- (1.) SAROJ Bala, J. This writ petition under Article 226 of the Constitution of India, has been filed for issuance of a writ, order or direction in the nature of certiorari for quashing the impugned order dated December 24, 1998 (Annexure-1 to the writ petition) including the valuer's report. The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondents not to auction the petrol pump in question without proper valuation of the complex including solatium, goodwill and interest. The controversy involved in the present writ petition arises in the following background:
(2.) THE petitioner submitted an application on 13-10-1994 to the Minister for Petroleum and Natural Gas, Government of India for allotment of a retail outlet. After proper scrunity, the application was put up for orders before the Minister for Petroleum and Natural Gas. THE Government Order awarding a retail outlet dealership at Fatehpur (80 km.) was communicated to the Director (Marketing), Indian Oil Corporation Ltd. , Bombay, vide letter dated January 10th, 1995 (Annexure-3 to the writ petition ). In pursuance of the said letter, a letter of intent dated 14-3-1995 was issued to the petitioner. THE petitioner purchased land measuring 2375 sq. ft. from M/s. Devi Prasad Gupta in village Bakbanda, Tehsil and District Fatehpur for a consideration of Rs. 1,43,000/- and the same was leased out to Indian Oil Corporation. According to the petitioner the said land is adjacent to G. T. Road passing through Fatehpur and, the level of the land being quite low he got it raised by filling it with heavy mud upto 12 ft and spent a huge amount in the construction of godown, room toilets and other buildings as required under the rules and guidelines of the Indian Oil Corporation for installation of a retail outlet. THE petitioner states that due to constructions and development of the land its value enhanced. Common Cause, a Registered Society filed a writ petition before the Supreme Court against the orders of allotment of retail outlet dealership and petrol pumps to the petitioner and fourteen other persons. THE allotments of petrol pumps/retail outlets of fifteen persons, including the petitioner, were cancelled by the apex Court vide judgment and order dated 25-9-1996 (reported in AIR 1996 SC 3538 ). THE apex Court while quashing the allotment orders directed the Government of India/oil Corporation to take over the petrol pump premises from the petitioner and other persons within 10 days. THE Oil Corporation was directed to get the market value of the site and construction determined in a fair and just manner. Each of the commissioned petrol pump taken over by the Government/oil Corporation concerned and the built up area alongwith the site was to be disposed of by way of public auction. THE original allottees were eligible to participate in the auction. A notice was published for the auction of the retail outlet of petitioner in pursuance of the direction of the Supreme Court showing the reserved price as Rs. 15. 23 lacs. THE valuation reports were submitted by the valuers at the request of respondent No. 5. THE valuer's report (Annexure-8 to the writ petition) described the land as 1591 sq. meter and its market value at the rate of Rs. 550/- per sq. M. was assessed at Rs. 8,75,050/- and the total cost of property was assessed at Rs. 18,36,600/ -. THE petitioner states that, according to the report (Annexure- 9 to the writ petition) area of land was 2375 square yards and the land was valued at Rs. 2,42,500/- and the total market value, including the constructions, was assessed at Rs. 13. 59 lacs. THE contention of the petitioner is that the Government for stamp duty purpose having fixed the rate of land at Rs. 1,000/- per sq. metre, the market value assessed by the valuers is arbitrary and erroneous. THE petitioner filed Writ Petition No. 33237 of 1998 for quashing the auction notice published in the newspapers Hindustan Times, New Delhi and THE Times of India, Lucknow. THE said writ petition was allowed by an order dated 24-11-1998 and the petitioner was directed to appear personally or through his representative and to file objections before the respondent No. 4, i. e. Managing Director (Marketing Division), Indian Oil Corporation. THE objections were to be disposed of by the respondent No. 4 preferably within two weeks by a reasoned order. In compliance of the said order the petitioner filed objections. THE fresh reports from the valuers J. N. Dubey and Associates and S. S. Dash and Associates were called for by the Chief Divisional Manager, the respondent No. 5. After taking into consideration the valuer's reports, objections and documents submitted by the