RAFIQ, J. - (1.) 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.
(2.) 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. I 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. 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 land/site 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. Maloo 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. Shri N. K. Maloo 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 specified in Section 29. As per sub-section (2) & (3) of Section 29 specific permission is granted and a licence is issued to the applicant. Clause 10. 2 to 10. 5 of the MORTH guidelines dated 17. 10. 2003 provides for a detailed procedure for obtaining special permission for petrol pump and for grant of licence for fuel stations along the national highways. According to him, the permission for setting up a petrol pump is a special permission and therefore this would be required to be decided on case to case basis and was not required to be published in the official gazette. It was clear case of undue favour shown to respondent no. 3 because she happened to be the wife of an IAS officer. Shri N. K. Maloo in order to buttress his argument relied on the judgment of this Court in Dalpat Singh Vs. Union of India & Ors. , 2005 (9) RDD 3789 (Raj.) in which a direction was given to the oil companies to make strict compliance of the guidelines issued by Union of India, State of Rajasthan and other local bodies. Reliance was also placed on the judgment of Hon'ble Supreme Court in Ramana Dayaram Shetty Vs. The International Airport Authority of India & Ors. , AIR 1979 SC 1628 for the argument that once tender is called with certain requisite qualifications laid down therein, tender of a candidate, who does not fulfill such requisite qualifications, cannot be accepted. Reliance was also placed on a Single Bench decision of Patna High Court in Anil Kumar Singh Vs. Union of India & Ors. , AIR 2001 Patna 56 which was a case of allotment of Indane Liquefied Petroleum Gas dealership. In that case, the selected candidate was found to be not a resident of Village where dealership was granted, therefore the Court directed that the petitioner who was the next candidate in the select merit should be granted the dealership. On the other hand, Shri J. K. Singhi, the learned counsel for the Corporation opposed the writ petition and denied the allegations of any favourtism being shown to respondent no. 3. He argued that when the advertisement format was finalised at the industry level, the oil industry could not incorporate the MORTH norms in the advertisement format and accordingly the norms contained in the Circular dated 17. 10. 03 could not be included because this advertisement format was finalised by the industry much prior to the issuances of the MORTH circular dated 17. 10. 2003. When however a joint inspection of the site was carried out by the team of the Corporation, it found that the land offered by the respondent no. 3 was not in conformity with the requirements of MORTH criteria. It was therefore that a notice was sent to her to submit her explanation. The respondent no. 3 submitted her reply in which she represented that neither in the advertisement nor at the time of interview, was she informed about the guidelines of the MORTH and therefore the land offered by her could not conform to such guidelines because she offered the land as per the specifications indicated in the advertisement. The Corporation considering bona fides of the respondent no. 3 especially the fact that the MORTH guidelines were required to be notified to the prospective candidates and this having not been done, she has been prejudiced, decided to give her one more chance. It was therefore that a conditional Letter of Intent was issued to her. It was not a case of any undue favour being shown to respondent no. 3. Shri J. K. Singhi drew attention of the Court towards Annexure R/2/1 which is copy of the letter dated 2. 9. 04 issued by the General Manager, North Zone to Sr. Regional Manager, Jaipur where similar treatment was given to two candidate selected for allotment of retail outlet where besides the respondent no. 3 for Halena location, one more candidate for Shahpura location was also included. Shri J. K. Singhi further argued that no specific details or materials have been given by the petitioner as to which of the officers of the Corporation favoured the respondent no. 3. Not only that, no such officer of the Corporation has been impleaded as party respondent on allegations of mala fides. The petitioner has even failed to implead the husband of the respondent no. 3, who is said to be an IAS officer, as party respondent. Allegation of mala fides, besides being wholly unfounded, are therefore liable to be rejected for this reason only.
(3.) SHRI J. K. Singhi, the learned counsel for the respondent Corporation argued that allocation of 35 marks out of 100 marks for the purpose of selection of a dealer are made not for the suitability of the land, but for the capacity of the candidate to provide the land and infrastructure / facilities and there was nothing wrong in allocating such marks to the respondent no. 3 because she was considered by the Selection Committee very much capable of providing the land. She however offered the land in terms of the specifications indicated in the advertisement alone which did not conform to the MORTH specifications because such specifications were not notified in the advertisement. SHRI J. K. Singhi, the learned counsel for the respondent Corporation relied on the judgment of division bench of this Court in 2003 (UC) WLC 116 and 2005 (4) WLC 540. Shri R. N. Mathur, the learned counsel for contesting respondent no. 3 also opposed the writ petition and refuted all the allegations of mala fides. He argued that just because the husband of the respondent no. 3 happens to be an IAS officer, this could not render her ineligible for allotment of retail outlet. She like any other candidate, being citizen of country, is entitled to consideration for allotment of such retail outlet. He argued that the respondent for the first time by their letter dated 22. 6. 2004 informed the petitioner that that the land offered by her does not meet the MORTH norms. She then made a representation that no such norms was ever notified to her either in the advertisement or at any stage during the process of selection. She offered to provide an alternate piece of land in accordance with the MORTH norms. Shri R. N. Mathur argued that if the petitioner is capable of buying and providing suitable land in terms of the specifications indicated in the advertisement, there was no reason why she could not provide such land as per the norms contained in the MORTH guidelines if only the same had been duly notified. While referring to para 2 of the MORTH Circular, he argued that this clause itself mentions that the "norms covers the most common situations. And complex situation would have to be dealt with through traffic expert for an appropriate solution. " Shri R. N. Mathur, the learned counsel for the contesting respondent no. 3 led much emphasis on condition no. 10. 1 which required the Ministry of Petroleum & Natural Gas / Oil Company that while entertaining any application for the installation of Fuel Station, they would supply copy of these norms to the applicant so that he / she may assess his / her position to fulfill the requirements of these norms and further that they would ensure that the plot offered should conform to the requirements of these norms. It is submitted that if the respondent no. 3 could not while initially offering the land adhere to the specifications of the MORTH, fault does not lie on her part and she cannot be made to suffer on this account. Shri R. N. Mathur further argued that if the respondents on consideration of the representation of the respondent No. 3 have decided to provide an opportunity to her to offer a suitable land in conformity with the specifications contained in the MORTH circular, there is nothing wrong in it. Shri R. N. Mathur further argued that in spite of having been selected and granted letter of Intent, the respondent no. 3 had to suffer because she was put to a disadvantageous position in having first procuring / purchasing one land and thereafter the second land. Although if only the MORTH specifications had been notified, she would not have been required to go through the ordeal of purchasing two pieces of land. He also argued that the 35 marks are awardable for capacity of the candidate to provide land and infrastructure / facilities and not for the suitability of the land as has been sought to be made out by the petitioner. Such marks were awarded to respondent no. 3 only because she was found capable by the selection committee to provide the land and infrastructure. Shri R. N. Mathur made a pointed reference to the terms of the endorsement number of the MORTH guidelines dated 17. 10. 2003 made to Ministry of Petroleum and Natural Gas, Government of India with the request to issue suitable instructions to adhere to these norms, while planning, installation of the fuel stations along the national highways. In spite of this if the oil companies did not incorporate such requirement in their advertisement, the potential candidate like respondent no. 3 could not be penalized for that. Lastly Shri R. N. Mathur refuted the allegations of the mala fides and submitted that not only the allegations are vague and unspecific but also liable to be rejected because neither any Officer of the Corporation, nor even the husband of the respondent no. 3 has been impleaded as party respondent on such allegations of mala fides, in absence of which, all these allegations are liable to be rejected. He therefore argued that the writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and scanned the material on record. ;