ORDER R.R.K. Trivedi, J.
1. In this petition counter and rejoinder affidavits have been exchanged between the parties and learned counsel for the parties agreed that this petition be decided finally at this stage.
2. Facts giving rise to this petition are that. Indian Oil Corporation (hereinafter referred to as the Corporation) published an advertisement on 10-5-1993 inviting applications for appointment as dealer for retail sale of petrol and diesel oil etc. at Saidpur, District Ghazipur. Petitioner Ajai Pratap Singh and respondent No. 5 Virendra Kumar along with many others made applications in response to the aforesaid advertisement. In this advertisement along with other conditions it was also provided that gross annual income of applicant and his spouse and dependent children put together should not exceed Rs. 50,000/- in the last financial year. The applications after through scrutiny were forwarded to the Oil Selection Board. The candidates were interviewed on 26-6-1994 and after this interview respondent No. 5 was recommended for being appointed as dealer in retail outlet at Saidpur and on the basis of the recommendation of respondent No. 1 letter of intent was issued in favour of respondent No. 5 on 8-7-1994.
Challending the aforesaid appointment of respondent No. 5 petitioner has approached this Court under Art. 226 of the Constitution. The challenge is on the ground that gross annual income of respondent No. 5 and his family during the relevant period, namely the financial year 1992-93 (assessment year 1993-94) was much more than Rs. 50,000/- and respondent No. 5 was not eligible for being considered for appointment. It is contended that respondent No. 5 is a big businessman of district Ghazipur. He is partner of Firm M/s Deep Chand Ram Chand dealing in the business of fertilisers in district Ghazipur and also enjoyed share profit and interest in the said Firm. Respondent No. 5 is also partner of Firm M/s Raj Kumar and Company situate at Saidpur. Respondent No. 5 filed his income tax return for the assessment year 1993-94 (financial year 1992-93) in individual capacity showing his income as Rs.51,615/- on 18-2-1994. It is further contended that respondent No. 5 had also submitted his income tax return in Hindu Undivided Family capacity for Rs. 22,418/- on 18-2-1994 for the same financial year. Snit. Praiima Devi, wife of respondent No. 5, is partner of M/s. Arvind & Company, Saidpur, Ghazipur, which is dealing in wholesale businessof cloth. She had also submitted her income tax return showing Rs. 28,600/- as annual income on 18-2-1994 for the same assessment year. It is further submitted that Vineet Kumar, son, of respondent No. 5, is living with his father and is also engaged in business and he had submitled his income taxreturn of Rs. 28,300/- on 28-2-1994 for the relevant assessment/financial year. Similarly, another son in the family Shri Shan tanu Kumar is proprietor of Firm M/s. Shanti Praushthan, Saidpur, Ghazipur andinthe financial year 1992-93 had submitled his income tax return of Rs. 28606/- on 30-8-1993. It is submitted that respondent No. 5, his wife and both sons are living together and arc engaged in their respective business. On the aforesaid facts, it is submitted that the gross annual income of respondent No. 5 was much more than Rs. 50,000/- and he couldnot be appointed dealer and the letter of appointment is liable to be quashed on this ground.
3. Respondents filed counter affidavit I\refuting the allegations made and it was said that the gross annual income of respondent No. 5 is below Rs. 50,000/-. In fact the gross income of respondent No. 5 for the financial year 1992-93 was Rs. 39615/- which has been accepted finally by the Income Tax Officer. It is further said that a wrong statement in the original return Was filed and after noticing the mistake a revised return was filed under S. 139(5) of the Income-tax Act furnishing correct information with regard to income. It has been further submitted that wife of respondent No. 5, Smt. Pratima Devi had no independent income. Whatever income has been shown in the return filed by her, is as guardian of Km. Nitu, minor sister of respondent No. 5. The return has been signed by her on behalf of the minor and the income shown therein has nothing to do with the gross income of respondent No. 5. It is stated that Smt. Pratima Devi has been appointed guardian of the minor under a will executed by the late grand-father of respondent No. 5. It has also been submitted that Firm M/s Deep Chand Ram and Raj Kumar and Company have been assessed separately as Firm, hence share income of Sri Virendra Kumar from these Firms, cannot be included in his individual income as provided under S. 10(2-A) of the Income-tax Act. It is also contended that this objection is a non-existent objection which has been raised in writ petitions filed one after another challenging the appoint-ment of respondent No. 5 as dealer. The petition is highly belated and is liable to be dismissed on ground of laches.
