Mira Rani Sarkar vs Union Of India And 6 Ors

The writ petition under Article 226 of the Constitution of India is preferred by the writ petitioner for setting aside and quashing of a letter dated

17.11.2018 issued by the respondent no. 5 i.e. the Chief Regional Manager, Hindustan Petroleum Corporation Limited whereby the application of the

petitioner offered for distributorship of Liquefied Petroleum Gas (LPG) for the subject location, Borokalia Sharsho, District - South Salmara -

Mankachar, Assam was rejected and for a direction to the respondent authorities in Hindustan Petroleum Corporation Limited to accept the

application of the writ petitioner for the afore-mentioned subject location.

The genesis behind the writ petition is an advertisement published jointly by three Public Sector Oil Marketing companies viz. Indian Oil Corporation

Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) for selection of distributors of

Liquefied Petroleum Gas (LPG) in 93 locations in different districts of the State of Assam.

By the said advertisement published in the daily newspaper, “Asomiya Pratidinâ€, in its issue dated 25.05.2018, the Public Sector Oil Companies

viz. Indian Oil Corporation Limited (IOCL), Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL)

invited applications on-line from interested candidates for selection of distributors of Liquefied Petroleum Gas (LPG) in 93 locations in different

districts of the State of Assam. The last date of submission of on-line application was 25.06.2018.

3.1. The advertisement inter alia laid down the eligible criteria for distributorship of LPG. The applicants were further requested to go through the

related Brochure carefully before filling up the applications, which was available in the website www.lpgvitarakchayan.in. The eligibility criteria were

mentioned in detail in ‘the Brochure on Unified Guidelines for Selection of LPG Distributors’ (hereinafter referred to as ‘the Brochure on

Unified Selection Guidelines’) for Sheheri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak. The said Unified Guidelines for

Selection of LPG Distributors were made effective from June, 2017.

3.2. Clause 1 of the Brochure on Unified Selection Guidelines has provided the definitions of different terms. For the purpose of the present writ

petition, Clause 1(w) is of relevance, which reads as follows :-

“1(w) ‘Ownership’ or ‘own’ for godown / showroom for Shehri Vitrak, Rurban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak

Type of Distributorship means having :

a. Ownership title of the property Or

b. Registered lease deed having minimum 15 years of valid lease period commencing on any day from the date of advertisement up to the last date of

submission of application as specified either in the advertisement or corrigendum (if any).

Additionally, applicants having registered lease deed commencing on any date prior to the date of advertisement will also be considered provided the

lease is valid for a minimum period of 15 years from the date of advertisement. The applicant should have ownership as defined under the term

‘own’ above in the name of the applicant / member of “Family Unit†(as defined in multiple dealership / distributorship norm of eligibility

criteria) / parents (nuclides Step Father / Step Mother), grandparents (both maternal and paternal), Brother / Sister (including Step Brother & Step

Sister), Son / Daughter (includes Step Son / Step daughter), Son-in-law / Daughter-in-law; of the applicant or the spouse (in case of married daughter)

as on the last date for submission of application as specified in the advertisement or corrigendum (if any). In case of ownership / co-ownership by

family member(s) as given above, consent in the form of a declaration from the family member(s) will be required.

In case the share of land in the jointly owned property by the applicant / member of ‘Family Unit’ (as defined in multiple dealership /

distributorship norm) / parents & grandparents (both maternal and paternal) of the applicant or the spouse with any other person(s) meets the

requirement of land including the dimensions required, then that land for godown / showroom should qualify for eligibility as ‘own’ land subject

to submission of ‘No Objection Certificate; in the form of declaration from other owner(s).

[Emphasis supplied in bold]

3.3. Clause 8 has provided for the eligibility criteria for the applicants. As per sub-clause (m) of Clause 8.A : Common Eligibility Criteria, an applicant

should ‘Own’ a plot of land of capacity, minimum dimensions and in location as specified therein for construction of LPG Godown or

‘Own’ a ready LPG cylinder storage godown as on the last date of submission of application as specified either in the advertisement or

corrigendum (if any). Furthermore, for Showroom, applicable only for Sheheri Vitrak, Rurban Vitrak and Gramin Vitrak, an applicant should

‘Own’ a suitable shop for Showroom of size specified therein or a plot of land for construction of Showroom of specified dimensions as on the

last of submission of application as specified either in the advertisement or corrigendum (if any).

