Mustafa Kamal Hussain vs The State Of Assam And 7 Ors
2021 Latest Caselaw 2833 Gua

                                                                  Page No.# 1/11

GAHC010250382018




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

                        Case No. : WP(C)/7705/2018

         MUSTAFA KAMAL HUSSAIN
         VILL- ROWMARI (MAJ ROWMARI), P.O. ROWMARI BILL, P.S. DHING, DIST-
         NAGAON, PIN- 782123, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, REVENUE,
         DISPUR, GHY-6

         2:THE HINDUSTAN PETROLEUM CORPORATION LTD.
          REP. BY ITS MANAGING DIRECTOR
          HAVING ITS REGD. OFFICE AT 17
          JAMSHEDJI TATA ROAD
          MUMBAI
          PIN- 400020

         3:THE DY. GENERAL MANAGER
          HINDUSTAN PETROLEUM CORPORATION LTD.
          KOLKATA LPG REGIONAL OFFICE-6
          CHURCH LANE
          2ND FLOOR
          KOLKATA- 700001

         4:THE CHIEF REGIONAL MANAGER
          HINDUSTAN PETROLEUM CORPORATION LTD.
          KOLKATA LPG REGIONAL OFFICE-6
          CHURCH LANE
          2ND FLOOR
          KOLKATA- 700001

         5:THE CHIEF AREA MANAGER
                                                                                   Page No.# 2/11

             HINDUSTAN PETROLEUM CORPORATION LTD.
             2ND FLOOR
             HD COMPLEX
             JANAPATH LANE
             BORA SERVICE
             ULUBARI
             GHY
             ASSAM
             781007

            6:THE DY. COMMISSIONER
             KAMRUP DISTRICT
            AMINGAON
             PIN- 781031

            7:THE CIRCLE OFFICER
             DHING
             P.O. DHNG
             DIST- NAGAON
             PIN- 782123

            8:MD. ADIL KHAN
             S/O- MD. RANJAN ALI KHAN
            VILL- KATAHGURI
             P.O. TUKTUKI
             NAGAON
            ASSAM
             PIN- 78212

Advocate for the Petitioner   : MR K K MAHANTA

Advocate for the Respondent : SC, REVENUE




                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                         JUDGMENT

Date : 12-11-2021

In this writ petition preferred under Article 226 of the Constitution of India, the writ petitioner has challenged the action taken by the respondent Hindustan Petroleum Corporation Limited ['HPCL' or 'the Corporation', for short] authorities vide the impugned Page No.# 3/11

letter dated 22.09.2018 [Annexure-6 to the writ petition] in respect of Liquefied Petroleum Gas [LPG] distributorship under open category for the location at Katahguri, District - Nagaon, whereby, the candidature of the petitioner has been rejected. The petitioner has sought setting aside of the impugned letter dated 22.09.2018 and the results of the re-draw, published on 07.10.2018, wherein the respondent no. 8 had emerged as the successful candidate in the re-draw of lots for the location at Katahguri, District - Nagaon [Annexure-10 to the writ petition].

2. The relevant background facts, leading to the institution of this writ petition, may be exposited as under :-

2.1 The 3 [three] public sector oil companies viz. (i) Indian Oil Corporation Limited [IOCL];

(ii) Bharat Petroleum Corporation Limited [BPCL]; and (iii) Hindustan Petroleum Corporation Limited [HPCL] published an advertisement jointly on 12.06.2018 inviting applications for LPG distributorships in respect of 66 nos. of locations. Amongst the 66 nos. of locations, serial no. 57 was in respect of the location - Katahguri, Gaon Panchayat - Katahguri, Sub-Division - Dhing, Part Batadraba, District - Nagaon in the State of Assam. The type of LPG distributorship is Durgam Kshetriya Vitrak [DKV]. In the said advertisement, the said location has been reserved for open category.

