Calcutta High Court (Appellete Side)
Chhanda Koley vs Bharat Petroleum Corporation Ltd. & Ors on 13 September, 2018
Author: Shampa Sarkar
Bench: Dipankar Datta, Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Appellate Side)
Present:
The Hon'ble Justice Dipankar Datta
And
The Hon'ble Justice Shampa Sarkar
C.A.N. No.809 of 2018
in
M.A.T. No. 127 of 2018
Chhanda Koley
-Versus-
Bharat Petroleum Corporation Ltd. & Ors.
For the applicant/appellant : Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das.
For the BPCL/Respondent nos. 1 to 8 : Mr. Amitabha Shukla,
Mr. P.C. Pandey,
Ms. Riya Sinha.
For the respondent no. 9 : Mr. Bikash Ranjan Bhattacharya,
Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Mr. Santanu Maji,
Ms. Snigdha Saha,
Ms. Payel Shome.
Heard on : 20/06/2018, 27/06/2018
Judgment on: September 13, 2018
Shampa Sarkar, J. :
Aggrieved by the judgment and order dated January 18, 2018 passed in W.P. No. 11124 (W) of 2017, the writ petitioner (hereafter the appellant) has presented this intra-court appeal. Instead of hearing the stay application separately, we decided to hear out the appeal by consent of parties.
2. The case run by the appellant in the writ petition was that he applied for LPG distributorship under G.P. category pursuant to an advertisement published in the 'Ananda Bazar Patrika' on September 9, 2012 against the vacancy at Jamalpur Block in the District of Burdwan. The respondent no. 9 also applied for the LPG distributorship against the same vacancy. The appellant and the respondent no. 9 were both found eligible and accordingly, the Territory Manager (LPG), Durgapur Territory Office of Bharat Petroleum Corporation Limited (BPCL) instructed them to participate in the Draw-On-Lots, to be held on May 11, 2013. At the Draw-On-Lots the respondent no. 9 was declared as the selected candidate. Subsequently, it came to the knowledge of the appellant that the land offered by the respondent no. 9 to construct the godown was not suitable for construction thereof as the proposed land was recorded as a 'Barga' land. The BPCL authorities permitted the respondent no. 9 to offer an alternative land for construction of godown after the issuance of the 'Letter of Intent' (LOI), but the said land was taken on lease much after the date of submission of application and was thus violative of Clause 7.1 (VI) of the guidelines published in the month of April, 2011 by the three leading oil companies. The appellant alleged that the LOI was issued in favour of respondent no. 9, although, he was not eligible to be awarded LPG distributorship as the land offered initially was encumbered and was not converted from 'Sali' land to non-agricultural land.
3. Challenging the aforementioned action of the BPCL, the appellant presented W.P. 11124 (W) of 2017 and, inter alia, prayed for cancellation and setting aside of the LOI as also the approval for offer of alternate land granted in favour of the respondent no. 9 by the BPCL. The appellant contended that the last date for submission of the application form was October 12, 2012 but the alternate land was leased out to the respondent no. 9 by a deed of lease dated March 16, 2017. The appellant further contended that the Territory Manager LPG Durgapur, BPCL on an earlier occasion by a letter dated March 3, 2015 disallowed the request of one Supravat Ghosh to provide alternate land for the proposed LPG godown and showroom at Satgachia, District Burdwan. The appellant alleged collusion between the BPCL authorities and the respondent no. 9 and consequent favouritism shown to the respondent no. 9 by allowing him to offer alternate land, contrary to the provisions of the guidelines of April 2011.
4. The respondent no. 6, Territory Manager Durgapur, BPCL, filed a report in the form of an affidavit and, inter alia, contended that the guidelines dated April 2011, were issued in supersession of all previous guidelines and the award of LPG distributorship in this case was governed by the said guidelines. That out of 6 applicants for the vacancy in Jamalpur, the appellant and the respondent no. 9 were found eligible, and in the draw, the respondent no. 9 was selected. During Field Verification of Credentials (FVC) no irregularity was found with regard to the lease of the land provided for construction of godown, offered by the respondent no. 9. The land also satisfied the specifications mentioned in the said guidelines. Accordingly, the LOI was issued to the respondent no. 9 by letter no.
