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Judgment
Hon''ble Smt. Justice Abhilasha Kumari
Rule. Mr. V.Y. Vaghela, learned Central Government Standing Counsel, waives service of Notice of Rule for respondent No. 1 and Mr. M.R. Bhatt, learned Senior Advocate with MRs. Mauna M. Bhatt, learned advocate, waives service of Notice of Rule for respondent No. 2.
On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided today.
The challenge in this petition under Article 226 of the Constitution of India, is to order dated 03.02.2011 passed by respondent No. 2, whereby the petitioner has been informed that he has not been found to be eligible for distributorship pursuant to the Rajiv Gandhi LPG Vitrak (RGGLV) scheme.
Briefly stated, the facts of the case are that respondent No. 2 issued an advertisement in the daily vernacular newspaper, "Sandesh", on 08.10.2010, inviting applications for distributorship of LPG gas cylinders under the RGGLV scheme, from eligible persons who fulfilled the eligibility criteria enumerated in clauses 3(a) to (j) therein. The last date for receipt of the applications was 08.11.2010. The petitioner made an application on 25.10.2010, along with certain documents. One of the criteria stipulated in the advertisement in clause 3(g) is that the applicant should be the owner of land at the advertised site, for construction of the godown. It is further mentioned in the advertisement, that in the event of the applicant being married, the land belonging to his family, namely his spouse and unmarried children, can be taken into consideration. The applicant has disclosed in clause 7.7 of his application that he is married. Along with the application, the applicant has enclosed a consent letter from his father, to the effect that if the petitioner is found to be eligible, his father would transfer 30 meters x 30 meters of land owned by him to the petitioner, for construction of the godown. On scrutiny of the application of the petitioner, respondent No. 1 found him to be ineligible, as the petitioner did not own land at the advertised location, at the time of making the application. This was conveyed to the petitioner by respondent No. 2, vide communication dated 08.12.2010. It was mentioned in the said communication that the petitioner could submit his representation, if any, by 28.12.2010, after which date, no representation would be entertained. The petitioner submitted a representation/clarification dated 27.12.2010, which has not been placed on the record of the case. After considering the same, respondent No. 2 informed the petitioner, vide impugned communication dated 03.02.2011, that he has not been found to be eligible under the RGGLV scheme for gas distributorship, as he did not own land in the advertised location on the date of making the application. The case of the petitioner is that subsequent to making the application, the father of the petitioner has transferred land to his name, which is evident from Village Form No. 8A, dated 25.01.2011. According to the petitioner, respondent No. 2 has permitted him to make a representation, therefore, the fact that land has subsequently been transferred his name ought to have been considered while deciding the representation, especially as the land has been transferred before the date of decision of the representation. Aggrieved by the rejection of his candidature, vide the impugned communication dated 03.02.2011, the petitioner has approached this Court, by filing the present petition.
Mr. Mahendra U. Vora, learned advocate for the petitioner has submitted that though the petitioner did not possess land in his name at the time of making the application on 25.10.2010, however, the father of the petitioner had consented to transfer land to the name of the petitioner. In fact, the land has been transferred in the name of the petitioner before the decision of the representation by respondent No. 2. However, this aspect has been totally overlooked and ignored by the said respondent. It is further submitted that the said respondent, by communication dated 08.12.2010, had permitted the petitioner to make a representation, therefore, the factum of transfer of land which took place before the decision of the representation ought to have been considered, and the petitioner ought to have been declared an eligible candidate for the gas distributorship. As the action of respondent No. 2 is not in accordance with the clauses of the advertisement, which permit filing of a representation, the impugned action and consequent impugned order passed by respondent No. 2, be quashed and set aside.
The petition has been resisted by Mr. V.Y. Vaghela, learned Central Government Standing Counsel for respondent No. 1 and Mr. M.R. Bhatt, learned Senior Advocate with MRs. Mauna M. Bhatt, appearing for respondent No. 2. Mr. V.Y. Vaghela, learned Central Government Standing Counsel for respondent No. 1 has supported the stand taken by the learned Senior Advocate appearing for respondent No. 2.
