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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)

J U D G M E N T

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

allowing the writ petition filed by the respondent, Prakash

Chandra Chaudhary being CWJ Case No. 2019 of 2015 and

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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.