ALLAHABAD HIGH COURT JUDGMENTS

Smt. Ragini Rai Vs. Union Of India Thru Secy. And Others [AHC] – 20/05/2019

Judicial Review – In proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Smt. Ragini Rai Vs. Union Of India Thru Secy. And Others

Court No. – 39
Case :- WRIT – C No. – 58514 of 2012

Judgment Reserved on 02.04.2019
Judgment Delivered on 20.05.2019

Petitioner :- Smt. Ragini Rai
Respondent :- Union Of India Thru Secy. And Others

Counsel for Petitioner :- Mrs. Sushma Devi,D.S.P. Singh
Counsel for Respondent :- A.S.G.I.,Archana Singh,Ishan  Shishu,S.C.,Shailendra Sharma,V.K. Shukla,Vaibhav Tripathi

Bench : Hon’ble B. Amit Sthalekar,J.
Hon’ble Dr. Yogendra Kumar Srivastava,J.

(Per Dr. Yogendra Kumar Srivastava,J.)

1. Heard Sri D.S.P. Singh, learned counsel for the petitioner, Sri Shailendra Sharma, learned counsel for the respondent no. 5, Smt. Archana Singh, learned counsel for the respondents no. 2, 3 and 4 and learned ASGI who has accepted notice on behalf of the respondent no. 1.

2. The present petition seeks to challenge the letter of intent dated 23.9.2011 and the field verification report and also the consequential orders passed in favour of the respondent no. 5 pursuant to the advertisement dated 28.6.2006 issued by the respondent nos. 2, 3 and 4 for setting up of a Kisan Sewa Kendra at Village Chakauth Pargana Ghosi Tehsil Madhuvan District Mau. Further, relief has been sought for a direction to adopt the process of field verification for appointment of the petitioner on the basis of the aforesaid advertisement.

3. The facts of the case in brief are that an advertisement dated 28.6.2006 was issued by the Indian Oil Corporation Ltd. for setting up of a Kisan Sewa Kendra at different locations including the location at Village Chakauth Pargana Ghosi Tehsil Madhuvan District Mau in which a merit list was prepared after due selection process, wherein the petitioner had been placed at rank no. 3 whereas one Mina Rai was at rank no. 1 and the respondent no. 5/Smt. Girija Sharma was at rank no. 2.

4. At this stage a Civil Misc. Writ Petition No. 27261 of 2008 (Ragini Rai Vs. Union of India and others), was filed by the petitioner herein alleging that she had been awarded lesser marks. The aforesaid writ petition was dismissed vide judgment dated 30.7.2008 which was in the following terms :-
“It appears that one Mina was granted the dealership of Kisan Seva Kendra. The petitioner filed complaint against her and dealership of that person has been cancelled. Petitioner has also not been allotted Kisan Seva Kendra on the ground that no experience certificate was filed in proof of her experience. Counsel for petitioner relied upon the experience certificate dated 19.7.2006, Annexure-5 to the writ petition.
We have perused the experience certificate dated 19.7.2008 field by the petitioner as Annexure-5 to the writ petition. It does not indicate the period for which the petitioner was working at the petrol pump. In the absence of the length of experience, no value could be attached to that certificate. We, therefore, do not find any merit in this petition. The petition is dismissed.”

5. Two other writ petitions were also filed, one by Smt. Rekha Rai, respondent no. 6 herein and another by Smt. Girija Sharma, respondent no. 5 herein, being Civil Misc. Writ Petition No. 25868 of 2008 and Civil Misc. Writ Petition No. 50654 of 2010 respectively which were dismissed by a common order dated 25.4.2011 after recording that the field verification as per condition no. 17.1 of the brochure had not been completed by the authorities and no decision had been taken at that stage.
6. Subsequently, it appears that the candidature of Smt. Mina Rai, initially placed at rank no. 1, was cancelled for the reason that she was not found eligible. Accordingly, the process of field verification in respect of respondent no. 5, Smt. Girija Sharma, who was at rank no. 2, was conducted, and the field verification report was submitted along with other relevant documents. Upon receipt of the aforementioned reports which were in favour of the respondent no. 5, the letter of intent was issued to her.

7. The petitioner herein filed another Writ-C No. 63417 of 2011 (Smt. Ragini Rai Vs. Union of India and others) which was also dismissed vide order dated 21.9.2012 in the following terms.

“1. Indian Oil Corporation (the Corporation) advertised for Kisan Seva Kendra Operatorship. The petitioner was one of the applicant in the same.

2. The results of the same were declared and the petitioner was place at serial no. 3. Smt. Girja Sharma (the contesting respondent) was placed at serial no. 2 and one Smt. Meena Rai was placed at serial no. 1.