An affidavit-in-reply has been filed by respondent No. 2, wherein it has been elaborated that as per the eligibility criteria contained in clause 3(g) of the advertisement, the petitioner should have owned the land in question at the time of filing the application, which is not the case, therefore, his candidature has been rightly rejected. Relying upon the averments made in the said affidavit-in-reply, it is contended by the learned Senior Advocate for respondent No. 2, that the advertisement clearly stipulates that the applicant should own suitable land for the godown at the time of making the application. Land owned by spouse or unmarried child or children who are included in the family could also have been considered. It is emphasized that at the relevant point of time, the land was not owned by the applicant. Being a married person, the applicant cannot be included in the family unit of his father. The subsequent transfer of land by the father of the petitioner to the name of the petitioner would not make the petitioner eligible, if he did not possess the eligibility at the time of making the application. It is pointed out by the learned Senior Advocate that the Village Form No. 8A that has been annexed by the petitioner to prove the transfer of land to his name is dated 25.01.2011, whereas he has made the application on 25.10.2010. The said document, being subsequent to the date of the application, cannot retrospectively confer eligibility upon the petitioner, therefore, the representation made by the petitioner has rightly been rejected. On the strength of the above submissions, it is prayed that the petition be dismissed.
The learned Senior Advocate has brought to the notice of this Court, judgment dated 21.04.2011 rendered in Special Civil Application No. 2391 of 2011, by a concurrent Bench, wherein the Court has dismissed the petition on similar facts.
I have heard the learned counsel for the respective parties, perused the averments made in the petition, and the documents annexed thereto.
It is not disputed that at the time of making the application on 25.10.2010, the petitioner did not own land at the advertised location, for the construction of a godown, as per the eligibility criteria prescribed in clause 3(g) of the advertisement. The petitioner has submitted a consent letter given by his father, along with the application. A perusal thereof reveals that the father of the petitioner has consented to transfer land to the name of the petitioner, in the event that the petitioner is given gas distributorship. Such a document would not confer eligibility on the petitioner, as the petitioner did not own the requisite land on the date of making the application. Though the father of the petitioner appears to have transferred land to the name of the petitioner, subsequently, this would not confer eligibility to the petitioner, when none existed at the time of making the application. There is no clause in the advertisement that stipulates that a subsequent transfer of land would make the applicant eligible, even if he was not eligible at the time of making the application. The eligibility criteria of the petitioner has to be seen as on the date of making the application and not subsequent thereto. Admittedly, the petitioner is married, and his family unit would comprise of himself, his wife and unmarried children, if any. Being an adult, married person, he would not be included in the family unit of his father. The fact remains that on the date of making the application, neither the petitioner, nor his spouse or unmarried children, if any, owned any land at the advertised location. In these circumstances, as the petitioner did not fulfil the eligibility criteria as stipulated in the advertisement, his candidature has rightly been rejected by respondent No. 2. The petitioner has been informed by communication dated 08.12.2010 that he has been found to be ineligible and has been permitted to make a representation before 28.12.2010. The petitioner has made a representation dated 27.12.2010. The contents of the said representation are not known, as this document has not been placed on the record of the case. However, after considering the representation dated 27.12.2010, respondent No. 2 has informed the petitioner, vide impugned order dated 03.02.2011, that he has not been found to be eligible, as he did not own land in his name at the advertised location, on the date of the application.
It has been strenuously argued by the learned advocate for the petitioner that respondent No. 2 should have considered the aspect that the land has been transferred to the name of the petitioner before the impugned order dated 03.02.2011 has been passed. The petitioner has been permitted to make a representation by respondent No. 2, therefore, the transfer of land to his name should have been considered.
I am afraid that I cannot agree to this submission of the petitioner. In my considered view, the fact that the petitioner has been permitted to make a representation would not change the eligibility criteria, stipulated in the advertisement. It is clearly mentioned in the advertisement that the petitioner would have to fulfil the requisite criteria on the date of the application. There is no clause in the advertisement that stipulates that a subsequent transfer of land to the name of the applicant after the date of the application would make the applicant eligible to be considered. In the absence of any such clause, the subsequent transfer of the land in the name of the petitioner would make no difference, insofar as his eligibility is concerned. The impugned order of respondent No. 2, therefore, calls for no interference.
For the aforestated reasons, there is no merit in the petition, which deserves to be rejected. It is, accordingly rejected. Rule is discharged.