Calcutta High Court (Appellete Side)
Ranjit Kumar Rishi vs The Union Of India & Ors on 17 January, 2018
Author: Rajasekhar Mantha
Bench: Dipankar Datta, Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
BEFORE:-
THE HON'BLE JUSTICE DIPANKAR DATTA
&
THE HON'BLE JUSTICE RAJASEKHAR MANTHA
FMA No.1030 of 2016
RANJIT KUMAR RISHI
VERSUS
THE UNION OF INDIA & ORS.
For the Appellant/applicant : Mr. Sarwar Jahan
Md. Ashraful Huq, Adv.
Ms. Mousumi Mitra, Adv.
For the State : Mr. Shamim Ul Bari
For the Private Respondent : Mr. Subrata Mukhopadhyay, Adv.
Ms. Basabi Rai Choudhury
Ms. Malabika Bhowmik
For the Indian Oil Corporation Ltd. : Mr. M.S.Yadav
Hearing Concluded On : 12.12.2017
Judgment On : 17.01.2018
Rajasekhar Mantha, J.:-
1. This appeal is directed against a judgment and order dated 19th
November, 2015 passed in W.P. No.23362 (W) of 2013.
2. The facts as have emerged from the pleadings are inter alia as follows:-
The writ petitioner/appellant had applied for LPG Distributorship
advertised by the respondent No.2 Indian Oil Corporation (I.O.C.)
under the Rajiv Gandhi Gramin LPG Vitrak Scheme (RGGLV),
pursuant to an advertisement published on 29th February, 2012 in the
Anandabazar Patrika vernacular newspaper. The portion of the
advertisement relevant to the appellant is translated in English and
set out hereinbelow.
RGGLV Name of Name of Name of Category
Name of Panchayat Block District
place
Rukunpur Rukunpur Hariharpara Murshidabad Open
Pratappur
3. In the appellant's application, as stated above, he offered two plots of
land for a godown/storing place of LPG gas units. The said plots of
land are Plot Nos.11938 and 11939, LR Khatian No.7036, Mouza-
Rukunpur, J.L.No.30, under Rukunpur Gram Panchayat,
P.S.Hariharpara, District-Murshidabad in the State of West Bengal.
4. The writ petitioner succeeded in the lucky draw and emerged as the
first of the three candidates for such distributorship.
5. The residential certificate furnished by the appellant to the I.O.C. was
sent for verification and was duly verified by the Block Land and Land
Reforms Office, Hariharpara, Murshidabad vide memo No.662/BL &
LRO/HP dated 05.11.2012.
6. Further the Rukunpur Gram Panchayat also issued a certificate to the
effect that the appellant was a resident of Rukunpur Village falling
under Hariharpara Police Station in District Murshidabad and that
the Pradhan of the Gram Panchayat knows the appellant personally.
7. However, at the instance of the 5th respondent, also a contender for
the said distributorship, the BL & LRO of Hariharpara by letter dated
26th November, 2012 submitted to the (I.O.C.) that the plot nos.
offered by the appellant for housing the godown as being 11938 and
11939 under Khatian No.7036 are situated in Mouza Rukunpur but
not in village Rukunpur. He further informed that the said two plots
are in a village called Jhanjha. The said information was obtained by
the 5th respondent under the Right to Information Act, 2005.
8. By a further letter dated 12th March, 2013, the BL & LRO gave a third
version of the place of residence of the appellant stating that his office
is only concerned with a unit of measurement of land and
identification thereof called 'Mouza'. He further stated that his office
is not competent to identify a village. He further clarified that his
letter dated 5th November, 2012 should be ignored.
9. The Rukunpur Gram Panchayat however stated in a letter dated 18th
March, 2013 that the two plots of land of the writ petitioner are in an
area called Jhanjha Mathpara, and situate and lying at village and
Mouza Rukunpur under Rukunpur Gram Panchayat in the District of
Murshidabad, West Bengal.
10. On the basis of the above the respondent No.2 (I.O.C.) cancelled the
candidature of the appellant for RGGLV Scheme Distributorship for
the location at Rukunpur/Pratappur. The said letter of cancellation
after correction was finally issued on the 5th July, 2013.
11. When the writ petition was moved, the learned Single Bench noticing
the contradiction in the two communications dated 26th November,
2012 and 12th March, 2013 issued by the BL & LRO, called for a
report from the District Magistrate, Murshidabad to indicate as to
whether the appellant's plots of land fell within village Rukunpur or
not. A report was duly filed by the District Magistrate before the
learned Single Bench dated the 25th day of November, 2013 being
Memo No.457/H.C./R.M./E.N. The report inter alia indicates that the
appellant's plots of land are in Mouza Rukunpur Jurisdiction List
No.30 but in village Jhanjha and not in village Rukunpur.
