HON BLE MR. JUSTICE A.K.GOSWAMI

Transcription

1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) W.P. (C) No of 2007 Miss Puspa Borgohain, D/o Prahlad Borgohain, An inhabitant of Namdang Gohain Gaon, P.S. :Gaurisagar, Dist: Sivasagar, Assam. -Vs- 1. The Union of India, Represented by the Ministry of Petroleum & Natural Gas, Shastri Bhawan, New Delhi The Numaligarh Refinery Ltd., New Delhi. (Head Office) 3. The Numaligarh Refinery Ltd., (A Govt. of India Undertaking) Tolstoy House, 6 th Floor, Tolstoy Marg, New Delhi (India). 4. Sri. Bijit Gogoi, S/o Sri Padma Gogoi, Resident of Vill: Mothadang, P.O. Dhuliapar, Dist:Sivasagar. Petitioner BEFORE Respondents HON BLE MR. JUSTICE A.K.GOSWAMI Advocates for the petitioner : Mr. TJ Mahanta, Mr. H Buragohain, Advs. Advocates for the Respondents : Mr. SN Sarma, Sr. Advocate, Mr. A Jahid, Mr. N Singha, Advs. Dates of hearing : , & Date of judgment :

2 JUDGMENT AND ORDER (ORAL) This writ petition under Article 226 of the Constitution of India is filed by the petitioner questioning the selection of respondent No. 4 for grant of Retail Outlet (RO) in the category of outstanding sports person, for short, OSP, in respect of location at Amguri in the district of Sivasagar. Direction is also sought for to declare the petitioner as the most suitable candidate under the category of OSP or in the category of 33% reserved for women category. Conspicuously, date of the letter purporting to indicate selection of the respondent No. 4 has been kept blank. 2. The facts, in a nutshell, as emerging from the writ petition is that the petitioner is an educated unemployed youth and a national level sports woman. She had earned many laurels and prizes in various national level competitions in the discipline of weight lifting. She had secured first place in 56kg weight class at the national bench press power lifting championship held at Mount Abu on and from 16 th to 18 th July, The said competition is recognised by the Department of Youth Affairs & Sports, Ministry of Human Resources Development, Government of India and International Power Lifting Federation and The Indian Olympic Association. 3. Numaligarh Refinery Limited, for short, NRL, had published an advertisement in various news papers including Dainik Janambhumi, Jorhat, in its 10 th February issue of 2006, inviting applications for appointment as dealers for RO in various states as indicated in the said advertisement at or in the vicinity of locations given in the advertisement. The location of Amguri in the district of Sivasagar was reserved for OSP. 4. A brochure is also published by the NRL laying down procedure for selection and details of reservation in various categories etc. and para 3.2 thereof provides that 33% of the dealerships in each category will be reserved for woman belonging to that category. Petitioner, being an OSP as per the norms, submitted an application for the location Amguri under the category of OSP. 5. The respondent No. 4, who is a body builder had also offered his candidature for the RO at Amguri. The respondent No. 4 is not eligible because body building is not a sport and the same is also not recognised by International 2

3 Olympic Association or in the national context also. It is pleaded in the writ petition that respondent No. 4 claimed that he was declared as champion in a national body building competition held at Mumbai but subsequently, the first prize was given to a Mumbaikar on the ground that he was an outsider. The respondent No. 4 had emerged as Champion of the Champions at Mr. India 2006 Federation Cup held in Mangalore on , much later than the last date of submission of application, which was The title of Mr. India bestowed on respondent No. 4 is shrouded with controversies. 6. The respondent No. 4 is an employee of Assam Board of Sports and apart from that, he is also engaged as a Coach/Instructor and therefore, he will not be in a position to personally monitor the affairs of the dealership, which is a requirement under the terms and conditions of the application. Further more, land offered by the respondent No. 4 is located barely 10 mtrs. away from a Tiniali (Tri-junction), thus not meeting the statutory norms including National Highways norms for highway ROs and therefore, no marks could be allotted to the respondent No. 4 and his application merits rejection for not fulfilling the basic requisite essentials of a suitable piece of land. The letter of intent in favour of the respondent No. 4 was not produced but it is stated that the letter dated clearly demonstrates appointment of respondent No. 4 as the dealer for the RO in question. It is further pleaded that the petitioner was selected at Sl. No. 2. Though 76 ROs had been advertised under the advertisement in question, NRL had not given reservation of 33% to the women candidates in each category. 7. NRL had filed a preliminary affidavit and an additional affidavit. In the preliminary affidavit, the respondent Nos. 2 and 3 state that the respondent No. 4 is a body builder par excellence and he had produced many certificates issued by Indian Body Building Federation, which is recognised by the Ministry of Youth Affairs and Sports. Notwithstanding that, in view of the question raised by the petitioner, NRL authorities had sought for a clarification from the Ministry of Youth Affairs and Sports on the issue as to whether body building is recognised as sports by the department, more particularly in the year 2006 and a reply was awaited and that future course would be decided after clarification was received. It is also stated that the writ petitioner had been disqualified and she would not be eligible for selection in the event of disqualification of respondent No. 4. 3

