Calcutta High Court (Appellete Side)
Suprabhat Ghosh vs Bharat Petroleum Corporation Ltd. & Ors on 23 July, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Arindam Sinha
WP no.7627 (W) of 2015
Suprabhat Ghosh
Vs.
Bharat Petroleum Corporation Ltd. & Ors.
For petitioner : Mr. Kalyan Bandopadhyay, Sr. Adv.
Mr. Debabrata Saha Roy, Adv.
Mr. Pingal Bhattacharyya, Adv.
Mr. Subhankar Das, Adv.
For respondent : Mr. Surojit Nath Mitra, Sr. Adv.
Mr. Sanjib Kr. Mal, Adv.
Mr. Bimalendu Das, Adv.
Ms. Shomrita Das, Adv.
Heard on : 07.11.2017, 02.05.2018, 04.05.2018 and
11.05.2018.
Judgment on : 23rd July, 2018.
Arindam Sinha, J.
In response to advertisement dated 10th September, 2013 for award of LPG distributorship in location Satgachia of district Burdwan, petitioner had applied. Last date of submission of applications was 17th October, 2013. Annexure P-5 to the writ petition is record of proceedings of draw held on 3rd March, 2014 for selection of LPG distributorship, from which it appears petitioner was declared as selected. Respondent Oil Company, however, by letter dated 23rd August, 2014 alleged that discrepancies were found during Field Verification of Credentials (FVC), in respect of land offered by petitioner. He was told the land is situate in Begunia Mouza which is not in advertisement location Satgachia. He was requested to provide alternate land for showroom standing in his name or member of his family as defined in the guidelines, as on last date of submission of applications.
In above circumstances petitioner approached this Court by writ petition W. P. 25893 (W) of 2014 impugning said letter dated 23rd August, 2014. That writ petition was disposed of by order dated 9th January, 2015, relevant part of which is reproduced below :-
"Having heard the learned advocates for the parties and considering the facts and circumstances of the case, the writ petition is disposed of by granting liberty to the petitioner to file representation proposing an alternative site, annexing relevant documents, by 6th February, 2015 before the Territory Manager (LPG) Durgapur Bharat Petroleum Corporation Limited and if such representation is filed, it shall be disposed of by the respondent no. 2 by passing a reasoned order in accordance with law within four weeks after giving an opportunity of hearing to the petitioner and after causing an inspection of the site upon notice and after considering the relevant documents. It is made clear that I have not gone into the merits of the matter and all points are left open to be dealt with by the respondent no. 2, in the event representation is filed within the time as stipulated."
Petitioner offered alternative plot. The Oil Company rejected that plot too on the ground same did not stand registered in favour of petitioner on or before last date for submission of applications being 17th October, 2013. Petitioner then filed present writ petition. On leave obtained supplementary affidavits were filed by parties.
Mr. Kalyan Bandopadhyay, learned senior advocate assisted by Mr. Saha Roy, learned advocate appeared on behalf of petitioner. On effect of said order dated 9th January, 2015 Mr. Bandopadhyay submitted, said order was not a decision on challenge of his client against said letter dated 23rd August, 2014 regarding location of plot offered by him. Petitioner by this writ petition seeks adjudication on such challenge. He referred to supplementary affidavit filed by his client to submit, Satgachia has two Mouzas, Satgachia and Begunia. Property offered is in Mouza Begunia under Post Office Satgachia. Referring to supplementary objection filed he submitted, same should not be considered since information sought by letter dated 28th January, 2017, disclosed therein, was regarding village Satgachia which description was not given in the advertisement. He relied on full Bench judgment of this Court in Secretary, West Bengal Council of H.S. Education vs. Soumyadeep Banerjee reported in AIR 2010 Calcutta 161, to following passage in paragraph 14 thereof.