DGP.OMP.Jamalpur, dated February 24, 2014. Thereafter it was found that the land offered by the respondent no. 9 was classified as 'Barga' land and the respondent no. 9 was asked to take steps for conversion of the said land. According to the said respondent the land was cleared during (FVC) on the basis of the registered lease deed which was found to be genuine and on the fulfillment of the conditions contained in Clause 7.1 (VII) of the guidelines. The classification of the land as 'Barga' land was not taken into consideration. The respondent no. 6 relied on an industry record note dated November 14, 2011 regarding permission for construction of LPG/godown/showroom on a land, other than that mentioned in the application. In terms of the said note, candidates could be allowed to offer an alternate plot of land in case the land mentioned in the application was subsequently notified, that is, (after the date of application) for acquisition or if other statutory restrictions were imposed on it. He further relied on circular no. P-43011/16/2015-IOC dated April 15, 2015 issued by the Ministry of Petroleum and Natural Gas, Government of India, by which the director/marketing of all the leading oil companies were informed that certain flexibility should be given to the applicants to offer an alternate land. He also relied on a record note dated July 15, 2015, which allowed candidates to offer alternate land even after LOI had been issued.
5. According to the respondent no. 6 during FVC, it was not necessary for BPCL to take into consideration the classification of the land. The only consideration at the FVC was whether Clause 7.1 (VII) was satisfied or not, and on the basis of the Record Note the letter dated March 21, 2017 was issued to the respondent no. 9 by which the said respondent was permitted to construct the godown and showroom on the alternate land. The Deputy General Manager (S & M) allowed the respondent no. 9 to offer alternate land. It was stated by the respondent no. 6 that the land provided by Supravat Ghosh was found to be irregular at the FVC and that is why he was not allowed to provide alternate land. However, the land of the respondent no. 9 was not found to be irregular during FVC and as such he was allowed to offer alternate land after FVC and after issuance of the LOI.
6. The said writ petition was dismissed by the learned Judge on the ground that the Court did not find any irregularity on the part of the BPCL authorities in issuing the LOI and in granting approval for alternate land to the respondent no. 9. According to the learned Judge, the record note dated July 15, 2017 had retrospective effect and the appellant being an unsuccessful candidate at the Draw-on-Lots could not pray for cancellation of the LOI issued to the respondent no. 9. The learned Judge was of the view that having participated at the Draw-on-Lots, the appellant did not have any locus standi to challenge the selection process. It is such judgment and order that is under challenge in this intra-court appeal.
7. The respondent no. 9 filed an affidavit-in-opposition to the application for stay of operation of the order dated January 18, 2018 filed by the appellant in this appeal.
8. It was the contention of the respondent no. 9 that he received the LOI from the BPCL authorities as the successful candidate. On July 10, 2015 and September 14, 2015, letters were issued to him by the BPCL authorities asking him to provide the status report regarding compliance with the terms and conditions mentioned in the LOI. On March 21, 2017, he was issued a letter by the Territory Manager LPG BPCL Durgapur by which his request to offer alternate land was accepted. By a letter dated April 27, 2017 the Territory Manager LPG Durgapur BPCL wrote a letter to the District Magistrate, Purba Burdwan requesting the authority to arrange for issuance of no objection certificate in favour of the respondent no. 9 so that construction of the godown on the alternate land could be facilitated. Thereafter, by a letter dated July 14, 2017, the Additional Fire Officer Burdwan Division issued the safety and security certificate. Thereafter, the respondent no. 9 obtained the required permission from the Controller of Explosives, no objection certificate from the District Magistrate and Collector, Purba Burdwan etc. and he had spent Rs.20 lakhs for construction of the godown but due to the pending litigation, he could not commence his business.
9. It was the further case of the respondent no. 9 that the lease executed by one Sailajananda Rakshit for 20 years in favour of the appellant was registered on October 11, 2012 and the same was revoked on August 14, 2014 and that is why the appellant did not mention the R.S. Dag No. 318 in the application form as the appellant was not a lessee in respect of the said land, and as such the appellant also did not have any land appropriate for construction of godown and showroom.
