Tripura High Court
Shri Tirthankar Bhattacharjee vs Indian Oil Corporation Ltd on 11 April, 2017
Equivalent citations: AIR 2017 (NOC) 709 (TRI.)
Bench: Chief Justice, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
W.A. NO.14/2015
Shri Tirthankar Bhattacharjee,
Son of Shri Arun Bhattacharjee,
Resident of Village, P.O. & P.S.- Kadamtala,
Sub-Division-Dharmanagar,
District- North Tripura, Tripura.
.... Petitioner-Appellant
-: Versus :-
1. Indian Oil Corporation Ltd.,
(Integrated Indane Area Office),
Jagannath Apartment (1st Floor),
Hospital Road, P.O.-Silchar,
District-Cachar, PIN-788005, Assam;
2. Deputy General Manager (LPG),
Indian Oil Corporation Ltd.,
East Point Tower, Bamunimaidan,
Guwahati-781021, Assam;
3. Senior Area Manager,
Indian Oil Corporation Ltd.,
Jagannath Apartment (2nd Floor),
Hospital Road, P.O.-Silchar,
District-Cachar, PIN-788005, Assam;
4. Sub-Divisional Magistrate, Dharmanagar,
P.O., P.S. & Sub-Division-Dharmanagar,
District-North Tripura, Tripura;
5. Sub-Registrar, Dharmanagar,
P.O., P.S. & Sub-Division-Dharmanagar,
District-North Tripura, Tripura;
6. Tehsildar, Kadamtala Tehsildar Kachari,
Village, P.O. & P.S.-Kadamtala,
Sub-Division-Dharmanagar,
District-North Tripura, Tripura;
7. Shri Sanjib Roy,
Son of Late Rabindra Lal Roy,
Resident of Rajbari, House No.199,
P.O., P.S. & Sub-Division-Dharmanagar,
District-North Tripura, Tripura,
Presently residing at Village, P.O. & P.S.-Kadamtala,
Sub-Division-Dharmanagar,
District-North Tripura, Tripura;
8. The State of Tripura,
Represented by the Secretary to the
Government of Tripura,
Revenue Department, New Secretariat Complex,
P.O.-Kunjaban, Agartala-799006,
P.S.-New Capital Complex,
District-West Tripura.
..... Respondents.
W.A. NO.14/ 2015 Page 1 of 15
BEFORE HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE S. TALAPATRA Counsel for the appellant : Mr. Sankar Lodh, Advocate. Counsel for the respondents : Mr. T.D. Majumder, G.A., Mr. A. Lodh, Advocate, Mr. B.N. Majumder, Advocate.
Date of hearing : 14-03-2017.
Date of judgment & order : 11-04-2017
JUDGMENT & ORDER
[T. Vaiphei, C.J.]
This writ appeal is directed against the judgment dated 29-5-2015 passed by the learned Single Judge in WP(C) No. 181 of 2014 dismissing the writ petition to cancel the allotment of Rajiv Gandhi Gramin LPG Vitrak (RGGLV) at Kadamtala, North Tripura District to the appellant.