3.4. All the applicants for the locations were required to submit their applications by registering on the web-based portal www.lpgvitarakchayan.in on-

line along with the requisite application fee. The Brochure on Unified Selection Guidelines had prescribed a non-refundable application fee of Rs.

10,000/- for Open category, Rs. 5,000/- for Other Backward Classes (OBC) category and Rs. 2,500/- for Scheduled Caste (SC) / Scheduled Tribe

(ST) category through on-line payment. It was mentioned that the list of eligible applicants for draw of lots would be made available on the notice

board of the concerned office of the PSU Oil Marketing Company as well as in the website of the concerned PSU Oil Marketing Company. The

eligible candidates were to be informed through e-mail/sms to report at specified venue, date and time for draw of lots for selection of LPG

distributors.

3.5. The successful candidates would be selected from amongst the eligible candidates for LPG distributorship for the concerned location. After the

draw of lots, the successful candidates would be required to submit an amount equivalent to 10% of the security deposit along with the relevant

documents, listed in Clause 8 of the Brochure on Unified Selection Guidelines, to the concerned office within 7 (seven) days from the date of

intimation.

3.6. After deposit of the afore-mentioned amount i.e. 10% of the security deposit and the required documents, Field Verification of Credentials (FVC)

of the successful candidates would be carried out including verification of the plot of land offered for Godown and/or Showroom. If during the FVC

process the land mentioned by the applicant for Godown / Showroom in his application was found not meeting the eligibility conditions / requirements

as stipulated in the advertisement / Unified Selection Guidelines / application form and if the applicant was having any alternate land in his

name/members of the ‘Family Unit’ / lease on or before the last date for submission of application as specified either in the advertisement or

corrigendum (if any) the same could be considered at the time of FVC.

One of the 93 different locations in the State of Assam for which the applications were invited for selection of LPG distributors, was the subject

location at Borokalia Sharsho under Salkata Gaon Panchayat, District - South Salmara - Mankachar, Assam under the respondent Hindustan

Petroleum Corporation Limited (HPCL). The said location fell amongst rural locations and was reserved for candidates belonging to OBC category.

4.1. Considering herself eligible, the writ petitioner in response to the said advertisement dated 25.05.2018, submitted her application on-line on or

before the last date of submission i.e. 25.06.2018. It is the case of the petitioner that though she did not have her own land as on 25.06.2018, she

entered into a lease agreement with one Sri Motleb Hussain Mondal, also a resident of Village â€" Salkata, Post Office - Borokalia Sharsho, Police

Station â€" Fakirganj, South Salmara Revenue Circle, District - South Salmara - Mankachar, Assam vide a lease deed dated 23.06.2018. The

petitioner has submitted that Sri Motleb Hussain Mondal is the owner of a plot of land admeasuring 0 Bigha 4 Kathas 9 Lessas, covered by Dag no.

2280/2430 & Patta no. 1364, located in Revenue Village â€" Borokalia Sharsho, South Salmara Revenue Circle, District â€" South Salmara -

Mankachar and by the lease deed executed between the petitioner and Sri Motleb Hussain Mondal on 23.06.2018, the petitioner took the said plot of

land belonging to Sri Motleb Hussain Mondal, on lease for a period of 20 years w.e.f. 01.06.2018. After executing the said lease deed, the petitioner

had applied for the LPG distributorship for the subject location by mentioning the said land to be the plot of land where the proposed LPG

distributorship would be located.

