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SMT. RANI AGRAWAL versus SENIOR DEVL. MANAGER INDIAN OIL CORPN. LTD. AND OTHERS.

High Court of Judicature at Allahabad

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Smt. Rani Agrawal v. Senior Devl. Manager Indian Oil Corpn. Ltd. And Others. - WRIT - C No. 27860 of 2004 [2004] RD-AH 369 (26 July 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 27860 OF 2004

Smt Rani Agrawal -------- Petitioner

Versus

Senior Divisional Manager,

Indian Oil Corporation Ltd,

Bareilly & ors. ------- Respondents

______________

Hon'ble Dr. B.S.Chauhan, J.

Hon'ble D.P.Gupta, J.

This writ petition has been filed for directing the respondent no. 1 to decide the objection/representation filed by the petitioner on various grounds, which is pending consideration before the respondents since long.

The facts and circumstances giving rise to this case are that an advertisement dated 28.6.2000 was issued inviting applications for the aforesaid outlet. A large number of persons had applied. However, it has been allotted in favour of the respondent no. 4. Being aggrieved, petitioner preferred the representation which is still pending. Hence this petition.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

Basic purpose of filing this writ petition is of quashing the allotment of dealership in favour of the respondent no. 4 and consider the objection of the petitioner made on various grounds.

The allotment order of distributorship in favour of respondent no.4 is not a part of record.

In Surender Singh Vs. Central Government, AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record.  The Apex Court observed as under:-

"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it.  In absence of impugned order it   would not   be possible to assign the reason which have impelled the authority to pass the order. It  is  therefore, improper to  quash  an order  which  is not produced before  the High  Court in a proceeding under Article 226 of the Constitution."

The petition is liable to be rejected only on the above ground.

Even if the Statue provides for preference in favour of a particular class of candidates, it is to be accorded only and only if the merits of the candidates are equal in other respects. (Vide Govt. of Andhra Pradesh Vs. P. Dilip Kumar & anr. (1993) 2 SCC; 310; Executive Officer Vs. T. Venkateshwarlu & anr., (1996) 8 SCC 253;and Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors., (2003) 5 SCC 341).

Even otherwise, there is nothing on merit in the case.

The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the   impugned order in "exceptional circumstances".  (Vide Union of India Vs.  Parma Nanda, AIR 1989 SC 1185;  State Bank of India Vs. Samarendra  Kishore  Endow,  (1994)  2  SCC  537; State of  Punjab Vs.  Surjit Singh, (1996) 8  SCC 350;  State  of U.P.  Vs.  Ashok Kumar Singh, AIR 1996 SC 736; State of U.P.  Vs.  Nand  Kishore Shukla & anr., AIR 1996  SC  1561; Transport Commissioner,  Madras  Vs.   Thiru  ARK  Moorthy, (1995) 1  SCC  332;  Rae Bareli Kshetriya  Gramin Bank Vs.   Bhola  Nath Singh & ors., AIR 1997  SC 1908;  State  of Punjab Vs.  Bakshish Singh,  AIR 1997 SC 2696;   Yoginath D.  Bagde Vs.  State  of Maharashtra  & anr., (1999) 7 SCC 739;  Union  of India Vs.   Lt.   Gen.  R.S.  Kadyan & ors.,  AIR 2000 SC 2513;   Food Corporation of India Vs.  A. Prahalada  Rao  & anr., AIR 2001 SC  51;   Kumaon Mandal Vikas  Nigam Ltd.  Vs.  Girja Shankar Pant & ors., AIR 2001 SC 24;  N.R.  Nair Vs.  Union of India & ors.,  AIR  2001 SC 2337;  and  Union  of India Vs.   Ashutosh  Kumar Srivastava, (2002)  1SCC 188).

It is equally settled law that the authority is to consider the material on record. In judicial review, the Court "has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches, is necessarily correct in the view of the Court or the Tribunal.  When the conclusion reached by the authority is based on evidence, the Court or the Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. The only consideration the Court/ Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record that support the finding, or whether the conclusion is based on no evidence."

In Council of Civil Services Union Versus Minister for Civil Service, 1984 (3)  All  E.R. 935, it was held that anything disproportionate should be discarded.  It was further observed that judicial review is permissible only on limited grounds, namely, illegality, irrationality, procedural impropriety and proportionality. The concept of irrationality has been explained as a decision which is so outrageous in its deviation of logic or accepted moral stand that no sensible person who had applied his mind to the question to be decided would have arrived at. Procedural impropriety has been explained as failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who would be affected by the decision. The requirement of procedural propriety depends upon the subject matter of the decision, the executive functions of the decision-maker and the particular circumstances  in  which the decision came  to  made.                                              

The adequacy   or  inadequacy  of   evidence  is   not permitted  to be canvassed before the Court as the High Court  cannot sit as appellate forum for  the factual finding recorded for  the reason that it  exercises  a very limited  power  of  judicial  review.

The order which is not on record cannot be quashed. Secondly, the learned counsel for the petitioner is not able to satisfy as to whether the advertisement issued is under the Statute, for the reason it may amount to review which is not possible for want of statutory sanction.

In K. Vinod Kumar Vs. S. Palanisamy & Ors., JT 2003 (8) SC 100, the Hon'ble Apex Court considered the issue of grant of LPG distributorship and held as under:-

"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.

............... ............ ..........

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."

Thus, in view of the above, law can be summerised that judicial review is permissible only against the decision making process and not against the decision itself. In the instant case, petitioner has not filed the order of allotment made in favour of respondent no.4, therefore, the petition cannot be entertained for want of the said order. Petitioner claims preference over respondent no.4 merely being of the district mentioned in the advertisement without laying any factual foundation, therefore, this issue is also not worth taking note of for want of proper pleadings, as judicial review is not permissible against such a decision. The petition is liable to be dismissed.

Thus, the petition fails and is accordingly dismissed.

26.7.2004

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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