2. The controversy arose when the respondent-Corporation ("IOC" for short) issued the Letter of Intent (LOI) for the said RGGLV in favour of the respondent No. 7 (who was also the respondent No. 7 in the writ petition) at Kadamtala. The IOC issued the advertisement on 3-12-2011 for the appointment of RGGLV at various places including Kadamtala, North Tripura District, which, inter alia, stipulated that the applicant must be a resident of Kadamtala village and the proposed land should be located at Kadamtala village. The last date for submission of the application was 3-1- 2012. The appellant and the respondent No. 7, among others, applied for the appointment. Call letter was issued to the applicants on 13-12-2012 to appear in the draw scheduled for 8-1-2013. The appellant appeared before the Selection Board and lodged his objection against the candidature of the respondent No. 7 on the ground that he was not a resident of Kadamtala village. Two other candidates also lodged their written objections to that effect. In their objections, they had contended that the respondent No. 7 fabricated the documents submitted by him with respect to his residency W.A. NO.14/ 2015 Page 2 of 15 and produced the Electoral Roll for Dharmanagar Assembly Constituency and two certificates issued by Pradhans of Saraspur Gram Panchayat and Kadamtala Gram Panchayat categorically stating therein that the respondent No. 7 was not a resident of Kadamtala Gram Panchayat. The appellant also contended the sale deed obtained by the respondent No. 7 from the Sub-Registrar, Dharmanagar, Tahshilder Kadamtala TK itself indicated therein that the respondent No. 7 was residing at Rajbari, Dharmanagar while the plot of land in question was situate at Saraspur. Without duly considering the objections of the appellant and the other two objectors, the IOC proceeded to issue the impugned LOI in favour of the respondent No. 7. Aggrieved by this, the appellant approached this Court under Article 226 of the Constitution for cancellation of the allotment. The learned Single Judge dismissed the writ petition with the following observations:
"15. Let us now critically examine as to whether the RGGLV located for Kadamtala should be at village Kadamtala itself or anywhere in the locality at Kadamtala. It is an admitted position that Kadamtala is a Block and under that Block, there is one village named "Kadamtala" and another village named "Saraspur". Column 1 of the advertisement indicates the places where RGGLV are located. As already reproduced hereinbefore, Column 3 meant for RGGLV location, Column 4 mentioned the Block, Column 5 mentioned the District and Column 6 the category of candidates. Column 3 nowhere indicated that it must be at village Kadamtala. It is only mentioned where the RGGLV has to be located. Paragraph 3(b) of the advertisement indicates that a candidate shall be a resident of the town/village where RGLLV is located. So, Paragraph 1 and Paragraph 3 should be read together and there should not be an isolated reading. A combined reading of Paragraph 1 and Paragraph 3 makes me to understand that W.A. NO.14/ 2015 Page 3 of 15 the candidate must be a resident of the village or town where RGGLV is located, i.e., of Kadamtala. It will be a very narrow interpretation if it is confined to only village Kadamtala. I think a wider interpretation should be given to the context and so, I nothing wrong in the process adopted by the IOC while selecting respondent No. 7 through lottery.
16. The IOC processed the application of respondent No. 7 based on the residential certificate issued by SDM, Dharmanagar, who is a competent authority. The residential certificate merely mentioned that respondent No. 7 is a resident of Kadamtala. After the petitioner and others filed objection dated 17-01-2013, the SDM, Dharmanagar verified the issue through R.I., Dharmanagar and R.I., Dharmanagar submitted a clear report after enquiry that respondent No. 7 is residing at Kadamtala. The SDM, Dharmanagar based on the report of R.I., Dharmanagar informed the I.O.C. authority by his letter dated 22-0-8-2013 (a part of Annexure-P/7) intimated that respondent No. 7 is a resident of Kadamtala. No doubt it is brought on record by the petitioner that respondent No. 7 was a permanent resident of Rajbari, Dharmanagar and he was a voter of Dharmanagar Constituency. Annexure-P/11 filed by the petitioner as well as Annexure-R/4 filed by the respondent No. 4 makes it clear that respondent No. 7 transferred his permanent resident from Dharmanagar to Kadamtala, but it was after the selection process of IOC.
17. There is nothing in the advertisement that a candidate shall be a permanent resident of the locality where RGGLV is located. He may be a temporary resident of that locality and SDM, Dharmangar in his certificate, which the petitioner W.A. NO.14/ 2015 Page 4 of 15 submitted along with his application mentioned clearly that respondent No. 7 had been residing at village Kadamtala for last five years. SDM, Dharmanagar is the competent authority to certify as to the resident of a person under the Sub- Division. In due process he made an enquiry and submitted report to the IOC after the objection filed by the petitioner and others that respondent No. 7 had been residing at Kadamtala. The petitioner is disputing the fact what is asserted by the respondent No. 4. So, such disputed fact cannot be decided in the writ petition. The petitioner would approach the civil Court to challenge the action of SDM, Dharmanagar or the IOC.