petitioner, the value of site and built up area of the petitioner's retail outlet has been fixed at Rs. 12,84,917/ -. THE petitioner being aggrieved with the valuation has challenged the impugned order on the grounds that J. N. Dubey and Associates arbitrarily reduced the market value assessed in the earlier report without assigning any reason. According to the petitioner the constructions with installation of retail outlet have enhanced the value of the land. THE petitioner states that the installation of petrol pump is purely a commercial activity and the land covered by it is to be valued on the basis of commercial potential. According to the petitioner the date on which valuation is to be determined, the complex was a commercial building running in full swing situated at G. T. Road, therefore, the value of the land was not less than Rs. 1,000/- per square yard. THE contention of the petitioner is that the proceedings, initiated by the respondents in compliance of the judgment of the apex Court, are in the nature of land acquisition proceedings and principles of grant of solatium and interest are applicable. THE petitioner has stated that goodwill is a valuable asset in commercial transactions and for goodwill some value is to be added. THE contention of the petitioner is that there is nothing wrong in taking circle rate as reasonable market value in the present case. According to the petitioner the directions of the apex Court for fixation of just and fair market value have been flouted by the respondent No. 5 while passing the impugned order. THE petitioner states that the retail outlet in question, being situated near Polytechnique, Civil Court, Circuit House and other commercial and industrial units, its valuation could not be less than Rs. 34. 24 lacs at the relevant time and not less than Rs. 43. 5 lacs at present. THE petitioner states that the authority concerned has not taken into consideration this aspect that the valuer has illegally left out 200 sq. M. area, while submitting his report. THE petitioner claims that he not being responsible for delay in auction, is entitled to maximum rate of rent, i. e. 20% per annum for the period during which he was deprived of the use of the petrol pump. THE petitioner asserts that the valuer's report, on which the impugned order is grounded, is without any basis. According to the petitioner he was not offered an opportunity to bring his valuer on the spot at the time of inspection nor the report of his valuer has been taken into consideration. THE contention of the petitioner is that valuation assessed by the authority concerned is inadequate and the impugned order is violative of Articles 14, 19 (1) (g) and 300-A of the Constitution of India. THE petitioner has stated that the respondents and their valuers have completely ignored the directions given by this Court in its judgment and order dated 24-11-1998. According to the petitioner the respondent No. 5, without taking into consideration the material placed before him, has passed the impugned order. According to the petitioner the reduction in market value after the setting aside of previous report is unreasonable. THE petitioner states that B. C. Mittal and Associates had submitted the report dated 31-12-1998 valuing the property in question around Rs. 43 lacs, which has not been taken into consideration by the respondent No. 5. The counter-affidavit of Sri G. D. S. Sodhi, Assistant Manager, Indian Oil Corporation has been filed on behalf of the respondent Nos. 2 to 5. The contention of the respondents is that the advertisement for auction was issued pursuant to the directions of the apex Court, Delhi High Court and this Court. The contention of the respondents is that the fair market value has been fixed on the basis of the reports submits by the two Government approved valuers. The respondents have stated that for retail outlet, dealership holder is required to develop the land and construct the superstructure and outlet. The respondents have contended that underground tanks and dispensing pumps alone are provided by the corporation. The contention of the respondents is that the weighing machine and underground tanks are the property of the Corporation. According to the respondents the circle rates have been issued by the District Magistrate for the purpose of calculation of stamp duty and registration charges for the transactions of sale and transfer of immovable property. The respondents have stated that the valuer's have taken into account the entire piece of land measuring 2375 square yards. The respondents stated that the area in front of retail outlet, bathrooms, unroofed sheds are not the part of the licensed