Calcutta High Court (Appellete Side)
Chhanda Koley vs Bharat Petroleum Corporation Ltd. & Ors on 18 January, 2018
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Mir Dara Sheko
W.P.No.11124(W) of 2017
Chhanda Koley
-vs-
Bharat Petroleum Corporation Ltd. & Ors.
Mr. Debabrata Saha Roy
Mr. Indtranath Mitra
Mr. Pingal Bhattacharya
Mr. Susbhankar Das ....for the petitioner
Mr. Amitabh Shukla
Mr. P.C. Pandey
Ms. Riya Sinha ...for BPCL
Mr. Bikash Ranjan Bhattacharya
Mr. Uday Sankar Chattopadhyay
Mr. Suman Sankar Chatterjee
Mr. Santanu Maji
Ms. Snigdha Saha
Mr. Anubhuti Ganguly ...for the respondent no.9
Heard on : January 18, 2018 Judgment on : January 18, 2018 (In court) The matter appeared in the list for hearing as specially fixed matter where Mr Saha Roy prayed for extension of interim order, but due to opposition of learned counsel for respondent no.9 the writ petition is taken up for hearing. Heard Mr Saha Roy being assisted by Mr Mitra, Mr Bhattacharya and Mr Das, learned advocates for the writ petitioner. Heard also Mr Bhattacharya, learned senior advocate being assisted by Mr Chattopadhyay, Mr Chatterjee, Mr Maji, Mr 2 Saha and Mr Ganguly, representing the respondent no.9 and also Mr Shukla being assisted by Mr Pandey and Ms Sinha, learned advocates for BPCL.
The case is now taken up for delivery of judgment.
2. In the tune of the text of the writ petition Mr Saha Roy ventilated the grievance that pursuant to the advertisement for appointment for LPG distributor as was published in daily newspaper Ananda Bazar Patrika on September 9, 2012 in different locations, including Jamalpur, the writ petitioner like the respondent no.9 had submitted application for Jamalpur location. Since as a matter of policy both the writ petitioner and the respondent no.9 were found eligible by the Oil Corporation having tie between them, there was a draw of lottery (shortly to be called on as draw on lot) held on May 11, 2013 upon due information to and in presence of both of them. The respondent no.9 became eligible of said draw on lot and the Bharat Petroleum Corporation Limited (BPCL) accordingly proceeded with the respondent no.9 for completion with the rest formalities.
Inviting attention to clause 7, sub-clauses (vi) and (vii) of the Brochure (of 2011) Mr Saha Roy submits that since as per advertisement the last date of submission of application was October 12, 2012 and till that date the respondent no.9 had no document in possession of ownership for the purpose construction of godown for storage of LPG cylinders and since by virtue of the lease deed dated October 12, 2012 the writ petitioner had shown the leasehold property in his possession which was in fact barga land, and thereby, suppressing the material facts rather giving false information the respondent no.9 mislead the BPCL authority in issuing letter of intent on February 24, 2014. Further submits that in turn the authority by exceeding the terms and conditions of the brochure favoured the respondent no.9 allowing him to provide alternative land beyond the stipulated date, which, according to Mr Saha Roy, would not be permissible. Further submits that ultimately the respondent no.9 submitted a lease deed 3 dated March 20, 2017 showing another land in his possession and the Oil Corporation authority accepted such deed showing undue favour.
Mr. Saha Roy with reference to clauses (vi) and (vii) of the brochure tried to impress that the condition of offering the land for construction of godown and showroom was that it would have to be submitted "as on the date of the application" and not even on the last date of submission of application as per advertisement and far to speak of on any later date. He also invited attention to the Annexure P7 to the writ petition submitting that in the similarly situated case the BPCL authority taking note of failure of any alternative land for proposed LPG distributorship on Satgachia location, district Burdwan before the given date, the lease deed having been placed after date of submission of application it was not considered by the authority. So question is raised as to how discrimination is made in favouring the respondent no. 9 in allowing him to submit document of lease deed long after the cut off date.
Submits that the writ petitioner though had all the eligibility criteria in getting the letter of intent but she having been denied by the authority even in collecting necessary documents despite applying under the Right to Information Act, 2005, the writ petition has been filed with the prayer so that the letter of intent issued in favour of the respondent no.9 by the BPCL authority may be rescinded or cancelled and/or withdrawn and the same may be issued in favour of the petitioner pursuant to the vacancy declared by the said advertisement dated September 9, 2012 (supra) and for other reliefs as prayed for in the writ petition relying on the following cases :-
i) Bishnu Biswas & Ors. vs. Union of India, (2014)3 WBLR (SC) 455;
ii) P. Mahendran & Ors. vs. State of Karnataka, AIR l990 S.C. 405.
3. Mr Bhattacharyya at the very outset, per contra, challenged the locus standi of the writ petitioner in filing the writ petition questioning the letter of intent issued by BPCL in favour of respondent no.9. Submits that the allegation of suppression of facts or providing any false information has no basis, so the writ petition is liable to be dismissed.
4Mr Bhattacharya apprises the court that the question of field verification comes in after sorting out and the draw on lot, and not before that, and while the writ petitioner was at par only till before the stage of 'draw on lot' right of the writ petitioner was sealed, rather was lost when on the basis of draw on lot the respondent no.9 succeeded. Therefore, there being no nepotism or favouritism as alleged and the writ petitioner being an unsuccessful candidate cannot challenge the successful candidate in whose favour the authority after being satisfied exercised their discretion in issuing the letter of intent.
4. Mr Shukla representing BPCL adopting submission made by Mr Bhattacharya and inviting attention to the report submitted by BPCL in the form of affidavit submits that since the matter relates to public utility services and under the Land Reforms Act, 1955 there is provision of conversion of agricultural land for the purpose of its use other than agricultural taking due course, and since that step was said to have been taken, the respondent no.9 having been found eligible in all respects his candidature was accepted in allowing him to render the public utility service and he was also allowed to place alternative land for the purpose to avoid delay in the process.
5. It is obvious that the parties participating in the process pursuant to the advertisement published in the newspaper dated September 9, 2012 are all bound by the terms and conditions laid down therein apart from the Brochure containing other guidelines for selection of regular LPG distributors published in April 2011 which was relevant for the advertisement in question. Although some later guidelines have been appended to the report by respondent no.6 those may not be relevant for deciding the case on hand if the same are not having any retrospective effect. But the text of those guidelines gives clear indication as to how much serious and anxious the authority is to expedite process of selection by making its terms and conditions flexible to the eligible candidate so that the public utility services may not have unnecessary hardship.
5From the brochure the relevant portion from clause 7, sub-clause (vi) may be relevant to quote:-
"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) of godown for storage of 8000 Kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application."
In the same brochure the term 'own' also has been defined which is also set out:-
"'Own' means having ownership title of the property or registered lease agreement for minimum 15 yrs in the name of applicant / family member as defined in multiple distributorship norm of eligibility criteria."
6. In clause 10, sub-clause (10.2) of said brochure there is indication that in case for a location if there is only one eligible applicant (emphasis supplied to the word 'eligible') then no draw is required and in that case the lone eligible applicant would be declared as selected. But in the case on hand admittedly since there was tie between the two, eligible candidates, i.e. the writ petitioner and respondent no.9, as a matter of policy, there was draw of lottery by which the respondent no.9 got success and as a matter of fact the writ petitioner lost his chance. In such case it is then obvious that the authority would thereafter scrutinise and verify all other remaining formalities which are supposed to be required before issuance of letter of intent. Normally after Field verification of credentials if all information given by the candidate is found correct letter of intent is issued following clause II subject to clause 12 of the brochure. Now in the process of fulfilling rest formalities, or despite its completion if the candidature of the respondent no.9 is declined cause of action could have arisen to take legal step by the respondent no.9, where the writ petitioner would have no role. Even the writ petitioner cannot expect invocation of clause 13 of the brochure since by way of findings in the Field verification the candidature of respondent no.9 was never rejected. Because condition for Re-Draw under clause 13 of the Brochure arises only in the following cases :-
6(a) If selected candidate is rejected due to findings in the Field verification,
(b) If letter of Intent is withdrawn from the selected candidate, or
(c) If the distributor is terminated within one year of commissioning.
It has been indicated above that the draw on lot was held on May 11, 2013. The writ petitioner had no complaint of about the procedure of draw or its result to justify the allegation of nepotism or favouritism. Rather after about three years of issuance of letter of intent in favour of respondent no.9 the writ petition is filed, so that, the writ petitioner, who lost the game from the stage of 'draw on lot', be selected for the advertised location rescinding the letter of intent of respondent no.9, although uptil now there is absence of either of the sub-clause (a) or (b) or (c) of Clause 13 (supra).
7. At this juncture the writ petitioner came on the way, questioning that the leasehold land which was offered after the 'draw on lot' for the purpose of construction of godown since was bargadar land it ought not to be transferred and equally the BPCL authority ought not to accept the same. On scrutiny in between the lines of the brochure or even the terms of the advertisement this court fails to find out any clause that any bargadar land, or even cultivable land cannot be offered for the purpose of construction of godown or the place of business. It is needless to mention that the subject property which was offered by the respondent no.9 for the purpose of construction of godown at that relevant time was cultivable land having its nature sali and as per the entry of the LR record names of bargadars were also found apparent, meaning thereby, the owners of that leasehold property used to own that cultivable land through their bargadars. There is however no provision under law prohibiting such an owner of cultivable land having bargadar therein preventing from selling the same land. In case of sale its result would be that the purchaser might acquire said property along with right of the bargadars appended to the property. Alternatively, if 7 recorded bargadars would not have been approached to purchase prior to that sale, they could have exercised right of pre-emption, meaning thereby there is no legal hindrance on the way of owner of such cultivable land in transferring the same which is appended with bargadars. Further, under the provisions laid down or regulated by sections 4, 4A, 4B, 4C, 4D of the West Bengal Land Reforms Act, 1955 and Rule 5A thereunder there is also scope to apply before the appropriate authority for conversion from cultivable land to use for otherwise purpose by making construction therein, and of course, without prior permission if there is any conversion it would be illegal. But again to take steps against such illegality the proper person or the authority obviously would not be the writ petitioner. He may submit complaint before appropriate authority who may take care of the same on inquiry. But the writ petitioner cannot take the role of said statutory authority to establish himself within clause 10.2 of the brochure as the sole "eligible candidate on the grounds that the respondent no.9 had offered the cultivable barga land, although after winning the 'draw on lot' by the respondent no.9 the Oil Corporation accepted said land without objection. It is needless to mention that the document of said barga land was offered on conclusion of execution and registration on October 12, 2012 i.e. the last date of submission of application in terms of advertisement dated September 9, 2012.
8. Now by giving to the other fold, let us take it granted as it happened in this case that, the respondent no.9 had offered the leasehold property by registering the lease deed on October 12, 2012 (that is the last date of submission of application). Offering of such barga land might have been objected again either the bargadars themselves, or, the authority to their discretion could have questioned as to whether it would be acceptable or not. But again it would not be wise to accept the complaint of the writ petitioner whose locus standi virtually ended when he lost on the draw, or, in other way in the draw of lot the respondent no.9 succeeded. The writ petitioner thereby for his own interested cause cannot be entitled to take brief either of the bargadars of said offered land or of the IOCL, either of whom though had never any obejction.
89. Therefore, though the allegation of suppression of facts and providing false information have been levelled against the respondent no.9, or in other way, the BPCL authority was misled, to my observation, the same is not. Mr. Saha Roy invited attention to the very recitals of the lease deed registered on October 12, 2012 where it was recited that its executants/owners were in Khas possession by making payment of rent etc. and submitted that when it was barga land the same could not remain in khash possession of executant of the lessor and eventually the lessee would not also remain in khas possession to offer for the purpose of construction of LPG godown. The term 'Khas possession' is to be construed with some other factual meaning. The possession of a particular cultivable property may remain in two-fold; one by cultivating the same personally by remaining in personal possession if he is owner individually ,and, if he is not owner, then the ownership must be with the State to deal with the same as it desires. In that event, it would remain under Khas possession of the State and not in khas possession of any individual, so long it is not settled or otherwise by any indenture to any one. If any such land remaining in khas possession of any individual, he himself may cultivate the same, or alternatively, by engaging labour ,or, through his/her bargader. But in either of those senses, the khas possession of the individual so far as that property is concerned is not eliminated. Because title remains with its owner and, possession follows title. Meaning thereby, so long such property is not disposed of to any other person or is vested to the State till then the said individual would remain entitled to khas possession of such property. Therefore, the recital of the lease deed dated October 12, 2012 against which Mr. Saha Roy expressed exception alleging suppression of fact is not accepted. For the same analogy allegation of lending false information by the respondent no.9 within the clause 22 of the brochure can have no basis accordingly. Rather the writ petitioner for his own interested cause is so full of his case that he has gone to put aspersion at any extent she can do though virtually she has no locus standi to raise any likewise issue after she lost the 'draw on lot'.
910. On the contrary, what materials had the respondent no.9 with him when were placed to the Oil Corporation Authority after 'draw on lot' it was then within domain of the Oil Corporation Authority to accept or otherwise, of course, by remaining within the terms and conditions and norms of the policy. Under clause 11 sub-clause 11.2 of the brochure, there is clear indication that Field Verification would be carried out for the selected candidate as per laid down procedure; and if in the field verification the information given in the application is found to be correct, then the letter of intent will be issued with the approval of the competent authority and such letter of intent in the case on hand has been issued accordingly in favour of the respondent no.9.
Within the record, there was never ever any indication that due to findings in the field verification there was ever rejection of the selected candidate. Rather, accepting the respondent no.9 later on he was directed to provide alternative land. Question arises whether this act can be semblanced with the act of favouritism or nepotism, as complained of.
11. Against Annexure P7 however, the BPCL authority tried to give one explanation in paragraph 30 of their "report" in the form of affidavit which is set out:-
"It is submitted that the case referred therein is not applicable in the present circumstance and is distinguishable on the basis of several facts. Firstly, in the case mentioned by the petitioner the original land offered by the candidate (Suprabhat Ghosh) in his application was found to be irregular at time of FVC and therefore he was asked to provide an alternate land. The flexibility granted under the MOP&NG Letter Ref No P-43011/16/2015-IOC dated 30.04.2015 and Industry Note SLV/VKM/1702 dated 15.07.2017, as provided to the Respondent No.9, can only be granted only if the original land offered by the candidate in his application form is meeting all the specified criteria and is successful at the time of FVC and that subsequently due to any statutory restrictions etc. the same becomes unviable/uneconomical to be utilized for commissioning of LPG distributorship."
To my estimation, the instance as complained of with reference to Annexure P7 cannot be accepted as similarly situated case for its application in the case of the writ petitioner. Because the writ petitioner was an unsuccessful 10 candidate since after the stage of "draw on lot", meaning thereby, his acceptability in the run was stopped when respondent no.9 succeeded through 'draw on lot' and it would be only within the domain thereafter of respondent no.6 or the BPCL authority as to whether finally for the purpose of issuance of letter of intent they would select the respondent no.9 or not. Therefore the competition of the writ petitioner ended as soon as he lost his game by the 'draw on lot' held also in his presence by the authority on May 11, 2013.
In the case of Bishnu Biswas & Ors. (supra) relied by Mr Saha Roy, issue was whether the rules of game as challenged after written test for recruitment process was over awarding marks indicating lack of transparency vitiated entire selection process. Answer was given that since it was partly vitiated the selection process would continue from the stage it stood vitiated, since, the rules of game would not be changed till the game would be over. However no clog or embargo was put to the competent authority to prescribe minimum qualifying marks for written examination as well as for interview if the statutory rules empowering the authority to conduct the selection process are not so restrained.
In the case on hand submission of application including the document of offering of the leasehold land were all within the stipulated date i.e. October 12, 2012. There would be violation of natural justice if the act of offering of document be restricted only to the date of submission of application denying any further offering though cut off date i.e. last date would yet to come. By Field Verification, the Oil Corporation authority did not reject candidature of respondent no.9 merely on the ground that said land was 'barga' land, as submitted by the Oil Corporation authority in paragraph 16 of the report. So within the rules of game the Oil Corporation accepted the candidature without changing any of such rules till before the stipulated date till when the right of the writ petitioner remained alive, and the same right would no more remain alive after she lost the chance through 'draw on lot'. To the query made by the writ petitioner on March 14, 2017 under the Right to Information Act the Oil Corporation authority answered 11 for information of the writ petitioner that the land disclosed by respondent no.9 was fulfilling the requirement of eligibility criteria and the same was found suitable for construction of LPG godown. So even at such late stage the writ petitioner intended to take information officially, may be for the reason of preparation of filing the case, the authority did not hesitate to supply the answer what would have to be answered instead of declining to answer as falsely blamed.
12. Mr. Saha Roy inviting attention to one document appended to the report in the form of affidavit by BPCL under the heading "Offer alternate land by LOI holder" submitted that after selection if the applicant for any reason is not entitled to construct godown then the allotment of LPG distributor made to the applicant would automatically stand cancelled. The document referred to above is a Record Note dated July 15, 2015 on opportunity to offer alternate land by LOI holder bearing some instructions issued from the Ministry of Petroleum and Natural Gas making the guidelines flexible in the matter of opportunity to offer alternative land.
Of course, Mr. Saha Roy with reference to Annexure 'R-2' appended to the report (supra) in his usual fairness apprised the court that the Government of Andhra Pradesh in that occasion had permitted for construction of godown, shop-room, since there were acquisition of land and so special permission was granted by relaxing the condition. Therefore the same instance would not be appropriate in the case on hand, rather by remaining within the guidelines of 2011 (supra) concluded his argument that while the condition could not be fulfilled in offering the clear land after draw on lot by the respondent no.9 for the purpose of construction of godown, the opportunity as was granted later on, that is long after the last cut off date entertaining the 2nd lease deed dated March 20, 2017 the writ petition should be allowed rescinding the LOI of respondent no. 9. I failed to accept this proposition. When LOI was issued in favour of respondent no.9 on February 24, 2014 and to regularise the rest internal process was lying 12 only between the respondent no.9 and the Oil Corporation authority, the writ petitioner cannot interfere with said process after a period or about four years when the writ petitioner becomes out of game since May 11, 2013, and that too by invoking writ jurisdiction for his own cause.
Relevant portion from paragraph 3 of said "Record Note" bearing signature of higher officer of the Oil Corporation may be relevant hereto set out:-
"It is pertinent to mention that in the selection guidelines of 29 June 2007 it was mentioned that, "after selection, if applicant for any reasons is unable to construct godown duly approved by the Chief Controller of Explosives on the land/godown indicated in the application and or showroom as per the oil company's standard layout on the land/shop indicated in the application, then the allotment of LPG distributorship made to the applicant will automatically stand cancelled. After due deliberation, this condition was not mentioned in the Selection Guidelines for RGGLV 2009 and Selection guidelines for Regular Distributorship in 2010, which were duly approved by MoP&NG. Consequently for the selection made under the guidelines of 2009 and 2010 till 2014, the LOI had a condition that, 'construction of LPG godown and/or showroom should be commenced only after permission in writing is obtained from Area Manager.
13. I have also gone through the other cases of P. Mahendran and others vs. State of Karnataka (supra) paragraph 6 from which is set out:-
"In A.A. Calton v. Director of Education, (1983) 3 SCC 33 : (AIR 1983 SC 1143), this Court considered the validity of appointment of Principal by the Director of Education made under S.16F of the U.P. Intermediate Education Act, 1921. The High Court quashed the selection of Principal on the ground that the appointment had been made by the Selection Committee and not by the Director of Education as required by S.16F(4) of the Act. The High Court directed the Director of Education to make selection and appointment. Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his order dated March 8, 1977, but before that date, S.16F(4) of the Act was amended on August 18, 1975 taking away the power of the Director to make appointment under Section 16F(4) of the Act. In view of the amendment of S.16F of the Act, validity of the order of the Director of Education dated March 8, 1977 making appointment to the post of Principal was again questioned. The High Court dismissed the writ petition: thereupon the unsuccessful party preferred appeal. This Court held as under (para 5) :
"it is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under S.16F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under S.16F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under S.16F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under S.16F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16F of the Act 13 cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petitioner filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection law had no retrospective effect. It did not have commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act, 26 of 1975 should have been followed in the present case."
During foregoing discussion, it has been indicated about the guidelines that construction of LPG godown or showroom to some extent is made flexible, which is no more a condition precedent in getting LOI issued upto 2014. After issuance of LOI, subject to permission in writing, godown and/or showroom can be constructed. On scrutiny of the case in hand the court did not find any fault or departure made by the BPCL authority even from either of the clauses of the brochure of the year 2011 to make it applicable for the impugned advertisement where cut off date for submission of application was 12.10.2012. Nonetheless the "Record Note" Annexure 'R-4' (supra) having its retrospective bearing is an extra adding favourable merit to the respondent no.9 in excess. Said guidelines for construction of LPG godown or shop room would be retrospective and that is in-built since it was not made any more condition precedent in getting LOI by the eligible candidate. Therefore, the writ petitioner is not entitled to get benefit of such decision of the case of P. Mahendran & Ors. v. State of Karnataka (supra), since the amendment referred to therein was not expressly provided retrospective, whereas the "Record Note" dated 15.07.2015 is found retrospective from 2009, which is in-built.
1414. During forgoing discussion since the court finds that in the matter of issuance of the letter of intent in favour of the private respondent no.9, the BPCL authority did not commit illegality rather had proceeded with the acts, and further acts which could have been undertaken in due course remaining within guidelines by taking into consideration of the public utility services, before construction of shop/godown in the land so offered and the status of the writ petitioner virtually having been closed after the stage of draw on lottery, the prayer as made in the writ petition for cancellation of the letter of intent issued in favour of such private respondent no. 9 is not maintainable for want of her locus standi to challenge it, and that too for challenging the same almost after a period of four years for her own cause though there being no statutory violation and thus, the other prayers being not entertainable the writ petition stands dismissed.
In view of final result of the interim order as was passed earlier in this case stands vacated.
Certified photocopy of this judgement, if applied for, shall be given to the parties.
(Mir Dara Sheko, J) Later:-
At this stage, Mr. Saha Roy prays for stay of operation of such judgment for two weeks, since his client wants to prefer appeal, against which the respondents raised objection.
Learned Counsel for the respondent no.9 also submits that due to pendency of this case, the project itself was kept stalled.
Since this case has been decided to the satisfaction of this Court taking all the relevant facts, circumstances, substantial questions of law including locus standi of the petitioner, the prayer of stay is declined.15
(Mir Dara Sheko, J) Subrata