Calcutta High Court (Appellete Side)
Saheli Patra (Maity) vs Bharat Petroleum Corporation Ltd. & Ors on 4 December, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Tapash Mookherjee
MAT 1323 of 2014
With
CAN 7710 2014
Saheli Patra (Maity)
-Vs-
Bharat Petroleum Corporation Ltd. & Ors.
For the appellant : Mr. Bikash Ranjan Bhattacharya, Sr. Adv.
: Mr. Partha Sarathi Basu, Adv.
: Mr. Satyajit Talukdar, Adv.
For the Respondent No.1 : Mr. Amitava Shukla,Adv.
: Mr. Prakash Chandra Pande, Adv.
For the Respondent No.3 : Mr. S.N. Mukherjee, Sr. Adv.
: Mr. R. A. Agarwal, Adv.
: Mr. Nibedita Pal, Adv.
: Mr.Ramesh Dhara, Adv.
: Mr.A.G. Mukherjee, Adv.
Heard On : 28.11.2014,
Judgment On : 4th December, 2014 .
Jyotirmay Bhattacharya, J:
This Mandamus Appeal is directed against the judgment and/or order passed by a learned Single Judge of this Court on 27th June, 2014 in W.P. No.65(W) of 2011, whereby the writ petition filed by the appellant herein was dismissed.
Hence the instant Mandamus Appeal was filed by the writ petitioner.
Dispute involved in the writ petition relates to the appointment of a LPG distributor at Digha (U/R) in the District of East Medinipur. Both the writ petitioner and the private respondent No.3 applied for grant of LPG distributorship at Digha (U/R) in terms of the notice for appointment of LPG distributor published in 16th September, 2007. Their credentials were assessed individually by the concerned authority. The writ petitioner got 89.50% and the private respondent got 92.67%. The private respondent was, thus, selected for her appointment as LPG distributor at Digha. She was appointed as a distributor on 20th August, 2011. She is still continuing her business of distributorship. Duration of such distributorship is 5 years with an option of renewal. Long after the appointment of the private respondent as distributor of LPG gas at Digha, the writ petitioner complained against the selection of the private respondent as according to the writ petitioner, the private respondent failed to satisfy the condition contained in para 13.2 of the said notice of appointment. Para 13.2 of the said notice of appointment runs as follows:-
"Showroom as per standard layout can be constructed in a shop/land located in the area of operation (trading area) of the advertised location for LPG distributorship and should be easily accessible to general public through a suitable approach road".
It was contended by the writ petitioner that the showroom which was offered by the private respondent was not located in the area of operation (trading area) of the advertised location for LPG distributorship. This was the sum and substance of the complaint of the writ petitioner against the selection of the private respondent for her appointment as LPG distributor at Digha. To assess the substance of such contention of the writ petitioner, we have scrutinized the application submitted by the private respondent wherefrom it appears that the following land schedule was offered by the private respondent for her showroom:-
Mouza -Thikra, J.L N0.107 Plot No. Khatian No. Area 515 386 0.02 Before appointing the private respondent as distributor at Digha, the oil company made robing enquiry before various authorities, namely, District Magistrate of the concerned District, Block Land & Land Reforms Officer, Ramnagar-I, for ascertaining as to whether the land offered by the private respondent for her showroom is located within the area of operation, i.e., within Digha or not. To such query made by the oil company, the concerned authority informed the oil company that the land which was offered by the private respondent i.e., Mouza-Thikra, for showroom, is located within Digha i.e., within Digha Development Planning Area. After being confirmed that the land offered by the private respondent for showroom is located within Digha Development Planning Area, the private respondent was appointed as LPG Distributor at Digha.
The writ petitioner felt aggrieved. She started a robing enquiry from various authorities to ascertain as to whether the land offered by the private respondent for showroom, in fact, is located within the Digha Development Planning Area or not. To demonstrate that Mouza-Thikra where the private respondent has a plot of land which she offered for her showroom is not within Digha trading area, the writ petitioner heavily relied upon the information given by the Pradhan of the local Gram Panchayat to the writ petitioner's learned Advocate vide letter dated 13th January, 2012. We have examined the information which was given by the Pradhan of the concerned Gram Panchayat to the learned Advocate of the petitioner wherein the Mouzas which are included in "Digha Urban" and the Mouzas which are included in "Digha Rural" area was mentioned with reference to the map of Ramnagar Block. The following Mouzas are included in "Digha Urban" area:-
Digha Urban S.L. No Name of Mouza J.L No 1. Padima 76 2. Duttapur 77 3. Paschim Gadadharpur 78 4. Bhagibrahmapur 79 5. Champabani 80 6. Palsondapur 81 7. Ratanpur 82 8. Jatimati 83 9. Bilamria 85 The following areas are included in "Digha Rural" area:-
Digha Rural S.L. No Name of Mouza J.L No 1. Mandala 73 2. Mirjapur 74 3. Saripur 75 4. Bansbani 70 5. Dakshin Simulia 84 6. Kashipur 68 7. Paya 67 8. Medinipur 66 On consideration of the said information given by the Pradhan of the concerned Gram Panchayat, we find that the Mouza Thikra is not included either in "Digha Urban" area or in "Digha Rural" area.