10. In the affidavit-in-reply filed by the appellant, the allegation of lack of locus standi was denied. The appellant categorically stated that the candidature of the respondent no. 9 ought to have been rejected on two grounds, namely, suppression of material facts that the land he initially proposed to offer was a 'Barga' land and that the proposed land did not meet the requirements as 'Barga' land could never be converted to land for commercial use. She also stated that although the lease relating to the land offered by her was revoked, yet, she still was in possession of other alternate lands which she could offer as the same was owned by her prior to the date of submission of the application.
11. Before us, Mr. Saha Roy, the learned advocate for the appellant urged that, although, the last date for submission of the application as per the advertisement was October 12, 2012, but, even upto March 15, 2017 the respondent no. 9 did not have land which satisfied the requirements of Clause 7.1 (VI) and (VII) of the said guidelines of 2011. The lease hold land offered by the respondent no. 9 was in fact 'Barga' land and by suppressing the said fact the respondent no. 9 had misled the BPCL authority, and the LOI dated February 24, 2014 was issued. He urged that on the date of the application the land offered for construction of the godown was encumbered, which was not permissible. According to him, the BPCL authorities were trying to extend favours to the respondent no. 9 by allowing him to offer alternate land, the lease in respect of which was obtained much after the cut-off date, that is, as late as March 2017 and as such the action of the BPCL authorities was arbitrary and in violation of the guidelines. He relied on two judgments, namely, Bishnu Biswas & Ors. Vs. Union of India, reported in (2014) 3 WBLR (SC) 455) and P. Mahendran & Ors. Vs. State of Karnataka, reported in AIR 1990 SC 405. Bishnu Biswas and Ors. (supra) was relied upon by Mr. Saha Roy, in order to establish that once the game has started, the rules could not be changed till the game was over. The other decision relied upon by Mr. Saha Roy was the case of P. Mahendran & Ors. (supra). He asserted that no retrospective effect should be given to any amendment unless it is expressly provided for or the retrospective effect could be given by necessary implication. According to him, the record note dated July 15, 2015 should not be given retrospective effect inasmuch as, in the guidelines, the provision of offer of alternate land was not available, nor was it provided for in the advertisement.
12. The provisions of Clause 7.1 (VI) & (VII) of the said guidelines, 2011 contained the eligibility criteria regarding ownership of land. The same read as follows:
"7.1 (VI). Should own a plot of land of adequate size (within 15 km from municipal/town/village limits of the location offered in the same State) for construction of godown for storage of 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application. As per Gas Cylinder Rules 2004, the floor area of the storage shed for storing 8000 Kg of LPG in cylinders should be 80 sq meters. The length of the storage shed should not be more than 1.5 times of width of storage shed. There should be clear minimum safety distance of 7 metres between storage shed and the boundary wall/fencing. The plot of land with minimum dimension of 26.15 metres by 27 metre is adequate. It should be freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from live overhead power transmission or telephone lines. Canals/Drainage/Nallahs should not be passing through the plot. The land for construction of LPG godown should also meet the norms of various statutory bodies such as PWD/Highway authorities/Town and Country Planning Department etc. In case an applicant has more than one suitable plot for construction of godown for storage of minimum 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application, the details of the same can also be provided in the application.
7.1 (VII). Own a suitable shop minimum size 3 metres by 4.5 metre in dimension or a plot of land for construction of shop of minimum size 3 metres by 4.5 metre at the advertised location or locality as specified in the advertisement as on the date of application. It should be easily accessible to general public through a suitable approach road.
In case an applicant has more than one shop of minimum size 3 metre my 4.5 meter in dimension or a plot of land for construction of shop of minimum size 3 metre by 4.5 metre at the advertised location as specified in the advertisement as on the date of application, the details of the same can also be provided in the application."
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13. According to the said Clause 7.1 (VI), it is imperative that the applicant should own a plot of land of adequate size for construction of godown for storage of 8000 kg of LPG cylinders or ready LPG storage godown as on the date of the application. The clause also provides for the size and dimensions and other specifications which needs to be satisfied. Clause 7.1 (VII) provides that the applicant should own a suitable shop of size 3 meters by 4.5 metres in dimension or a plot of land for construction of shop at the location specified in the advertisement as on the date of the application.
