Mira Rani Sarkar vs The Union Of India And 6 Ors
2021 Latest Caselaw 391 Gua

                                                                Page No.# 1/12

GAHC010269782018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/8440/2018

         MIRA RANI SARKAR
         DAUGHTER OF ANUKUL CH. BISWAS, RESIDENT OF VILLAGE-
         FEKAMARI, P.O. FEKAMARI, P.S. SOUTH SALMARA, DISTRICT- SOUTH
         SALMARA, MANKACHAR, ASSAM, PIN- 783135.



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         REP. BY MINISTRY OF PETROLEUM AND LPG, NEW DELHI-01.

         2:THE HINDUSTAN PETROLEUM CORPORATION LTD.
          REP. BY ITS GENERAL MANAGER
          6TH FLOOR
          PETROLEUM HOUSE
          17
          JAMSHEDJI TATA ROAD
          MUMBAI- 400020

         3:THE DEPUTY GENERAL MANAGER
          LPG REGION
          6TH CHURCH LANE
          KOLKATA-01.

         4:THE OPERATION OFFICER

          HINDUSTAN PETROLEUM CORP. LTD.
          PAHARPUR LPG PLANT
          PAHARPUR
          KOLKATA
          PIN- 700088

         5:THE CHIEF REGIONAL MANAGER
                                                                                  Page No.# 2/12

             HINDUSTAN PERTROLEUM CORPORATION LTD.
             2ND FLOOR
             H.D COMPLEX
             BORA SERVICE
             ULUBARI
             GUWAHATI 781007.

            6:THE DEPUTY COMMISSIONER

             SOUTH SALMARA MANKACHAR
             ASSAM.

            7:THE CIRCLE OFFICER

             SOUTH SALMARA REVENUE CIRCLE
             SOUTH SALMARA
             DISTRICT SOUTH SALMARA
             MANKACHAR
             ASSAM. PIN- 783135

Advocate for the Petitioner   : MR. S K SINGHA

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER Date : 05-02-2021

The writ petition under Article 226 of the Constitution of India is preferred by the writ petitioner for setting aside and quashing of a letter dated 17.11.2018 issued by the respondent no. 5 i.e. the Chief Regional Manager, Hindustan Petroleum Corporation Limited whereby the application of the petitioner offered for distributorship of Liquefied Petroleum Gas (LPG) for the subject location, Borokalia Sharsho, District - South Salmara - Mankachar, Assam was rejected and for a direction to the respondent authorities in Hindustan Petroleum Corporation Limited to accept the application of the writ petitioner for the afore-mentioned subject location.

2. The genesis behind the writ petition is an advertisement published jointly by three Page No.# 3/12

Public Sector Oil Marketing companies viz. Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) for selection of distributors of Liquefied Petroleum Gas (LPG) in 93 locations in different districts of the State of Assam.

3. By the said advertisement published in the daily newspaper, "Asomiya Pratidin", in its issue dated 25.05.2018, the Public Sector Oil Companies viz. Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) invited applications on-line from interested candidates for selection of distributors of Liquefied Petroleum Gas (LPG) in 93 locations in different districts of the State of Assam. The last date of submission of on-line application was 25.06.2018.

3.1. The advertisement inter alia laid down the eligible criteria for distributorship of LPG. The applicants were further requested to go through the related Brochure carefully before filling up the applications, which was available in the website www.lpgvitarakchayan.in. The eligibility criteria were mentioned in detail in 'the Brochure on Unified Guidelines for Selection of LPG Distributors' (hereinafter referred to as 'the Brochure on Unified Selection Guidelines') for Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak. The said Unified Guidelines for Selection of LPG Distributors were made effective from June, 2017.

3.2. Clause 1 of the Brochure on Unified Selection Guidelines has provided the definitions of different terms. For the purpose of the present writ petition, Clause 1(w) is of relevance, which reads as follows :-

"1(w) 'Ownership' or 'own' for godown / showroom for Shehri 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 years 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).

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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 the applicant / member of "Family Unit" (as defined in multiple dealership / distributorship norm of eligibility criteria) / parents (nuclides Step Father / Step Mother), grandparents (both maternal and paternal), Brother / Sister (including Step Brother & Step Sister), Son / Daughter (includes Step Son / Step daughter), Son-in-law / Daughter-in-law; of the applicant or the spouse (in case of married daughter) as on the last date for submission of application as specified 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).

