Sanjay Kumar Jha vs Prakash Chandra Chaudhary

REPORTABLE

THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 11857-11859 OF 2018 (@ SLP(C) NOS. 16899-16901 OF 2018)

Sanjay Kumar Jha … Appellant

VERSUS

Prakash Chandra Chaudhary & Ors. … Respondents

WITH

CIVIL APPEAL NOS. 11860-11862 OF 2018 (@ SLP(C) NOS. 16902-16904 OF 2018)

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. These appeals are against the judgment and final

orders dated 24.04.2017 passed by a Division Bench of

the High Court of Judicature at Patna dismissing the appeal

being LPA No. 855 of 2016 against the judgment and order

dated 8.3.2016 of a learned Single Judge inter alia Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2018.12.05 14:55:36 IST Reason: allowing the writ petition filed by the respondent, Prakash

Chandra Chaudhary being CWJ Case No. 2019 of 2015 and 2

directing the Indian Oil Corporation, being the Appellant in

SLP (C) No. 16902-16904 of 2018 to issue the Letter of

Intent allotting the retail outlet in issue in writ petition to

the said respondent and also an order dated 14.3.2018

dismissing the applications for review of the said judgment

and order dated 24.3.2017 of the Division Bench being

Civil Review No. 215 of 2017 and Civil Review No. 231 of

2017 in LPA No. 855 of 2016.

3. On 19.8.2011, Indian Oil Corporation issued an

advertisement in, inter alia, the Dainik Jagran, Patna

inviting applications for different Kisan Seva Kendra (Retail

Outlet) dealerships in respect of diesel, petrol, lubricant

oils etc., at different locations. One of the retail outlets

being the retail outlet in respect of which the writ petition

being CWJ Case No. 2019 of 2015 was filed, was to be

located on Falka Gerabari Road, within one kilometer from

Giriyama Chowk, Giriyama in Katihar District in Bihar, and

is hereinafter referred to, for convenience, as the Giriyama

retail outlet.

4. Pursuant to the said advertisement, Sanjay Kumar Jha

being the appellant in appeal arising out of SLP(C) No.

16899-16901 of 2018, (hereinafter referred to as the

appellant Sanjay Kumar Jha) and the respondent No.1 in 3

appeal arising out of SLP(C) No. 16902-16904 of 2018

(hereinafter referred to as the ‘Respondent Prakash

Chandra Chaudhary’) amongst others, applied for the

dealership of the Giriyama retail outlet.

5. The brochure published by Indian Oil Corporation

indicates that the eligible applicants who were individuals

were to be evaluated on the basis of the following broad

parameters:-

a. Capability to provide land and infrastructure/facilities (35 marks) b. Capability to provide finance (25 marks) c. Educational Qualifications (15 marks) d. Ability to generate business (10 marks) e. Age (4 marks) f. Experience (4 marks) g. Business ability/ Acumen (5 marks) h. Personality (2 marks)

6. It appears that a panel of three candidates was prepared

in which the appellant Sanjay Kumar Jha was placed on the first

position and the respondent Prakash Chandra Chaudhary in the

second position. The appellant Sanjay Kumar Jha was awarded

90.73 marks and the respondent Prakash Chandra Choudhary

was awarded 89.93 marks.

7. The Giriyama retail outlet was allotted to the first

empanelled candidate being the appellant Sunil Kumar Jha.

Challenging the allotment, the respondent Prakash Chandra

Chaudhary filed a writ petition in the High Court Judicature at

Patna being CWJ Case No. 2019 of 2015.

4

8. By an order dated 8.3.2016, the learned Single Bench

of the High court allowed the writ petition and directed the

Indian Oil Corporation to grant dealership of the Giriyama

retail outlet to the respondent Prakash Chandra

Chaudhary.

9. The learned Single Bench proceeded on the erroneous

notion that, as per the advertisement, the only

requirement for the Giriyama retail outlet was that the

retail outlet should be in Giriyama within one kilometer on

a particular well-defined road.