14. 'Own' has been defined as follows:
'Own' means having ownership title of the property or registered lease agreement for minimum 15 years in the name of applicant/family member as defined in multiple distributorship norm of eligibility criteria. In case the land is jointly owned by the applicant/member of 'Family Unit'(as defined in multiple dealership/distributorship norm) with any other person(s) and the share of the land in the name of applicant/member of the 'Family Unit' meets the requirement of land including the dimensions required, then that land for godown/showroom will also qualify for eligibility as own land subject to no objection from other owner(s).
15. A conjoint reading of Clause 7.1 (VI) & (VII) clearly shows that as on the date of the application, a plot of land, over which the applicant has title or in respect of which the applicant is a lessee for not less than 15 years should be offered along with the application for construction of godown and showroom. The said plot should satisfy the descriptions and dimensions mentioned in the above clauses.
16. According to the industry note dated November 14, 2011, if the land mentioned in the applications was subsequently notified (after the date of application) for acquisition or if any statutory restrictions were imposed, the candidate could be allowed to arrange for an alternate plot of land. This implies that the land offered at the time of the application actually fulfilled the criteria stated in the guidelines; only if the land was subsequently not objection-free or encumbered, could the applicant be allowed to offer alternate plot of land.
17. As per the circular dated April 15, 2015 no. P-43011/16/2015- IOC issued by the Ministry of Petroleum and Natural Gas, Government of India, candidates were given an opportunity to offer alternate land and the guidelines were made somewhat flexible. However, this condition of allowing an opportunity to offer alternate land was not unqualified. According to the said circular, the land originally offered in the application should meet all the specifications laid down by the advertisement, on the basis of which the LOI had been issued. If the land offered in the application did not meet the specifications laid down in the advertisement, then the request of the candidate to offer alternate could not be entertained.
18. The record note dated July 15, 2015 on the basis of which the learned Judge upheld the action of the BPCL authorities, to allow the respondent no. 9 to offer alternate land, needs to be discussed hereinbelow.
19. This record note, had instructed, incorporation of a Clause in the Guidelines for Distributorship of March 2015 and RGGLV of December 2014. It is reproduced below.
"Paragraph 4. No advertisement has been published under the guidelines of March 2015 for regular distributorships. Industry will publish advertisement for regular distributorships after incorporating the following changes in line with MOP&NG vide their letter reference P-43011/16/2015 -IOC dated 15.4.2015. 4.1 Industry after deliberations agreed to delete the following para from selection guidelines for Regular Distributorship of March 2015 and RGGLV of December 2014.
"The selected candidate will be required to provide the LPG godown facilities at the plot of land/godown as offered in the application or the alternate plot of land/godown offered at the time of Field Verification Credential (FVC) and found to be suitable for providing LPG godown facilities. Similarly, the selected candidate is required to provide the LPG showroom facilities at the plot of land/shop as offered in the application or the alternate plot of land/shop offered at the time of Field Verification Credential (FVC) and found to be suitable for providing LPG showroom facilities.
In case the selected candidate fails to provide the LPG storage godown and LPG showroom at the same site as mentioned in the application or at the alternate site offered at the time of FVC, the allotment of LPG Distributorship made to the applicant will stand cancelled."
4.2. Insert the following para in place of the above deleted para:
"If the land offered by the candidate in the application or the alternate land offered by the candidate at the time of FVC meets all specifications as laid down in the advertisement on the basis of which LOI has been issued, then the LOI holder can offer an alternate/new land for construction of godown/showroom, in the advertised location, which will be considered on the grounds of enhanced security/safety, better title (owned instead of leased) convenient location, lower operating cost etc."
20. In paragraph 7 of the record note it has been stated that this relaxation would be applicable to all cases where LOI had been issued but were yet to be commissioned, irrespective of the date of procurement of the alternate land for construction of godown and showroom. It is on the strength of this provision that the BPCL authorities permitted the respondent no. 9 to offer alternate land by a letter dated March 21, 2017 which was impugned to the said writ petition.