18. In the given facts and circumstances of the case, I am of the considered opinion that the advertisement for RGGLV has been made for Kadamtala and not for particular village Kadamtala. The certificate which has been placed on record, shows that the petitioner had been residing at Kadamtala and the land document also is of Mouja-Saraspur under Tehsil Kadamtala and so it cannot be said that respondent No. 7 has been selected violating the terms of advertisement."
3. Assailing the above findings, Mr. S. Lodh, the learned counsel for the appellant contends that the learned Single Judge has failed to appreciate the advertisement which stipulates that the applicant for RGGLV must be a resident of a town/village of the advertised RGGLV location and that the applicant/family member must have a plot of land measuring 20 X 24 meters at the RGGLV location for construction of LPG Cylinder storage Godown. He submits that the RGGLV location in question is stated to be situated at Kadamtala village within Kadamtala RD Block and that there are twenty villages within Kadamtala Block and Kadamtala village is one of such villages, but the learned Single Judge held that to restrict the location of RGGLV to Kadamtala village only would amount to narrow interpretation W.A. NO.14/ 2015 Page 5 of 15 and has in the process erroneously held that the advertisement for RGGLV had been made for Kadamtala and not for a particular village Kadamtala. He maintains that the findings of the learned Single Judge that at the time of submitting the application, the respondent No. 7 was temporarily residing at Kadamtala village and after selection , he permanently shifted to Kadamtala village, are based on no evidence and are, therefore, liable to be set aside. It is also contended by the learned counsel for the appellant that the learned Single Judge failed to consider the Certificates issued by the Pradhans of Kadamtala Gram Panchayat and Sarashpur Gram Panchayat certifying therein that the respondent No. 7 was not a resident of Kadamtala village and came to the wrong conclusion. According to the learned counsel, undue importance has been given by the learned Single Judge to the report of the Revenue Inspector stating therein that for business maintenance, the respondent No. 7 had taken house rent at the house of Animesh Debnath of West Kadamtala; this report, however, conveniently omitted to mention as to whether he is residing at Kadamtala temporarily or permanently in the rented house. He also submits that except for the residency certificate issued by the SDM, Dharmanagar, who is the not prescribed authority to issue such certificate, no other documents could be produced by the respondent No. 7 on the last date of submission of the application to show that he was a resident of Kadamtala village. Finally, he argues that the learned Single Judge has completely overlooked the glaring fact that the proposed land of the respondent No. 7 for the said godown is not situated at Kadamtala village and that the proposed land is in fact situate at Saraspur village. He, therefore, submits that the impugned judgment suffers from various infirmities and is thus not sustainable in law.