2.2 The petitioner has stated that he had the requisite qualification and eligibility criteria to apply for LPG distributorship for the said location at Katahguri and in response to the said advertisement dated 12.06.2018, he applied on-line in terms of the advertisement vide his application bearing reference no. HPC12602115104072018. The petitioner received an e-mail on 31.07.2018 from the respondent no. 3, whereby, he was informed that he had been declared as the successful candidate in the draw of lots conducted on 30.07.2018 for selection of LPG distributorship for the location at Katahguri, District - Nagaon. By the said letter, he was asked to deposit an amount of Rs. 40,000/- in line with the provisions of the Unified Guidelines for Selection of LPG distributors [the Unified Guidelines]. The petitioner was also informed about a set of documents which he was required to be kept ready and the same would be verified during the Field Verification of Credentials [FVC]. The petitioner accordingly, deposited the amount of Rs. 40,000/-. The Field Verification of Credentials [FVC] was carried out by the concerned Committee at the site on 29.08.2018 and after such Page No.# 4/11

verification, the Committee had opined that the land offered by the petitioner in his application did not fall under the advertised location and it would stand rejected. After the FVC, the petitioner received the impugned letter dated 22.09.2018, whereby, the petitioner was intimated by the Chief Regional Manager of the respondent Corporation that upon scrutiny/field verification of the information submitted by the petitioner in his application, variance was found to the effect that the land offered by the petitioner for godown was outside the advertised location. The candidature of the petitioner was thereby rejected and it was informed that the amount of Rs. 40,000/- deposited with the respondent Corporation stood forfeited in line with the terms and conditions of the advertisement. After rejection of the candidature of the petitioner, the respondent HPCL authorities carried out a re-draw of lots amongst the remaining eligible candidates on 11.10.2018 after the publication of a notice in the newspaper about such re-draw of lots on 07.10.2018. After re-draw of lots, the results were declared and in the said re-draw of lots, the respondent no. 8 has been declared to be the successful candidate for award of LPG distributorship for the location at Katahguri. Aggrieved thereby, the petitioner has approached this court by this writ petition.

3. Heard Mr. K.M. Mahanta, learned counsel for the petitioner. Also heard Mr. P.S. Deka, learned Standing Counsel, Revenue Department for the respondent no. 1; Mr. S. Borthakur, learned counsel for the respondent nos. 2 - 5; Mr. K. Goswami, learned Additional Senior Government Advocate for the respondent nos. 6 and 7; and Mr. J.C. Borah, learned counsel for the respondent no. 8.

4. Mr. Mahanta, learned counsel for the petitioner has submitted that the location has to be within Katahguri Gaon Panchayat. The petitioner offered a plot of land covered by Dag no. 196 and Patta no. 29 at Village - Rowmari under Katahguri Gaon Panchayat and the offered plot of land had the requisite dimensions as per the advertisement and the Unified Guidelines. Referring to the definition provided for Durgam Kshetriya Vitrak [DKV] in the Unified Guidelines, he has submitted that LPG distributorships for DKV are to be set up where setting up of other types of LPG distributorships are not feasible. He has further submitted that the definitions of 'Village' and 'Location' are to be taken conjointly and the respondent HPCL authorities for the DKV type LPG distributorship, have only to consider whether the plot of land offered by a successful candidate like the petitioner, who emerged successful in the draw Page No.# 5/11

of lots, falls within the locality/village/cluster of villages under the concerned Gaon Panchayat. According to him, the plot of land offered by the petitioner fulfilled the conditions prescribed for the advertised location - Katahguri. It is his submission that in rural areas, the areas of villages are not generally big and if the offered location is in a village which is adjacent and contiguous to the other village, the viability of the DKV type distributorship is not going to be affected in any manner. He has, thus, submitted that since the two villages, Katahguri and Rowmari are adjacent and contiguous villages, the action on the part of the respondent HPCL authorities in rejecting the candidature of the petitioner is arbitrary and unjust. To buttress his submissions, Mr. Mahanta has relied on a decision of the Hon'ble Madras High Court titled as R. Vennilla vs. Indian Oil Corporation , decided on 16.10.2014 and reported in [2014] 7 MLJ 769.

5. Mr. Deka, learned Standing Counsel, Revenue Department and Mr. Goswami, learned Additional Senior Government Advocate have submitted that each revenue village has distinct, identified and demarcated boundaries. They have referred to the affidavit-in- opposition filed by the respondent no. 7 wherein it has been affirmed that Rowmari Beel and Katahguri Pam are two separate adjacent revenue villages under Dhing Revenue Circle and both fall under Katahguri Gaon Panchayat.