10. The learned Single Bench proceeded on the premises

that, the land of the respondent, Prakash Chandra

Chaudhary, being the writ-petitioner, was undisputedly

within Giriyama Mauza in Falka Block, as was the case of

the appellant Sunil Kumar Jha, being the respondent no.6

in the writ petition. The Court observed that the report of

the Circle Officer and the District Magistrate to the effect

that the land of the respondent Prakash Chandra

Chaudhary was not in Giriyama was not only erroneous

but clearly collusive in that they were trying to favour the

appellant Sanjay Kumar Jha.

11. The learned Single Bench held that the action of

Indian Oil Corporation in awarding the dealership of the 5

Giriyama Retail Outlet to the appellant Sanjay Kumar Jha

was totally against law and patently illegal.

12. The learned Single Bench thus, in effect, held that the

writ petitioner, that is, the respondent Prakash Chandra

Chaudhary had wrongly been awarded zero in respect of the

fixed and movable assets category. The Single Bench further

held that in view of the finding as aforesaid, the writ peti-

tioner, that is respondent Prakash Chandra Chaudhary had

become the candidate with the highest marks, entitled to be

awarded the dealership of the Giriyama Retail Outlet.

13. It is well settled that in proceedings under Article 226 of

the Constitution of India the High Court does not adjudicate,

upon affidavits, disputed questions of fact. In arriving at the

finding that the land offered by respondent Prakash Chandra

Chaudhary was located within Giriyama Mauza of Falka Block

the learned Single Bench embarked upon adjudication of a

hotly disputed factual issue, which the High Court, while exer-

cising its writ jurisdiction, does not do.

14. Even otherwise, the Single Bench erred in arriving at its

aforesaid finding, ignoring the report of the Revenue Authori-

ties, including the District Magistrate, that the land of respon-

dent Prakash Chandra Chaudhary is situated at a distance of

800 meters from Giriyama chowk towards Falka which is 6

within block Falka but outside the limits of the place Giriyama.

The District Magistrate and the Additional Collector clearly

stated that the land was beyond Nisundhra Bangali Tola,

which is the limit of Giriyama.

15. In any case, even assuming that the respondent Prakash

Chandra Chaudhary had erroneously been awarded zero, the

order of the learned Single Bench does not disclose the

process of reasoning for arriving at the conclusion that the re-

spondent Prakash Chandra Chaudhary had become the candi-

date with the highest marks. There was no reason to as-

sume that the respondent Prakash Chandra Chaudhary would

have to be awarded marks that would make him rank first in

the panel, when the total marks were 4 and one Md. Mojibur

Rahman, the third empaneled candidate had been awarded 4

out of 4, while the appellant Sanjay Kumar Jha had been

awarded 2.14. The records reveal that the land of the appel-

lant Sanjay Kumar Jha measuring 0.29 acres was within 50

meters from Giriyama chowk on Falka Gerabadri Road

whereas the land of Prakash Chandra Chaudhary measuring

0.13 acres was located at a distance of 800 meters from

Giriyama chowk. The land of the appellant Sanjay Kumar Jha

was larger in area. Of course, these observations are not to

be construed as any factual finding of this Court, that the land 7

of respondent Prakash Chandra Chaudhary was within

Giriyama.

16. It is well settled that proceedings under Article 226 of

the Constitution of India, the High Court cannot sit as a Court

of Appeal over the findings recorded by a competent

administrative authority, nor reappreciate evidence for itself

to correct the error of fact, that does not go to the root of

jurisdiction. The High Court does not ordinarily interfere with

the findings of fact based on evidence and substitute its own

findings, which the High Court has done in this case. Even

assuming that there had been any error in the computation

of marks in respect of fixed and movable assets, the High

Court could, at best, have remitted the case of respondent

Prakash Chandra Chaudhary to the concerned authorities for

reconsideration.