4.2. Upon receipt of the petitioner’s application, the respondent HPCL authorities after processing, informed her by a communication dated

20.07.2018 that the petitioner was found qualified for on-line computerised draw of lots for selection of LPG distributorship at the subject location,

Borokalia Sharsho. The petitioner was asked to be present personally along with her identity card for on-line computerised draw of lots to be held on

26.07.2018. Accordingly, the petitioner was present at the venue for on-line computerised draw of lots on the scheduled date, 26.07.2018. As in the

said draw of lots the petitioner was declared as the successful candidate, the petitioner was informed by a communication dated 27.07.2018 to deposit

an amount of Rs. 30,000/- applicable to the subject advertised location in line with the provisions of the Brochure on Unified Selection Guidelines

within 7 (seven) working days. The petitioner was further asked to submit a set of documents specified in Clause 2 therein which would be verified

with the original documents during the Field Verification of Credentials (FVC).

4.3. Amongst the documents asked for vide the communication dated 27.07.2018, land documents pertaining to Land / Godown / Showroom in the

name applicant or member of ‘Family Unit’ Registered Sale Deed / Gift Deed / Lease Deed (15 years minimum) / Mutation and Government

record (self-attested photocopy of the original) were included. It was further mentioned therein that the ownership of the plot of land offered for

Godown / Showroom as defined in the Brochure on Unified Selection Guidelines should be valid as on the dates specified therein.

4.4. Thereafter, Field Verification of Credentials (FVC) was carried out by the FVC team. On verification of the document pertaining to the plot of

land offered for location of the Godown and/or Showroom, the FVC team found the plot of land offered by the applicant in the application form and

shown to the FVC Committee not registered as on the last date of submission of the application. The FVC team found that the document was

registered at a later date, 09.08.2018 which in view of the Brochure on Unified Selection Guidelines was not acceptable.

4.5. After carrying out Field Verification of Credentials (FVC) by the FVC team the land document submitted by the petitioner was found not

acceptable in terms of the guidelines laid down in the Brochure on Unified Selection Guidelines and it was intimated to the petitioner vide a

communication dated 15.09.2018 to offer an alternate plot of land. The petitioner failed to submit land documents for any alternate plot of land within

such stipulated period. Recording that the petitioner failed to provide any suitable alternate plot of land, the respondent BPCL authorities vide the

impugned letter dated 17.11.2018 rejected the candidature of the petitioner for the subject location i.e. Borokalia Sharsho, District - South Salmara -

Mankachar, Assam and it was further informed that the amount of Rs. 30,000/-deposited with the respondent BPCL stood forfeited in line with the

terms and conditions of the advertisement. Aggrieved thereby, the petitioner has preferred this writ petition seeking the reliefs, mentioned above.

Heard Mr. S.K. Singha, learned counsel for the petitioner. Also hear Mr. S.S. Roy and Mr. S. Borthakur, learned counsel for the respondent nos. 1

â€" 5 and Mr. G. Pegu, learned Junior Government Advocate for the respondent nos. 6 â€" 7.

It is the contention of Mr. Singha that even though the petitioner did not submit a registered lease deed executed on or before the last date of

submission of application i.e. 25. 06.2018, the petitioner had submitted a notarised lease deed which was executed on 23.06.2018 with the owner of

the plot of land. According to him, the petitioner fulfilled all the criteria on the date of Field Verification of Credentials (FVC), save and except a

registered lease deed. It is further submitted by Mr. Singha that though the petitioner failed to submit any alternate land meeting the eligibility criteria

specified in the Brochure on Unified Selection Guidelines within the stipulated timeline as asked for by the respondent authorities vide the

communication dated 15.09.2018, the petitioner had in her possession a registered gift deed in respect of another suitable plot of land meeting the

criteria laid down in the advertisement but due to reasons beyond her control, the petitioner could not submit the same before the respondent

authorities within stipulated timeline. It is his further submission that the decision to forfeit the amount of Rs. 30,000/- is illegal, arbitrary and unjust

since there is no deliberate act of omission or commission on the part of the petitioner in submission of the land document and as she had submitted a

self-attested copy of the concerned land document which she had offered for LPG distributorship the respondent authorities were well aware of the

nature of land document offered by the petitioner at a date anterior to the Field Verification of Credentials (FVC) and despite such knowledge, the

petitioner was called for the Field Verification of Credentials (FVC) which clearly demonstrates that there was no due application of mind on the part

of the respondent authorities for which the petitioner ought not to have been penalised.