21. Mr. Sukla, learned advocate appearing on behalf of the BPCL authority was directed to produce the original records. It appears from the records that by a letter (undated) received by the BPCL on March 17, 2017, the respondent no. 9 requested the authorities to allow him to provide alternate land. The contents of the letter read as follows:-
To, The Territory Manager, Durgapur LPG Territory Sub: Request to provide approval for alternate land for godown construction post LOI in Jamalpur location. Dear Sir, This is in connection with the LOI dated 24.02.2014 having reference no. DGP:OMP:Jamalpur. We have been offered LOI to construct godown in Jamalpur location. We have offered land with plot no. 3732, LR Khatian no. 2485, 2586 & 2587, JL no. 34, Village:Mouza Kalera. We are getting difficulty in NA conversion of the land since the inception and not able to construct godown. So we are willing to provide alternate land with plot no. 75, LR Khatian no. 617, JL no. 95, Mouza Ibidpur, G.P.: Raina. The land is completely owned by me and NA conversion is also ready done and land is eligible for any commercial establishment. The land is having approach road in all weather condition.
Hence you are requested to provide approval for the construction of godown as we have already lost business opportunity.
Thanking you."
22. It appears from the records that the respondent no. 9 by a deed of lease dated 16th March, 2017 had obtained lease of plot no. 75 LR Khatian no. 617, JL no. 95, Mouza Ibidpur, Police Station: Raina for construction of the godown which, according to the respondent no. 9, satisfied the other specifications as required by the other advertisements.
23. Subsequent to the said offer of alternate land, the records show that the BPCL authorities had once again conducted FVC and a note was prepared, accordingly. It is set out hereinbelow:
'Sri Mrinmoy Maity, LOI holder of the location has submitted an application for considering alternate land for construction of godown. As per MOP&NG letter No. p-43011/16/2015 - IOC dated April 15, 2015 and Industry Record Note ref SL/VKM/1702 dated July 15, 2015, if the land offered by the candidate in application or the alternate offered by the candidate at the time of FVC meets all the specifications as laid down in the advertisement on the basis of which LOI has been issued, then the LOI holder can offer an alternate land/new land for construction of showroom/godown in the advertised location..... Accordingly FVC of alternate land was carried out and found to be suitable for construction of LPG godown.'
24. After the order impugned was passed the license to store LPG cylinders was granted to the respondent no. 9 by the concerned authorities and no objection certificates were also given by the district magistrate on February 13, 2018. The fire license was given by the collector on March 15, 2018.
25. The only document available on record to show that steps were taken by the respondent no. 9 for conversion of the land is a letter dated August 12, 2017 written to the relevant Block Land and Land Reforms Officer (BLLRO) much after the BPCL authorities allowed the respondent no. 9 to offer alternate land, which has been annexed to the affidavit-in- opposition. By the said letter, the respondent no. 9 requested the BLLRO to consider his case of conversion of the land being plot no. 3732 in furtherance to his application in prescribed Form 1-A submitted on September 9, 2013.