"14. The principle of res judicata in our view in this case is absolutely misplaced, as the principle of res judicata pre supposes two elements viz. first there must be an assertion of fact and law by one party and denial and dispute of such fact and law by the adversary which ultimately gives rise to an issue. Unless the issue emerges from a lis, either expressly or conceptually, and there has been decision on that issue, whether raised or could have been raised, the principle of res judicata does not apply..... ......"
He submitted, because of allegation made by the Oil Company his client offered alternate site. Fact remains challenge to intimation dated 23rd August, 2014, alleging site originally offered was not in advertised location, had not been adjudicated. He relied on certificate dated 1st September, 2014 issued by office of Block Land and Land Reforms Officer (BL&LRO) to submit, his client's plot in Mouza Begunia is situate in heart of locality of Satgachia Bazar under PS Memari, District Burdwan.
On subsequent date of hearing Mr. Saha Roy relied on letter dated 15th April, 2015 issued by Government of India, Ministry of Petroleum and Natural Gas to Oil Companies. He submitted, decision of Government is also that opportunity to offer alternative land is to be allowed to selected candidates. In giving such opportunity Oil Companies are to make their guidelines flexible and eschew any kind of rigidity in approach. He submitted, petitioner's originally offered land met criteria notified. Alternative offer can also be accepted taking into account factors of security/safety consideration, better title and economic feasibility. He sought interference.
Mr. Mitra, learned senior advocate appeared on behalf of the Oil Company and made his submissions. He demonstrated from the advertisement, advertised location was Satgachia. Referring to brochure on guidelines for selection of regular LPG distributors, issued by Oil Companies and disclosed in petitioner's supplementary affidavit affirmed on 15th September, 2017, he emphasized clause 7.1 (vii) which is extracted below:-
"7.1 (vii) Own a suitable shop of 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 2 construction of shop of minimum size 3 metre by 4.5 metre at the advertised location or locality as specified in the advertisement as on the date of application, the details of the same can also be provided in the application."
Petitioner was selected and asked to deposit title documents for field verification. Petitioner's title documents, appearing at pages 37 to 46 of the writ petition, states in its schedule property is situate in Mouza Begunia. On field verification of property offered, same was found to be not in advertised location Satgachia. Hence by letter dated 23rd August, 2014 petitioner was, inter alia, invited, on opportunity given, to offer alternate land in advertised location which should be registered in his name or member of family unit (defined in the guidelines) as on last date of submission of applications (17.10.2013) specified in the advertisement. Petitioner challenged that letter by WP 25893 (W) of 2014 which was disposed of by order dated 9th January, 2015. These are facts as cannot be disputed.
Mr. Mitra submitted, effect of said order dated 9th January, 2015 is petitioner had accepted rejection of original plot. The order was passed at instance of petitioner. Petitioner acted pursuant thereto by offering alternative plot which too was rejected and he has not challenged such rejection. Petitioner is, therefore, clearly barred from agitating plot originally offered is within advertised location.
So far as alternative plot is concerned, Mr. Mitra referred to documents disclosed by petitioner at pages 60 to 68 of the writ petition. He demonstrated, petitioner claiming interest in that property could only so claim on or after 28th January, 2015. Alternate plot offered thus does not meet requirement of eligibility criteria being it should be registered in his name or member of family unit (as defined in the guidelines) as on last date for submission of applications being 17th October, 2013. With reference to disclosures in supplementary affidavit, Mr. Mitra drew attention to industry record note dated 14th November, 2011 of Oil Companies and letter dated 15th April, 2015 from Government of India, Ministry of Petroleum & Natural Gas addressed to them. He submitted, the industry note contemplates regularization on basis of a specific situation found by Oil Companies, to be that in the case before High Court of Judicature, Andhra Pradesh, selected candidate had not misrepresented in his application and as on date of making it, land mentioned was suitable for construction of LPG godown. It thereafter stood acquired. So far as letter of Union Government is concerned, contents therein are a matter of policy regarding opportunity to offer alternative land, which attaches condition upon candidates to have to meet all specifications as laid down in the advertisement. He submitted, petitioner had not met all specifications as land or property originally offered was not in advertised location. With reference to rejoinder affidavit of his client affirmed on 9th February, 2017 he pointed out from an annexure, District Burdwan has two separate Mouzas, among many Mouzas, Mouza Begunia and Mouza Satgachia.