4 8. In the additional affidavit, the NRL had placed on record a letter dated issued by the Ministry of Youth Affairs and Sports clarifying that Indian Body Building Federation was recognised before A letter dated issued by the Government of India in the Ministry of Road Transport and Highways is also annexed showing grant of NOC for access to proposed RO. 9. The respondent No. 4 also filed an affidavit stating that body building has been recognised as a sport by the Ministry of Youth Affairs and Sports and enclosed the letter dated which was also enclosed by NRL in its additional affidavit. He was selected at rank No. 1 and there were no other candidates empanelled at rank No. 2 and In the affidavit-in-reply filed by the petitioner against the affidavit, stand taken in the writ petition was reiterated. The petitioner had also filed an affidavit-in-reply to the additional affidavit filed by the respondent Nos. 2 and 3. It is stated therein that certificate dated annexed by NRL merely says that the Indian Body Building Federation is recognised by the Ministry of Youth Affairs and Sports but the said certificate does not say that body building is recognised as a sport. The petitioner highlighted that the site is not in conformity with the norms laid down by the National Highways authorities, more particularly Clause 4 thereof, for allotment of ROs along the national highways. It is stated that just opposite to the site, there is an intersection, and the site is less than 300mtrs. distance from the road and therefore, there is doubt regarding sanctity of the letter dated , issued during the pendency of the writ petition. 11. Mr. TJ Mahanta, learned counsel for the petitioner submits that though in the writ petition a plea is taken that body building is not a sport, he is not pressing the point. However, it is contended by him that even though body building is a sport, the respondent No. 4 does not qualify as an OSP in terms of the advertisement. The respondent No. 4 had not qualified in the category of OSP as a national champion under recognised national championship. He submits that respondent No. 4 was selected on the basis of he being declared champion in Mr. India 2006 Federation Cup Championship on , which was beyond the date of submission of application. The respondent authorities could not have taken cognizance of title which the respondent No. 4 won in a national body building championship, held in Mumbai, as, because of some disputes, the organizers had held back the Champion of Champions award. It was decided that 4

5 the same would be offered as a special prize in the Federation Cup Body Building Championship, to be held in the month of March, Relying on the norms for location, lay-out and access to fuel stations along National Highways at page 59 of the writ petition, the learned counsel draws the attention of Clause 4 thereof and more particularly, Clause (1) (a) (i) that the proposed site of the respondent No. 4 is less than 300mtrs. from the intersection which is the minimum distance required. Mr. Mahanta further submits that it is worth noting that respondent No. 4 did not deny the allegations that his plot of land does not conform to the requirements. He places reliance on Black s Law Dictionary, 9 th Edition, for the meaning of the word intersection. 13. Mr. SN Sarma, learned Senior counsel for the respondent Nos. 2 and 3 submits that in the preliminary affidavit, it was clearly stated by the respondents that the writ petitioner was disqualified and that she will not be eligible to be considered in the event of setting aside of selection of the respondent No. 4. As the writ petitioner has not amended the writ application challenging her disqualification, this Court ought not to go into the question as to whether the selection of the respondent No. 4 is vitiated. It is submitted by him that in Clause 17 at page 43, which is part of Annexure-G, it is clearly laid down that the minimum qualifying marks for any candidate to be eligible for consideration for award of dealership would be 60% of the applicable marks in respect of open category and 50% in respect of reserved category for that specific category/location. With reference to the records produced, the learned Sr. Counsel submits that the writ petitioner secured 47.5% marks, clearly disentitling her from consideration for grant of dealership. It is also submitted by him that there is no 2 nd and 3 rd rank as is sought to be canvassed by the writ petitioner. He also submits that sites offered by the respective candidates were inspected and verified and the site of the respondent No. 4 was found to be in conformity with the guidelines. By placing reliance on Black s Law Dictionary, 6 th Edition, the learned Sr. Counsel submits that intersection primarily means two roads crossing each other though it may also sometimes mean a tri-junction. Mr. Sarma also points out that in response to a communication made by the NRL, by a letter dated issued by the Executive Engineer for Regional Office of Government of India, Ministry of Road Transport and Highways addressed to Director General (RD) and Special Secretary, Ministry of Road Transport and Highways, it was informed that the proposal in respect of the RO in question was 5