3. The petitioner filed WP 27261 of 2008 against this panel. It was dismissed on 30.7.2008.

4. One Smt. Rekha Rai filed WP 25868 of 2008 against the selection. The contesting respondent filed WP 50654 of 2010 for making allotment in pursuance of the result. Both the writ petitions were dismissed on 25.4.2011.

5. The candidature of Smt. Meena Rai who was placed at serian no.1 was cancelled. The petitioner has filed the present writ petition for a direction restraining the Corporation from appointing the contesting respondent as their operator.

6. We have heard counsel for the parties.

7. Smt. Archana Singh, counsel for the Corporation states that:
After the candidature of Smt. Meena Rai was cancelled, the verification was done and was found to be proper;
The letter of intend has been issued to her before filing the writ petition.

8. In the present writ petition, neither the verification nor the letter of intent issued to the contesting respondent is challanged.

9. In view of above, the writ petition is dismissed. However, the petitioner will have liberty to challange the verification and letter of intent issued to the contesting respondent.”

8. It is thereafter that the present writ petition has been filed seeking to challenge the letter of intent and the verification report. The principal ground which has been canvassed on behalf of the petitioner is that the land which the respondent no. 5 had offered for the purpose of setting up of a Kisan Seva Kendra was not suitable for the purpose, and as such the letter of intent could not be issued in her favour. It is also sought to be contended that the field verification report indicates that the site which had been offered was subsequently changed and the location of the land now was at a place different from the land which had been initially offered as per the application submitted by the said respondent.

9. Per contra, the counsel appearing for the respondent no. 5 has taken a categorical stand that the allegation with regard to change of location was absolutely false and contrary to the material on record. Reliance has been placed upon the No Objection Certificate issued by the District Magistrate on 11.4.2012, a copy whereof has been filed as Annexure CA 4 to the counter affidavit filed by the respondent no. 5, and in particular, the following portion of the No Objection Certificate has been relied upon.

“उप जिलाधिकारी मधुबन की आख्या दिनांक 30.12.2011 में कहा गया है कि भू-खण्ड संख्या 734/0.053 व 735/0.234 हे० अभिलेखों में रविन्द्र पुत्र दौलत, प्रभाकर व बैकुण्ठ पुत्रगण राम कृपाल, अरूणोदय पुत्र उपेन्द्र, रत्नेश देवी पत्नी स्व० श्री उपेन्द्र निवासी सुरजपुर के नाम संक्रमणीय भूमिधर अंकित है। इन भूमिधरों द्वारा श्रीमती गिरजा शर्मा पत्नी गंगाधर राय सा० सुरजपुर के पक्ष में आराजी नम्बर 734/0-053 व 735/0-234 हे० कुल रकबा-287 हे० का दिनांक 17.07.2006 को 29 वर्ष, 5 माह के लिए पंजीकृत पट्टा विलेख (लीज) निष्पादित किया गया है। आराजी संख्या 735 के संबंध में एक वाद धारा 27(3) जो०च०आ० के अन्तर्गत जिलाधिकारी मऊ के न्यायालय में तथा एक निगरानी धारा 48 (2) जो०च०अ० के अन्तर्गत उप संचालक चकबन्दी के न्यायालय में विचाराधीन है। परन्तु इन वादों में कोई स्थगन आदेश पारित नहीं है। मौके पर प्रार्थी का कब्जा है तथा आराजी उसके स्वामित्व में है। प्रस्तावित किसान सेवा केन्द्र की दूरी आबादी से 150 मीटर व बाग से दूरी लगभग 80 मीटर है। तहसीलदार मधुबन एवं उप जिलाधिकारी मधुबन द्वारा अनापत्ति प्रमाण-पत्र जारी करने हेतु संस्तुति की गयी है।”

10. The respondent nos. 2, 3 and 4 have also placed their stand by filing a counter affidavit and also a supplementary counter affidavit wherein it has been stated that the letter of intent in favour of the respondent no. 5 had been issued after due field verification as per norms wherein the said respondent was found suitable and there was no illegality in issuance of the letter of intent to her.