In reply Mr. Saha Roy relied on judgment of a Division Bench of this Court in Ranjit Kumar Rishi vs. Union of India reported in 2018(1) CHN (CAL) 675, to paragraphs 2 and 25. He submitted, if the Oil Company's contentions are to be accepted, the advertisement was incorrectly worded. Therefore, it cannot be held petitioner's original offer of plot was not in terms. Relying on paragraph 25 in Ranjit Kumar Rishi (supra) he submitted, Division Bench expressed view, inter alia, that a village might contain more than one Mouza. Certificate issued by the administration regarding situation of original plot offered in the context of said view entitles his client to interference.
Controversy between parties is regarding what is meant by location Satgachia mentioned in the advertisement. Petitioner's document in respect of plot originally offered, mentions its location in Mouza Begunia. Document of alternative plot offered mentions its location in Mouza Satgachia. Petitioner by supplementary affidavit has also brought on record there is village Satgachia. Words 'Mouza' and 'Village' do not find mention in the advertisement. In such a situation it would be safe for Court to proceed according to what was understood by parties, for determining the controversy.
Letter dated 23rd August, 2014, by which originally offered plot was rejected as not being in advertised location, was impugned by petitioner in WP 25893 (W) of 2014. Relevant text of order dated 9th January, 2015 has already been reproduced above. The order was passed upon hearing parties. Petitioner got liberty to propose alternative site and for such proposal being disposed of by the Oil Company with reasons, in accordance with law on giving opportunity to petitioner, after causing inspection of site offered and considering relevant documents. Learned Single Judge disposing of that writ petition made it clear, merits of the matter had not been gone into by Court and all points were left open to be dealt with by respondent no.2 in the event representation was filed within time stipulated. Representation offering alternative site or plot was made and the same again rejected.
Said order dated 9th January, 2015, as appearing on the face of it, was made upon hearing parties and considering facts and circumstances of the case. Case was challenge to rejection of plot originally offered. Direction was liberty granted to petitioner to propose alternative site. Clarification of Court not having gone into merit of matter to be dealt with by respondent no.2 can only be in relation to and regarding alternative site to be proposed by representation filed within time stipulated. In this writ petition, on behalf of petitioner it was argued, challenge to letter dated 23rd August, 2014 not having gone into earlier needed to be adjudicated here. That prayer in this writ petition was pressed. As such rejection of alternative plot need not detain this Court any further.
This writ petition is barred by resjudicata. Soumyadeep Banerjee (supra) supports view taken since, as aforesaid, learned advocates of parties were heard and facts and circumstances of the case considered in disposing of WP 25893 (W) of 2014. Case of petitioner was plot originally offered is situate in advertised location. He is also hit by issue estoppel. While resjudicata would bar Court from adjudicating, issue estoppel would operate against party petitioner. Petitioner is also clearly estopped by conduct from asserting plot originally offered is situate in advertised location. Petitioner by making representation pursuant to said order intentionally caused or permitted the Oil Company to believe to be true that plot originally offered was not in advertised location. Any omission of the Oil Company in describing advertised location, therefore, cannot assume significance for purpose of determining the controversy.
Industrial record note dated 14th November, 2011 and letter dated 15th April, 2015 are of purport as submitted by Mr. Mitra. They do not come to aid of petitioner. Ranjit Kumar Rishi (supra) is not applicable since the controversy has been determined by reliance upon parties' interpretation of location Satgachia as opposed to a judicial view expressed regarding 'Mouza' and 'Village'.
For reasons aforesaid writ petition is dismissed.
(Arindam Sinha, J.)