6 in order and based on the aforesaid, letter dated was issued granting NOC for access to the proposed RO. It is also submitted by him that the allegation that the respondent No. 4 does not fulfill the requirement of OSP is absolutely without any basis and the records produced by him will demonstrate that relevant certificates were considered by the authorities. 14. Mr. R Sinha, learned counsel for the respondent No. 4 submits that it is not material whether the respondent No. 4 denies the allegations of his plot of land not conforming to the norms, because it is for the NRL authorities and the Ministry of Road Transport and Highways to ascertain as to whether land offered by the respondent No. 4 is conforming to the norms. He also submits that there can be no dispute that the respondent No. 4 is a body building champion and that he had won the 1 st prize in Mumbai in a national level championship. Though not pleaded in the affidavit-in-opposition, the learned counsel submits that writ petitioner did not implead the Ministry of Road Transport and Highways, who, in view of the grievances raised by the writ petitioner, appears to be a necessary party. 15. I have heard the learned counsel for the parties and perused the materials on record as well as the record produced by Mr. Sarma. 16. It appears that in the writ petition there is duplication of annexures as Annexure-C at page 27 is again annexed as Annexure-G at page 37. Page 46 of the writ petition, which is a format for evaluation, does not refer to any of the candidates and some unintelligible allotment of marks are found scribbled there. 17. Even though almost 4 years have gone by from the date of filing of the preliminary affidavit by the respondent Nos. 2 and 3, wherein discloser was made that the petitioner failed to qualify in the selection process and she had been disqualified, the petitioner has not put to challenge the decision to disqualify her. Marks had been allotted on specified parameters and the petitioner obtained 47.5% marks which had fallen below the minimum 50% of marks required for being eligible for consideration for award of instant dealership of the RO. In view of the above, there is merit in the submission of Mr. Sarma that on this count alone the writ petition is liable to be dismissed, as in absence of a challenge, the petitioner will have no locus standi to maintain the writ application. However, as Mr. Sarma had also argued on the merits of the case, 6

7 this Court considers it appropriate to take note of the grievances made by Mr. Mahanta. 18. Clause 5 (d) of the brochure annexed as Annexure-C indicates the persons who will be eligible to be considered as OSP. They are: (i) Arjuna Awardees (ii) Winners of Medals at Olympics/Asiad/Commonwealth Games and Recognised World Champions. (iii) National Champions under the Recognised National Championships and (iv) National Adventure Awardees. 19. Body Building was also included as a sport event in the Asian Games held in the year 2002 at Busan, South Korea. That the respondent No. 4 had a national body building championship title is not in dispute. However, Annexure-D and Annexure-F, on which much reliance has been placed by Mr. Mahanta, show that after the results were declared, pandemonium broke out because of a section of spectators demanding that he should not be given the prize as he was an outsider though the respondent No. 4 was the undisputed winner. It is in these circumstances, to diffuse the situation when the respondent No. 4 was sought to be man-handled, the car meant to be given as the Champion of Champions award was not presented. It was also decided by the Federation that the same would be given as a special prize at the forth coming Federation Cup Body Building Championship. 20. The events dictated by a section of the crowd cannot nullify the result of the championship. The respondent No. 4 was granted a certificate as the holder of first place in 90 kg category. It was the Senior National Body Building Championship conducted under the auspices of Indian Body Building Federation. It is not that championship was aborted or abandoned and winner was also not declared. 21. A perusal of the record produced by Mr. Sarma goes to show that contrary to the submissions of Mr. Mahanta, the certificate of Champion of Champions held after the last date of application was not considered. Subsequent to the winning of the Title also, the same was not submitted by the respondent No. 4. Apart from many other certificates, there is a certificate issued to the respondent No. 4 certifying that he had secured first place in the 45 th Senior National Body 7