4. Undoubtedly, RGGLV can be located either in a locality of a town or in any village in a Block if the advertisement so stipulates. In the instant case, the question to be determined is whether the W.A. NO.14/ 2015 Page 6 of 15 RGGLV is to be located at any village of Kadamtala Block or Kadamtala village. There can be no dispute that there is a distinct village called Kadamtala and that there is also Kadamtala Block whereunder Kadamtala village is located as can be seen from Sl. No. 4 of Column No. 3 and 4 of the table in the advertisement. In Sl. No. 4 of Column No. 3, the location for setting up RGGLV is shown as Kadamtala whereas Column No. 4 correspondingly mentioned the name of the Block as Kadamtala Block in the district of North Tripura. The fact that the advertisement makes a distinction between a village as the location of RGGLV and a locality in a town or any village in a Block as can be seen from other locations of the RGGLV mentioned in the advertisement. For example, in Sl. No. 1 of Column No. 3, one of the RGGLVs is being located at a village called Sekerkote and not in the Block of Bishalgarh, West Tripura District. The fact that the candidate is and should be a resident of Kadamtala village and not elsewhere is confirmed by the respondent-Corporation itself when it said at paragraph 20 of its counter-affidavit that "[T]he respondent Corporation have duly conducted field verification and collected all necessary documents regarding the residence of the respondent No. 7 at Kadamtala Village and the finding of the respondent Corporation is based on the properly conducted field verification which is in conformity with the information and reports supplied by the appropriate Revenue authorities who are competent enough to give final finding regarding the residence of a person in a particular area or locality." If the respondent-Corporation decided to locate the RGGLV in a village, they unambiguously stated so in the advertisement and if they decided to locate it in a locality of a town or at the Block headquarters having the same name, they stated so without any ambiguity. Therefore, the learned Single Judge is not correct in holding that the advertisement had been made for Kadamtala and not for a particular village Kadamtala. W.A. NO.14/ 2015 Page 7 of 15
5. The next question to be determined is whether the respondent- Corporation is correct is treating the respondent No. 7 as a permanent resident of Kadamtala village. To prove a residency, a candidate is required to produce Standard Residence Certificate issued by Dy. Tehsildar/ Tehsildar/Dy. Mamladar/Mamladar certifying that he/she is a resident of (name of town/village) of such District and State for the required number of years. As for land ownership, it is necessary to produce a registered Sale Deed/Gift Deed/Mutation and Government record, etc. and submit the same on or before the last date of application. The respondent No. 7 submitted a residency certificate bearing dated 31-12(2012?) issued by the Sub-Divisional Magistrate, Dharmanagar (not by a Teshildar) wherein he certified that he was a resident of Kadamtala village for the last 15 years. In so far as land ownership is concerned, the respondent No. 7 produced the Sale Deed dated 27-11-2011 in respect of the land measuring 0.24 acre situate at T.K. Kadamtala, Mouja Saraspur, Dharmanagar. It is interesting to note that the respondent No. 7 described himself as a resident of Rajbari village under the Police Station and Sub-Division of Dharmanagar in the said Sale Deed executed on 27-11-2011. From the aforesaid Sale Deed, it cannot be said with certainty that the land in question lies within Kadamtala village, thereby reinforcing the contention of the appellant that the respondent No. 7 has no land of his own at Kadamtala village for construction of LPG Cylinder storage godown. The appellant and other eligible candidates at the time of the draw had verbally lodged objection against the candidature of the respondent No. 7 on the grounds that he is not a resident of Kadamtala village and that the proposed land is not situate within Kadamtala village, but the respondent No. 3 did not entertain the objection and told them that their objection would be checked at the time of field verification i.e. after selection in the draw. This prompted the appellant and two other candidates to lodge the complaint dated 17-1-2013 to the respondent No. 3 reiterating their objection on the same grounds. W.A. NO.14/ 2015 Page 8 of 15
6. To substantiate their allegations, the appellant enclosed the voters list of Dharmanagar (General) Assembly Constituency showing the name of the respondent No. 7 therein as a resident of Dharmanagar village, PO Rajbhari and two certificates issued by the Pradhans of Saraspur Gram Panchayat and Kadamtala Gram Panchayat. In the two certificates, both the Pradhans emphatically stated that the respondent No. 7 is not a resident of Kadamtala Gram Panchayat. As already noticed, in the said Sale Deed also, he was said to be a resident of Rajbari village and not of Kadamtala village. However, notwithstanding such documentary evidence, the respondent No. 2 vide his letter dated 6-3-2014 rejected the complaint of the appellant. A perusal of the said letter dated 6-3-2014 makes an interesting reading. The respondent No. 2 stated therein that he had requested the Sub-Registrar, Dharmanagar for confirmation regarding authenticity of the registered Sale Deed No. 1-2169 and the Sub-Registrar confirmed the genuineness of the sale deed and not the location of the land so sold. It may be recalled that the dispute is not about the genuineness of the said Sale Deed but about the location of the sold land, namely, whether the transferred land situates within Kadamatala village or not. The crucial issue was conveniently side-tracked. Thus, on the last date of submission of the application for RGGLV, the only residency certificate submitted by the respondent No. 7 to prove his residency was the residency certificate issued by the Sub-Divisional Magistate, Dharmanagar but not the one