12. The learned Single Judge discussed the definition of Gram, Gram
Panchayat and Mouza under the Provisions of the West Bengal
Panchayat Act, 1973 and the definition of village boundary under the
West Bengal Land and Land Reforms Manual, 1991. The learned
Single Judge also referred to Article 243G of the Constitution of India.
His Lordship thereafter concluded that the said definition would have
little or no bearing on the definition of location under the RGGLV
Scheme.
13. From an affidavit filed by the Indian Oil Corporation it transpires in no
uncertain terms that the locational requirements under the scheme
was as follows:-
"Location for setting up of Rajiv Gandhi LPG Vitrak (RGGLV) are
identified broadly based on potential of average monthly sale of 600
LPG cylinders of 14.2 kg and 1800 customers with monthly per capita
consumption of about 5 kg. The assessment of refill sale potential is
based on several factors including population, population growth rate,
economic prosperity of the location and the distance from the existing
nearest distributor.
Setting up of RGGLV at the identified location is a business proposition
and has normal business risks and does not guarantee any assured
returns or profits or any quantum of refill sale. It is extremely important
to note that proprietor of RGGLV himself operates it and if need be he
may employee one person for assistance."
14. Considering the location factor explained under the RGGLV Scheme
set out hereinabove as also the report of the District Magistrate dated
25th November, 2013(supra) the learned Single Bench came to the
conclusion that the plots of land offered by the appellant did not fall
within Rukunpur village, and the writ petition was dismissed.
15. The appellant aggrieved by the aforesaid order of dismissal is before
us by way of Letters Patent appeal.
16. A coordinate Bench of this Court considering the contradictions in the
report of the District Magistrate and the BL & LRO before the learned
Single Bench called for a fresh report vide order dated 20th July, 2017.
The office of the District Magistrate and Collector vide report dated
12th September, 2017 reiterated that the two plots being plot
nos.11938 and 11939 are under Mouza Rukunpur, J.L. No.30 and are
located in village Jhanjha, Jhanjha being one of twelve villages falling
under Rukunpur Gram Panchayat. However, the supporting
documents to the report of the District Magistrate dated 12.09.2017
did not indicate as to whether the plots fell within village Rukunpur or
village Jhanjha.
17. It also transpired to another Coordinate Bench that the Pradhan of
the Rukunpur Gram Panchayat vide letter dated 1st September, 2017
had stated that Village Jhanjha fell under a separate Mouza called
Pratappur and not Rukunpur Mouza.
18. Pointing out the aforesaid discrepancy the said Bench called for a
clarification from the office of the District Magistrate, Murshidabad in
its order dated 27th November, 2017.
19. Two separate communications dated 4th December, 2017 addressed
by the BL & LRO Hariharpara to B.D.O. Hariharpara and another
letter addressed to the A.D.M. and D.L. & LRO, Murshidabad dated 5th
December, 2017 placed by the D.M. Murshidabad, emerged before the
Court. The letter dated 5th December, 2017 stated that Mouza bearing
J.L. No.52 is that of Jhanjha but the two plots have J.L. Nos. 30 and
are not under J.L. No.52 or Pratappur Mouza being J.L. No.29.
20. A further letter dated 5th December, 2017 also as received by the D.M.
Murshidabad emerged from Rukunpur Gram Panchayat and was
countersigned by B.D.O., Hariharpara, Murshidabad. It transpires
that Mouza Rukunpur had J.L. No.30 and Mouza Pratappur had
J.L.No.29. The Rukunpur Gram Panchayat had twelve villages under
it. Five of such villages were under Mouza Pratappur having J.L.
No.29, and seven other villages including Rukunpur village under J.L.
No.30.
21. In a final report issued by the District Magistrate, Murshidabad also
called for by the order dated 27th November, 2017 the A.D.M./ DL &
LRO, Murshidabad furnished a Jurisdiction List (J.L.) of villages
under Hariharpara Police Station. From the aforesaid list, it
transpires that Rukunpur was a village having Jurisdiction List
(J.L.No.30) under Hariharpara Police Station and Jhanjha was also
another village having Jurisdiction List (J.L. No.52) under the same
Police Station. A record-of-rights was also submitted by the appellant
issued by the Government of West Bengal, office of the BL & LRO
which indicated that the two plots offered by the appellant were
situated at Block and P.S. Hariharpara and under Mouza Rukunpur.
22. In the said final report dated 6th December, 2017 the said A.D.M. and
D.L. & L.R.O. stated as follows:-
"The plots of land, i.e. plot nos.11938 and 11939, offered by the
applicant are located in the mouza-Rukunpur, J.L. No.30.
As per the jurisdiction list (J.L.) of villages under the
jurisdictional control of Hariharpara Police Station there is a separate
mouza-Jhanjha, J.L. No.52, comprising village Jhanjha. But plots of
land offered by the applicant are not located in that mouza- Jhanjha,
as last plot number of mouza - Jhanjha, J.L. No.52 is 778.
23. Sections 2(10), 2(11) and 2 (13) of the West Bengal Gram Panchayat
Act, 1973 define Gram, Gram Panchayat and Mouza as follows :-
"2.(10) "Gram" means an area referred to in section 3;
(11) "Gram Panchayat" means a body consisting of persons
registered in the electoral rolls pertaining to a Gram declared as
such under sub-section (1) of section 3;
(13) "Mouza" means an area defined, surveyed and recorded as
such in the revenue record of a district and referred to in clause
(g) of Article 243 of the Constitution of India notification for
specifying a village,"
Section 3 under Chapter 2 of the 1973 Act, the word "Gram"
has been defined as follows:-
"3.Gram.- (1) The State Government may, by notification, declare
for the purposes of this Act any mauza or part of a mauza or
group of contiguous mauzas or parts thereof to be a Gram:
Provided that any group of mauzas or parts thereof, when
they are not contiguous or have no common boundaries and are
separated by an area to which this Act does not extend or in
which the remaining sections of this Act referred to in sub-section
(3) of section 1 have not come into force, may also be declared to
be a Gram.
(2) The notification under sub-section (1) shall specify the name of
the Gram by which it shall be known and shall specify the local
limits of such Gram."
24. Part 423 of the West Bengal Land & Land Reforms Manual, 1991
defines village boundary as follows:-
"423. Village boundary.- A mouza shown as such in a map
prepared and published at the time when record-of rights of such
mouza was last published under the law shall ordinarily be adopted as
the unit of survey in any subsequent revision of such map and record-
of-rights."
25. A plain reading of the above sections indicates that the expression
"Village" in english and word "Gram" in Bengali are synonymous. It
further transpires that a village generally comprises of one Mouza.
There are instances where a village can also comprise of either a part
of a Mouza or group of contiguous Mouzas or parts thereof.
26. We are therefore only concerned with one Mouza here called Mouza
Rukunpur. The reports of the District Magistrate that have emerged
in course of this appeal therefore in no uncertain terms indicate as
follows: -
The two plots of land of the appellant being No.11938 and 11939
under Khatian No.7036 and under Mouza Rukunpur. The name of
the village where the two plots are located is 'Rukunpur'. The Gram
Panchayat within which Rukunpur village falls is comprise of twelve
villages called Rukunpur Gram Panchayat. The said two plots also fall
under J.L. No.30 i.e. Rukunpur in terms of the jurisdiction list under
Hariharpara Police Station. The said two plots cannot fall under
village Jhanjha as the last plot number in village Jhanjha having J.L.
No.52 is 778.
27. The appellant's two plots therefore undisputedly fall under Rukunpur
village as also Rukunpur Mouza, Hariharpara Block, District
Murshidabad, strictly in terms of the locational requirements specified
in the advertisement dated 29th February, 2012 referred to
hereinabove. For the sake of convenience the said requirements are
set out herein below once again:-
RGGLV Name of Name of Name of Category
Name of Panchayet Block District
place
Rukunpur Rukunpur Hariharpara Murshidabad Open
Pratappur
28. We record having heard Mr.Mukhopadhyay, learned advocate for the
5th respondent and perused the written note of argument filed by him
but express our inability to be persuaded to take a different view.
29. The impugned order is therefore liable to be set aside. However one
cannot lose sight of the fact that the learned Single Judge had
delivered His lordship's view on the basis of an incorrect report
submitted by the District Magistrate. The judgment would not have,
as such, called for interference by this Bench but for such incorrect
report. Instead of remanding the matter back to the learned Single
Judge, we chose to deal with the appellant's case ourselves, on the
prayer of the parties.
30. The impugned judgment and order dated 19.11.2015 passed in
W.P.No.23362(W) of 2013 is therefore set aside and the appeal is
allowed. There shall however be no order as to costs.
31. I.O.C. shall be at liberty to take further action in accordance with law.
. (Rajasekhar Mantha, J.)
Dipankar Datta, J.
I agree, (Dipankar Datta, J.) Later:
32. After the judgment is delivered, Mr.Mukhopadhyay, learned advocate appearing for the private respondent prays for stay of operation of this order.
33. The same is considered and declined.
(Rajasekhar Mantha, J.) (Dipankar Datta, J.)