8 Building Championship in 90kg body weight category, held in Mumbai. The competition was organised by Indian Body Building Federation and the letter dated of the Government of India in the Ministry of Youth Affairs and Sports goes to show that the Federation was recognised in the year In the aforesaid background of factual matrix, I find no merit in the submission of Mr. Mahanta that his so-called winning the National Body Building Championship in Mumbai does not qualify him as an OSP in the context of award of an RO. 23. The brochure indicates that the technical/commercial suitability of the land/site offered by the applicants in response to the advertisement for any location will be ascertained by a team of Oil Company Officers before the interview for that location based on the parameters given at Clause 14(a). The advertisement also indicates that land offered must meet all statutory norms including National Highways norms for Highway ROs and that no marks shall be awarded in respect of lands not meeting the statutory norms. 24. At this stage, it will be appropriate to extract the norms for location, layout and access to fuel stations along National Highways, to the extent relevant: NORMS FOR LOCATION, LAYOUT AND ACCESS TO FUEL STATIONS ALONG NATIONAL HIGHWAYS 4. General Conditions of Siting In order to provide safe length for weaving of traffic, fuel station along National Highways shall be located at the minimum distance from an intersection (gap in the central median be treated as intersection), as given below. For single carriageway section, these minimum distances would be applicable for both sides Urban Stretches. 1. Plain and Rolling terrain (a) Urban Area with population of more than 20,000 and less than one lakh (i) Intersection with any category of roads of carriageway 300m 8

9 (ii) Intersection with roads of carriageway width of less than 3.5m 100m (b) (i) Urban Area with population of one lakh and above Intersection with any category of road (irrespective of carriageway width) 100m 2. Hilly and Mountainous terrain. (i) Intersection with any category of road (irrespective of carriageway width). 100m 25. It is to be noted that the Ministry of Road Transport and Highways had considered the proposal of RO at Amguri and found the same to be in order. No Objection Certificate for access to propose RO has also been granted by the competent authorities of Ministry of Road Transport and Highways. 26. Interim order of this Court was to the effect that the respondent authorities will not finalise the contract. The interim order did not impose any embargo upon the respondents towards taking intermediate steps. As such, the submission advanced by Mr. Mahanta that no sanctity is to be attached to the letters dated and , the same having been issued during the subsistence of an interim order passed by this Court, does not commend for acceptance. 27. Black s Law Dictionary, 6 th Edition, defines intersection as follows: Intersection- As applied to a street or highway means the space occupied by two streets at the point where they cross each other. Space common to both streets or highways, formed by continuing the curb lines. Western Union Tel. Co. v. Dickson, 27 Tenn. App. 752, 173 S.W.2d 714,718. Point of intersection of two roads is the point where their middle lines intersect. But the term may also mean the point which each of two approaching vehicles will reach at the same moment. Intersection may also apply where street or highway runs into but without crossing another; e.g. a T intersection. 9

10 According to Black s Law Dictionary, 9 th Edition, intersection means a place where two raods meet or form a junction. 28. From the above, it is seen that intersection means the space occupied by two streets at the point where they cross each other. True, it can also mean T intersection. Thus, intersection primarily connotes crossing of two roads, though it can also mean tri-junction on certain occasions. Clause 4.3 of the norms referred to above provides that gap in the central median be treated as intersection. This Court will not embark upon an analysis of what intersection means in the context of RO when competent authority has found the location of the proposed RO to be in order. 29. In view of the discussions above, I find no merit in this application and accordingly, the same is dismissed. The interim order dated shall stand vacated. No costs. nilakhi JUDGE 10