Madhumita Roy vs Tanushree Mondal & Ors
2023 Latest Caselaw 7639 Cal

Calcutta High Court (Appellete Side)

Madhumita Roy vs Tanushree Mondal & Ors on 11 December, 2023

Author: Debangsu Basak

Bench: Debangsu Basak

                    IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi
                          M.A.T. 573 of 2021

                            Madhumita Roy
                                  VS.
                        Tanushree Mondal & Ors.

For the Appellant        : Mr. Subir Sanyal
                           Mr. Sumit Roy
                           Mr. Sailen Naskar


For the Respondent No. 1: Mr. Abhratosh Mukherjee, Sr. Adv.,

Mr. Ramesh Dhara Ms. Tapati Sengupta

For the Respondent Nos. 2 to 5 : Mr. Amit Kumar Nag Mr. Partha Banerjee

Heard on : December 11, 2023

Judgment on : December 11, 2023

DEBANGSU BASAK, J.:-

1. The appeal is directed against a judgment and order dated April

21, 2021 passed by the learned Single Judge in W.P.A. 18400 of

2019.

2. By the impugned judgment and order, the learned Single Judge

allowed the writ petition and set aside the allotment of Liquefied

Petroleum Gas (LPG) Distributorship of the respondent no. 6.

3. The appellant before us is the respondent no. 6 in the writ petition.

The appellant did not appear at the hearing of the writ petition.

4. Learned advocate appearing for the appellant submits that, the

appellant participated in a selection process for distributorship.

He refers to the advertisement and the guidelines governing the

selection process. He submits that, a lease deed was presented by

the appellant for registration on September 21, 2017, with the

registration of such lease deed being completed on October 11,

2017. He points out that in the advertisement, initially the last

date for submission of the application was October 3, 2017, which

was subsequently extended till October 18, 2017.

5. Learned advocate appearing for the appellant refers to various

Clauses of the guidelines governing selection process, particularly

to Clause 26, definition at Clause 1(w) and Clause 18. He submits

that, essentially, the guidelines require a

suppression/misrepresentation/incorrect/false statement affecting

the eligibility of the candidate to be made in the application of the

candidate. He contends that in the facts of the present case, there

was no suppression, misrepresentation, incorrect or false

statement made at the behest of the appellant which affects the

eligibility of the appellant in the selection process. Consequently,

he contends that, the learned Single Judge erred in cancelling the

selection of the appellant.

6. Learned advocate appearing for the Oil Company submits that,

subsequent to the impugned judgment and order, Oil Company

held two rounds in the selection process. In the first attempt, it

identified a distributorship. The identified candidate could not

meet the eligibility criteria, and was therefore, discarded. A second

attempt was made when another candidate was identified. A Letter

of Intent was issued in favour of the candidate so identified in the

second attempt with the rider that the Letter of Intent would be

subject to the result of the pending appeal.

7. Learned Senior Advocate appearing for the respondent no. 1/writ

petitioner submits that as on date of filing of the application by the

appellant, lease deed was not registered. He contends that, the

lease deed was presented for registration on September 25, 2017

and that, the application of the appellant before the Oil Company

was made on September 24, 2017. Therefore, according to him, as

on September 24, 2017, there was no lease deed in favour of the

appellant.

8. Learned Senior Advocate appearing for the respondent no. 1 refers

to Clauses 18 and 19 of the guidelines. He submits that, the

appellant was in violation of such guidelines.

9. Learned advocate appearing for the respondent no. 1 relies upon 2019

SCC Online Cal 3797 (Biswajit Kumar Sarkar vs. Union of India & Ors.)

and on (2020) 1 CalLT 155 (HC) (Biswajit Kumar Sarkar vs. Union of

India & Ors.) in support of his contentions that, the appellant breached

the terms and conditions of the selection process and was guilty of

misrepresentation affecting his eligibility criteria.

10. On August 31, 2017, the oil company invited applications for appointment

of LPG distributorship in various locations through the State of West

Bengal. The last date of submission of the application was initially fixed

on October 3, 2017 and subsequently extended till October 18, 2017. The

Advertisement stated that all applications would be guided by the terms

of the selection process.

11. The appellant submitted an application on September 24, 2017. In such

application, she mentioned the date of the registered lease deed as

September 21, 2017.

12. In terms of the selection process, a lucky draw is required to be held

amongst eligible candidates to identify the person to whom the

distributorship would be allotted. A lucky draw was conducted on May

30, 2018 amongst the eligible candidates where the appellant succeeded.

Appellant was asked to submit all necessary documents for scrutiny

which she did. On scrutiny and field verification, oil company issued a

Letter of Intent in favour of the appellant.

13. Thereafter, the respondent no.1 challenged the selection of the appellant

on the ground that the appellant misrepresented and/or gave false

information with regard to the date of registration of the lease deed. The

respondent no.1 thereafter made a representation dated August 26, 2019

to the oil company for consideration. The representation was not

considered by the oil company according to the respondent no.1.

Thereafter, the respondent no.1 filed the writ petition in which the

impugned judgment and order was passed.

14. The learned Single Judge found that the date of registration of the lease

deed was October 11, 2017 and that in the application, the appellant stated

that the lease deed was executed on September 21, 2017. Consequently,

the learned Single Judge found that the appellant made a false and

incorrect statement. Therefore, the learned Single Judge proceeded to

cancel the selection of the appellant.

15. Furnishing of false information visits a candidate in the selection process

with consequences. Furnishing of false information is provided in Clause

26 of the guidelines on selection of LPG distributorships which is as

follows:

"26. Furnishing of False Information

a. If any statement made by the applicant in the application or in the

documents enclosed therewith or subsequently submitted in

pursuance of the application at any stage is found to have been

suppressed/misrepresented/incorrect or false affecting eligibility, then

the application/candidature is liable to be rejected without assigning

any reason.

b. In case the selection of the candidate is rejected after the FVC or after

issuance of LOI but before issue of Letter of Appointment, then the

amount deposited by the selected candidate before the FVC is

conducted i.e., 10% of the applicable security deposit will be forfeited.

c. In case the selected candidate has been appointed as a distributor and

the allotment is liable to be cancelled, then the distributorship will be

terminated along with forfeiture of security deposit remitted by the

candidate.

d. In all the above cases, the selected candidate/distributor will have no

claim whatsoever against the respective PSU Oil Marketing

Company."

16. Learned Advocates for the parties also referred to various other clauses of

such guidelines, namely, Clause 1w, 2b, 18b and 19 which are as follows:

"1w. 'Ownership' or "Own" for godown/showroom for

Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam

Kshetriya Vitrak Type of Distributorship means having:

a. Ownership title of the property Or

b. Registered lease deed having minimum 15 yrs of valid lease

period commencing on any day from the date of advertisement

up to the last date of submission of application as specified

either in the advertisement or corrigendum (if any).

Additionally, applicants having registered lease deed

commencing on any date prior to the date of advertisement will also

be considered provided the lease is valid for a minimum period of 15

years from the date of advertisement. The applicant should have

ownership as defined under the term 'Own' above in the name of

applicant/member of "Family Unit" (as defined in multiple

dealership/distributorship norm of eligibility criteria)/parents

(includes Step Father/Step Mother), grandparents (both maternal

and paternal), Brother/Sister (including Step Brother & Step Sister),

Son/Daughter (including Step Son/Step Daughter), Son-in-

law/Daughter in-law of the applicant or the spouse (in case of

married applicant) as on last date for submission of application as

specified either in the advertisement or corrigendum (if any). In case

of ownership/co-ownership by family member(s) as given above,

consent in the form of a declaration from the family member(s) will

be required.

In case the share of land in the jointly owned property by the

applicant/member of 'Family Unit' as defined in multiple

dealership/distributorship norm)/parents & grandparents (both

maternal and paternal) of the applicant or the spouse with any other

person(s) meets the requirement of land including the dimensions

required, then that land for godown/showroom should qualify for

eligibility as 'own' land subject to submission of 'No Objection

Certificate' in the form of declaration from other owner(s).

2. Basic Facilities Required For Operation of LPG

Distributorship

b. If the land offered by the candidate in the application or

alternate land offered by the candidate at the time of Field

Verification (FVC) meets all specifications as laid down in the

advertisement on the basis of which LOI has been issued, then the

LOI holder can offer an alternate/new land for construction of

godown of specified dimensions, in the advertised location, which

will be considered on the grounds of enhanced security/safety, better

title (owned instead of leased), convenient location, lower operating

cost etc. The selected candidate has to ensure that an all weather

motor able approach road (public or private road connecting to the

public road) of minimum 2.5 metre width is made available to

provide access of LPG Cylinder Truck to the offered land for LPG

Godown. In case of private road connecting to the Public Road, the

same should be either owned/registered lease or having a right of

way from the owner(s) of the land. Wherever the State Government

stipulates an approach road of wider dimensions the same should be

made available by the applicant.

18. Field Verification of Credentials (FVC)

b. During the FVC process, in case land mentioned by the

applicant for godown/showroom in his application is found not meeting

the eligibility conditions/requirements as stipulated in the

advertisement/brochure/application form and if the applicant is having

any alternate land in his name/member (s) of the family unit as per the

definition of family unit for land of the applicant with date of registration

of sale/lease on or before the last date for submission of application as

specified either in the advertisement or corrigendum (if any), the same can

be considered at the time of FVC. However, the same if considered has to

be duly verified for its suitability during the FVC. In case at the time of

FVC, it is found that the all weather motorable road providing access to

the Godown land is not available and if the candidate expresses his/her

inability to ever provide the same, the candidate can offer an alternate land

meeting the eligibility criteria. Such alternate land if considered has to be

duly verified during the FVC for its suitability for providing LPG godown

and showroom facility as mentioned herein above.

