SANJAY KUMAR JHA versus PRAKASH CHANDRA CHAUDHARY & ORS.

[2018] 14 S.C.R. 893

SANJAY KUMAR JHA

PRAKASH CHANDRA CHAUDHARY & ORS.

(Civil Appeal No. 11857-11859 of 2018 etc.)

DECEMBER 05, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Constitution of India:

Art. 226 – Jurisdiction under – Scope of – Held: In exerciseof jurisdiction u/s. 226, High Court cannot sit in appeal over thefindings recorded by competent administrative authority, norreappreciate evidence to correct the error of fact and substitute itsown findings – Interference with administrative matters is permissibleonly when the decision is violative of fundamental or basic principlesof justice and fair play or suffers from any patent or flagrant error– If the court finds factual error which goes to the root of thedecision, appropriate course would be to give the opportunity tothe authority concerned to rectify the error – It is only in the rarestcase, where factual error is so obvious that it is rectifiable by thecourt itself, that the Court might, to prevent delay and consequentialdenial and/or miscarriage of justice, rectify the error – It is not forthe High Court to embark upon comparative assessment of thesuitability of different candidates for appointment of dealer of aretail outlet.

Public Distribution:

Allotment of retail outlet of diesel/petrol etc. – Writ petition,challenging the allotment – Single Judge of the High Court afterevaluating the facts of the case, held that the writ petitioner wasentitled to be awarded the dealership – Appeal against the orderwas dismissed by Division Bench of High Court – On appeal, held:High Court embarked upon adjudication of hotly disputed factualissues, which was not permissible in exercise of jurisdiction u/Art.226 of Constitution – High Court patently erred in brushing asidereports of the competent authorities and arrived at different finding– Orders of Single Judge as well as Division Bench of High Courtare liable to be set aside – Writ Petition is dismissed.

AAllowing the appeals, the Court

HELD: 1.1 In proceedings under Article 226 of theConstitution of India the High Court does not adjudicate, uponaffidavits, disputed questions of fact. The High Court cannot sitas Court of Appeal over the findings recorded by competentBadministrative authority, nor reappreciate evidence for itself tocorrect the error of fact, that does not go to the root of jurisdiction.The High Court does not ordinarily interfere with the findings offact based on evidence and substitute its own findings, which theHigh Court has done in the present case. [Paras 13 and 16][898-B, H; 899-A]C

1.2 In exercise of discretionary power of judicial reviewunder Article 226 of the Constitution, the High Court mightinterfere with administrative matters only if the decision isviolative of fundamental or basic principles of justice and fair playor suffers from any patent or flagrant error. It is true that theDHigh Court might rectify, in exercise of its power of judicial review,an error of law or even an error of fact, for sufficient reasons, ifthe error breaches fundamental or basic principles of justice orfair play or if the error is patent and/or flagrant, but not otherwise.However, even in cases where the High Court finds an apparentEfactual error which goes to the root of the decision, the appropriatecourse of action would be to give the opportunity to the authorityconcerned to rectify the error. [Para 19][899-F-H]

2.1 In arriving at the finding regarding the location of theland offered by the respondent, the Single Bench of High CourtFembarked upon adjudication of hotly disputed factual issue,which the High Court, while exercising its writ jurisdiction, doesnot do. Even otherwise, the Single Bench erred in arriving at itsaforesaid finding, ignoring the report of the Revenue Authorities,including the District Magistrate. [Paras 13, 14][898-B-C]

G2.2 Even assuming that the respondent had erroneouslybeen awarded zero marks, the order of the Single Bench doesnot disclose the process of reasoning for arriving at the conclusionthat the respondent had become the candidate with the highestmarks. There was no reason to assume that the respondent wouldhave to be awarded marks that would make him rank first in theH

SANJAY KUMAR JHA v. PRAKASH CHANDRA CHAUDHARY

panel. Even if there had been any error in the computation ofmarks in respect of fixed and movable assets, the High Courtcould, at best, have remitted the case of the respondent to theconcerned authorities for reconsideration. [Paras 15 and 16][898-E-F; 899-B]

