petition are that Hindustan Petroleum Corporation Limited issued an advertisement in newspaper "Amar Ujala dated 20.7.2005" inviting applications for opening its retail outlet on the said location in the category of open-W (women) by 22.8.2005, and in pursuance of above advertisement the petitioner moved an application on proper format alongwith all relevant documents and demand draft of Rs. 1000/- for grant of retail outlet on 18.8.2005. Thereafter the team of Corporation visited the site of the petitioner and submitted its report in the office. The Corporation after being satisfied with the location of land, called the petitioner for an interview vide letter dated 10.2.2006 and the petitioner appeared for interview on 3.3.2006 at 9.30 a.m. at hotel Madhuban, Krishna Nagar District Mathura before selection committee constituted by the respondent and on the same day at 9 p.m. a list was declared on notice Board in which the name of the petitioner was shown to be selected and her name was placed on the top. The petitioner was waiting for letter of intent but all of sudden the petitioner received a registered letter dated 27.7.2006 issued by Deputy General Manager In-charge North Zone, on 7.8.2006, in which it was mentioned that the respondents decided to set aside the entire interview and selection for above location and called for conducting a fresh interview. The petitioner got 35 marks awarded for the land as indicated in the order dated 27.7.2006, but it was also mentioned therein that the selection committee wrongly awarded 35 marks to the petitioner whereas zero marks should have been awarded to the petitioner because no consent letter was granted by the owners of the land. The decision was taken in the review meeting held by the respondents as per policy and guidelines. No opportunity was afforded to the petitioner before cancellation of selection and thus the order passed by the committee was in violation of principles of natural justice and the same was liable to be quashed on this sole ground. In view of Clause 14 of the guidelines the land owned by the family members comprising of spouse and unmarried children was to be considered as the land of the applicant subject to the consent of the concerned family members. The said land was initially the ownership of Sri Fakirulla Khan and Shakruddin Nawina. Sri Shakruddin Nawina sold his share in the land to Ram Nandan Prasad, Mohan lal and Harish Chandra and Fakirulla Khan sold his share to Subhash Chandra, Sanjeev Kumar and Rajesh Kumar. In view of family settlement taking place between Ram Nandan Prasad, Madan lal and Harish Chandra, sons of Late Bhikhari lal the names of Madan lal and Sanjeev Kumar were entered in Khatauni as joint owners of the land, which was submitted. Thus the petitioner was the owner of the land which was proposed for purpose of opening retail outlet. The consent of the husband of the petitioner as well as Madan lal was also given in favour of the petitioner. The petitioner also submitted certificates of search issued by Sub-Registrar Bisauli and Deputy Registrar Belsi, Badaun dated 6.8.2005 and 11.8.2005 respectively to this effect that initially this land was falling in Tehsil Bisauli and thereafter, it was transferred to Tehsil Belsi. The Tehsildar Belsi also issued a certificate showing the 1/6th share of the petitioner's husband in the land. The are of the land of petitioner's husband's share was 2980 square meters while the requirement for the purpose was 900 square meters. Moreover the length of this land on the road was 51 meters and depth was 58 meters, which was in the personal share of the husband of the petitioner, whereas the requirement of advertisement was 30 meters x 30 meters. Thus the land proposed was much more than the required land as was mentioned in the advertisement. The petitioner also submitted a certificate issued by the President Nagar Panchayat Islam Nagar, District Badaun dated 9.11.2005 of the concerned area showing that there was no dispute and family settlement between the parties had taken place as well as all the persons were in possession of their share in the land. There was also no litigation with regard to any part of land in any Court of law and it was free from all encumbrances. The Sub-Divisional Magistrate, Belsi, Distt. Badaun passed an order under Section 143 of U.P.Z.A. and L.R. Act on 10.4.2006 declaring the said property land to be non-ZA area. The order was passed by Sub-Divisional Magistrate, Annexure 19 in order to show the said land of Gata 1158, area 1.788 H situated in Kasba and Pargana Islam Nagar, District Badaun in the name of Sanjeev Kumar son of Madan lal and Madan lal son of Bhikhari lal having 1/3 share i.e. 0.596 hectare. There was no dispute regarding the land proposed and all the documents were submitted before the selection committee which was fully satisfied with the same and the committee awarded 35 marks in favour of the petitioner for land and infrastructure. The petitioner then filed writ petition No. 56740 of 2006, Smt. Sunita Gupta v. Union of India and others, challenging the order dated 27.7.2006 passed by the Review Committee, which was finally disposed of by this Court on 12.10.2006, in pursuance of which the petitioner moved a detailed representation dated 23.10.2006 before the respondent alongwith documents as mentioned in Para 39 of the petition. The respondent Corporation in pursuance of order passed by this Court sent a letter dated 6.12.2006 fixing 14.12.2006 at 11 a.m. for personal appearance of the petitioner in the office of the Corporation at Mathura. The petitioner appeared on the said date, time and place and the hearing took place in the office of the Corporation on that day and the petitioner was asked to wait for the decision taken on this issue. The respondent Corporation vide order dated 26.12.2006 dismissed the representation filed by the petitioner.