[Emphasis supplied in bold]

3.3. Clause 8 has provided for the eligibility criteria for the applicants. As per sub-clause (m) of Clause 8.A : Common Eligibility Criteria, an applicant should 'Own' a plot of land of capacity, minimum dimensions and in location as specified therein for construction of LPG Godown or 'Own' a ready LPG cylinder storage godown as on the last date of submission of application as specified either in the advertisement or corrigendum (if any). Furthermore, for Showroom, applicable only for Sheheri Vitrak, Rurban Vitrak and Gramin Vitrak, an applicant should 'Own' a suitable shop for Showroom of size specified therein or a plot of land for construction of Showroom of specified dimensions as on the last of submission of application as specified either in the advertisement or corrigendum (if any).

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3.4. All the applicants for the locations were required to submit their applications by registering on the web-based portal www.lpgvitarakchayan.in on-line along with the requisite application fee. The Brochure on Unified Selection Guidelines had prescribed a non- refundable application fee of Rs. 10,000/- for Open category, Rs. 5,000/- for Other Backward Classes (OBC) category and Rs. 2,500/- for Scheduled Caste (SC) / Scheduled Tribe (ST) category through on-line payment. It was mentioned that the list of eligible applicants for draw of lots would be made available on the notice board of the concerned office of the PSU Oil Marketing Company as well as in the website of the concerned PSU Oil Marketing Company. The eligible candidates were to be informed through e-mail/sms to report at specified venue, date and time for draw of lots for selection of LPG distributors.

3.5. The successful candidates would be selected from amongst the eligible candidates for LPG distributorship for the concerned location. After the draw of lots, the successful candidates would be required to submit an amount equivalent to 10% of the security deposit along with the relevant documents, listed in Clause 8 of the Brochure on Unified Selection Guidelines, to the concerned office within 7 (seven) days from the date of intimation.

3.6. After deposit of the afore-mentioned amount i.e. 10% of the security deposit and the required documents, Field Verification of Credentials (FVC) of the successful candidates would be carried out including verification of the plot of land offered for Godown and/or Showroom. If during the FVC process the land mentioned by the applicant for Godown / Showroom in his application was found not meeting the eligibility conditions / requirements as stipulated in the advertisement / Unified Selection Guidelines / application form and if the applicant was having any alternate land in his name/members of the 'Family Unit' / lease on or before the last date for submission of application as specified either in the advertisement or corrigendum (if any) the same could be considered at the time of FVC.

4. One of the 93 different locations in the State of Assam for which the applications were invited for selection of LPG distributors, was the subject location at Borokalia Sharsho under Salkata Gaon Panchayat, District - South Salmara - Mankachar, Assam under the respondent Hindustan Petroleum Corporation Limited (HPCL). The said location fell amongst rural locations and was reserved for candidates belonging to OBC category.

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4.1. Considering herself eligible, the writ petitioner in response to the said advertisement dated 25.05.2018, submitted her application on-line on or before the last date of submission i.e. 25.06.2018. It is the case of the petitioner that though she did not have her own land as on 25.06.2018, she entered into a lease agreement with one Sri Motleb Hussain Mondal, also a resident of Village - Salkata, Post Office - Borokalia Sharsho, Police Station - Fakirganj, South Salmara Revenue Circle, District - South Salmara - Mankachar, Assam vide a lease deed dated 23.06.2018. The petitioner has submitted that Sri Motleb Hussain Mondal is the owner of a plot of land admeasuring 0 Bigha 4 Kathas 9 Lessas, covered by Dag no. 2280/2430 & Patta no. 1364, located in Revenue Village - Borokalia Sharsho, South Salmara Revenue Circle, District - South Salmara - Mankachar and by the lease deed executed between the petitioner and Sri Motleb Hussain Mondal on 23.06.2018, the petitioner took the said plot of land belonging to Sri Motleb Hussain Mondal, on lease for a period of 20 years w.e.f. 01.06.2018. After executing the said lease deed, the petitioner had applied for the LPG distributorship for the subject location by mentioning the said land to be the plot of land where the proposed LPG distributorship would be located.

