Shib Shankar Majumdar vs Union Of India & Ors
2023 Latest Caselaw 4178 Cal

               IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURISDICTION
                            APPELLATE SIDE


Present:

The Hon'ble Justice Joymalya Bagchi

               And

The Hon'ble Justice Ajay Kumar Gupta


                                FMA 2492 of 2010

                        CAN 5 of 2015 (Old CAN 8924 of 2015)

                              Shib Shankar Majumdar
                                       -Vs-
                               Union of India & Ors.

                                       With

                                FMA 2493 of 2010


                              Shib Shankar Majumdar
                                         -Vs-
                               Sharmila Biswas & Ors.


For the Appellant         :      Mr. Shovan Ghosh, Adv.
                                 Mrs. C Ghosh, Adv.


For the Applicant/
Respondent nos.2 to 4     :      Ms. Vineeta Meharia, Adv.

Mr. Arjun Mookherjee, Adv.

Mr. Amit Meharia, Adv.

Ms. Paramita Banerjee, Adv.

Ms. Subika Paul, Adv.

Ms. Amrita Das, Adv.

For the intervenor        :     Mr. Sudeep Sanyal, Adv.
                                Mr. Sukanta Das, Adv.
                                Mr. D Basu, Adv.
                                Mr. Arun Bandyopadhyay, Adv.
                                Mr. Chandrachur Lahiri, Adv.




Heard on                :      20.03.2023, 02.05.2023, 04.05.2023,
                               12.05.2023, 07.06.2023

Judgment on             :      13.07.2023


Joymalya Bagchi, J.:-

1. In 2015 respondent nos. 2, 3, 4 (hereinafter collectively referred as

'respondents') took out an application seeking modification/clarification of

the judgment and order dated 30.09.2011.

2. After a lapse of six years, in December 2022 upon mentioning the

matter was listed before this Bench for hearing.

3. A thumbnail sketch of facts leading to the application are as follows:-

(i) In 2000, an advertisement was issued by Indian Oil

Corporation (for short 'IOC') for appointment of LPG distributor at

Agarpara. As per the policy guidelines selection was to be done by

an independent body, namely, Dealer Selection Board (for short

'DSB') which was chaired by a retired Judge of the High Court.

(ii) In 2001, merit list was prepared where respondent no. 8,

Sharmila Biswas was placed as candidate 1 and Shib Sankar

Majumdar, appellant herein, as candidate 2.

(iii) In September, 2001 Letter of Intent was issued in favour of

Sharmila Biswas. Appellant filed writ petition being WP 14175 (W)

of 2001 challenging the selection of respondent no. 8.

(iv) In 2004, DSB was dismantled and upon reconsideration

letter of Intent issued to Sharmila was withdrawn. Sharmila

challenged the withdrawal in WP 20355 (W) of 2004.

(v) Both the writ petitions were heard together and the

decision to withdraw Letter of Intent issued in favour of Sharmila

was quashed. IOC was directed to appoint Sharmila as the

distributor.

(vi) On 05.02.2008 IOC wrote letter to Sharmila restoring Letter

of Intent dated 10.09.2002.

(vii) In March, 2008 Letter of Appointment was issued in favour

of Sharmila. Appellant preferred an appeal before the Division

Bench against the judgment and order dated 10.12.2007. Vide

order dated 04.06.2008 appeal was dismissed.

(viii) Special Leave Petitions were filed and by order dated

22.10.2010 the Apex Court set aside the impugned order and

remanded the matter to the High Court for fresh consideration.

(ix) After hearing the parties by order dated 30.09.2011 the

appeal was allowed. Order of the Single Bench dated 10.12.2007

was set aside and the following directions were issued:-

"1. To set aside distributorship in favour of Sharmila.

2. To examine whether Shib Sankar satisfied residential status for being appointed as a distributor in place of Sharmila.

3. IOC to consider whether it is possible, in the event of Shib Shankar being appointed in place of Sharmila, to bifurcate the area of distributorship between Shib Shankar and Sharmila without affecting viability."

(x) Sharmila preferred Special Leave Petitions before the Apex

Court challenging the judgment of the Division Bench. By an

interim order Sharmila was permitted to carry on as a distributor

as an interim arrangement.

(xi) In 2015, during the pendency of SLPs, the present

application seeking modification/ clarification of the impugned

judgment was filed.

4. On 22.02.2016 the Special Leave Petitions were dismissed. However,

it was clarified that the application filed by IOC for modification of the

directions given in the penultimate paragraph of the impugned judgment of

the High Court (i.e. the 3rd direction) shall be dealt with by the High Court

on its own merits. High Court was requested to dispose of the applications

at the earliest. All interim arrangements were vacated.

5. Though the Hon'ble Supreme Court had directed the matter to be

heard at the earliest, no effort was taken either by IOC or by the appellant to

have the application heard out. Only in 2022 appellant mentioned the

matter before this Bench for hearing.

6. A lot had taken place in the meantime. In 2018 IOC re-advertised the

distributorship of Agarpara. Initially Letter of Intent was issued to one

Saswati Roy which subsequently came to be cancelled and fresh Letter of

Intent was issued in favour of one Hema Saha. In September, 2020 Letter of

Appointment was issued in favour of Hema Saha and the distributorship

was commissioned in the name of "M/s. Agarpara Lokenath Indane". Since

then the said Hema Saha is carrying on distributorship in the area.

7. After a lapse of more than five years appellant made a representation

to IOC calling upon them to consider his representation for implementation

of the judgment passed by this Court. As no steps were taken he instituted a

subsequent writ petition being WP 19844 (W) of 2022.

8. Coming to know of the commissioning of the distributorship in

favour of Hema Saha, this Court issued notice upon the said Hema Saha

and permitted her to intervene in the matter.