prescribed by the advertisement; such certificate is to be issued by the jurisdictional Teshildar. The land document i.e. the sale deed in question reflected the residence of the respondent No. 7 as Rajbari and not Kadamtala. Moreover, the said sale deed does not even clearly identify as to whether the land in question lies within, and forms a part of, Kadamtala village. On the contrary, the proposed land for construction of the godown for storage of the LPG cylinders is located at Saraspur village, which is a village other than Kadamtala village. It is an entirely another matter that the Teshildar, Kadamtala T.K., Dharmanagar subsequently issued W.A. NO.14/ 2015 Page 9 of 15 Standard Residency Certificate on 21-9-2013, i.e., long after the last date for submission of the application was over. By this time, several other documentary evidences also came into existence and were produced by the respondent No. 7 and other revenue authorities to show that the respondent No. 7 is a resident of Kadamtala village. That apart, the Certificate of Shifting (Annexure-P/11 annexed to the rejoinder-affidavit) dated 22-4-2014 issued by the Dharmanagar Municipal Council also shows that the respondent No. 7 was permitted to shift from Dharmanagar, Para of Tilthai Road to Kadamtala G/P Municipal Council under Kadamtala RD Block with the date of leaving as 23-4-14, which is demonstrative of the fact that he was never a resident of Kadamtala village prior to 23-4-2014. The question as to how the residency of an applicant for LPG dealership should be determined came up for consideration before the Apex Court in Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66. In that case, one of the eligibility criteria for allotment of LPG Dealership was that a candidate should be a "resident" of the district concerned (Kangra). The Apex Court, after reviewing a plethora of cases, construed the term "residence" as follows:
"11. From the aforesaid analysis it is apparent that the word "residence" is generally understood as referring to a person in connection with the place where he lives, and may be defined as one who resides in a place or one who dwells in a place for a considerable period of time as distinguished from one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of "residence".
There are two classifications of the meaning of the word "residence". First is in the form of permanent and temporary residence and the second classification is based on de facto and de jure residence. The de facto concept of residence can also be understood clearly by the meaning of the word "residence" as given in Black's Law Dictionary, W.A. NO.14/ 2015 Page 10 of 15 8th Edn. It is given that the word residence means bodily presence as an inhabitant in a given place. Thus de facto residence is also to be understood as the place where one regularly resides as different to the places where he is connected to by mere ancestral connections or political connections or connection by marriage.
12. In the present case, the necessary eligibility criterion requires the applicant to be a resident of Kangra district. The advertisement inviting the applications has not defined the same and hence it would be necessary to see the intention of the framers of the eligibility criteria to understand the true meaning or the sense for which the word "resident" is used or as to why the criterion of resident is put as an eligibility criterion for allotment of LPG dealership/distributorship. In the present case the intention of the framers appears to be to provide employment or source of earning for the residents of Kangra district in the form of LPG dealership/distributorship. The eligibility criterion requires the person to be a resident of Kangra district only in the actual sense and not in any other sense. What is required to fulfil the eligibility criterion of residence is that the person should be a de facto resident and not have a mere connection with the place on account of her husband having some personal and ancestral property in Kangra. There is no finding recorded by the Court that the husband of Respondent 1 is permanently residing at Kangra or has permanent abode in Kangra. From the finding arrived at by the High Court it can be said that her husband having ancestral property in Kangra is a visitor to that place and occasionally resides there for a few days. Respondent 1 prima facie appears to be a permanent resident of Mandi, since her name appears in the voters' list of Mandi and that she has been drawing her ration from Mandi as per the case set up by the appellants. It is further clear that the intention of providing employment and source of earning to the residents of the place would W.A. NO.14/ 2015 Page 11 of 15 be fulfilled only if the person is actually living in Kangra and not by his/her remote connection to the place. It may also be seen that another eligibility criterion is that the person should not be a partner or having any dealership or distributorship agency in any petroleum company and, therefore, the dealership/distributorship has to be allotted to the person who does not hold any other dealership/distributorship agency of any other petroleum company. This term indicates that the Corporation wants that the dealership at a particular place has to be handled by that person, which would necessarily require the personal presence of that person at the place of business. The notice of intent issued to Respondent 1 on 3-3-1988 further clarifies this requirement when it says that the dealer is to be a full-time working dealer which necessitates the permanent residence at a place for which the dealership licence is given. When the agency requires full-time working dealer it would be only possible if the person actually resides in Kangra district and not working through agent or servants engaged for the said purpose. This further indicates that the dealer is required to be a de facto resident of the place from where the dealership licence is to be issued and it is not permissible to have casual connection or temporary residence at that place."