11. Copies of the field verification report and other documents accompanying the same have been placed on record as Annexure CA-1 and also as Annexure SCA-1 to the counter affidavit and supplementary counter affidavit, respectively, which have been filed by the respondent nos. 2, 3 and 4. In particular, reliance has been placed upon the report in respect of the suitability of the land offered by the respondent no. 5, which is in following terms.
“S.M. Plot No. 734 area 0.053 hect. and plot no. 735 area 0.234 hect. total area 0.287 hect. situated at village Chakauth Pargana Ghosi Distt. Mau Nathbhanjan described as under called as subject land is recorded in the revenue record in the name of Sri Ravindra s/o Daulat and Upendra, Prabhaker, Baikunth s/o Ram Kripal Upendra died leaving behind his legal heirs, his son Sri Arunodaya and widow Smt. Ratnesh devi, who became his legal heirs. And they all executed a lease deed on 17.7.2006 in favour of Smt. Girija Sharma w/o Gangadher Sharma in respect of subject land (only 11400 sq ft) for the period 29 years 5 months commencing from the date of execution of leasedeed. The lessors are the recorded owners of subject land. Their name has recorded in the revenue record have good, valid clear complete and the marcatable title over the subject land. There is no any dispute regarding title.
The subject land is located over plot no. 734 and plot no. 735. Both plots are adjacent to each other. Plot No. 735 is surrounded by low side road. One road is located towards east and other is towards noth. I also perused the boundaries mentioned in lease deed.

East- Road Chakauth to Bhualipur
West-Part land of lessor
North-Road Doharighat to Madhuban
South-Part land of lessor.

On the perusal of lease deed, the subject land is corner plot. But according to site plan, the subject land is situated only one road towards north. There is no dispute in respect of title and it is undisputed that the subject land is situated over plot no. 734 and 735. The ownership of the land is not disputed.
The title of land owners (lessor) is clear and complete. And Smt. Girija Sharma w/o Sri Gangadher Rai is in possession over the subject land on the basis of lease deed. The subject land is located over the plot no. 734 and 735, which is on the road.”

12. It is submitted that on the basis of the aforementioned field verification report wherein the respondent no. 5 was held to be eligible, the letter of intent has been issued in her favour.

13. We have considered the submissions of the parties and perused the record.

14. The petitioner herein had initially filed Civil Misc. Writ Petition No. 27261 of 2008 raising a grievance with regard to the non-allotment of the Kisan Sewa Kendra to her on the ground that no experience certificate was filed by her in proof of her experience. The experience certificate dated 19.7.2006 filed as annexure 5 to the said writ petition was considered by this Court and on the basis of the same it was observed that the said experience certificate did not indicate the period for which the petitioner was working at the petrol pump and in the absence of the length of experience being indicated no value could be attached to that certificate. The writ petition was found to be devoid of merits and was accordingly dismissed.

15. Not content with the aforesaid order, the petitioner filed another Writ -C No. 63417 of 2011 for a direction to restrain the Indian Oil Corporation from appointing the contesting respondent i.e. Smt. Girija Sharma (respondent no. 5 herein ) as operator of the Kisan Sewa Kendra in question. A clear stand being taken by the Indian Oil Corporation in the said writ petition that the letter of intent had already been issued to the contesting respondent before filing of the writ petition and the same had been done after due verification this Court after taking note of the fact that neither verification report nor the letter of intent issued to the contesting respondent had been challenged, dismissed the said writ petition.

16. In view of the liberty granted to the petitioner to challenge the verification report and the letter of intent, the petitioner has again approached this Court by filing the present petition. The only ground which has been raised by the petitioner is with regard to the suitability of the land which has been offered by the respondent no. 5 for the purpose of setting up of a Kisan Sewa Kendra on the ground that the land which had been initially offered by her along with her application is different from the land on which the proposed Kisan Sewa Kendra has to be set up.

17. The respondent-Indian Oil Corporation has taken a categorical stand that the process of field verification was followed meticulously and the letter of intent has been issued in respect of the plot of land situate at Khasra No. 734 and 735 measuring 12 feet x 120 feet in Village Chakauth, Doharighat, District Maunathbhanjan as has been specified by the respondent no. 5 in her application.

18. The District Magistrate Mau has also issued a No Objection Certificate dated 11.4.2012 based upon a report dated 30.12.2011 submitted by the Sub-Divisional Officer Madbhuban indicating the suitability of the land which has been offered by the respondent no. 5 and a clear report that the said respondent was in possession over the land in question and also with regard to the suitability of the same for the purposes of setting up of a Kisan Sewa Kendra.

19. The field verification has been duly carried out as per procedure and the report submitted pursuant thereto also unequivocally indicates that the recorded owners of the Plot Nos. 734 and 735 situate in Village Chakauth, Pargana Ghosi District Mau Nathbhanjan have duly executed a lease deed dated 17.6.2006 in favour of the respondent no. 5 in respect of the subject land and there is no dispute with regard to the land in question. Further, it has also been indicated that two plots are adjacent to each other and one road is located towards east and another towards the north and that the respondent no. 5 is in possession of the said land and that the letter of intent could be issued in her favour.