6. Mr. Borthakur, learned counsel for the respondent HPCL authorities has objected to the contentions advanced on behalf of the petitioner and submitted that the location has been clearly identified in the advertisement dated 12.06.2018 as Katahguri. He has submitted that as the pertinent issue has been clarified by the concerned revenue authority, i.e. the Circle Officer, Dhing Revenue Circle who is arraigned as the respondent no. 7 and the petitioner himself has admitted the said position, no response has been filed on behalf of the respondent HPCL authorities. To advance his submissions, he has relied on the averments made in the writ petition and the affidavit of the respondent no. 7. It is his further submission that before identification of the particular location, the respondent organization i.e. the HPCL duly carried out a survey and the location was thereafter selected considering the feasibility and business proposition. As the respondent no. 7 has clearly mentioned that Katahguri and Rowmari are two different adjacent revenue villages, the decisions taken during the Field Verification of Credentials [FVC] initially and thereafter, by the impugned letter dated Page No.# 6/11

22.09.2018 are based on the terms and conditions laid down in the Unified Guidelines and it does not call for any interference. The selection of respondent no. 8 in the re-draw of lots is also in accordance with the norms laid down in the Unified Guidelines, he submits. Mr. Borthakur, learned counsel for the respondent nos. 2 - 5 has also referred to the decision of the Hon'ble Supreme Court of India in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and others, reported in [2019] 14 SCC 81.

7. Mr. Borah, learned counsel appearing for the respondent no. 8 has submitted that pursuant to the advertisement dated 12.06.2018, the respondent no. 8 had also submitted his application along with the required details and requisite documents. After scrutiny of the applications, his name was also included in the list of eligible candidates. He has further submitted that his candidature was included in the inter se priority List-1 which fact is evident from Annexure-5 to the writ petition. It is his further submission that after rejection of the candidature of the petitioner on valid ground, the re-draw of lots was conducted wherein the respondent no. 8 had emerged successful. It is only due to pendency of this writ petition the respondent authorities have not proceeded to finalize the LPG distributorship for the location at Katahguri in his favour with the execution of the contract document.

8. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record. I have also gone through the provisions contained in the Unified Guidelines.

9. As has been mentioned above, the advertisement was published on 12.06.2018. The Unified Guidelines for selection of LPG distributors [the Unified Guidelines] have provided for the procedure for selection of distributors of Liquefied Petroleum Gas [LPG] for all types of locations advertised. The Unified Guidelines have been made effective from June, 2017. The LPG distributors are selected for 4 [four] types of distributorships and they are - [i] Sheheri Vitrak, [ii] Rurban Vitrak, [iii] Gramin Vitrak, and [iv] Durgam Kshetriya Vitrak [DKV]. The Durgam Kshetriya Vitrak [DKV] LPG distributorships are set up where setting up of Rurban Vitrak and Gramin Vitrak are not feasible and they are meant for Difficult and Special Areas like Hilly regions, Forests areas, Tribal inhabitant areas, sparsely populated areas, disturbed areas, islands, Left Wing Extremism [LWE] affected areas, etc. Page No.# 7/11

10. The Unified Guidelines have provided for a uniform selection procedure for all the above 4 [four] types of LPG distributors. As per Clause 2(h) of the Unified Guidelines, 'Village' means the basic unit for rural areas which is the revenue village which has definite surveyed boundaries. The revenue village may comprise several hamlets. As per Clause 2(y) of the Unified Guidelines, 'Location' means the area identified for setting up of new LPG distributor. It can be a locality / village / cluster of villages / town or city which is mentioned in the notice for appointment of LPG distributors. Clause 3 of the Unified Guidelines mentions about identification of locations. Locations for setting up of LPG distributorships are identified based on available refill sale potential, which can sustain economically viable operation of an LPG distributorship. It is the duty of the Oil Marketing Companies [OMCs] to aim at covering all the areas of the country so that every household in the country has access to LPG. The setting up of LPG distributorship at an identified locations is a business proposition that is reached by undertaking necessary feasibility study and it does not guarantee any assured returns or profits. The feasibility study for setting up of a new LPG distributorships is to be based on refill sale potential and refill sale potential is based on the number of households, per capita consumption, LPG coverage and the existing/proposed PNG connections, if any.