The said contentions have been objected to by Mr. Roy and Mr. Borthakur by relying upon the provisions contained in the Brochure on Unified

Selection Guidelines and a decision of the Hon’ble Supreme Court of India in Civil Appeal Nos. 6928-6929 of 2015 [Bharat Petroleum Corporation

Limited and others vs. Swapnil Singh], decided on 08.09.2015. It has been submitted that the case of the petitioner is fully covered by the decision in

Swapnil Singh (supra) and therefore, this writ petition is devoid of any merit. It has further been submitted that the decision regarding forfeiture is

justified as the same had been done in terms of the provisions contained in Clause 26 of the Brochure on Unified Selection Guidelines.

I have considered the rival submissions advanced by the learned counsel for the parties and also perused the materials on record including the

documents submitted by the petitioner in support of her candidature for LPG distributorship for the subject location, reference to which have been

made by the learned counsel for the parties during the course of their submissions. Also perused the decision of the Hon’ble Supreme Court of

India in Swapnil Singh (supra).

It appears apposite, at this stage itself, to take note of the background facts, in brief, involved in Swapnil Singh (supra). Like in the case in hand, in

Swapnil Singh (supra) also, applications for selection of regular LPG distributorships were invited in April, 2011 by BPCL. One of the eligibility criteria

was that the applicant should own a plot of land of adequate size and specific descriptions provided therein, on the date of application. The applicant

should have ownership title of the property or registered lease agreement for a minimum 15 years in the name of the applicant / family member as

defined in multiple distributorship form of eligibility criteria. The respondent submitted an application on 13.09.2011, wherein by offering a plot of land,

he mentioned the date of registration of the Sale Deed / Gift Deed / Lease Deed / Deed of Mutation as 13.09.2011. After the draw of lots, on

30.03.2012, the respondent was found successful and on 19.02.2013, Field Verification was carried out to verify whether the respondent actually was

the owner of the land or a lease holder as required by the Brochure. During the process of Field Verification, it came to the knowledge of the

appellant BPCL authorities that the respondent had entered into the lease agreement only on 20.12.2012 for a period of 15 years and that lease

agreement was registered only on 21.12.2012. It was, thus, found out during Field Verification that the respondent did not have a registered lease deed

as on the date of application i.e. 13.09.2011. Having found so, the appellant BPCL authorities cancelled the allotment of the LPG distributorship to the

respondent by a letter dated 11.06.2012.

9.1. Aggrieved thereby, the respondent preferred a writ petition and ultimately, the matter reached the Hon’ble Supreme Court of India. The

Hon’ble Supreme Court of India had found that the respondent had only a notarized lease agreement dated 13.09.2011 in his possession on the

date of submission of his application on 13.09.2011. The registered lease deed came into existence only on 20.12.2012, which was registered on

21.12.2012. It was, therefore, observed that on the date of the application, the respondent therein was not eligible in terms of the Brochure and the

application form since he only had a notarized lease deed dated 13.09.2011, instead of a registered lease deed. The Hon’ble Supreme Court took

note of the fact that Brochure and the application form was absolutely clear in the sense that the applicant must be the owner of the specified area of

land or must have a registered lease deed of the specified area of land on the date of application. Accordingly, it was observed that the respondent

was not eligible on the date of application i.e. 13.09.2011 and no fault was found with the decision regarding rejection of the candidature of the

respondent therein taken by the respondent BPCL authorities.

Reverting back to the facts of the case in hand, it is found that the Brochure on Unified Selection Guidelines had inter alia set forth in clear and

specific terms that the applicant must have a registered lease deed for the plot of land offered for Godown / Showroom of LPG distributorship having

15 years of valid lease period commencing on any date from the date of advertisement up to last date of submission of application as specified in the

advertisement. If the applicant was in a possession of a registered lease deed commencing on any date prior to the date of advertisement, his

candidature would also be considered provided the lease was valid for a minimum of 15 years from the date of advertisement.