premises, but value of bathrooms and sheds, has been taken into account while assessing the market value of the retail outlet in question. Development cost including earth filling, brick patching, boundary walls fixtures etc. have been taken into account. The respondents have contended that fresh valuation was done by two approved valuers; namely, J. N. Dubey and Associates and S. S. Dash and Associates and the report valuing the retail outlet in question on the higher side has been accepted. The contention of the respondents is that B. C. Mittal and Associates having, exaggeratedly valued the retail outlet, his report was not acted upon. The respondents have contended that due information was given to the petitioner to remain present alongwith his valuers on 10-12-1998, but he did not bring his valuer. The contention of the respondents is that the valuation of the retail outlet has been determined in a just and fair manner. The petitioner has filed rejoinder affidavit against the counter-affidavit of respondent Nos. 2 to 5 stating that the total area of the land is 1804 square metre out of which 1604 square metre was leased out to the Indian Oil Corporation but the remaining 200 square metre land and constructions, connected with retail outlet were being used for the purpose of retail outlet and the same has been taken over by the Indian Oil Corporation under the orders of the Supreme Court dated September 25th, 1996. The contention of the petitioner is that 200 square metres area situated on the backside of licensed area is part and parcel of the retail outlet. According to the petitioner, M/s. Dubey and Associates in the report dated 19-12-1999 has given lesser area leaving the back portion; whereas M/s. R. S. Dash has found the total area as 1778. 94 sq. metre. According to the petitioner, both the valuers have not included the valuation of the back portion of the retail outlet in their reports. The petitioner states that there is a difference in the valuation assessed by the valuers and the reserve price mentioned in the advertisement dated 12-2-1999. The petitioner claims that the land in question is not agricultural land and after the installation of commercial retail outlet it cannot be treated as agricultural land. The contention of the petitioner is that in the earlier advertisement for public auction, which was scheduled to be held on 10-10-1998 the total area for sale was shown as 2375 square yards and M/s. J. N. Dubey and Associates in the report dated 24-10-1996 gave out the area of land as 2375 square yards, but in the report dated 19-12-1998 the area of land has been shown as 1906 square yards and the additional land as 222. 56 square yards. According to the petitioner, the earlier valuation for 2375 sq. yards was Rs. 1,35,990/- but in the valuation report dated 19-12-1998 the valuation of land has been given as Rs. 12,84,917/- for licensed area 1906 sq. yards and additional land measuring 222. 56 sq. yards with constructions at Rs. 1. 70 lacs and in this manner the total valuation at Rs. 14,54,917/ -. The petitioner has stated that the Indian Oil Corporation has mentioned the reserve price for public auction of various retail outlets and S. K. O. dealerships on the higher side. The petitioner states that the valuers of the respondents have taken the rate of agricultural land, though it is a commercial piece of land with a filling pump station. According to the petitioner the valuers are not competent to submit valuation report about the agricultural land. The petitioner has stated that retail outlet having been constructed over 1804 sq. metre land, the entire area with all constructions and fixtures should have been valued. The contention of the petitioner is that he has been discriminated as the other valuers of Indian Oil Corporation have valued the retail outlets at Rai Bareilly and other Districts at a higher price. According to the petitioner the adjoining land situated towards the western side of retail outlet of the petitioner was sold for Rs. 3,500/- per sq. M. vide registered sale-deed dated 29-9-1999.
(3.) THE petitioner has filed supplementary affidavit stating that in the advertisement for auction of various retail outlets and L. P. G. distributorships, the reserve price has been fixed on higher side as evidenced from Annexures 1, 2, 3, 4, 5 and 6, but the reserve price of petitioner's retail outlet has been shown as Rs. 15. 23 lacs. We have heard Sri V. B. Upadhayay, learned senior Counsel assisted by Sri S. F. A. Naqvi, Advocate, appearing on behalf of the petitioner and Sri Prakash Padia, learned Counsel for the respondents and have thoroughly scrutinized the record of the writ petition.;