20. Counsel for the petitioner has not been able to point out any error or illegality in the No Objection Certificate granted by the District Magistrate based on the report submitted by the Sub-Divisional Officer with regard to the suitability of the subject land which has been offered by the respondent no. 5 for setting up of a Kisan Sewa Kendra and also the field verification report which also categorically supports the suitability of a land which has been offered by the respondent no. 5 for the purposes of setting up of a Kisan Sewa Kendra.

21. The respondent-Indian Oil Corporation has taken a specific stand based on the material on record that the process of field verification was duly followed. Further, based upon the reports which indicate that the subject land which had been offered by the respondent no. 5 was suitable for the purposes of setting of a Kisan Sewa Kendra, the Corporation had taken a decision for issuance of the letter of intent in her favour and the same does not suffer from any illegality.

22. It is legally well settled that in proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision taken.

23. In a matter pertaining to allotment of LPG distributorship where the decision of the dealer selection board was sought to be challenged, in the case of K. Vinod Kumar Vs. S. Palanisamy And Ors. it was held that merits of the decision fall outside the scope of judicial review, and in proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision taken. The observations made in this regard in the judgment are as follows :-

“7. The proceedings of the Dealer Selection Board must satisfy the requirements of a bona fide administrative decision arrived at in a fair manner. There are no mala fides alleged against the Dealer Selection Board or the President or any member thereof. There is no specific plea raised impugning the manner of marking. It appears that all the three members of the Board including the President conducted the proceedings, and each one of them gave marks expressing his own assessment of the merits of the applicants. The marks given by the three were then totalled and arranged in the order of merit. The appellant herein topped the list. In the absence of a particular procedure or formula having been prescribed for the Board to follow, no fault can be found with the manner in which the proceedings were conducted by the Board. The Board is entrusted with the task of finding out the best-suitable candidate and, so long as the power is exercised bona fide, the Board is free to devise and adopt its own procedure subject to satisfying the test of reasonableness and fairness. There is no averment that the procedure adopted by the Board was arbitrary, unfair or unreasonable.

11. The law is settled that over proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken. No infirmity is pointed out in the proceedings of the Selection Board which may have the effect of vitiating the selection process. The capability of the appellant herein to otherwise perform as an LPG distributor is not in dispute. The High Court was not, therefore, justified in interfering with the decision of the Selection Board and the decision of BPCL to issue the letter of allotment to the appellant herein.”

24. With regard to the “standard of reasonableness” which may be applied while exercising the power of judicial review, we may gainfully refer to the following extract from the well known treatise on Administrative Law by William Wade and Christopher Forsyth. :-
“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion….. The court must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court’s function to look further into its merits. ‘With the question whether a particular policy is wise or foolish the court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority.”

25. The aforementioned passage was also noticed by the Supreme Court while considering the scope of judicial review in the context of grant of a contract in Sterling Computers Ltd. Vs. M/s M & N Publications Ltd. & Ors.

26. On the purpose of judicial review, reference may be had to the case of Chief Constable of the North Wales v Evans, wherein it was stated as follows :-

“…….It is important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.
…….The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.”

27. A similar observation with regard to judicial review being not concerned with the merits of the decision under review was made in the case of R Vs.Somerest County Council, wherein it was held as follows :-
“One of (judicial review’s) most important characteristics is not, I think, generally very clearly understood. It is that in most cases, the judicial review Court is not concerned with the merits of the decision under review. The Court does not ask itself the question, ‘Is this decision right or wrong?’. Far less does the judge ask himself whether he would himself have arrived at the decision in question… The only question for the judge is whether the decision taken by the body under review was one which it was legally permitted to take in the way that it did.”

28. The scope of judicial review has been examined in a catena of judgments and it has been the consistent view that while exercising the power of judicial review the court is more concerned with the decision making process than the merit of the decision itself. While examining and scrutinizing the decision making process what is to be considered is the propriety of the decision and not the decision being right or wrong. The power of judicial review is not intended to assume a supervisory role in matters within the domain of administrative authorities.

29. Having regard to the aforementioned facts and circumstances there appears to be no illegality in the process followed by the respondent authorities with regard to the allotment of the Kisan Sewa Kendra at the centre in question in favour of the respondent no. 5 so as to warrant interference within the limited scope of judicial review in such matters.

30. The petition is devoid of merits and is accordingly dismissed.

Dr. Y.K.Srivastava,J.

B. Amit Sthalekar,J.

Order Date :- 20.5.2019
Pratima

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