From the materials on record, it has clearly emerged that on the last date of submission of application i.e. 25.06.2018, the petitioner did not have

any registered lease deed in respect of the proposed plot of land offered for Godown / Showroom of LPG distributorship for the subject location. She

submitted her candidature only on the basis of a notarised lease agreement dated 23.06.2018. It is, thus, evident that the petitioner did not fulfil the

criteria of eligibility in respect of the plot of land offered for Godown / Showroom of LPG distributorship in terms of the advertisement dated

25.05.2018 and the Brochure on Unified Guidelines for Selection of LPG Distributors. The observations made in Swapnil Singh (supra) applies proprio

vigore with the fact situation obtaining in the present case. Thus, this Court does not find any good and sufficient reason to interfere with the decision

of the respondent HPCL authorities with regard to rejection of candidature of the petitioner for LPG distributorship for the subject location vide the

impugned letter dated 17.11.2018 is concerned.

The impugned letter dated 17.11.2018 had also mentioned that in view of rejection of the candidature of the petitioner due to non-fulfilment of

eligibility criteria in respect of the proposed plot of land offered for LPG distributorship, the amount of Rs. 30,000/- deposited with the respondent

HPCL stood forfeited in terms and conditions in the advertisement. Sub-clause (b) of Clause 26 has mentioned that in case the selection of the

candidate is rejected after the FVC or after the issuance of LoI but before the issue of Letter of Appointment, then the amount deposited by the

selected candidate before the FVC i.e. 10% of the applicable security deposit would be forfeited. As per Clause 26 (a), the candidature of an

applicant is liable for rejection at any stage without assigning any reason if the application or in the documents enclosed therewith or subsequently

submitted in pursuance of the application the applicant is found to have suppressed or misrepresented anything or incorrectly or falsely stating

something. There is no dispute to the fact that the petitioner had submitted a self-attested photocopy of the notarised lease agreement dated

23.06.2018 to the respondent authorities in deference to the directions contained in the letter dated 27.07.2018 within 7 (seven) days. The said fact is

clearly evident from the communication dated 15.09.2018 wherein it was stated that upon receipt of FVC fee and documents for conducting FVC, it

was detected that the land deed was not in accordance with the terms and conditions laid down. Upon submission of the documents by an applicant

after being declared as the successful candidate there was also corresponding duty cast on the respondent authorities at least to examine as whether

the documents submitted by such an applicant had met the criteria of eligibility in terms of their laid down Guidelines. From a perusal of the concerned

document i.e. the notarised agreement dated 23.06.2018 itself the respondent authorities had reached the finding that it was an unregistered document

and had intimated the petitioner beforehand that it was an document which did not meet the criteria of eligibility. But even after reaching such a

finding, the FVC was carried out thereafter on 08.10.2018 on the basis of the said unregistered document which is suggestive of lack of due

application of mind on the part of the respondent authorities whereas the FVC was avoidable beforehand on the basis of the scrutiny of the document

in question. In such situation, an inference cannot be drawn that there was any resort to suppression / misrepresentation / incorrectness / falsity on the

part of the petitioner with regard to submission of the notarised lease agreement dated 23.06.2018. Thus, in the peculiar facts and circumstances of

the case in hand, the decision with regard to forfeiture of the amount of Rs. 30,000/- is found to be unjust and arbitrary and accordingly, that part of

the decision in the impugned communication is set aside. The respondent authorities are directed to return the amount of Rs. 30,000/- to the petitioner

within a period of 1 (one) from today.

As regards the submission of Mr. Singha that the petitioner is in possession of land documents, executed prior to the last date of submission of

application, in respect of an alternate suitable plot of land and the same could not be submitted for reasons beyond her control, it is open for the

petitioner to approach the respondent HPCL authorities in that regard and if such an approach is made, the respondent HPCL authorities shall

consider the same in accordance with the procedure. It is, however, made clear that this Court has not observed anything on merit with regard to such

claim and it is open for the respondent HPCL authorities to deal with the same as per its own merits.

In the light of the discussions made above, this Court finds no merit with regard to the prayer for setting aside the decision to reject the candidature

of the petitioner for LPG distributorship for the subject location is concerned. Accordingly, the writ petition is disposed of with the direction made

above. Interim order, if any, stands recalled. There shall, however, be no order as to cost.