11. Clause 7 of the Unified Guidelines has provided for mode of selection. The selection for LPG distributorship is to be made by inviting applications through advertisement/notification under appropriate category in newspapers. The details of the locations advertised are to be made available in the websites. The applicants are required to submit their applications on- line. As per sub-clause B of Clause 7, the selection for DKV type LPG distributorships is to be done by conducting draw of lots from amongst all the eligible applicants for the location.

12. Clause 8 thereof has provided for the eligibility criteria for applicants which includes the common eligibility criteria as well as the specific eligibility criteria for different types of distributorships. For Durgam Kshetriya Vitrak [DKV] category, a candidate must own a plot of land of minimum dimensions of 15 metres x 16 metres for Godown in and within the village or cluster of villages limit as per the advertised location. A reference can be made to the location of the plot in respect of other 3 [three] types of LPG distributorships to bring out the distinctions. For Gramin Vitrak, the candidate should have a plot of land of specified dimensions for Godown within 15 KMs from the advertised location. For Sheheri Vitrak and Page No.# 8/11

Rurban Vitrak, the applicant has to own a plot of land of specified dimensions for Godown in the city or within 15 KMs of the location.

13. The Unified Guidelines in Clause 15 : Draw of Lots have also provided for preparation of 3 [three] inter se priority lists for a particular advertised location as under :

"i. Eligible applicants, residing in the concerned Gram Panchayat of the advertised location.

ii. Eligible applicants, residing in the concerned Revenue Sub-Division of the advertised location.

iii. Eligible applicants, not residing in the concerned Gram Panchayat or in the concerned Revenue Sub-Division of the advertised location."

14. In response to the advertisement dated 12.06.2018, a large number of candidates applied for the location at Katahguri. It transpires that the applications were scrutinized and thereafter, in terms of the provisions of the Unified Guidelines, the respondent HPCL authorities drew 3 [three] inter se priority lists - (i) inter se priority list 1; (ii) inter se priority list 2; and (iii) inter se priority list 3. In the inter se priority list 1, where applicants residing in the concerned Gram Panchayat of the advertised location are required to be included, 12 nos. of candidates including the petitioner and the respondent no. 8 were shortlisted. In the draw of lots held on 30.07.2018, the name of the petitioner emerged as the successful one and accordingly, the petitioner was informed by a notification dated 31.07.2018 to the effect that he had been declared as the successful candidate in the draw of lots conducted on 30.07.2018 for selection of the LPG distributorship for the location at Katahguri, District - Nagaon. The petitioner was asked to deposit Rs. 40,000/- as security deposit. The petitioner was further directed to submit attested photo copies of the documents which would be verified with the original documents at the time of FVC. Amongst the documents, the documents pertaining to land / godown / showroom in the name of applicant or member of 'family unit' like registered sale deed / gift deed / lease deed / mutation and Government record were required to be furnished.

15. As per the Unified Guidelines, it is during the FVC, the verification of the information given in the application by the applicant with the original documents is carried out. During the FVC, the land offered for godown is verified with respect to eligibility conditions and suitability Page No.# 9/11

for construction of godown. During the FVC process, in case the land offered by the applicant for godown is found not meeting the eligibility conditions / requirements as stipulated in the advertisement / brochure / application form, then the applicant may offer an alternate land meeting the eligibility and suitability criteria, as laid down in the Unified Guidelines. If in the FVC it is found that the land offered for Godown does not meet the eligibility and suitability criteria, as laid down in the advertisement / brochure / application, then such an application is to be rejected. Thereafter, a re-draw for selection is to be held to select a candidate from amongst the remaining eligible candidates.

16. As has been noted above, the candidature of the petitioner was rejected on the specific ground that the land offered by the petitioner for godown is outside the advertised location. In the writ petition, the petitioner himself has averred that the area Rowmari is a separate revenue village as per the land records but the area or location of village Rowmari is within Katahguri Gaon Panchayat and he has contended that in such situation, his application ought not to have been rejected. It has been made clear in the affidavit-in-opposition filed by the respondent no. 7 i.e. the Circle Officer, Dhing Revenue Circle, District - Nagaon that 'Rowmari Beel' and 'Katahguri Pam' are two separate adjacent revenue villages under Dhing Revenue Circle and both fall under Katahguri Gaon Panchayat. It is pertinent to mention that in the application form, the petitioner offered a plot of land, belonging to his father, located at Village - Rowmari [Maj Rowmari], Post Office - Rowmari Beel for Godwon.