2.3 It is not for the High Court, exercising jurisdiction underArticle 226 of the Constitution of India to embark upon acomparative assessment of the suitability of different candidatesfor appointment of dealer of retail outlet. The High Court,should not have decided the factual question regarding thelocation of the land of respondent. The High Court patently erredin brushing aside the reports of the Revenue Authorities andarriving at different finding. [Para 21][900-C-D]

2.4 The Division Bench of High Court has apparentlydismissed the appeal filed by the appellant proceeding on thepatently erroneous basis that the land of respondent had beenfound to be situated within the radius of one kilometer of Giriyamachowk whereas the land of the appellant was situated outside theGiriyama circle, which was not even the case of respondent inthe writ petition. Even the Single Bench had found that the landof the appellant was within Giriyama. The judgment and orderunder appeal cannot be sustained and is liable to be set aside onthat ground alone. [Para 22][900-E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11857-11859 of 2018.

From the Judgment and Orders dated 24.04.2017 and 14.03.2018of the High Court of Judicature at Patna in Letters Patent Appeal No.855of 2016 and Civil Review No.215 of 2017 and Civil Review No.231 of2017 in Letters Patent Appeal No.855 of 2016 respectively.

With

Civil Appeal Nos. 11860-11862 of 2018.

Tushar Mehta, SG, Rana Mukherjee, Sr. Adv., Ms. KashutrikaKumudi, Ms. Ekta Pradhan, Shekhar Kumar, Mrs. Priya Puri,Ms. Vineeta Meghrajani, Ranjay Dubey, Vibhav Shrivastav, Ms. RashmiSachdeva, Subhro Sanyal, Advs. for the appearing parties.

AThe Judgment of the Court was delivered byINDIRA BANERJEE, J.

1. Leave granted.

2. These appeals are against the judgment and final orders dated24.04.2017 passed by Division Bench of the High Court of JudicatureBat Patna dismissing the appeal being LPA No. 855 of 2016 against thejudgment and order dated 8.3.2016 of learned Single Judge inter aliaallowing the writ petition filed by the respondent, Prakash ChandraChaudhary being CWJ Case No. 2019 of 2015 and directing the IndianOil Corporation, being the Appellant in SLP (C) No. 16902-16904 ofC2018 to issue the Letter of Intent allotting the retail outlet in issue in writpetition to the said respondent and also an order dated 14.3.2018 dismissingthe applications for review of the said judgment and order dated 24.3.2017of the Division Bench being Civil Review No. 215 of 2017 and CivilReview No. 231 of 2017 in LPA No. 855 of 2016.3. On 19.8.2011, Indian Oil Corporation issued an advertisementDin, inter alia, the Dainik Jagran, Patna inviting applications for differentKisan Seva Kendra (Retail Outlet) dealerships in respect of diesel, petrol,lubricant oils etc., at different locations. One of the retail outlets beingthe retail outlet in respect of which the writ petition being CWJ CaseNo. 2019 of 2015 was filed, was to be located on Falka Gerabari Road,Ewithin one kilometer from Giriyama Chowk, Giriyama in Katihar Districtin Bihar, and is hereinafter referred to, for convenience, as the Giriyamaretail outlet.

4. Pursuant to the said advertisement, Sanjay Kumar Jha beingthe appellant in appeal arising out of SLP(C) No. 16899-16901 of 2018,(hereinafter referred to as the appellant Sanjay Kumar Jha) and theFrespondent No.1 in appeal arising out of SLP(C) No. 16902-16904 of2018 (hereinafter referred to as the ‘Respondent Prakash ChandraChaudhary’) amongst others, applied for the dealership of the Giriyamaretail outlet.

5. The brochure published by Indian Oil Corporation indicatesGthat the eligible applicants who were individuals were to be evaluated onthe 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)

Hd. 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 panel of three candidates was prepared inwhich the appellant Sanjay Kumar Jha was placed on the first positionand the respondent Prakash Chandra Chaudhary in the second position.The appellant Sanjay Kumar Jha was awarded 90.73 marks and therespondent Prakash Chandra Choudhary was awarded 89.93 marks.