(3.) THE petitioner has also filed rejoinder affidavit denying the allegations made in the counter-affidavit. The statutory Corporation is trying to find out the material facts from the Court and thus appropriate action should be initiated against the respondent by way of imposing exemplary cost. In view of Clause 7 of the advertisement all the application forms received in time were to be processed by a group of officers and the applicants found eligible were to be called for interview. The papers regarding land submitted by the petitioner were scrutinized by the said group of officers. Ineligible persons were not to be called for interview. The application form submitted by the petitioner was duly processed by the group of officers and all the documents submitted by the petitioner were examined by them and they also visited the spot and found the same in order, thereafter the petitioner was called for interview and thus it was not open for the respondent to allege that the said forms were not in order. In view of brochure or guidelines issued by the respondents there was no provision for review as such the respondent had no right to review the decision taken by the selection committee. The respondent Corporation tried to justify the invalid order on the grounds which were not mentioned in the order. In view of the settled proposition of law the respondent cannot be permitted to raise the additional ground which are not mentioned in the order itself. It has been mentioned in the order dated 27.7.2006 that as per policy the marks awarded by the interview committee is subject to the final decision of the review committee. From the policy, Annexure 5 to the writ petition there is no such provision for review committee. Moreover the communication dated 27.7.2006 has not been signed by the appointing member of the review committee. The order is signed by the Deputy General Manager In-Charge North Zone the respondents have failed to annex the conception of review committee alongwith the counter-affidavit filed by the respondent. The subsequent order has been passed after the order of this Court on the representation of the petitioner but the same has not been passed by the review committee and it has been sent under the signature of Sri Rajnish Mehta constituted attorney of Mathura Refinery raising as such the order passed by this Court on 12.10.2006 has not been complied with by the respondent and representation has not been decided by the competent authority. The order dated 27.7.2006 was passed by the Deputy General Manager In-Charge North Zone and the order dated 26.12.2006 was passed by Chief Regional Manager Mathura Refinery Region. The petitioner is co-owner of the land proposed by her and thus there was no requirement of the consent as there was a clear portion of the land and that partition was found valid by the consolidation officer. The Naksa Partali prepared by consolidation authorities was also filed and was explained. The petitioner was found in possession of the land of the said plot. The land proposed by the petitioner was found suitable by the officers by way of examining the documents as well as by visiting the spot under Clause VIII of the conditions mentioned in the advertisement. In view of condition No. 14 the respondent was not empowered to pass the orders dated 27.7.2006 and 26.12.2006. The respondent found the application of the petitioner in order and called her for interview. The group of officers visited the spot and found the land proposed by the petitioner most suitable. No document was overlooked by the petitioner and all the documents were produced before the selection committee and they found the same in order and thereafter awarded the marks to the petitioner. The consent letter as required was produced before the selection committee. There was no need of the consent at the time of settlement of the application form. The petitioner submitted her application form alongwith the map of the consolidation. There is no provision of review under the policy of the Corporation nor the respondent has the power or competence to cancel the selection. The marks were awarded according to the rules and regulations. The clause 12.1 is contrary to clause 14 of the brochure. Clause 10-D is not applicable to the facts and circumstances of the present case.