17. Being aggrieved by the judgment and order dated

8.3.2016 of the learned Single Bench the Indian Oil Corpora-

tion filed an appeal therefrom, being Letters Patent Appeal

No.855 of 2016, which has been dismissed by the order dated

24.4.2017 of the Division Bench under appeal in these ap-

peals filed by the appellant, Sanjay Kumar Jha, and the Indian

Oil Corporation respectively.

8

18. By the order under appeal, the Division Bench dismissed

the appeal, rightly observing that the allotment was for

Giriyama within the radius of one kilometer from Giriyama

chowk at Falka Road. The Division Bench, however, fell in

error in proceeding on the basis that the plot of the appellant

Sanjay Kumar Jha was not situated in Giriyama Chowk and as

such the learned writ court had not committed any error in

recording its finding. It is a matter of record that there were

two reports in respect of the plots, both of which confirm that

the plot of the appellant was in Giriyama within 50 meters of

Giriyama chowk whereas in case of respondent Prakash

Chandra Chaudhary, the Circle Officer, Falka had by letter

dated 15.4.2014 confirmed that the land offered by him fell

outside the limits of Giriyama. In any case, the plot offered

by respondent Prakash Chandra Chaudhary which measured

0.13 acres was smaller than that of the appellant Sanjay

Kumar Jha was 0.29 acres.

19. In exercise of discretionary power of judicial review under

Article 226 of the Constitution, the High Court might interfere

with administrative matters only if the decision is violative of

fundamental or basic principles of justice and fair play or

suffers from any patent or flagrant error. It is true that the

High Court might rectify, in exercise of its power of judicial 9

review, an error of law or even an error of fact, for sufficient

reasons, if the error breaches fundamental or basic principles

of justice or fair play or if the error is patent and/or flagrant,

but not otherwise. However, even in cases where the High

Court finds an apparent factual error which goes to the root of

the decision, the appropriate course of action would be to

give the opportunity to the authority concerned to rectify the

error. It is only in the rarest of cases, where the factual error

is so obvious that it is rectifiable by the Court itself, that the

Court might, to prevent delay and consequential denial and/or

miscarriage of justice, rectify the error.

20. In the instant case, at the cost of repetition, it is

reiterated that even assuming that the land of the petitioner

was situated within Giriyama, there was no reason to

presume that the marks awarded to the petitioner would in

the aggregate be the highest when the land of the appellant

Sanjay Kumar Jha was located nearer the Giriyama chowk

and his area of land was bigger.

21. It is not for the High Court, exercising jurisdiction under

Article 226 of the Constitution of India to embark upon a

comparative assessment of the suitability of different

candidates for appointment of a dealer of a retail outlet. The

High Court, in our view, should not have decided the factual 10

question of whether the land of respondent Prakash Chandra

Chaudhary was in Giriyama in view of the reports of the

concerned Additional Collector, District Magistrate and Circle

Officer to the effect that the land of respondent Prakash

Chandra Chaudhary was in Falka block and not within

Giriyama. The High Court patently erred in brushing aside

the reports of the Revenue Authorities and arriving at a

different finding.

22. In any case, as observed above, the Division Bench has

apparently dismissed the appeal filed by the appellant

proceeding on the patently erroneous basis that the land of

respondent Prakash Chandra Chaudhary had been found to

be situated within the radius of one kilometer of Giriyama

chowk whereas the land of the appellant Sanjay Kumar Jha

was situated outside the Giriyama circle, which was not even

the case of respondent Prakash Chandra Chaudhary in the

writ petition. Even the learned Single Bench found that the

land of the appellant Sanjay Kumar Jha was within Giriyama.

The judgment and order under appeal cannot be sustained

and is liable to be set aside on that ground alone. The order

of the learned Single Bench is also set aside.

23. Accordingly, the appeals are allowed. The judgment and

order under appeal as well as the judgment and order of the 11

Single Bench are set aside and the writ petition is dismissed.

The parties shall bear their respective costs.

.................................J. (R. BANUMATHI)

.................................J. (INDIRA BANERJEE) DECEMBER 05, 2018 NEW DELHI.