Thus, we find that the complaint of the writ petitioner against the private respondent in this regard is not without any substance. However, we cannot be unmindful of the provision mentioned in paragraph 12 of the said advertisement which provides for a detailed and complete mechanism for redressal of the grievances of the complaint. Paragraph 12.1 provides that a representation/complaint of the complainant shall be entertained only if it is received by the office concerned within a month from the date of declaration of the result. Admittedly, in the instant case, no such complaint was submitted by the writ petitioner within one month form the date of declaration of the result. As such, by relying upon the said provision contained in para 2.11, we can hold that the complaint which was submitted by the writ petitioner ought not to have been entertained by the concerned authority even if it has substance, but we cannot do so as, in our view, it is impossible for the unsuccessful candidate to ascertain the declaration which was submitted by the private respondent, being the selected candidate, about the location of the land which she offered for her showroom, unless it is otherwise disclosed to the writ petitioner. There is nothing on record to show that the writ petitioner was informed about the location of the land which the private respondent offered for her showroom, to the writ petitioner within one month from the date of publication of the result. Be that as it may, when the public authority is dealing with the rights in largess, it is expected that the public authority will act fairly and without any malice. We have already indicated above that even before selecting the private respondent for her appointment as LPG distributor at Digha, the concerned authority enquired from different State Authorities for ascertaining as to whether the land which was offered by the private respondent for her showroom is situated within Digha Development Planning Area or not and it is only after receiving such information from the concerned authority in a positive way, the concerned respondent selected the respondent No.3 for grant of such distributorship in her favour and ultimately granted such distributorship in her favour.
As such we do not find any malice on the part of the concerned authority in selecting the private respondent for appointing her as LPG distributor at Digha. It is, however, argued before us that even if the correct ness of the declaration given by the private respondent about the location of the showroom could not be ascertained before appointing her as distributor at Digha but when subsequently it was discovered that the private respondent failed to satisfy the eligibility criteria so far as the location of showroom is concerned, was it not the duty of the concerned respondent to recall the appointment. We like to mention here that no relief has been claimed by the writ petitioner in this regard in the writ petition. Be that as it may, we are not unmindful of the settled principle of law which says that even in suitable cases the Court can grant the relief which a party deserves by moulding the reliefs claimed in the writ petition.
Let us now consider as to whether it is a fit case where the Writ Court is required to give such relief to the writ petitioner. In this regard, we have also examined the application submitted by the writ petitioner seeking her appointment as LPG distributor at Digha. We find that she offered showroom space situated at Mouza Khadalgobra within P.S. Digha, District Purba Midnapur.
Let us now consider the document, i.e, the Pradhan's information given to the writ petitioner's learned Advocate on 13th January, 2012 which was heavily relied upon by the writ petitioner to show that the land which was offered by the private respondent for her showroom is not situated within "Digha urban" or "Digha rural" area. The said document discloses the Mouzas which are included within "Digha urban" and "Digha rural" area. To our utter surprise, we find that the land which was offered by the writ petitioner for her showroom space at Mouza Khadalgobra is not included either in "Digha urban" or "Digha rural" area. If that be so, then we have no hesitation to hold that the writ petitioner also failed to satisfy the eligibility criteria as laid down in para 13.2 regarding location of the showroom. Thus, we find that the writ petitioner is also lacking the eligibility criteria and failed to satisfy the condition as mentioned in the said advertisement regarding location of her showroom space within Digha, and as such the relief which the writ petitioner has claimed, in our considered view, cannot be granted to the writ petitioner even by moulding her reliefs as an unsuccessful candidate who does not have even remote chance of being selected in case the appointment of the private respondent is recalled, cannot be allowed to maintain the writ petition at her instance.
Thus, we do not find any apparent illegality in the impugned order. We hold that when the private respondent has completed the major part of the duration of her appointment, the learned Trial Judge rightly dismissed the writ petition. But at the same time when we have seen that neither the writ petitioner nor the private respondent fulfilled the condition mentioned in para 13.2 regarding location of the showroom, the concerned authority should not renew the distributorship of the private respondent mechanically after the expiry of the duration of the appointment of the respondent No.3.
In our view, justice will be subserved if before renewing the appointment of the private respondent, the trading area of the LPG distributor at Digha is defined by the authority by boundaries and thereafter ascertain as to whether the showroom of the private respondent is located within the trading area or not and in the event it is found that the showroom of the private respondent is not located within the trading area then fresh advertisement should be issued for selection of suitable candidate for appointment of distributor after expiry of the duration of the appointment of the respondent No.3 for Digha (U/R). Needless to mention here that if it is found that the showroom of the private respondent is located within the trading area then the prayer for renewal of her appointment should be considered as per the agreement.
We thus, dispose of the appeal without interfering with the impugned order, with this direction upon the concerned respondents to select a suitable candidate for appointment as LPG distributor for Digha (U/R) by issuance of a fresh advertisement after expiry of the duration of the appointment of the private respondent No.3 in case the showroom of the private respondent is found to be located beyond the trading area with this rider that in case her showroom is found to be located within the trading area, her prayer for renewal should be considered as per the contract. All these exercise should be completed by the Oil Company well in advance before expiry of the appointment period of the respondent No.3 so that the pubic distribution system is not discontinued and/or affected within the trading area.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Tapash Mookherjee, J.)