7. The question to be determined now is whether the required eligibility of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications. In our opinion, the policy of transparency, predictability and non-arbitrariness demands that the eligibility must be examined with reference to the last date of submission of the application and not otherwise. In other words, the candidate for RGGLV must show that he is eligible and satisfies the eligibility criteria for the selection on the last date of submission of the application. He must enclose along with the application all the supporting W.A. NO.14/ 2015 Page 12 of 15 documents prescribed in the advertisement on the last date of submission of the application. Thus, he must enclose the Standard Residency Certificate issued by the prescribed authority, and the Sale Deed showing that he has the land for construction of LPG Cylinder storage godown at Kadamtala and other supporting documents on the last date for submission of the application. Similar question once confronted the Apex Court, though in the context of recruitment to a post, in Rekha Chaturvedi v. University of Rajasthan, 1993 Supp(3) SCC 168. It was held as follows:
"10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the W.A. NO.14/ 2015 Page 13 of 15 only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra1 and District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram v. M. Tripura Sundari Devi2."
8. We do not find any reason why the principles enunciated above should not be made applicable to our case here. It is because of the ambiguity in the advertisement that this unavoidable case landed in Court. Had the advertisement clearly stipulates proof of residency with the prescribed supporting documents on the last date of submission of the application, the application of the respondent No. 7, who could not produce such supporting documents on the last date of submission of the application, would have been rejected. Apparently, in order to ensure that the respondent No. 7 somehow retained the letter of intent issued to him at any cost, desperate efforts were belatedly made by the officials and the Corporation by readily accepting additional documents procured by him post facto after serious doubts were raised about his residency at Kadamtala village by making perverse conclusions. Manipulations and arbitrariness loom large in the decision-making process in the selection of the respondent No. 7 for allotment of the impugned LOI. This was how the letter of intent came to be illegally issued upon him. In our judgment, the 1 (1990) 2 SCC 669: 1990 SCC (L&S) 377: (1990) 4 SLR 235: (1990) 13 ATC 708 2 (1990) 3 SCC 655: 1990 SCC (L&S) 520: (1990) 4 SLR 237: (1990) 14 ATC 766 W.A. NO.14/ 2015 Page 14 of 15 learned Single Judge has also fallen into grave error by upholding the perverse decision of the respondent Corporation. This calls for our interference in the impugned judgment.
9. The offshoot of the foregoing discussion is that this appeal succeeds. The impugned judgment dated 29-5-2015 is hereby set aside. Consequently, the impugned letter of intent (LOI) issued upon the respondent No. 7 is quashed. The IOC is, therefore, directed to consider the case of the appellant together with the cases of other eligible candidates, if there is any, for issuance of the LOI in accordance with law. On the facts and in the circumstances of the case, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
W.A. NO.14/ 2015 Page 15 of 15