26. It appears from the records that by the LOI dated February 24, 2014 the respondent no. 9 was asked to complete the construction of godown and showroom within four months from the date of the letter. It was further mandated that the construction of the godown should be started as soon as the permission from the office of the BPCL Durgapur was received. Thereafter by a letter dated September 4, 2014, the respondent no. 9 was informed that his drawing and the documents regarding storage of cylinder on plot no. 3732 was not in order and he was asked to file revised drawing and documents. By a letter dated October 17, 2014, the BPCL authorities approved the layout of the site plan on the land offered for the construction of the godown on plot no. 3732. Thereafter, for more than two and a half years, there was no communication between the parties and the process was at a standstill. The next communication surprisingly was the approval given by the BPCL authorities to the respondent no. 9 by a letter dated March 21, 2017 for offering alternate land, being plot no. 75, LR Khatian no. 617, JL no. 95, Mouza Ibidpur, Police Station: Raina for construction of LPG godown. It is clear from the documents mentioned hereinabove that the land offered by the respondent no. 9 was never ready for construction of godown even if it may have met the criteria regarding size, frontage and dimensions. The respondent no. 9 also continued with the process of finalizing of the drawing and other site lay out plan, etc. knowing fully well that the land was not suitable for construction of the godown in view of the fact that the same continued to be an agricultural land as his application for conversion was not considered. It does not appear from the records that the BPCL authorities were ever informed by the respondent no. 9 that the land had not been converted from an agricultural land until by a letter (undated), which was received by the BPCL on March 17, 2017. Although the application for conversion of the land being plot no. 3732 was pending before the authorities on and from 2013, the respondent no. 9 continued to proceed in the matter as if the said land was one whereupon construction could be made and the BPCL authorities on such conduct and representation of the respondent no. 9 proceeded with the formalities. However, no explanation can be found from the records as to what transpired between the respondent no. 9 and BPCL authorities after October, 2012 until the application for approval of alternative land was made by the said respondent. From the very beginning the respondent no. 9 mis-represented that land was available for construction and on the basis thereof the BPCL authorities proceeded in the matter and granted permission for construction of godown on the said land, although, the said land was never ready and available for construction of the godown.
27. We are also at a loss to comprehend as to why in the matter of supply of an essential commodity like LPG in a locality where vacancy existed, the BPCL authorities could sit over the matter for three years without any correspondence in this regard with the respondent no. 9, although the respondent no. 9 could not complete the construction within a reasonable time. The BPCL authorities should have been diligent enough to inquire into the matter and take necessary action in this regard.
28. The respondent no. 9 must be presumed to be aware of the fact that conversion of a "Sali" land cultivated by bargadars was subject to satisfaction of Rule 5A of the West Bengal Land Reforms Rules, 1955. Rule 5A of the said Rules provides as follows:
5A. Inquiry to be made and terms and conditions to be imposed, under sub-section (2) of Section 4C.- (1) An inquiry shall be held under sub-section (2) of section 4C to ascertain any or all of the following :-
(i) If the change of area, if any, prima facie attracts the provisions of section 14U.
(ii) If the proposed change of character or conversion of a land conforms to the general pattern of use of land in the locality;
(iii) If the change or conversion is likely to cause inconvenience to the residents of the locality where the land is situated;
(iv) If the application is for conversion of any agricultural land for any purpose other than agriculture and if such conversion will interfere with the normal agricultural activities in the surrounding area;
(v) If the object of change or conversion is to use the land for a purpose for which permission or license from an appropriate authority is necessary, and if the same has been obtained;
(vi) If such permission will in any way prejudice the application of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) or the provisions of the West Bengal Town and Country (Planning and Development) Act, 1979 (West Bengal Act XIII of 1979);
(vii) If the land is cultivated by a bargadar;
(viii) Such other inquiry as the Collector may think necessary.
(underlining for emphasis by us)
29. While sub-section (2) of Section 4C of the West Bengal Land Reforms Act, 1955 deals with of conversion of land for any purpose other than purposes for which it was settled, or permits a change in the nature and user of land, Rule 5A of the said Rules categorically mandates that before such conversion, inquiry has to be made by the authorities to ascertain amongst other requirements also if the land was cultivated by a bargadar.
30. Paragraph 164 of the West Bengal Land Reforms Manual categorically states as follows:
"164. Points for consideration by the Collector.- (i) Rule 5A of the W.B.L.R. Rules 1965, gives a detailed enumeration of the points to be considered while considering an application under Section 4C. The principal consideration should be whether the proposed change is likely to adversely affect the interests of any person other than the petitioner or have deleterious effect on the environment. For example, if the change sought for is of such a nature as to make a cultivable piece of land uncultivable, the interest of bargadars, if any, on the land may be adversely affected. Again, if the change sought for is to establish an industry or brick-field which may result in noxious waste products, it may adversely affect the environment and/or may adversely affect agriculture in surrounding areas. Further, the Collector is not precluded from making any other enquiries that he may consider relevant. Having ascertained the relevant facts the Collector will take an appropriate decision (Collector includes any officer appointed as Collector by the Government for the purposes of the relevant section).