17. By relying on the decision of the Hon'ble Madras High Court in R. Vennila [supra], it has been contended that therein also, the land offered by the appellant was found, by the Hon'ble Madras High Court, within the notified location based on oral and documentary evidence after dealing with the concept of group / cluster of villages. But on perusal of the said judgment, it is found that one location 'Pochampalli' was advertised as the intended location therein and the plot of land offered by the petitioner was at a village named Jambukuttapatti. The respondent IOCL authorities observed that Jambukuttapatti village was not the place for which the advertisement was issued and the LPG distributorship offered after draw was cancelled. The appellant therein had contended that the land offered for construction of the godown by her is at Pochampalli and the said land is within the Taluk of Pochampalli and though it is located at Jambukuttapatti village, the said village Page No.# 10/11

Jambukuttapatti is one of the hamlets of Pochampalli. The Hon'ble Madras High Court after considering all the facts and circumstances and the relevant materials found that there was no ambiguity that the land offered by the appellant though contained the name as Jambukuttapatti but Jambukuttapatti is only one of the hamlets of Pochampalli, the advertised location and the writ appeal was allowed. The said decision of the Hon'ble Madras High Court is found to be of no assistance to the case of the petitioner because the question involved herein is that the advertised location is Katahguri and the plot of land offered by the petitioner falls within the boundaries of another revenue village named Rowmari. As per the definition of the Unified Guidelines itself, the village means the basic unit for rural areas which is the revenue village which has definite surveyed boundaries. The village - Rowmari is a separate revenue village and not a hamlet of the revenue village - Katahguri. In such view of the matter, the contention of the petitioner that the plot of land which he had offered, being located at revenue village - Rowmari with revenue village - Rowmari being adjacent to the revenue village - Katahguri, the identified location should be considered to be same, is found not acceptable. It is the prerogative of the respondent authorities to identify a location with definite certainty after carrying out the feasibility study and business proposition relatable for setting up such DKV type LPG distributorship.

18. In Caretel Infotech Limited [supra], the Hon'ble Supreme Court after surveying a number of previous decisions, has noted that interference in a tender process is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting responsibly and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision-making process would not suffice. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The Constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not Page No.# 11/11

acceptable to the Constitutional Courts but that by itself is not a reason for interfering with the interpretation given.

19. It is a settled proposition that the authority which has issued the advertisement inviting applications for a particular job has the right to enforce the terms and conditions laid down for it rigidly. A participant has an enforceable right to the limited extent that in the matter of evaluation, his application be considered in a fair, equal, transparent and non-discriminatory manner. Where a decision is found to be taken manifestly in consonance with the norms and criteria set down by the authority inviting applications, such a process shall not ordinarily be interdicted with. Reverting back to the facts of the case in hand, the respondent HPCL authorities are found to have adhered to the norms and criteria laid down in the advertisement and the Unified Guidelines in proceeding with the selection process of LPG distributorship under the DKV category for the location - Katahguri and the petitioner has not been able to show any arbitrariness and discriminatory treatment in holding that the offered plot of land at revenue village - Rowmari is located in a different village from revenue village

- Katahguri i.e. the advertised location, with revenue village - Rowmari not being a hamlet of the revenue village - Katahguri. The procedure followed by the respondent HPCL authorities after rejection of the candidature of the petitioner for re-draw of lots and selection of the successful candidate is also found to be as per the procedure laid down in the Unified Guidelines. In the case in hand, in considering the application of the petitioner for DKV type LPG, the respondent HPCL authorities have not been found deviated from the procedure laid down in the Unified Guidelines.

20. In the light of the above discussion, this writ petition is found devoid any of merit and accordingly, the same is dismissed. The interim order dated 12.11.2018 stands recalled. The respondent HPCL authorities are at liberty to proceed with the process of selection for DKV type LPG distributorship for the advertised location at Katahguri, District - Nagaon as per the procedure laid down in the Unified Guidelines. No cost.

JUDGE

Comparing Assistant