7. The Giriyama retail outlet was allotted to the first empanelledcandidate being the appellant Sunil Kumar Jha. Challenging the allotment,the respondent Prakash Chandra Chaudhary filed writ petition in theHigh Court Judicature at Patna being CWJ Case No. 2019 of 2015.

8. By an order dated 8.3.2016, the learned Single Bench of theHigh court allowed the writ petition and directed the Indian Oil Corporationto grant dealership of the Giriyama retail outlet to the respondent PrakashChandra Chaudhary.

9. The learned Single Bench proceeded on the erroneous notionthat, as per the advertisement, the only requirement for the Giriyamaretail outlet was that the retail outlet should be in Giriyama within onekilometer on 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, aswas the case of the appellant Sunil Kumar Jha, being the respondentno.6 in the writ petition. The Court observed that the report of theCircle Officer and the District Magistrate to the effect that the land ofthe respondent Prakash Chandra Chaudhary was not in Giriyama wasnot only erroneous but clearly collusive in that they were trying to favourthe appellant Sanjay Kumar Jha.

11. The learned Single Bench held that the action of Indian OilCorporation in awarding the dealership of the Giriyama Retail Outlet tothe appellant Sanjay Kumar Jha was totally against law and patentlyillegal.

12. The learned Single Bench thus, in effect, held that the writpetitioner, that is, the respondent Prakash Chandra Chaudhary hadwrongly been awarded zero in respect of the fixed and movable assetscategory. The Single Bench further held that in view of the finding as

Aaforesaid, the writ petitioner, that is respondent Prakash ChandraChaudhary had become the candidate with the highest marks, entitled tobe awarded the dealership of the Giriyama Retail Outlet.

13. It is well settled that in proceedings under Article 226 of theConstitution of India the High Court does not adjudicate, upon affidavits,Bdisputed questions of fact. In arriving at the finding that the land offeredby respondent Prakash Chandra Chaudhary was located within GiriyamaMauza of Falka Block the learned Single Bench embarked uponadjudication of hotly disputed factual issue, which the High Court,while exercising its writ jurisdiction, does not do.

14. Even otherwise, the Single Bench erred in arriving at itsCaforesaid finding, ignoring the report of the Revenue Authorities, includingthe District Magistrate, that the land of respondent Prakash ChandraChaudhary is situated at distance of 800 meters from Giriyama chowktowards Falka which is within block Falka but outside the limits of theplace Giriyama. The District Magistrate and the Additional CollectorDclearly stated that the land was beyond Nisundhra Bangali Tola, whichis the limit of Giriyama.

15. In any case, even assuming that the respondent PrakashChandra Chaudhary had erroneously been awarded zero, the order ofthe learned Single Bench does not disclose the process of reasoning forarriving at the conclusion that the respondent Prakash ChandraEChaudhary had become the candidate with the highest marks.

There was no reason to assume that the respondent Prakash ChandraChaudhary would have to be awarded marks that would make him rankfirst in the panel, when the total marks were 4 and one Md. MojiburRahman, the third empaneled candidate had been awarded 4 out of 4,Fwhile the appellant Sanjay Kumar Jha had been awarded 2.14. Therecords reveal that the land of the appellant Sanjay Kumar Jha measuring0.29 acres was within 50 meters from Giriyama chowk on FalkaGerabadri Road whereas the land of Prakash Chandra Chaudharymeasuring 0.13 acres was located at distance of 800 meters fromGiriyama chowk. The land of the appellant Sanjay Kumar Jha was largerGin area. Of course, these observations are not to be construed as anyfactual finding of this Court, that the land of respondent Prakash ChandraChaudhary was within Giriyama.

16. It is well settled that in proceedings under Article 226 of theConstitution of India, the High Court cannot sit as Court of AppealHover the findings recorded by competent administrative authority, nor

reappreciate evidence for itself to correct the error of fact, that does notgo to the root of jurisdiction. The High Court does not ordinarily interferewith the findings of fact based on evidence and substitute its own findings,which the High Court has done in this case. Even assuming that therehad been any error in the computation of marks in respect of fixed andmovable assets, the High Court could, at best, have remitted the case ofrespondent Prakash Chandra Chaudhary to the concerned authoritiesfor reconsideration.