(ii) Another point for consideration of the Collector in disposing of an application under Section 4C is the effect of other laws on the proposed change. In this connection, a reference may be made to the relevant provisions of the West Bengal Town and Country (Planning and Development) Act, under which a change in land-
use in a Planning or Development Area has to be approved by the Planning Authority or Development Authority under Section 46 of that Act. The power to grant or refuse such permission has been delegated to the Municipalities and Zilla Parishads in Calcutta Metropolitan Planning Area subject to certain conditions. To avoid contradictory orders by two authorities on substantially the same issue, the respective authorities under the West Bengal Land Reforms Act, 1955 and the West Bengal Town and Country (Planning and Development) Act 1979 shall have mutual consultation before disposing of an application for conversion or development of a land in the Calcutta Metropolitan Planning Area."
31. As such, while considering a case of conversion of an agricultural land, cultivated by a bargadar, as in the instant case, the authorities are extremely careful and judicial notice can be taken of such conversion, on most occasions, not being permitted. This fact was always within the knowledge of the respondent no. 9 but the respondent no. 9 continued to mis-represent to the BPCL authorities that he had clear ownership (as defined in the guidelines) to offer the land and that the land was capable of being constructed upon.
32. The next question is the applicability of the record note dated July 15, 2015. It is a settled principle of law that alterations in the conditions provided by the advertisement, subsequent to the process having started, would amount to change in the rules of the game, after the game had started and the same is not permissible in law. As such, the relaxation provided in the said record note allowing even those applicants in respect of whom LOI had been issued but the distributorship were yet to be commissioned, irrespective of the date on which the alternate land was procured, is illegal and arbitrary. The respondent no. 9, admittedly did not have a land ready, free from all encumbrances and ready for construction of the godown. Other applicants, who may not have participated in the process were not made aware before hand that a subsequent change in the conditions is permissible. Having regard to the decision of the Supreme Court in Ramana Dayaram Shetty vs. The International Airport Authority, reported in AIR 1979 SC 1628, the offer of the respondent no.9 who did not fulfil the requisite qualification, should not have been accepted. There could have been other persons who were precluded from participating in the selection process by the condition of eligibility in terms required by Clause 7.1 (VI). Had they been aware that the strict conditions of eligibility would be relaxed, they could also have participated. That part, in view of the decision of the Supreme Court in Ashok Kumar Sharma vs. Chandra Skekhar, reported in (1997) 4 SCC 18, eligibility has to be reckoned on the last date for filing of applications if no other date is specified in the advertisement. This particular process for award of LPG distributorship ought to have been conducted on the basis of the guidelines of 2011 and the conditions laid down therein should have been strictly adhered to and the record note by which a facility was provided to the selected candidate behind the back of other candidates was illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
33. The learned Judge erred in dismissing the writ petition by holding that the appellant did not have any locus standi to challenge the award of the LOI in favour of the respondent no. 9 on the ground that an unsuccessful candidate cannot challenge the selection procedure. On the issue whether an unsuccessful candidate can challenge a selection procedure after having participated in it, reference may be made to the decision in Raj Kumar & Ors. Etc vs. Shakti Raj & Ors. reported in (1997) 9 SCC 527. In the said judgment while distinguishing the decision in Madan Lal vs. State of Jammu & Kashmir reported in (1995) 3 SCC 486, the Apex Court held that in cases where the Government commits glaring illegalities in the procedure, the unsuccessful candidates could challenge the same and the principle of estoppel by conduct or acquiescence had no application. It was thus always open for the appellant to challenge the procedure for award of LPG distributorship, in which he participated, as the authorities changed the rules of the procedure, after the same had begun by applying a record note retrospectively. Such arbitrary action strikes at the very root and the same is liable to be set aside. The distributorship could not have been awarded to the respondent no. 9 as he did not meet the eligibility criteria of owning land on which godown could be constructed. From the very beginning, he was disqualified from participation in the process.