4.2. Upon receipt of the petitioner's application, the respondent HPCL authorities after processing, informed her by a communication dated 20.07.2018 that the petitioner was found qualified for on-line computerised draw of lots for selection of LPG distributorship at the subject location, Borokalia Sharsho. The petitioner was asked to be present personally along with her identity card for on-line computerised draw of lots to be held on 26.07.2018. Accordingly, the petitioner was present at the venue for on-line computerised draw of lots on the scheduled date, 26.07.2018. As in the said draw of lots the petitioner was declared as the successful candidate, the petitioner was informed by a communication dated 27.07.2018 to deposit an amount of Rs. 30,000/- applicable to the subject advertised location in line with the provisions of the Brochure on Unified Selection Guidelines within 7 (seven) working days. The petitioner was further asked to submit a set of documents specified in Clause 2 therein which would be verified with the original documents during the Field Verification of Credentials (FVC).

4.3. Amongst the documents asked for vide the communication dated 27.07.2018, land documents pertaining to Land / Godown / Showroom in the name applicant or member of 'Family Unit' Registered Sale Deed / Gift Deed / Lease Deed (15 years minimum) / Mutation Page No.# 7/12

and Government record (self-attested photocopy of the original) were included. It was further mentioned therein that the ownership of the plot of land offered for Godown / Showroom as defined in the Brochure on Unified Selection Guidelines should be valid as on the dates specified therein.

4.4. Thereafter, Field Verification of Credentials (FVC) was carried out by the FVC team. On verification of the document pertaining to the plot of land offered for location of the Godown and/or Showroom, the FVC team found the plot of land offered by the applicant in the application form and shown to the FVC Committee not registered as on the last date of submission of the application. The FVC team found that the document was registered at a later date, 09.08.2018 which in view of the Brochure on Unified Selection Guidelines was not acceptable.

4.5. After carrying out Field Verification of Credentials (FVC) by the FVC team the land document submitted by the petitioner was found not acceptable in terms of the guidelines laid down in the Brochure on Unified Selection Guidelines and it was intimated to the petitioner vide a communication dated 15.09.2018 to offer an alternate plot of land. The petitioner failed to submit land documents for any alternate plot of land within such stipulated period. Recording that the petitioner failed to provide any suitable alternate plot of land, the respondent BPCL authorities vide the impugned letter dated 17.11.2018 rejected the candidature of the petitioner for the subject location i.e. Borokalia Sharsho, District - South Salmara - Mankachar, Assam and it was further informed that the amount of Rs. 30,000/- deposited with the respondent BPCL stood forfeited in line with the terms and conditions of the advertisement. Aggrieved thereby, the petitioner has preferred this writ petition seeking the reliefs, mentioned above.

5. Heard Mr. S.K. Singha, learned counsel for the petitioner. Also hear Mr. S.S. Roy and Mr. S. Borthakur, learned counsel for the respondent nos. 1 - 5 and Mr. G. Pegu, learned Junior Government Advocate for the respondent nos. 6 - 7.

6. It is the contention of Mr. Singha that even though the petitioner did not submit a registered lease deed executed on or before the last date of submission of application i.e. 25.06.2018, the petitioner had submitted a notarised lease deed which was executed on Page No.# 8/12

23.06.2018 with the owner of the plot of land. According to him, the petitioner fulfilled all the criteria on the date of Field Verification of Credentials (FVC), save and except a registered lease deed. It is further submitted by Mr. Singha that though the petitioner failed to submit any alternate land meeting the eligibility criteria specified in the Brochure on Unified Selection Guidelines within the stipulated timeline as asked for by the respondent authorities vide the communication dated 15.09.2018, the petitioner had in her possession a registered gift deed in respect of another suitable plot of land meeting the criteria laid down in the advertisement but due to reasons beyond her control, the petitioner could not submit the same before the respondent authorities within stipulated timeline. It is his further submission that the decision to forfeit the amount of Rs. 30,000/- is illegal, arbitrary and unjust since there is no deliberate act of omission or commission on the part of the petitioner in submission of the land document and as she had submitted a self-attested copy of the concerned land document which she had offered for LPG distributorship the respondent authorities were well aware of the nature of land document offered by the petitioner at a date anterior to the Field Verification of Credentials (FVC) and despite such knowledge, the petitioner was called for the Field Verification of Credentials (FVC) which clearly demonstrates that there was no due application of mind on the part of the respondent authorities for which the petitioner ought not to have been penalised.