4. Writ Petition No. 9848 of 1995 Anil Kumar Singh v. Chairman Oil Selection Board and others-was already disposed of finally by us on 30-7-1996. The relevant and penultimate paragraph of the aforesaid order is being reproduced below :--
"Considering the nature of the controversy raised, the development of the orders passed in the previous proceedings and the averments made, we are not inclined to interfere in the matter. However, we would call upon the Corporation and/or any other authority competent to deal with the matter to dispose of the petitioner's representation (Annexure 5) by passing a reasoned order within three months from today."
5. The present writ petition came up for consideration before us on 1-8-1996. In view of our order dated 30-7-1996 passed in writ petition No. 9848 of 1995 we asked the petitioner of this petition also to place his submissions and file a representation and furnish material in support of the same before the Corporation/competent authority who will considerand deal with it and pass a reasoned order. It was also directed that a copy of the order will be placed before thisCourt on the next date of hearing. A supplementary affidavit has been filed on 16-12-1996 by the law officer Shri J. D. S. Sodhi in the Indian Oil Corporation. In this supplementary affidavit it has been staled that Executive Director of the Corporation nominated Deputy General Manager (Sales) Mr. B. Sahai to decide the pending representation of the petitioner in the light of the evidence on record. It has also been stated that notices were issued to both the panics to appear on 13-12-1996. However, the petitioner failed to appear before the Deputy General Manager. Only respondent No. 5 appeared before him. The notice sent for service on the petitioner was received by his son Rahul . Singh on 10-12-1996. The Deputy General Manager thus, after hearing respondent rejected the representation of the petitioner vide his order dated 13-12-1996, a copy whereof has been filed as Annexure 4 to the supplementary affidavit.
6. We have perused the order passed by the Deputy General Manager and we do not find any error in the order. Substantially the stand taken appears to be that oncearevised income tax return was filed with regard to the relevant assessment year/financial year and it was accepted by the Income Tax authorities and the assessment order hacf attained finality, it has to be accepted as correct by the Corporation and the Corporation cannot record an independent finding on the same question. The Deputy General Manager has based his order on the orders passed by the Income-tax authorities in respect of the return submitted by respondent No. 5, his wife and others. It cannot be disputed that the question raised in this petition is essentially a question of fact which cannot be decided in the present proceedings under Art. 226 of the Constitution as it requires appreciation of evidence adduced by the parties. In our opinion, theenquiry conducted is justified and is sufficient for taking a prima facie view that the gross annual income of respondent No. 5 in the relevant year, did not exceed Rs. 50,000/- and this is sufficient for final disposal of this petition. On record there are orders passed by different benches of this Court in other writ petitions filed by different petitioners challenging the appointment of respondent No. 5 as retail outlet dealer. Writ petition No. 35785 of 1994 Jai Shankar v. Union of India and others in which Virendra Kumar was impleaded as respondent No. 6, was disposed of by a Division Bench of this Court on 11-11-1994 by the following order :
"After hearing the learned counsel for petitioner and learned counsel for Union of India, we dispose of this petition with a direction that the petitioner may raise his grievance by filing a representation to the Oil Corporation since this Court in its writ jurisdiction cannot make fishing inquiry into the allegations involving disputed facts. The authorities of the Indian Oil Corporation shall decide the representation, if made by the petitioner in accordance with law within eight weeks from the date of receipt of a certified copy of this order."
7. Another writ petition was filed in Lucknow Bench of this Court which was registered as writ petition No. 1992 (MB) of 1995 which was disposed of firstly on 9-8-1995 by the following order :
"The petitioner's allegations about income of the opposite party No. 3 have not been accepted but have been disputed by opposite party No. 3. It is difficult to decide the income of opposite party No. 3 and more particularly when the matter is to be investigated in pursuance of the order of the Oil Selection Board. It is only appropriate that the objection raised by the petitioner be also investigated and the Oil Corporation may pass appropriate order after it receives the findings of the Investigating Agency."
8. The Oil Selection Board passed the order on 9-1-1995 disposing of the representation filed by Jai Shankar Singh, However, they made the dealership subject to the investigation report and eligibility in question. An investigation was conducted by Shri S. S. Sinha, Station Officer Azamgarh who submitted his report on 7-2-1995 to the Divisional Manager. In his report dated 7-2-1995 he also concluded that the income of Shri Virendra Kumar is less than Rs. 50,000/- and the complaints have no substance.
9. We have no reason to take a different view than already taken by the three Division Benches that the question raised in this petition is essentially a question of fact which cannot be resolved in the present proceedings. If petitioners are still not satisfied with the result of the inquiry conducted by the authorities of Indian Oil Corporation, they may seek their remedy elsewhere. However, for deciding the present writ petition, the report dated 13-12-1996 is found sufficient.
10. The writ petition is accordingly rejected. There will be no order as to costs.
11. Petition dismissed.