34. The learned Judge erroneously held that the record note dated July 15, 2015 had retrospective effect on and from 2009 and as such the respondent no. 9 was entitled to offer alternate land, without considering that once the procedure for award of LPG distributorship had started and a candidate has been selected at the Draw-on-Lots, subsequent record note relaxing the eligibility criteria cannot be permitted as the same was arbitrary, illegal and discriminatory. On the issue that the rules of the game cannot be changed after the game was played or completed, reference may be drawn to the decision in P.K. Ramachandra Iyer v. Union of India reported in (1984) 2 SCC 141, wherein the Apex Court was considering the validity of a selection process under the ICAR Rules, 1977 which provided for minimum marks only in the written examination and did not envisage obtaining minimum marks in the interview. But the Recruitment Board (ASRB) prescribed a further qualification of obtaining minimum marks in the interview also. The Apex Court observed that the power to prescribe minimum marks in the interview should be explicit and cannot be read by implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. The Apex Court held that as there was no power under the rules for the Selection Board to prescribe the additional qualification of securing minimum marks in the interview, the restriction was impermissible and had a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidates at the written test and interview. Similar view was taken in Himani Malhotra vs. High Court of Delhi reported in (2008) 7 SCC 11, Lila Dhar vs. State of Rajasthan reported in (1981) 4 SCC 159 and K. Manjusree vs. State of Andhra Pradesh reported in (2008) 3 SCC
512. All the above judgments have held that when the selection procedure had started, prescription of minimum marks was not permissible at all, after the written test was conducted.
35. In Himani Malhotra vs. High Court of Delhi (supra) the entire proposition of law was summed up follows:
"There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview.
Therefore, this Court is of the opinion that
prescription of minimum marks by the respondent at
viva voce test was illegal."
36. In Yogesh Yadav vs. Union of India and Ors. reported in (2013) 8 SCC 623 it was held that no change of selection criteria could be permitted after the written test was over.
37. A three Judges Bench in Tej Prakash Pathak and Ors. vs. Rajasthan High Court and Ors. reported in (2013) 4 SCC 540 held as follows:-
10. Under the Scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies.
However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the 'rules of game' either midstream or after the game is played is an aspect of retrospective law making power.
38. The further observation of the learned Judge that once the respondent no. 9 has been selected the remaining actions including the action of relaxing the eligibility criteria insofar as the offer of land is concerned was an internal matter between the respondent no. 9 and BPCL Authorities Ltd, is also erroneous. The BPCL authorities are public authorities and their actions should be fair, transparent and as per the prevalent rules. Such an authority while awarding the distributorship for supply of LPG to the general public have to follow the procedure established by law and their activities fall within the public domain. Any contravention of rules of fair play or the rules of natural justice and fair procedure by the BPCL authorities can be challenged by an aggrieved party. The appellant as a participant was the only eligible candidate at the relevant point of time and not the respondent no. 9, as seen from the discussion made hereinabove. By the subsequent actions of the BPCL, the appellant had been denied the distributorship and she has suffered civil consequences. An arbitrary and illegal award of a distributorship by following a procedure not sustainable in law cannot be an internal matter between the respondent no. 9 and the BPCL authorities. As such, the judgment and order impugned in this appeal is hereby quashed and set aside.
39. Although, the appellant was an eligible candidate and had qualified to participate at the Draw-on-Lots, subsequently it appears from the records that the land offered by her is no longer owned by her, inasmuch as the 20 years lease has been revoked be her lessor. As such, the appellant is now on a similar footing as the respondent no. 9, because the land which she had offered at the time of submission of her application is no longer available. Allowing the appellant to offer alternate land, at this stage, would also amount to changing the rules of the game and as such neither the respondent no. 9 nor the appellant is eligible to be awarded the distributorship and the entire process initiated pursuant to the advertisement dated September 9, 2012 for Jamalpur Block, District Burdwan for the award of LPG distributorship is quashed and set aside.
40. Consequently the LOI dated February 24, 2014, the letter of approval to offer alternate land dated March 21, 2017 and all subsequent permissions, licenses, no objections issued in favour of the respondent no. 9 would be of no effect.
41. The appeal is allowed on the above terms. There shall be no order as to costs.
42. Urgent photostat certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.) Dipankar Datta, J. :
I agree.
(Dipankar Datta, J.)