7. The said contentions have been objected to by Mr. Roy and Mr. Borthakur by relying upon the provisions contained in the Brochure on Unified Selection Guidelines and a decision of the Hon'ble Supreme Court of India in Civil Appeal Nos. 6928-6929 of 2015 [Bharat Petroleum Corporation Limited and others vs. Swapnil Singh], decided on 08.09.2015. It has been submitted that the case of the petitioner is fully covered by the decision in Swapnil Singh (supra) and therefore, this writ petition is devoid of any merit. It has further been submitted that the decision regarding forfeiture is justified as the same had been done in terms of the provisions contained in Clause 26 of the Brochure on Unified Selection Guidelines.

8. I have considered the rival submissions advanced by the learned counsel for the parties and also perused the materials on record including the documents submitted by the petitioner in support of her candidature for LPG distributorship for the subject location, reference to which have been made by the learned counsel for the parties during the course of their submissions. Also perused the decision of the Hon'ble Supreme Court of India in Swapnil Page No.# 9/12

Singh (supra).

9. It appears apposite, at this stage itself, to take note of the background facts, in brief, involved in Swapnil Singh (supra). Like in the case in hand, in Swapnil Singh (supra) also, applications for selection of regular LPG distributorships were invited in April, 2011 by BPCL. One of the eligibility criteria was that the applicant should own a plot of land of adequate size and specific descriptions provided therein, on the date of application. The applicant should have ownership title of the property or registered lease agreement for a minimum 15 years in the name of the applicant / family member as defined in multiple distributorship form of eligibility criteria. The respondent submitted an application on 13.09.2011, wherein by offering a plot of land, he mentioned the date of registration of the Sale Deed / Gift Deed / Lease Deed / Deed of Mutation as 13.09.2011. After the draw of lots, on 30.03.2012, the respondent was found successful and on 19.02.2013, Field Verification was carried out to verify whether the respondent actually was the owner of the land or a lease holder as required by the Brochure. During the process of Field Verification, it came to the knowledge of the appellant BPCL authorities that the respondent had entered into the lease agreement only on 20.12.2012 for a period of 15 years and that lease agreement was registered only on 21.12.2012. It was, thus, found out during Field Verification that the respondent did not have a registered lease deed as on the date of application i.e. 13.09.2011. Having found so, the appellant BPCL authorities cancelled the allotment of the LPG distributorship to the respondent by a letter dated 11.06.2012.

9.1. Aggrieved thereby, the respondent preferred a writ petition and ultimately, the matter reached the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India had found that the respondent had only a notarized lease agreement dated 13.09.2011 in his possession on the date of submission of his application on 13.09.2011. The registered lease deed came into existence only on 20.12.2012, which was registered on 21.12.2012. It was, therefore, observed that on the date of the application, the respondent therein was not eligible in terms of the Brochure and the application form since he only had a notarized lease deed dated 13.09.2011, instead of a registered lease deed. The Hon'ble Supreme Court took note of the fact that Brochure and the application form was absolutely clear in the sense that the applicant must be the owner of the specified area of land or must have a registered lease deed of the specified area of land on the date of application. Accordingly, it was observed that the Page No.# 10/12

respondent was not eligible on the date of application i.e. 13.09.2011 and no fault was found with the decision regarding rejection of the candidature of the respondent therein taken by the respondent BPCL authorities.

10. Reverting back to the facts of the case in hand, it is found that the Brochure on Unified Selection Guidelines had inter alia set forth in clear and specific terms that the applicant must have a registered lease deed for the plot of land offered for Godown / Showroom of LPG distributorship having 15 years of valid lease period commencing on any date from the date of advertisement up to last date of submission of application as specified in the advertisement. If the applicant was in a possession of a registered lease deed commencing on any date prior to the date of advertisement, his candidature would also be considered provided the lease was valid for a minimum of 15 years from the date of advertisement.