17. Being aggrieved by the judgment and order dated 8.3.2016 ofthe learned Single Bench the Indian Oil Corporation filed an appealtherefrom, being Letters Patent Appeal No.855 of 2016, which has beendismissed by the order dated 24.4.2017 of the Division Bench underappeal in these appeals filed by the appellant, Sanjay Kumar Jha, andthe Indian Oil Corporation respectively.

18. By the order under appeal, the Division Bench dismissed theappeal, rightly observing that the allotment was for Giriyama within theradius of one kilometer from Giriyama chowk at Falka Road. The DivisionBench, however, fell in error in proceeding on the basis that the plot ofthe appellant Sanjay Kumar Jha was not situated in Giriyama Chowkand as such the learned writ court had not committed any error inrecording its finding. It is matter of record that there were two reportsin respect of the plots, both of which confirm that the plot of the appellantwas in Giriyama within 50 meters of Giriyama chowk whereas in caseof respondent Prakash Chandra Chaudhary, the Circle Officer, Falkahad by letter dated 15.4.2014 confirmed that the land offered by him felloutside the limits of Giriyama. In any case, the plot offered by respondentPrakash Chandra Chaudhary which measured 0.13 acres was smallerthan that of the appellant Sanjay Kumar Jha was 0.29 acres.

19. In exercise of discretionary power of judicial review underArticle 226 of the Constitution, the High Court might interfere withadministrative matters only if the decision is violative of fundamental orbasic principles of justice and fair play or suffers from any patent orflagrant error. It is true that the High Court might rectify, in exercise ofits power of judicial review, an error of law or even an error of fact, forsufficient reasons, if the error breaches fundamental or basic principlesof justice or fair play or if the error is patent and/or flagrant, but nototherwise. However, even in cases where the High Court finds anapparent factual error which goes to the root of the decision, theappropriate course of action would be to give the opportunity to theauthority concerned to rectify the error.

AIt is only in the rarest of cases, where the factual error is soobvious that it is rectifiable by the Court itself, that the Court might, toprevent 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 thatBeven assuming that the land of the petitioner was situated within Giriyama,there was no reason to presume that the marks awarded to the petitionerwould in the aggregate be the highest when the land of the appellantSanjay Kumar Jha was located nearer the Giriyama chowk and his areaof land was bigger.

21. It is not for the High Court, exercising jurisdiction under ArticleC226 of the Constitution of India to embark upon comparative assessmentof the suitability of different candidates for appointment of dealer of aretail outlet. The High Court, in our view, should not have decided thefactual question of whether the land of respondent Prakash ChandraChaudhary was in Giriyama in view of the reports of the concernedDAdditional Collector, District Magistrate and Circle Officer to the effectthat the land of respondent Prakash Chandra Chaudhary was in Falkablock and not within Giriyama. The High Court patently erred in brushingaside the reports of the Revenue Authorities and arriving at differentfinding.22. In any case, as observed above, the Division Bench hasEapparently dismissed the appeal filed by the appellant proceeding on thepatently erroneous basis that the land of respondent Prakash ChandraChaudhary had been found to be situated within the radius of one kilometerof Giriyama chowk whereas the land of the appellant Sanjay Kumar Jhawas situated outside the Giriyama circle, which was not even the caseFof respondent Prakash Chandra Chaudhary in the writ petition. Eventhe learned Single Bench found that the land of the appellant SanjayKumar Jha was within Giriyama. The judgment and order under appealcannot be sustained and is liable to be set aside on that ground alone.The order of the learned Single Bench is also set aside.G23. Accordingly, the appeals are allowed. The judgment and orderunder appeal as well as the judgment and order of the Single Bench areset aside and the writ petition is dismissed. The parties shall bear theirrespective costs.

HKalpana K. Tripathy