9. Ms. Meharia for the respondents submitted that the order needed to

be recalled for the following reasons:-

"(i) As per Clause 4.13 of the Policy Guidelines pertaining to selection

of distributor, there was no scope for consideration of the candidature

of the appellant as the distributorship had already being allotted to

Sharmila in 2008.

(ii) DSB had been dismantled in 2004 and IOC was not the competent

authority to consider the suitability of the appellant under the Policy

Guidelines. Hence, IOC should be permitted to proceed in the matter as

per the existing policy guidelines, that is, re-advertisement of the

distributorship."

10. Mr. Shovan Ghosh for the appellant submitted that the prayers were

neither maintainable nor of any merit. Hon'ble Supreme Court had given

leave to IOC to pursue the application only to the extent of the observations

in the penultimate paragraph of the judgment, that is, to bifurcate the

distributorship if the appellant was found successful and nothing more.

11. Learned Counsel for Hema Saha submitted the distributorship has

already been commissioned in 2020 in favour of his client. No objection was

raised on behalf of the appellant when the distributorship was allotted in

her favour. Only after creation of a vested right in favour of his client,

appellant has sought implementation of the order of this Court, that is,

consideration of his candidature as per the earlier merit list which has since

then extinguished.

12. By judgment and order dated 22.02.2016 the Apex Court while

dismissing the SLPs gave leave to IOC to pursue its application for

clarification/modification of the observations of this Court in the

penultimate paragraph of the judgment i.e. to bifurcate the dealership (in

the event the appellant is successful). Ms. Meharia argued that the said

observation is a casual one and must be understood to mean that the

application as a whole is to be considered.

13. The observation by the Apex Court is clear and gives an impression

that the leave granted to IOC was restricted to the observations in the

penultimate paragraph only.

14. Be that as it may, even on merits grounds canvassed by the

respondents in the application appear to be unfounded for the following

reasons.

15. Paragraph 4.13 of the policy guidelines extinguishes validity of a

panel only after dealership is commissioned to a party. By judgment and

order dated 22.10.2010, the Apex Court in the earlier SLPs had set aside the

order dated 04.06.2008 whereby Letter of Appointment was issued in favour

of Sharmila and remanded the matter for fresh consideration. Moreover, the

Letter of Appointment in favour of Sharmila had been issued in 2008 much

after the appellant had assailed the merit list. In this backdrop, it cannot be

said that the distributorship had already been commissioned in favour of

Sharmila prior to the appellant approaching this Court. Hence, direction for

consideration of the candidature of the appellant cannot be ignored with

reference to the aforesaid clause in the policy guidelines.

16. The other issue, namely, DSB had been dismantled is also of little

consequence. This Court while delivering its judgment was aware of such

fact and under such circumstances had directed IOC to consider the

residential status of the appellant afresh. Hence, the issue cannot be re-

agitated in the present application.

17. But subsequent developments in the matter have given rise to a

piquant situation. During the pendency of the application, IOC re-advertised

the distributorship and a third party, that is, Hema Saha was selected in

2019 and in 2020 the distributorship was commissioned in her favour.

Fresh allotment was pursuant to a public advertisement and the appellant

cannot plead ignorance to such development. He did not raise any objection

with regard to the conduct of IOC in re-advertising or commissioning the

distributorship to a third party. By failing to do so, he acquiesced to the

conduct of IOC to re-advertise and allot the distributorship in favour of

Hema Saha. Appellant strenuously argued the allotment of Hema Saha

requires to be cancelled in the event he is able to satisfy his residential

status. In support of his plea he referred to Poonam vs. State of Uttar

Pradesh and Other1. We are unable to subscribe to his view. This Court by

its judgment dated 30.09.2011 after cancelling the selection of Sharmila

Biswas had directed IOC to examine whether the appellant satisfied the

residential status for the purpose of appointment as distributor in place of

Sharmila. This direction did not create a vested right for appointment.

(2016) 2 SCC 779

Appellant had a right to be considered for allotment in the event he

established his residential status. Appellant slept over his right while IOC

proceeded to re-advertise the distributorship. Appellant neither challenged

the fresh advertisement nor the allotment and commissioning of the

distributorship in favour of Hema Saha. Appointment of Hema Saha was,

therefore, not in substitution of an earlier allotment in favour of the

appellant as held in Poonam (supra). It was an independent right which had

been created in favour of a new allottee and appellant by his conduct had

acquiesced to the same.

18. Under such circumstances, it becomes imperative for this Court to

clarify that the direction upon IOC to examine the residential status of the

appellant for the purpose of appointment as a distributor is subject to the

right created in favour of Hema Saha. The Court also clarifies that there is

no necessity to consider the bifurcation of the distributorship as directed in

the penultimate paragraph of the judgment.

19. This Court takes a dim view of the conduct of the respondents.

During pendency of application respondents caused the distributorship to

be re-advertised and allotted in favour of a third party. This has effectively

nullified the right of the appellant to be considered for distributorship. It is

true the appellant had acquiesced and permitted the creation of a third

party right without demur but this does not absolve the conduct of

respondents to circumvent the direction of the Court.

20. Hence, this Court is inclined to impose penal costs upon them.

Respondents are directed to pay a sum of Rs.10 lakhs as costs within 30

days. Half of the cost awarded shall be paid as compensation to the

appellant as his right to be considered for appointment as a distributor had

been adversely affected by the conduct of the respondents. Remainder costs

shall be deposited to the High Court Legal Services Committee.

21. With these directions, the application being CAN 5 of 2015 (Old CAN

8924 of 2015) is, accordingly, disposed of. Other applications, if any, stand

disposed of.

22. Photostat certified copy of this judgment, if applied for, shall be

made available to the parties upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                               (Joymalya Bagchi, J.)