11. From the materials on record, it has clearly emerged that on the last date of submission of application i.e. 25.06.2018, the petitioner did not have any registered lease deed in respect of the proposed plot of land offered for Godown / Showroom of LPG distributorship for the subject location. She submitted her candidature only on the basis of a notarised lease agreement dated 23.06.2018. It is, thus, evident that the petitioner did not fulfil the criteria of eligibility in respect of the plot of land offered for Godown / Showroom of LPG distributorship in terms of the advertisement dated 25.05.2018 and the Brochure on Unified Guidelines for Selection of LPG Distributors. The observations made in Swapnil Singh (supra) applies proprio vigore with the fact situation obtaining in the present case. Thus, this Court does not find any good and sufficient reason to interfere with the decision of the respondent HPCL authorities with regard to rejection of candidature of the petitioner for LPG distributorship for the subject location vide the impugned letter dated 17.11.2018 is concerned.

12. The impugned letter dated 17.11.2018 had also mentioned that in view of rejection of the candidature of the petitioner due to non-fulfilment of eligibility criteria in respect of the proposed plot of land offered for LPG distributorship, the amount of Rs. 30,000/- deposited with the respondent HPCL stood forfeited in terms and conditions in the advertisement. Sub-clause (b) of Clause 26 has mentioned that in case the selection of the candidate is rejected after the FVC or after the issuance of LoI but before the issue of Letter of Appointment, then the amount deposited by the selected candidate before the FVC i.e. 10% of the applicable security deposit would be Page No.# 11/12

forfeited. As per Clause 26 (a), the candidature of an applicant is liable for rejection at any stage without assigning any reason if the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application the applicant is found to have suppressed or misrepresented anything or incorrectly or falsely stating something. There is no dispute to the fact that the petitioner had submitted a self-attested photocopy of the notarised lease agreement dated 23.06.2018 to the respondent authorities in deference to the directions contained in the letter dated 27.07.2018 within 7 (seven) days. The said fact is clearly evident from the communication dated 15.09.2018 wherein it was stated that upon receipt of FVC fee and documents for conducting FVC, it was detected that the land deed was not in accordance with the terms and conditions laid down. Upon submission of the documents by an applicant after being declared as the successful candidate there was also corresponding duty cast on the respondent authorities at least to examine as whether the documents submitted by such an applicant had met the criteria of eligibility in terms of their laid down Guidelines. From a perusal of the concerned document i.e. the notarised agreement dated 23.06.2018 itself the respondent authorities had reached the finding that it was an unregistered document and had intimated the petitioner beforehand that it was an document which did not meet the criteria of eligibility. But even after reaching such a finding, the FVC was carried out thereafter on 08.10.2018 on the basis of the said unregistered document which is suggestive of lack of due application of mind on the part of the respondent authorities whereas the FVC was avoidable beforehand on the basis of the scrutiny of the document in question. In such situation, an inference cannot be drawn that there was any resort to suppression / misrepresentation / incorrectness / falsity on the part of the petitioner with regard to submission of the notarised lease agreement dated 23.06.2018. Thus, in the peculiar facts and circumstances of the case in hand, the decision with regard to forfeiture of the amount of Rs. 30,000/- is found to be unjust and arbitrary and accordingly, that part of the decision in the impugned communication is set aside. The respondent authorities are directed to return the amount of Rs. 30,000/- to the petitioner within a period of 1 (one) from today.

13. As regards the submission of Mr. Singha that the petitioner is in possession of land documents, executed prior to the last date of submission of application, in respect of an alternate suitable plot of land and the same could not be submitted for reasons beyond her control, it is open for the petitioner to approach the respondent HPCL authorities in that regard and if such an approach is made, the respondent HPCL authorities shall consider the same in Page No.# 12/12

accordance with the procedure. It is, however, made clear that this Court has not observed anything on merit with regard to such claim and it is open for the respondent HPCL authorities to deal with the same as per its own merits.

14. In the light of the discussions made above, this Court finds no merit with regard to the prayer for setting aside the decision to reject the candidature of the petitioner for LPG distributorship for the subject location is concerned. Accordingly, the writ petition is disposed of with the direction made above. Interim order, if any, stands recalled. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant