Gauhati High Court
Moktadur Rahman vs The Union Of India And 3 Ors on 5 February, 2021
Equivalent citations: AIRONLINE 2021 GAU 28
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/13
GAHC010269782018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8904/2018
MOKTADUR RAHMAN
S/O- LATE JOMSHED ALI
VILL- GOTABARI
P.O- HAZIRHAT
P.S- SUKCHAR
DIST- SOUTH SALMARA MANKACHAR
ASSAM
PIN- 783128
VERSUS
THE UNION OF INDIA AND 3 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA
MIN OF PETROLEUM AND NATURAL GAS
SHASTRI BHAWAN
NEW DELHI- 01
2:BHARAT PETROLEUM CORPORATION LIMITED
REP. BY ITS REGIONAL MANAGER
EASTERN ZONE KOLKATA HPCL LPG
PIN- 700101
3:THE TERRITORY MANAGER (LPG)
NORTH EAST
NORTH EAST LPG TERRITORY
BHARAT PETROLEUM CORPORATION LIMITED
ANANDA NAGAR
CHRISTIAN BASTI
GUWAHATI- 05
4:THE ASSTT MANAGER LPG SALES
FVC COMMITTEE MEMBER
BPCL
ANANDA NAGAR
Page No.# 2/13
CHRISTIAN BASTI
GHY- 05
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : 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
HINDUSTAN PERTROLEUM CORPORATION LTD.
2ND FLOOR
H.D COMPLEX
BORA SERVICE
ULUBARI
Page No.# 3/13
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 (ORAL)
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 13.11.2018 issued by the respondent no. 3 i.e. the Territory Manager (LPG), North East LPG Territory, Bharat Petroleum Corporation Limited whereby the application of the petitioner offered for distributorship of Liquefied Petroleum Gas (LPG) for the subject location, Pipulbari Part-I, District - South Salmara - Mankachar, Assam was rejected and for a direction to the respondent authorities in Bharat 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 Public Sector Oil Marketing companies viz. Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited Page No.# 4/13 (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 Page No.# 5/13 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 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).
Page No.# 6/13 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 Page No.# 7/13 invited for selection of LPG distributors, was the subject location at Pipulbari Part-I, Kalapani Gaon Panchayat, Block - Mankachar, District - South Salmara - Mankachar, Assam under the respondent Bharat Petroleum Corporation Limited (BPCL). The said location fell amongst rural locations and was reserved for candidates belonging to Open category.
4.1. Considering himself eligible, the writ petitioner in response to the said advertisement dated 25.05.2018, submitted his 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 he did not have his own land as on 25.06.2018, he entered into a lease agreement with one Sri Rohij Uddin, also a resident of Village - Pipulbari Part-I, Post Office - Kalapani, P.S. Mankachar, Mankachar Revenue Circle, District - South Salmara - Mankachar, Assam vide a lease deed dated 22.06.2018. The petitioner has submitted that Sri Rohij Uddin was the owner of a plot of land admeasuring 3 Bighas 1 Katha 0 Lessa, covered by Dag no. 656 (Old)/609 (New) & Patta no. 604 (Old)/312 (New), located in Revenue Village - Pipulbari Part-I, Kalapani Gaon Panchayat, Block - Mankachar, District - South Salmara - Mankachar, Assam and by the lease agreement executed between the petitioner and Sri Rohij Uddin on 22.06.2018, the petitioner took a plot of land admeasuring 10 Lessas out of the said 3 Bighas 1 Katha 0 Lessa, belonging to Sri Rohij Uddin, on rent for a period of 20 years w.e.f. 22.06.2018. 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 BPCL authorities after processing, informed him by a communication that the petitioner was found qualified for on-line computerised draw of lots for selection of LPG distributorship at the subject location, Pipulbari Part-I. The petitioner was asked to be present personally along with his 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. 40,000/- applicable to the subject advertised location in line with the provisions of the Brochure on Unified Selection Guidelines within 7 (seven) working Page No.# 8/13 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 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 25.10.2018 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 13.11.2018 rejected the candidature of the petitioner for the subject location i.e. Pipulbari Part-I, Kalapani Gaon Panchayat, Block - Mankachar, District - South Salmara - Mankachar, Assam and it was further informed that the amount of Rs. 40,000/- deposited with the respondent BPCL stood forfeited in line with Clause no. 26 of the Brochure on Unified Selection Guidelines published with the advertisement. Aggrieved thereby, the petitioner has Page No.# 9/13 preferred this writ petition seeking the reliefs, mentioned above.
5. Heard Mr. F.U. Barbhuiya, learned counsel for the petitioner and Mr. S.S. Roy and Mr. S. Borthakur, learned counsel appearing for all the respondents.
6. It is the contention of Mr. Barbhuiya 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 lease deed which was executed on 22.06.2018 with the owner of the plot of land. Immediately thereafter, a lease deed was validly registered on 09.08.2018 in respect of the same plot of land. The copy of the said registered lease deed dated 09.08.2018 was thereafter, submitted to the respondent BPCL authorities. Despite acknowledging the receipt of the said registered lease deed dated 09.08.2018, the respondent BPCL authorities did not accept it for consideration and had, in an arbitrary and unjust manner, taken the decision to reject the candidature of the petitioner. According to him, the petitioner fulfilled all the criteria on the date of Field Verification of Credentials (FVC). He has further submitted that the decision to forfeit the amount of Rs. 40,000/- 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 he had submitted a self-attested copy of the concerned land document which he had offered for LPG distributorship the respondent authorities were well aware of the nature of land 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 Page No.# 10/13 been submitted that the decision regarding forfeiture is justified as the same had been done in terms of the provisions contained 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 his 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 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 that 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.
Page No.# 11/13 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 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. He submitted his candidature only on the basis of an unregistered lease agreement dated 22.06.2018. 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 Page No.# 12/13 Brochure on Unified Guidelines for Selection of LPG Distributors. It cannot be said that with the execution of a lease deed subsequent to the last of submission of application the petitioner had acquired the eligibility. 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 BPCL authorities with regard to rejection of candidature of the petitioner for LPG distributorship for the subject location vide the impugned letter dated 13.11.2018 is concerned.
12. The impugned letter dated 13.11.2018 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. 40,000/- deposited with the respondent BPCL stood forfeited in line with Clause 26 of the Brochure on Unified Guidelines for Selection of LPG Distributors. 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 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 is found to have been 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 unregistered lease agreement dated 22.06.2018 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 impugned letter dated 13.11.2018 wherein it had been stated that upon receipt of FVC fee and documents, FVC was carried out. After 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 bare perusal of the concerned document i.e. the lease agreement dated 22.06.2018 the respondent authorities Page No.# 13/13 could have reached the clear finding that it was an unregistered document and could have intimated the petitioner beforehand that since it was an unregistered document did not meet the criteria of eligibility. But without such an exercise and carrying out of FVC thereafter on the basis of the said unregistered document is suggestive of lack of due diligence on the part of the respondent authorities whereas the FVC itself could have been avoidable had there been a little 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 unregistered lease agreement dated 22.06.2018. Thus, in the peculiar facts and circumstances of the case in hand, the decision with regard to forfeiture of the amount of Rs. 40,000/- 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. 40,000/- to the petitioner within a period of 1 (one) from today.
13. 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