19. Letter of Intent (LOI)

If in the FVC, the information given in the application by the

applicant is found to be correct and the land offered for Godown and

Showroom are found to be suitable, final Letter of Intent (LOI) will be

issued with the approval of competent authority.

The selected candidate after receipt of LOI should fulfil the

conditions specified in the LOI within a period of four months from the

date of LOI or the time limit given by the OMC, failing which the LOI is

liable to be withdrawn along with forfeiture of the amount remitted by the

selected candidate before FVC.

If in the FVC it is found that information given in the application

is at variance with the original documents and that information affects the

eligibility of the candidate, then the LOI holder would be intimated

through email, pointing out the discrepancy/discrepancies through Email.

If it is established that false/incorrect/misrepresented information has been

given in the application, candidature of selected candidate will be

cancelled, the status of the LOI would become null and void and the

amount remitted by the selected candidate before FVC will be forfeited."

17. Clause 1(w) of the guidelines came up for consideration before the

Division Bench in Biswajit Kumar Sarkar (supra) where it was held as

follows:

"6. Since sub-clause (b) is relevant for the present purpose,

such provision may be seen. On a reading of such sub-clause

(b), particularly in the context of the expression "commencing

on any day", it implies that the lease has to commence as

specified in the sub-clause. The date of commencement,

apparently, has no nexus with the registration of the deed of

lease. On the basis of the unified guidelines, if there was any

doubt and such doubt could not be resolved by referring to any

other document, the issue would have been decided in favour of

the writ petitioner-appellant since the unified guidelines do not

make the registration of the deed mandatory prior to the

application being made. Indeed, if such is the intention of sub-

clause (b), the wording of such sub-clause should be

appropriately altered.

7. However, as is evident from the application form, the date of

registration of the lease has to be indicated at the time of the

application. It necessarily follows that if the document is

unregistered at the time of the application being made, the

relevant column has to be left blank and the date of execution

cannot be substituted in place and stead of the date of

registration for which information is sought in the relevant

column."

18. In Biswajit Kumar Sarkar (supra), the Single Bench noted that, the writ

petitioner therein participated in the selection process for appointment of

LPG Distributorship and offered a land in respect of which a lease deed

was executed and registration completed after the last date for submission

of the requisite document was over.

19. In the facts of the present case, the last date of submission of relevant

documents was on October 18, 2017 and the registration was completed

on October 11, 2017.

20. Clause 26 pertains the disqualification in the event of the applicant being

guilty of suppression, misrepresentation or giving incorrect or false

information. This suppression, misrepresentation, incorrect or false

information must affect the eligibility of the applicant. Once these twin

criteria are fulfilled then the application is liable to be rejected without

assigning any reason.

21. In the facts of the present case, the appellant before us, submitted an

application for her candidature on September 24, 2017 which said that, the

lease deed was registered on September 21, 2017.

22. The documents placed on record suggest that, the appellant placed the

lease deed concerned before the registering authority raising a query with

regard to the stamp duty payable on September 18, 2017. The Certificate

of market value was issued on September 21, 2017 by the registration

authorities. The document was presented for registration on September

25, 2017 and that the registration was completed on October 11, 2017. All

of these dates were well within the time-period of the extended date for

submission of the application.

23. Moreover, as Clause 1(w)(b) was interpreted by the Division Bench in

Biswajit Kumar Sarkar (supra), the lease deed could commence on any

day upto the last date of submission of the application and, the date of

commencement was found not to be having any nexus with the

registration of the deed lease.

24. In the facts of the present case, the lease deed registered on October 11,

2017 speaks of commencement of the lease on September 15, 2017. The

lease deed, therefore, with stands the test of Biswajit Kumar Sarkar

(supra) as laid down by the Division Bench therein.

25. We find from the records made available to Court that, the appellant was

not guilty of suppression of any fact, did not misrepresent or make a false

or incorrect statement with regard to any document to invite Clause 26 of

the guidelines. The appellant cannot be said to be ineligible on the basis

of the document disclosed before the oil company or at least on the basis

of the contention raised by the respondent no.1.

26. In such circumstances, we set aside the impugned judgment and order

and dismiss the writ petition.

27. The Letter of Intent issued in favour of the appellant is restored. Oil

company will process the application for LPG distributorship of the

appellant in accordance with law from the stage of the issuance of the

Letter of Intent.

28. MAT 573 of 2021 is disposed of accordingly without any order as to costs.

(Debangsu Basak,J.)

29. I Agree.

(Md. Shabbar Rashidi, J.)

(SD/AD)